PROCEEDINGS IN THE TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES, BEFORE THE UNITED STATES SENATE, ON ARTICEES OF IMPEACHMLNT' EXHIBITED BY THE HOUSE OF REPRESENTATIVES. WITH AN APPENDIX. WASHINGTON: F. & J. RIVES & GEO. A. BAILEY, REPORTERS AND PRINTERS OF THE DEBATES OF CONGRESS. 1868. Entered according to Act of C"ngress, in the year 1868, by F. & J. RIVES & GEO. A. BAILEY, In the Clerk's office of the Supreme Court of the District f Columbia. TRIAL OF ANDREW JOHHNSON, PRESIDENT OF THE UNITED STATES. On Monday, February the 24th, 1868, the regulating the tenure of certain civil offices," passed House of Representatives of the Congress of March 2, 1867, said Edwin M. Stanton did forthwith resume the functions of his office, whereof the said the United States resolved to impeach Andrew Andrew Johnson had then and there due notice, and Johnson, President of,the United States, of said Edwin M. Stanton, by reason of the premises, on said 21st day of February, being lawfully entitled high crimes and misdemeanors, of which the to hold said office of Secretary for the Department of Senate was apprised and arrangements were War, which said order for the removal of said Edwin Senate was apprised and arrangements were M. Stanton is in substance as follows, that is to say: made for the trial. On Monday, the 2d of EXECUTIVE MANSION, WASHINGTON, D. C., February 21, 1868. March, articles of impeachment were agreed mnsHINaToN, D. C., Februarv 21 i868. March, articles of impeachment were agreed SIR: By virtue of the power and authority vested upon by the House of Represenfatives, and on in me as President by the Constitution and laws of the 4th they were presented to the Senate by the United States, you are hereby removed from office as Secretary for the Department of War, and the managers on the part of the H-ouse5 who your functions as such will terminateuponreceipt of were accompanied by the House, the grand in- this communication. You will transfer to Brevet Major General Lorenzo quest of the nation, as a Committee of the Thomas, Adjutant General of the Army, who has this Whole on the state of the Union. Mr. BING- day been authorized and empowered to act aq See-.ietary of War ad interim, all records, books, papers, HAM, chairman of the managers, read the arti- and other public property now in your custody and cies as follows: charge. Respectfully yours, ANDREW JOHNSON. Articles exhibited by the House of Representatives of Hon. EDWIN M. STANTON, Washington, D. C. the United States, in the name of themselves and all Which order was unlawfully issued with intent thepeople of the United States, against Andrew John- then and there to violate the act entitled An ctrethen and there to violate the act entitled An actregeon, President of the United States, in maintenance ulating the tenure of certain civil offices," passed and support of their impeachment against him for March 2,1867; and, with the furtherintentcontrary to high crimes and misdemeanors. the provisions of said act, in violation thereof, and ARTICLE 1. contrary to the provisions of the Constitution of the United States, and without the advice and consent Thatsaid Andrew Johnson, Presidentof the United of the Senate of the United States, the said Senate States, on the 21st day of February, in the year of then and there being in session, to remove said Edour Lord 1868, at Washington, in the District of Co- win M. Stanton fronl the office of Secretary for the lumbia, unmindful of the high duties of his office, of Department of War, the said Edwin M. Stanton behis oath of office, and of the requirement of the Con- ing then and there Secretary of War, and being then stitution that he should take care that the laws be and there in the due and lawful execution and disfaithfully executed, did unlawfully and in violation charge of the duties of said office, whereby said Anof the Constitution and laws of the United States drew Johnson, President of the United States, did issue an order in writing for the removal of Edwin M. then and there commit, and was guilty of a high misStanton from the office of Secretary for the Depart- demeanor in office. mentof War, said Edwin M. Stanton having been ARTICLE II. theretofore duly appointed and commissioned, by and with the advice and consent of the Senate of the That on said 21st day of February, in the year of United States, as such Secretary, and said Andrew our Lord868, atWashington, intheDistrictofColumJohnson, President of the United States, on the 12th bia, said Andrew Johnson, President of the United day of August,intheyearofourLordl867, and during States, unmindful ofthe high duties of his office, of the recess of said Senate, having suspended by his his oath of office, and in violation of the Constitution order Edwin M. Stanton from said office, and within of the United States, and contrary to the provisions twenty days after the first day of the next meeting of said Senate, that is to say, on the12th day of Decem- certain civil offices," passed March 2, 1867, without ber,'in the year last aforesaid, having reported to the advice and consent of the Senate of the United said Senate such suspension, with the evidence and States, said Senate then and there being in session, reasons for his action in the case and the name of the and without authority of law, did, with intent to person designated to perform the duties of such office violate the Constitution of the United States and temporarily until the next meetingof the Senate, and the act aforesaid, issue and deliver to one Lorenzo said Senate thereafterward, on the 13th day of Jan- Thomas a letter of authority in substance as fiollows, uary, in the year of our Lord 1868, having duly con- that is to say: sidered the evidence and reasons reported by said 21, 1868. Andrew Johnson for said suspensin, and having refused to concur in said suspension, whereby and by SIR: Hon. Edwin M. Stanton havinethis day been force of the provisions of an act entitled "An act removed from office as Secretary for the Department 4 of War, you are hereby authorized and empowered United States from holding said office, whereby the to act as Secretary of War ad interim, and will im- saidAndrew J'ohnson,President of the United States, mediately enter upon the-discharge of the duties per- did then and there commit and was guilty of a high taining to that office. misdemeanor in office. Mr. Stanton has been instructed to transfer to you ARTICLE VI. all the records, books, papers, and other public property now in his custody and charge. That said Andrew Johnsdn, President of the United Respectfully yours, ANDREW JOHNSON. States, unmindful of the high duties of his office and To Brevet Major General LORENZO THOMAS, Adjiutant of his oath of office. on the 21st day of February, in General United States Army, Washington, D. C. the year of our Lord 1868, at Washington, in the Disthen and there being no vacancy in said office of See- trict of Columbia, did unlawfully conspire with one retary for the Department of War; whereby said Lorenzo Thomas by force to seize, take, and possess Andrew Johnson, President of the United States, did the roperty of the United States in the Department then and there commit and was guilty of a high mis- of War, and then and there inthe custody and charge demeanor in office. of Edwin M. Stanton, Secretary for said Department, contrary to the provisions of an act entitled "An act ARTICLE III.:to.define and punish certain conspiracies," approved That said Andrew Johnson, President of the United July 31,1861, and withntent to violate and disregard States, on the 21st day of February, in the year of our an act entitled "An act regulating the tenure of cerLord 1868, at Washington, in the District of Columbia taivl offices," assed March 2, 1867,whereby said did commit and was guilty of a high misdemeanor Andrew.Johnson, President of the United States, did in office, in this, that, without authority of law then and there commit a high crime in office. while the Senate of the United States was then and ARTIVLE VII. there in session, he did appoint one Lorenzo Thomas "to be Secretary for the Department of War adinterin, That'said Andrew Johnson, President of the Uniwithout the advice and consent -of the Senate, and ted States, unmindful of the high duties of his office with intent to violate the Constitution of the United' and of his oath of offilc on the 21st day of February, States, no vacancy having happened in said office in the year of our Lord 1868, at Washington, in the.of Secretary for the Department of War during the District of Columbia, did unlawfully conspire with recess of the Senate, and no vacancy existing in said one Lorenzo Thomas with intent unlawfully to seize, office at the time, and which said appointment, so take, and possess the property of the United States made by said Andrew Johnson, of said Lorenzo in the Department of War, in the.custody and charge Thomas, is in substance as follows, that is to say: of Edwin M. Stanton, Secretary of said Department, with intent to violate and disregard the act entitled EX.ECUTVE MI NSIONr, " An act regulating the tenure of certain civil offices," W ASHINaToN, DJ. C., Feruar~v 21, 1w868 passed March 2, 1867, whereby said Andrew Johnson, SIR: Hon. Edwin M. Stanton having been this day President of the United States, did then and there removed from office as Secretary for the Department commita high misdemeanor in office. of War, you are hereby authorized and empowered to act as Secretary of War ad interim,and will imme- ARTICLE VIII. diately enter upon the discharge of the duties per- That said AndrewJohnson, Presidentof the United.tamSing to that office. States, unmindful of the high duties of his office and Mr. Stanton has been instructed to transfer to you f hth of offie, with intent unawfullyo control all the records, books, papers, and other public prop- the disbursements of the moneys appropriated for erty now in his custody and charge. Re spectfull now n his custody yours ANDEW JNSNarge. the military service and for the Department of War, Respectfully yours ANDEW JOHNSON. n the 21st day of February, in the year of our Lord To Brevet MajorGeneralLoaENzo THOMAS, AdjUtant 1868, at Washington, in the District of Columbia.-did General United States Army, Washington, D. C. unlawfully and contrary to the provisions of an act ARTICLE IV. entitled "An act regulating thetenureof certain civil offices," passed March 2,1867, and in violation of the That said Andrew Johnson, President of the Uni- Constitution of the United States, and without the *ted States, unmindful of the high duties of his office advice and consent of the Senate of the UnitedStates, and of his oath of office, in violation of the Constitu- and while the Senate was then and there in session, tion and laws of the United States, -on the 21st day there being no vacancy in the office of Secretary for of February, in the year of our Lord 1868, at Wash- the Department of War, with intent to violate and ington, in the District of Columbia, did unlawfully disregard the act aforesaid, then and there issue and conspire with one Lorenzo Thomas, and with other deliver to one Lorenzo Thomas a letter of authority persons to the House of Representatives unknown, in writing, in substance as follows, that is to say: with intent by intimidation And threats unlawfully!EXECUTIVE MANSION, to hinder and prevent Edwin M. Stanton, then and WASHINGTON, D. C., February 21, 1868. there the Secretary for the Department of War, duly SIR: Hon. Edwin M. Stanton having been this day appointed under the laws of the United States, from removed from offce as Secretary for the Departholding said office of Secretary forthe Departmentofreodfomfie alcrtyrthDerWax contr to and in violation of the Wr, mentofWaryou are herebyauthorized and empowoWahr contrary St and voai of the prviinsritution atered to act as Secretary of War ad interim and will of the United States, and of the provisions of an act imediately enter upon the discharge of the duties entitled "An act to define and punish certain conspiracies, approved July 31, 1861, whereby said An- Mr. Stanton has been instructed to transfer to you drewJohnson,PresidentoftheUnited States, did then all the records, books, papers, and other public propand there commit and was guilty of a high cime in erty now in his custody and charge. office. Respectfully yours, ANDREW JOHNSON. ARTICLE V. To Brevet Major General LORENZO THOMAS, Adjutant That said Andrew Johnson, President of the United General United States Army, Washington, D. C States, unmindful of the high duties of his office and Whereby said Andrew Johnson, President of the of his oath of office, on the 21st day of February, in United States, did then and there commit and was the year of our Lord 1868, and on divers other days guilty of a high misdemeanor in office. and times in said year, before the 2d day of March, A. D. 1868, at Washington, in the District of Colum- ARTICLE IX. bia, did unlawfully conspire with one Lorenzo That said Andrew Johnson, President of the UniThomas, and with other persons to the House of ted States, on the 22d day of February, in the year Representatives unknown, to prevent and hinder the of our Lord 1868, at Washington, in the District of exdeution of an act entitled " An act regulating the Columbia, in disregard of the Constitution and the tenure of certain civil offices," passed March 2, 1867, laws of the United States, duly enacted, as Comand in pursuance of said conspiracy did unlawfully mander-in-Chief of the Army of the United States, attempt to prevent Edwin M. Stanton, then and there did bring beforetimself then and there William H. being Sebretary for the Department of War, duly Emory, a major general by brevet in the Army of the appionted and commissioned under the laws of the United States, actually in command of the -depart 5: ment of Washington and the military forces thereof, thought, and we think, that we had partially sucand did then and there, as such Commander-in-Chief, ceeded; but as the work progresses, as reconstruction declare to and instruct said Emory that part of a law seemed to be taking place, and the country was beof the United States, passed March 2,1867, entitled coming reunited, we found a disturbing and marring "An act making appropriations for the support of the element opposing us. In alluding to that element, Army for the year ending Jun-e 30,1868, and for other I shall go no further than your convention and the purposes," especially the second section thereof,which distinguished gentleman who has delivered to me the provides, among other things, that "all orders and report of its proceedings. I shall make no reference instructions relating to military operations issued by to it that I do not believe the time and the occasion the President or Secretary of War shall be issued justify. through the General of the Army and, in case of his " We have witnessed in one department of the Govinability, through the next in rank," was unconstitu- ernment every endeavor to prevent the restoration tional, and in contravention of the commission ofsaid of peace, harmony, and Union. We have seen hangEmory, and which said provision of 1iw had been ing upon the verge of the Government, as it were, a theretofore duly and legally promulgated by general body called, or which assumes to be, the Congress of order for the government and direction of the Army the United States, while in fact it is a Congress of of the United States, as the said Andrew Johnson only a part of the States. We have seen this Conthen and there well knew, with intent thereby to in- gress pretend to be for the Union, when its every duce said Emory, in his official capacity as commander step and act tended to perpetuate disunion and make of the department of Washington, to violate the pro- a disruption of the States inevitable." * * visions of said act, and to take and receive, act upon, * * "Wehave seen Congress gradually encroach and obey such orders as he, the said Andrew John- step by step upon constitutional rigbts,. and violate, son, might make and give, and which should not be day after day and month after month, fundamental issued through the General of the Army of the Uni- principles of the Government. We have seen a Conted States, according to the provisions of said act, gress that seemed to forget that there was a limit to and with the further intent thereby to enable him, the sphere and scope of legislation. We have seen the said Andrew Johnson, to prevent the execution.a Congress in a minority assume to exercise power of an act entitled "An act regulating the tenure of which, allowed to be consummated, would result in certain civil offices," passed March 2, 1867, and to despotism or monarchy itself." unlawfully prevent Edwin M. Stanton, then being Specification Second.-In this, that at Cleveland, in Secretary for the Department of War, from holding the State of Ohio, heretofore, to wit, on the 3d day said office and discharging theduties thereof, whereby of September, in the year of our Lord 1866, before a said Andrew Johnson, President of the United States, public assemblage of citizens and others, said Andrew did then and there commit and was guilty of a high Johnson, President of the United States, speaking of misdemeanor in office. and concerning the Congress of the United States, did, in a loud voice, declare in substance and effect, among ARTICLE X. other things, that is to say: That said Andrew Johnson, President of the Uni- "I will tell youwhat I diddo. Icalled upon your ted States, unmindful of the high duties of his office Congress that is trying to break up the Government." and the dignity and proprieties thereof, and of * * * * * S * * * * the harmony and courtesies which ought to exist "In conclusion, beside that, Congress had taken and be maintained between, the executive and much pains to poison their constituents against him. legislative branches of the Governmentof the United But what had Congress done'? Have theydone anyStates, designing and intending to set aside the thing to restore the union of these States? No; on rightful authority and powers of Congress, did at- the contrary, they had done everything to prevent it; tempt to bring into disgrace, ridicule, hatred, con- and because he stood now where he did when the tempt, and reproach the Congress of the United -rebellion commenced he had been denounced as a States and the several branches thereof, to impair traitor. Who had run greater risks or made greater and destroy the regard and respect of all the good sacrifices than himself? But Congress, factious and people of the United States for the Congress and le- domineering, had undertaken to poison the minds of gislative power thereof, (which all officers of the the American people." Government ought inviolably to preserve and main- Specification Third.-In this, that at St. Louis, in tain,) and to excite the odium and resentment of all the State of Missouri, heretofore, to wit, on the 8th the good people of the United States against Con- day of September, in the year of our Lord 1866, before: gress and the laws by it duly and constitutionally a public assemblage of citizens and others, said Anenacted: and in pursuance of said design and in- drew Johnson, President of the United States, sDeaktent, openly and publicly, and before divers assem- ing of and concerning the Congress of the United blages of the citizens of the United States convened, States, did, in a loud voice, declare in substance and in divers parts thereof to meet and receive said An- effect, among other things, that is to say: drew Johnson as the Chief Magistrate of the United "Go on. Perhaps if you had a word or two on the States, did, on the 18th day of August, in the year of subject of New Orleans you might understand more our Lord 1866, and on divers other days and times, about it than you do. And if you will go back-if as well before as afterward, make and deliver with a you will go back and ascertain the cause of the riot loud *Voice certain intemperate, inflammatory, and at New Orleans,perhaps you will not be so prompt scandalous harangues, and did therein utter loud in calling out'New Orleans.' If you will take up threats and bitter menaces as well against Congress the riot at New Orleans and trace it back to its source as the laws of the United States duly enacted thereby, or its immediate cause, you will find out who was reamid thb cries, jeers, and laughter of the multitudes sponsible for the blood that wasshed there. Ifyouwill then assembled and within hearing, which are set take up theriot atNewOrleansandtrace itbackto the forth in the several specifications hereinafter writ- Radical Congress you will find that the riot at New ten, in substance and effect, that is to say: Orleans was substantially planned. If you will take Specification First.-In this, that at Washington, up the proceedings in their caucuses you will underin the District of Columbia, in the Executive Man- stand that they there knew that a convention was to sion, to a committee of citizens who called upon the be called which was extinct by its power having exPresident of theUnited States, speaking of and con- pired; that it was said that the intention was that a cerning the Congress of the United States, said An- new government was to be organized, and on the ordrew Johnson, President of the United States, here- ganization of that government the intention was to tofore, to wit, on the 18th day of August, in the year enfranchise one portion of the population, called the of our Lord 1866, did, in a loud voice, *declare in colored population, who had just been emancipatel, substance and effect, among other things, that is and at the same time disfranchise white men. Wben to say: you design to talk about New Orleans you ought to "So farasthe executive department of the Govern- understand what you are talking about. Whoqz you mentis concerned, the effort has been made to restore read the speeches that were made, and take up the the Union, to heal the breach, to pour oil into the facts on the Friday and Saturday before t-gt conwounds which were consequent upon the struggle, vention sat, you will there find that spe ehes were and (to speak in common phrase) to prepare, as the made incendiary in their character, e~iting that learned and wise physician would, a plaster healing portion of the population, the black ndpulation, to in- charaeter and coextensive with the wound. We arm themselves and prepare for the sheding of blood 6 You will also find that that convention did assemble lumbia, by public speech, declare and mirm in subin violation of law, and the intention of that conven- stance that the Thirty-Ninth Congress of the Unition was to supersede the reorganized authorities in ted States was not a Congress of the United States thecState government of Louisiana, which had been authorized by the Constitution to exercise legislative recognized by the Goverpment of the United States; power under the same; but, on the contrary, was a and every man engaged in that rebellion in that con- Congress of only part of the States, thereby denying vention, with the intention of superseding and up- and intending to deny that the legislation of said turning the civil government which had been recog- Congress was valid or obligatory upon him, the said nized by the Government of the United States, I say Andrew Johnson, except in so far as he saw fit to that he was a traitor to the Constitution of the Uni- approve the same, and also thereby denying and inted States, and hence you find that another rebellion tending to deny the power of the said Thirty-Ninth was commenced having its origin in the Radical Congress to propose amendments to the Constitution' Congress." of the United States; and, in pursuance of said dec* * * * * * * laration, the stid Andrew Johnson, President f the "So much for the New Orleans riot. And there United States, afterward, to wit: on the 21st day of was the cause and the origin of the blood that was February, 1868, at the city of Washington, in the Disshed; and every drop of blood that was shed is upon trict of Columbia, did unlawfully and in disregard their skirts, and they are responsible for it. - I could of the requirements of the Constitution, that he test this thing a little closer, but will not do it here should take care that thelaws be faithfully executed, to-night. But when you talk about the causes and attempt to prevent the execution of an act entitled consequences that resulted from proceedings of that "An act regulating the tenure of certain civil offices," kind, perhaps, as I have been introduced here, and passed March 2, 1867, by unlawfully devising and you have provoked questions of this kind, though it contriving, and attempting to devise and contrive, does not provoke me, I will tell you a few-wholesome means by which he should prevent Edwin M. Stanthings that have been done by this Radical Congress ton from forthwith resuming the functions of the in connection with New Orleans and the extension office of Secretary for the Department of War, notof the elective franchise. withstanding the refusal of the Senate to concur in I know that I have been traduced and abused. I the suspension therefore made by said Andrew Johnknow it has come in advance of me here, as elsewhere, son of said Edwin M. Stanton from said office of that I have attempted to exercise an arbitrary Secretary for the Department of War, and also by power in resisting laws that were intended to be further unlawfully devising and contriving, and atforced upon the Government; that I had exercised tempting to devise and contrive, means then and that power; that I had abandoned the party that there to prevent the execution of an act entitled elected the, and that I was a traitor, because I exer- "An act making appropriations for the support of cised the veto power in attempting and did arrest for the Army for the fiscal year ending June 30, 1868, a time a bill that was called a'Freedman's Bureau' and for other purposes," approved March 2,1867, and bill; yes, that I was a traitor. And I have been tra- also to prevent the execution of an act entitled "An duced, I have been slandered, I have been maligned, act to provide for the more efficient government of I have been called Judas Iscariot, and allthat. Now, the rebel States," passed March 2,1867; whereby the my countrymen here to-night, it is very easy to in- said Andrew Johnson, President of the United dulge in epithets; it is easy to call aman a Judas and States, did then, to wit: on the 21st day of February, cry odt traitor; but when he is called upon to give 1868, at the city of Washington, commit and was arguments and facts he is very often found wanting. guilty of a high misdemeanor in office. Judas Iscariot-Judas, There was a Judas and he And the House of Representatives, byrprotestation, was one of the twelve apostles. Oh I yes, the twelve saving to themselves the liberty of exhibiting at any apostles had a Christ. The twelve apostles had a time hereafter any further articles or other accusaChrist, and he never could have had a Judas unless tion or impeachment against the said Andrew Johnhe had had twelve apostles. If I have played the son, President of the United States, and also of replyJudas, who has been my Christ that I have played the ing to his answers which he shall make unto the artiJudas with? Was it Thad. Stevens? Was it Wen- cles herein preferred against him, and of offering dell Phillips? Was it Charles Sumner? These are proof to the same and every part thereof, and to all the men that stop and compare themselves with the and every other article, accusation, or impeachment Saviour; and everybody that differs with them in which shall be exhibited by them, as the case shall opinion, and to try and stay and arrest the diabolical require, do demand that the said Andrew Johnson and nefarious policy, isto be denounced as a Judas." may be put to answer the high crimes and misde* * * * * * * * * * meanors in office herein charged against him, and "Well, let me say to you, if you will stand by me that such proceedings,examinations, trials, andjudgin this action; if you will stand by me in trying to ments may be thereupon had and given as may be give the people a fair chance, soldiers and citizens agreeable to law and justice. to participate in these offices, God being willing, I will kick them out. I will kick them out just as fast The Senate, in its preparation for so mos I can.. mentous an event, adopted rules of procedure "Let me say to you, in concluding, that what I of have said I intended to say. I was not provoked into and practice for the guidance of the court; this, and I care not for their menaces, the taunts, and to accord with the conviction of the Chief and the jeers. I care not for threats. I do not intend to be bullied by my enemies nor overawed by Justice that the court should adopt its own my friends. But, God willing, with your help I will rules, they were pro forma again adopted when veto their measures whenever any of them come to me." the court met. They are as follows: Which said utterances, declarations, threats, and harangues, highly censurable in any,. are peculiarly Rules of Procedure and Practice in the Senate when indecent and unbecoming in the Chief Magistrate of sitting on the Trial of Impeachmnents. the United States, by means whereof said Andrew I. Whensoever the Senate shall receive notice from Johnson has brought the high office of the President the House of Representatives that managers ar6 of the United States into contempt, ridicule, and appointed on their part to conduct an impeachment disgrace, to the.great scandal of all good citizens, against any person, and are directed to carry articles whereby said Andrew Johnson, President of the Uni- of impeachment to the Senate, the Secretary of the ted States, did commit, and was then and there guilty Senate shall immediately inform the House of Repof, a high misdemeanor in office. resentatives that the Senate is ready to receive the ARTICtS XI. managers for the purpose of exhibiting such articles of impeachment agreeably to said notice. Thit said Andrew Johnson, President of the Uni- II. When the managers of an impeachment shall ted States, unmindful of the high duties of his office be introduced at the bar of the Senate, and shall and of- his oath of office, and in disregard of the signify that they are ready to exhibit articles of imConstitition and laws of the United States, did here- peachment against any person, the Preoiding Officer tofore, t6~wit: on'the 18th day of August, 1866, at of the Senate shall direct the Sergeant-at-Arms to the *ity.4 Washington, in the District of Co- make proclamation, who shall, after making procla 7 mation, repeatthe following words, viz: "All persons pear shall be given in such other manner, by publicare commanded to keep silence, on pain of imprison- ation or otherwise, as shall be deemed just; and if ment, while the House of Represbntatives is exhib- the writ aforesaid shall fail of service in the manner iting to the Senate of the United States articles of aforesaid the proceedings shall not thereby abate, impeachment against -;" after which the but further service may be made in such manner as articles shall be exhibited, and then the Presiding the Senate shall direct. If the accused, after service, Officer of the Senate shall inform the managers that shall fail to appear, either in person or by attorney, the Senate willtake proper order on thesubject of the on the day so fixed therefor as aforesaid or, appearimpeachment, of which due notice shall be given to ing, shall fail to file his answer to such articles of, the House of Representatives. impeachment, the trial shall proceed, nevertheless, III. Upon such articles being presented to the Sen- as upon a plea of not guilty. If a plea of guilty shall ate, the Senate shall, at one o'clock afternoon of the be entered judgment may be entered thereon withday (Sunday excepted) following such presentation, out further proceedings. or so'oner if so ordered by the Senate, proceed to the IX. At twelve o'clock and thirty minutes afternoon consideration of such articles, and shall continue in of the day appointed for the return of the summons session from day to day, (Sundays excepted,) after the against the person impeached, the legislative and trial shall commence, (unless otherwise ordered by the executive business of the Senate shall be suspended, Senate,) until finaljudgment shall he rendered, and and the Secretary of the Senate shall administer an so much longer as may in its judgment, be needful. oath to the returning officer in the form following, Before proceeding to the consideration of the arti- viz: "I, -- - —, do solemnly wear that the ales of impeachment, the Presiding Officer shall ad- return made by me upon the proc~e issued on the minister the oath hereinafter provided to the mem- - day of -, by the Senate of the United States, bers of the Senate then present, and to the other against -, is truly made, and that I have members of the Senate as they shall appear, whose performed such service as therein described; so help duty it shall be to take the same. me God." Which oath shall be entered at large on IV. When the Presidentof the United States, orthe the records. Vice President of the United States, upon whom the X. The person impeached shall then be called to powers and duties of the office of President shall have appear and answer the articles of impeachment devolved, shall be impeached, the Chief Justice of against him. If he appear, or any person for him, the Supreme Court of the United States shall pre- the appearance shall be recorded, stating particuside; and in a case requiring the said Chief Justice larly if by-himself, or by agent, or attorney, naming to preside, notice shall be given to him by theiPre- the person appearing, and the capacity in which he siding Officer of the Senate, of the time and place appears. If he do not appear, either personally or fixed for the consideration of the articles of impeach- by agent or attorney, the same shall be recorded. ment as aforesaid, with a request to attend; and the XI. At twelve o'clock and thirty minutes aftersaid Chief Justice shall preside over the Senate dur- noon of the day appointed for the trial of an iming the consideration of said articles, and upon the peachment, the legislative and executive business of trial of the person impeached therein. the Senate shall be suspended, and the Secretary V. The Presiding Officer shall have power to make shall give notice to the House of Representatives and issue, by himself or by the Secretary of the Sen- that the Senate is ready to proceed upon the imate, all orders, mandates, writs, and precepts author- peachment of - -—, in the Senate Chamized by these rules, or by the Senate, and to make and ber, which Chamber is prepared with accommoenforce such other regulations and orders in the dations for the reception of the House of Representpremises as the Senate may authorize onprpvide. atives. VI. The Senate shall have power to compel the XII. The hour of the day atWhich the Senate shall attendance of witnesses, to enforce obedience to its sit upon the trial of an impeachment shall be (unless orders, mandates, writs, precepts, and judgments, to otherwise ordered) twelve o'clock m.: and when the preserve order, and to punish in a summary way con- hour for such sitting shall arrive, the Presiding Officer tempts of and disobedience to its authority, orders, of the Senate shall so announce; and thereupon the mandates, writs, precepts, or judgments, and to make presiding officer upon such trial shall cause proclaall lawful orders, rules, and regulations, whichit may mation to be made, and the business of the trial deem essential or conducive to the ends of justice. shall proceed. The adjournment of the Senate sitAnd the Sergeant-at-Arms, under the direction of ting in said trial shall not operate as an adjournthe Senate, may employ such aid and assistance as ment of the Senate; but on such adjournment the may be necessary to enforce, execute, and carry into Senate shall resume the consideration of its legiseffect the lawful orders, mandates, writs, and pre- lative and executive business. cepts of the Senate. XIII. The Secretary of the Senate shall record VII. The Presiding Officer of the Senate shall di- the proceedings in cases of impeachment as in the rect all necessary preparations in the Senate Cham- case of legislative proceedings, and the same shall ber, and the presiding officer upon the trial shall be reported in the same manner as the legislative direct all the forms of proceeding while the Senate proceedings of the Senate. are sitting for the purpose oftrying an impeach- XIV. Counsel for the parties shall'be admitted ment, and all forms during the trial not otherwise to appear and be heard upon an impeachment. specially provided for. The presiding officer may, XV. All motions made by the parties or their in the first instance, submit to the Senate, without a counsel shall be addressed to the presiding officer, division, all questions of evidence and incidental and if he, or any Senator, shall require it, they shall questions; but the same shall on the demand of one be committed to writing and read at the Secretary's fifth of the members present, be decided by yeas and table. nays. XVI. Witnesees shall be examined by one person VIII. Upon the presentation ofarticles ofimpeach- on behalf of the party producing them, and then ment and the organization of the Senate as herein- cross-examined by one person on the other side.. before provided, a writ of summons shall issue to the XVII. If a Senator is called as a witness he shall accused, reciting said articles and notifying him to be sworn and give his testimony standing in his appear before the Senate upon a day and at a place place. to be fixed by the Senate and named in such writ, XVIII. If a Senator wishes a question to be put and file his answer to said articles of impeachment, to a witness, or to offer a motion or order, (except a and to stand to and abide the orders and judgments motion to adjourn,) it shall be reduced to writing, of the Senate thereon; which writ shall be served by and put by the presiding officer. such officer or person as shall be named in the pre- XIX. At all times while the Senate is sitting upon cept thereof such number of days prior to the day the trial of an impeachment the doors of the Senate fixed for such appearance as shall be named in such shall be kept open, unless the Senate shall direct precept, either by the delivery of an attested copy the doors to be closed while deliberating upon its thereof to the person accused, or, if that cannot con- decisions. veniently be done, by leaving such copy at the last XX. All preliminary or interlocutory questions, known place of abode of such person or at his usual and all motions, shall be argued for not exceeding place of business, in some conspicuous place therein; one hour on each side, unless the Sedate shall, by or if such service shall be, in the judgment of the order, extend the time. Senate, impracticable, notice to the accused to ap- XXI. The case, on each side, s~a il be opened by 8 one person. The final argument on the merits may summoned to be and appear before the Senate of the be made by two persons on each side, (unless other- United States of America, at their Chamber, in the wise ordered by the Senate, upon application for city of Washington, on the - day of — at that purpose,) and the argument shall be opened twelve o'clock and thirty minutes afternoon, then and closed on the part. of the House of Representa- and there to answer to the said articles of impeachtives. ment, and then and there to abide by, obey, and XXII. On the final questionwhetherthe impeach- perform such orders, directions, and judgments as ment is sustained, the yeas and nays shall be taken the Senate of the United States shall make in the on each article of impeachment separately; and if premises according to the Constitution and laws of the impeachment shall not, upon any of the articles the United States. presented, be sustained by the votes of two thirds of Hereof you are not to fail. the members present, a judgment of acquittal shall Witness - -, and Presiding Officer of the be entered; but if the person accused in such articles said Senate, atthe city of Washington, this day of impeachment shall be convicted upon any of said of —-, in the year of our Lord -, and of the articles by the votes of two thirds of the members independence of the United States the.. present, the Senate shall proceed to pronounce judg- Form of precept to be indorsed on said writ of summent, and a certified copy of such judgment shall be mons: deposited in the office of the Secretary of State. THE UNITED STATES OF AMERICA, s8 XXIII. All the orders and decisions shall be made The enateofthe UnitedStates, t -- greeting and had by yes and nays,which shall be entered on the record, afi without debate, except when the You are hereby commanded to deliver to and leave doors shall be closed for deliberation, and in that with - - if.conveniently to be found, or if ease no member shall speak more than once on one not, to leave at his usual place of abode, or at his question, and for not more than ten minutes on an usual place of business, in some conspicuous place, a interlocutory question, and for not more than fif- e and attested copy of the wthin writ of sumteen minutes on the final question, unless by consent s, together with a like copy of this precept; and of the Senate, to be had without debate; but a mo- whichsoeverway you perform the service let it be tion to adjourn may be decided without the yeas and done at least days before the appearance day nays, unless they be demanded by one fifth of the mentioned in said writ of summons. members present. Fail not, and make return of this writ of summons XXIV. Witnesses shall be sworn in ~the follow- and precept, with your proceedings thereon indorsed, ing form, namely: "You, —, do swear (or on r before the appearance day mentioned in the affirm, as the case may be) that the evidence you said writ of summons. shall give in the case now depending between the Witness - - and Presiding Officer of the United States and - shall be the-truth,e Senate, at the city of Washington, this -— day of whole truth, and nothing but the truth: so help Yo in the year of our Lord -, and of the inGod." Whichoath shall beadministered by the ec- dedene of the United tates the -. retary or any other duly authorized person. All process shall be served by the Sergeant-at-Arms Form of subpoena to be issued on the application theSenate, unless otherwise ordered by the court. of the managers of the impeachment, or of the party XXV. If the Senate shall at any time fail to sit for impeached, or of his counsel: the consideration of articles of impeachment on the Tod -greeting: day or hour fixed therefor, the Senate may, by an TYou andf eachof you areherebcommanded Stateson order to be adopted without debate, fix a day and You and each of you. are hereby commanded to hour for resuming such consideration. appear before the Senate of the United States, on the ----- day of --—, at the Senate Chamber, in The court was organized on Thursday, the the city of Washington, then and there to testifyarch, th your knowledge in the cause which is before the 6th of March, the oath being administered to Senate, in which the House of Representatives have the Chief Justice of the United States by Assoimpeached -. Fa;i not. c elate Justice NELSON, and by the Chief Justice Witness - -and Presiding Officer of the to the Senators present, except Mr. WADE, Senate, at the city of Washington, this - day of --— in the year of our Lord -, and of the in- whose right to sit on the trial was challenged. dependence of the United Sta~tes the'-. On Friday, the 6th, at the close of the debate Form of direction for the service of said subpoena:on The Senate of the United States to -- e reeting: on the point suggested, the objection was withYou are hereby commanded to serve and return drawn and the oath was administered. On the within subpoenaaccording to law. Friday, the 13th of March, the trial commenced, Dated at Washington, this - day of —-, in the year ofour Lord —, and oftheindependence a detailed report of which follows. The preof the United States the of the United tates the liminary proceedings are given in an Appendix Secretary of the Se;ate. at the end of this volume. Form of oath to be administered to the members - of the Senate sitting in thetrial of impeachments: FRIDAY, Xarch 13, 1868. "I solemnly swear (or afrm, as the case may be) that in all things appertainingto the trial of the im- The Chief Justice entered the Senate Champeachment of - - now pending, I will do impartial justice according to the Constitution and ber and took the chair. laws: so help me God." The CHIEF JUSTICE, (to the Sergeant-atForm of summons to be issued and served upon the Arms.) Make proclamation. person impeached:' The SERGEANT-AT-ARMS. Hearye hear ye! TE UNITED STATES or AMERICA, so: All persons are commanded to keep silence The Senate of the United Statesto - -greeting while the Senate of the United States is sitting Whereasthe House of Representatives ofthe Unitedf the articles of impeachment e States of America did, on the -. day of -—, ex- r the tral othearticles of impeachment ex hibit to the Senate articles of impeachment against hibited by the House of Representatives against you. the said - -,in the-words following: Andrew Johnson, President of the United [Here insert the articles.] States. And demand that you, the said - —, should States be put to answer the accusations as set forth in said Mr. HOWARD. Mr. President, I move for articles, and that such proceedings, examinations, the order, which is usual in such cases, notitrials, and judgments might be thereupon had as are fying the House of Representatives that the agreeable to law and justice. fying the ouse of Representatves that the You, the said - --, are therefore hereby Senate is thus organized. 9 The CHIEF JUSTICE. The Journal of the the Senate will read the return of the Sergeantlast day's proceedings will first be read. at-Arms to the summons directed to be issued Mr. GRIMES.' Mr. Chief Justice, there are by the Senate. several Senators to be sworn. The Chief Clerk read the following return The CHIEF JUSTICE. The first business appended to the writ of summons: is to read the Journal of the last session of the The foregoing writ of summons, addressed to court. The Senators will be sworn in after- Andrew Johnson, President of the United States, wards. and the foregoing precept, addressed to me, were this The Secret*arys, read the*Journalofthepro-~ly duly served on the said Andrew Johnson, PresiThe Secretary read the J ournal of the pro- dent of the United States, by delivering to and leavceedings of the Senate sitting for the trial of ing with him true and attested copies of the same at imachment of Andrew Johnson President the Executive Mansion, the usual place of abode of imp6achment of Andrew Johnson, President the said Andrew Johnson, on Saturday, the 7th day of the United States, on Friday, March 6, 1868. of March instant, at seven o'clock in the afternoon Mr. CONKLING. I move that the reading of that day. GFEORGE T. BROWN, of the articles of impeachment in extenso, which Sergeant-at-Arms of the United States Senate. WASHINGTON, March 7,1868. I understand are entered on the Journal, be dispensed with. I understand that the other The Chief Clerk administered to the SerHouse is ready to be announced. geant-at-Arms the following oath: The CHIEF JUSTICE. That suggestion " I, George T. Brown, Sergeant-at-Arms of theSenwill be considered as agreed to if no objection ate of the United States, do swear that the return made and subscribed by me upon the process issued be made. * on the 7th day of March, A. D. 1868, by the Senate The Secretary continued and concluded the of the United States against Andrew Johnson, Presreading of the Journal. ident of the United States, is truly made, and that Mr. HOWARD. If iteibe now in order. to I have performed sai service therein prescribed. Mr. HOWARD. If it be now in order. to So help me God." save time I ask that the order which I sent to TheCHIEF JUSTICE. The Sergeant-atthe Chair be passed by the Senate, informing Arms will call the accused. the House of Representatives that the Senate The SERGEaNAT-AHMS AndrewJohnson, is organized for the trial of the impeachment. President of the United States Andrew John The CHIEF JUSTICE. The Secretary will son, President of the Un ited States, Andrew Johnar read the order submitted by the Senator from son, President of the lnited States, appear arey~ ~ and answer the articles of impeachment exMichigan. hibited against you by the House of RepreThe Secretary read as follows sentatives of the United States. Ordered, That the Secretary inform the House of Mr. JOHNSON. I understand that the Representatives that the Senate is in its Chamber, and ready to proceed with the trial of Andrew President has retained counsel, and that they Johnson, President of the United States, and that are now in. the President's room attached to seats are provided for the accommodation of the this wing of the Capitol. They are not admembers. vised, I believe, of the court being organized. -The THIEF wUSTICE. Theeed Sergoan- I move that the Sergeant-at-Arms inform them The'CHIEF JUSTICE. The Sergeant-at- ofthatfact Arms will introduce the managers. The CHIEF JUSTICE. If there be no I [hle managers on the part of the House of objection the Sergeant-at-Arms will so inform Representatives appeared at the bar, were the counsel of the President. announced by the Sergeant-at-Arms, and con- The Sergeant-at-Arms presently returned ducted to the position assigned them. with Hon. Henry Stanbery, of Kentucky; Hon. Ma~nagers -Hon. JOHN A. BINGHAM, of Benjamin R. Curtis, of Massachusetts; and Ohio; GEoRGE S. BOUTWELL, of Massachu- Hon. Thomas A. R. ANson, of Tennessee; setts; JAMES F. WILSON, of Iowa; JOHN A. who were conducted to the seats assigned the LOGAN, of Illinois; THOMAS W.ILLIAMS, of counsel of the President. Pennsylvania; BENJAMIN F. BUTLER, of Mas- Mr. CONiLING. To correct a clerical sachusetts; THADDEUS STEVENS, of Pennsyl- error in the rules or a mistake of the types varnia. which has introduced a repugnance into the Mg. GRIMES. Mr. Chief Justice, there are rules, I offer the following resolution by direcseveral Senators who have not yet been sworn tion of the commitee which reported the rules: as members of this court. I therefore move Ordered, That the twenty-third rule, respecting that the oath be administered to them. proceedings on trial of impeachments. be amendel The CHIEF JUSTICE. The Secretary will by inserting after the word " debate " the words " subcall the names of Senators who have Mt yet ject, however, to the operation of rule seven." been sworn. If thus amended the rule will read: The Secretary called the names of Senators All orders and decisions shall be mad# and had by who were not previously sworn. yeas and nays, which shall be entered 6n the record and without debate, subject, however, to the operaMessrs. EDMUNDS, PATTERSON of New Hamp- tion of rule seven, except when the doors shall be shire, and VICKERS, severally, as their names closed, &c. were called, advanced to the desk, and the The whole object is to commit to the preprescribed oath was administered to them by siding officer the option to submit awquestion the Chief Justice. without the call of the yeas and nays, unless The CHIEF JUSTICE. The Secretary of they be demanded. Thatwas the intention ori 10 ginally, but the qualifying words were dropped miah S. Black, William M. Evarts, and Thomas out in the print. A. R. Nelson, of counsel for the respondent, The CHIEF JUSTICE. The question is on move thle court for the allowance of forty days amending the rules in the manner proposed by for the preparation of the answer to the artithe Senator from New York. cles of impeachment, and in support of the The amendment was agreed to. motion make the following professional stateThe Sergeant-at-Arms announced the mem- ment: bers of the House of Representatives, wh9 The articles are eleven in number, involventered the Senate Chamber preceded by the ing many questions of law and fact. We have, chairman ofthe Committee of the Whole House, during the limited time and opportunity af(Mr. E. B. WASHBURNE, of Illinois,) into which forded us, considered as far as possible the that body had resolved itself to witness the trial, field of investigation which must be explored who was accompanied by the Speaker and in the preparation of the answer, and the conClerk. clusion at which we have arrived is that with The CHIEF JUSTICE, (to the counsel for the utmost diligence the time we have asked the President.) Gentlemen, the Senate is now is reasonable and necessary. sitting for the trial of the President of the The precedents as to time for answer upon United States upon articles of impeachment impeachments before the Senate, to which we exhibited by the House of Representatives. have had opportunity to refer, are those of The court will now hear you. ~ Judge Chase and*Judge Peck. Mr. STANBERY. Mr. Chief Justice, my In the case of Judge Chase time was allowed brothers Curtis and Nelson and myself are from the 3d of January until the 4th of Februhere this morning as couael for the President. ary next succeeding to put in his answer, a I have his authority to enter his appearance, period of thirty-two days; but in this case which,with your leave, I will proceed to read: there were only eight articles, and Judge Chase In the matter of the impeachment of Andrew had been for a year cogzant of most of the Johnson, President of the United States. articles, and had been himself engaged in preparing to meet them. Mr. CHIEF JUSTICE: I, Andrew Johnson, In the case of Judge Peck there was but a President of the United States, having been single article. Judge Peck asked for time from served with a summons to appear before this the 10th to the 25th of May to put in his anhonorable court, sitting as a court of impeach- swer, and it was granted. It appears that ment, to answer certain articles of impeach- Judge Peck had been long cognizant of the ment found and presented- against me by the ground laid for his impeachment; and had been honorable the House of Represehtatives of the present before the committee of the House upon United States, do hereby enter my appearance the examination of the witnesses, and had been by my counsel, Henry Stanbery, Benjamin R. permitted by the House of Representatives to Curtis, Jeremiah S. Black,William M. Evarts, present to that body an elaborate answer to the and Thomas A. R. Nelson, who have my war- charges. rant and authority therefor, and who are in- It apparent that the President is fairly nstructed by me to ask of this honorable court titled to more time than was allowed in either titled to more time than was allowed in either reasole time for the prepartices.on of my of the foregoing cases. It is proper to add that the respondents in these cases were lawyers, After a careful examination of the articles of fully capable of preparing their own answers, impeachment and cdhsultation with my coun- and that no pressing official duties interfered sel, I am satisfied that at least forty days will with their attention to that business; whereas be necessary for the preparation of my answer, the President, not being a lawyer, must rely and I respectfully ask that it be allowed. on his counsel. The charges involve his acts, ANDREW JOHNSON. declarations, and intentions, as to all which The CHIEF JUSTICE. The paper will be his counsel must be fully advised upon consulfiled. tation with. him, step by step, in the preparaMr. STANBERY. Mr. Chief Justice, I tion of his defense. It is seldom that a case have also a professional statement in support requires such constant communication between of the application. Whether it is in order to client and counsel as this, and yet such comoffer it now or to wait until the appearance is muniqation can only be had at such intervals entered your Honor will decide. as arc'allowed to the President from the usual The CIWEF JUSTICE. The appearance hours that must be devoted to his high official will be considered as entered. You may pro- duties. ceed. We further beg leave to suggest for the conMr. STANBERY. I will read the state- sideration of this honorable court, that as ment: counsel, careful as well of their own reputation as of the interests of their client in a In the Mfatter of the.Impeachment of Andrew case of such magnitude as this, so out of the Johnson, President of the United States. ordinary range of professional experience, Henry Stanbery, Benjamin R. Curtis, Jere- where so much responsibility is felt, they sub 11,,, mit to the candid consideration of the court, desire to say on behalf of the managers that we that they have a right to ask for themselves do not see how it were possible for the eighth such opportunity to discharge their duty as rule adopted by the Senate to mislead the reseems to them to be absolutely necessary. spondentor counsel. That rule provides thatHENRY STANBERY, " Upon the presentation of the articles of impeachB3. R. CURTIs, ment and the organization of the Senate as hereinJEEMA,. BLCKTS before provided a writof summons shall issue to the dJEREMIAH S. BLACK, ~ erE.S accused, reciting said articles, and notifying him to WILLIAM M. EVARTS, per H. appear before the Senate on a day and at a place to THEOMAS A. R. NELSON, be fixed by the Senate and named in such writ and file his answer to said articles of impeachment, and Of Counselfor the Respondent. to stand to and abide-the orders and judgments of the March 13, 1868. Senate thereon." Mr. Manager BINGIHAM. Mr. President, The rule further provides thatI am instructed by my associate managers to "If the accused, after service, shall failto appear suggest to the Senate that under the eighth either in person or by attorney, on the day so fixed rule adopted by the Senate for the government therefor, as aforesaid, or appearing shall fail to file rule adopted by the Senate for the government his answer to such articles of impeachment, the trial of this proceeding, after the appearance of shall proceed neverthless as upon a plea of not the accused at its bar, until that rule be set guilty." aside by the action of the Senate a motion for The learned counsel, in the professional continuance to answer is not'allowed, the pro- statement submitted to the Senate, refer to the vision of the rule being that if he appear he cases of Judge Chase and Judge Peck. I preshall answer; if he appear and fail to answer, sume that in the examination of the records of the case shall proceed as upon thegeneral issue; those cases the attention of counsel was diif he do not appear the case shall proceed as rected to the rules adopted by the Senate for upon the general issue. The managers ap- the government of its action on the trial of peared at the bar of the Senate impressed with those cases. By reference to the rules adopted the belief that the rule meant precisely what by the Senate for the trial of the cases of Judge it says; and that in default of an appearance Chase and Judge Peck we find that a very the trial would proceed as upon the plea of not material change has been made by the Senate guilty; if upon appearance no answer should in the adoption of the present rules. The be filed, in the language of the rule the trial third rule in the case of the trial of Judge Chase should still proceed as upon the plea of not prescribed the form of summons, and required guilty. that on the day to be fixed the respondent Mr. CURTIS. Mr. Chief Justice, if thecon- should appear,, and "then and there answer." struction which the honorable managers have The same rule was adopted in the Peck case. placed upon this rule be the correct one, the But the present rule adds to the rule of those counsel of the President have been entirely cases the words to which I have called the misled by its phraseology. They have con- attention of the Senate, that he shall appear strued the rule in the light of other similar rules "and file his answer to said articles of imexisting in courts of justice. For instance, in peachment," and that if, on appearing, he a court of equity over which your Honor in " shall fail to file his answer to such articles of another place presides, parties are by a sub- impeachment, the trial shall proceed neverpcena required to appear on a certain day and theless as upon a plea of not guilty." answer the bill; but certainly it was never un- I submit, therefore, Mr. President, that the derstood that they were to answer the bill on change which has beenr made in the rules for the day of the appearance. So itisin a variety the government of this case must have been of other legal proceedings; parties are sum- made for some good reason. What that reamoned to appear on a certain day, but the day son may have been may be a subject of diswhen they are to plead is either fixed by some cussion in this case hereafter; but the change general rule of the tribunal or there is to be a meets us upon the presentation of this motion; special order in the particular case. Here we and we therefore ask, on the part of the House find a rule by which the Pr6sident is required of Representatives, which we are here repreto appear on this day and "answer" and senting, that the rule adopted by the Senate "abide." Certainlly that part of the rule which for the government of this case may be enrelates to abiding has reference to future pro- forced. It is for the Senate to say whether ceedings and to the final result of the case. the rule shall stand as a rule to govern the And so, as we have construed the rule, that part case, or whether it shall be changed; but, of it which relates to answering has reference standing as a rule at this time, we ask for its toa future proceeding, which occurs in the ordi- enforcement. nary course of justice, as I have stated, either Mr. STANBERY. Mr.. Chief Justice, the under some general rule or -by a special order objection taken by the honorable managers is of the court. We submit, therefore, as coun- so singular that in the whole course of my sel for the President, that this interpretation practice I have not met with an example like of the rule which is placed upon it by the hon- it. A case like this, Mir. Chief Justice, in orable managers is not the correct one. which the President of the United States is Mr. Manager WILSON. Mr. President, I arraigned upon an impeachment presented by 12 the House of Representatives-a case of the trial, is, in your own rules, put down for the greatest magnitude we have ever had —is, as return day, and you must have some other day to time, to be treated as if it were a case be- for the trial day to suit the convenience of the fore a police court, to be put through with parties.; so that the letter of one rule answers railroad speed on the first day the criminal the letter of another rule. appears I Where do my learned friends find But, pray, Mr. Chief Justice, is it possible a precedent for calling on the trial upon this that under these circumstances we are to be day? It is in the language of their summons. caught in this trap of the letter? As yet there They say, " We have notified you to appear has not been time to prepare an answer to a here and answer on a given day." We are single one of these articles. As yet the Presihere; we enter our appearance; but they ask, dent has been engaged in procuring his coun"Where is your answer?" As my learned sel, and all the time occupied with so much brother [Mr. Curtis] has said, you have used consultation as was necessary to enable us to precisely the language that is used in a sub- fix the shortest period which in our judgment peena in chancery; but who ever heard that is necessary for the- due preparation of his when the defendant in a chancery bill enters answer. his appearance he must come with his answer, Now, look back through the whole line of ready to go on with the case, and enter upon impeachments, even to the, worst times, and the trial? We were summoned to appear and where there was the greatest haste; go back answer; we have entered our appearance and to English precedents, and English fair play stated that we propose to answer; we do not always gave fair time. This is the first instance w-ish this case to go by default; we want a to be found on record anywhere, in which, reasonable time; nothing more. upon the appearance day, the defendant was Consider, if you please, that it is but a few required to put in his answer and immediately days since the President has been served with proceed to the trial. Why, sir, we have not a this summons; that, as yet, all his counsel are witness summoned; we hardly know what not present. Your Honor will observe that of witnesses to summon until the pleadings are the five counsel who have signed this profes- prepared. We are entirely at sea. sional statement two are not present and can- I submit, Mr. Chief Justice, to the honornot be present to-day, and are not (at least, I able court that are to try this case, whether am sure, one is not) in' the city to-day. Not we are to be put through with this railroad one of us, on looking at these rules, ever sus- speed? "Strike, but hear." Give us the pected that it was the intention to bring on the opportunity that even in common civil cases trial this day. And yet I understand the is allowed to the defendant, hardly ever less learned gentlemen who read these rules to so than thirty days for his pleading and answer; read them according t9 the letter that we must more often sixty. Give us time; give us a go on to-day. Now, let us see how it will do reasonable time; and then, with a fair hearto read them all according to the letter. If ing, we shall be prepared for that sentence, the gentlemen are right, if we are here to an- whatever it may be, that you shall pronounce. swer to-day, and to go into the trial to-day, Mr. Manager BINGHAM. Mr. President, then this is the day fixed for the trial by your it was.rules. Let us see whether it is. The CHIEF JUSTICE. Before counsel Rule nine provides.:, proceed the Chief Justice desires to state to "At twelve o'clock and thirty minutes afternoon the Senate that he is somewhat embarrassed of the day appointed for the return of the summons the Senatethat he is somewhat embarrassed against the person impeached," in the construction of the rule. The twentyThis is the return day; it is not the trial first rule provides that " the case on each side day. The letter answers the gentlemen. Ac- shallbe opened by one person." He undercording to the letter of the eighth rule they stands that as referring to the case made when say I" this is the trial day; go on; not a mo- the evidence is all in and the cause is ready for ment's delay; file your answer and proceed argument. The twentieth rule providesthatto trial; or without your answer let a general "All preliminary or interlocutory questions and plea of not guilty be entered, and proceed at all motions shall be argued for not exceeding one hour on each side, unless the Senate shall by order once with the trial." The ninthrule saysthis extend the time." is the return day, not the trial day. Then the tent rule says * Whether that limitation is intended to apply tenth rule says: "The person impeached shall then be called to to the whole argument upon each side or to the appear and answer the articles of impeachment argument of each counsel who may address the against him." court is the question which the Chief Justice That is the call made on the return day. is at a lossto solve. On the pending motion he The accused is called to appear and answer. has allowed the argument to proceed without HIe is here; he appears; he states his willing- attempting.to restrict the number of speakers, ness to answer; he only asks a reasonable and, unless the Senate order otherwise, he will time to prepare the answer. Then rule eleven, proceed in that course. speaks "of the day appointed for the trial." Mr. Manager BINGHAM. Mr. President, That is not this day. This day, the day whiph it was not my purpose when I raised the questhe gentlemen would make the first day of the tion, under the rule, to be decided by the Sen 13 ate, to touch in any way upon the merits of any the case, no trial about it; nothing remains to application that might hereafter be made, after be done but to pronounce judgment under the issue joined, for an extension of time for prep- Constitution. It is time enough for:us to talk aration for the trial. The only object I had in about a trial when we have an issue. The rale view, Mr. President, was to see whether the is a plain one, a simple one. Senate was disposed to abide by its own rules, And I may be pardoned for -saying that I and by raising the question to remind Senators fail to perceive anything in rules ten or eleven of what they do know, that in this proceeding to which the learned counsel have referred that they are a rule and a law to themselves. Neither by any kind of construction can be supposed to the common law nor the civil law furnishes limit the effect of the words in -rule eight, any rule whatever for the conduct of this trial to wit: save, it may be, the rule which governs in mat- "Ifthe accused, after service, shall fail to appiear, ters of evidence. either in person or by attorney, on the day so fixed There is nothing more clearly settled in -this therefor as aforesaid, orappearingshallfail to file his and in that contry whence we derive answer, [on the day on which he is summoned to country, and in that country whence we derive a. ppear.] the trial shall proceed nevertheless as up-on our laws generally, than the proposition which a plea of not guilty." I have just stated;:and hence the necessity that When words are plain in a written law there the Senate should prescribe rules for the con- is an end to all construction; they must be duct of the trial; and, having prescribed rules, followed. The managers so thought when thiey my associate managers and myself deemed it appeared at this bar. All they ask is the enimportant to inquire whether those rules, upon forcement of the rule, not a postponement of the threshold of the proceeding, were to be forty days, and at the end of that time to -be disregarded and set aside. met with a dilatory plea-a motion, if you I maybe pardoned for saying that lam greatly please, to quash the articles, or a question raissurprised at the hasty word which dropped ing the inquiry whether this is the Senate of from the lips of my learned and accomplished United States. friend who has just taken his seat, [Mr. Stan- It seems to me, if I may be pardoned for bery,] when he failed to discriminate between making one further remark, thatin prescribin the objection made here and an objection that by this rule that the summons, with a copy o may hereafter be made to a motion for the the articles, should issue, to be returned on a continuance of the trial. When the learned day certain, giving, as in this case, six days in gentleman spoke of the trial day, he seemed advance, it was intended thereby to require as to forget that the trial day never comes until well as to enable the party on the day fixed for issue joined. Why, Mr. President, there is his appearance, asthe ruleprescribes,tocome nothing clearer, nothing better known, I think, to this bar prepared to make answer to the to my learned friend than this, that the making articles. up of ithe issue before: any tribunal:of justice Permit me to say further —what is doubtless and the trial are very distinct transactions — knwn to every one within the hearing of my perfectly distincta voice-that technical rules do in no wise conA very remarkable case in the twelfth 9ol- trol or limit or fetter the action of this body; ume of State Trials lies before me, wherein and under the plea of "n t guilty," as proLord Holt presided, on the trial of Sir Richard vided in the rules, every conceivable defense Grahme, Viscount.Preston, and others, charged that the party accused could niaketo the articles with high treason. In that case the accused here preferred can be admitted. Why, then, appeared, as the accused by the learned en- this delay of forty'days to draw up an answer tlemen appears this morning, after the indict- of not guilty? ment presented in the court, and before plea But what we desire to know on behalf of the asked for continuance. The answer that fell House of Representatives, by whose order we friom the lips of the Lord Chief Justice was, appear here, is whether an answer is to be filed we are not to consider the question of trial or in accordance with the rule; and, if it be not the timie of trial until plea be pleaded. Let filed, whether the rule itself is to be enforced me give his very words: by the Senate which made it, and a plea of "' L. C. HOLT. My lord, we debate the time of your not guilty be entered for the accused. Thsa trial too early: for -you must put yourself upon your is our inquiry. It is not my purpose to enter trial first by pleading." into any discu-ssion upon the question of postAnd when Lord Preston presses him again pning the day for the commencement of the on the point Lord Chief Justice Holt responds: trial. My desire is at present to see whether, " My lord, we cannot dispute with you concerning under this rule, and by force of this rule, we yourtrial till you have pleaded. I know not what can obtain an issue. you will say to it; for aught I know there may beno The CHIEF JUSTICE. Senators, the counoccasion for a trial. I cannot tell what you wille th plead; your lordship must answer to the indictment sel for the President submit a motion that forty before we can enterinto6the debate'of this matter."- days be allowed for the preparation of his 12 State Trials, 664. answer. The rule requires that this, as other The eighth rule of-the Senate, last clause, questions, shall be taken without debate by provides thatif the party appearing shall plead Senators. You who are in favor of thatmotion guilty there may be no further proceedings in will say "ay." 14 Mr. EDMUNDS. Upon that subject I sub- Howard, Morgan, Morton, Nye. Patterson of New mit the following order: Hampshire, Pomeroy Ramsey, Ross, Stewart, Sumner, Thayer. Tipton, Williams, Wilson, and Yates-25. Ordered, That the respondent filehis answer to the NAYS-Messrs. Anthony, Bayard, Buckalew, Daarticles of impeachment on or before the 1st day of vis, Dixon, Edmunds, Fessenden. Fowler, FrelingAprilnext, and that the managers oftheimpeachment huysen, Grimes, Henderson, Hendricks, Howe, Johnfile their replication thereto within three days there- son, McCreery, Morrill of Maine, Morrill of Verafter, and that the matter stand for trial on M]onday, mont, Norton, Patterson of Tennessee, Saulsbury, April 6,1868. Sherman, Sprague, Trumbull, Van Winkle, Vickers, Mr. MORTON. I move that the Senate andWilley-26. ABSENT —Messrs. Cragin, Doolittle, and Wade —3. retire to consult in regard to its determination. ABSET-Messrs. Cragin, Doolittle, and Wade-3. Mr. Manager BINGHAM. Iam instructed The CHIEF JUSTICE. The order asked by the managers respectfully to ask that the by the managers is denied. Senate shall pass upon the motion to reject Mr. SHERMAN. Mr. Chief Justice, I subunder the eighth rule of this Senate until that mit the following motion: rule be set aside the application to defer the Ordered, That the trial of the articles of impeachday of answer. ment shall proceed on. the 6th day of April next. The CHIEF JUSTICE. The motion of the Mr. WILSON. I move to amend that order, counsel for the President is in order. The Chair by striking out "the 6th day of April" and regards the motion submitted by the Senator, inserting "the 1st day of April." from Vermont [Mr. EDMUNDS] as in the nature Mr. Manager BUTLER. I should like to of an amendment; and the first question will be inquire of the President and the Senate if the upon agreeing to the order submitted by him. managers in behalf of the House of RepresentMr. CONKLING. What becomes of the atives have a right to be heard upon that motion of the Senator from Indiana? motion? Mr. SUMNER. What was the motion of Mr. SUMNER. Unquestionably. the Senator from Indiana? The CHIEF JUSTICE. The Chair is of Mr. MORTON. That the Senate retire to opinion that the managers have a right to be consult in regard to its determination. heard, and also the counsel for the accused. Mr. SUMNER. That is the true motion. Mr. Manager BUTLER. Mr. President, The CHIEF'JUSTICE. The question is and gentlemen of the Senate, however ungraon the motion of the Senator from Indiana, cious it may seem on the part of the managers that the court now retire for consultation. acting for the House of Representatives, and The motion was agreed to; and at three thereby representing the people of the United minutes before two o'clock the Senators, with States, to press an early trial of the accused, the Chief Justice, repaired to the reception yet your duty to those who sent us here, reproom of the Senate f(r consultation. resenting their wishes, speaking in their presAt eight minutes past four o'clock the Sen- ence and by their command, the state of the ators returned to the Senate Chamber, and the country, the interests of the people, all seem Chief Justice resumed the chair. to require that we should urge the speediest The CHIEF JUSTICE. The Chief Justice possible trial. is instructed to state to the counsel for the ac- Among the reasons why the trial should be cused that the motion made by them is over- put off, which the learned gentlemen who ruled denied, andihat the Senate has adopted appear for the accused have brought to the an order, which will be read by the Secretary. attention of the Senate, are precedents of delay The Secretary read as follows: in the trials of the earlier days of the RepubOrdered, That the respondent file answer to the lic; and we were told that " railroad speed" articles of impeachment on or before Monday, the ought not to be used in this trial. Sir, why 23d day of March instant, not? Railroads have affected every other busiMr. Manager BINGHAM. Mr. President, ness in the civilized world; telegraphs have I am instructed by the managers to submit to brought places together that were thousands the consideration of the Senate a motion which of miles apart. It takes less time to send to I send to the desk to be read. California and get a witness-it takes infinitely The Secretary read as foll'ows,: less time, if I may use so strong an expresThe managers ask the Senate respectfullyto adopt sion, to send a message for him-from Calie following order: Ordered, That upon the filing of a replication by fornia now than it took to send a witness from the managers on the part of the House of Represent- Philadelphia to Boston at the trial of Judge atives the trial of Andrew Johnson, President of the Chase. We must not shut our eyes to the fact United States, upon the articles of impeachment ex- tha hibited by the House of Representatives shall pro- t there are railroads and that there are teleceed forthwith. graphs, as bearing upon this trial. They give The CHIEF JUSTICE put the question the accused the privilege of calling his tounupon the order asked by the managers and sel together instantly, of getting answers from declared that it appeared to be refused. any witness that he may have instantly, of Mr. SUMNER called for the yeas and nays, bringing him htre in hours where it once, and and they were ordered; and being taken, re- not long ago, took months; and, therefore, I sulted-yeas 25, nays 26; as follows: respectfully submit that it is not to be. overYEAS-Messrs. Cameron, Cattell, Chandler, Cole looked that railroads and telegraphs have Conkling, Conness, Corbett, Drake, Ferry, Harlan, changed the order of time. In every other 15 business of life we recognize that change; and the reach of your laws, and outside of your why should we not in this? laws, the Army of the United States.. The But passing from that, which is but an inci- one greatest of all questions here at issue is, dent and a detail of the trial, will you allow whether he shall be able, against law-setting me, further, to suggest that the ordinary course aside your laws, setting aside the decrees of of justice, the ordinary delays iV court, the the Senate, setting aside the laws enacted by ordinary time given in ordinary cases for men Congress, overriding the legislative power of to answer when called before tribunals of jus- the country, claiming it as an attribute of extice, have no application to this case. The ecutive power only, to control the great milirules by which cases are heard and determined tary arm of this Government, and control it if before the Supreme Court of the United States he chooses at his own good pleasure, its your are not rules applicable to the case at bar; ruin and the ruin of the country. and for this reason, if for no other, when ordi- Indeed, sir, do we not know, may we not nary trials are had, when ordinary questions upon this motion assume, the fact upon comare examined at the bar of any court, there is mon fame and the current history of events no danger to the common weal in delay; the that the whole business of the War DepartRepublic may take no detriment if the trial is ment of this country pauses until this trial postponed; to give the accused time injures goes through? He will not recognize, as we nobody; to grant him indulgence hurts no one, all know, the Secretary of War, him whom this and may help one, and perhaps an innocent, body has declared the legal Secretary of War, man. But here the House of Representatives and whom Congress, under its power legiti~have presented at the bar of the Senate, in the mately exercised, has determined shall be most solemn form, the Chief Executive officer recognized as the legal Secretary of War. Do of the nation. They say (and they desire your we not also know, that while he claims to have judgment upon their accusation) that he has appointed a Secretary ad interim, he dare not usurped power which does not belong to him; recognize him; and thus the entire businessof that he is at this very time breaking the laws the War Department is stopped. Thb Senate solemnly enacted by you, the Senate, and those of the United States have confirmed the apwho present him here, the Congress of the Uni- pointment of many a gallant officer of the ted States, and that he still proposes so to do. Army who, by law and by right, ought to have Sir, who is the criminal-I beg pardon for his duties and pay commence the day and the word-the respondent at the bar? He is the hour when his commission reaches him; the Chief Executive of the nation; and when I yet those commissions have been delayed have said that, I have taken out from all ordi- weeks, and the proposition on his part is nary rules this trial, because I submit with def- that they shall be delayvd at least forty days erence that here and now, for the first time in longer-as long as it took God to destroy the the history of the world, has any nation brought world by a flood-and for what? In order that its ruler to the bar of its highest tribunal in a five very respectable, highly intelligent,, very constitutional method, under the rules and learned, and' able lawyers may write an anforms prescribed by its Constitution; and there- swer to certain articles of impeachment. Havfore all the rules, all the analogies, all the like- ing failed in that, now the proposition is to ness to a common and ordinary trial of any delay more and more, while there is at least cause, civil or criminal, cease at once, are si- one department of the Government thrown lent, and ought not to weigh in judgment. into confusion and disorganization, as we are Other nations have tried and condemned their thus delaying. kings and rulers, but the process has always But, sir, this is the'least of the mischiefs of been in violence and subversive of their Con- delay. The great pulse of the nation beats stitutions and framework of government, not perturbedly while even this strictly constituin submission to and accordance with it. tional but highly and truly anomalous proWhen I name the respondent as the Chief ceeding goes on. It pauses fitfully when we Exective, I say he is the Commander-in- pause, and goes forward when we go forward; Chief of your armnies; he specially claims that and the very question of national prosperity command, not by force and under the limita- in this country arising out of the desire of men tions of your laws, but as a prerogative of his to have'business interests settled, to have prosoffice and subject to his arbitrary will. He perity return, to have the Wring open as auscontrols, through his subordinates, your Treas- piciously under our laws as it will under the ury. He commands your Navy. Thus he has laws of nature, depend upon our actions here all elements of power. He controls your for- and now. I say the very pulse of the country eign relations. In any hour of passion, of beas here, and, beating fitfully, requires us to prejudice, of revenge for fancied wrong in his still it by bringing this respondent to justice, own mind, he may complicate your peace with from which God send him a good deliverance, any nation of the earth, even while he is being if he so deserve, at the earliest possible hour, arraigned as a respondent at your bar. And ay, the very earliest hour consistently with the mark me, sir, may I respectfully submit that preservation of his rights. Instead therefore, the very question here at issue this day and of fixing a time now in advance when he shall this hour is, whether he shall control beyond be tried, (if you will allow me respectfully to 16 say as much,) giving him time, which he may exactly what he has done, and why and how be supposed to want for preparation of his he has done it. We can only partly guess at trial, fix the trial at an early day, and then, if all he has done from the part we see yet. We his counsel choose to draw analogies from the are willing to go to trial on behalf of the people trials of criminal law or the civil law, let him, of the United States, say with only these fourwhen he comes here, under his oath and under teen days' preparation. You have granted him the certificate of his counsel, say that he can- seven more, say twenty-one in all, and we ask, not get ready to meet a given article, and if after you have given him one third more time, he shows due diligence then give him all the than we have had to prosecute, at least that he time he ought to have to fairly put before you shall be held to meet us with the defense. the exact forip and feature of everything he Sir, I trust you will pardon me a single~ has done. further suggestion. I hope hereafter no man But, I humbly submit, do not in advance anywhere will say that the charges upon which presume that he cannot get ready until he we have arraigned Andrew Johnson at this bar comes and shows to the Senate some reason, are either frivolous, unsubstantial, or of none upon his oath, why he may not be ready. Let effect, because five gentlemen of the Jighest every part of the case stand upon its own respectability, skill, and legal acumen as counmerits. If the respondent cofies here and sel-I know one of them would not for his life savys to the Senate, after he puts in his answer, say what he did not believe-have told us that "I am not ready for trial, because I cannot the articles of impeachment were so grave and get a given witness," let him, as his counsel so substantial that it would take them forty days claims we ought to do, follow the ordinary even to writean answer to them. The charges rule and say to the Senate, "If I could get are so grave, so momentous, so potent, that, that witness he would testify thus, and thus, with all their legal ability, forty days will be and thus;" and the managers would answer, required to write an answer; and then, after "We will either produce him here at the bar they have had forty days in addition to ten when you call him, or we will admit that he already,. giving them fifty days, they say they will testify thus, and thus, and thus, and you would need still further time for preparation shall have the entire benefit of the testimony; to meet us on the trial of these charges. I may for God forbid-and I spea'k with all rever- only humbly hope ihat I have made myself ence-that we shall deprive him of a single understood in this unprepared and hurried right or a single indulgence consistent with statement of some reasons which press on my the public safety and speedy justice. There- associates and myself to urge forward this fore, whenever any such motion is made, you, trial. Senators, I respectfully submit, will be ready, You will see their force and the arguments able, and willing, desirous to meet it, and which should accompany them much better grant indulgence when a case is made out for than I can state them. If I have brought indulgence. your minds (perhaps a little swerved by pity Allow me one other word. We ask no more and clemency for so great an accused,) again of the Senate as against this defendant than to their true poise of judgment upon the queswhat we are willing to deal to ourselves. The tion of the necessity for this country that jusgreat, perhaps the determining, act upon which tice shall speedily be done upon the accused the respondent is here brought to your bar I have succeeded in all I could hope. If we was committed by him on the 21st of February. are mistaken in all our accusations and the He knew it and all its consequences then as respondent is the great and good man he well and better than we could. The House of ought to be, and he shall go free, be it so; the Representatives dealt with the action of the country will have quiet then. If you come to respondent on the 22d. On the 4th of March the other determination which we present and we brought before the Senate and to his notice demand you shall do if it be proved, then be what we claimed were the legal consequences that so, and the country will have quiet. But of that act. We are now come here ready for upon this so great trial, I pray, let us not trial of our accusation founded upon that act. belittle ourselves with the analogies of the We are here instant for trial, pressing for trial common law courts or the equity courts or de die in diem. Make the days as long as the the criminal courts, because nothing is so danjudges of England made them when they sat gerous to mislead us. Let us deal with this twenty-two hours out of the twenty-four in the matter as one wherein the life of the nation trial of great criminals, and we, the managers hangs trembling in the scale; where the rights on behalf of the House of Representatives, of the nation are put in the balance, and a trial God giving us strength, will still attend here is to be had upon the greatest question that at your bar every hour and every moment, your ever yet engaged the attention of anybody, humble servitors, for the purpose of justice. however learned or however wise, sitting in We have had only from the 22d of February to judgment. now to make ready for the trial of the accusa- Mr. NELSON. Mr. Chlef Justice, and gention. He has had just as long. He knew at tlemen of the Senate: I have entered this first more about this action of his than we Chamber as one of the counsel of the Presicould. He knows all about it now. He knows dent profoundly impressed with the idea that 17 this is the most exalted judicial tribunal now as to their constitutional powers and as to the upon earth. I have endeavored in coming rights which they respectively claim. These here to divest my mind of the idea that weare are questions of the utmost gravity, and questo engage in political discussion, and to feel tions which in the view we entertain of them impressed with the thought that we appear should receive the most deliberate considerabefore a tribunal the members of which are tion on the part of the Senate. sworn as judges to try the great questions I trust that I shall be pardoned by the Chief which have been submitted to their considera- Justice and the Senators in making an allution; not as mere party questions, but as the sion to a statute which has long been in force grand tribunal of the nation, disposed to dis- in the State from which I come. I only do it pense justice equally between two of the great- for the purpose of making a brief argument by est powers, if I may so express myself, in the analogy to you and the honorable body whom land. I have come here under the impression I am addressing. We have a statute in the that there is much force in the observation State of Tennessee, which has long been in which the honorable manager made in regard force, which provides that when a bill of into the forms of proceeding in this tribunal, that dictment is found against an individual, and it is not to be governed by the iron and rigid he thinks, owing to excitement or any other rules of law, but that, seeking to attain jus- cause, he may not have a fair trial at the first tice, it is disposed to allow the largest liberty in term of the court, his case shall be continued the progress of the investigation, both to the until the next ternm. The mode of proceeding honorable managers on the part of the House at law-and no man, I presume, in the United of Representatives and to the counsel in behalf States is more familiar with it than the Chief of the President of the United States. Justice whom I have the honor of addressing Impressed.with the idea that this tribunal on this occasion-is not -P mode of railroad will discard in a great degree those forms and speed. If there is anything under the heavens. ceremonies which are known to the common that gives to judicial proceedings a claim to law; that it does not stand upon demlurrers; the consideration and the approbation of manthat it will not stand particularly upon the kind it is the fact that judges and courts hasten forms of evidence, or those technical rules slowly in the investigation of cases that are which prevail in other courts, I have supposed presented to them. Nothing is done or prethat there was nothing improper in our making sumed to be done in a state of excitement. an appeal to this tribunal for time to answer Every moment is allowed for calm and mature the charges which have been preferred against deliberation. The courts are in the habit of the President of the United States; and that, investigating cases slowly, carefully, cautiously, instead of that being denied, much more liber- and when they form their judgments and proality would be extended by. the Senate of the nounce their opinions, and those opinions are nation sitting as a court of impeachment than published to the world, they meet the sanction, we could even expect upon a trial in one of of judicial minds and legal minds everywhere, the courts of common law. and they meet the approbation and the confid It is not my purpose, Mr. Chief Justice, to dence of the people before whom they are proenter at this stage into a discussion of the mulgated. If this is and ever has been one of charges which are preferred here, though it the proudest characteristics, if I may.so ex:. would seem to be invited by one or two of the press myself, of the forms of judicial proceed. observations which were made by the honor- ings in our courts, how much more in anexable manager, [Mr. BUTLER.] I do not pro- alted and honorable body like this; how much pose at this stage of your proceedings to enter more in an assembly composed of some of the into any discussion of them. You are told, wisest and greatest men in the United States} however, that it is right in a case of this kind Senators revered and honored by their count to proceed with railroad speed; and that in trymen, Senators who from their position are consequence of the great improvements which presumed to be free from reproach, who;from have been made in the country we can proceed their position are presumed to be calm in.their much more rapidly in the investigation of a deliberations and in their investigations-how case of this kind than such a case could be much more in such a body as this ought we to prcceededwith a few years ago. Nevertheless, proceed cautiously and ought every opportuthe charges which are made here are charges nity to be given for a fair investigation? of the gravest importance. The questions Mr. Chief Justice, I need not tell you, nor which will have to be considered by this hon- need 1 tell many of the honorable Senators orable body are questions of the deepest and whom I address on this occasion, many of whom profoundest interest. They are questions in are lawyers, many of whom have been clothed vwhich not only the Representatives of the in times past with the judicial ermine, that in people are concerned, but the people them- the courts of law the vilest criminal who ever selves have the deepest and most lasting in- was arraigned in the United States has been terest in the result of this investigation. Ques- given time for preparation, time for hearing. tions are raised here in regard to differences The Constitution of the country secures to the of opinion between the Executive of the nation vilest man in the land the right not only, to be and the honorable House of Representatives heard himself, but t ) 1J) heard by counsel; and C. I.-2. 18 no matter how great his crime, no matter how officer in this land? Why, sir, we ask simply deep may be the malignity of the offense with that he shall be allowed time for his defense. which he is dharged, he is tried according to And upon whose judgment is he to rely in rethe forms of law; he is allowed to have coun- gard to that? He must, in great part, rely upon sel; continuances are granted to him; if he is the judgment of his counsel, those to whom he unable to obtain justice time is given to him, has intrusted his defense. We, upon our proand all manner of preparation is allowed him. fessional responsibility, have asserted, in the If this is so in courts of common law, that are presence of this Senate, in the face of the nafettered and bound by the iron rules to which tion and of the whole world, that we believe I have adverted, how much more in a great it will require the number of days to prepare tribunal like this, that does not follow the pre- the President's answer which we stated to the cedents of law, but that is aiming and seek- Senate in the paper which we submitted to the ing alone to attain justice, ought we to be Senate. Such is still our opinion. And when allowed ample time for preparation in refer- these grave charges are presented are they to ence to charges of the nature which we have be rushed through the Senate sitting.as a judihere? How much more, sir, should such time cial tribunal in hot haste and with railroad be given us? speed, without giving to the President of the We are told that the President acted in re- United States the opportunity to answer them, gard to one of the matters which is charged that same opportunity which you would give against him by the House of Representatives to the meanest criminal that ever was arraigned on the 21st of February, and that by the 4th before the bar of justice in any tribunal in this of March-if I did not mistake the statement or in the country from which we borrowed our of the honorable manager-the House of Rep- law? resentatives had Gpresented this accusation I cannot believe, Mr. Chief. Justice, that against the President of the United States; honorable Senators will hesitate for one moand that, therefore, the President, who knew ment in granting us all the time that may be what he was doing, should be prepared for his necessary to prepare our defense, and that may defense. Mir. Chief Justice, is it necessary for be necessary to enable them to decide as judges me to remind you and honorable Senators that carefully, deliberately, conscientiously, and with you can upon a page of foolscap paper pre- a view of their accountability, not only to their pare a bill of indictment against an individ- constituents, but their accountability to posual which may require weeks in the investiga- terity who are to come after us, for the names tion? Is it necessary for me to remind this of American Senators are dear not only to honorable body that it is an easy thing to make those who sent them here, but they are names charges, but that it is often a laborious and which are to live after the scenes of to-day shall difficult thing to make a defense against those have passed away, I have no doubt that honaccusations? orable Senators, in justice to themselves and Reasoning from the analogy furnished by in justice to the great land which they represuch proceedings at law, I earnestly maintain sent, will endeavor to conduct this investigabefore this honorable body that suitable time tion in a manner that will stamp the impress should be given us to answer the charges which of honor and justice upon them and upon their are made here. A large number of these proceedings not only now, but in all time to charges-those of them connected with the come, when they shall be cited after you and I President's action in reference to the Secre- and all of us shall have passed away from the tary of War-involve questions of the deepest stage of human action. importance. They involve an inquiry running Mr. Chief Justice, this is an exalted tribuback to the very foundation of the Govern- nal. I say it in no spirit of compliment. I ment; they involve an examination of the pre- say it because I feel it. I feel that this is the cedents which have been set by different Ad- most exalted tribunal that can be convened ministrations; they involve, in short, the most under the sun, a tribunal of Senators, honoraextensive range of inquiry. The two last ble members, who are sent here to sit in judgcharges that were presented by the House of ment upon one of the gravest and greatest Representatives, if I may be pardoned for accusations that ever was made in the land. using the expression in the view which I enter- And I may say, in answer to an observation tain of them, open Pandora's box, and will of the honorable manager on the other side, cause an investigation as to the great differ- that I, for one, as an American citizen, feel ences of opinion which have existed between proud that we are assembled here to-day and the President and the House of Representa- assembled under the circumstances which have tives, an inquiry which, so far as I can per- brought us together. It is one of the first inceive, will be almost interminable in its char- stances in the history of the world in which the acter. ruler of a people has been presented by a porNowv, what do we ask for the President of tion of the Representatives of the people for the United States? The honorable manager trial before another branch of the law-making corrected himself in the expression that he was power sitting as a judicial tribunal. While a criminal. What do we ask in behalf of the that is so it is equally true that on the other President of the United States, the highest I band the President, through his counsel, comes 19 here and submits himself to the jurisdiction Mr. Manager BINGHAM. Mr. President, of this court, submits himself calmly, peacea- I am instructed by the managers to say that bly, and with a confident reliance on the jus- the propositionjust suggested by the honorable tice of the honorable Senate who are to hear Senator from New York [Mr. CONKLING] is his cause. entirely satisfactory to the managers for the Mr. Chief Justice, I sincerely hope that the House, and to say further to the Senate that resolution which has been offered will meet we believe it is in perfect accord with the prethe approbation of the honorable Senate. I cedents in this country. The Senate will doubthope that time will be given us, and that this less remember that on the trial of Justice proceeding, which in all time to come will be Chase, when a day was fixed for the answer, quoted as a precedent for 6thers, will be con- upon his own petition, verified by his affidavit, ducted with that gravity, that dignity, that the Senate adopted an order which was sub. decorum which are fit and becoming in the stantially the order as suggested by the amend, Representatives of a free and a great people. ment of the honorable gentleman from New Mr. CONKLING. I wish to submit an York. I beg leave to read that order in the amendment to the proposition pending in the hearing of the Senate: nature of a substitute: "Ordered, That the 4th day of February next shall be the day for receiving the answer and proceeding Ordered, That, unless otherwise ordered by Athe with the trial of the impeachment against Samuel Senate for cause shown, the trial of the pending im- Chase." peachment shall proceed immediately after replica- If nothing further had been said touching tion shall be filed. If nothing further had been said touching The CHIEF JUSTICE. The amendment the original proposition we woVld have been submitted by the Senator from New York does content and satisfied to leave this question not appear to the Chair to be in order at pres- without further remark to the decision of the ent. The motion of the Senator from Ohio Senate; but in view of what has been said by [Mr. SHERMAN] is that the Senate adopt the the counsel for the accused we beg leave to following order: respond that we are chargeable with no indeOrdered, That the trial of the articles of impeach- cent haste when we ask that no unnecessary ment shall proceed on the 6th day of April next. delay shall interpose between the people and The Senator from Massachusetts [Mr. WIL- the trial of a man who is charged with having SON] moves tto amend it by striking out the violated the greatest trusts ever committed to word " sixth" and inserting "fist." That is a single person; trusts that involve the highest the present motion. interests of the whole people; trusts that inthepMr.eWLsentmoon. Ipropseo od volve the pe.ace of the whole country; trusts amedMr. WILSON. I proposen to modify my that involve in some sense the success of this amendment by saying Monday, the 30th of last great experiment of representative govMr. CONKLING. Does the Chair decide ementupon the earth. that my propositioin is not in order? We may be pardoned, further, sir, for saying The CHIEF JUSTICE. The Chair does atmthat it strikes us somewhat with surprise, withnot conceive it to be in order at present. does out intending the slightest possible disrespect not conceive it to be in order at present. to any member of this bod that any proposi. Mr. CONKLING. Then I beg to modify to any member of this body, that any proposiin this way: I move to amend the amendment tion should be entertained for the continuance of the Senator from Massachusetts by striking of a trial like this, when no formal application out the date which he inserts, whatever that has been made by the accused himself. To be date may be, and inserting in lieu thereof the sure, a motion was interposed here to-day in words " immediately after replication filed, the face of the written rule, order, and law of unless otherwise ordered by the Senate." this body, for leave to file an answer at the end * The CHIEF JUSTICE. The Chair con- of forty days. The Senate has disposed of that ceives that the amendment offered by the Sen- motion, and in a manner, we venture to say, ator from New York is not in order. satisfactory to the whole country, as it is cerMr. WILSON. For the purpose of bringing tainly satisfactory to the representatives of the the motion mlade lby the Senator from New people at this bar. Now, sir, that being disYork before the body I withdraw my amend- posed of, the Senate having determined the day ment so that his I amendment will be in order. on which answer shall be filed, we submit, with ment so that his amendment will be in order. all respect to the Senate, that it is but just Mr. CONKOLING. Then I offer my original all respect to the Senate, that it is but just Mr. CONING. Then I offer my o al to the people of this country that we shall proposition as a substitute for the proposition await the incoming of the answer and the of the Senator from Ohio. The CHIEF JUSTICE. The amendment replication thereto by the representatives of of the ISenator from New York will be read. the people, and then see and know what colorof the Senator from New York will be read. The CHIEF CLERK. The amendment is to able excuse can be offered, either by the acThe CHIEF CLERK' The amendment is to cused President in his own person or through strike out all after the word " ordered" in the cused Present in his own person or through proposition of Mr. SHERMAN and to insert in his representatives, why this trial should be lieu thereof: delayed a single hour. If he be innocent of the grave accusations That, unless otherwise ordered by the Senate for prepared against him the truth will soon be cause shown, the trial of the pending impeachment prepared against him the truth will soon be shall proceed immediately after replication shall be ascertained by this enlightened body; and he filed. has the right, if the fact so appear, to a speedy 20 deliverance, and the country a right to a speedy for the enforcement of the eighteenth and determination of this important question. If, twenty-third rules. on the other hand, he be guilty of these grave The CHIEF JUSTICE. No debate can be and serious charges, what man is there within had. The Chair understood the Senator from this body or outside of this body ready to say Maryland as simply asking for an explanation that he should one day or hour longer disgrace from the managers. the high position which has been held hitherto Mr. JOHNSON. What is the rule, Mr. by some of the noblest and most illustrious of President? the land? The CHIEF JUSTICE. The Secretary will We think that the executive power of this The CHIEF JUSTICE. The Secretary nation can only be reposed in the hands of read the rule. men who are faithfulto their great trust. The Mr. JOHNSON. The honorable member people so think. They have made that issue from New York is mistaken in supposing that with the President of the United States at this I rose to debate the question. I only rose for bar; and while we demand that there shall be the purpose of inquiring what the question no indecent haste, we, too, demand in the name was. I suppose that is allowable. of all the people, most respectfully, that there- The CHIEF JUSTICE. Is the Senate ready shall be no unnecessary delay, and no delay at for the question on the substitute proposed by all until good cause is shown for delay in the the Senator from New York? mode and manner hitherto observed in pro- Mr. DRAKE. On that question I ask for ceedings of this sort. the yeas and nays. Mr. JOHNSON. Mr. President, I ask that The yeas and nays were ordered; and being the resolution offered by the honorable mem- taken resulted-yeas 40, nays 10; as follows: ber from Ohio shall be read. I did not hear YEAS-Messrs. Anthony, Cameron, Cattell,Chandit distinctly. ler, Cole, Conkling, Conness, Corbett, Drake, EdTheCHIEF JUSTICE. Itwillbereported munds, Ferry, Fessenden, Fowler, Frelinghuysen,. reported. Grimes, Harlan, Henderson, Howard, Howe. Morgan, The CHIEF CLERK. The order, as submitted Morrill of Maine, Morrill of Vermont, Morton, Nye, by the Senator from Ohio, is as follows: Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Ordered. That the trial of the articles of impeach- Tipton, Trumbull, Van Winkle, Willey, Williams, ment shall proceed on the 6th day of April next. Wilson and Yates-40. The Senator from New Yor [Mr. CON- NAYS-Messrs. Bayard, Buckalew, Davis, Dixon, The Senator from New Yorlk [Mr. CONK- Hendricks, Johnson, McCreery,' Patterson of TenLING] moves to amend by striking out all nessee, Saulsbury, and Vickers-10. after the word " ordered," and inserting: ABSENT- Messrs. Cragin, Doolittle, Norton, and Wade-4. That, unless otherwise ordered by the Senate for So the amendment was agreed to. cause shown, the trial of the pending impeachment the amendment was agreed to. shall proceed immediately after replication shall be The CHIEF JUSTICE. The question recurs on the order as amended. The Clerk will Mr. JOHNSON. Mr. President, I rise for report the order. information. Is there any period within which. The Chief Clerk read it, as follows: the replication is to be filed? There is nothing Ordered, That, unless otherwise ordered by the on the face of that order limiting the time Senate for cause shown, the trial of the pending imwithin which the replication may be filed. If peachment shall proceed immediately after replicathe managers propose to make that a part of tion shall be filed. the order to file the replication on the day the The order was agreed to. answer mav come in, or on any specific day Mr. HOWARD. If there be no motion for after the coming in of the answer, it would not, the court on behalf of the honorable managers perhaps, be liable to objection; but the ac- of the House of Representatives, or on the cused may well be in ignorance of the time part of the counsel for the accused, I move when the trial will begin under the order as it that the Senate sitting on the present impeachstands. ment adjourn to the 23d day of the present Mr. Manager BINGHAM. Will the hon- month, at one o'clock in the afternoon. -I orable Senator allow me to suggest to him that send an order to the Chair for that purpose. we can only file the replication with the con- My motion is made subject to any action the sent and after consultation with the House of managers may see fit to lay before us, or the Representatives; and therefore the answer to counsel for the accused. I will not press it if his suggestion is that as soon as answer be they have anything to propose. made here according to the usage and practice The CHIEF JUSTICE. Have the manain cases of this sort we will respectfully demand gers on the part of the House of Representaa copy of the answer that we may lay it before tives anything to propose? the House and report to'this body as soon as Mr. Manager BINGHAM. Nothingfurther the Housewill order us its replication. I have at present. no doubt it will be done within one or two The CHIEF JUSTICE. Have the counsel days after the answer is filed. for the accused anything to propose? Mr. JOHNSON. What I meant Mr. CURTIS. Nothing. Mr. CONKLING. I rise to a question of The CHIEF JUSTICE. Senators, the moorder. Reluctant as I am to make it, I ask tion is to adjourn the Senate sitting for the 21 trial of this impeachment until the 23d of impeachment on or before Friday, the 20th day of March. March instant,' The motion was agreed to. "It was determined in the affirmative-yeas 28,' On motion by Mr. DRAKE, " The yeas and nays being desired by one fifth of the' MONDAY, March 23, 1868. Senators present, " Those who voted in the affitrmative areAt one o'clock p. m. the Chief Justice of "Messrs. Cameron, Ckttell, Chandler, Cole, Conkthe United States entered the Senate Chamber, ling, Conness, Corbett, Drake, Ferry, Harlan, Howescorted by Mr. POMEROY, the chairman of the ard, Howe, Morgan, Morrill of Vermont, Morton, Nye, Patterson of New HIampshire, Pomeroy, RamSenate committee heretofore appoi-ted for sey, Sherman, Stewart, Sumner, Thayer, Trumbull, that purpose, and took the chair. Willey, Williams, Wilson, and Yates. Thle CHIEF JUSTICE. The Sergeant-at- "Those who voted in the negative are — Arm wIll o IEn The c yromatn.- "Messrs. Anthony, Bayard, Buckalew, Davis, Arms will open the court bty proclamation. Dixon, Edmunds, Fessenden, Fowler, Frelinghuysen, The SERGEANT-AT-ARMS. Hear ye, hear ye, Grimes, Henderson Hendricks, Johnson, McCreery, hear ye: -all persons are commanded to keep Morrill of Maine, Norton, Patterson of Tennessee, lhear ye: w all persons are commandted to keep Saulsbury, Van Winkle, and Vickers.' silence while the Senate of the United States "So the amendment of Mr. DRAKE to the motion is sitting for the trial of the articles of impeach- -of Mr. EDMUNDS was agreed to. ment exhibited by the House of Representa- "On the question to agree to the motion of Mr. EDMUNDS, as amended, tives against Andrew Johnson, President of the "After debate, United States. " On motion of Mr. TRUMBULL, that the Senate reTe managers of the impeachmen on the consider its vote agreeing to the amendment pro~The manaers of the impeachment on the posed by Mr. DRAKEr to the motion of Mr. EDMUNDS, part of the House of Representatives ap- "It was determined in the affirmative-yeas 27, peared at the door, and their presence was nays 23. announced.by.the.Sergeant-at-Arms. "On motion of M~r. DRAKE, announced by the Sergeant-at-Arms. "The yeas and nays being desired by one fifth of The CHIEF JUSTICE. The Managers will the Senators present, take the seats assigned to them by the Senate. "Those who voted in the affirmative areThe Managers accordingly took the seats pro- Messrs. Anthony, Bayard, Buckalew Cattell, Corbett, Davis, Dixon, Edmunds, Fessenden, Fowvided for them in the area of the Senate to the ler, Frelinghuysen, Grimes, Henderson, Hendricks, left of the Presiding Officer. Johnson, McCreery, Morrill of Vermont, Morton, The counsel for the President, Hon. Henry Norton, Patterson of Tennessee, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, Vickers, and Stanbery, of Kentucky; Hon. B. R. Curtis, of Willey. Massachusetts; Hon. Thomas A. R. Nelson, of "Those who voted in the negative are"Messrs. Cameron, Chandler, Cole, Conkling, ConTennessee; William M. Evarts, Esq., of New ness, Drake, Ferry, Harlan, Howard,. Howe, MorYork, and Hon. William S. Groesbeck, of Ohio, gan, Morrill of Maine. Nye, Patterson of New appeared and took the seats assigned to them, Hampshire, Pomeroy, Ramsy, Stewart, Sumner, on the right of the Chair. yThayer, Tipton, Williams, Wilson, and Yates. So the Senate reconsidered its vote agreeing to The Sergeant-at-Arms announced the pres- the amendment of Mr. DRAKE to the motion of Mr. ence of the House of Representatives; and the EDMUNDS; and, " The question recurring on the amendment of Mr. Committee of the Whole House, headed by Mr. DRAKE, E. B. WASHBURNE, of Illinois, the chairman " On motion of Mr. TRUMBULL to amend the amendof the Committee of the Whole, and the Clerk ment of Mr. DRAKE, by striking out the words'Friof the House, entered the Chamber, and the Ce day, the 20th,' and inserting the words'Monday, the of the House, entered the Chamber, and the 23d.' members were conducted to the seats assigned " It was determined in the affirmative; and, them. "On the question to agree to the amendment, as The Secretary called the name of Mr. Doo- amended on the motionofMr. TRUMBULL, LITTLE, who had not heretofore been sworn, "The question again recurring on the motion of and the oath prescribed by the rules was ad- Mr. EDMUNDS, as amended on the motion of Mr. DRAKE, as amended by Mr. TRUMBULL, in the followministered to him by the Chief Justice. ing words: The CHIEF JUSTICE. The Secretary will "' Ordered, That the respondent file answer to the read the minutes of the proceedings of the last articles of impeachment on or before Monday, the 23d day of March instant,' sitting. " It was determined in the affirmative. The Secretary read the Journal of the pro- "Thereupon, ceedings of Friday, March 13, of the Senate " The Senate returned to its Chamber." sitting for the trial of the impeachment of Mr. DAVIS. Mr. Chief Justice, I rise to Andrew Johnson, President of the United make the same question to the Court which I States, on articles of impeachment. made in the Senate, and I think that now is On the Journal of those proceedings occur the appropriate time before the court has dethe following entries as to the proceedings of cided to take up the case. I therefore submit the Senate on that occasion, when it had re- to the Court a motion in writing. tired for deliberation: The CHIEF JUSTICE. The Secretary will "The Senate, with the Chief Justice, having re- read the motion. tired to their conference chamber. proceeded to con- The Secretary read as follows: sider the motion submitted by Mr. EDMUNDS; and,. "After dehate, Mr. DAvs, a member of the Senate and of the " On motion by Mr. DRAKE to amend the motion Court of Impeachment, from the State of Kentucky, submitted by Mr. EDMUNDS, by striking out all after moves the court to make this order: the word'ordered,' and in lieu thereof inserting: The Constitution having vested the Senate with "'That the respondent file answer to the articles of the sole power to try the articles of impeachment of 22 the President of the United States preferred by the Cragin, Dixon, Doolittle, Drake, Edmunds, Ferry, House of Representatives, and having also declared Fessenden, Fowler, Frelinghuysen, Grimes, Harlan, that " the Senate of the United States shall be corn- Henderson, Hendricks, Howard, Howe, Johnson, posed of two Senators from each State chosen by the Morgan,Morrill of'Maine, Morrill of Vermont, MorLegislatures thereof;" and the States of Virginia, ton, Norton, Nye, Patterson of New Hampshire, Pat-'North Carolina, South Carolina, Georgia, Alabama, terson of Tennessee, Pomeroy, Ramsey, Ross, SherMississippi, Arkansas, Louisiana, and Texas having, man, Sprague, Stewart, Sumner, Thayer, Tipton, each by its Legislature, chosen two Senators who Trumbull, Van Winkle, Vickers, Willey, Williams, have been and continue to be excluded by the Se- Wilson,, and Yates-49. ate from their seats, respectively, without any judg- ABSENT-Messrs. Bayard, Saulsbury, and Wade ment by the Senate against them personally and in- -3. dividually on the points of their elections, returns, and qualifications, it is The CIEF JUSTICE. On the motion to Ordered, That a Court of Impeachment for the adopt the order of the Senator from Kentucky, trial of the President cannotbe legally and constitu- the yeas are 2, and the nays 49. The motion tionally formed while the Senators from the States aforesaid are thus excluded from the Senate; and is lost. this case is continued until the Senators from these Are the counsel for the President ready to States are permitted to take their seats in the Sen- file their answer. ate, subject, to all constitutional exceptions to their their answer. elections, returns, and qualifications severally. Mr. STANBERY. Mr. Chief Justice, in Mr. HOWARD. Mr. President * obedience to the order of the honorable court, The CHfIEFi JUSTICE. The rule does not made at the last session, that the answer of the admit of debate. President should be filed to-day, we have it Mr. HOWARD. Mr. President, I object to ready. The counsel, abandoning all other enthe receiving of the paper as pot in order. gagements, some of us quitting our courts, our Mr. CONNESS. Mr. President, I desire cases, and our clients, have devoted every hour to submit a motion, which will cover the case, to the performance of this duty. The labor perhaps. I move that the paper be not re- has been incessant and exhaustive. We have ceived, upon which I call for the yeas and nays devoted, as I say, not only every hour ordincMr. HOW hE. Mr. President, I rise to sub: arily devoted to labor, but many required for mit a question of order. necessary rest and recreation have been conThe CHIEF JUSTICE. The Senator from sumed in this work. It is a matter, Mr. Chief Wisconsin. Justice, of profound regret to us that the honMIr. HOWE. I submit if the motion offered orable court did not allow us more time. by the Senator from Kentucky be in order. Nevertheless we hope that the answer will The CHIEF JUSTICE. the motion comes be found in all respects sufficient within the before the Senate in the shape of an order law. Such as it is, we are now ready to read submitted by a member of the Senate and of and file it. the Court of Impeachment. The twenty-third The CHIEF JUSTICE. The counsel will rule requires that " all the orders and decisions the answer of the President. shall be made and had by yeas and nays, which Mr. CURTIS proceeded to read the answer shall be entered on the record, and whithout to the close of that portion relative to the first debate, subject, however, to the operation of article of impeachment. rule seven." The seventh rule requires the Mr. STANBERY read that portion of the Presiding Officer of the Senate to " submit to answer beginning with the reply to the second the Senate, without a division, all questions of article to the close of the response to the ninth evidence and incidental questions; but the article. same shall, on the demand of one fifth of the Mr. EVARTS read the residue of the answer. members present, be decided by yeas and nays." The answer is as follows: By amendment this rule has been applied to Senate of the United States, sitting as a Court orders and decisions proposed by a member of of Impeachment for the trial of Andrew the Senate under the twenty-third rule. The Johnson, President of the United States. Chair rules, therefore, that the motion of the Senator from Kentucky is in order. The answer of the said Andrew Johnson, SaMr. CONNESS. Mr. President President of the United States, to the articles of impeachment exhibited against him by the The CHIEF JUSTICE. No debate is House of Representatives ofthe United States. allowed. Mr. CONNESS. Is the motion submitted ANSWER TO ARTICLE I. by me in order in connection with it? For answer to the first article he says: that The CHIEF JUSTICE. The chair thinks Edwin M. Stanton was appointed Secretary not. for the Department of War on the 15th day Several SENATORS. Let us have a square of January, A. D. 1862, by Abraham Lincoln, vote. then President of the United States, during Other SENATORS. Let us have the yeas and the first term of his Presidency, and was comnays on the order proposed. missioned, according to the Constitution and The yeas and nays were ordered; and being laws of the United States, to hold the said taken, resulted-yeas 2, nays 49; as follows: office during the pleasure of the President; YEAS-Messrs. Davis and McCreery-2. that the office of Secretary for the Department NAYS-Messrs. Anthony, Buckalew, Cameron, of War was created by an act of the First ConCattell, Chandler, Cole, Conkling, Conness, Corbett, gress in its first session passed on the 7th day 23 of August, A. D. 1789, and in and by that act of the public interest; that the relations beit was provided and enacted that the said Sec- tween the said Stanton and the President no retary for the Department of War shall perform longer permitted the President to resort to him and execute such duties as shall from time to for advice, or to be, in the judgment of the time be enjoined on and intrusted to him by President, safely responsible for his conduct the President of the United States, agreeably of the affairs of the Department of War, as by to the Constitution, relative to the subjects law required, in accordance with the orders within the scope of the said Department; and and instructions of the President; and there. furthermore, that the said Secretary shall con- upon, by force of the Constitution and laws of duct the business of the said Department in the United States, which devolve on the Presisuch a manner as the President of the United dent the power and the duty to control the States shall, from time to time, order and in- conduct of the business of that executive destruct. partment of the Government, and by reason of And this respondent, further answering, says the constitutional duty of the President to take that by force of the act aforesaid and by reason care that the laws be faithfully executed, this of his appointment aforesaid the said Stanton respondent did necessarily consider and did became the principal officer in one of the Ex- determine that the said Stanton ought no longer ecutive Departments of the Government within to hold the said office of Secretary for the Dethe true intent and meaning of the second sec- partment of War. And this respondent, by tion of the second article of the Constitution virtue of the power and authority vested in of the United States, and according to the true him as President of the United States, by the intent and meaning of that provision of the Constitution and laws of the United States, to Constitution of the United States; and, in ac- give effect to such his decision and determincordance with the settled and uniform practice ation, did, on.the 5th day of August, A. D. of each and every President of the United 1867, address to the said Stanton a note, of States, the said Stanton then became, and so which the following is a true copy: long as he should continue to hold the said "SIR: Public considerations of a high character office of Seeretary for the Department of War constrain me to say that your resignation as Secremust continue to be, one of the advisers of the tary of War will be accepted." President of the United States, as well as the To which note the said Stanton made the person intrusted to act for and represent the following reply: President in matters enjoined upon him or in- WAR DEPARTMENT, trusted to him by the President touching the SIR: Your note of this day has been received, Department aforesaid, and for whose conduct stating that "public considerations of a high characin such capacity, subordinate to the President, ter onstrain.you" to say "that my resignation as uhe capre idet, ubeordnstutio ad lwsi Secretary of War will be accepted." the President is, by the Constitution and laws' In reply I have the honor to say that public conof the United States, made responsible. And siderations of a high character, which alone have this respondent, further answering, says he suc- induced me to continue at the head of this Departceeded to the office of President of the United ment, constrain me not to resign the office of Secreceeded to the office of President of the nited tary of War before the next meeting of Congress, States upon, and by reason of, the death of Very respectfully, yours. Abraham Lincoln, then President of the Uni- EDWIN M. STANTON. ted States, on the 15th day of April, 1865, and This respondent, as President of the Unithe said Stanton wag then holding the said ted States, was thereon of opinion that, having office of Secretary for the Department of War. regard to the necessary official relations and under and by reason of the appointment and duties of the Secretary for the Department of commission aforesaid; and, not having been War to the President of the United States, removed from the said office by this respond- according to the Constitution and laws of the ent, the said Stanton continued to hold the United States, and having regard to the resame under the appointment and commission sponsibility of the President bor the conduct aforesaid, at the pleasure of the President, of the said Secretary, and having regard to until,the time hereinafter particularly men- the permanent executive authority of the office tioned; and at no time received any appoint- which the respondent holds under the Constiment or commission save as above detailed. tution and laws of the United States, it was And this respondent, further answering, says impossible, consistently with the public interthat on and prior to the 5th day of August, A. ests, to allow the said Stanton to continue to D. 1867, this respondent, the-President of the hold the said office of Secretary for the DeUnited States-responsible for the conduct of partment of War; and it then became the offithe Secretary for the Department of War, and cial duty of the respondent, as President of having the constitutional right to resort to and the United States, to consider and decide what rely upon the person holding that office for act or acts should'and might lawfully be done advice concerning the great and difficult public by him, as President of the United States, to duties enjoined on the President by the Con- cause the said Stanton to surrender the said stitution and laws of the United States-be- office. came satisfied that he could not allow the said This respondent was informed and verily Stanton to continue to hold the office of Secre- believed that it was practically settled by the tary for the Department of War without hazard First Congress of the United States, and had 24 been so considered and, uniformly and in great the President by whom they may have been apnumbers of instances, acted on by each Con-J pointed, and one month thereafter, subject to removalby and with the adyice and consent of the gress and President of the United States, in Senate." succession, from President Washington to, and This respondent was also aware that this including, President Lincoln, and from the act was understood and intended to be an xFirst Congress to the Thirty-Ninth Congress, pression of the opinion of the Congress by that the Constitution of the United States con- which that act was passed, that the power to ferred on the President, as part of the execu- remove executive officers for cause might, by tive power and as one of the necessary means law, be taken from the President and vested in and instruments of performing the executive him and the Senate jointly; and although this duty expressly imposed on him by the Consti- respondent had arrived at and still retained tution of taking care that the laws be faith- the opinion above expressed and verily befully executed, the power at.any and all times lieved, as he still believes, that the said first of removing from office all executive officers section of the last-mentioned act was and is for cause to be judged of by the President wholly inoperative and void by reason of its alone. This respondent had, in pursuance of conflict with the Constitution of the United the Constitution, required the opinion of each States, yet, inasmuch as the same had been principal officer of the Executive Departments enacted by the constitutional majority in each upon this question of constitutional executive of the two Houses of that Congress, this repower and duty, and had been advised by each spondent considered it to be proper to examine of them, including the said Stanton, Secretary and decide whether the particular case of the for the Department of War, that under the *said Stanton, on which it was this respondent's Constitution of the United States this power duty to act, was within or without the terms was lodged by the Constitution in the President of that first section of the act; or, if within it, of the United States, and that, consequently, whether the President had not the power, acit could be lawfully exercised by him, and the cording to the terms of the act, to remove the Congress could not deprive him thereof; and said Stanton from the office of Secretary for this respondent, in his capacity of President the Department of War, and hvring, in his of the United States, and because in that ca- capacity of President of the United States, so pacity he was both enabled and bound to use examined and considered, did form the opinhis best judgment upon this question, did, in ion that the case of the said Stanton and his good faith and with an earnest desire to arrive tenure of office were not affected by the first at the truth, come to the conclusion and opin- section of the last-named act. ion, and did make the same known to the hon- And this respondent further answering, says, orable the Senate of the United States by a that although a case thus existed which, in his message dated on the 2d day of March, 1867, judgment as President of the United States, (a true copy whereof is hereunto annexed and called for the exercise of the executive power marked A,) that the power last mentioned was to remove the said Stanton from the office of conferred and the duty of exercising it, in fit Secretary for the Department of War, and cases, was imposed on the President by the although this respondent was of opinion, as is Constitution of the United States, and that above shown, that under the Constitution of the President could not be deprived of this the United States the power to remove the said power or relieved of this duty, nor could the Stanton from the said office was vested in the same be vested by law in the President and the -President of the United States; and although Senate jointly, either in part or whole; and this respondent was also of the opinion, as is this has ever since remained and was the above shown, that the case of the said Stanton opinion of this respondent at the time when he was not affected by the first section of the lastwas forced as aforesaid to consider and decide named act; and although each of the said what act or acts should and might lawfully be opinions had been formed by this respondent done by this respondent, as President of the upon an actual case, requiring him, in his caUnited States, to cause the said Stanton' to pacity of President of the United States, to surrender the said office. come to some judgment and determination This respondent was also then aware that thereon, yet this respondent, as President of by the first section of "an act regulating the the United States, desired and determined to tenure of certain civil offices," passed March avoid, if possible, any question of the construc2, 1867, by a constitutional majority of both tion and effect of the said first section of the Houses of Congress, it was enacted as follows: last-named act, and also the broader question "That everypersonholdingany civil officeto which of the executive power conferred on the Presihe has been appointed by and with the advice and consent of the Senate, and every person who shall dent of the United States, by the Constitution hereafter be appointed to any such office, and shall of the United States, to remove one of the become duly qualified to act therein, is and shall be principal officers of one f the Executive Deentitled to hold such office until a successor shall have been in like manner appointed and duly quali- partments for cause seeming to him sufficient; fied, except as herein otherwise provided: Provided, and this respondent also desired and deterThat the Secretaries of State of the Treasury, of mined that, iffrom causes over which he could War, of the Navy, and of the interior, the Postmaster General, and the Attorney General, shall hold exert no control, it should become absolutely their offices respectively for and during the term of necessary to raise and have, in some way, deter 25 mined either or both of the said last-named ques- and laws of the United States, without the advice tions, itwas in accordance with the Constitution and consent of the Senate, and without legal cause, of the United States and was required of the to suspend me from office as Secretary of War, or the exercise of any or all functions pertaining to the President thereby, that questions of so much same, or without such advice and consent to compel gravity and importance, upon which the legis- me to transfer to any person the records, books, lative and executive departments of the Gov- papers, and public property in my custody as Secretary. But inasmuch as the General commanding ernment had disagreed, which involved powers the armies of the United States has been appointed considered by all branches of the Government, ad interim, and hasnotified me that he has accepted during its entire history down to the year 1867, the appointment. I have no alternative but to submit, during its entire history down to the year 1867, under protest, to superior force." to have been confided by the Constitution of To thePRESIDENT. the United States to the President, and to be And this respondent, further answering, necessary for the complete and proper execu- says, that it is provided in and by the second tion of Ihis constitutional duties, should be in section of " an act to regulatethe tenure of some proper way submitted to thatjudicial de- certain civil offices," that the President may partment of the Government, intrusted by the suspend an officer from the performance of Constitution with the power, and subjected by the duties of the office held by him, for certain it to the duty, not only of determining finally causes therein designated, until the next meetthe construction and.effect of all acts of Con- ing of the Senate and until the case shall be gress, but of comparing them with the Consti- acted on by the Senate; that this respondent, tution of the United States and pronouncing as President of the United States, was advised them inoperative when found in conflict with and he verily believed and still believes, that that fundamental law which the people have the executive power of removal from office enacted for the government of all their ser- confided to him by the Constitution as aforevants. And to these ends, first, that through said, includes the power of suspension from the action of the Senate of the United States, office at the pleasure of the President and the absolute duty of the President to substitute this respondent, by the order aforesaid, did some fit person in place of Mr. Stanton as one suspend the said Stanton from office, not of his advisers, and as a principal subordinate until the next meeting of the Senate, or until officer whose official conduct he was respon- the Senate should have acted upon the case, sible for and had lawful right to control, might, but by force of the power and authority vested if possible, be accomplished without the neces- in him by the Constitution and laws of the sity of raising any one of the questions afore- United States, indefinitely and at the pleasure said; and, second, if this duty could not be so of the President, and the order, in form aforeperformed, then that these questions, or such said, was made known to the Senate of the of them as might necessarily arise, should be' United States, on the 12th day of December, judicially determined in manner aforesaid, A. D. 1867, as will be more fully hereinafter and for no other end or purpose this respond- stated. ent, as President of the United States, on the And this respondent, further answering, 12th day of August. 1867, seven days after the says, that in and by the act of February 13, reception of the letter of the said Stanton of 1795, it was, among other things, provided and the 5th of August, hereinbefore stated, did enacted that, in case of vacancy in the office issue to the said Stanton the order following, of Secretary for the Department of War, it namely: shall be lawful for the President, in case he EXECUTIVE MANSION, shall think it necessary,'to authorize any perWASHRINGTON, August 12, 1867. SIR: By virtue of the power and authority vested son to perform the duties of that office until a in me as President by the Constitution and laws of successor be appointed or such vacancy filled, the United States, you are hereby suspended from but not exceeding the term of six months; office as Secretary of War, and will cease to exercise and this respondent, being advised and beany and all functions pertaining to the same. You will at once transfer to General Ulysses S. lieving that such law was in full force and not Grant, who has this day been authorized and em- repealed, by an order dated August 12, 1867, poweied to act as Secretary of War ad interim, all did authoze and empower Ulysses S. Grant, recoirs, books, papers, and other public property di authorize and empower Ulysses S. Grant, now in your custody and charge. General of the armies of the United States, Hon. EDWIN M. STANTON, Secretary of War. to act as Secretary for the Department of War To which said order the said Stanton made ad interim, in the form in which similar authe following reply: thority had theretofore been given, not until WAR DEPARTMENT, the next meeting of the Senate and until the WASHINGTON CITY, August 12, 1867. Senate should act on the case, but at the "SIR: Your note of this date has been received, pleasure of the President, subject only to the informingme that by virtue of the powers vested in you, as Presidcent, by the Constitution and laws of limitation of six months in the.said last-menthe United States, I am suspended from office as Sec- tioned act contained; and a copy of the lastretary of War, and will cease to exercise any and all named order was made known to the Senate functions pertaining to the same;' and also directing me at once to transfer to General Ulysses S. Grant, of the United States on the 12th day of Decemwho has this day been authorized and empowered to ber, A. D. 1867, as will be hereinafter more fully act as Secretary of War ad interim, all records,' books, stated; an papers, and other public property now in my custody d in pursuance of the design and and charge. Under a sense of public duty, I am intention aforesaid, if it should become necescompelled to deny yourright, under the Constitution sary, to submit the said questions to a judicial 26 determination, this respondent, at or near the ment of the President, be lawful and necessary date of the last-mentioned order, did make to raise, for a judicial decision, the questions known such his purpose to obtain a judicial affecting the lawful right of the said Stanton decision of the said questions, or such of them to resume the said office, or the power of the as might be necessary. said Stanton to persist in refusing to quit the And this respondent, further answering, says, said office if he should persist in actually rethat in further pursuance of his intention and fusing to quit the same; and to this end, and design, if possible to perform what he judged to this end only, this respondent did, on the to be his imperative duty, to prevent the said 21st day of February, 1868, issue the order for Stanton from longer holding the office of Sec- the removal of the said Stanton, in the said retary for the Department of War, and at the first article mentioned and set forth, and the same time avoiding, if possible, any question order authorizing the said Lorenzo F. Thomas respecting the extent of the power of removal to act as Secretary of War ad interim, in the from executive office confided to the Pres- said second article set forth. ident by the Constitution of the United States, And this respondent, proceeding to answer and any question respecting the construction specifically each substantial allegation in the and effect of the first section of the said " act said first article, says: He denies that the regulating the tenure of certain civil offices," said Stanton, on the 21st day of February, while he should not, by any act of his, abandon 1868, was lawfully in possession of the said and relinquish, either a power which he be- office of Secretary for the Department of War. lieved the Constitution had conferred on the He denies that the said Stanton, on the day last President of the United States, to enable him mentioned, was lawfully entitled to hold the to perform the duties of his office, or a power said office against the will of the President of designedly left to him by the first section of the United States. He denies that the said the act of Congresslast aforesaid, this respond- order for the removal of the said Stanton was ent did, on the 12th day of December,' 1867, unlawfully issued. He denies that the said transmit to the Senate of the United States, a order was issued with intent to violate the act message, a copy whereof is hereunto annexed entitled " An act to regulate the tenure of cerand marked B, wherein he made known the tain civil offices." He denies that the said orders aforesaid and the reasons which had order was a violation of the last-mentioned induced the same, so far as this respondent act. He denies that the said order was a violathen considered it material and necessary that tion of the Constitution of the United States, the same should be set forth, and reiterated or of any law thereof, or of his oath of office. his views concerning the constitutional power He denies that the said order was issued with of removal vested in the President, and also an intent to violate the Constitution of the expressed his views concerning the construe- United States or any law thereof, or this retion of the said first section of the last men- spondent's oath of office; and he respectfully, tioned act, as respected the power of the Pres- but earnestly, insists that not only was it ident to remove the said Stanton from the said issued by him in the performance of what he office of Secretary for the Department of War, believed to be an imperative official duty, but in well hoping that this respondent could thus the performance of what this honorable court perform what he then believed, and still be- will consider was, in point of fact, an imperlieves, to be his imperative duty in reference ative official duty. And he denies that any to the said Stanton, without derogating from and all substantive matters, in the said first the powers which this respondent believed article contained, in manner and form as the were confided to the President, by the Con- same are therein stated and set forth, do, by stitution and laws, and without the necessity law, constitute a high misdemeanor in office, of raising, judicially, any questions respecting within the true intent and meaning of the Conthe same. stitution of the United States. And this respondent, further answering, says, ANSWER TO ARTICLE II. that this hope not having been realized, the And for answer to the second article this President was compelled either to allow the respondent says that he admits he did issue said Stanton to resume the said office and re- and deliver to said Lorenzo Thomas the said main therein contrary to the settled convictions writing set forth in said second article, bearing of the President, formed as aforesaid, respect- date at Washington, District of Columbia, Febing the powers confided to him and the duties ruary 21, 1868, addressed to Brevet Major Genrequired of him by the Constitution of the eralLorenzo Thomas, Adjutant General United United States, and contrary to the opinion States Army, Washington, District of Columformed as aforesaid, that the first section of the bia, and he further admits that the same was last-mentioned act did not affect the case of so issued without the advice and consent of the the said Stanton, and contrary to the fixed be- Senate of the United States, then in session, lief of the President that he could no longer but he denies that he thereby violated the advise with or trust or be responsible for the Constitution of the United States, or any law said Stanton, in the said office of Secretary for thereof, or that he did thereby intend to viothe Department of War, or else he was com- late the Constitution of the United States, or pelled to take such steps as might, in the judg- the provisions of any act of Congress; and this 27 respondent refers to his answer to said first persons, with intent by intimidations and article for a full statement of the purposes and threats unlawfully to hinder and prevent the intentions with which said order was issued, said Stanton from holding said office of Secand adopts the same as part of his answer to retary for the Department of War in violation this article; and he further denies that there of the Constitution of the United States or of was then and there no vacancy in the said office the provisions of the said act of Congress in of Secretary for the Department of War, or said article mentioned, or that he did then and that he did then and there commit, or was there commit or was guilty of a high crime in guilty of a high misdemeanor in office, and this office. On the contrary thereof, protesting respondent maintains and will insist: that the said Stanton was not then and there 1. That at the date and delivery of said writ- lawfully the Secretary for the Department of ing there was a vacancy existing in the office War, this respondent states that his sole purof Secretary for the Department of War. pose in authorizing the said Thomas to act as 2. That, notwithstanding the Senate of the Secretary for the Department of War ad inUnited States was then in session, it was law- terim was, as is fully stated in his answer to the ful and according to long and well established said first article, to bring the question of the usage to empower and authorize the said right of the said Stanton to hold said office, Thomas to act as Secretary of War ad interim. notwithstanding his said suspension and not3. That, if the said act regulating the tenure withstanding the said order of removal and of civil offices be held to be a valid law, no notwithstanding the said authority of the said provision of the same was violated by the issu- Thomas to act as Secretary of War ad interim, ing of said order or by the designation of said to the test of a final decision by the Supreme Thomas to act as Secretary of War ad interim. Court of the United States in the earliest ANSWER T0 ARTICLE III. practicable mode by which the question could be brought before that tribunal. And for answer to said third article this be brought before that tribunal. respondent says that he abides by his answer This resondent did not conspire or any othe r person or to said first and second articles, in so far as persons the s aid Thomas or any othreats to hinder the same are responsive to the allegations con- persons te intisid Stanton orthrats to hinder tained in the said third article, and, without or prevent the sid Stary for the Department of here again repeating the same answer, prays said office of Secretary for the Department of here agai n repe ating the same answer to this thirdays War, nor did this respondent at any time comthe same be taken as an answer to this third article as fully as if here again set out at mand or advise the said Thomas or any other length; and as to the new allegation contained personrt to or upersns to resor to or use either in said third article, that this respondent did threats or intimidation for that purpose The appoint the said Thomas to be Secretary for only means in the contemplation or purpose of the aDepartment of War ad interim, this re- respondent to be used are set forth fully in the spondent denies that he gave any oth.er au- said orders of February 21, the first addressed spondent denies that he gave any other au- to Mr. Stanton and the second to the said thority to said Thomas than such as appears Thomas. By the first order the respondent in said written authority set out in said article, notified Mr. Stanton that he was removed from by which he authorized and empowered said the said office, and that his functions as SecreThomas to act as Secretary for the Department tary for the Department of War were to termiof War ad interim; and he denies that the tary for the receipt of that order, and he same amounts to an appointment and insists nate upont the receipt of that order, and he alsoid that it is only a designation of an officer of thereby notified the said Stanton that the said that Department to act teporaxily as Secre- Thomas had been authorized to act as Secretary for the Department to act tempof Warly ad interim tary for the Department of War ad interim, tary for the Department of War b ad interim and ordered the said Stanton to transfer to him until an appointment should be made. But, all the records, books, papers, and other publii whether the said written authority amounts to an appointment or to a temporary authority properly in his custody and charge; and by an appointment or to a temporary authorit the second order this respondent notified the or designation, this respondent denies that in any serifse he did thereby intend to violate the saidThomas of the removal from office of the Constitution of the United States, or that he said Stanton, and authorized him to act as thereby intended to give the said order the. Secretary for the Department of War ad incharacter or effect of an appointment in the term, and directed him to immediatelyenter constitutional or legal sense of that term. He upon the discharge of the duties pertaining to further denies that there was no vacancy in said that office, and to receive the transfer of all vacancy in the records, books, papers, and other public office of Secretary for the Department of War the records, books, papers, tnd other public existing at the date of said written authority. property from Stanton then n his cst and charge. ANSWER TO ARTICLE IV. Respondent gave no instructions to the said And for answer to said fourth article this Thomas to use intimidation or threats to enrespondent denies that on the said 21st day of force obedience to these orders. He gave him February, 1868, at Washington aforesaid or at no authority to call in the aid of the military any other time or place, he did unlawfully or any other force to enable him to obtain posconspire with the said Lorenzo Thomas, or session of the office, or of the books, papers, with the said Thomas and any other person or records, or property thereof. The only agency 28 resorted to or intended to be resorted to was fourth article and to his answer giveh to the by means of the said executive orders requir- first article as to his intent and purpose in ing obedience. But the Secretary for the De- issuing the orders for the removal of Mr. Stanpartment of War refused to obey these orders, ton and the authority given to the said Thomas, and still holds undisturbed possession and cus- and prays equal benefit therefrom as if the tody of that Department, and of the records, same were here again repeated and fully set books, papers, and other public property there- forth. in. Respondent further states that, in execu- And this respondent excepts to the suffition of the orders so by this respondent given to ciency of the said fifth article, and states his the said Thomas, he, the said Thomas, pro- ground for such exception, that it is not alleged ceeded in a peaceful manner to demand of the by what means or by what agreement the said said Stanton a surrender to him of the public alleged conspiracy was formed or agreed to be property in the said Department, and to vacate carried out, or in what way the same was atthe possession of the same, and to allow him, tempted to be carried out, or what were the the said Thomas, peaceably to exercise the acts done in pursuance thereof. duties devolved upon him by authority of the ANSWER TO RTICLE VI. President. That, as this respondent has been And for answer to the said sixth article, this informed and believes, the said Stanton per- And for answer to the saixth article, this emptorily refused obedience to the orders so respondent denies that on the said 21st day of issued. Upon such refusal no force or threat February, 1868, at Washington aforesaid, or of force was used by the said Thomas, by au- at any other time or place, he did unlawfully thority of the President or otherwise, to en- conspire with the said Thomas by force to seize, force obedience, either then or at any subse- take, or possess, the property of the United quent time. States in the Department of War, contrary to This respondent doth here except to the the provisions of the said acts referred to in the sufficiency of the allegations contained in said said article, or either of them, or with intent fourth article, and states for ground of excep- to violate either of them. Respondent, protesttion that it is not stated that there was any ing that said Stanton was not then and there agreement between this respondent and the Secretary for the Department of War, not only said Thomas, or any other person or persons, denies the said conspiracy as charged, but also to use intimidation and threats, nor is there denies any unlawful intent in reference to the any allegation as to the nature of said intimi- custody and charge of the property of the Unidation and threats, or that there was any agree- ted States in the said Department of War, and ment to carry them into execution, or that again refers to his former answers for a full any step was taken or agreed to be taken to statement of his intent and purpose in the carry them into execution, and that the allega- premises. tion in said article that the intent of said con- ANSWEB TO ARTICLE VII. spiracy was to use intimidation and threats is And for answer to the said seventh article wholly insufficient, inasmuch as it is not al- respondent denies that on the said 21st day of leged that the said intent formed the basis or Februarv, 1868, at Washington aforesaid, or at became a part of any agreement between the any other time and place, he did unlawfully said alleged conspirators, and, furthermore, conspire with the said Thomas with intent unthat there is no allegation of any conspiracy or lawfully to seize. take, or possess the property agreement to use intimidation or threats. of the United States in the Department of AN'SWER TO ARTICLE V. War with intent to violate or disregard the said act in the said seventh article referred to, or And for answer to the said fifth article this that he did then and there commit a high misrespondent denies that on the said 21st day of demeanor in office. Respondent, protesting February, 1868, or at any other time or times in that the said Stanton was not then and there the same year before the said 2d day of March, Secretary for the Department of War, again 1868, or at any prior or subsequent timb, at refers to his former answers, in so far as they Washington aforesaid or at any other place, are applicable, to show the intent with which this respondent did unlawfully conspire with he proceeded in the premises, and prays equal the said Thomas, or with any other person or benefit therefrom, as if the same were here persons, to prevent or hinder the execution of again fully repeated. Respondent further takes the said act entitled' An act regulating the exception to the sufficiency of the allegations tenure of certain civil offices," or that, in pur- of this article as to the conspiracy alleged upon suance of said alleged conspiracy, he did un- the same grounds as stated in the exception set lawfully attempt to prevent the said Edwin M. forth in his answer to said article fourth. Stanton from holding said office of Secretary for the Department of War, or that he did ANSWER TO ARTICLE VIII. thereby commit, or that he was thereby guilty And for answer to the said eighth article this of, a high misdemeanor in office. Respondent, respondent denies that on the 21st day of Febprotesting that said Stanton was not then and ruary, 1868, at Washington aforesaid, or at there Secretary for the Department of War, any other time and place, he did issue and begs leave to refer to his answer given to the deliver to the said Thomas the said letter of 29 authority set forth in the said eighth article, issued by the President or Secretary of War shall be with the intent unlawfully to control the dis- issued through the General of the Army,and in case of his inability through the next in rank. The Genbursements of the money appropriated for the eral of the Army shall not be removed. suspended, or military service and for the Department of relieved from command or assigned to duty elsewhere War. This respondent, protesting that there than at said headquarters, except at his own request, without the previous approval of the Senate; and was a vacancy in the office of Secretary for the any orders or instructions relating to military operDepartment of War, admits that he did issue ations issued contrary to the requirements of thi' the said letter of authority, and he denies that section shall be null and void; and any officer who shallissue orders or istructions contrary to the prothe same was with any unlawful intent what- visions of this sectioft shall be deemed guilty of a ever, eithrer to violate the Constitution of the misdemeanor in office; and any officer of the Army United States or any act of Congress. On the who shall transmit, convey, or obey any orders or' instructions so issued contrary to the provisions of contrary, this respondent again affirms that his this section, knowing that such orders were so issued, sole intent was to vindicate his authority as shall be liable to imprisonment for not less than two President of the United States, and by peace- nor more than twenty years, upon conviction thereof in any court of competent jurisdiction. ful means to bring the question of the right of *l * * * * the said Stanton to continue to hold the said Approved March 2,1867. office of Secretary of War to a final decision * * * * * * * * before the Supreme Court of the United States, By order of the Secretary of War. as has been hereinbefore set forth; and he E. D. TOWNSEND, prays the same benefit from his answer in the Officialat Geeral. premises as if the same were here again re-,Assistant Adjutant Cenerat. peated at length. General Emory not only called the attention ANSWER TO ARTICLE IX. of respondent to this order, but to the fact that it was in conformity with a section contained And for answer to the said ninthn rticle the in an appropriation act passed by Congress. respondent states that on the said 22d day of espondent, after reading the order, obsered, February, 1868, the following note was ad- ReThis is not in accordance with the Constitudressed to the said Emory by the private secre- tion of the United States, which makes me tary of reSpondent: tion of the United States, which makes me EXErCUTIVE MANSION, Commander-in-Chief of the Army and Navy, WASHINGToN, D. C., February 22. 1868. or of the language of the commission which GENERAL: The President directs me to say that he you hold." General Emory then stated that will be pleased to have you call upon him as early as this order had met respondent's approval. Repracticable. spondent then said in reply, in substance, WIRespectfully nd truly yours, MOORE,'Am I to understand that the President of the WILLIAM G. MOORE, United States Army. United States cannot give an order but through General Emory called at the Executive Man- the General-in-Chief, or General Grant?" sion according to this request. The object of General Emory again reiterated the statement respondent was to be advised by General Em- that it had met respondent's approval, and that ory, as commander of the department of Wash- it was the opinion of some of the leading lawyers ington, what changes had been made in the of the country that this order was constitutional. military affairs of the department. Respondent With some further conversation, respondent had been informed that various changes had then inquired the names of the lawyers who been made, which in nowise had been brought had given the opinion, and he mentioned the to his notice or reported to him from the De- names of two. Respondent then said that the partment of War or from any other quarter, object of the law was very evident, referring and desired to ascertain the facts. After the to th clause in the appropriation act upon said Emory had explained in detail the changes which the order purported to be based. This, which had taken place, said Emory called the according to respondent's recollection was the attention of respondent to a general order substance of the conversation had with General which he referred to and which this respondent Emory. then sent for, when it was produced. It is as Rdspondent denies that any allegations in follows: the said article of any instructions or declara[General Orders No. 17.1 tions given to the said Emory then or at any WAR DEPARTMENT, other time contrary to or in addition to what ADJUTANT GENERAL'S OFFICE, is hereinbefore set forth are true. Respondent WASHINGTON, March 14, 1867. denies that, in said conversation with said The following acts of Congress are publishedfor the Emory, he had any other intent than to exinformation and government of all concerned: press the opinions then given to the said Emory, * * * * * * * * press the opinions then given tothe saidEmory, II1-PUBLIC-NO. 85. *nor did he then or at any time request or order An act making appropriations for the support of the the said Emory to disobey any law or any Army for the year ending June 30, 1868, and for order issued in conformity with any law, or inother purposes. tend to offer any inducement to the said Emory * * * * * * * * * * to violate any law. What this respondent then SEC. 2. And be it further enacted, That the head- said to General Emory was simply the expresquarters of the General of the Army of the United States shall be at the city of Washington, and all sion of an opinion which he then fully believed ordersandinstructionsrelating to military operations to be sound and which he yet believes to be so, 30 and that is, that by the express provisions of objects of the same, adopted a " declaration the Constitution this respondent, as President, of principles" and " an address to the people is made the Commander-in-Chief ofthe Armies of the United States," and appointed a comof the United States, and as such he is to be mittee of two of its members from each State respected, and that his orders, whether issued and of one from each Territory and one from the through the War Department or through the District of Columbia to wait upon the PresiOeneral-in-Chief, or by any other channel of dent of the United States and present to him communication, are entitled to respect and a copy of the proceedings of the convention; obedience, and that such donstitutional power that on the 18th day of said month of August cannot be taken from him by virtue of any act this committee waited upon the President of'of Congress. Respondent doth therefore deny the United States at the Executive Mansion, that by the expression of such opinion he did and was'received by him in one of the rooms commit or was guilty of a high misdemeanor thereof, and by their chairman, Hon. Reverdy in office; and this respondent doth further say Johnson, then and now a Senator of the that the said article nine lays no foundation United States, acting and speaking in their whatever for the conclusion stated in the said behalf, presented a copy of the proceedings article, that the respondent, by reason of the of the convention, and addressed the Presiallegations therein contained, was guilty of a dent of the United States in a speech, of which high misdemeanor in office. a copy (according to a published report of the In reference to the statement made by Gen- same, and as the respondent believes substaneral Emory that this respondent had approved tially a correct report,) is hereto annexed as a of said act of Congress containing the section part of this answer, and marked Exhibit C. referred to, the respondent admits that his That thereupon, and in reply to the address formal approval was given to said act, but ac- of said committee by their chairman, this recompanied the same by the following message, spondent addressed the said committee so addressed and sent with the act to the House waiting upon him in one of the rooms of the of Representatives, in which House the said Executive Mansion; and this respondent beact originated, and from which it came to re- lieves that this his address to said committee spondent: is the occasion referred to in the first specifiTo the House of Representatives: cation of the tenth article; but this respondent The act entitled "An act making appropriations does not admit that the passages therein set for the support of the Army for the year ending June forth, as if extracts from a speech or address 30,1868, and for other purposes," contains provisions f this respondent upon said occasion, corto which I must call attention. These provisions are of this respondent upon said ccasion, corcontained in the second section, which, in certain rectly or justly present his speech or address cases, virtually deprives the President of' his consti- o said tutional functions as Commander-in-Chief of the but, o the contrary, this Army, and in the sixth section, which denies to ten respondent demands and insists that if this States'of the Union their constitutional right to pro- honorable court shall deem the said article and tect themselves, in any emergency, by means of their the said rst specification thereof to contain own militia. These provisions are out of place in the said first specification thereof to contain an appropriation act, but I am compelled to defeat allegation of matter cognizable by this honorthese necessary appropriations if I withhold my sig- able court as a high misdemeanor in office, nature from the act. Pressed by these considera- within the intent and meaning of the Constitntions, I feel constrained to return the bill with my signature, but to accompany it with my earnest pro- tion of the United States, and shall receive or test against the sections which I have indicated. allow proof in support of the same, that proof WASHINGTON, D. C., March 2, 1867. shall be required to be made of the actual speech Respondent, therefore, did no more than to and address of this respondent on said occaexpress to said Emory the same opinion which sion, which this respondent denies that said he had so expressed to the House of Repre- article and specification contain or correctly sentatives. or justly represent. ANSWER TO ARTICLE X. And this respondent, further answering the And in answer to the tenth article and speci- tenth article and the specifications thereof, says fications thereof the respondent says that on that at Cleveland, in the State of Ohio, and on the 14th and 15th days of August, in the year the 3d day of September, in the year 1866, he 1866, a political convention of delegates from was attended by a large assemblage of his felall or most of the States and Territories of low-citizens, and in deference and obedience to the Union was held in the city of Philadelphia, their call and demand he addressed them upon under the name and style of the National matters of public and political consideration; Union Convention, for the purpose of main- and this respondent believes that said occasion taining and advancing certain political views and address are referred to in the second speand opinions before the people of the United cification of the tenth article; but this respondStates, and for their support and adoption in ent does not admit that the passages therein the exercise of the constitutional suffrage, in set forth, as if extracts from a speech of this the electionsof Representatives and Delegates respondent on said occasion, correctly or justly in Congress, which were soon to occur in present his speech or address upon said occamany of the States and Territories of the sion; but, on the contrary, this respondent deUnion; which said convention, in the course mands and insists that if this honorable court of its proceedings, and in furtherance of the shall deem the said article and the said second 31 specification thereof to contain allegation of stitutional right and duty as President of the matter cognizable by this honorable court as a. United States, communicated to Congress his high misdemeanor in office, within the intent views and opinions in regard to such acts or and meaning of the Constitution of the United resolutions thereof as, being submitted to him States, and shall receive or allow proof in sup- as President of the United States in pursuance port of the same, that proof shall be required of the Constitution, seemed to this respondent to be made of the actual speech and address to require such communications; and he has, of this repondent on said occasion. which this from time to time, in the exercise of that free-. respondent denies that said article and specifi- dom of speech which belongs to him as a citication contain or correctly or justly represent. zen of the United States, and, in his political And this respondent, further answering the relations as President of the United States to tenth article and the specifications thereof, says the people of the United States, is upon fit that at St. Louis, in the State of Missouri, and occasions a duty of the highest obligation, exon the 8th day of September, in the year 1866, pressed to his fellow-citizens his views and he was attended by a numerous assemblage of opinions respecting the measures and proceedhis fellow-citizens, and in deference and obe- ings of Congress; and that in such addresses dience to their call and demand he addressed to his fellow-citizens and in such his comthem upon matters of public and political con- munications to Congress he has expressed his sideration; and this respondent believes that views, opinions, and judgment of and concernsaid occasion and address are referred to in the ing the actual constitution of the two Houses third specification of the tenth article; but this of Congress without representation therein of respondent does not admit that the passages certain States of the Union, and of the effect therein set forth, as if extracts from a speech that in wisdom and justice, in the opinion and of this respondent on said occasion, correctly judgment of this respondent, Congress, in its or justly present his speech or address upon legislation and proceedings, should give to this said occasion; but, on the contrary, this respon- political circumstance; and whatsoever he has dent demands and insists that if this honorable thus communicated to Congress or addressed court shall deem the said article and the said to his fellow-citizens or any assemblage thereof, third specification thereof to contain allegation this respondent says was and is within and acof matter cognizable by this honorable court as cording to his right and privilege as an Ameria high misdemeanor in office, within the intent can citizen and his right and duty as President and meaning of the Constitution of the United of the United States. States, and shall receive or allow proof in sup- And this respondent, not waiving or at all port of the same, that proof shall be required disparaging his right of freedom of opinion to be made of the actual speech and address of and of freedom of speech, as hereinbefore or this respondent on said occasion, which this hereinafter more particularly set forth, but respondent denies that the said article and spe- claiming and insisting upon the same, further cification contain or correctly or justly repre- answering the said tenth article, says that the sent. views and opinions expressed by this respondAnd this respondent, further answering the ent in his said addresses to the assemblages tenth article, protesting that he has not been of his fellow-citizens, as in said article or in unmindful of the high duties of his office, or this answer thereto mentioned, are not and of the harmony or courtesies which ought to were not intended to be other or different from exist and be maintained between the executive those expressed by him in his communications and legislative branches of the Government of to Congress-that the eleven States lately in the United States, denies that he has ever in- insurrection never had ceased to be States of tended or designed to set aside the rightful the Union, and that they were then entitled to authority or powers of Congress, or attempted representation in Congress by loyal Representto bring into disgrace, ridicule, hatred, con- atives and Senators as fully as the other States tempt, or reproach the Congress of the United of the Union, and that, consequently, the ConStatesor either branch thereof, or to impair gress, as then constituted, was not, in fact, a or destroy the regard or respect of all or any Congress of all the States, but a Congress of of the good people of the United States for only a part of the States. This respondent, the Congress or the rightful legislative power always protesting against the unauthorized exthereof, or to excite the odium or resentment clusion therefrom of the said eleven States, of all or any of the good people of the United nevertheless gave his assent to all laws passed States against Congress and the laws by it by said Congress which did not, in his opinion duly and constitutionally enacted. This re- and judgment, violate the Constitution, exerspondent further says that at all times he has, cising his constitutional authority of returning in his official acts as President, recognized the bills to said Congress with his objections when authority of the several Congresses of the they appeared to him to be unconstitutional or United States as constituted and organized inexpedient. during his administration of the office of Presi- And, further, this respondent has also exdentof the United States. pressed the opinion, both.in his communicaAnd this respondent, further answering, says tions to Congress and in. his addresses to the that he has, from time to time, under his con- people, that the policy adopted by Congress 32 in reference to the States lately in insurrection able court, and before all the people of the did not tend to peace, harmony, and union, United States, that of or concerning this his but, on the contrary, did tend to disunion'and right of freedom of opinion and of freedom of. the permanent disruption of the States, and speech, and this his exercise of such rights on that, in following its said policy, laws had been all matters of public and political considerapassed by Congress in violation of the funda- tion, and in respect of all public servants or mental principles of the Government, and persons whatsoever engaged in or connected which tended to consolidation and despotism; therewith, this respondent, as a citizen or as and, such being his deliberate opinions, he President of the United States, is not subject would have felt himself unmindful of the high to question, inquisition, impeachment, or inculduties of his office if he had failed to express pation in any form or manner whatsoever. them in his communications to Congress or in And this respondent says that neither the said his addresses to the people when called upon tenth article nor any specification thereof nor by them to express his opinions on matters of any allegation therein contained touches or public and political consideration. relates to any official act or doing of this reAnd this respondent, further answering the spondent in the office of President of the Unitenth article, says that he has always claimed ted States or in the discharge of any of its and insisted, and now claims and insists, that constitutional or legal duties or responsibiliboth in his personal and private capacity of a ties; but said article and the specifications and citizen of the United States, and in the politi- allegations thereof, wholly and in every part cal relations of the President of the United thereof, question only the discretion or propriStates to the people of the United States, whose ety of freedom of opinion or freedom of speech, servant, underthe duties and reponsibilities of as exercised by this respondent as a citizen of the Constitution of the United States, the the United States in his personal right and President of'the United States is and should capacity, and without allegation or imputation always remain, this respondent had and has against this respondent of the violation of any the full right, and in his office of President of law of the United States touching or relating the United States is held to the high duty, to freedom of speech or its exercise by the of forming, and on fit occasions expressing, citizens of the United States, or by this reopinions of and concerning the legislation of spondent as one of the said citizens or otherCongress, proposed or completed, in respect wise; and he denies that by reason of any of its wisdom, expediency, justice, worthiness, matter in said article or its specifications alobjects, purposes, and public and political leged he has said or done anything indecent motives and tendencies; and within and as a or unbecoming in the Chief Magistrate of the part of such right and duty to form, and on United States, or that he has brought the high fit occasions to express, opinions of and con- office of the President of the United States cerningthe public character and conduct, views, into contempt, ridicule, or disgrace, or that he purposes, objects, motives, and tendencies of has committed or has been guilty of a high all men engaged in the public service, as well misdemeanor in office. in Congress as otherwise, and under no other ANSWER TO ARTICLE XI. rules or limits upon this right of freedom of And in answer to the eleventh article this opinion and of freedom of speech, or of respon- respondent denies that on the 18th day of Ausibility and amenability for the actual exercise gust, in the year 1866, at the city of Washingof such freedom of opinion and freedom of ton, in the District of Columbia, he did, by pubspeech, than attend upon such rights and their lie speech or otherwise, declare or affirm, in subexercise on the part of all other citizens of the stance or at all, that the Thirty-Ninth Congress United States, and on the part of all their of the United States was not a Congress of the public servants. United States authorized by the Constitution to And this respondent, further answering exercise legislative power under the same, or said tenth article, says that the several occa- that he did then and there declare or affirm that sions on which, as is alleged in the several the said Thirty-Ninth Congress was a Congress specifications of said article, this respondent of only part of the States in any sense or meanaddressed his fellow-citizens on subjects of ing other than that ten States of the Union were public and political considerations were not, denied representation therein; or that he made nor was any one of them, sought or planned by any or either of the declarations or affirmations this respondent; but, on the contrary, each of in this behalf, in the said article alleged, as said occasions arose upon the exercise of a denying or intending to deny that the legislalawful and accustomed right of the people of tion of said Thirty-Ninth Congress was valid the United States to call upon their public ser- or obligatory upon this respondent, except so vants and express to them their opinions, far as this respondent saw fit to approve the wishes, and feelings upon matters of public same; and asto the allegation in said article, and political consideration, and to invite from that he did thereby intend or mean to be unsuch, their pdblic servants, an expression of derstood that the said Congress had not power their opinions, views, and feelings on matters to propose amendments to the Constitution, of public and political consideration; and this this respondent says that in said address he said respondent claims and insists before this honor- nothing in reference to the subject of amend 33 ments of the Constitution, nor was the question and proceedings were done and taken; and he of the competency of the said Congress to pro- makes answer to this eleventh article of the pose such amendments, without the participa- matters in his answer to the first article, pertion of said excluded States, at the time of tainipg to the suspension or removal of said said address, in any way mentioned or con- Edwin M. Stanton, to the same intent and effect sidered or referred to by this respondent, nor as if they were here repeated and set forth. in what he did say had he any intent regarding And this respondent, further answering the the same, and he denies the allegation so said eleventh article, denies that by means or made to the contrary thereof. But this re- reason of anything in said article alleged this spondent, in further answer to, and in respect respondent, as President of the United States, of, the said allegations of the said eleventh arti- did, on the 21st day of February, 1868, or at cle hereinbefore traversed and denied, claims any other day or time, commit, or that he was and insists upon his personal and official right guilty of, a high misdemeanor in office. of freedom of opinion and freedom of speech, And this respondent, further answering the and his duty in his political relations as Presi- said eleventh article, says that the same and dent of the United States to the people of the the ma.tters therein contained do not.charge United States in the exercise of such freedom of or allege the commission of any act whatever opinion and freedom of speech, in the same by this respondent, in his office of President manner, form, and effect as he has in this be- of the United States, nor the omission by this half stated the same in his answer to the said respondent of any act of official obligation or tenth article, and with the same effect as if he duty in his office of President of the United here repeated the same; and he further claims States; nor does the said article nor the matand insists, as in said answer to said tenth ters therein contained name,'designate, dearticle he has claimed and insisted, that he is scribe, or define any act or mode or form of not subject to question, inquisition, impeach- attempt, device, contrivance, or means, or of ment, or inculpation, in any form or manner, attempt at device, contrivance, or means,. of or concerning such rights of freedom of whereby this respondent can know or underopinion or freedom of speech or his said stand what act or mode or form of attempt,. alleged exercise thereof. device, contrivance, or means, or of attempt, And this respondent further denies that, on at device, contrivance, or means, are imputed the 21st day of February, in the year 1868, or to or charged against this respondent, in his, at any other time, at the city of Washington, office of President of the United States, or inin the District of Columbia, in pursuance of tended so to be, or whereby this respondent, any such declaration as is in tliat behalf in can more fully or definitely make answer unto said eleventh article alleged, or otherwise, he the said article than he hereby does. did unlawfully, and in disregard of the require- And this respondent, in submitting to this. ment of the Constitution that he should take honorable court this his answer to the articles care that the laws should be faithfully exe- of impeachment exhibited against him, respect, cuted, attempt to prevent the execution of an fully reserves leave to amend and add to the act entitled "An act regulating the tenure of same from time to time, as may become necescertain civil offices," passed March 2, 1867, sary or proper, and when and as such necesby unlawfully devising or contriving, or at- sity and propriety shall appear. tempting to devise or contrive, means by which ANDREW JOHNSON, he should prevent Edwin M. Stanton from HENRY STANBERY, forthwith resuming the functions of Secretary B. R. CURTIS, for the Department of War; or by unlawfully THOMAS A. R. NELSON, devising or contriving, or attempting to devise WILLIAM iM. EVARTS, or contrive, means to prevent the execution of W. S. GROESBECK, an act entitled "An act making appropriations Of Counsel. for the support of the Army for the fiscal year ending.June 30, 1868, and for other purposes," EXHIBIT A. approved March 2, 1867, or to prevent the Message, March 2,1867. execution of an act entitled "An act to provide for the more efficient government of the To the Senate of the United States: rebel States," passed March 2, 1867. I have carefully examined the bill'to regu. And this respondent, further answering the late the tenure of certain civil offices. The said eleventh article, says that he has, in his material portion of the bill is contained in the answer to the first article, set forth in detail first section, and is of the effect following, the acts, steps, and proceedings done and taken namely: by this respondent to and toward or in the That everyperson holding any civil office to which matter of the suspension or removal of the said he has been appointed by and with the advice and consent of the Senate, and every person who shall Edwin iM. Stanton in or from the office of hereafter be appointed to any such office, and shall Secretary for the Department of War, with the become duly qualified to act therein, is and shall be times, modes, circumstances, intents, views, entitled to hold such office until a successor shall have purposes, and opinions of official obligation and been appofnted by the Presidenate and duly qualified and that duty under and with which such acts, steps, the Secretaries of State, of the Treasury, of War, of C. I. —3. 34 the Navy, and of the Interior, the Postmaster Gen- was said, "a man becomes insane by the visitral, ancdthe Attorney General, shallhold their offices ation of God, and is likely to ruin our affairs: respectively for and duringthe term of the President the ands o by whomthey may have been appointed, andds of Government to be confined month thereafter, subject toremoval by and with the from warding off the evil? Suppose a person advice and consent of the Senate. in office not possessing the talents he was judged These provisions are qualified by a reserva- to have at the time of the appointment:. is the tion in the fourth section, " that nothing con- error not to be corrected? Suppose he acquire tained in the bill shall be construed to extend vicious habits and incurable indolence, or tothe term of any office the duration of which is tally neglect the duties of his office, which shall limited by law." In effect the bill provides work mischief to the public welfare: is there no that the President shall not remove from their wayto arrest the threatened danger? Suppose places any of the civil officers whose terms of he become odious and unpopular by reason service are not limited by law without the of the measures he pursues, and this he may advice and consent of the Senate of the United do without committing any positive offense States. The bill, in this respect, conflicts, in against the law: must he preserve his office in my judgment, with the Constitution of the despite of the popular will? Suppose him United States. The question, as Congress is grasping for his own aggrandizement and the well aware, is by no means a new one. That elevation of his connections by every means the power of removal is constitutionally vested short of the treason defined by the Constitution, in the President of the United States is a prin- hurrying your affairs to the precipice of deciple which has been not more distinctly de- struction, endangering your domestic tranquilclared by judicial authority and judicial corn- lity, plundering you of the means of defense, mentators than it has been uniformly practiced alienating the affections of your allies, and proupon by the legislative and executive depart- moting the spirit of discord: must the tardy, ments of the Government. The question arose tedious, desultory road, by way of impeachment, in the House of Representatives so early as the be traveled to overtake the man who, barely 16th day of June, 1789, on the bill for estab- confining himself within the letter of the law, lishing an executive Department, denominated is employed in " drawing off the vital principle "The Department of Foreign Affairs." The ofthe Government?" The nature ofthings, the first clause of the bill, after recapitulating the great objects of society, the express objects of functions of that officer and defining his duties, the Constitution itself require that this thing had these'words: "To be removable from should be otherwise. To unite the Senate with office by the President of the United States." the President " in the exercise of the power," It was moved to strike out these words, and it was said, " would involve us" in the most the motion was sustained with great ability and serious difficulty. "Suppose a discovery of vigor. It was insisted that the President could any of these events should take place when the not constitutionally exercise the power of re- Senate is not in session, how is the remedy to moval exclusive of the Senate; that the Fed- be applied? The evil could be avoided in no eralist so interpreted the Constitution when other way than by the Senate sitting always." arguing for its adoption by the several States; In regard to the danger of the power being that the Constitution had nowhere given the *abused if exercised by one man, it was said President power of removal, either expressly " that the danger is as great with respect to or by strong implication; but, on the contrary, the Senate, who are assembled from various had distinctly provided for removals from office parts of the continent, with different impresby impeachment only. A construction which sions and opinions;" that such a body is more denied the power of removal by the President likely to misuse the power of removal than the was further maintained by arguments drawn man whom the united voice of America calls from the danger of the abuse of' the power; to the presidential chair. As the nature of from the supposed tendency of an exposure of government requires the power of removal, it public officers to capricious removal, to impair was maintained "that it should be exercised the efficiency of the civil service; from the in this way by the hand capable of exerting alleged injustice and hardship of displacing itself with effect, and the power must be conincumbents, dependent upon their official sta- ferred on the President by the Constitution as tions, without sufficient consideration; from a the executive officer of the Government." supposed want of responsibilty on the part of Mr. Madison, whose adverse opinion in the the President, and from an imagined defect of Federalist had been relied upon by those who guarantees against a vicious President, who denied the exclusive power, now participated might incline to abuse the power. in the debate. He declared that he had reOn the other hand, an exclusive power of viewed his former opinions, and he summed removal by the President was defended as a up the whole case as follows: true exposition of the text of the Constitution. It was maintained that there are certain causes is" The Constituthe Presidentffrms Are there exceptions to for which persons ought to be removed from thisproposition? Yes,there are. TheConstitution office without being guilty of treason, bribery, says that in appointing to office the Senate shall be or malfeasance, and that the nature of things associated with the President, unless in the case of' or mandlfeasance, an that the nature of thingsinferior officers, when the law shall otherwise direct. demands that it should be so. "Suppose," it Have we (that is, Congress) a right to extend this 35 exception? I believe not. If the Constitution has appointment of a subordinate officer by the invested all executive power in the President, I return head of the Department,who should have charge to assert that the Legislature has no right to diminish or modify his executive authority. The question now of the records, books, and papers appertaining resolvesitselfintothis: is there powerofdisplacingan to the office when the head of the Department executive power? I conceive that if any power should be removed from office by the President whatever is in the Executive it is in the power of appointing, overseeing, and controlling those who of the United States. When the Navy Depart execute the laws. If the Constitution had not quali- ment was established,. in the year 1798, profled the power of the President in appointing to vision was made for the charge and custody office by associating the Senatewith him in that business, would it not be clear that he would have the of the books, records, and documents of the right by virtue of his executive power to make such Department in case of vacancy in the office of appointment? Should we be authorized, in defiance Secretary, by removal or otherwise. It is not of that clause in the Constitution-'the executive power shall be vested in the President'-to unite the here said "by removal of the President," as it senate with the President in the appointment to is done with respect to the heads of the other office? I conceive not. It is admitted that we should Departments; yet there can be no doubt that not be authorized to do this. I think it may be disputed whether we have a right to associate them in he holds his office with the same tenure as the removing persons from office, the one power being as other Secretaries, and is removable by the much of an executive nature as the other; and the President The change of phraseoogy arose first is authorized by being excepted out of the general rule established by the Constitution in these probably from its having become the settled words:'The executive power shall be vested in the and well-understood construction of the ConPresident."' stitution that the power of removal was vested The question thus ably and exhaustively in the President alone in such cases, although argued was decided by the House'of Repre- the appointment of the officer is by the Presisentatives, by a vote of 34 to 20, in favor of dent and Senate. (13 Peters, page 139.) the principle that the executive power of re- Our most distinguished and accepted commoval is vested by the Constitution in the mentators upon the Constitution concur in the Executive, and in the Senate by the casting construction thus early given by Congress, and vote of the Vice President. The question has thus sanctioned by the Supreme Court. After often been raised in subsequent times of high a full analysis of the congressional debate to excitement, and the practice of the Govern- which I have referred, Mr. Justice Story comes ment has nevertheless conformed in all cases to this conclusion: to the decision thus early made. "After a most animated discussion, the vote finally The question was revived during the admin- taken in the House oflRepresentatives was affirmative istration of President Jaclkson, who made, as of the power of removal in the President without any coioperation of the Senate by the vote of 34 members is well recollected, a very large number of re- co a In the Senateb the cause in the bill afimrmmovals, which were made an occasion of close ing the power was carried by the casting vote of the and rigorous scrutiny and r emonstrance. The Vice President. That the final decision of this quesubject was long and earnestly debated in the tion so made was greatly influenced by the exalted,subject was long and earnestly debated in the character of the President then in office was asserted Senate, and the early construction of the Con- at the time, and has always been believed; yet the stitution was nevertheless freely accepted as doctrine was opposed as well as supported by the highest talent and patriotism of the country. The binding and conclusive upon Congress. public have acquiesced in this decision, and it conThe question came before the Supreme Court stitutes perhaps the most extraordinary case in the of the United States in January, 1839, ex parte history of the-Governmentof a power conferred by Herren. It was declared by the court on that implication on theaExecutive by the assent of a bare majority of Congress which has not been questioned occasion that the power of removal from office on many other occasions." was a subject much disputed, and upon which The commentator adds: a great diversity of opinion was entertained in "Nor is this general acquiescence and silence withthe early history of the Government. This out a satisfactory explanation." related, however, to the power of the President Chancellor Kent's remarks on the subject to remove officers appointed with the concur- are as follows: " On the first organization of rence of the Senate, and the great question was the Government it was made a question whether whether the removal was to be by the President the power of removal ini case of officers apalone or with the concurrence of the Senate, pointed to hold at pleasure resided nowhere both constituting the appointing power. No but in the body which appointed," and, of one denied the power of the President and course, whether the consent of the Senate was Senate jointly to remove where the tenure of not requisite to remove. This was the conthe office was not fixed by the Constitution, struction given to the Constitution while it was which was a full recognition of the principle pending for ratification before the State conthat the power of removal was incident to the ventions by the author of the Federalist. But power of appointment; but it was very early the construction which was given to the Conadopted as a practical construction of the Con- stitution by Congress after great consideration stitution that this power was vested in the and discussionwasdifferent. Thewordsofthe President alone, and such would appear to act (establishing the Treasury Department) have been the legislative construction of the are, "and whenever the same shall be removed Constitution, for in the organization of the from office by the President of the United three great Departments of State, War, and States, or in any case of vacancy in the office, Treasury, in 1789, provision was made for the the assistant shall act." This amounted to a 36 legislative construction of the Constitution, and hension among the American people themit has ever since been acquiesced in and acted selves. A trial of nearly eighty years, through upon as a decisive authority in the case. the vicissitudes of foreign conflicts and of civil It applies equally to every other officer of war, is confidently regarded as having extinthe Government appointed by the President guished all such doubts and apprehensions for whose term of duration is not specially declared. the future. During that eighty years the peoIt is supported by the weighty reason that the pie of the United States have enjoyed a meassubordinate officers in the executive depart- ure of security, peace, prosperity, and happiment ought to hold at the pleasure of the head ness never surpassed by any nation. It cannot of the department, because he is invested gen- be doubted that the triumphant success of the erally with the executive authority, and the Constitution is due to the wonderful wisdom participation in that authority by the Senate with which the functions of government were was an exception to a general principle, and distributed between the three principal departought to be taken strictly. The President is ments-the legislative, the executive, and the the great responsible officer for the execution judicial-and to the fidelity with which each of the law, and the power of removal was inci- has confined itself or been confined by the gendental to that duty, and might often be requi- eral voice of the nation within its peculiar and site to fulfill it. Thus has the important ques- proper sphere. tion presented by this bill been settled, in the While a just, proper, and watchful jealousy language of the late Daniel Webster, (who, of executive power constantly prevails, as it while dissenting from it, admitted that it was ought ever to prevail, yet it is equally true settled,) by construction, settled by the prac- that an efficient Executive, capable, in the lantice of the Government, and settled by statute. guage of the oath prescribed to the President, The events of the last war furnished a practi- of executing the laws within the sphere of cal confirmation of the wisdom of the Consti- executive action, of preserving, protecting, and tution as it has hitherto been maintained in defending the Constitution of the United States, many of its parts, including that which is now is an indispensable security for tranquillity at the subject of consideration. When the war home, and peace, honor, and safety abroad. broke out rebel enemies, traitors, abettors, and Governments have been erected in many counsympathisers were found in every department tries upon our model. If one or many of them of the Government, as well in the civil service have thus far failed in fully securing to their as in the land and naval military service. They people the benefits which we have derived from were found in Congress and among the keepers our system, it may be confidently asserted that of the Capitol, in foreign missions, in each and their misfortune has resulted from their unforall of the Executive Departments, in the judi- tunate failure to maintain the integrity of each cial service, in the Post Office, and among the of the three great departments while preserving agents for conducting Indian affairs, and upon harmony among them all. probable suspicion they were promptly dis- Having at an early period accepted the Conplaced by my predecessor, so far as they held stitution in regard to the executive office in their offices under executive authority, and the sense to which it was interpreted with the their duties were confided to new and loyal concurrence of its founders, I have found no successors. No complaints against that power sufficientgroundsin the arguments now opposed or doubts of its wisdom were entertained in to that construction or in any assumed necesany quarter. I sincerely trust and believe that sity of the times for changing those opinions. no such civil war is likely to occur again. I For these reasons I return the bill to the Sencannot doubt, however, that in whatever form ate, in which House it originated, for the furand, on whatever occasion sedition can rise, ther consideration of Congress, which the Conan effort to hinder or embarrass or defeat the stitution prescribes. Insomuch as the several legitimate action of this Government, whether parts of the bill which I have not considered by preventing the collection of revenue or dis- are matters chiefly of detail, and are based altoturbing the public peace, or separating the gether upon the theory of the Constitution from States, or betraying the country to a foreign which I' am obliged to dissent, I have not enemy, the power of removal from office by thought it necessary to examine them with a the Executive, as it has heretofore existed and view to make them an occasion of distinct and been practiced, will be found indispensable. special objections. Experience, I think, has.Under these circumstances, as a depository of shown that it is the easiest, as it is also the the executive authority of the nation2 I do not most attractive, of studies to frame constitufeel at liberty to unite with Congress in revers- tions for the self-government of free States ing it by giving my approval of the bill. and nations. At the early day when the question was set- But I think experience has equally shown tled, and, indeed, at the several periods when that it is the most difficult of all political labors it has subsequently been agitated, the success to preserve and maintain such free constituof the Constitution of the United States as a tions of self-government when once happily new and peculiar system of free representative established. I know no other way in which government was held doubtful in other coun- they can be preserved and maintained except tries, and was even a subject of patriotic appre- by a constant adherence to them through the 37 various vicissitudes of national existence, with appointment, I have no alternative but to submit, such adaptations as may become necessary, under protest, to superior force. always to be effected, however, through e To the PRESIDENT. agencies and in the forms prescribed in the The suspension has not been revoked, aund original constitutions themselves. Whenever the business of the War Department is conadministration fails or seems to fail in securing ducted by the Secretary ad interim. Prior to any of the great ends for which republican the date of this suspension I had come to the government is established, the proper course conclusion that the time had. arrived when it seems to be to renew the original spirit and was proper Mr. Stanton should retire from my forms of the Constitution itself. Cabinet. The mutual confidence and general ANDREW JOHNSON. accord which should exist in such a relation WASHINGTON, March 2, 1867. had ceased. I supposed that Mr. Stanton was well advised that his continuance in the Cabinet EXHIBIT B. was contrary to my wishes, for I had repeatedly given him so to understand by every mode Message to the Senate, December 12, 1867. short of an express request that he should reTo the Senate of the United States: sign. Having waited full time for the volunOn the 12th of August last I suspended Mr. tary action of Mr. Stanton, and seeing no Stanton from the exercise of the office of Sec- manifestation on his part of an intention to retary of War, and on the same day designated resign, I addressed him the following note on General Grant to act as Secretary of War ad the 5th of August: interim. SIR: Public considerations of a high character conThe following are copies of the Executive strain me to say that your resignation as Secretary of War will be accepted. orders: orders: MANSION, To this note I received the following reply: EXECUTIVE MANSION,WAR DEPARTMENT i WASHINGTON, August 12,1867. W AR HINGT EPART 5ENT, SIR: By virtue of the power and authority vested in me, as President, by the Constitution and the laws SIR: Your note of this day has been receivedof the United States, you are hereby suspended from stating that public considerations of a high characoffice as Secretary of War, and will cease to exercise ter constrain you to say that my resignation as Secany and all functions pertaining to the same. rtary of War will be accepted. You will at once transfer to General Ulysses S. In reply, I have the honor to say that public conGrant, who has this day been authorized and empow- siderations of a high character, which alone have ered to act as Secretary of War ad interim, all rec- nduced m to continue at thead of this Departord, boos, papers, and other public property now ment, constrain me not to resign the office of Secrerds, books, paperstody and other tary of War before the next meeting of Congress. in your custody and charge. EDWIN M. STANTON, lion. EDWIN M. STANTON, Secretary of War. Secretary of WTar. EXECUTIVE MANSION,. This reply of Mr. Stanton was not merely a WASHINGTON, D. C., August 12, 1867. declination of compliance with the request for SIR: Hon. Edwin M. Stantonhaving been this day his resignation; it was a defiance, and somesuspended as Secretary of War, you are hereby au- thing more. Mr. Stanton does not content thorized and empowered to act as Secretary of War himself with assuming that public considera ad interim, and will atonce enter upon the discharge himself with assuming that public consideraof the duties of the office. tions bearing upon his continuance in office The Secretary of War has been instructed to trans- form as fully a rule of action for himself as for fer to you all the records, books, papers, and other the President, and that upon so delicate a public property now in. his custody and charge.licate a General ULYSSES S. GRANT, Washington, D. C. question as the fitness of an officer for continThe following communication was received uance in his office, the officer is as competent from Mr. Stanton: and as impartial to decide as his superior who is responsible for his conduct; but he goes WARASHING DEPARTMENT, further and plainly intimates what he means by WASHINGTON CITY, August 12,1867. SIR: Your note of this date has been received in- public considerations of a high character;" forming me that by virtue of the powers and authority and this is nothing less than his loss of confivestecd"in you as President, by the Constitution and dence in his superior. He says that these publaws of the United States, I am sease o exercise any lie considerations have " alone induced nme to as Secretary of War, and will cease to exercise any and all functions pertaining to the same; and also continue at the head of this Department," and directing me at once to transfer to General Ulysses that they "constrain me not to resign the office S. Grant, who has this day been authorized and em- of Secretary of War before the next meeting powered to act as Secretary of War ad interim, allore the next eetn records, books, papers, and other public property of Congress." now in my custody and charge. This language is very significant. Mr. StanUnder a sense of public duty I am compelled to tonholdsthepositionunwillingly. He contindeny your right, under the Constitution and laws of the United States,without the advice and consent of ues in office only under a sense of high public the Senate, and without legal cause, to suspend me duty. He is ready to leave when it is safe to from office of Secretary of War, or the exercise of leave, and as the anger he apprehends from any or all functions pertaining to the same, or without such advice and consent to compel me to transfer his removal then will not exist when Congress to any person the records, books, papers, and public is here, he is constrained to remain during the property in mycust as e enretary. anding the interim. What, then, is that danger which can But, inasmuch as the General commanding the armies of the United States has been appointed ad only be averted by the presence of Mr. Staninterim, and has notified me that hehas accepted the ton or of Congress? Mr. Stanton does not say 38 that " public considerations of a high charac- It will not escape attention that in his note ter" constrain him to hold on to the office in- of August 5 Mr. Stanton stated that he had definitely. He does not say that no one other been constrained to continue in the office, even than himself can at any time be found to before he was requested to resign, by considtake his place and perform its duties. On the erations of a high public character. In this contrary, he expresses a desire to leave the office note of August 12 a new and different sense at the earliest moment consistent with these of public duty compels him to deny the Presihigh public considerations. He says in effect dent's right to suspend him from office without that while Congress is away he must remain,- the consent of the Senate. This last is the but that when Congress is here he can go. In public duty of resisting an act contrary to law, other words he has lost confidence in the Presi- and he charges the President with violation dent. He is unwilling to leave the War De- of the law in ordering his suspension. partment in his hands, or in the hands of any Mr. Stanton refers generally to the "Conone the President may appoint or designate to stitution and laws of the United States," and perform its duties. If he resigns, the President says that a sense of public duty " under" these may appoint a Secretary of War that Mr. Stan- compels him to deny the right of the President toin does not approve. Therefore, he will not to suspend him from office. As to his sense resign. But when Congress is in session the of duty under the Constitution, that will be President cannot appoint a Secretary of War considered in the sequel. As to his sense of which the Senate does not approve. Conse- duty under "the laws of the United States," quently, when Congress meets Mr. Stanton is he certainly cannot refer to the law which ready to resign. creates the War Department, for that expressly Whatever cogency these I" considerations" confers upon the President the unlimited right may have had upon 5Mr. Stanton, whatever to remove the head of the Department. The right he may have had to entertain such con- only other law bearing upon the question is the siderations, whatever propriety there might be tenure-of-office act, passed by Congress over in the expression of them to others, one thing the presidential veto, March 2, 1867. This is is certain —it was official misconduct, to say the the law which, under a sense of public duty, least of it, to parade them before his superior Mr. Stanton volunteers to defend. There is officer. Upon the receipt of this extraordinary no provision in this law which compels any note I only delayed the order of suspension officer coming within its provisions to remain in long enough to make the necessary arrange- office. Itforbidsremovals, butnot resignations. ments to fill the office. If this were the only Mr. Stanton was perfectly free to resign at any cause for his suspension it would be ample. moment, either upon his own motion, or in Necessarily it must end our most important compliancewith a request or an order. Itwasa official relations, for I cannot imagine a degree matter of choice or of taste. There was nothing of effrontery which would embolden the head compulsory in the nature of legal obligation. of a Department to take his seat at the coun- Nor does he put his action upon that imperacil table in the Executive Mansion after such tive ground. He says he acts under a " sense an act. Nor can I imagine a President so for- of public duty," not of legal obligation, comgetful of the proper respect and dignity which pelling him to hold on, and leaving him no belong to his office as to submit to such intru- choice. The public duty which is upon him sion. I will not do Mr. Stanton the wrong to arises from the respect which he owes to the suppose that he entertained any idea of offer- Constitution and the laws, violated in his own ing to act as one of my constitutional advisers case. He is, therefore, compelled by this after that note was written. There was an sense of public duty to vindicate violated law interval of a week between that date and the and to stand as its champion. order of suspension, during which two Cabinet This was not the first occasion in which Mr. meetings were held. Mr. Stanton did not pre- Stanton, in discharge of a public duty, was sent himself at either, nor was he expected. called upon to consider the provisions of that On the 12th of August Mr. Stanton was noti- law. That tenure-of-office law did not pass fied of his suspension and that General Grant without notice. Like other acts it was sent to had been authorized to take charge of the the President for approval. As is mycustom, Department. In his answer to this notifica- I submitted its consideration to my Cabinet for tion, of the same date, Mr. Stanton expresses theiradvice upon the question, whether Ishould himself as follows: approve it or not. It was a grave question of " Under a sense of public duty I am compelled to constitutional law, in which I would of course deny your right, under the Constitution and laws f rely most upon the opinion of the Attorney the United States, without the advice and consent neral and of Mr. Stanto of the Senate, to suspend me from office as Secretary of War or the exercise of any orall functions pertain- been Attorney General. Every member of my ing to the same, or without such advice and consent Cabinet advised me that the proposed law was to compel me to transfer to any person the records, books, papers, and public property in my custody as unconstitutional. All spoke without doubt or Secretary. But inasmuch as the General command- reservation, but Mr. Stanton's condemnation ing the armies of the United States has been ap- of the law was the most elaborate and emphatic. pointed ad interim, and has notified me that he has He referred to th accepted the appointment, I have no alternative but He referred to the constitutional provisions, the to submit, under protest, to superior force." debates in Congress-especially to the speech 39 of Mr. Buchanan, when a Senator-to the de- imposed, and there was yet time to make any cisions of the Supreme Court, and to the usage changes. If any one of these gentlemen had from the beginning of the Government through then said to me that he would avail himself of every successive Administration, all concurring the provisions of that bill in case it became a to establish the right of removal, as vested by law, I should not have hesitated a moment as the Constitution in the President. To all these to his removal. No pledge was then expressly he added the weight of his own deliberate judg- given orrequired. But there are circumstances ment, and advised me that it was my duty to when to give an express pledge is not necessary, defend the power of the President from usurp- and when to require it is an imputation of posation and to veto the law. sible bad faith. I felt that-if these gentlemen I do not know when a sense of public duty came within the purview of the bill it was, as is more imperative upon a head of Department to them, a dead letter, and that none of them than upon such an occasion as this. He acts would ever take refuge under its provisions. I then under the gravest obligations of law; now pass to another subject. When, on the for when he is called upon by the President 15th of April, 1865, the duties of the presidenfor advice it is the Constitution which speaks tial office devolved upon me, I found a full to him. All his other duties are left by the Cabinet of seven members, all of them selected Constitution to be regulated by statute; but by Mr. Lincoln. I made no change. On the this duty was deemed so momentous that it is contrary, I shortly afterward ratified a change imposed by the Constitution itself. After all determined upon by Mr. Lincoln, but not perthis I was not prepared for the ground taken fected at his death, and admitted his appointee, by Mr. Stanton in his note of August 12. I Mr. Harlan, in the place of Mr. Usher, who was not prepared to find him compelled, by a was in office at the time. new and indefinite sense of public duty under The great duty of the time was to reestab"the Constitution," to assume the vindica- lish government, law, and order in the insurtion of a law which, under the solemnl obliga- rectionary States. Congress was then in retions of public duty, imposed by the Constitu- cess, and the sudden overthrow of the rebellion tion itself, he advised me was a violation of required speedyaction. Thisgravesubjecthad that Constitution. I make great allowance for engaged the attention of Mr. Lincoln in the a change of opinion, but such a change as this last days of his life, and the plan according to hardly falls within the limits of greatest indul- which it was to be managed had been pregence. Where our opinions take the shape of pared and was ready for adoption. A leadadvice and influence the action of others the ing feature of that plan was that it should be utmost stretch of charity will scarcely justify carried out by the executive authority, for, so us in repudiating them when they come to be far as I have been informed, neither Mr. Linapplied to ourselves. coln nor any member of his Cabinet doubted But to proceed with the narrative. I was his authority to act or proposed to call an extra so much struck with the full mastery of the session of Congress to do the work. The question manifested by Mr. Stanton, and was first business transacted in Cabinet after I beat the time so fully occupied with the prepar- came President was this unfinished business of ation of another veto upon the pending recon- my predecessor. A plan or scheme of reconstruction act, that I requested him to prepare struction was produced which had been prethe veto upon this tenure-of-office bill. This pared for Mr. Lincoln by Mr. Stanton, his he declined on the ground of physical disability Secretary of War. It was approved, and, at to undergo, at the time, the labor of writing, the earliest moment practicable, was applied but stated his readiness to furnish what aid in the form of a proclamation to the State of might be required in the preparation of mate- North Carolina, and afterward became the rials for the paper. At the time this subject basis of action in turn for the other States. was before the Cabinet it seemed to be taken Upon the examination of Mr. Stanton befor grantedtthat as to those members of the fore the impeachment committee he was asked Cabinet who had been appointed by Mr. Lin- the following question: coin their tenure of office was not fixed by the " Did anyone of the Cabinet express a doubt of the provisions of the act. I do not remember that power of the executive branch of the Government to reorganize State governments which had been in the' point was distinctly decided; but I well rebellion without the aid of Congress?" recollect that it was suggested by one member He answered: of the Cabinet who was appointed by Mr. Lin- "None whatever. I had myself entertained no coln, and that no dissent was expressed. doubt of thoauthority of the President to take measWhether the point was well taken or not did ures for the organization of the rebel States on the Whether the pof any onsequlence, for nthe'plan proposed during the vacation of Congress, and not seem to me of any consequence, for the agreed in the plan specified in the proclamation in unanimous expression of opinion against the the case of North Carolina." constitutionality and policy of the act was so There is, perhaps, no act of my administradecided that I felt no concern, so far as the act tion for which I have been more denounced had reference to the gentlemen then present, than this. It was not originated by me; but that I would be embarrassed in the future. The I shrink from no responsibility on that account, bill had not then become a law. The limita- forthe planapproveditself tomyownjudgment, tion upon the power of removal was not yet and I did not hesitate to carry it into execution. 40 Thus far, and upon this vital policy, there was of the effort made to fix that responsibility on perfect accord between the Cabinet and myself, the President. The charge was openly made, and I saw no necessity for a change. As time and again and again reiterated through all the passed on there was developed an unfortunate land, that the President was warned in time difference of opinion and of policy between Con- but refused to interfere. gress and the President upon this same subject By telegrams from the lieutenant governor and upon the ultimate basis upon which the and attorney general of Louisiana, dated the reconstruction of these States should proceed, 27th and 28th of August, I was advised that especially upon the question of negro suffrage. a body of delegates, claiming to be a constiUpon this point three members of the Cabinet tutional convention, were about to assemble found themselves to be in sympathy with Con- in New Orleans; that the matter was before gress. They remained only long enough to see the grand jury, but that it would be impossible that the difference of policy could not be rec- to execute civil process without a riot, and this onciled. They felt that they should remain question was asked: "Is the military to interno longer, and a high sense of duty and pro- fere to prevent process of court?" This quespriety constrained them to resign their posi- tion was asked at a time when the civil courts tions. We parted with mutual respect for the were in the full exercise of their authority, and sincerity of each other in opposite opinions, the answer sent by telegraph, on the same and mutual regret that the difference was on 28th of August, was this: points so vital as to require a severance of "The military will be expected to sustain, and not official relations. This ywas in the summer of to interfere with the proceedings of the courts." 1866. The subsequent sessions of Congress On the same 28th of August the following developed new complications when the suffrage telegram was sent to Mr. Stanton by Major bill for the District of Columbia and the recon- General Baird, then (owing to the absence of struction acts of March 2 and March 23, 1867, General Sheridan) in command of the military all passed over the veto. It was in Cabinet at New Orleans: consultations upon these bills that a difference Hon. EDWIN M. STANTON, Secretary of War: of opinion upon.the most vital points was A convention has been called with the sanction of developed. Upon these questions there was Governor Wells, to meet here on Monday. The Lieudeveloped. Upon thesequsttenant Governor and city authorities think it unperfect accord between all the members of the lawful, and propose to break it up by arresting the Cabinet and myself, except Mr. Stanton. He delegates. I have given no orders on the subject, stood alone, and the difference of opinion but have warned the parties that I could not counopinion tenance or permit such action without instructions could not be reconciled. That unity of opin- to that effect from the President. Please instructme ion which upon great questions of public at once by telegraph. policy or administration is so essential to the The 28th of August was on Saturday. The Executive was gone. next morning, the 29th, this dispatch was reI do not claim that the head of a Depart- ceived by Mr. Stanton at his residence in this ment should have no other opinions than those city. He took no action upon it, and neither of the President. He has the same right, in sent instructions to General Baird himself nor the conscientious discharge of duty, to enter- presented it to me for such instructions. On tain and express his own opinions as has the the next day (Monday) the riot occurred. I President. What I do claim is that the Presi- never saw this dispatch from General Baird dent is the responsible head of the Administra- until some ten days or two weeks after the riot, tion, and when the opinions of a head of De- when, upon my call for all the dispatches, with pa.rtment are irreconcilably opposed to those a view to their publication, Mr. Stanton sent of the President in grave matters of policy it to me. These facts all appear in the testiand administration there is but one result mony of Mr. Stanton before the Judiciary Comwhich can solve the difficulty, and that is a mittee in the impeachment investigation. On severance of the official relation. This, in the the 30th, the day of the riot, and after it was past history of the Government, has always suppressed, General Baird wrote lo Mr. Stanbeen the rule; and it is a wise one; for such ton a long letter from which I make the followdifferences of opinion among its members must ing extracts: impair the efficiency of any Administration. "SIP: I have the honor to inform you that a very I have now referred to the general grounds serious riot occurred here to-day. I had not been upon which the withdrawal of Mr. Stanton from applied to by the convention for protection, but the administration seemed to me to be proper Lieutenant Governor and the mayor had freely conmy administration seemed to me to be proper suited with me, and I was so fully convinced that it and necessary; but I cannot omit to state a was so strongly the intent of the city authorities to special ground which, if it stood alone, would preserve the peace, in order to prevent military inXvindicate my action. terference, that I did regard an outbreak as a thing to vindicate my action. be apprehended. The Lieutenant Governor had asThe sanguinary riot which occurred in the sured me that even if a writ of arrestwasissued by the city of New Orleans on the 30th of August, courtthe sheriff would not attemptto serve it without 1866. justly aroused public indignation and eiio, and for to-day they designed to sus1866, justly aroused public indignation a Pend nit. I inclose herewith copies of mycorrespondpublic inquiry. not only as to those who were encewiththe mayorandofadispatch which theLieuengaged in it but as to those who, more or less tenant Governor claims to have received from the President. I regret that no reply to my dispatch to remotely, might be held to responsibility for you of Saturday has yet reached me. General Sherits occurrence. I need not remind the Senate idan is still absent in Texas." 41 The dispatch of General Baird of the 28th called the Secretary for the Department of War, asks for immediate instructions, and his letter who shall perform and execute such duties as shall of the 30th, after detailing the terrible riot from time to time be enjoined on or intrusted to him by the President of the United'States;" which had just happened, ends with the ex- and furthermore, pression of regret that the instructions which and furthermore, he asked for were not sent. It is not the fault "the said principal officer shall conduct the business of the said Department in such manner as the Presor the error or the omission o~ the President ident of the United States shall from time to time that this military commander was left without order and instruct." instructions; but for allomissions, for all errors, Provision is'also made for the appointment for all failures to instruct, when instruction of an inferior officer by the head of the Demight have averted this calamity, the President partment, to be called the chief clerk, "who, was openly and persistently held responsible. whenever said principal officer shall be removed Instantly, without waiting for proof, the delin- from office by the President of the United quency of the President was heralded in every States," shall have the charge and custody form of utterance. Mr. Stanton knew then of the books, records, and papers of the that the President was not responsible for this Department. delinquency. The exculpation was in his The legal relation is analogous to that of power, but it was not given by him to the pub- principal and agent. It is the President upon lic, and only to the President in obedience to whom the Constitution devolves, as head of the a requisition for all the dispatches. executive department, the duty to see that No one regrets more than myself that Gen- the laws are faithfully executed; but as he caneral Baird's request was not brought to my not execute them in person he is allowed to notice. It is clear, from his dispatch and select his agents, and is made responsible for letter, that if the Secretary of War had given their acts within just limits. So complete is him proper instructions the riot which arose this presumed delegation of authority in the reon the assembling of the convention would lation of a head of Department to the Presihave been averted. There may be those ready dent that the Supreme Court of the United to say that I would have given no instructions States have decided that an order made by a even if the dispatch had reached me in time; head of Department is presumed to be made but all must admit that I ought to have had the by the President himself. opportunity. The principal, upon whom such responsibilThe following is the testimony given by Mr. ity is placed for the acts of a subordinate, ought Stanton before the impeachment investigation to be left as free as possible in the matter of committee as to the dispatch: selection and of dismissal. To hold him to re" Question. Referring to the dispatch of the 28th of sponsibility for an officer beyond his control; July by General Baird, I ask you wrhether that dis- to leave the question of the fitness of such an patch, on its receipt, was communicated? "Answer. I received that dispatch on Sundayfore- agent to be decided for him and not by him; to noon; I examined it carefully and considered the allow such a subordinate, when the President, question presented; I did not see that I could give moved by "public considerations of a high any instructions different from the line of action which General Baird proposed, and made no answer character," requests his resignation to asto the dispatch. sume for himself an equal right to act upon his; Question, I see it stated that this was received at own views of " public considerations," and to ten'clock and twenty minutes p. m. Was that the hour at which it was received by you? make his own conclusions paramount to those "Answer. That is the date of its reception in the of the President-to allow all this is to reverse telegraph office Saturday night. I received it on the just der of Admstratio, and to place Sunday forenoon, at my residence; a copy of theAdministration and to place dispatch was furnished to the President several days the subordinate above the superior. afterward, along with all the other dispatches and There are, however, other relations between communications on that subject, but it was not fur- the President and a head of Department benished by me before that time; I suppose it may have the President and a head of Department bebeen ten or fifteen days afterward. yond these defined legal relations which neces"Question. The President himself being in corres- sarily attend them, though notexpressed. Chief pondeuce with those parties upon the same subject,e is mutual confidence. This relawould it not have been proper to have advised him among these is mutual confidence. of the reception of that dispatch? tion is so delicate that itis sometimes hard to say "Answer. I know nothing about his correspond- when or how it ceases. A single flagrant act except this one disp atch. Wehadintelligresondence may aid it at once, and then there is no diffiriot on Thursday morning. The riot had taken place culty. But confidence may be just as effectually on Monday." destroyed by a series of causes too subtle for It is a difficult matter to define all the rela- demonstration. As it is a plantof slowgrowth, tions which exist between the heads of Depart- so, too, it may be slow in decay, Such has been ment and the President. The legal relations the process here. I will not pretend to say are well enough defined. The Constitution what acts or omissions have broken up this places these officers in the relation of his ad- relation. They are hardly susceptible of statevisers when he calls upon them for advice. ment, and still less of formal proof. NeverThe acts of Congress go further. Take, for theless no one can read the correspondence of example, the act of 1789, creating the War the 5th of August without being convinced that Department. It provides that- this relation was effectually gone on both sides, "There shall be a principal officer therein, to be and that, while the President was unwilling to 42 allow Mr. Stanton to remain in his administra- EXHIBIT C. tion, Mr. Stanton was equally unwilling to Address to the President by Hon. Reverdy allow the President to carry on his administration without his presence. In the great debate Johnson, August 18, 1866. which took place in the House of Representa- Mr. PRESIDENT: We are before you as a tives in 1789, on the first organization of the committee of the National Union Convention, principal Departments, Mr. Madison spoke as which met in Philadelphia, on Tuesday, the 14th follows: instant, charged with the duty of presenting "It is evidently the intention of the Constitution you with an authentic copy of its proceedings. that the First Magistrate should be responsible for Before placing it in your hands, you will the executive department. So far, therefore, as we permit us to congratulate you that in the do not make the officers who are to aid him in theion was called, in duties of that department responsible to him, he is not responsible to the country. Again, is there no the enthusiasm with which in every State and danger that an officer, when he is appointed by the Territory the call was responded to, in the unconcurrence of the Senate, and his friends in that broken harmonyf its deliberatios, in the body, may choose rather to risk his establishment onts deliberations, the favor of that branch than rest it upon the dis- unanimity with which the principles it has flecharge of his duties to the satisfaction of the execu- dared were adopted, and more especially in tive branch, which is constitutionally authorized to th inspect and control his conduct? And if it should the patriotic and constitutional character of the happen that the officers connect themselves with the principles themselves, we are confidentthat you Senate, they may mutually support each other, and and the country will find-gratifying and cheering for want of efficacy, reduce the power of the President evidence that there exists among the people a to a mere vapor, in which case his responsibility would be annihilated, and the expectation of it is public sentiment which renders an early and unjust. The high executive officers joined in cabal complete restoration of the Union as estabwith the Senate would lay the foundation of discord, lished by the Constitution certain and iuevitand end in an assumption of the executive power, only to be removed by a revolution of the Govern- able. Party faction, seeking the continuance ment." of its misrule, may momentarily delay it, but Mr. Sedgwick, in the same debate, referring the principles of political liberty, for which to the proposition that a head of Department our fathers successfully contended, and to should only be removed or suspended by the secure which they adopted the Constitution, concurrence of the Senate, uses this language: are so glaringly inconsistent with the condition " But if proof be necessary, what is then the conse- in which the country has been placed by such quence? Why, in nine cases out of ten, where the misrule, that it will not be permitted a much case is very clear to the mind of the President that longer duration. the man ought to be removed, the effect cannot be e wish, Mr President, you could have produced, because it is absolutely impossible to pro- We wish,. President, you ould have duce the necessary evidence. Are the Senate to pro- witnessed the spirit of concord and brotherly ceed without evidence? Some gentlemen contend affection which animated every member of the not. Then the object will be lost. Shall a man, convention. Great as your confidence has under these circumstances, be saddled upon thePresident, who has been appointed for no other purpose ever been in the intelligence and patriotism of but to aid the President in performing certain du- your fellow-citizens, in their deep devotion to ties? Shall he be continued, I ask again, againstthe the will of the President? If he is, where is the respon- the Union, and their present determination to sibility? Are you to look for it in the President, who reinstate and maintain it, that confidence would has no control over the officer, no power to remove have become a positive conviction could you him if he acts unfeelingly or unfaithfully? With- have seen and heard all that was done and said out you make him responsible, you weaken and destroy the strength and beauty of your system. What upon the occasion. Every heart was evidently is to be done in cases which can only be known from full of joy, every eye beamed with patriotic a long acquaintancewith the conduct of an officer?" animation; despondency gave place to the asI had indulged the hope that upon the as- surancethat, ourlate dreadful civil strife ended, sembling of Congress Mr. Stanton would have the blissful reign of peace, under the protection ended this unpleasant complication according not of arms, but of the Constitution and laws, to the intimation given in his note of August would have sway, and be in every part of our 12. The duty which I have felt myself called land cheerfully acknowledged and in perfect upon to perform was by no means agreeable; good faith obeyed. You would not have doubted but I feel that I am not responsible for the thattherecurrence ofdangerous domestic insurcontroversy, or for the consequences. rections in the future is not to be apprehended. Unpleasant as this necessary change in my If you could have seen the men of MassaCabinet has been to me, upon personal con- chusetts and South Carolina coming into the siderations, I have the consolation to be as- convention on the first day of its meeting hand sured that, so far as the public interests are in hand, amid the rapturous applause of the involved, there is no cause for regret. Salu- whole body, awakened by heart-felt gratificatary reforms have been introduced by the Sec- tion at the event, filling the eyes of thousands retary ad interim, and great reductions of ex- with tears of joy, which they neither could nor penses have been effected under his adminis- desired to repress, you would have felt as every tration of its War Department, to the saving person present felt, that the time had arrived of millions to the Treasury. when all sectional or other perilous dissensions ANDREW JOHNSON. had ceased, and that nothing should be heard WASHINGTON, December 12, 1867. in the future but thevoice of harmony proclaim 43 ing devotion to a common country, of pride in sented. while subjecting their people to every being bound together by a common Union, species of legislation, including that of taxaexisting and protected by forms of government tion. That such a state of things is at war proved by experience to be eminently fitted with the very genius of our Government, inconfor the exigencies of either war or peace. sistent with every idea of political freedom, In the principles announced by thb conven- and most perilous to the peace and safety of thr tion and in the feeling there manifested, we country, no reflecting man can fail to believe. have every assurance that harmony through- We hope, sir, that the proceedings of the out our entire land will soon prevail. We know convention will cause you to adhere, if possithat, as in former days, as was eloquently de- ble, with even greater firmness to the course dared by Webster, the nation's most gifted which you are pursuing, by satisfying you that statesman, Massachusetts and South Carolina the people are with you, and that the wish went "shoulder to shoulder through the Rev- which lies nearest to their heart is that a perolution," and stood hand in hand i' around the feet restoration of our Union at the earliest administration of Washington, and felt his moment be attained, and a conviction that the own great arm lean on them for support," so result can only be accomplished by the measwill they again, with like magnanimity, devo- ures which you are pursuing. And in the distion, and power stand round your Adminis- charge of the duties which these impose upon tration, and cause you to feel that you may you we, as did every member of the convenalso lean on them for support. tion, again for ourselves individually tender In the proceedings, Mr. President, which to you our profound respect and assurance of we are to place in your hands, you will find our cordial and sincere support. that the convention performed the grateful duty With a reunited Union, with no foot but that imposed upon them by their knowledge of your of a freeman treading or permitted to tread "devotion to the Constitution and laws and our soil, with a nation's faith pledged forever interests of your country," as illustrated by to a strict observance of all its obligations, your entire presidential career, of declaring with kindness and fraternal love everywhere that in you they " recognize a Chief Magistrate prevailing, the desolations.of war will soon be worthy of the nation and equal to the great removed; its sacrifices of life, sad as they have crisis upon which your lot is cast;" and in been, will, with Christian resignation, be rethis declaration it gives us marked pleasure to ferred to a providential purpose of fixing our add, we are confident that the convention has beloved country on a firm and enduring basis, but spoken the intelligent and patriotic senti- which will forever place our liberty and happiment of the country. Ever inaccessible to the ness beyond the reach of human peril. Then, low influences which often control the mere too, and forever, will our Government chalpartisan, governed alone by an honest opinion lenge the admiration and receive the respect of constitutional obligations and rights, and of of the nations of the world, and be in no the duty of looking solely to the true interests, danger of any efforts to impeach our honor. safety, and honor of the nation, such a class is And permit me, sir, in conclusion, to add, incapable of resorting to any bait for popu- that, great as your solicitude for the restoration larity at the expense of the public good. of our domestic peace and your labors to that In the measures which you have adopted for end, you have also a watchful eye to the rights the restoration of the Union the convention of the nation, and that any attempt by an assaw only a continuance of the policy which for sumed or actual foreign power to enforce an the same purpose was inaugurated by your illegalblockade against the Government or citimmediate predecessor. In his reilection by izens of the United States, to use your own mild the people, after that policy had been fully but expressive words, "will be disallowed." indicated and had been made one of the issues In this determination I am sure you will receive of the contest, those of his political friends the unanimous approval of your fellow-citizens. who are now assailing you for sternly pursuing Now, sir, as the chairman of this committee, it are forgetful or regardless of the opinions and in behalf of the convention, I have the which their support of hisreSlection necessarily honor to present you with an authentic copy of involved. Being upon the same ticket with its proceedings. that much-lamented public servant, whose foul The CHIEFJUSTICE. Senators, you have assassination touched the heart of the civilized heard. the answer submitted by the counsel for world with grief and horror, you would have the President of the United States. Those of been false to obvious duty if you had not en- you who are in favor of receiving and ordering deavored to carry out the same policy; and, this answer to be filed will say "ay," and judging now by the opposite one which Con- those who are of the contrary opinion will say gress has pursued, its wisdom and patriotism "'no." [Having put the question.] It is so are indicated by the fact that that of Congress ordered; the answer is received and will be has but continued a broken Union by keeping filed. ten of the States in which at one time the in- Mr. Manager BOUTWELL. Mr. President surrection existed (as far as they could accom- and gentlemen of the Senate, in behalf of the plish it) in the condition of subjugated prov- House of Representatives, and as directed by inces, denying to them the right to be repre- the Managers, I have the honor to request of 44 the honorable Senate a copy of the answer filed The CHIEF JUSTICE. The Secretary will by Andrew Johnson, President of the United report the order asked on the part of the counsel States, to the articles of impeachment presented for the President. against him by the House of Representatives, The Secretary read as follows: and to say that it is the expectation of the Managers that they will be able at one o'clock to- sitting as a Court of Impeachment: morrow afternoon, after consultation with the House, to present a fit replication to the answer And now, on this 23d day of March, in the filed. year 1868, the counsel for the President of the Mr. EVARTS. Mr. Chief Justice and Sen- United States, upon reading and filing his anators, the counsel for the President think it swer to the articles of impeachment exhibited proper, unless some objection should now be against him, respectfully represent to this honmade, to bring to the attention of the honor- orable court that after the replication shallhave able court the matter of provision for the allow- been filed to the said answer, the due and proper ance of the time for preparation for the trial preparation of and for the trial of the cause will which shall be accorded to the President and require, in the opinion and judgment of such his counsel after the replication of the House counsel,thataperiod of not less than thirty days of Representatives to the answer of the Pres- should be allowed to the President of the Uniident shall have been submitted to this court. bed States and his counsel for such preparaIn the application, which was made on the 13th tion, and before the said trial should proceed. instant, for time for the preparation and sub- HENRY STANBERY, mission of the answer, as then presented to B. R. CURTIS, the court, we had included in our considera- THOMAS A. R. NELSON, tion of that time for which we so asked the WILLIAM M. EVARTS, expectation and intention of carrying on with W. S. GROESBECK, all due diligence and at one and the same time Of Counsel. the preparation of the answer and the prep- Mr. HOWARD. Mr. President, if it be in aration for the triaL The action of the court order I will now move that that application lie and its determination of the time within which upon the table until the replication of the House the answer should properly be presented has of Representatives shall come in. obliged us, as may be well understood by this Mr. Manager BINGHAM. Mr. President, court, to devote our whole time and thought before the vote is taken I ask leave to state in this brief interval to the preparation of the that, if it be the pleasure of the Senate, the answer; and we have had no time to consider Managers on the part of the House are ready the various questions of law and of fact and to consider this application now. of evidence and the forms and means of the The CHIEF JUSTICE. Senators, it is production of the same which rest upon the moved by the Senator from Michigan that the responsibility and lie within the duty of coun- application on the part of the counsel for the sel in all matters'of forensic and judicial con- President lie upon the table until the replicasideration. We, therefore, if the honorable tion shall be filed. court please, submit now a request that the Mr. HOWARD. I withdraw that motion President and his counsel may be allowed the for the moment if the Managers wish to be period of thirty days after the filing of the repli- heard. cation on the part of the House of Represent- The CHIEF JUSTICE. The Senator from atives to the answer of the President for prep- Michigan withdraws his motion. Do the Manaration for the trial and before it shall actually agers desire to be heard? proceed; and I beg leave to send to the Chief Mr. Manager LOGAN. Mr. President and Justice a written minute of that proposition Senators, I am instructed by the Managers on signed by the counsel. the part of the House of Representatives to The CHIEF JUSTICE. It is not for the pres- resist the granting of this application, not on ent in order. The question before the Senate account of the time at which it is presented, is the motion submitted on the part of the Mana- but for the reason that it does not contain such gers of the impeachment, that a copy of the matter as in our opinion will justify the Senanswer be furnished to the House of Represent- ate in giving further time for preparation on atives, and that the House have time to file a the part of the respondent's counsel for the replication. trial of this cause. We do not desire to force The motion of the Managers on the part of this trial any more rapidly than the necessities the House was agreed to. of the case demand, but desire that such rules The CHIEFJUSTICE. The Chair will now as have heretofore been observed, oras would be receive any motion on the part of the counsel observed in a court at law, may be adhered to for the President. in the testing of the sufficiency of this applicaMr. EVARTS. I now beg to ask for the tion. What reasons are given in the application action of this honorable court upon the pre- here presented for the time to be extended? sentation in writing of a request for thirty days None more than that counsel shall have an after the filing of the replication for the defense opportunity to prepare themselves for oratorito prepare for the trial. ca displays beforethis august body. They have 45 had the same opportunites that the Managers you can prove the same facts, and also that on the part of the House of Representatives you have used due diligence to procure the have had for preparation. They can and will evidence. This application certainly does not have the same during the whole progress of come under that rule. No evidence is stated this trial. It is not stated that any witness who that is expected to be produced. The name will prove any material fact is not present, or of no witness is given that is expected to be whose presence cannot any day be procured. subpoenaed. No distance is mentioned that It is not stated that delay is necessary for the must be traveled. No residence is mentioned. procurement of records, documents, persons, It is not stated that any attempt has been made or papers material or immaterial in this case. to obtain any evidence or to even have witWhy, then, Mr. President, grant further time nesses subpoenaed. But, sir, for what is this when no good cause under the rule is shown? application made, and upon what is it based? The answer herein filed admits the order of It is based upon no urgent necessity for time, removal of the Secretary of War and the order that justice may be done in the premises, but appointing a Secretary ad interim. ThePres- merely indicates to the Senate that time is ident knew what the law was when these orders desired to examine authorities, to prepare arguwere made, and knowing it violated it, for ments, and for naught else can we discover which violation we charge him with high mis- that it is made. demeanors in office. In the many trials we Sirs, we insist, as Managers on the part of have reported in this and other countries this the House of Representatives and the people, application has no precedent. that no more time shall be given in this case In the case of Judge Chase his application than is absolutely necessary to try it; there is stated, in substance, that it was not in his power no necessity for the extension for counsel to to obtain information respecting facts alleged prepare on either side; none for the procureagainst him to have taken place in Philadel- ment of witnesses, as none has been asked on phia and Richmond, in time to prepare and that ground. If time be now given on this apput in his answer and proceed to trial before plication, perhaps when issue is joined and the 5th day of March then next following; and the time now extended elapses we may be met further that he could not get his witnesses or by an affidavit asking more time forthe procurecounsel nor prepare his answer at the same ment of witnesses in some distant part of the time, disclaiming that this was done for delay. country. In my judgment time should not be This application was sworn to by the respond- granted for the trial of the President of the ent; he was given time, and the facts show that United States on any different application from his answer was filed and his trial had, and he that required to give time for the trial of the acquitted in five days' less time than he swore it poorest and humblest citizen in the land; he would take him to prepare for trial. should be tried by the same rules and held In Judge Peck's case his application stated amenable to the same laws that apply to any his difficulties in obtaining witnesses, the dis- other citizen. Let it not be said that no harm tance they lived from Washington, the time it may come to the country by postponement of would require them to travel from St. Louis this cause. If we are correct in our charges to Washington, the necessity for copying and against him harm may come by a postponement. obtaining records; that four years had elapsed We have charged him with intentionally viosince the transpiring of the acts complained of lating the law; we have charged him with against him. This application was also sworn obstructing the law. Our charges are of such to. If the learned counsel remember the trial a character as show him to be a dangerous perof Queen Caroline before the Parliament of son to remain the Chief Magistrate of the naGreat Britain, when time was granted for the tion, inasmuch as he, instead of administering, procurement of evidence the learned attorney obstructs the law. It is said that time would general then and there protested against this be given to an ordinary criminal to prepare granting of time becoming a precedent for his defense. I may be pardoned for saying any future trial, this application being granted that we, as the Managers on the part of the merely through courtesy to the queen, when House and the country, consider the President witnesses were deemed absolutely necessary a criminal, but not an ordinary one. We to protect, if possible, her reputation. This charge him as a criminal, and are bound to so application differs in form and substance from consider him until, by the verdict of his triers, any that our attention has been directed to, he shall be acquitted of all the articles herein made by the counsel, signed by themselves, presented. The learned counsel for the reand sworn to by no one. spondent do not agree with us in this; nor do Mr. President, the rule in courts of law in we ask the Senate to so adjudge until our applications for a continuance of the cause or charges are made good by competent testithe extension of time, is that reasons good and mony. The course in the case of ordinary sufficient must be stated; if for want of a witness criminals who commit crimes or misdemeanors or witnesses you must give the name or names, is, or may be, different from the course in this the residence, and what you expect to prove case. But, sir, ordinary criminals are either by said witness or witnesses, and that you arrested and put under bonds or imprisoned, know of no other witnesses present by whom that no further violations of law may be com 46 mitted by them during the pendency of their orable court a matter so completely within its trial. But, sir, in this case the President, who is cognizance that our time to plead was fixed so charged with violating the law, has the same as to offer us but eight working days for that power to act to-day and still trample the laws duty of counsel. and the Constitution under foot that he had Obedientto the orders of the court, observant, the day we charged him with having committed as we propose at all times to be, of that public these high crimes and misdemeanors; hence necessity and duty which require on the part the reasons for not granting time in this case of the President of the United States and his are stronger than could be urged in the case counsel, not less than on the part of the House of an ordinary criminal. of Representatives and its Managers, that diliIn the one case you would give time where gence should be used, and that we his counsel no danger might arise from doing so; but in should be withdrawn from all other professional this case danger to the people might arise, and or personal avocations, we yet cannot recoghence the same reasoning does not operate in nize in the presence of this court that that is this that does in the case of an ordinary crim- an answer to an application for reasonable inal; and we here enter our protest against time to consider and prepare, to subpoena and any extension of time whatever in this case. produce, in all things to arrange and in all What we desire is that the replication of the things to be ready, for the actual procedure of Managers may be filed to-morrow at one o'clock, the trial. Nor, with great respect to the honand then we may be permitted to state our orable Managers in this great procedure, do case to the Senate acting as a court of im- we esteem it a sufficient answer to our desire peachment, and that we may follow it up with to be relieved from undue pressure of haste the evidence, and that the counsel for the re- upon our part that equal pressure of haste may spondent may then state their defense and pro- have been used on the other. We do not so duce their evidence, and that on the issue thus understand the question of the just and orderly made the court may decide as to the guilt or protection of public int6rests as that this cominnocence of the party accused. pensation for haste required from the defendThis is what we ask, and this is what we have ant may. be demanded by equal haste being a right to expect. I presume no man will necessary on the part of the prosecution. doubt that if an application of this kind were But, beyond this, the honorable Managers made to a court at law, the inquiry would be: give us more professional credit than we are "Have you issued your subpoenas; have you entitled to when they assume to say that our attempted to get your witnesses; have you at- standard of our duty and our means and our tempted to make any preparation to try the needs for properly performing it are necessarily cause?" And if the counsel would answer that to be measured by theirs. Nor do they suffithey had made no preparation whatever; that ciently attend, as I say with great respect, to they had issued no subpoenas; had. made no the position of the accused and his counsel in attempt to procure witnesses or get ready for reference to the preparation of a defense with the trial of the cause, but merely desired time that which is occupied by the Managers and for thought and reflection, the application would by the House of Representatives in reference certainly be denied. And against the granting to the explorations and the provision and the of this, not made upon the oath of any person, preparation of the accusation and of its evinot signed by the President, and merely intended dence; for during a very considerable period, for the benefit of counsel, we, the Managers, with the coercive power of summoning witin the name of the House of Representatives nesses and calling for papers which rightfully and the whole people of this Republic, do most belongs to the House of Representatives, all solemnly protest. this matter upon the one side and the other, to Mr. EVARTS. Mr. President, I may be a certain extent, may have been actually exallowed very briefly to call the attention of this plored by them, and, as is known, to a very honorable court to the attitude of. the cause great extent, certainly has been. before them, as we conceive it to be. Other Now, if this honorable court will give the courts, except such as are called for a special counsel for the President of the United States trial upon a special and limited authority, have due respect in regard to the position in which we established regulations guarding the rights of present ourselves, due respect to our statedefendants, either in civil or in criminal pros- ment, it will understand that up to this time ecutions, with established terms of court and the consideration of the degree and measure, well recognized and understood habits of the of the means and occasions, for proof has not conduct of judicial business. In our estimate yet possibly received our practical and responof the course of this proceeding before this sible attention, and that within the limits of honorable court we have not yet arrived at a this accusation, unless it shall be narrowed time when it was the duty of counsel or was at more than we expect by the replication to be the charge of the accused to know or consider filed, there may be, there must be, a very conwhat the issues were upon which he was to siderable range of subjects and a very considprepare on his side or expect on the other the erable variety of practical considerations that production of proofs. Beyond that, we feel will need to come under the responsible judgno occasion to present by affidavit to this hon- ment and for the responsible action of counsel. It would seem to me that we are placed thus taken by the counsel for the respondent on the far in the attitude of a defendant in a civil or 13th instant was in violation of the precedent in a public prosecution who upon the issue established by the cases which have been tried joined desires time to prepare for trial. The by the Senate of the United States. Looking ordinary course in such a case is that as mat- into the case of Judge Chase, we find that on ter of right, as matter of absolute and univer- the return day of the summons he appeared sal custom, one is not required or expected to and maCe application for time to answer; but give any cause of actual obstruction and diffi- he did not stop at this; he coupled with his culty in reference to a continuance to what is motion for time to answer a request for time the term of the court, doubtless in most cases to prepare for his trial. He supportedhisapplito occur within a brief period after the issue is cation by his solemn affidavit stating that he joined. This court having no such arrange- could not possibly prepare his case for trial ment and no such possible arrangement of its before the 5th day of the succeeding March, affairs in advance, we are obliged at each stage and therefore he asked an allowance of time of regular proceeding to ask your attention as for preparation for trial until the commenceto what you will provide and consider in the ment of the next session of Congress, as the particular case is, according to the general then session would expire on the 4th day of nature of the procedure and the understood that month. attitude of both parties to it, a just and reason- In his application he disclosed the necessiable proposition to be made by us as to the ties inducing his request, among which were time that should be allowed for the prepara- the distances lying between the capital and tion in all respects for this trial after the issue the places where he was to ascertain the facts shall have been joined. We do not ask any and circumstances necessary for his defense more time than in the interest of justice and and to find the witnesses to support it. After duty under the actual circumstances of this due consideration the Senate overruled his apcase should be given to the poorest man in the plication and required him to answer on the country. The measure of justice and of duty 4th day of the succeeding February, thus allowhas no respect whatever to poverty or station. ing him, both for answer and preparation, thirty The actual nature of the proceeding, the actual days instead of eleven months, as prayed for circumstances of the case are to furnish the in his motion. And what was.the result in' rule for the exercise of whatever falls within that case? Why, that on the 1st day of March the discretion of the court. If during the trial, succeeding, four days -before the time which on the part of the Managers, it should appear he stated in his affidavit would be required for that, by accident or by any other just excuse, him to prepare for trial, the cause had been the attendance of a proper witness on their tried on such perfect preparation that it repart was required, it would be the duty of this sulted in the acquittal of the respondent. The court, in the administration of justice, to allow Senate judged better than he of the difficulties proper time and delay for the production of of his case and of the time required to overcome the witness. And so, upon our part, if, fore- them. So in the case of Judge Peck, when he seen or unforeseen, such an occasion should appeared on the return day of the writ, it having arise, it would be a necessary duty of the court been served on him but three days prior to the to take it into consideration and provide for it return, he made his joint application for time as the occasion arose. The proposition that to answer and time to prepare for trial, and we now make to the court, and, unless there is supported it by his solemn affidavit. He was to be a departure from the general habit of all granted the time he desired to prepare his courts in such a predicament of a procedure, answer when, by an adjournment of Congress, what we expect their action according to and his case went over for trial until the next sesupon is this: that after issue joined we should sion. have a reasonable time, before.we should be But we have had no such course pursued in considered as bound to be in the condition of this case. On the return day of the summons, preparation for the proceeding in the cause. notwithstanding the rule of the Senate required Mr. M1anager WILSON. Mr. President and on that day and at that time the filing of the Senators, the Managers on the part of the answer, we were met first with an application House of Representatives have determined, so for forty days' leave in which to prepare an far as may lie in their power, that this case answer. The honorable Senate allowed ten shall not be taken out of the line of the prece- days; and now, at the expiration of that time, dents; therefore it is that we will resist all we find a most elaborate answer presented -by applications for unreasonable delay. The the counsel for the respondent; and in it is counsel for the respondent who has just taken embodied the strongest argument against any his seat might well, in view of the remarks delay in this case that has come from any which he submitted, have waited until issue source or is known to any person; and that is, joined before presenting this motion; but it is that the respondent, by his answer, affirms as here, and we are prepared here and now to lying within his rightful powers under the Contake the motion as we find it, and deal with it stitution, the right to do the very acts which as its form and merit of substance require. we have charged against him at the bar of this It will be remembered that the first step Senate as criminal acts, and persists in his 48 defiance of the laws and in the wickedness of this application is not such cause as will justify the course which the Representatives of the the Senate in the exercise of a sound discrepeople have challenged. That might not be a tion in granting the time which has been asked weighty consideration in an ordinary case. It for by the respondent to enable him to prepare might not weigh much if, instead of the present for trial. It does not show cause of substance, respondent, we had some other officer of the and presents mere questions of convenience. Government charged at the bar of the Senate Mr. HOWARD. Will the Manager please with the offenses enumerated in the articles to read that order again? which he has this day answered. Mr. Manager WILSON. "Ordered, That But in this case it is of weight, and should unless otherwise ordered by the Senate for have due consideration. Why is it of weight? cause shown, the trial of the pending impeachBecause the respondent has devolved on him ment shall proceed immediately after replicanot only the duty which rests upon the citizen tion shall be filed." to obey the law, but also the higher duty to It will be observed-the interruption stigexecute the law, and is clothed by the Consti- gests it to my mind-that in view of this rule tution of the country with the whole executive the Senate cannot, with due regard to its own power of the nation, that he maybe enabled to action, grant this extension of time, because a discharge faithfully the duty thus imposed. sound discretion cannot be exercised under the He has not, in the judgment of the House of rule and upon this application until issue be Representatives, discharged this duty as his joined between the people and their Repreoath of office requires, but has disregarded the sentatives and the respondent, though we waive law and defied its authority. For his failure this objection in the interest of the economy of to discharge it, for his acts of positive trans- time. But, as I have said, this application, gression of the laws of the land, he is arraigned considered now or at any other time, must be at the bar of the Senate, and presenting answer, addressed to the sound discretion of the Senate, justifies the acts which make up his grave and it is for us to remember that a sound disoffenses, claims the right to repeat and extend cretion acts not without rule to guide it. The them, and now asks for time that he may fur- discretion to which such motions are addressed ther imperil the nation while he endeavors to must be directed by law-"it must be gov-.make good his unlawful assumptions of power, erned by rule, not by humor; it must not be in the meantime holding in his hands, under arbitrary, vague, and fanciful, but legal and and by virtue of the Constitution, the executive regular. " power of the Republic. No provision having And I therefore deny that the application been made for its temporary surrender, he re- and the statements therein contained do or tains that power, disturbing the repose of the can convey to the mind of this Senate that country and interfering with every interest of view of this case which must be presented by business and trade and commerce, by prolong- the respondent in order to justify you in saying, ing this unfortunate conflict between the two upon the exercise of a sound discretion, that departments of the Government. one hour's delay should be granted; for there Mr. President and Senators, we feel it to be is nothing of a substantive character affecting our most solemn duty to urge upon you, in the the merits of the case disclosed upon which it name of the Representatives of the people, and can act. of the people themselves, that speedy progress What is the application?. It is substantially toward a conclusion of this case which shall that counsel have not had time to prepare and guard the rights and the interests of the people, become familiar with the case, therefore they their laws and their government, and at the must be allowed opportunity to educate themsame time observe with reasonable care the selves in the particular matter committed to rights belonging tothe respondent. Thepres- their charge. I apprehend that that is not ent application for delay is without precedent good cause upon which this Senate may act in the cases heretofore tried by the Senate; and grant the prayer of this present applicaand were it not for the order adopted by this tion. More than that, it will be observed that body on the 13th instant, which now must be the respondent has been carefully kept out of regarded as a rule, this application could not this case on these motions. In all other cases be made, as that rule is the only thing which in this country of which I have any knowledge, takes this case out of the line of precedents to the respondent has asked in his own name, which I have referred. It should have been supporting his request by his affidavit, for decoupled with the other motion made before the lay of proceedings; judges summoned from adoption of the rule, and the whole case so far the bench and brought to this bar have preas respects causes of delays in this proceeding sented their petitions in person, supported by disclosed at the threshold. The following their solemn affidavits, and asked upon the order constitutes the rule to which I refer: facts stated by them, covering and disclosing "Ordered That unless otherwise ordered by the all of the features of their cases, and unfolding Senate for cause shown, the trial of the pending im- their line of defense, a reasonable time in peachment shall proceed immediately after replica- which to prepare answer and to prepare for tion shall be filed." trial. But it is not so here; and we have to Now, I submit that the "cause shown" in ask that while this case is thus kept out of the 49 ordinary rule and uniform practice of former and to facilitate proof we have been obliged cases, the Senate will regard in some degree to say, in reply,'" We have not, gentlemen, as the voice of the Representatives as presented yet, a moment's time to consider your comby the Managers, and put this respondent upon munications." All we know of this case is his speedy trial, to the end that peace may be that it refers to transactions not only here, but restored to the country by the healing efficacy at Cleveland and St. Louis, at distant points. of a determination of this prosecution-the They have sent us a list of witnesses who are restoration of harmony between the two con- to come from these various places as to matters tending departments of the Government, and in regard to which they expect to make proof to the further end that all things may again against us as to what was said and done at those move on in this land as they were accustomed places, and as yet I do not know a single witin the times before this unfortunate conflict ness whom the President wants to call in his and its disturbing results occurred. There- defense. I know that he wInts to call witfore, Senators, in the name of the House of nesses, but I have not yet had an opportunity Representatives, and of the people in whose of knowing who those witnesses are. We have names they have acted in this behalf, we ask not subpoenaed one. We do not know the that this application, as it is now presented and name of any one except those who happen to considered, may be denied by the Senate. live here whom we shall want, nor which of Mr. STANBERY. Mr. Chief Justice, on them. the 13th instant, when we entered our appear- Now mark, all this time the advantage that ance, and when we supposed we had nothing to the honorable Managers have had over us. As do but to enter our appearance and ask for I understand it, and I suppose it will not be time to answer, the honorable court made an denied, almost every day since they have been order that we should have until the 23d, this engaged in the preparation for the trial. Their day, to file our answer. They gave to the articles wereframedlongago. While wewere Managers leave to file replication, without engagedinpreparingrouranswertheyliavebeen, limiting them at all as to time, but provided as I understand, most industriously engaged in that upon the filing of the replication the case preparing the witnesses. Day after day wit. should proceed to trial unless reasonable cause nesses have been called before them and testishould be shown for further delay. Then the mony taken. We have had no such power; honorable court meant us to have time to pre- we have had no such opportunity-not the pare for trial if we reasonably showed that it slightest. We are here without any preparawas necessary. tion in the way of witnesses, without having Now, whathas happened, Mr. Chief Justice? had a moment to consult with our client or What has been stated to this honorable court, among ourselves. composed in a great measure of members of The gentlemen say that our anxiety is to prethe bar. by members of the bar that I hope pare ourselves, whereas they are already pre" have sufficient standing with this court to have pared, completely prepared, so far as counsel some credit, at least, for professional state- need prepare themselves. I am very happy to ments made upon their honor? What have hear that they are. I should be very far from we stated? That since we had this leave every saying that I am equally prepared. I have had hour and every moment has been occupied no time to look to anything else except this with the pleadings; not an instant lost, not a necessary and all-absorbing duty which we counsel absent. We have refused all other have just completed. Now, if the Senate say occupation; we have devoted ourselves ex- we shall go on when this replication comes in, elusively to this day and night, and I am sorry which, I am told, is to come in to-morrow; to be obliged to say two days sacred to other they will put me in a position that I have never duty. There has been not a moment's delay. been in before in all my practice anywhere, And how has this time been occupied, Mr. with a client and a case and a formidable array Chief Justice? Occupied, every instant of it, against me, and yet not a witness summoned; in the preparation of this answer. Allow me not a document prepared-all unarmed and to say'to the honorable court that it was not defenseless. until fifteen minutes before we came here that I beg this honorable court to treat us with our document was ready. some leniency, to give us time. If you cannot Certainly it was intended on the 13th to give give us all we ask give us, at least, some time us time not merely to prepare our answer, but within which, by the utmost diligence, we can to prepare for that still more material thing, make that preparation we deem to be useful, the trial. And now I hope I shall obtain credit and without which we are unsafe and unprewith the honorable court when I say that we pared. have been so pressed with this duty of making The gentlemen complain that we ought to up the issue and preparing the answer that we have been ready on the 13th. They read have not had an opportunity of asking the against us a rule that that was the day fixed President " What witnesses will you have?" for not only the appearance but the filing of Nay, we have been so pressed that to the cornm- the answer. What! They read out of a rule munications which we have received from the that old formula that has come down to us for honorable Managers in regard to admissions five hundred years, the order to " appear and C. 1.-4. 50 answer" - the same language which was l submitted by the presiding officer to the Senate, adopted at that early time when pleadings were one of the managers of the House of Comore tenus and by parol, when the defendant mons arose in his place and said that he owed was called and answered immediately. But it to the Commons to protest against the imeven our old independent and sturdy ancestors memorial usage being denied to the Commons would not answer on that day, although they of England to be heard in reply to whatever were to answer by word of mouth; and we might be said on behalf of the accused at the know that always they demanded time and bar of the Peers. In that case the language always had time, "leave to imparl" a day of the manager, Mr. Giles, was: to answer. " My lords, it was not my intention to trouble your We have preserved the same phraseology in lordships with any observations upon the arguments our subsequent proceedings. The summons you have heard; and if I nowdo so, it is onlyfor the orun.1Te1summons sake of insisting upon and maintaining that right is still to a defendant "' You are hereby sum- which the Commons contend is their acknowledged moned to appear on such a day and answer;" and undoubted privilege, the right of being heard but whoever supposed he as then to le s after the counsel for the defendant has made his but whoever supposed he was- then to file his observations in reply. It has been invariably adanswer? What lawyer that ever wrote a dec- mitted when required."-State Trials, vol. 29, p.762; laration does not recollect the beginning of it, 44 to 46 George II. " The defendant was summoned to appear and Lord Erskine " responded the right of the answer;" and yet every lawyer knows that the Commons to reply was never doubted or distime for the defendant's answer has not yet puted." come. Well, our answer has been presented. Following the suggestion of the learned genNo day has yet peremptorily been fixed for tleman who has just taken his seat, 1 believe trial. The Senate said to us, " You shall go that when that utterance was made it had been to trial when the replication is filed, provided the continued rule in England for nearly five you do not show good cause." The cause we hundred years. show is, may it please the honorable court, In this tribunal, in the first case of impeachthat we have not had one moment's time to ment that ever was tried before the Senate of prepare for trial. the United States under the Constitution, (I Mr. HOWARD and Mr. Manager BING- refer to the case of Blount,) the Senate will HAM rose. see by a reference to it that although the acThe CHIEF JUSTICE. The Senator from cused had the affirmative of the issue, although Michigan. he interposed a plea to the jurisdiction, the Mr. Manager BINGHAM. On the part of argument was closed in the case by the manthe Managers I beg to respond to what has ager of the House, Mr. Harper. (Wharton's just been said. State Trials of the United States, pp. 314-15.) Mr. HOWARD. I beg to call the attention When I rose; however, at the time the honof the President to the rules that govern the orable Senator spoke, I rose for the purpose of body. making some response to the remarks last Mr. Manager BINGHAM. I will only say made tor the accused; but as the presiding that we have used but thirty-five of the min- officer has interposed the suggestion to the Senutes of the time allowed us under the rule. ate whether the Managers can further reply I The CHIEF JUSTICE. The Chair an- do not deem it proper for me to proceed further nounced at the last sitting that he would not until the Senate shall pass upon this question. undertake to restrict counsel as to number Mr. HOWARD. Mr. President, if the diswithout the further order of the Senate, the cussion is closed on the part of the Managers, rule not being very intelligible to him. He and the counsel will state further that when counsel make a Mr. Manager BINGHAM. I desire to have motion to the court the counsel who makes the the question submitted. motion has invariably the right to close the Mr. HOWARD. I was about to move that argument upon it. this motion be laid on the table. Several SENATORS. Certainly. Mr. Manager BINGHAM. I desire, if the Mr. Manager BINGHAM. Mr. President. Senator from Michigan will excuse me, to be with all respect touching the suggestion just heard in response to what has just fallen from made by the presiding officer of the Senate, the lips of the counsel for the accused, but I beg leave to remind the Senate, and I am deem it my duty not to proceed without the instructed to do so by my associate Managers, consent of the Senate, inasmuch as the prethat from time immemorial in proceedings siding officer has already suggested to the Senof this kind the right of the Commons in Eng- ate that the Managers could not be further lavd, and of the Representatives of the people heard; in other words, could not be permitted in the United States, to close the debate has to make a final reply. not been, by any rule, settled against them. The CHIEF JUSTICE. The motion of the On the contrary, in Lord Melville's case, if Senator from Michigan is thatI may be allowed and pardoned for making Mr. Manager BOUTWELL. Mr. President, reference to it, thelast case, I believe, reported will the Chair pardon me? in England, Lord Erskine presiding, when the The CHIEF JUSTICE. Certainly. very question was made which has now been Mr. Manager BOUTWELL. This seems to 51 the Managers, and to myself especially, a mat- such a showing there would be something upon ter of so much moment as to whether the Man- which the Senate might properly act. agers are to be heard finally- But, sir, instead of that he throws himself Mr. HOWARD. Excuse me a moment. back upon his counsel, and they make their It was not my intention to cut off debate or statement here that they will require thirty discussion on the part of the Managers or the days of time in which to prepare for trial. He counsel for the accused; and so I announced. sent these gentlemen to the bar of this tribuIf there is any desire on the part of either to nal on the 13th instant upon their honor to proceed with the discussion, I withdraw my notify the Senate that it would require him motion to lay the order on the table. forty days to prepare an answer. Now, he Mr. Manager BINGHAM. Now, Mr. Pres- sends them back upon their honor to notify ident, if it be the pleasure of the Senate the Senate that it will require him thirty days Mr. JOHNSON. I ask for the reading of to prepare for trial. I take it that the counsel the twentieth rule. for the accused have quite as much time for The CHIEF JUSTICE. The rule will be preparation if this trial shall proceed to-morread. row as have the Managers on behalf of the The Secretary read rule twenty, as follows: House of Representatives, who are charged by "20. All preliminary or interlocutory questions, the people with duties from day to day in the and all motions, shall be argued for not exceeding other end of the Capitol which they are not one hour on each side, unless the Senate shall by permitted to lay aside. But, sir, I think upon the answer made here Mr. Manager BINGHAM. We have used this day by the President of the United States, but thirty-five minutes of our time. unless very good cause be shown, and that, Mr. GRIMES. What is the question? too, under the obligation of his own oath at the The CHIEF JUSTICE. Do the managers bar of this Senate, not another hour's contindesire to proceed? uance should be allowed him after the case Mr. Manager BINGHAM. Yes, sir; with shall have been put at issue. We ask leave to the President's leave. suggest to the Senate that we hoped on to-morMr. President and Senators: I deeply regret row, by leave of the people's Representatives, that the counsel for the accused have. made to put this case at issue by filing a replication. any intimation here that question is made or That is all the delay we desire. The accused has intended to be made by the Managers touching had the opportunity for process ever since the the entire sincerity with which they act before 13th instant, at least. lie is guilty of grave this tribunal. I am sure that it was furthest negligence in this behalf-I do not speak of from the purpose of my associates, as I know the counsel; I speak of the accused. If he it was entirely foreign to any purpose of mine, had witnesses to subpoena why was he not to question for a moment their sincerity. The about it? And yet, sir, not a single summons gentleman who took his seat spoke of their has been required by him under the rule and having presented this application upon their order of the Senate to bring to its bar a single honor. No man questions their honor; no witness to testify in his behalf. He totally man who knows them will question their honor; neglects the whole issue, and comes here with but we may be pardoned for saying that it is an attempt at a confession and avoidance of unusual, altogether unusual, on questions of the matter presented by the House of Reprethis sort to allow continuances to be obtained sentatives, and tells this Senate and tells the upon a mere point of honor I The rule of the country that he defies their power, trifling-I Senate, which was adopted on the 13th instant, repeat it in the hearing of the Senate-trifling is a rule well understood, and is in the lan- with the great power which the people for wise guage of the ordinary rule which obtains in purposes have placed in the hands of their courts of law; that is to say, the trial shall Representatives and their Senators in Congress proceed upon replication filed, except, for assembled. cause shown, further time be allowed. Why, sir, what is this power of impeachment I submit that a question of this magnitude worth if the President of the United States, has never been decided upon a mere presenta- holding the whole executive power of the nation of a statement of counsel, in this coun- tion, is permitted, when arraigned at the bar try or in any country. To speak more plainly, of the Senate in the name of all the people and a motion for continuance arising on a question charged with high crimes and misdemeanors, of this sort, I venture to say, has never been in that he has violated his oath, in that he has decided affirmatively upon such an issue on a violated the Constitution of the country, in mere statement of counsel. If Andrew John- that he has violated the people's laws, and son, the accused at this bar, has witnesses that attempted by his violation of the laws to lay were not within the process of this court up to hands upon the people's Treasury; what is this this day, but whose attendance he can hope to great defensive power reposed by the people in procure if time be allowed him, he can make their Representatives worth if the Presilent, affidavit before this tribunal that they are ma- upon a mere statement of his counsel, is perterial and set forth in his affidavit what he mitted to postpone the further inquiry for expects to prove by them. I concede that upon I thirty days, until he prepares to do-what? 52 Until he prepares to make good his elaborate is in session without its advice or consent, just statement set forth in his answer, that the such persons as will answer his own purposes? Constitution is but a cobweb in his hands, and Is that what he means? If he does it is avery that he defies your power to restrain him. easy method of repealing the Constitution of I remember very well, sir, it suggested itself the United States. to me when I heard this discussion going on, The appointing power is " by and with the the weighty words of that great man (Chan- advice and consent of the Senate." The power cellor Kent) whose luminous intellect shed to fill vacancies under the Constitution isin the luster upon the jurisprudence of' his country President only as to such vacancies as may hapin the State of New York for more than a third pen during the recess of the Senate, and so the of a century, which he wrote down in his Corn- Constitution reads. But, according to the logic mentaries upon the laws, and which will live set out in this elaborate answer, to support as long as our language lives, that to prevent which the President wishes thirty days of time the abuse of the executive trust- for preparation, he is to vacate every execu"The Constitution has rendered the President di- tive office of the United States at his own rectly amenable, by law, for maladministration. The pleasure, in the presence of the Senate, without inviolability of any officer of Government is incom- its consent while they are in session, and fill patible with the republican theory as well as with thinterim even while they principles of retributive justice.". "If, then, neither the sense ofduty,'the force of pub- are trying him. If this be permitted, and if lic opinion, nor the transitory nature of the seat are his successors should follow his bad example, sufficient to secure a faithful discharge of the execu- I ask the Senate to deliberate, to consider tive trust, but the Presidentwill use the authority of wa the te o nt o coni his station to violate the Constitution or law of the whether the time would not soon come, if that land, the House of Representatives can arrest him in example were persisted in and followed, that his career by resorting to the power of impeach- not a single executive office in America would ment."-l Kent, p. 313, sec. 289. be filled by ally man " by and with the advice Faithful to the duty imposed upon us by our and consent of the Senate;" but, on the conoaths as the Representatives of the people, we trary, every such office would be filled without have interposed that remedy to arrest this the advice or consent of the Senate. man, and he comes to-day to answer, saying, I admit, sir, it is a time-honored rule of the "I defy your impeachment; by the executive common law, the growth of centuries, the power reposed in me under the Contitution''- gathered wisdom of a thousand years, that the and I believe I quote almost the words of the accused has the right to a speedy and an imanswer laid before us-" by the executive partial trial. I claim that the people also have power reposed in me by the Constitution, I a right to a speedy and impartial trial, and that claim in the presence of the Senate, I claim in the question pending here touches in some sort the presence of the country, the power, with- the right of the people. In their name we out challenge, let, or hinderance, to suspend demand here a speedyand impartial trial. If everyv exeeative officer of this Government at the President is not guilty, we ask in behalf of my pleasure." I venture to say before the the country that he shall be declared not guilty enlightened bar of public opinion in America, of the offenses with which he stands charged. by these words incorporated in his answer, the If it be the judgment of the Senate that he has President is as guilty of malfeasance and mis- power thus to lay hands upon the Constitution demeanor in office as ever man was guilty of of the country and rend it in tatters in the malfeasance or misdemeanor in office since presence of its custodians, the sooner that nations began to be upon the earth. What! judgment is pronounced the better. That he will suspend all executive officers of In every view of this case, in the light of the this Government at his pleasure, not by force answer to which we have listened, I feel myself of the tenure-of-office act, to which he him- justified in saying that the public interests deself refers, and which he says is void and of no mand that this trial shall proceed until, upon effect, but by force of the Constitution of the the solemn oath of the accused made at this bar, United States; and that, too, he adds, while itshallappearthathecannotproceedonaccount the Senate of the United States is in session! of the absence of witnesses material to him, What does he mean by it? Let the Senate nor until he states what he expects to prove by answer when they come to vote on this propo- them; because I venture to say that he can sition for the extension of time. Does he make no showing of that sort which we are not mean by it that he will vacate the executive ready upon the spot to meet by saving we will offices and not fill them? Does he mean by it admit that the witnesses will swear to his statethat your money appropriated by your laws for ment, and let him have the benefit of it. Nearly carrying on and administering the Government all the testimony involved in this issue is docushall remain locked in the vaults of your Treas- mentary. Much of it is official. Enough of it, tiry, and shall not be applied as your law I might say, is official in its character to justify'directs? Or does he mean by it that he will the trial to proceed without further inquiry into repeat what he has already done in the presence the facts. of the Senate, and in violation of the laws, But be that as it may, although they did not that he will remove without the consent of the request us to do so, although they had no right Senate, and he will appoint while the Senate to demand it of us, we have taken pains to 53 notify the counsel for the accused of the wit- day when this trial shall certainly proceed, the nesses that we proposeto call, the witnesses we act of Providence preventing notwithstanding. have subpoenaed, so that they might prepare to The CHIEF JUSTICE. The question is on meet them; and it will occur to the Senate as the order moved by the Senator from Missouri, this trial progresses that they have as much [Mr. HENDERSON.] time for preparation by the end of that day Mr. TRUMBULL. I ask for the yeas and when the case on the part of the Government nays. of the United States shall be closed as we have. The yeas and nays were ordered; and being We make no boast of any superior preparation taken, resulted-yeas 25, nays 28; as follows: in this matter. We desire simply to discharge our duty as best we can. We assume no supe- Dixon, Doolittle, Edmunds, Fessenden, Fowler. Freriority to the counsel, as was intimated by the linghuysen, Grimes, Henderson, Hendricks, Johngentleman who last spoke, [Mr. Stanbery;] son, McCreery, Morrill of Maine, Norton, Patterson desire simply to discharge our duty herye of Tennessee, Ross, Saulsbury, Sherman, Sprague, but we desire simply todischarge our duty here Trumbull, Van Winkle, and Vickers-25. and to discharge it promptly and to discharge NAYS-Messrs. Bayard, Cameron, Chandler, Conkit faithfully, and we appeal to the Senate to ling, Conness, Corbett, Cragin, Davis, Drake, Ferry, Harlan, Howard, Howe, Morgan, Morrill of Vermont, grant us the opportunity of doing so, so that Morton, Nye, Patterson of New IIampshire, Pomejustice may be done between the people of the roy, Ramsey, Stewart, Sumner, Thayer, Tipton, WilUnited States and the President, that the Con- ley, Williams, Wilson, and Yates-28. stitution of the United States which he has vio- VOTING-Mr. Wade-1. lated may be vindicated, and that the wrongs So the order propdsed by Mr. HENDERSON which he has committed against an outraged was not agreed to. and betrayed people may be speedily redressed. Mr. HOWARD. Mr. President, I now move Mr. HENDERSON. Mr. President, I pro- that the motion of the counsel for the accused pose an order which I send to the Chair. do lie on the table. The CHIEF JUSTICE. The Secretary will Mr. DRAKE. Mr. President, I rise to a read the order. question of order. The Chief Clerk read as follows: The CHIEF JUSTICE. The Senator will Ordered, That the application of the counsel for the state his question of order. Presidentto beallowed thirty days toprepase forthe Mr. DRAKE. That no motion to lay a trial of the impeachment be postponed until after proposition by the counsel for the defense, or replication filed. proposition by the counsel for the defense, or one made by the Managers on the part of the Mir. Manager BUTLER. Mr. President, I prosecution, upon the table, can, under the should like to call the attention of yourself and rules of the Senate, be entertained, but that the the Senate to the position in ich that would Senate must come to a direct vote upon the place the Managers, and I beg to express the proposition. desire on the part of the Managers that this The CHIEF JUSTICE. The Chair is of question of time shall be settled now. If a opinion that the point of order is well taken, replication is needed at all, I think I can say and that the motion of the Senator from Michfor my associates that it will be the common igan, that the proposition of the counsel for the and formal replication, the sic similiter of the accused lie on the table, is not in order. profession, the simple joining issue upon this Several SENATORS. Question, question. answer, and therefore for this purpose it may Mr.JOHNSON. Mr. ChiefJustice,what be considered as filed. is the question? We shall have to be ready at all hazards to- The CHIEF JUSTICE. The question is on morrow to go on with this case, with the uncer- th motion of the counsel for the accused, to tainty of having the court or the.Senate-I beg be allowed thirty days for preparation. pardon for the word " court "-give thirty or Mr. DRAKE. On that question I ask for more days' time in which the counsel may be the yeas and nays. prepared. In otherwords, we shallbe obliged, The yeas and nays were ordered; and being under the high sense of duty which is pressing taken, resulted-yeas 12, nays 41; as follows: upon As, to get ready by day or by night, as the case may be, and then with entire uncertazin' YEAS —Messrs. Bayard,:Buckalew, Davis, Dixon, case may be, and then with entire uncertainty Doolittle, Hendricks, Johnson, McCreery, Norton, as to whether the Senate may or may not grant Pattersori of Tennessee, Saulsbury, and Vickers-12. further time. I think I can say that upon this NAYS-Messrs. Anthony, Cameron, Cattell,Chandquestion we agree with the counsel for the ler, Cole, Conkling, Conness, Corbett, Cragin, Drake, question we tha gree wit h the counseltter for all that it be settled Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, defense that it is better for all that it be settled Grimes, Harlan, Henderson, Howard, Howe, Mornow. I know I speak for the Managers. I gan, Morrill of Maine, Morrill of Vermont, Morton, speak for the House of Representatives when Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart, Sumner, I say it is better to have this point settled now. Thayer, Tipton, Trumbull,Van Winkle,Willey,WilOur subpoenas are out; our witnesses are being liams, Wilson, and Yates-41. summoned. We want to know when to bring NOT VOTING-Mr. Wade-i. them here. Fix a day; tell us when we can The CHIEF JUSTICE. On this question the come here certain, and we will be here. That yeas are 12 and the nays are 41. So the appliis all we desire, sir; and therefore I trust gen- cation for thirty days for preparation is denied. tlemen will fix at this time the hour and the Mr. SHERMAN. I move that the Senato 54 sitting for this purpose adjourn until to-morrow TUESDAY, Ma rch'24, 1868. at one o'clock. Mr. EVARTS. Mr. President The Chief Justice of the United States enMr. HEVRTS. Mr.C President-y. Iwith tered the Senate Chamber at one o'clock p. m. Mr. SHERMAN. Certainly. I withdraw ~~the motion.~ ~escorted by Mr. PomEnoY, chairman of the Mr. EVARTS. I now, Mr. Chief Justice committee heretofore appointed for the purand Senators, move, in behalf of the Presi- pose, took the chair, and directed the Serdent and in the name of his counsel, that geant-at-Arms to open the court by proclamadent and in the name of his counsel, that tion. he be allowed (upon the application which TheSERGEANT-AT-ARMS. Hearye hearye! we have made and in which we have named The SERGEANT AT ARMS. Hearye! hearye! we have made and in which we have named All persons are commanded to keep silence thirty days as a reasonable time) a reasona- while the Senate of the United States is sitting ble time after the replication shall have been for the trial of the articles of impeachment filed, to be now fixed by the Senate in their exhibited by the House of Represent judgment. exhibited by the House of Representatives judgment. JOHNSON.Whattimeisthat against Andrew Johnson, President of the UniMr. JOHNSON. What time is that? ted States. Mr. STANBERY. Such time as the Senate TheCHIEF JUSTIC. TheSecretarywill read the minutes. The CHIEF JUSTICE. The counsel will read the inutes. reduce his otion to writThe Secretary commenced to read the Jourreduce his motion to writing. nal of yesterday's proceedings. Mr. EVARTS. I will state it. I move that nal of yesterdayOs proceedings. on the application we have made, in which we Mr. JOHNSON. Mr. Chief Justice, I subon the application we have made, in which we mit to the Chair whether it is not advisable to have named thirty days as a reasonable time, postpone the reading of the Journal until th there now be allowed to the President of the n ding of the Journal until the United States and his counsel such reasonable Managers and the counsel for the accused are present? time for preparation for trial, after the replica- The CHIEF JUSTICE. The Sergeant tion shall have been filed, as shall now be fixed at-Arms informs the Chief Justice that the by the SenatCHIEF JUSTICE. The cosel will Managers are at the door; and he has directed reduce his motion to writing. Does the the Secretary to suspend the reading of the Senator from Ohio withdraw his motion to The counsel for the respondent,. Messrs. adjourn? Stanbery, Curtis, Evarts, Nelson, and GroesMr. SHERMAN. Yes, sir; but after the beck entered the Chamber and took the seats motion is reduced to writing I will renew it. assigned them. Mr. JOHNSON. Mr. Chief Justice, is the At five minutes past one o'clock the presmotion proposed to be submitted by one of the ence of the managers on the part of the House counsel for the President of the United States of Representatives was announced at the door Thbefore IEF JUSTICE. It is not before of the Senate Chamber by the Sergeant-atThe CHIEF JUSTICE. It is not before the Senate until it has been reduced to writing. The CHIEF JUSTICE. The Managers will Mr. JOHNSON. I thought it had been so please to take their seats within the bar. reduced. The Managers were conducted to the seats The CHIEF JUSTICE. It has not. provided for them. Mr. EVARTS. It is now. provided for them. The CHIEF JUSTICE. The Clerk will The members of the House of Representhreort the order. JUSTICE.TheClerk atives appeared at the door, headed by Mr. report the order. E. B. WASHBURNE, chairman of the CoinThe Chief Clerk read as follows: E. B. ASHBURNE, chairman of the ComThe Chief Clerk read as follows: mittee of the Whole House, and accompanied he counsel for the President now move that thereby the Seaer and Clerk. be allowed for the preparation of the President ofr and Clerk. the United States for the trial, after the replication The CHIEF JUSTICE. The Secretary will shall be filed and before the trial shall bere uired to now read the minutes. roceed, such reasonable time as shall now be fixed The Secretary read the Journal of the proMr. JOHNSON. Mr. Chief Justice, is it in ceedings of Monday, March 23, of the Senate order to amend that motione? sitting for the trial of the articles of impeachSeveral SENATORS. No, no. ment exhibited by the House of RepresentaThe CHIEF JUSTICE. It is in order to tives against Andrew Johnson, President of propose an answer to it; not to amend it the United States. Mr. JOHNSON. I move, then, Mr. Presi- The CHIEF JUSTICE. The Chair will dent, that ten days be allowed after filing the lay before the Senate a resolution which has dreplicnat teion, das e llwe ate flig hebeen received from the House of RepresentaMr. SHERMAN. I move that the Senate tives. sitting as a Court of Impeachment adjourn until The Secretary read as follows: one o'clock to-morrow. IN THE HOUSE OF REPRESENTATIVES, The motion was agreed to; and the Chief March 24, 1868. Justice declared the Senate sitting for the trial Resolved, That a message be sent to the Senate by of the impeachment of Andrew Johnson ad- the Clerk of the House, informing the Senate that the Jof the i mpeachmeno t of Andrew J ohnson ad- House of Representatives has adopted a replication journed until to-morrow at one o'clock. to the answer of the President of the United States, to the articles of impeachment exhibited againsthim, The CHIEF JUSTICE. The question is on and that the same will be presented to the Senate by agreeing to the order. the Managers on the part of the House. Mr. SUMNER. Mr. President, I send to Clerttest: of the Houe of epreentative. the Chair an amendment, to come in immediately after the word I" Ordered," being in The CHIEF JUSTICE. The Senatewill the nature of a substitute. receive the replication of the Managers. The CHIEF JUSTICE. The Senator from Mr. Manager BOUTWELL. Mr. President Massachusetts moves to strike out all after the and Senators, I am charged by the Managers word " Ordered," and to substitute what will with presenting the replication which has been be read by the Secretary. adopted by the House of Representatives: The Secretary read as follows: IN THE HOUSE OF REPRESENTATIVES, Now that replication has been filed,the Senate 1868 adhering to its rule already adopted, will proceed UNITED STATES, March 24, 1868. with the trial from day to day (Sundays excepted) Replication by the House of Representatives unless otherwise ordered on reason shown. of the United States to the answer of An- The CHIEF JUSTICE. The question is on drew Johnson, President of the United States, the amendment by way of substitute. to the Articles of Impeachment exhibited Mr. EDMUNDS. Mr. President, I move against him by the House of Representatives. that the Senate retire to consider the pending The House of Representatives of the Uni- question. ted States have considered the several answers Mr. SUMNER and others. No; no. of Andrew Johnson, President of the United The CHIEF JUSTICE. It is moved by the States, to the several articles of impeachment Senator from Vermont that the Senate retire against him by them exhibited in the name of to consider the question arising upon the order themselves and of all the people of the United moved by the Senator from Maryland and the States, and reserving to themselves all advan- substitute proposed by the Senator from Mastage of exception to the insufficiency of his sachusetts. [Having put the question.] The answer to each and all of the several articles ayes appear to have it. of impeachment exhibited against said Andrew Mr. CONKLING and Mr. SUMNER called Johnson, President of the United States, do for the yeas and nays, and they were ordered; deny each and every averment in said several and being taken, resulted-yeas 29, nays 23; answers, or either of them, which denies or as follows: traverses the acts, intents, crimes, or misde- YEAS-Messrs. Anthony, Bayard, Buckalew, Cormeanors charged against said Andrew John- bett, Davis, Dixon, Doolittle, Edmunds, Fessenden, son in the said articles of impeachment or Fowler, Frelinghuysen, Grimes, Henderson, Hendson in the said articles of impeachment, or ricks, Howe, Johnson, McCreery, Morrill of Maine. either of them; and for replication to said Morrill of Vermont, Morton. Norton, Patterson of answer do say that said Andrew Johnson, New Hampshire.Patterson of Tennessee, Saulsbury, President of the United States, is guilty of liSprgu, Van Winkle, Vickers, Willey, and Wilthe high crimes and misdemeanors mentioned NAYS-Messrs. Cameron, Cattell, Chandler, Cole, in said articles, and that the House of Repre- Conkling, Conness, Cragin, Drake, Ferry, Harlan, sentatives are ready to prove the same. Howard, Morgan, Nye, Pomeroy, Ramsey, Ross, sentatives are ready to prove the same. Sherman, Stewart, Sumner, Thayer, Tipton, TrumSCHUYLER COLFAX, bull, and Wilson-23. Speaker of the House of Representatives. NOT VOTING-Messrs. Wade and Yates —2 EDWARD MCPHERSON, The CHIEF JUSTICE. On this question ClerA oD f the House of Representatives. the yeas are 29 and the nays are 23. So the motion is agreed to, and the Senate will retire The CHIEF JUSTICE. The replication for consultation. will be received by the Secretary and filed. The Senate accordingly, at twenty-five minMr. JOHNSON. Mr. Chief Justice, I move utes past one o'clock, retired, with the Chief that an authenticated copy of the replication Justice, to their conference chamber. be furbished to the counsel of the President. The Senate having been called to order in The motion was agreed to. their conference chamber, The CHIEF JUSTICE. When the Senate The CHIEF JUSTICE stated the question sitting as a court of impeachment adjourned to be on the amendment proposed by Mr. SuMyesterday evening, a motion was pending on NER to the order submitted by Mr. JOHNSON. the part of the counsel for the President that Mr. JOHNSON modified the order submitted such time should be allowed for preparation by him so as to read: as the Senate might please to determine, and Ordered, That the Senate will commence the trial thereupon the Senator from Maryland [Mr. of the President upon the articles of impeachment JOHNSON] submitted an order which will be exhibited against him on Thursday, the 2d of April. read by the Secretary. Mr. WILLIAMS submitted the following The Secretary read as follows: order: Ordered, That the Senate proceed to the trial of Ordered, That the further consideration of the rethe President under the articles of impeachment spondent's application for time be postponed until exhibited against him at the expiration of ten days the Managers have opened their case and submitted from this day, unless for causes shown to the con- their evidence. trary. Mr. CONKLING moved to amend the order 56 proposed by Mr. JOHNsoN, by striking out The Chief Clerk read as follows: "Thursday, the 2d of April," and inserting Ordered, That the Senate will commence the trial 1" Monday, the 30th of March instant." of the President upon the articles of impeachment Mr. SUMNE called for the yeas and nys exhibited against him, on Monday, the 30th of March Mr. SUMNER called for the yeas and nays~ shb instant, and proceed therein with all convenient dison this amendment, and they were ordered; patch, under the rules of the Senate sitting upon the and being taken, resulted-yeas 28, nays 24; trial of an impeachment. as follows: The CHIEF JUSTICE. Have the Managers YEAS-Messrs. Cameron, Cattell, Chandler, Cole, on the part of the House anything further to Conkling, Conness, Cragin, Drake, Ferry, Harlan, propose? Howard, Howe, Morgan, Morrill of Maine, M,:rrill. Mr. Presi of Vermont, Morton, Nye, Patterson of New Hamp- r. Manager BINGHAM. Mr. President, shire, Pomeroy, Ramsey, Ross, Stewart, Sumner, w.e have nothing further to propose. Thayer, Tipton, Willey, Williams, and Wilson-28. The CHIEF JUSTICE. Have the counsel NAYS —Messrs. Anthony, Bayard, Buckalew, Cor- for the respondent anything to propose? bett, Davis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Frelinghuysen, Grimnes, Henderson, lend- [No response.] ricks, Johnson, McCreery, Norton, Patterson of Ten- Mr. Manager BUTLER. Will the President nessee, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, and Vickers-24. Iubull. allow me to give notice to the witnesses on the NOT VOTING-Messrs. Wade and Yates-2. part of the House of Representatives who are So the amendment was agreed to. in attendance, that they must appear here at The CHIEF JUSTICE stated th t one o'clock onAonday, the 30th? The CHI~~F JUSTICE stated the next quis_ ~MIr. EDMUNDS. Half past twelve o'clock. tion to be upon the adoption of the order pro- The rules provide for half past twelve. posed by nMr. WILLIAMS. Mr. Manager BUTLER. Half past twelve Mr. WILLIAMS called for the yeas and o'clock on Monday,the 30th. nays, and they were ordered; and being taken, Mr. WILSON. I move that the Senate sitresulted-yeas 9, nays 42; as follows: ting for the trial of this impeachment adjourn YEAS-Messrs. Anthony, Chandler, Dixon, Grimes, until Monday next at half past twelve o'clock. Harlan, Howard, Morgan, Patterson of Tennessee, The motion was agreed to. and Williams-9. NAYS —Messrs. Bayard, Buckalew, Cameron, Cat- The CHIEF JUSTICE. The Senate sitting tell, Cole, Conkling, Conness, Cragin, Davis, Doo- as a court of impeachment stands adjourned little, Drake, Edmunds, Flerry, Fessenden, Fowler, Frelinghuysen, Henderson, Hendricks, Howe, John- until half past twelve o'clock on Monday next,,son, McCreery, Morrill of Maine, Morrill of Vermont, the 30th instant. Morton, Norton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Saaulsbury, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Trum-h 30, 1868. bull. Van Winkle, Vickers, Willey, and Wilson-42. MONDAY, March 30, 1868. NOT VOTING-Messrs. Corbett, Wade, and At half past twelve o'clock p. m. the Chief Yates-3. Justice of the United States entered the SenSo the order proposed by Mr. WILLIAMS was ate Chamber, escorted by Mr. POIMEROY, chairnot agreed to. man of the committee heretofore appointed The question recurring on the amendment for that purpose. proposed in the Senate Chamber by Mr. Su.i- The CHIEF JUSTICE. The Sergeant-atNER to the order submitted by Mr. JOHNsON, Arms will open the court by proclamation. Mr. SUMNER withdrew his amendment. The SERGEANT-AT-ARMs. Hear ye! hearye! The CHIEF JUSTICE stated the question hear ye I All persons are commanded to keep to be on the order proposed by Mr. JoHNsoN, silence while the Senate of the United States is as amended, as follows: sitting for the trial of the articles of impeachOrdered, That the Senate will commence the trial ment exhibited by the House of Representof the President upon the articles of impeachment atives against Andrew Johnson, President of exhibited against him on MIonday, the 30th of March the United States. instant. The President's counsel, Messrs. Stanbery, Mr. HENDRICKS moved to amend the Curtis, Evarts, Nelson, and Groesbeck entered order by adding thereto the words, "and pro- theChamberandtookthe seatsassignedto them. ceed therein with all convenient dispatch, un- At twelve o'clock and thirty-five minutes der the rules of the Senate sitting upon the p. m. the Sergeant-at-Arms announced the trial of an impeachment." presence of the Managers of the Impeachment The amenldment was adopted; and the order, on the part of the House of Representatives, as amended, was agreed to. and they were conducted to the seats assigned On motion of Mr. MORTON, the Senate to them. agreed to return to the Senate Chamber. Immediately afterward the presence of the The Senate returned to the Chamber, and members of the House of Representatives was the Chief Justice resumed the Chair at twenty- announced, and the members of the Committhree minutes past three o'clock p. m. tee of the Whole House, headed by Mr. E. B. The CHIEF JUSTICE. The Chief Justice WASHBUIRNE, of Illinois, the chairman of that is instructed to inform the counsel for the re- committee, and accompanied by the Speaker spondent that the Senate has agreed upon an and Clerk of the House of Representatives, enorder in response to their application, which tered the Senate Chamber and took the seats will now be read, prepared for them. 57 The CHIEF JUSTICE. The minutes of the The House of Representatives shall solely last day's proceedings will now be read by the impeach; the Senate only shall try; and in Secretary. case of conviction the judgment shall alone be The Secretary read the proceedings of the removal from office and disqualification for Senate sitting on Tuesday, March 24, 1868, for office, oneorboth. These mandatory provisions the trial of Andrew Johnson, President of the became necessary to adapt a well-known proUnited States. - cedure of the mother country to the institutions The CHIEF JUSTICE. Gentlemen, Man- of the then infant Republic. But a single inciagers of the House of Representatives, you will dent only of the business was left to construcnow proceed in support of the articles of im- tion, and that concerns the offenses or incapeachment. Senators will please give their pacities which are the groundwork of impeachattention. ment. This was wisely done, because human Opening Argument of Mr. BUTLER, of MAassa- foresight is inadequate and human intelligence chusetts, one of -the Matnagers on th~e i~m- fails in the task of anticipating and providing peachlnent of the President. for, by positive enactment, all the infinite gradations of human wrong and sin by which the Xr. President and Gentlemen of the Senate: liberties of a people and the safety of a nation The onerous duty has fallen to my fortune may be endangered from the imbecility, corto present to you, imperfectly as I must, the ruption, and unhallowed ambition of its rulers. several propositions of fact and law upon which It may not be uninstructive to observe that the House of Representatives will endeavor to the framers of the Constitution, while engaged sustain the cause of the people against the in their glorious and, I trust, ever-enduring President of the United States, now pending work, had their attention aroused and their at your bar. minds quickened most signally upon this very The high station of the accused, the novelty topic. In the previous year only Mr. Burke, of the proceeding, the gravity of the business, from his place in the House of Commons in the importance of the questions to be presented England, had preferred charges for impeachto your adjudication, the possible momentous ment against Warren Hastings, and three days result of the issues, each and all must plead before our convention sat he was impeached at for me to claim your attention for as long a the bar of the House of Lords for misbehavior time as your patience may endure. in office as the ruler of a people whose num; Now, for the first time' in the history of bers were counted by millions. The mails the world, has a nation brought before its high- were then bringing across the Atlantic, week by est tribunal its chief executive magistrate for week, the eloquent accusations of Burke, the trial and possible deposition from office upon gorgeous and burning denunciations of Shericharges of maladministration of the powers dan, in behalf of the oppressed people of India, and duties of that office. In other times and against one who had wielded over them more in other lands it has been found that despot- than regal power. May it not have been that isms could only be tempered by assassination, the trial then in progress was the determining and nations living under constitutional govern- cause why the framers of the Constitution left ments even have found no mode by which to the description of offenses because of which rid themselves of a tyrannical, imbecile, or the conduct of an officer might be inquired of faithless ruler, save by overturning the very to be defined by the laws and usages of Parfoundation and framework of the Government liament as found in the precedents of the itself. And but recently, in one of the most mother country, with which our fathers were civilized and powerful Governments of the as familiar as we are with our own? world, fromn which our own institutions have In the light, therefore, of these precedents, been largely modeled, we have seen a nation he question arises, What are impeachable submit for years to the rule of an insane king, offenses under the provisions of our Constitubecause its constitution contained no method tion? for him removal. To analyze, to compare, to reconcile these Our fathers, more wisely founding our Gov- precedents is a work rather for the closet than ernment, have provided for such and all similar the forum. In order, therefore, to. spare your exigencies a conservative, effectual, and practi- attention, I have preferred to state the result cal remedy by the constitutional provision that to which I have arrived, and that you may see the " President, Vice President, and all civil the authorities and discussions, both in this officers of the United States shall be removed country and in England, from which we deduce from office on impeachmentfor and conviction our propositions, so far as applicable to this of treason, bribery, or other high crimes and case, I pray leave to lay before you, at the close misdemeanors." The Constitution leaves noth- of my argument, a brief of all the precedents ing to implication, either as to the persons upon and authorities upon this subject in both counwhom, or the body by whom, or the tribunal tries, for which I am indebted to the exhaustive before which, or the offenses for which, or the and learned labors of my friend, Hon. WILLIAM manner in which this high power should be LAWRENCE, of Ohio, member of the Judiciary exercised; each and all are provided for by Committee of the House of Representatives, express words of imperative command. in which I fully concur and which I adopt. 58 We define, therefore, an impeachable high crimes or misdemeanors, either high or low. crime or misdemeanor to be one in its nature Leaving, however, the correctness of our propor consequences subversive of somefundamental osition to be sustained by the authorities we or essential principle of government or highly furnish, we are naturally brought to the conprejudicial to the public interest, and this may sideration of the method of the procedure and consist of a violation of the Constitution, of the nature of the proceedings in cases of imlaw, of an official oath, or of duty, by an act peachment, and the character and powers of committed or omitted, or, without violating a the tribunal by which high crimes and misdepositive law, by the abuse of discretionary meanors are to be adjudged or determined. powers from improper motives, or for any One of the important questions which lmeets improper purpose. us at the outset is: is this proceeding a trial, The first criticism which will strike the mind as that term is understood so far as relates to on a cursory examination of this definition is the rights and duties of a court and jury upon that some of the enumerated acts are not an indictment for crime? Isitnot rather more within the common-law definition of crimes. in the nature of an inquest of office? It is but common learning that in the English The Constitution seems to have determined precedents the words "high crimes and mis- it to be the latter, because, under its provisdemeanors" are universally used; but any mal- ions, the right to retain and hold office is the versation in office highly prejudicial to the only subject that can be finally adjudicated; public interest, or subversive of some funda- all preliminary inquiry being carried on solely mental principle of government by which the to determine that question, and that alone. safety of a people may be in danger, is a high All investigations of fact are, in some sense, crime against the nation, as the term is used trials, but not in the sense in which the word in parliamentary law. is used by courts. Hallam, in his Constitutional History of Again, as a correlative question: England, certainly deduces this doctrine from Is this body, now sitting to determine the the precedents, and especially Lord Danby, accusation of the House of Representatives case 14, State Trials, 600, of which he says: against the President of the United States, the "The Commons, in impeaching Lord Danby, went Senate of the United States or a court? a great way toward establishing the principle that I trust, Mr. President and Senators, I may no minister can shelter himself behind the throne by be pardoned for making some suggestions upon leading obedience to the orders of his sovereign. these topics, because to us it seems these are e is answerable for the justice, the honesty, the utility of all measures emanating from the crown, as questions not of forms, but of substance. If well as for their legality; and thus the executive this body here is a court in any manner as administration is, or ought to be, subordinate in all contradistinguished from the Senate great matters of policy to the superintendence and contradistnguished from the Senate, then we virtual control of the two Houses of Parliament." agree that many, if not all, the analogies of the Mr. Christian, in his notes to the Commenta- procedures of courts must obtain; that the common-law incidents of a trial in court must ries of Blackstone, explains the collocation and lace; that you may be bound in your use of the words " high crimes and misdemean- have place; that you may be bound in your use of the words high crimes and misdemean- proceedings and adjudication by the rules and precedents of the common or statute law; that "When the words'high crimes and misdemeanors, the interest, bias, or preconceived opinions or are used in prosecutions by impeachment the words' high crimes' have no definite signification, but are affinities to the party of the judges may be used merely to give greater solemnityto the charge." open to inquiry, and even the rules of order A like interpretation must have been given and precedents in courts should have efect; by the framers of the Constitution, because a that the Managers of the House of Representalike definition to ours was in the mind of Mr. tives must conform to those rules as they would Madison, to whom more than to any othe we are be applicable to public or private prosecutors indebted for the phraseology of our Constitu- of crime in courts, and that the accused may tion, for, in the First Congress, when discuss- claim the benefit of the rule in criminal cases, ing the power to remove an officer by the that he may only be convicted when the eviPresident, which is one of the very material dence makes the fact clear beyond reasonable questions before the Senate at this moment, he doubt, instead of by a preponderance of the uses the following words: evidence. "The danger consists mainly in this: that the Pres- We claim and respectfully insist, that this ident can displace from office a man whose merits tribunal has none of the attributes of a judirequire he should be continued in it. In the first cial court as they are commonly received and place, he will be impeachable by the House for such understood. Of course this question must be an act of maladministration, for I contend that the wanton removal of meritorious officers would subject largely determined by the express provisions him to impeachment and removal from his own high of the Constitution, and ini it there is no word, trust." as is well known to you, Senators, which gives Strengthening this view, we find that within the slightest coloring to the idea that this is a ten years afterward impeachment was applied court, save that in the trial of this particular by the very men who framed the Constitution respondent the Chief Justice of the Supreme to the acts of public officers which under no Court must preside. But even this provision common-law definition could be justly called can have no determining effect upon the ques 59 tion, because is not this the same tribunal in the natural principles of equity and justice, all its powers, incidents, and duties, when other and that salus populi suprema est lex. civil officers are brought to its bar for trial, Upon these principles and parliamentary law when the Vice President (not a judicial officer) nojudges can aid you, and, indeed, in late years must preside? Can it be contended for a mo- the judges of England in the trial of impeachment that this is the Senate of the United States ment, declined to speak to a question of parwhen sitting on the trial of all other officers, liamentary law, even.at the request of the and a court only when the President is at the House of Peers, although they attended on bar, solely because in this case the Constitu- them in their robes of office. tion has designated the Chief Justice as the Nearly five hundred years ago, in 1388, the presiding officer? House of Lords resolved, in the case of BelThe fact that Senators are sitting for this knap and the otherjudges, "That these matters. purpose on oath or affirmation does not infiu- when brought before them, shall be discussed ence the argument, because it is well under- and adjudged by the course of Parliament, and stood that that was but a substitute for the not by the civil law, nor by the common law obligation of honor under which, by the the- of the land used in other inferior courts." ory of the British constitution, the peers of And that resolution, which was in contraEngland were supposed to sit in like cases. vention of the opinion of all the judges of A peer of England makes answer in a court England, and against the remonstrance of of chancery upon honor when a common per- Richard II, remains the unquestioned law of son must answer upon oath. But our fathers, England to this day. sweeping away all distinctions of caste, re- Another determining quality of this tribunal, quired every man alike, acting in a solemn distinguishing it from a court and the analogies proceeding like this, to take an oath. Our of ordinary legal proceedings, and showing that Constitution holds all good men alike honor- it is a Senate only, is, that there can be no right able and entitled to honor. of challenge by either party to any of its memThe idea that this tribunal was a court seems bers for favor or malice, affinity, or interest. to have crept in because of the analogy to This has been held from the earliest times in similar proceedings in trials before the House Parliament even when that was the high court of Lords. of judicature of the realm sitting to punish all Analogies have ever been found deceptive crimes against the peace. and illusory. Before such analogy is invoked In the case of the Duke of Somerset, (1 we must not forget that the Houses of Parlia- Howell's State Trials, page 521,) as early as ment at first, and latterly the House of Lords, 1551, it was held that the Duke of Northumclaimed and exercised jurisdiction over all berland and the Marquis of Northampton and crimes, even where the punishment extended the Earl of Pembroke, for an attempt upon to life and limb. By express provision of our whose lives Somerset was on trial, should sit Constitution all such jurisdiction is taken from in judgment upon Lim against the objection of the Senate and " the judicial power of the the accused because "a peer of the realm United States is vested in one Supreme Court might not be challenged." and such inferior courts as from time to time Again, the Duke of Northumberland, (ibid., Congress may ordain and establish." 1 State Trials, p. 765,) Marquis of NorthWe suggest, therefore, that we are in the iampton, and Earl of Warwick, being on trial presence of the Senate of the United States, for their lives, A. D. 1553, before the court convened as a constitutional tribujal, to in- of the Lord High Steward of England, one of quire into and determine whetherAndrew John- the prisoners inquired whether any such person, because of malversation in office, is longer sons as were equally culpable in that crime, fit to retain the office of President of the United and those by whose letters and commandments States, or hereafter to hold any office of honor he was directed in all his doings, might be his or profit. judges, or pass upon his trial at his death. It I respectfully submit that thus far your mode was answered that, "If any were as deeply to of proceeding has no analogy to that of a court. be touched as himself in that case, yet as long You issue a summons to give the respondent as no attainder of record were against them, notice of the case pending against him. You they were nevertheless persons able in the law do not sequester his person-you do not require to pass upon any trial, and not to be challenged his personal appearance even; you proceed therefor, but at the prince's pleasure." against him and will go on to determine his Again, on the trial of Earls of Essex and cause in his absence, and make the final order Southampton (ibid., 1 State Trials, p. 1335) therein. How different is each step from those for high treason, before all the justices of Engof ordinary criminal procedure. land, A. D. 1600, the Earl of Essex desired A constitutional tribunal solely, you are to know of my Lord Chief Justice whether he bound by no law, either statute or common, might challenge any of the peers or no. Wherewhich may limit your constitutional preroga- unto the Lord Chief Justice answered "No." tive. You consult no precedents save those Again, in Lord Audley's case (ibid., 3 State of the law and custom of parliamentary bodies. Trials, p. 402, A. D., 1631) it was questioned You are a law unto yourselves, bound only by whether a peer might challenge his peers, as 60 in the case of common jurats. It was answered of impeaching Judge Pickering, were Senators by all the judges, after consultation, " he might when his trial came off. not." [This case is of more value because it Mr. Smith, of New York, raised the queswas an indictment for being accessory to rape tion, byasking to beexcused from voting. Mr. upon his own wife, and had no political influ- Smith, of Maryland, declared "he would not ence in it whatever.] The same point was be influenced from his duty by any false deliruled in the Countess of Essex's case, on trial cacy; that he, for his part, felt no delicacy for treason. (Moore's Reports, 621.) upon the subject; the vote he had given in the In the Earl of Portland's case, A. D. 1701, other House to impeach Judge Pickering would (ibid., State Trials, p. 288,) the Commons have no influence upon him in the court; his objected that Lord Sommers, the Earl of Ox- constituents had a right to his vote, and he ford, and Lord Halifax, who had been im- would not by any act of his deprive, or consent peached by the Commons before the House of to deprive, them of that right, but would claim Lords for being concerned in the same acts for and exercise it upon this as upon every other which Portland was being brought to trial, question that might be submitted to the Senate voted and acted with the House of Lords in while he had the honor of a seat." the preliminary proceedings of said trial, and A vote being had upon the question, it was were upon a committee of conference in rela-'determined that these gentlemen should sit and tion thereto. But the lords after discussion vote on the trial. This passed in the affirmasolemnly resolved " that no lord of Parliament, tive by a vote of 19 to 7, and all the gentlemen impeached of high crimes and misdemeanors, sat and voted on every question during the can be precluded from voting on any occasion, trial. except on his own trial." On the trial of Samuel Chase before the In the trial of Lord Viscount Melville, A. D. Senate of the United States no challenge was 1806, (ibid., 29 State Trials, p. 1398,) some ob- attempted, although the case was decided by servations having been made as to the possible an almost strict party vote in high party times, bias.of some portion of the peers, (by the and doubtless many of the Senators had formed counsel for defendant,) Mr. Whitebread, one and expressed opinions upon his conduct. of the managers on the part of the Commons, That arbitrary judge, but learned lawyer, answered as fbllows: knew too much to attempt any such futile "My lords, as to your own court, something has movement as a challenge to a Senator. Cerbeen thrown out about the possibility of a challenge. tain it is that the proprieties of the occasion Upon such a subject it will not be necessary to say were not marred by the worse than anomalous more than this, which has been admitted: that an order was given by the House of Commons to prose- proceeding of the challenge of one Senator to cute Lord Melville in a court of law where he would another, especially before the defendant had have the right to challenge his jurors." * a eared. * "What did the noble viscount then do y the ared. means of one of his friends?" * * * * Nor did the managers exercise the right of " From the mouth of that learned gentleman came at challenge, although Senators Smith and Mitchlast the successful motion:'that Henry, Viscount of ell, of New York, were members of the Senate Melville, be impeached of high crimes and misdemeanors.' I am justified, then, in saying that he on the trial and voted not guilty on every aris hereby his own option." * * *. "But, ticle, who had been members of the House my lords, a challenge to Yourlordshipsl Is not every when the. articles were found, and had there individual peer the guardian of his own honor?" voted steadily against the whole proceeding. In the trial of Warren Hastings the same Judge Peck's case, which was tried in 1831, point was ruled, or, more properly speaking, affords another instance in point. taken for granted, for of the more than one The conduct of Judge Peck had been the hundred and seventy peers who commenced subject of much animadversion and comment the trial but twenty-nine sat and pronounced by the public, and had been for four years the verdict at the close, and some of those pending before the Congress of the United were peers created since the trial began, and States before it finally came to trial. It was had not heard either the opening or much of not possible but that many of the Senate had the evidende; and during the trial there had both formed and expressed opinions upon been by death, succession, and creation, more Peck's proceedings, and yet it never occurred than one hundred and eighty changes in the to that good lawyer to make objection to his House of Peers. who were his judges. triers. Nor did the managers challenge, alWe have abundant authority also on this though Webster. of Massachusetts, was a mempoint in our own country. ber of the committee of the House of RepreIn the case of Judge Pickering, who was sentabtives to whom the petition for impeachment *tried in March, 1804, for drunkenness in office, was referred, and which, after examination, although undefended in form, yet he had all reported thereon "leave to withdraw," and his rights preserved. Sprague, of Maine, voted against the proceedThis trial being postponed a session, three ings of the House, while Livingston, of LouisSenators-Samuel Smith of Maryland, Israel iana, voted for them. All of these gentlemen Smith of Vermont, and John Smith of New sat upon the trial, and voted as they did in the York-who had all been members of the House House. of Representatives, and there voted in favor A very remarkable and instructive case was 61 that of Judge Addison, of Pennsylvania, in no trial could go forward, because every intel1804: There, after the articles of impeach- ligent Senator could be objected to upon one ment were framed, the trial was postponed to side or the other. another session of the Legislature. Meanwhile I should have hardly dared to trouble the three members of the House of Representatives, Senate with such minuteness of citation and who had voted for the articles of impeachment, argument upon this point, were it not that cerwere elected to the Senate and became the tain persons and papers outside of this body, triers of the articles of impeachment of which by sophistries drawn from the analogies of the they had solemnly voted the respondent to be proceedings in courts before juries. have enguilty. To their sitting on the trial Judge deavored, in advance, to prejudice the public Addison objected, but after an exhaustive mind, butlittle instructed in this topi:, because argument his objection was overruled-17 to 6. of the infrequency of impeachments, against Two of the minority were the gentlemen who the legal validity and propriety of the proceedhad voted him guilty, and who themselves ings upon this trial. objected to sitting on the trial. I may be permitted, without offense, further Thus stands the case upon authority. How to state that these and similar reasons have does it stand upon principle? prevented the Managers from objecting by In a conference held in 1691, between the challenge or otherwise to the competency of Lords and Commons, on a proposition to limit one of the triers of near affinity to the accused. the number of judges, the Lords made answer: We believe it is his right, nay, his duty to the " That in the case of impeachments, which are the State he represents, to sit upon the trial as he groans of the people, and for the highest crimes, and would upon any other matter which should carry with them a greater supposition of guilt than come beore the enate. is seat and vote any other accusation, there all the lords mustjudge." come before the Senates His seat and vote belong to his constituents, and not to himself, There have been many instances in England to be used according to his best judgment upon where this necessity, that no peer be excused everygravematterthat comesbefore the Senate. from sitting on such trials, has produced curi- Again,as political considerations areinvolved ous results. Brothers have sat upon the trials in this trial, raising questions of interest to the of brothers, fathers upon the trials of sons and constituents of every Senator, it is his right and daughters, uncles upon the trials of nephews duty to express himself as fully and freely upon and nieces; no excuse being admitted. such questions as upon any other, even to One, and a most peculiar and painful in- express a belief in the guilt or innocence of the stance, will suffice upon this point to illustrate accused, or to say he will sustain him in the the strength of the rule. In the trial of Anne course he is taking, although he so says after Bullen, the wife of one sovereign of England accusation brought. Let me illustrate. Supand the mother of another, her father, Lord pose that after this impeachment had been voted Rochefort, and her uncle, the Duke of Norfolk, by the House of Representatives the constituents sat as judges and voted guilty, although one of of any Senator had called a public meeting to the charges against the daughter and niece was sustain the President against what they were a criminal intimacy with her brother, the son pleased to term the " tyrannical acts of Conand nephew of the judges. gress toward him in impeaching him," and It would seem impossible that in a proceed- should call upon their Senator to attend and ing before such a tribunal so constituted there take part in such meeting, I do not conceive could be a ahallenge, because, as the number that it would or ought to be legally objected of triers is limited by law, and asthere are not against him as a disqualification to sit upon this now, and never have been, any provisions, trial, upon the principles I have stated, if he either in England or in this country, for sub- should attend the meeting or favor the object, stituting another for the challenged party, as a or if his engagements in the Senate prevented talesman is substituted in a jury, the accused his leaving. I have not been able to find any might escape punishment altogether by chal- legal objection in the books to his writing a letlenging a sufficient number to prevent a quo- ter to such meeting, containing, among other rum, or the accuser might oppress the respond- things, statements like the following: ent by challenging all persons favorable to him until the necessary unanimity for conviction SENATE CHAMBER, Februars 21, 18G8. was secured. GENTLEMEN: My public and professional engagements will be such on the 4th of March that I am This proceeding being but an Inquest of reluctantly compelled to decline your invitation to office, and, except in a few rare instances, be present and address the meeting to be held in our always partaking, more or less, of political con- city on that dy. * * * *alwas partaking. more or less, of political con- That the Presidentof the United States has sincerely siderations, and requiring to be discussed, before endeavored to preserve these (our free institutions) presentation to the triers, by the coordinate from violation I have no doubt, and I have, therebranch of the Legislature, it is impossible that fore, throughout the unfortunate difference of opinion between him and Congress, sustained him. And this Senators should not have opinions and convic- I shall continue to do as long as he shall prove faithtions upon the subject-matter more or less de- ful to duty. With my best thanks for the honor you cidedly formed before the case reaches them. have done me byyour invitation, and regrettingthat it is not in my power to accept it, If, therefore, challenges could be allowed be- I remain, with regard, your obedient servant, cause of such opinions, as in the case of jurors, REVERDY JOHNSON. 62 We should have as much right to expect his the Senate being in session, in violation Qf the vote on a clearly-proven case of guilty as had tenure-of-office act, and with intent to violate King Henry VIII to hope for the vote of her it and the Constitution, there being no vacancy father against his wife. He got'it. in the office of Secretary of War. King Henry knew the strength of his case, Article three alleges the same act as done and we know the strength of ours against this without authority of law, and alleges an intent respondent. to violate the Constitution. If it be said that this is an infelicity, it is a Article four charges that the President consufficient and decisive answer that it is the in- spired with Lorenzo Thomas and divers other felicity of a precise constitutional provision, persons, with intent, by intimidation and which provides that the Senate shall have the threats, to prevent Mr. Stanton from holding the sole power to try impeachments, and the only office of Secretary of War, in violation of the security against bias or prejudice on the part Constitution and of the act of July 31, 1861. of any Senator is, that two thirds of the Sena- Article five charges the same conspiracy with tors present are necessary for conviction. Thomas to prevent Mr. Stanton's holding his To this rule there is but one possible excep- office, and thereby to prevent the execution of tion, founded on both reason and authority, the civil-tenure act. that a Senator may not be a judge in his own Article six charges that the President concase. spired with Thomas to seize and possess the I have thought it necessary to determine the property under the control of the War Departnature and attributes of the tribunal before ment by force, in contravention of the act of we attend to the scope and meaning of the July 31, 1861, and with intent to disregard the accusation before it. civil tenure-of-office act. The first eight articles set out in several dis- Article seven charges the same conspiracy, dinct forms the acts of the respondent in'remov- with intent only to violate the civil tenure-ofing Mr. Stanton from office, and appointing Mr. office act. Thomas ad interim, differing in legal effect in Articles three, four, five, six and seven, may the purposes for which and the intent with all be considered together, as to the proof to which either or both of the acts were done, support them. and the legal duties and rights infringed and It will be shown that, having removed Stanthe acts of Congress violated in so doing. ton and appointed Thomas, the President sent All the articles allege these acts to be in Thomas to the War Office to obtain possession; contravention of his oath of office, and in dis- that having been met by Stanton with a denial regard of the duties thereof. of his rights, Thomas retired, and after conIf they are so, however, the President might sultation with the President Thomas asserted have the power to do them under the law; still, his purpose to take possession of the War Office being so done, they are acts of official miscon- by force, making his boast in several public duct, and, as we have seen, impeachable. places of his intentions so to do, but was preThe President has the legal power to do vented by being promptly arrested by process many acts which, if done in disregard of his from the court. duty, or for improper purposes, then the exer- This will be shown by the evidence of Hon. cise of that power is an official misdemeanor. Mr. VAN HoRN, a member of the House, who Ex. gr.: he has the power of pardon; if ex- was present when the demand for possession ercised in a given case for a corrupt motive, as of the War Office was made by General Thomas, for the payment of money, or wantonly par- already made public. doning all criminals, it would be a misdemeanor. By the testimony of Hon. Mr. BURLEIGH, Examples might be multiplied indefinitely. who, after that, in the evening of the 21st of Article first, stripped of legal verbiage, al- February, was told by Thomas that he intended leges that, having suspended Mr. Stanton and to take possession of the War Office by force reported the same to the Senate, which refused the following morning, and invited him up to to concur in the suspension, and Stanton hav- seethe performance. Mr. BURLEIGH attended, ing rightfully resumed the duties of his office, but the act did not come off, for Thomas had the respondent, with knowledge of the facts, been arrested and held to bail. issued an order which is recited for Stanton's By Thomas boasting at Willard's Hotel on removal, with intent to violate the act of March the same evening that he should call on Gen2, 1867, to regulate the tenure of certain civil eral Grant for military force to put him in posoffices, and with the further intent to remove session of the office, and he did not see how Stanton from the office of Secretary of War, Grant could refuse it. then in the lawful discharge of its duties, in Article eight charges that the appointment contravention of said act, without the advice of Thomas was made for the purpose of getand consent of the Senate, and against the ting control of the disbursement -of moneys Constitution of the United States. appropriated for the military service and DeArticle two charges that the President, with- partment of War. out authority of law, on the 21st of February, In addition to the proof already adduced it 1868, Issued letter of authority to Lorenzo will be shown that, after the appointment of Thomas to act as Secretary of War ad interim, Thomas, which must have been known to the 63 members of his Cabinet, the President caused are concerned-unless such corrupt purposes a formal notice to be served on the Secretary are shown, as will of themselves make the exerof the Treasury to the end that the Secretary cise of a legal power a crime-the respondent might answer the requisitions for money of must go, and ought to go quit and free. Thomas, and this was only prevented by the Therefore, by these articles and the answers firmness with which Stanton retained posses- thereto, the momentous question, here and sion of the books and papers of the War Office. now, is raised whether the presidential office It will be seen that every fact charged in itself (if it has the prerogatives and power article one is admitted by the answer of the claimed for it) ought, in fact, to exist as a respondent; the intent is also admitted as part of the constitutional government of afree charged; that is to say, to set aside the civil people, while by the last three articles the simtenure-of-office act, and to remove Mr. Stan- pler and less important inquiry is to be determton from the office of the Secretary for the ined, whether Andrew Johnson has so conDepartment of War without the advice and ducted himself that he ought longer to hold consent of the Senate, and, if not justified, any constitutional office whatever. The latter contrary to the provisions of the Constitution sinks to merited insignificance compared with itself. the grandeur of the former. The only question remaining is, does the If that is sustained, then a right and power respondent justify himself by the Constitution hitherto unclaimed and unknown to the people and laws? of the country is ingrafted on the Constitution, On this he avers, that by the Constitution most alarming in its extent, most corrupting there is "conferred on the President, as a part in its influence, most dangerous in its tendof the executive power, the power at any and encies, and most tyrannical in its exercise. all times of removing from office all executive Whoever, therefore, votes ",not guilty" on officers for cause, to be. judged of by the Presi- these articles votes to enchain our free intitudent alone, and that he verily believes that the tions, and to prostrate them at the feet of any executive power of removal from office con- man who, being President, may choose to confided to him by the Constitution, as aforesaid, trol them. includes the power of suspension from office For this most stupendous and unlimited preindefinitely." rogative the respondent cites no line and adNow, these offices so vacated must be filled duces no word of constitutional enactment; temporarily, at least, by his appointment, be- indeed he could not, for the only mention of cause government must go on; there can be removal from office in the Constitution is as a no interregnum in the execution of the laws in part of the judgment in case of impeachment, an organized Government; he claims, there- and the only power of appointment is by nomfore, of necessity, the right to fill their places ination to the Senate of officers to be appointed with appointments of his choice, and that this by their advice and consent, save a qualified power cannot be restrained or limited in any and limited power of appointment by the Presidegree by any law of Congress, because, he dentwhentheSenateis notinsession. Whence, avers, I" that the power was conferred, and the then, does the respondent by his answer, claim duty of exercising it in fit cases was imposed to have derived this power*? I give him the on the President by the Constitution of the benefit of his own words, " that it was practiUnited States, and that the President could cally settled by the First Congress of the Uninot be deprived of this power or relieved of ted States." Again, I give him the benefit of this duty, nor could the same be vested by law his own phrases as set forth in his messsage to in the President and the Senate jointly, either the Senate of 2d of March, 1867, made a part in part or whole." of his answer: " the question was decided by This, then, is the plain and inevitable issue the House of Representatives by a vote of 34 before the Senate and the American people: to 20, (in this, however, he is mistaken,) and Has the President, under the Constitution, in the Senate by the casting vote of the Vice the more than kingly prerogative at will to re- President." In the same answer he admits move frmln office and suspend from office indefi- that before he undertook the exercise of this nitely, all executive officers of the United States, most dangerous and stupendous power, after either civil, military, or naval, at any and all seventy-five years of study and examination times, and fill the vacancies with creatures of of the Constitution by the people living under his own appointment, for his own purposes, it, another Congress has decided that there without any restraint whatever, or possibility was no such unlimited power; so that he adof restraint by the Senate'or by Congress mits that this tremendous power which he through laws duly enacted? claims from the legislative construction of one The House of Representatives, in behalf of Congress by a vote of 34 to 20 in the House the people, join this issue by affirming that the and a tie vote in the Senate has been denied exercise of such powers is a high misdemeanor by another House of more than three times in office.' the number of members by a vote of 133 to If the affirmative is maintained by the re- 37, and by a Senate of more than double the spondent, then, so far as the first eight articles number of Senators by a vote of 38 to 10, and 64 this, too, after he had presented to them all solely as a prerogative of executive power and, the arguments in its favor that he could find therefore, illimitable and uncontrollable? Have to sustain his claim of power. the people anywhere else in the Constitution If he derives this power from the practical granted illimitable and uncontrollable powers settlement of one Congress of a legislative con- either to the executive or any other branch of struction of the constitutional provisions, why the Government? Is not the whole frame of may not such construction be as practically set- government one of checks, balances, and limittled more authoritatively by the greater una. ations? Is it to be believed that our fathers, nimity of another Congress-yea, as we shall just escaping from the oppressions of monsee, of many other Congresses? archical power, and so dreading it that they The great question, however, still returns feared the very name of king, gave this more upon us, whence comes this power? How than kingly power to the Executive, illimitaderived or conferred? Is it unlimited and un- ble and uncontrollable, and that, too, by implirestrained, illimitable and unrestrainable, as cation merely? the President claims it to be? Upon this point our proposition is, that the In presenting this topic it will be my duty, Senate being in session, and an office, not an and I shall attempt to do nothing more, to inferior one, within the terms of the Constitustate the propositions of law and the authori- tion, being filled, the President has the implied ties to support them, so far as they may come power of inaugurating the removal only by to my knowledge, leaving the argument and nomination of a successor to the Senate, which, illustrations of the question to be extended in when consented to, works the full removal and the close by abler and better hands. supersedeas of the incumbent. Such has been, If a power of removal in the Executive is it is believed, the practice of the Government found at all in the Constitution it is admitted from the beginning down to the act about which to be an implied one, either from the power we are inquiring. Certain it is that Mr. Webof appointment or because'" the executive ster, in the Senate in 1835, so asserted without power is vested ih the President." contradiction, using the following language: Has the executive power granted by the Con- " If one man be Secretary of State and another be stitution by these words any limitations? Does appointed, the first goes out by the mere force of the,yteseordanyimia?Doewiths appointment of the other, without any previous act the Constitution invest the President with all of removal whatever. And thisis the practiceof the executive power, prerogatives, privileges, and Government, and has been from the first. In all the immunities enjoyed by executive officers of removals which have been made they have generally been effected simply by making other appointments. other countries-kings and emperors-without I cannot find a case to the contrary. There is no such limitation? If so, then the Constitution has thing as any distinct official act of removal. I have been much more liberal in g~ranting poswers to looked into the practice, and caused inquiries to be been much more liberal in granting powers to made in the Departments, and I do not learn that the executive than to the legislative branch of any such proceeding is known as an entry or record the Government, as that has only " all legis- of the removal of an officer from office, and the Preslative powers herein granted Ewhbich] shall be ident would only act in such cases by causing some [i statbes proper record or entry to be made as proof of the fact vested in the Congress of the United States;" of removal. I am aware that there have been some not all uncontrollable legislative powers, as cases in which notice has been sent to persons in office there are many limitations upon that power as that theirservices are orwillbe, after a given day, disthxerciscl yte m an limitaton upn tha pg owr a ensed with. These are usually cases in which the obexercised by the Parliament of England, forjectis notto inform the incumbentthathe isremoved, example. So there are many executive powers but to tell him that a successor either is, or by a day expressly limited in the Constitution, such as named will be, appointed. If there be any instances in which such notice is given, without express referdeclaring war, making rules and regulations enceto the appointmentof a successor, they are few; for the government of the Army and Navy, and and even in these such reference must be implied, coining money. because in no case is there any distinct official act of removal, as I can find, unconnected with the act of As some executive powers are limited by the appointment." Constitution itself, is it not clear that the words This would seem to reconcile all the provis"the executive power is vested in ihe Presi- ions of the Constitution, the right of removal dent" do not confer on him all executive being in the President, to be executed sub powers, but must be construed with reference modo, as is the power of appointment, the apto other constitutional provisions granting or pointment, when consummated, making the regulating specific powers? The executive removal. power of appointment is clearly limited by the This power was elaborately debated in the words: First Congress upon the bills establishing a "He shallnominate, and, byandwiththeadviceand Department of Foreign Affairs and the War consent of the Senate, shall appoint, embassadors," *and all other officers of theUni Department. Thedebate arose on the motion, ted States whose appointments are not herein other- in Committee of the Whole, to strike out, after wise provided for, and which shall be established by the title of the officer, the words, "to be relaw." movable from office by the President of the It is not, therefore, more in accordance with United States." It was four days discussed in the theory of the Constitution to imply the power Committee of the Whdle in the House, and the of removal from the power of appointment, re- clause retained by a vote of 20 yeas to 34 nays, strained by like limitations, than to imply it which seemed to establish the power of removal 65 as either by a legislative grant or construction submit that taking the whole action of Conof the Constitution. But the triumph of its gress together it is very far from being determfriends was short-lived, for, when the bill came ined. I should hardly have dared, in view up in the House, Mr. Benson moved to amend of the eminent names of Holmes, Clay, Webit by altering the second section of the bill, so ster, and Calhoun, that have heretofore made as to imply only the power of removal to be in the admission, to have ventured the assertion, the President, by inserting that "whenever the were it not that in every case they, as do the principal officer shall be removed from office by President and his counsel, rely on the first vote the President of the United States, or in any in the Committee of the Whole, sustaining the other case of vacancy, the chief clerk shall, words "to be removable by the President," during such vacancy, have charge and custody and in no instance take any notice of the subof all records, books, and papers appertaining sequent proceedings in the House by which to the Department." those words were taken out of the bill. This Mr. Benson "declared he would move to may have happened because Eliot's Debates, strike out the words in the first clause, to be which is the authority most frequently cited in removable by the President, which appeared these discussions, stops with the vote in comsomewhat like a grant. Now, the mode he took mittee, and takes no notice of the further diswould evade that point and establish a legisla- cussion. But whatever may be the effect of tive construction of the Constitution. He also this legislative construction the contemporahoped his amendment would succeed in recon- neous and subsequent practice of the Governciling both sides of the House to the decision ment shows that the President made no reand quieting the minds of the gentlemen." movals except by nominations to the Senate After debate the amendment was carried, 30 when in session, and superseding officers by a to 18. Mr. Benson then moved to strike out new commission to the confirmed nominee. the words "to be removable by the President Mr. Adams, in that remarkable letter to Mr. of the United States," which was carried, 31 Pickering in which he desires his resignation, to 19; and so the bill was engrossed and sent requests him to send it early in order that he to the Senate. may nominate to the Senate, then about to sit, The debates of that body being in'secret ses- and he in fact removes Mr. Pickering by a sion, we have no record of the discussion which nomination. Certainly no such unlimited power arose on the motion of Mr. Benson establish- has ever been claimed by any of the earlier ing the implied power of removal; but after Presidents, as has now been set up for the very elaborate consideration on several suc- President by his most remarkable, ay, criminal! cessive days the words imply4ng this power in answer. the President were retained by the casting vote It will not have escaped attention that no of the elder Adams, the Vice President. So determination was made by that legislative conthis claimed " legislative settlement" was only struction as to how the removal, if in the Presestablished by the vote of the second exec- ident's power, should be made, which is nowutive officer of the Government. AiaL I most the question in dispute. That has been determof our woes in this Government have come ined by the universal practice of the Govfrom Vice Presidents. When the bill estab- ernment, with exceptions, if any, so rare as lishing the War Department came up the same not to be worthy of' consideration; so tha we words, "to be removable by the Prosi lent," now claim the law to be what the practice has were struck out, on the motion of one of the ever been. If, however, we concede the power opponents of the recognition of this pos er, by of removal to be in the President as an implied a vote of 24 to 22, a like amendment to that power, yet we believe. it cannot be successtully of the second section of the act establishing contended upon any authorities or constant the Department of State being inserted. When, practice of the Goverment that the execution six years afterward, the Department of the of that power may not be regulated by the (onNavy was established, no such recognition of gress of the United States under the clause iln the power of the President to remove was in- the Constitution which ",vests in Congress the serted; and as the measure passed by a strict power to make all laws which shall be necesparty vote, 47 yeas to 41 nays, it may well be sary and proper for carrying into executiol'" conceived that its advocates did not care to "all powers vested by this Constitution in the, load it with this constitutional question when Government of the United States or in anv the executive power was about passing into department or officer thereof." other hands, for one cannot read the debates This power of regulation of the tenure of upon this question without being impressed office, and the manner of removal, has always with the belief that reverence for the'character been exercised by Congress unquestioned until of Washington largely determined the argument now. in the First Congress. Neither party did or On the 15th of May, 1820, (vol. 3 Statutes-atcould have looked forward to such an execu- Large, p. 582,) Congress provided for the term tive administration as we have this day. of office of certain officers therein named to be It has generally been conceded in subse- four years, but made them removable at pleasquent discussions that here was a legislative ure. By the second section of the same act determination of this question, but 1 humbly Congress removed from office all the officers C. 1.-5. 66 therein commissioned, in protiding a date when efficiency of government, and for this purpose each commission should expire. Congress has reported six bills-one, to regulate the publicthus asserted a legislative power of removal ation of the laws and public advertisements; from office; sometimes by passing acts which another, to secure in office faithful collectors appear to concede the power to the President and disbursers of the revenues, and to displace to remiove at pleasure, sometinles restricting defaulters-the first section of which vacated that power in their acts by the most stringent the commissions of " all officers, after a given provisions; sometimes conferring the power of date, charged with the collection and disburseremoval, and sometimes that of appointment- ment of the public moneys who had failed to the acts establishing the territorial officers being account for such moneys on or before the 30th most conspicuous in this regard. day of September preceding;" and the second Upon the whole, no claim of exclusive right section enacted that " at the same time a nomiover removals or appointments seems to have nation is.made to fill a vacancy occasioned by been made either bX the Executive or by Con- the exercise of the President's power to remove gress. No bill was ever vetoed on this account from office, the fact of the removal shall be until now. stated to the Senate, with a report of the reaIn 1818. Mr. Wirt, then Attorney General, sons for which such officers may have been regiving the earliest official opinion on this ques- moved; also a bill to regulate the appointment tion coming from that office, said that only of postmasters; and a bill to prevent military where Congress had not undertaken to restrict and naval officers from being dismissed the the tenure of office, by the act creating it, service at the pleasure of the President, by in.,would a commission issue to run during the serting a clause in the commission of such offi-,pleasure of the President; but if the tenure cers that "it is to continue in force during good *was fixed by law, then commission must con- behavior," and " that no officer shall ever here-,:formn to the law. No constitutional scruples after be dismissed the service except in pursuas to the power of Congress to limit the tenure ance of the sentence of a court-martial, or of office seem to have disturbed the mind of upon address to the President from the two that great lawyer. But this was before any Houses of Congress." attempt had been made by any President to Is it not remarkable that exactly correlative arrogate to himself the official patronage for measures to these have been passed by the the purpose of party or personal aggrandize- Thirty-Ninth Congress, and are now the subment, which gives the only value to this opin- ject of controversy at this bar? ion as an authority. Since the Attorney Gen- It does not seem to have occurred to this eral's office has become a political one, I shall able committee that Congress had not the not trouble the Senate with citing or examin- power to curb the Executive in this regard, ing the opinions of its occupants. because they asserted the practice of dismissIn 1826 a committee of the Senate, consist- ing from office I" to be a dangerous violation ir.g of Mr. Benton of Missouri, chairman, Mr. of the Constitution." Macon of North Carolina, Mr. Van Buren of In 1830 Mr. Holmes introduced and disNew York, Mr. Dickerson of New Jersey, Mr. cussed in the Senate a series of resolutions Johnson of Kentucky, Mr. White of Tennes- which contained, among other things, "the see, Mr. Holmes of Maine, Mr. Hayne of South right of the Senate to inquire, and the duty of Carolina, and Mr. Findlay of Pennsylvania, the -President to inform them, when and for was appointed to take into considteration the what causes any officer has been removed in question of restraining the power of the Pres- the recess." In 1835 Mr. Calhoun, Mr. Southident over removals from office, who made a ard, Mr. Bibb, Mr. Webster, Mr. Benton, and report through their chairman, Mr. Benton, Mr. King of Georgia, of the Senate, were setting forth the extent of the evils arising from elected a committee to consider the subject of the power of appointment to, and removal from, executive patronage, and the means of limitoffice by the President, declaring that the Con- ing it. That committee, with but one dissentstitution had been changed in this regard, and ing voice, (Mr. Benton,) reported a bill which that " construction and legislation have accom- provided in its third section " that in all nomplishedthis change,"''. and submitted twoamend- inations made by the President to the Senate, ments to the Constitution, one providing a to fill vacancies occasioned by removal from direct election of the President by the people, office, the fact of the removal shall be stated and another "' that no Senator or Represent- to the Senate at the same time that the nominaative should be appointed to any place until tion is made, with a statement of the reasons the expiration of the presidential term in which for such removal." such person shall have served as Senator or It will be observed that this is the precise Representative," as remedies for some of the section reported by Mr. Benton in 1826, and evils complained of; but..the committee say passed to a second reading in the Senate. that, " not being able to reform the Constitu- After much discussion, the bill passed the Sention, in the election of President, they must go ate, 31 yeas, 16 nays-an al'most two-thirds to work upon his powers, and trim down these vote. Thus it would seem that the ablest men by statutory enactments whenever it can be of that day, of both political parties, subdone bylaw and with a just regard to the proper scribed to the power of Congress to limit and 67 control the President in his removal from done incidentally, for reasons hereafter to be office. stated,) that he could remove Mr. Stanton One of the most marked instances of the provided the office of Secretary of War comes assertion of this power in Congress will be within its provisions, and one claim made here found in the act of February 25, 1863, provid- before you, by the answer, is that that office is ing for a national currency and the office of excepted by the terms of the law. Of course I Comptroller. (Statutes-at-Large, vol. 12, p. shall not argue to the Senate, composed mostly 665.) This controls both the appointment and of those who passed the bill, what their wishes the removal of that officer, enacting that he and intentions were. Upon that point I canshall be appointed on the nomination of the not aid them, but the construction of the act Secretary of the Treasury, by and with the furnishes a few suggestions. First, let us deadvice and consent of the Senate, and shall termine the exact status of Mr. Stanton at the hold his office for the term of five years, unless moment of its passage. The answer admits sooner removed by the President, by and with Mr. Stanton was appointed and commissioned the advice and consent of the Senate. This and duly qualified as Secretary of War under was substantially reenacted June 3, 1864, with Mr. Lincoln in pursuance of the act of 1789. the addition that " he shall be removed upon In the absence of any other legislation or action reasons to be communicated to the Senate." of the President he legally held his office Where were the vigilant gentlemen then, in during the term of his natural life. This conboth Houses, who now so denounce the power sideration is an answer to every suggestion as of Congress to regulate the appointment and to the Secretary holding over from one presiremoval of officers by the President as uncon- dential term to another. stitutional? On the2d of March, 1867, the tenure-of-office It will be observed that the Constitution act provided, in substance, that all civil offimakes no distinction between the officers of cers duly qualified to act by appointment, with the Army and Navy and officers in the civil the advice and consent of the Senate, shall be service, so far as their appointments and com- entitled to hold such office until a successor missions, removals and dismissals, are con- shall have been in like manner appointed and cerned. Their commissions have ever run, duly qualified, except as herein otherwise' to hold office during the pleasure of the Pres- provided, to wit: " provided that the Secreident;" yet Congress, by the act of 17th July, taries shall hold their office during the term of 1862, (Statutes-at-Large, vol. 12, p. 596,) en- the President by whom they may have been acted " that the President of the United States appointed, and for one month thereafter, subbe, and hereby is, authorized and requested to ject to removal by and with the advice and dismiss and discharge from the military service, consent of the Senate." either in the Army, Navy, Marine corps, or By whom was Mr. Stanton appointed? By volunteer force in the United States service, Mr. Lincoln. Whose presidential term was any officer for any cause which, in his judg- he holding under when the bullet of Booth ment, either renders such officer unsuitable for, became a proximate cause of this trial? Was or whose dismission would promote, the public not his appointment in full force at that hour? service." Had any act of the respondent up to the 12th Why was it necessary to authorize the Pres- day of August last vitiated or interfered with ident so to do if he had the constitutional that appointment? Whose presidential term power to dismiss a military officer at pleasure; is the respondent now serving out? His own and his powers, whatever they are, as is not or Mr. Lincoln's? If his own, he is entitled doubted, are the same as in a civil office? The to four years up to the anniversary of the answer to this suggestion may be that this act murder, because each presidential term is four was simply one of supererogation, only author- years by the Constitution, and the regular reizing him to do whathe was empowered already currence of those terms is fixed by the act of to do, and therefore not specially pertinent to May 8, 1792. If he is serving out the remainthis discussion. der- of Mr. Lincoln's term, then his term of But on the 13th of July, 1866, Congress en- office expires on the 4th of March, 1869, if acted "that no officer in the military or naval it does not before. service shall in time of peace be dismissed Is not the statement of these propositions from service except upon and in pursuance of their sufficient argument? If Mr. Stanton's the sentence of a court-martial to that effect." commission was vacated in any way by the What becomes, then, of the respondent's ob- "tenure-of office act," then it musthave ceased jection that Congress cannot regulate his power one month after the 4th of March, 1865, to of removal from office? ~In the snow-storm of wit, April 4, 1864. Or, if the " tenure-ofhis vetoes why did no flake light down on this office act " had no retroactive effect, then his provision? It concludes the whole question commission must have ceased if it had the here at issue. It is approved; approval effect to vacate his commission at all on the signed Andrew Johnson. passage of the act, to wit, 2d March, 1867; It will not be claimed, however, if the ten- and, in that case, from that date to the present ure-of-office act is constitutional, (and that he must have been exercising his office in conquestion I shall not argue, except as has been travention of the second section of the act, be 68 cause he was not commissioned in accordance'the Senate, with his reasons therefor in accordwith its provisions. And the President, by ance with its provisions; and the Senate, act"employing" him in so doing from the 2d March ing under it, declined to concur with him, to 12th August, became guilty of a high mis- whereby Mr. Stanton was reinstated. In the demeanor under the provision of the sixth well-known language of the law, is not the resection of'said act; so that if the President spondent estopped by his solemn official acts shall succeed in convincing the Senate that from denying the legality and constitutional Mr. Stanton has been acting as Secretary of propriety of Mr. Stanton's position? War against the provisions of the "'tenure-of- Before proceeding further, I desire most office act," which he will do if he convince earnestly to bring to the attention of the Senthem that that act vacated in any way Mr. ate the averments of the President in his Stanton's commission, or-that he himself was answer, by which he justifies his action in not serving out the remainder of Mr. Lincoln's attempting to remove Mr. Stanton, and the presidential term, then the House of Repre- reasons which controlled him in so doing. He sentatives have but to report another article claims that on the 12th day of August last he for this misdemeanor to remove the President had become fully of the opinion that he had u1pon his own confession. the power to remove Mr. Stanton or any other It has been said, however, that in the dis- executive officer, or suspend him from office cussion at the time of the passage of this law and to appoint any other person to act instead observations were made by Senators tending "indefinitely and at his pleasure;" that he to show that it did not apply to Mr. Stanton, was fully advised and believed, as he still bebecause it was asserted that no member of the lieves, that the tenure of civil office act was Cabinet of the President would wish to hold unconstitutional, inoperative, and void in all his place against the wishes of his chief, by its provisions; and that he had then determwhom he had been called into council; and ined at all hazards, if Stanton could not be these arguments have been made the ground- otherwise got rid of, to remove him from office work of attack upon a meritorious officer, in spite of the provisions of that act and the which may have so influenced the minds of action of the Senate under it, if for no other Senators that it is my duty to observe upon purpose, in order to raise for a judicial dethem to meet arguments to the prejudice of cision the question affecting the lawful right my cause. of said Stanton to persist in refusing to quit Without stopping to deny the correctness of the office. the general proposition, there seems to be at Thus it appears that with full intent to resist least two patent answers to it. the power of the Senate, to hold the tenureThe respondent did not call Mr. Stanton of-office act void, and to exercise this illimitinto his council. The blow of the assassin able power claimed by him, he did suspend did call the respondent to preside over a Cabi- Mr. Stanton, apparently in accordance with net of which Mr. Stanton was then an honored the provisions of the act; he did send the member, beloved of its chiefs and if the re- message to the Senate within the time prespondent deserted the principles under whichhe scribed by the act; he did give his reasons for was elected, betrayed his trust, and sought to the suspension to the Senate, and argued them return rebels, whom the valor of our armies at length, accompanied by what he claimed to had subdued: again into power, are not those be the evidence of the official misconduct of reasons not only why Mr. Stantof should not Mr. Stanton, and thus invoked the action of desert his post, but, as a true patriot, maintain the Senate to assist him in displacing a high it all the more firmly against this unlooked-for officer of the Government under the provisions treachery? of an act which he at that very moment beIs it not known to you, Senators, and to the lieved to be unconstitutional, inoperative, and country, that Mr. Stanton retains this unpleas- void, thereby showing that he was willing to ant and distasteful position, not of his own make use of a void act and the Senate of the will alone, but at the behest of a majority of United States as his tools to do that which he those who represent the people of this coun- believed neither had any constitutional power try in both Houses of its Legislature, and after to do. Did not every member of the Senate, the solemn decision of the Senate that any at- when that message came in announcing the tempt to remove him without their concurrence suspension of Mr. Stanton, understand and is unconstitutional and unlawful? believe that the President was acting in this To desert it now, therefore, would be to imi- case, as he had done in every other case, under:tate the treachery of his accidental chief. But the provisions of this act? Did not both sides whatever may be the construction of the "ten- discuss the question under its provisions? ure of civil office act " by others, or as regards Would any Senator upon this floor, on either others, Andrew Johnson, the respondent, is side, so demean himself as to consider the concluded upon it. question one moment if he had known it was He permitted Mr. Stanton to exercise the then within the intent and purpose of the Presduties of his office in spite of it, if that office ident of the United States to treat the delibwere affected by it. He suspended him under erations and action of the Senate as void and its provisions; he reported that suspension to of none effect if its decision did not comport 69 with his views and purposes; and yet, while do not, that he had at that time these intents acknowledging the intent was in his mind to and purposes in his mind, and they are not the hold as naught the judgment of the Senate if subterfuge and evasion and after-thought which it did not concur with his own, and remove a criminal brought to bay makes to escape the Mr. Stanton at all hazards, and as I charge it consequences of his acts. upon him here, as a fact no man can doubt, Senators I he asked you for time in which to with the full knowledge also that the Senate make his answer. You gave him ten days, and understood that he was acting under the pro- this is the answer he makes! If he could do visions of the tenure-of-office act, still thus this in ten days, what should we have had if deceiving them, when called to answer for a you had given him forty? You show him a violation of that act, in his solemn answer, he mercy in not extending the time for answer. makes the shameless avowal that he did trans- Passing from further consideration of the mit to the Senate of the United States a' "mes- legality of the action of the respondent in resage wherein he made known the orders afore- moving Mr. Stanton from office in the manner said and the reasons which induced the same, and form and with the intent and purpose with so far as the respondent then considered it which it has been done, let us now examine material and necessary that the same should the appointment of Brevet Major General Lobe set forth." True it is, there is not one renzo Thomas, of the United States Army, as word, one letter, one implication in that mes- Secretary of War ad interim. sage that the President was not acting in good I assume that it is not denied in any quarter faith under the tenure-of-office act and desiring that this ad interim appointment to this office the Senate to do the same. So the President is the mere creature of law, and if justified at of the United States, with a determination to all is to be so under some act of Congress. assert at all hazards the tremendous power of Indeed, the respondent in his answer says that removal of every officer, without the consent in the appointment of General Grant ad inof the Senate, did not deem it " material or terim he acted under the act of February 13, necessary" that the Senate should know that 1795, and subject to its limitations. By the act he had suspended Mr. Stanton indefinitely of August 7, 1789, creating the Department against the provisions of the tenure-of-office of War, (1 Statutes-at-Large, p. 49,) "in case act, with full intent, at all hazards, to remove of any vacancy" no provision is made for any him, and that the solemn deliberations of the appointment of an acting or ad interim SecSenate, which the President of the United retary. In that case the records and papers are States was then calling upon them to make in to be turned over for safe keeping to the cusa matter of the highest governmental concern, tody of the chief clerk. This apparent omiswere only to be of use in case they suited his sion to provide for an executive emergency purposes; that it was not "material or neces- was attempted to be remedied by Congress sary" for the Senate to know that its high by the act of May 8, 1792, (1 Statutes, 281,) decision was futile and useless; that the Pres- which provides "that in case of the death, ident was playing fast and loose with this absence from the seat of Government, or sickbranch of the Government —which was never ness of the Secretary of State, Secretary of the before done save by himself. Treasury, or of the Secretary of the War DeIf Andrew Johnson never committed any partment, or of any officer of either of the.said other offense-if we knew nothing of him save Departments whose appointment is not in the from this avowal-we should have a full pic- head thereof, whereby they cannotperform the ture of his mind and heart, painted in colors duties of their respective offices, it shall be lawof living light, so that no man will ever mis- ful for the President of the United States, in take his mental and moral lineaments here- case he shall think it necessary, to authorize after. any person or persons, at his discretion, to Instead of open and frank dealing as becomes perform the duties of the said respective offices the head of a great Government in every rela- until a successor be appointed,or until such tion Of life, and especially needful from the absence or inability by sickness shall cease." highest executive officer of the Government to It will be observed that this act provides for the highest legislative branch thereof; instead vacancies by death, absence, or sickness only, of a manly, straightforward bearing, claiming whereby the head of a Department or any offiopenly and distinctly the rights which he be- cer in it cannotperform his duty, but makes no lieved pertained to his high office, and yielding provision for vacancy by removal. to the other branches, fairly and justly, those Two difficulties were found in that provision which belong to them, we find him, upon his of law: first, that it provided only for certain own written confession, keepingback his claims enumerated vacancies; and also, it authorized of power, concealing his motives, covering his the President to make an acting appointment purposes, attempting by indirection and sub- of any person for any length of time. To meet terfuge to do that as the ruler of a great nation these difficulties the act of 13th February, 1795, which, if it be done at all, should have been was passed, (1 Statutes-at-Large, 415) which dons boldly, in the face of day; and upon this provides "in case of vacancy, whereby the position he must stand before the Senate and Secretaries or any officer in any of the Departthe country if they believe his answer, which 1 ments cannot perform the duties of his office, 70 the President may appoint any person to per- case of a removal, or that anybody is em owform the duties for a period not exceeding six ered to act for the removed officer, the chief months." clerk being empowered to take charge of the Thus the law stood as to acting appointments books and papers only. in all of the Departments (except the Navy and Does not this series of acts conclusively demInterior, which had no provision for any per- onstrate a legislative construction of the Conson to act in place of the Secretary) until the stitution that there could be no removal of the 19th of February, 1863, when, by the second chief of an executive Department by the act of section of an act approved at that date, (12 the President save by the nomination and apStatutes, 646,) it was " provided that no person pointment of his successor, if the Senate were acting or assuming to act as a civil, military, or in session, or a qualified appointment till the naval officer shall have any money paid to him end of the next session if the vacancy happened as salary in any office which is not authorized or was made in recess? by some previously existing law." The state Let us now apply this state of the law to the of the law upon this subject at that point of appointment of Major General Thomas Secretime is thus: in case of death, absence, or tary of War ad interim by executive order. sickness, or of any vacancy whereby a Secretary Mr. Stanton had neither died nor resigned, or other officer of the State, War, or Treasury was not sick nor absent. If he had been, Department could not perform the duties of under the act of Marca 3, 1863, which repeals the office, any person could be authorized by the all inconsistent acts, the President was authorPresident to perform those duties for the space ized only to appoint the head of another execof six months. utive Department to fill his place ad interim. For the Departments of the Interior and the Such was not General Thomas. He was simNavy provision had been made for the appoint- ply an officer of the Army, the head of a bureau ment of an assistant Secretary, but no provis- or department of the War Department, and not ion in case of vacancy in his office, and a re- eligible under the law to be appointed. So that striction put upon any officers acting when not his appointment was an illegal and void act. authorized by law, from receiving any salary There have been two cases of ad interim whatever. appointments which illustrate and confirm this To meet those omissions and to meet the case position; the one was the appointment of Lieuof resignation of any officer of an executive tenant General Scott Secretary of War ad inDepartment, and also to meet what was found terim, and the other the appointment of Gento be a defect in allowing the President to ap- eral Grant ad interim upon the suspension of point any person to those high offices for the Mr. Stanton, in August last. space of six months, whether such person had The appointment of General Scott was legal any acquaintance with the duties of the Depart- because that was done before the restraining ment or not, an act was passed February 20, act of March 2, 1863, which requires the detail 1863, (12 Statutes, p. 656,) which provides, that of the head of another Department to act ad in case of the death, resignation, absence from interim. the seat of Government, or sickness of the head The appointment of General Grant to take of an executive Department of the Govern- the place of Mr. Stanton during his suspension ment, or of any officer of either of the said would have been illegal under the acts I have Departments whose appointment is not in the cited, he being an officer of the Arly and not head thereof, whereby they cannotperform the the head of a department, if it had hot been duties of their respective offices, it shall be law- authorized by the second section of the " tenful for the President of the United States, in ure-of-civil-office act," which provides that in case he shall think it necessary, to authorize case of suspension, and no other, the President the head of any other executive Department or may designate " some suitable person to perother officerin either of said Departments whose form temporarily the duties of such office until appointment is vested in the President, at his the next meeting of the Senate." Now, Gendiscretion to perform the duties of the said re- eral Grant was such "suitable person," and spective offices until a successor be appointed, was properly enough appointed under that or until such absence or inability shall cease. provision. Therefore, in case of the death, resignation, This answers one ground of the defense which sickness, or absence of a head of an executive is taken by the President that he did not susDepartment, whereby the incumbent could not pend Mr. Stanton under the "tenure-of-office perform the duties of his office, the President act," but by his general power of suspension might authorize the head of another executive'and removal of an officer. If the President did Department to perform the.duties of the vacant not suspend Stanton under the tenure-of-office office; and in case of like disability of any act, because he deemed it unconstitutional and officer of an executive Department other than void, then there was no law authorizing him to the head, the President might authorize an appoint General Grant, and that appointment officer of the same Department to perform his was unauthorized by law and a violation of his duties for the space of six months. oath of office. It is remarkable that in all these statutes But the tenure-of-civil-office bill by its exfrom 1789 down, no provision is made for the press terms forbids any employment, authoriz 71 ation, or appointment of any person in civil other officers must execute the law, whether in office where the appointment is by and with the fact constitutional or not. advice and consent of the Senate, while, the For the President to refuse to execute a law Senate is in session. If this act is constitu- duly passed because he thought it unconstitutional, i. e., if it is not so far in conflict with tional, after he had vetoed it for that reason, the paramount law of the land as to be inoper would, in effect, be for him to execute his veto ative and void, then the removal of Mr. Stan- and leave the law unexecuted. ton and the appointment of General Thomas It may be said that lie may do this at his are both in direct violation of it, and are de- peril. True; but that peril is to be impeached dared by it to be high misdemeanors. for violating his oath of office, as is now being The intent with which the President has done done. this is not doubtful, nor are we obliged to rely If, indeed, laws duly passed by Congress upon the principle of law that a man must be affecting generally the welfare of any considheld to intend the legal consequences of all his erable portion of the people had been comacts. monly, or, as a usage declared by the Supreme The President admits that he intended to set Court, unconstitutional, and therefore inoperaaside the tenure-of-office act, and thus contra- tive, there miglt seem to be some palliation if vene the Constitution, if that law was uncon- not justification to the Executive to refuse to stitutional. execute a law in order to have its constitutionHaving shown that the President willfully ality tested by the court. violated an act of' Congress, without justifica- It is possible to conceive of so flagrant a case tion, both in the removal of Stanton and the of unconstitutionality as to be such shadow of appointment of Thomas, for the purpose of justification to the Executive, provided one at obtaining wrongfully the possession of the the same time conceives an equally flagrant War Office by force, if need be, and certainly case of stupidity, ignorance, and imbecility, or' by threats and intimidations, for the purpose worse, in the Representatives of the people and of controlling its appropriations through its in the Senate of the United States; but both ad interim chief, who shall say that Andrew conceptions are so rarely possible and absurd Johnson is not guilty of the high crime and as not to furnish a ground of governmental misdemeanors charged against him in the first action. eight articles? How stands the fact? Has the Supreme The respondent makes answer to this view, Court so frequently declared the laws of Conthat the President, believing this civil tenure gress in conflict with the Constitution as to law to be unconstitutional, had a right to vio- afford the President just ground for belief; or late it, for the purpose of bringing the matter hope even, that the court will do so in a given before the Supreme Court for its adjudication. instance? I think I may safely assert as a We are obliged, in limine, to ask the atten- legal fact that since the first decision of the tion of the Senate to this consideration, that Supreme Court till the day of this arraignment they may take it with them as our case goes no law passed by Congress affecting the genforward. eral welfare has ever, by the judgment of that We claim that the question of the constitu- court, been set aside or held for fiought because tionality of any law of Congress is, upon. this of unconstitutionality as the groundwork of' its trial, a totally irrelevant one; because all the decisions. power or right in the President to judge upon In three cases only has the judgment of that any supposed conflict of an act of Congress court been influenced by the supposed conflict with the paramount law of the Constitution is between the law and the Constitution, and they exhausted when lie has examined a bill sent were cases affecting the court itself and its own him and returned it with his objections. If duties, and where the law seemed to interfere then passed over his veto it becomes as valid with its own prerogatives. as if in fact signed by him. Touching privileges and prerogatives has TheConstitution has provided three methods, been the shipwreck of many a wholesome law. all equally potent, by which a bill brought into It is the sore spot, the sensitive nerve of all either House may become a law: tribunals, parliamentary or judicial. 1. By passage by vote of both Houses, in due The first case questioning the validity of a form, with the President's signature; law of Congress is Hayburn's, (2 Dallas, 409,) 2. By passage by vote of both Houses, in due where the court decided upon the unconstituform, and the President's neglect to return it tionalityof the actof March 23, 1792, (Statuteswithin ten days with his objections; at-Large, vol. 1, p. 244,) which conferred upon 3. By passage by vote of both Houses, in due the court the power to decide upon and grant form, a veto by the President, a reconsidera- certificates of invalid pensions. The court tion by both Houses, and a passage by two- held that such power could not be conferred thirds votes. upon the court as an original jurisdiction, the The Constitution substitutes this reconsid court receiving all its original jurisdiction from eration and passage as an equivalent to the the provisions of the Constitution. This dePresident's signature. After that he and all cision would be nearly unintelligible were it 72 not explained in a note to the case in United he had followed, I may venture to say, when States vs. Ferreira, (13 Howard, p.. 52,) re- he hears the judgment of the Senate upon the porting United States vs. Todd, decided Feb- impeachment now pending. ruary 17, 1794. There are several other cases wherein the We learn, however, from both cases the cause validity of acts of Congress has been disof this unintelligibility of the decision in Hay- cussed before the Supreme Court, but none burn's case. WVhen the same question came where the decision has turned on that point. up at the circuit court in New York the judges In Marbury vs. Madison (1 Cranch, 137) being of opinion that the law could not be Chief Justice Marshall dismissed the case for executed by them as judges, because it was want of jurisdiction, but took opportunity to unconstitutional, yet determined to obey it deliver a chiding opinion against the adminisuntil the case could be adjudicated by the whole tration of Jefferson before he did so. court. They therefore, not to violate the law, In the Dred Scott case, so familiar to the did execute it as commissioners until it was public, the court decided it had no jurisdicrepealed, which was done the next year. tion, but gave the Government and the people The judges on the circuit in Pennsylvania a lecture upon their political duties. all united in a letter to the Executive, most In the case of Fisher vs. Blight (2 Cranch, humbly apologizing, with great regret, that 358) the constitutionality of a law was very their convictions of duty did not permit them much discussed, but was held valid by the to execute the law according to its terms, and decision of the court. took special care that this letter should accom- In United States vs. Coombs, (12 Peters, pany their decision, so that they might not be 72,) although the power to declare a law of misunderstood. Congress in conflict with the Constitution was Both examples it would have been well for claimed in the opinion of the court arguendo, this respondent to have followed before he yet the law itself was sustained. undertook to set himself to violate an act of The case of Pollard vs. Hagan, (3 Howard, Congress. 212,) and the two cases, Goodtitle vs. Kibbe, The next case where the court decided upon (9 Howard, 271,) Hallett vs. Beebe, (13 Howany conflict between the Constitution and the ard, 25,) growing out of the same controversy, law is Gordon vs. United States, tried in April, have been thought to impugn the validity of 1865, seventy-one years afterward, two justices two private acts of Congress; but a careful dissenting, without any opinion being delivered examination will show that it was the operaby the court. tion and not the validity of the acts which The court here dismissed an appeal from came in question and made the basis of the the Court of Claims, alleging that, under the decision. Constitution, no appellate jurisdiction could be Thus it will be seen that the Supreme Court, exercised over the Court of Claims under an in three instances only, have apparently, by act of Congress which gave revisory power to its decision, impugned the validity of an act the Secretary of the Treasury over a decision of Congress because of a conflict with the Conof the Court of Claims. This decision is little stitution, and in each case a question of the satisfactory, as it is wholly without argument rights and prerogatives of the court of its offior authority cited. cers has been in controversy. The next case is ex parte Garland, (4 Wal- The cases where the constitutionality of an lace, 333,) known as the Attorney's oath act of Congress has been doubted in the obiter case, where the court decided, that an attorney dicta of the court, but were not the basis of was not an officer of the United States, and decision, are open to other criticisms. therefore might practice before that court with- In Marbury vs. Madison Chief Justice Mar out taking the test-oath. shall had just been serving as Secretary of The reasoning of the court in that case State in an opposing Administration to the one would throw doubt on the constitutionality of whose acts he was trying to overturn as Chief the law of Congress, but the decision of' the Justice. invalidity of the law was not necessary to the In the Dred Scott case Chief Justice Taney decision of the case, which did not command -selected by General Jackson to remove the a unanimity in the court, as it certainly did not deposits because his bitter partisanship would the assent of the bar. carry him through where Duane halted and Yet in this case it will be observed that the was removed-delivered the opinion of the court made a rule requiring the oath to be court, whose obiter dicta fanned the flame of administered to the attorneys in obedience of dissension which led to the civil war through the law until it came before them in a cause which the people have just passed, and against duly brought up for decision. The Supreme that opinion the judgment of the country has Court obeyed the law up to the time it was set long been recorded. aside. They did not violate it to make a test When exparte Garland was decided the coumcase. try was just emerging from a conflict of arms the Here is another example to this respondent, passions and excitement of which had found as to his duty in the case, which he will wish their way upon the bench, and some of the 73 judges, just coming from other service of the The Presidentknew, or ought to have known, Government and from the bar, brought with his official adviser, who now appears as his them opinions. But I forbear. I am treading counsel, could and did tell him, doubtless, on dangerous ground. Time has not yet laid that he alone, as Attorney General, could file its softening and correcting hand long enough an information in the nature of a quo warranto upon this decision to allow me further to com- to determine this question of the validity of ment upon it in this presence. the law. Mr. President and Senators, can it be said Mr. Stanton, if ejected from office, was withthat the possible doubts thrown on three or out remedy, because a series of decisions has four acts of Congress, as to their constitution- settled the law to be that an ejected officer can ality, during a judicialexperience of seventy- not reinstate himself either by quo warranto, five years-hardly one to a generation-is a mandamus or other appropriate remedy in the sufficient warrant to the President of the courts. United States to set aside and violate any act If the President had really desired solely to of Congress whatever upon the plea that he test the constitutionality of the law or his legal believed the Suprephe Court would hold it un- right to remove Mr. Stanton, instead of his constitutional when a case involving the ques- defiant message to the Senate of the 21st of tion should come before it, and especially one February, informing them of the removal, but much discussed on its passage, to which the not suggestingthis purpose, which is thus shown whole mind of the country was turned during to be an afterthought, he would have said, in the progress of the discussion, upon which he substance: " Gentlemen of the Senate, in order 4&ad argued with all his power his constitutional to test the constitutionality of the law entitled objections, and which, after careful reconsider-'An act regulating the tenure of certain civil ation, had been passed over his veto? offices,' which I verily believe to be unconstiIndeed, will you hear an argument as a tutional and void, I have issued an order of Senate of the United States, a majority of removal of E. M. Stanton from the office of whom voted for that very bill, upon its consti- Secretary of the Department of War. I felt tutionality in the trial of an executive officer myself constrained to make this removal lest for willfully violating it before it had been Mr. Stanton should answer the information in doubted by any court? the nature of a quo warranto, which I intend Bearing upon this question, however, it may the Attorney General shall file at an early day, be said that the President removed Mr. Stan- by saying that he holds the office of Secretary ton for the very purpose of testing the con- of War by the appointment and authority of stitutionality of this law before the courts, and Mr. Lincoln, which has never been revoked. the question is asked, Will you condemn him Anxious that there shall be no collision or disas for a crime for so doing? If this plea were agreement between the several departments a true one it ought not to avail; but it is a of the Government and the Executive, I lay subterfuge. We shall show you that he has before the Senate this message, that the reataken no step to submit the question to any sons for my action, as well as the action itself, court, although more than a year has elapsed for the purpose indicated, may meet your consince the passage of the act. currence." Had the Senate received such a On the contrary, the President has recog- message the Representatives of the people nized its validity and acted upon it in every might never have deemed it necessary to imdepartment of the Government save in the peach the President for such an act to insure War Department, and there except in regard the safety of the country, even if they had to the head thereof solely. We shall show you denied the accuracy of his legal positions. he long ago caused all the forms of commis- On the contrary, he issued a letter of removal, sions and official bonds of all the civil officers peremptory in form, intended to be so in of the Government to be altered to conform to effect, ordered an officer of the Army, Lorenzo its requirement. Indeed, the fact will not be Thomas, to take possession of the office and denied.-nay, in the very case of Mr. Stanton, eject the incumbent, which he claimed he would he suspended him under its provisions, and do by force, even at the risk of inaugurating asked this very Senate, before whom he is now insurrection, civil commotion, and war. being tried for its violation, to pass upon the Whatever may be the decision of the legal sufficiency of his reasons for acting under it in question involved, when the case comes before so doing according to its terms; yet, rendered the final judicial tribunal who shall say that reckless and mad by the patience of Congress such conduct of the Executive under the cirunder his usurpation of other powers and his cumstances, and in the light of the history of disregard of other laws, he loldly avows in his current events and his concomitant action, is ~letter to the General of the Army that he in- not in Andrew Johnson a high crime and mistends to disregard its provisions, and summons demeanor? Imagine, if it were possible, the the commander of the troops of this Depart- consequence of a decision by the Senate in the ment to seduce him from his duty so as to be negative-averdict of not guilty upon this propable to command, in violation of another act osition. of Congress, sufficient military power to en- A law is deliberately passed with all the form force his unwarranted decrees. of legislative procedure, is presented to the 74 President for his signature, is returned by him nificant as to leave no doubt on the mini of to Congress with his objections, is thereupon an impartial man as to the intents and purreconsidered, and, by a yea and nay vote of poses of the President. No one would say three quarters of the Representatives ofthe peo- that the President might not properly send to ple in the popular branch, and three fourths of the commander of this department to make the Senators representing the States in the inquiry as to the disposition of his forces, but higher branch, is passed again, notwithstanding the question is, with what intent and purpose the veto; is acquiesced in by the President, by did the President send for General Emory at all departments of the Government conform- the time he did? Time, here, is an important ing thereto for quite a year, no court having element of the act. doubted its validity. Now its provisions are Congress had passed an act in March, 1867, willfully and designedly violated by the Presi- restraining the President from issuing military dent with intent to usurp to himself the very orders save through the General of the Army. powers which the law was designed to limit, The President had protested against that act. for the purpose of displacing a meritorious On the 12th of August he had attempted to get officer whom the Senate just before had determ- possession of the War Office by the removal ined ought not and should not be removed; of the incumbent, but ceuld only do so by for which high-handed act the President is im- appointing the General of the Army thereto. peached in the name of all the people of the Failing in his.attempt to get full possession of [United States by three fourths of the House the office through the Senate, he had determof Representatives, and presented at the bar ined, as he admits, to remove Stanton at all of the Senate, and by the same Senate that hazards, and endeavored to prevail on thy passed the law, nay, more, by the very Sen- General to aid him in so doing. He declines. ators who, when the proceeding came to their For that the respondent quarrels with him, knowledge, after a redeliberation of many denounces him in the newspapers, and accuses hours, solemnly declared the act unlawful and him of bad faith and untruthfulness. Therein violation of thie Constitution; that act of upon, assertinghisprerogativesas Commanderusurpation is declared not to be a high misde- in-Chief, he creates a new military department meanor in office by their solemn verdict of not of the Atlantic. He attempts to bribe Lieuguilty upon their oaths. tenant General Sherman to take command of Would not such a judgment be a conscious it by promotion to the rank of general by breself-abnegation of the intelligent capacity of vet, trusting that his military services would the representatives of the people in Congress compel the Senate to confirm him. assembled to frame laws for their guidance in If the respondent can get a general by brevet accordance with the principles and terms of appointed, he can then by simple order put their Constitution and frame of their Govern- him on duty according to his brevet rank and ment? thus have a general of the Army in command Would it not be a notification-an invitation at Washington, through whom he can transrather-standing to all time to any bold, bad, mit his orders and comply with the act which aspiring man to seize the liberties of the peo- he did not dare transgress, as he had approved ple, which they had shown themselves incapa- it, and get rid of the hated General Grant. ble of maintaining or defending, and playing Sherman spurned the bribe. The respondent, the r6le of a Caesar or Napoleon here to estab- not discouraged, appointed Major General lish a despotism, while this the last and greatest George H. Thomas to the same brevet rank, experiment of freedom and equality of right in but Thomas declined. the people, following the long line of buried re- What stimulated the ardor of the President publics, sinks to its tomb under the blows of just at that time, almost three years after the usurped power from which free representative war closed, but just after the Senate had reinGovernment shall arise to the light of a morn stated Stanton, to reward military service by of resurrection never more, nevermore foreve r! the appointment of generals by brevet? Why Article nine charges that Major General did his zeal of promotion take that form and no Emory, being in command of the military de- other? There were many other meritoriousoffipartment of Washington, the President called cers of lower rank desirous of promotion. The him before him and instructed him that the act purpose is evident to every thinking mind. He of March 2, 1867, which provides that all or- had determined to set aside Grant, with whom ders from the President shall be issued through he had quarrelled, either by force or fraud, the General of the Army, was unconstitutional either in conformity with or in spite of the act and inconsistent with his commission, with of Congress, and control the military power intent to induce Emory to take orders directly of the country. On the 21st of February-for from himself, and thus hinder the execution of all these events Eluster nearly about the same the civil-tenure act and to prevent Mr. Stanton point of time-he appoints Lorenzo Thomas from holding his office of Secretary of War. Secretary of War and orders Stanton out of If the transaction set forth in this article the office. Stanton refuses to go; Thomas is stood alone we might well admit that doubts about the streets declaring that he will put him might arise as to the sufficiency of the proof. out by force, "' kick him out." He has caught But the surroundings are so pointed and sig. his master's word. 75 On the evening of the 21st a resolution look- Congress in December he had declared that ing to impeachment is offered in the House. the time might come when he would resist a The President, on the morning of the 22d, law of Congress by force. How could Cen"as early as practicable," is seized with a eral Emory tell that in the judgment of the sudden desire to know how many troops there President that time had not come, and hence were in Washington. What for, just then? was anxious to assure the President that he Was that all he wanted to know? If so, his could not oppose the law? Adjutant General could have given him the offi- In his answer to the first article he asserts cial morning report, which would have shown that he had fully come to the conclusion to the condition and station of every man. But remove Mr. Stanton at all events, notwiththat was not all. He directs the commander standing the law and the action of the Senate; of the department to come as early as practi- in other words, he intended to make, and did cable. Why this haste to learn the number make executive resistance to the law duly enof troops? Observe, the order does not go acted. The consequences of such resistance through General Grant, as by law it ought to he has told us in his message: have done. General Emory, not knowing "Where an act has been passed according to the what is wanted, of course obeyed the.order as forms of the Constitution by the supreme legislative soon as possible. The President asked him if authority, and is regularly enrolled among the pubhe remembered the conversation which he had lic statutes of the country, executive resistance to it especially in times of high party excitement, would with him when he first took command of the be likely to produce violent collision between the redepartment as to the strength of the garrison spective adherents of the two branches of the Govof Washington, and the general disposition of ernment. This would be simply civil war, and civil war must be resorted to only as the last remedy for troops in the department. Emory replied that the worst evils." * "he did distinctly;" that was last September. "It is true that cases may occur in which the ExThen, after explaining to him fully as to all the ecutive would be compelled to stand on its rights, changes, the President asked for recent changes and maintain them regardless of all consequences." of troops. Emory denied they could have He admits, in substance, that he told Emory been made without the order going through that the law was wholly unconstitutional, and, him, and then, with soldierly frankness, (as he in effect, took away all his power as Commanderevidently suspected what the President was in-Chief. Was it not just such a lawashe had after,) said by law no order could come to declared he would resist? Do you not believe him, save through the General of the Army, that if General Emory had yielded in the least and that had been approved by the President to his suggestions the President would have and promulgated in a General Order No. 17. offered him promotion to bind him to his purThe President wished to see it. It was pro- poses, as he did Sherman and Thomas? duced. General Emory says: "Mr. Presi- Pray remember that this is not the case of dent, I will take it as a great favor if you will one gentleman conversing with another on permit me to call your attention to this order moot questions of law; but it is the President, or act." Why a favor to Emory? Because the Commander-in-Chief, "the fountain of all he feared that he was to be called upon by the honor and source of all power," in the eye of President to do something in contravention of a military officer, teaching that officer to disthat law. The President. read it and said: obey alaw which he himself has determined is I' This is not in accordance with the Constitu- void, with the power to promote the officer if tion of the United States, which makes me he finds him an apt pupil. Commander-in-Chief of the Army and Navy, Is it not a high misdemeanor for the Presior with the language of your commission." dent to assume to instruct the officers of the Emory then said: "That is not a matter for Army that the laws of Congress are not to be the officers to determine. There was the order obeyed? sent to us approved by him, and we were all Article ten alleges that, intending to set governed by that order." aside the rightful authority and powers of ConHe said, " Am I to understand, then, that gress, and to bring into disgrace and contempt the President of the United States cannot give the Congress of the United States, and to dean order but through General Grant?" Gen- stroy confidence in and to excite odium against eral Emory then made the President a short Congress and its laws, he, Andrew Johnson, speech, telling him that the officers of the President of the United States, made divers Army had been consulting lawyers on the sub- speeches set out therein, whereby he brought ject, REVERDY JOHNSON and Robert J. Walker, the office of President into contempt, ridicule, 4nd were advised that they were bound to obey and disgrace. that order. Said he, " I think it right to tell To sustain these charges there will be put in you the Army are a unit onithis subject." evidence the short-hand notes of reporters in After a short pause, " seeing there was noth- each instance, who took these speeches or exing more to say," General Emory left. What amined the sworn copies thereof, and one inmade all the officers consult lawyers about stance where the speech was examined and obeying a law of the United States? What corrected by the Private Secretary of the Presiinfluence had been at work with them? The dent himself. course of the President. In his message to To the charges of this article the respondent 76 answers thdbt a convention of delegates, of those speeches was a highly gentlemanlike and whom he does not say, sat in Philadelphia proper performance in a citizen, and still more for certain political purposes mentioned, and becoming in a President of the United States. appointed a committee to wait upon the re- Let us first consider the graver matter of the spondent as President of the United States; assertion of the right to cast contumely upon that they were received, and by their chair- Congress; to denounce it as a " body hanging man, Hon. REVERDY JOHNSON, then and now on the verge of the Government;" "pretenda Senator of the United States, addressed the ing to be a Congress when, in fact, it was not a respondent in a speech, a copy of which the Congress;" "a Congress pretending to be for respondent believes from a substantially cor- the Union when its every step and act tended rect report is made a part of the answer; that to perpetuate disunion," " and make a disrupthe respondent made a reply to the address of tion of the States inevitable;" " a Congress in the committee. While, however, he gives us a minority assuming to exercise power which, in his answer a copy of the speech made to if allowed to be consummated, would result in him by Mr. REVERDY JOHNSON, taken from a despotism and monarchy itself;" "a Congress newspaper, he wholly omits to give us an anu- which had done everything to prevent the thorized version of his own speech, about which union of the States;" "a Congress factious he may be supposed to know quite as much, and domineering;" "a Radical Congress and thus saved us some testimony. He does which gave origin to another rebellion;" not admit that the extracts from his speech in " a Congress upon whose skirts was every drop the article are correct, nor does he deny that of blood that was shed in the New Orleans they are so. riots." You will find these denunciations had In regard to the speech at Cleveland, he a deeper meaning than mere expressions of again does not admit that the extracts cor- opinion. It may be taken as an axiom in the rectly or justly present his speech; but again affairs of nations that no usurper has evei he does not deny that they do so far as the same seized upon the Legislature of his country until is set out. he has familiarized the people with the possiAs to the speech at St. Louis, he does not bility of so doing by vituperating and decrying deny that he made it-says only that he does it. Denunciatory attacks upon the Legislature not admit it, and requires, in each case, that have always preceded, slanderous abuse of the the whole speech shall be proved. In that, I individuals composing it have always accombeg leave to assure him and the Senate, his panied, a seizure by a despot of the legislative wishes shall be gratified to their fullest frui- power of a country. tion. The Senate shall see the performance, Two memorable examples in modern history so far as is in our power to photograph the will spring to the recollection of every man. scene by evidence, on each of these occasions, Before Cromwell drove out by the bayonet the and shall hear every material word that he said. Parliament of England he and his partisans His defense, however, to the article is, that " he had denounced it, derided it, decried it, and felt himself in duty bound to express opinions defamed it, and thus brought it into ridicule of and concerning the public character, con- and contempt. He villified it with the same duct, views, purposes, motives, and tendencies name which-it is a significant fact-the partiof all men engaged in the public service, as sans of Johnson, by a concerted cry, applied to well in Congress as otherwise," " and that for the Congress of the United States when he comanything he may have said on either of these menced his memorable pilgrimage and crusade occasions he is justified underthe constitutional against it. It is a still more significant fact that right of freedom of opinion and freedom of the justification madeby Cromwell and by Johnspeech, and is not subject to question, inquisi- son for setting aside the authority of Parliament tion, impeachment, or inculpation in any man- and Congress respectively was precisely the ner or form whatsoever." He denies, however, same, to wit: that they were elected by part that by reason of any matter in said article or of the people only. When Cromwell, by his its specifications alleged he has said or done soldiers; finally entered the hall of Parliament anything indecent or unbecoming in the Chief to disperse its members, he attempted to cover Magistrate of the United States, or tending to the enormity of his usurpation by denouncing bring his high office into contempt, ridicule, this man personally as a libertine, that as a or disgrace. drunkard, another as a betrayer of the liberThe issue, then, finally, is this: that those ties of the people. Johnson started out on utterances of his, in the manner and form in precisely the same course, but forgetting the which they are alleged to have been made, and parallel, too early he proclaims this patriot an under the circumstances and at the time they assassin, that statesman a traitor; threatens were made, are decent and becoming the Pres- to hang that man whom the people delight to ident of the United States, and do not tend to honor, and breathes out "threatenings and bring the office into ridicule and disgrace. slaughter" against this man whose services in We accept the issues. They are two: the cause of human freedom have made his First. That he has the right to say what he name a household word wherever the language did of Congress in the exercise of freedom of is spoken. There is, however, an appreciable speech; and second, that what he did say in difference between Cromwell and Johnson, and there is a like difference in the results accom- he has been in office that if the people had plished by each. not been, aS they ever have been, true and loyal When Bonaparte extinguished the Legisla- to their Congress and to themselves, such would ture of France he waited until, through his not have been the result of these usurpations press and his partisans and by his own denun- of power in the Executive? ciations, he brought its authority into disgrace Is it indeed to be seriously argued here that and contempt; and when, finally, he drove there is a constitutional right in the President the council of the nation from their chamber, of the United States, who during his official like Cromwell, he justified himself by personal life can never lay aside his official character to abuse of the individuals themselves as they denounce, malign, abuse, ridicule, and conpassed by him. temn, openly and publicly, the Congress of the That the attempt of Andrew Johnson to United States-a coiirdinate branch of the overthrow Congress has failed is because of Government? the want of ability and power, not of malignity It cannot fail to be observed that the Presiand will. dent (shall I dare to say his counsel, or are We are too apt to overlook the danger which they compelled by the exigencies of their demay come from words: " We are inclined to fense,) has deceived himself as to the gravasay that is only talk-wait till some act is done, men of the charge in this article. It does and then it will be time to move. But words not raise the question of freedom of speech, but may be, and sometimes are, things-living, of propriety and decency of speech and conburning things, that set a world on fire." duct in a high officer of the Government. As a most notable instance of the power of Andrew Johnson, the private citizen, as I words look at the inception of the rebellion may reverently hope and trust he soon will be, through which we have just passed. For a has the full constitutional right to think and quarter of a century the nation took no notice speak what he pleases, in the manner he pleases, of the talk of disunion and secession which was and where he pleases, provided always he does heard in Congress and on the "'stump" until not bring himself within the purview of the in the South a generation was taught them by common law offenses of being a common railer word, and the word suddenly burst forth into and brawler or a common scold, which he may terrible, awful war. Does any one doubt that do, (if a male person is ever liable to commit if Jackson had hanged Calhoun in 1832 for that crime;) but the dignity of station, the protalking nullification and secession, which was prieties of position, the courtesies of office, all embryo treason, the cannon of South Carolina of which are a part of the common law of the against Fort Sumter would ever have been land, require the President of the United States heard with all their fearful and deadly con- to observe that gravity of deportment, that fitsequences? Nay, more; if the United States ness of conduct, that appropriateness of deofficers, Senators, and Representatives had been meanor, and those amenities of behavior which impeached or disqualified from office in 1832 are a part of his high official functions. He for advocating secession on the " stump," as stands before the youth of the country the was done in 1862 by Congress, then our sons exemplar of all that is of worth in ambition and brothers now dead in battle or starved and all that is to be sought in aspiration; he in prison had been alive and happy, and a stands before the men of the country as the peaceful solution of the question of slavery had grave magistrate who occupies, if he does not been found. fill, the place once honored by Washington; Does any one doubt that if the intentions of nay, far higher and of greater consequence, he the respondent could have been carried out, stands before the world as the representative and his denunciations had weakened the Con- of free institutions, as the type of man whom gress in the affections of the people, so that the suffrages of a free people have chosen as those who had in the North sympathized with their chief. He should be the living, evidence the rebellion could have elected such a minority of how much better, higher, nobler, and more even ofethe Representatives to Congress as, in the image of God is the elected ruler of a together with those sent up from the govern- free people than a hereditary monarch, coming ments organized by Johnson in the rebellious into power by the accident of birth; and when -States, should have formed a majority of both he disappoints all these hopes and all these or either House of Congress, that the Presi- expectations, and becomes the ribald, scurrildent would have recognized such body as the ons blasphemer, bandying epithets and taunts legitimate Congress, and attempted to carry out with a jeering mob, shall he be heard to say its decrees by the aid of the Army and Navy that such conduct is not a high misdemeanor in and the Treasury of the United States, over office? Nay, disappointing the hopes; causing which he now claims such unheard-of and the cheek to burn with shame, exposing to the illimitable powers, and thus lighted the torch taunts and ridicule of every nation the good of civil war? name and fame of the chosen institutions of In all earnestness, Senators, I call each one thirty million people, is it not the highest of you upon his conscience to say whether he possible crime and misdemeanor in office; and does not believe by a preponderance of evidence under the circumstances is the gravamen of the drawn from the acts of the respondent since charges. The words are not alleged to be either 78 false or defamatory, because it is not within the to instruct the men and youth before him in power of any man, however high his official their duty to obey the laws and to reverence position, in effect to slander the Congress of their rulers, and to prize their institutions of the United States, in the ordinary sense of that government? Although he tmay have been word, so as to call on Congress to answer as mistaken in the aptness of the occasion for to the truth of the accusation. We do not go such didactic instruction, still good teaching is in, therefore, to any question of truth or falsity. never thrown away. He shows, however, by We rest upon the scandal of the scene. We his language, as he had shown at Cleveland, would as soon think, in the trial of an indict- that he meant to adapt himself to the occasion. ment against a termagant as a common scold, He has hardly opened his mouth, as we shall of summoning witnesses to prove that what she show you, when some one in the crowd cries, said was not true. It is the noise and disturb- "How about our British subjects?" ance in the neighborhood that is the offense, The Chief Executive, supported by his Secand not a question of the provocation or irrita- retary of State, so that all the foreign relations tion which causes the outbreak. and diplomatic service were fully represented, At the risk of being almost offensive, but with a dignity that not even his counsel can protesting that if so it is not my fault but that appreciate, and with an amenity which must of the person whose acts I am describing, let have delighted Downing street, answers: "We me but faintly picture to you the scene at will attend to John Bull after awhile, so far as Cleveland and St. Louis. that is concerned." The mob, ungrateful, reIt is evening; the President of the United ceive this bit of "expression of opinion upon States, on a journey to do homage at the tomb the justice, worthiness, objects, purposes, and of anillustrious statesman, accompanied by the public and political motives and tendencies" head of the Army and Navy and Secretary of of our relations with the kingdom of Great State, has arrived in the great central city of Britain as they fell from the honored lips of the continent. He has been welcomed by the the President of the United States with laughcivic authorities. He has been escorted by a ter, and the more unthinking with cheers. procession of the benevolent charitable socie- Having thus disposed of our diplomatic reties and citizens and soldiers to his hotel. He lations with the first naval and commercial has returned thanks in answer to address of nation on earth, the President next proceeds the mayor to the citizens who has received to express his opinion in manner aforesaid and him. The hospitality of the city has provided fobr the purposes aforesaid to this noisy mob on a banquet for him and his suite, when he is the subject of the riots, upon which his answer again expected to address the chosen guests says " it is the constitutional duty of the Presof the city, where all things may be conducted ident to express opinions for the purposes in decency and order. While he was resting, aforesaid." A voice calls out, "New Orleans! as one would have supposed he would have go on!" Aftera graceful exordium the Preswished to do from the fatigue of the day, a ident expresses his high opinion that a masnoisy crowd of men and boys, washed and un- sacre, wherein his pardoned and unpardoned washed, drunk and sober, black and white, rebel associates and friends deliberately shot assemble in the street, who make night hideous down and murdered unarmed Union men withby their bawling; quitting the drawing-room, out provocation, even Horton, the minister of without the advice of his friends, the President the livirng God, as his hands were raised to the of the United States rushes forth on to the Prince of Peace, praying, in the language of balcony of the hotel to address what proves to the great martyr, "Father, forgive them, for have been a mob, and this he calls in his an- they know not what they do," was the result swer a "' fit occasion on which he is held to of the laws passed by the legislative departthe high duty of expressing opinions of and ment of your Government in the words followconcerning the legislation of Congress, pro- ing, that is to say: posed or completed, in respect of its wisdom, "If you will take up the riot at New Orleans and expediency, justice, worthiness, objects, pur- trace it back to its source, or to its immediate cause, poses, and public and political motives and youillthat d out who was responsiblefor the blood tendencies.' "If you take up the riot at New Orleans and trace Observe now, upon this "fit occasion," itback to the radical Congress"like in all respects to that at Cleveland, when This, as we might expect, was received by the President is called upon by the constitu- the mob, composed, doubtless, in large part tional requirements of his office to expound of unrepentant rebels, with great cheers and "the wisdom, expediency, justice, worthiness, cries of "bully." It was "bully" —if that objects, purposes, and tendencies of the acts means encouraging-for them to learn on the of Congress," what he says, and the manner authority of the President of the United States in which he says it. Does he speak with the that they might shoot down Union men and gravity of a Marshall when expounding con- patriots, and lay the sin of murder upon the stitutional law? Does he use the polished Congress of the United States; and this was sentences of a Wirt? Or, failing in these, another bit of "opinion" which the counsel which may be his misfortune, does he, in plain, say it was the high duty of the President to homnely words of truth and soberness, endeavor express upon the justice, the worthiness, ob 79 jects, " purposes and public and political mo- sainted martyr, Lincoln, as the means by which tives and tendencies of the legislation of your he attained his office, and if it can bejustified in Congress. " any man, public or private, I am entirely misAfter some further debate with the mob some taken in the commonest proprieties of life. one, it seems, had called out " traitor!" The The President shall tell his own story: President of the United States, on this fitting, "There was, two years ago, a ticket before you for constitutional occasion, immediately took this the Presidency. Iwas'placed upon that ticket with as personal, and replies to it: a distinguished citizen now no more. [Voices,'Its a pity;''Too bad;''Unfortunate.'] Yes, I know "Now, my countrymen, it is very easy to indulge there are some who say'unfortunate.' Yes, unforin epithets; it is very easy to call a man Judas, and tunate for some that God rules on high and deals in cry out traitor, but when he is called upon to give justice. [Cheers.] Yes, unfortunate. The ways of arguments and facts he is very often found wanting." Providence are mysterious and incomprehensible, controlling all who exclaim'unfortunate.'" What were the " facts that were found want- controlling all who exclaim'unfortunate."' Wshat were the " nfacts that were found want- Is it wonderful at all that such a speech, ing," which, in the mind of the President, pre- which seems to have been unprovoked and vented him from being a Judas Iscariot?1 He coolly uttered, should have elicited the single shall state the'" wanting" facts in his own lan- response from the crowd, "eBully for you s" guage on this occasion when he is " exercising I go no further I might follow this adnauhis high constitutiaon~lal prerogatii"ve " seam. I grant the President of the United "Judas Iscariot! Judasl Therewas a Judas once, States further upon this disgraceful scene the one of the twelve apostles. Oh! yes, the twelve apostles had a Christ. 1 voice,'and a Moses, too;' mercy of my silence. Tell me now, who casl great laughter.] The twelve apostles had a Christ, read the accounts of this exhibition, and reflect and he never could have had a Judas unless he had that the result of our institutions of government had the twelve apostles. If I have played the Judas. has been to place such a ma, so lost to decency who has been my Christthat I have played the Judas place such a man, so lostto decency with? Was it THAD. STEVENS? Was it Wendell and propriety of conduct, so unfit, in thd high Phillips? Was it CHARLES SUMNER?" office of ruler of this nation, without blushing If it were not that the blasphemy shocks us and hanging his head in shame as the finger of we should gather from all this that it dwelt in scorn and contempt for republican democracy the mind of the President of the United States is pointed at him by some advocate of monarchy that the only reason why he was not a Judas in the Old World. What answer have you when was that he had not been able to find a Christ an intelligent foreigner says, " Look! see I this toward whom to play the Judas. is the culmination of the ballot unrestrained in Itwill appear thatthis bit of "opinion," given the hands of a free people, in a country where in pursuance of his constitutional obligation, any man may aspire to the office of President. was received with cheers and hisses. Whether Is not our Government of a hereditary king or the cheers were that certain patriotic persons emperor a better one, where at least our sovnamed by him might be hanged, or the hissing ereign is born a gentleman, than to have such was because of the inability of the President to a thing as this for a ruler?" play the part of Judas for the reason before Yes, we have an answer. We can say this stated, I am sorry to say the evidence will not man was not the choice of the people for the inform us. President of the United States. He was thrown His answer makes the President say that it to the surface by the whirlpool of civil war, and is his "'duty to express opinions concerning carelessly, we grant, elected to the second place the public characters, and the conduct, views, in the Government, without thought that he purposes, objects, motives, and tendencies of might ever fill the first. all men engaged in the public service." By murder most foul he succeeded to the Now, as " the character, motives, tendencies, Presidency, and is the elect of an assassin to purposes, objects, and views" of Judas alone that high office, and not of the people. "It had "opinions expressed" about them on this was a grievous fault, and grievously have we "'fit occasion," (although he seemed to desire answered it;" but let me tell you, O advocate to have some others, whose names he men- of monarchy! that our frame of government tioned, changed,) I shall leave his counsel to gives us a remedy for such a misfortune, which inform you what were the public services of yours, with its divine right of kings, does not. Judas Iscariot, to say nothing of Moses, which We can remove him-as we are about to doit was the constitutional duty and right of the from the office he has disgraced by the sure, President of the United States to discuss on safe, and constitutional method of impeachthis particularly fit occasion. ment; while your king, if he becomes a bufBut I will not pursue this revolting exhibi- foon, or a jester, or a tyrant, carn only be tion any further. displaced through revolution, bloodshed, and I will only show you at Cleveland the crowd civil war. and the President of the United States, in the This, this, O monarchist I is the crowning darkness of night, bandying epithets with each glory of our institutions, because of which, if other, crying, "Mind your dignity, Andy;" for no other reason, our form of government "Don't get mad, Andy;" " Bully for you, claims precedence over all other governments Andy." I hardly dare shock, as I must, every of the earth. sense of propriety by calling your attention to Article eleven charges that the President, the President's allusion to the death of the having denied in a public speech on the 18th of 80 August, 1866, at Washington, that the Thirty- whelming majority of the loyal people of tle Ninth Congress was authorized to exercise United States. I do not propose to comment legislative power, and denying that the legis- further on this article, because, if the Senate lation of said Congress was valid or obligatory shall have decided that all the acts charged in upon him, or that it had power to propose cer- the preceding articles are justified by law, then;ain amendments to the Constitution, did at- so large a part of the intent and purposes with tempt to prevent the execution of the act enti- which the respondent is charged in this article tied "An act regulating the tenure of certain would fail of proof that it would be difficult to civil offices," by unlawfully attempting to de- say whether he might not, with equal impuvise means by which to prevent Mr. Stanton nity, violate the laws known as the reconstrucfrom resuming the functions of the office of tion acts, which, in his message, he declares Secretary of the Department of War, notwith- " as plainly unconstitutional as any that can standing the refusal of the Senate to concur in be imagined." If that be so, why should he his suspension, and that he also contrived not violate them? If, therefore, the judgment means to prevent the execution of an act of of the Senate shall sustain us upon the other March 2, 1867, which provides that all mili- articles, we shall take judgment upon this by tary orders shall be issued through the General confession, as the respondent declares in the of the Army of the United States, and also same message that he does not intend to exeanother act of the same 2d of March, cornm- cute them. monly known as the reconstruction act. To the bar of this high tribunal, invested To sustain this charge proof will be given with all its great power and duties, the House of his denial of the authority of Congress as of Representatives has brought the President charged; also his letter to the General of the of the United States by the most solemn form Army, in which he admits that he endeavored of accusation, charging him with high crimes to prevail on him by promises of pardon and and misdemeanors in office, as set forth in the indemnity to disobey the requirements of the several articles which I have thus feebly pretenure-of office act, and to hold the office of sentedtoyour attention. Now, it seems necesSecretary of War against Mr. Stanton after he sary that I should briefly touch upon and bring had been reinstated by the Senate; that he freshly to your remembrance the history of chided the General for not acceding to his re- some of the events of his administration of quest, and declared that had he known that he affairs in his high office, in order that the intents (Grant) would not have acceded to his wishes with which and the purposes for which the he would have taken other means to prevent respondent committed the acts alleged against Mr. Stanton from resuming his office; his ad- him may be fully understood. mission in his answer that his purpose was from Upon the first reading of the articles of imthe first suspension of Mr. Stanton, August peachment the question might have arisen in 12, 1867, to oust him from his office, notwith- the mind of some Senator, Why are these acts standing the decision of the Senate under the of the President only presented by the House act; his order to General Grant to refuse to when history informs us that others equally recognize any order of Mr. Stanton purporting dangerous to the liberties of the people, if not to come from himself after he was so reinstated, more so, and others of equal usurpation ot and his order to General Thomas as an officer powers, if not greater, are passed by in silence? of the Army of the United States to take pos- To such possible inquiry we reply: that the session of the War Office, not transmitted, as acts set out in the first eight articles are but it should have been, through the General of the the culmination of a series of wrongs, malfeasArmy, and the declarations of General Thomas ances, and usurpations committed by the rethat as an officer of the Army of the United spondent, and therefore need to be examined States he felt bound to obey the orders of the in the light of his precedent and concomitant Commander-in-Chief. acts to grasp their scope and design. The last To prove further the purpose and intent with three articles presented show the perversity which his declarations were made, and his and malignity with which he acted, so tlat the denial of the power of Congress to propose man as he is known to us may be clearly spread amendments to the Constitution, and as one upon record to be seen and known of all men of the means employed by him to prevent the hereafter. execution of the acts of Congress, we shall What has been the respondent's course of show he has opposed and hindered the pacifi- administration? For the evidence we rely cation of the country and the return of the upon common fame and current history as sufinsurrectionary States to the Union, and has ficient proof. By the common law common advised the Legislature of the State of Ala- fame, "' si oriatur apud bonos et graves," was bama not to adopt the constitutional amend- ground of indictment even; more than two ment known as the fourteenth article, when hundred and forty years ago it was determined appealed to to know if it was best for the Legis- in Parliament " that common fame is a good lature so to do; and this, too, after that amend- ground for the proceeding of this House, either ment had been adopted by a majority of the to inquire of here or to transmit the complaint, loyal State Legislatures, and after, in the elec- if the House find cause, to the king or lords." tion of 1866, it had been sustained by an over- i Now, is it not well known.to all good and 81 grave men " bonos et graves" that Andrew ment had been sustained in the previous elecJohnson entered the office of President of the tion by an overwhelming majority. Thus we United States at the close of the armed rebel- charge that Andrew Johnson, President of the lion making loud denunciation, frequently and United States, not only endeavors to thwart everywhere, that traitors ought to be punished the constitutional action of Congress ar bring and treason should be made odious; that the it to naught, but also to hinder and opp se the loyal and true men of the.South should be fos- execution of the will of the loyal people of the tered and encouraged; and, if there were but United States expressed, in the only mode by few of them, to such only should be given in which it can be done, through the ballot-box, in charge the reconstruction of the disorganized the election oftheir Representatives. Who does States? not know that from the hour he began these Do not all men know that soon afterward he his usurpations of power he everywhere dechanged his course and only made treason nounced Congress, the legality and constituodious, so far as he was concerned, by appoint- tionality of its action, and defied its legitimate.ing traitors to office and by an indiscriminate powers, and, for that purpose, announced his pardon of all who' came in unto him?" Who intentions and carried out his purpose, as far does not know that Andrew Johnson initiated, as he was able, of removing every true man of his own will, a course of reconstruction of from office who sustained the Congress of the the rebel States which at the time he claimed United States? And it is to carry out this was provisional only, and until the meeting of plan of action that he claims the unlimited, Congress and its action thereon? Who does power of removal, for the illegal exercise of not know that when Congress met and under- which he stands before you this day. Who took to legislate upon the very subject of re- does not know that, in pursuance of the same construction of which he had advised them in plan, he used his veto power indiscriminately' his message, which they alone had the consti- to prevent the passage of wholesome laws entutional power to do, Andrew Johnson last acted for the pacification of the country; ad! aforesaid again changed his course, and de- when laws were passed by the constitutional dared that Congress had no power to legislate majority over his. vetoes he made the most upon that subject; that the two Houses had determined opposition, both open and covert, only the power separately to judge of the quali- to them, and, for the purpose of making that fications of the members who might be sent to opposition effectual, he endeavored to array each by rebellious constituencies, acting under and did array all the people lately in rebellion State organizations which Andrew Johnson to set themselves against Congress and against had called.into existence by his late fiat, the the true and loyal men, their neighbors, so that electors of which were voting by his permis- murders, assassinations, and massacres were sion and under his limitations? Who does not rife all over the southern States, which he en. know that when Congress, assuming its right- couraged by his refusal to consent that a single' ful power to propose amendments to the Con- murderer be punished, though thousands of stitution, had passed such an amendment, and good men have been slain; and, further, that had submitted it to the States as a measure he attempted by military orders to prevent the of pacification, Andrew Johnson advised and execution of acts of Congress by the military counseled the Legislatures of the States lately commanders who were charged therewith. in rebellion, as well as others, to reject the These and his concurrent acts show concluamendment, so that it might not operate as a sively that his attempt to get the control of the law, and thus establish equality of suffrage in military force of the Government, by the seizall the States and equality of right in the mem- ing of the Department of War, was done in bers of the Electoral College and in the num- pursuance of his general design, if it were posber of the Representatives to the Congress of sible, to overthrow the Congress of the United the United States? States; and he now claims by his answer the Lest any one should doubt the correctness right to control at his own will, for the execuof this piece of history or the truth of this com- tion of this very design, every officer of the mon fame we shall show you that while the Army, Navy, civil, and diplomatic service of Legislature of Alabama was deliberating upon the United States. He asks you here, Senators, the reconsideration of the vote whereby it had by your solemn adjudication, to confirm him rejected the constitutional amendment, the fact in that right, to invest him with that power, to being brought to the knowledge of Andrew be used'with the intents and for the purposes Johnson and his advice asked, he, by a tele- which he has already shown. graphic message under his own hand, here to The responsibility is with you; the safeguards be produced, to show his intent and purposes, of the Constitution against usurpation are in advised the Legislature against passing the your hands; the interests and hopes of free amendment, and to remain firm in their oppo- institutions wait upon yourverdict. The House sition to Congress. We shall show like advice of Representatives has done its duty. We of Andrew Johnson, upon the same subject, to have presented the facts in the constitutional the Legislature of South Carolina, and this,manner; wehavebroughtthecriminal toyour too, in the winter of 1867, after the action of bar, and demand judgment at your hands for Congress inproposingthe constitutional amend- his so great crimes. C. I.-6. 82 Never again, if Andrew Johnson go quit and be held in the Statewhere the said crimes shall have free this day, can the people of this or any been committed; but when notcommitted within any other country by constitutional checks or guards State the trial shall be at such place or places as the other country by constitution al cheks ofr guards Congress may by law have directed." (Art. 3, see. 2.) stay the usurpations of executive power. The convention which famed the ConsituI speak, therefore, not the language of exag- tion the suject of ipeachmnt proceeded geratiln, but the words of truth and soberness, in the sme anner is manifest they did in that the future political welfare and liberties many other ases; they considered te object of all men hang tremb ling on the decision of of their legislation as a known thing, having a previous definite existence. Thus existing, their work was solely to mold it into a suitA Brief of the, Authorities upon the Law able shape. They have given it to us, not as of Impeachable Crimes and Misdemeanors, a thing of teir creatio but merely of their prepared by Hon. WILLIAM LAWRENCE, M. C, modifCCation.'" of Ohio; revised and presented by1 B. F. InrEngland a majority of the lords impeach, BUTLER, of Massachusetts, one of the Man- though, by common law, twelve peers must be agers, as a partof his openin6g argument o0 present and concur.]' Here the concurrence the Im~peachmelnt of the Pres~ident. of two thirds of the members [of the Senate] In order to ascertain the impeachable char- present is requisite. acter of an act done or omitted reference must In England the character and extent of the be had to the Constitution, expounded as it is punishment are in the discretion of the lords. by history, by parliamentary and common law. Hero it cannot extend further than to removal The provisions of the Constitution which from and disqualification to hold office. relate to or illustrate the law of impeachment In England " all the king's subjects are imare these: peachable in Parliament.'". Here, according " The I-ouse of Representatives shall choose their to the received construction, " none are liable Speaker and other officers, and shall have the sole to impeachment except officers of the Governpower of impeachment." (Art. 1, sec. 2.) - The Senate shall have the sole power to try a 11 ment. 11 impeachments. When sitting.for that purpose they shall be on oath or affirmation. When thePresident * Bayard on Blount's Trial, 264; and he added: of the United States is tried the Chief Justice shall "And therefore I shll insist that it remains as at preside; and no person shall be convicted without comlon law, [parlimentary, with the variance only theoncurrence of twothirds of the emberpresent. of the positive provisions of the Constitution." JudRgment in cases of impeachment shall not (Wharton's State Trials, 264; Rawlc on Constitution, extend further than to removal from office, and dis- 204'' qualification to hold and enjoy any office of honor, The Constitution" * * "refers trust, or profit under the United States; but the to" * * * " impeachment without party convicted shall nevertheless be liable and sub- defining it. It assumes the existence" ject to indictment, trial, judgment, and punishment, "andi silently points us to English precedents according to law." (Art. 1, sec. 3.) for knowledge of details. We are reminded of the "In case of the removal of the President from statement" * "that'the Constioffice, or of his death, resignation, orinabilityto dis- tution s an instrument of numertion and not of tution is an instrument of enumeration and not of charge the powers and duties of the said office, the definiticn."' (Professor Dwight, 6 Am. Law Reg., N. same shall devolve on the Vice President, and the S, 2-57.) Congress may by law provide for th e case of removal, death, resignation, or inability, both of the Presi- t 5 Comyn's Digest, 308, Parliament L. dent and Vice President, declaring what officer shall 1 2 Wooddeson's Lectures, 602. then act as President, and such officer shall act accordingly, until the disability be removed or a In Chase's Trial Mr. Rodney "utterly disclaimed President shall be elected." (Art. 2, sec 1.) the idea that" any but officers were liableto impeach"The Presieent shall be Commander-in-Chief of ment. the Army and Navy of the United EStates, and of Wharton says, in reference to Blount's trial: "In the militia of the several States when called into the a legal point of view all that this case decides is that actual service of the United States; he may require a Senator of the United States who has been expelled the opinion, in writing, of the principal officeriu f en his scat is not, after such expulsion. subject to from his seat is not, after such expulsion, subject to each of the Executive Departments, upon any subject ipeachment, and perhaps from this the broader relating to the duties of their respective offices; and proposition may he (drawn that none are liable to he shall have power to grant reprieves and pardons impeachment except ofcers of the Government, in for offenses against the United States, except in cases the technical sense, excluding thereby members of of impeachment." (Art. 2, sec. 2.;I) the national Legislature. Afterward, froni the expul"The President, Vice President, and all civil offi- sion of Mr. Smith, a Senator from Ohio, for conneccers of the United States shall be removedfiom office tion with Burr's conspiracy, instead of his impeachon impeachment for, and conviction of, treason, ment, the same implication arises." (Wharton's bribery, or other high crimes and misdemeanors." State Trials, 317, note.) (Art. 2, sec. 4.) In this case Mr. Bayard maintained " that allper"The trial 6f all crimes, except'in cases of im- sons" * * * "are liable to impeachpeaehment, shall be by jury; and such trial shall ment;" that the Constitution does not define the cases or describe the persons designed as the objects of impeachment. "We arc designedly left to the *The clauses of the Constitution which declare regulations of the common [parliamentary] law." that a party impeached shall be "liable to indict-, This view is confirmed by the fact that art, 2, sec. 4, inmment;" that " the trial of all crimes, except incases peratively requires "removal from office" in case of of impeachment, shall be by jury;" that the Presi- the President, Vice President, and officers, while dent shall have power to grant "pardons for offenses art. 1, sec. 3, seems to admit of less punishment than against the United States, exceptin cases of impeach- this, and which must, therefore, apply to persons mnent," are all either parts of or modifications of the other than officers. (See Wickliffe's argunment, Peck's British constitution; they recognize statutory and Trial, 309.) The constitution of Ncw York of 1777 is common law crimes as a portion, but not all, of the said to havebeen the model from which the impeachimpeachable offenses here as they were and are in ment clauses of the Constitution of tie United States England. I were copied. (6 Am. Law Reg., N. S., 277.) That 83 In England the lords are not sworn in try- These abuses were not guarded against in ing an impeachment, but give their decision our Constitution by limiting, defining, or reupon their honor. Here Senators act under ducing impeachable crimes, since the same nethe solemn sanction of an oath or affirmation. cessity existed here as in England for the remIn England the crown is not impeachable. edy of impeachment, but by other safeguards Here the President is. thrown around it in that instrument. It will In England, impeachment may, to some ex- be observed that the "solepower of impeachtent, be regarded as a mode of trial designed, ment " is conferred on the House, and the sole inter alia, to punish crime, though not en- power of trial on the Senate by article one, tirely so, since a judgment on an impeach- sections two and three. These are the only ment is no answer to an indictment in the jurtsdictional clauses, and they do not limit king's bench.* Here impeachment is only impeachment to crimes or misdemeanors. Nor designed to remove unfit persons from office; is it elsewhere so limited. Section four of artiand the party convicted is subject to indict- cle two only makes it imperative when "the ment, trial, and punishment in. the proper President, Vice President, and all civil officers' courts. are convicted'of treason, bribery, or other It is absurd to say that impeachment is here high* crimes and misdemeanors," that they a mode of procedure for the punishment of shall be removed from office.t crime,t when the Constitution declares its But, so far as the questions now before the object to be removalfrom and disqualification country are concerned, it is not material to hold office, and that "the party convicted whether the words "treason, bribery, or other shall nevertheless be liable and subject to high crimes and misdemeanors" confer or limit indictment, trial, judgment, and punishment, jurisdiction, or only prescribe an imperative according to law," for his "crimes." punishment as to officers or a class of cases, Subject to these modifications, and adopt- since every act which by parliamentary usage ing the recognized rule, that the Constitution is impeachable is defined a ".high crime or should be construed so as to be equal to every misdemeanor;" and these are the words of the occasion which might call for its exercise, and British constitution which describe impeachadequate to accomplish the purposes of its able conduct.$: There may be cases appropriframers, impeachment remains here as it was ate for the exercise of the power of impeachrecognized in England at and prior to the ment where no crime or misdemeanor has been adoption of the Constitution. committed. These limitations were imposed in view of the abuses of the power of impeachment in that time, were perpetually resorted to by the Crown El nglish history.1 for the punishment of State offenders. In the reign of James I the practice of impeachment was revived, and was used with great energy by the Commons, of New York limits impeachments to officers in terms; both as an instrument of popular power and for the that of the United States does not. There may be furtherance of public justice. agents and others for whom impeachments would be "Between the year 1620, when Sir Giles Mompessalutary. son and Lord Bacon were impeached, and the revoIn England military and naval officers are im- lution in 1688, there were about forty cases of impeachable. If a military or naval officer here should peachment. In the reigns of William III, Queen conspire with the President to overthrow Congress Anne, and George I, there were fifteen; and in the the impeachment of both would be a necessary pro- reign of George II none but that of Lord Lovat, in tection, which it may be doubted if the Constitution 1746, for high treason. The last memorable cases are intended to surrender. In such case a c urt-martial those of Warren Hastings in 1788, and Lord Melville could not, against the President's will, remove from in 1805." (May on Parliament, 49, 50; Ingersoll's office; impeachment alone would be effectual. (Whar- speech on Blount's Trial, Wharton's State Trials, 285; ton's State Trials, 290.) 4 Hatsell, wassims.) *Fitzharris's Case, 6 Am. Law Reg., N. S., 262. * The word "high" applies as well to "misdemeanors" as to " crimes." (2 Chase's Trial, 383.) t " Impeachment is a Proceeding purely of a political nature. It is not so much designed to punish the t On Chase's trial Mr. Rodney so argued; and so offender as to secure the State. It touches neither Wickliffe on Peck's trial, 309. In Blount's trial Mr. his person nor his property, but simply divests him Ingersoll insisted that art. 2, sec. 4, designates " the of his political capacity.;' (Bayard's Speech on extent of the power of impeachment both as to the Blount's Trial; Wharton's State Trials, 263.) offenses and the persons liable." (Wharton's State $ The earliest recorded instance of impeachment Trials, 289; see p. 99 per Harper.) by the Commons at the bar of the House of Lords t 4 Hatsell's Precedents. 73-76. was in the reign of Edward III, (1376.) Before that By the constitution of the State of Massachusetts time the Lords appear to have tried both peers and the Senate is "to hear and determine all impeachcommoners for great public offenses, but not upon ments made by the Houseof Representatives against complaints addressed to them by the Commons. any officer or officers of the Commonwealth for misDuring the nextfour reigns cases of regular impeach- conduct and maladministration in office." ment were frequent; but no instances occurred in On the trial of Judge Prescott in 1821, Mr. Blake the reigns of' Edward IV. Henry VII, Henry VIII, in defense, referring to the words misconduct and mallEdward VI, Queen Mary, and Queen Elizabeth. administration, said: "What, then, are the legalim"The institution had fallen into disuse," (says Mr. port and signification of these terms? We answer Hallam, 1 Const. Hist., 357,) "partly from the loss precisely the same as of crimes and misdemeanorss; of that control which the Commons had obtained un- that they are in every respect equivalent to the more derRichard II and the Lancasterian kings, and partly familiar terms that are employed by the constitution from the preference the Tudor princes had given to of Great Britain in its description of impeachable bills of attainder or of pains and penalties, when offences, subject only to the wholesome limitation they wished to turn the arm of Parliament against which in this Commonwealth confines this extraordian obnoxious subject." nary method of trial to the official misdemeanors of':Prosecutions, also, in the Star Chamber, during public functionaries." (Prescott's Trial, 117,118.) 84 As these words are copied by our Constitu- are, " two parallel modes of reaching" some, tion from the British constitutional and parlia- but not all offenders: one by impeachment, mentary law, they are, so far as applicable to the other by indictment. our institutions and condition, to be interpreted In such cases a party first indicted " may be not by English municipal law, but by the lex impeached afterward, and the latter trial may parliamentaria.* proceed notwithstanding the indictment." * When, therefore, Blackst6net says that "an On the other hand, the king's bench held in impeachment before the Lords by the Commons Fitzharris's case that an impeachment was no of Great Britain in Parliament is a prosecution answer to an indictment in that court.t of the already known and established law, and The two systems are in no way connected, has been frequently put in practice," he must though each may adopt principles applicable be understood to refer to the "established" to the other, and each may shine by the other's parliamentary, not common municipal law, as borrowed light. administered in the ordinary courts, for it was With these landmarks to guide them, our the former that had been frequently put in fathers adopted a Constitution under which practice. official malfeasance and nonfeasance, and, in Whatever "crimes and misdemeanors" were some cases, misfeasance, may be the subject the subjects of impeachment in England prior of impeachment, although not made criminal to the adoption of our Constitution, and as by act of Congress, or so recognized by the understood by its framers, are, therefore, sub- common law of England or of any State of the jects of impeachment before the Senate of the Union. They adopted impeachment as a means United States, subject only to the limitations of removing men from office whose misconof the Constitution. duct imperils the public safety and renders The framers of our Constitution, looking to them unfit to occupy official position. the impeachment trials in England, and to the All this is supported by the elementary writwriters on parliamentary and common law, and ers, both English and American, on parliato the constitutions and usages of our own mentary and common law; by the English and States, saw that no act of Parliament or of American usage in cases of impeachment; by any State Legislature ever undertook to define the opinions of the framers of the Constituan impeachable crime. They saw that the tion; by contemporaneous construction, all whole system of crimes, as defined in acts of uncontradicted by any author, authority, case, Parliament and as recognized at common law, or jurist, for more than three quarters of a was prescribed for and adapted to the ordinary century after the adoption of the Constitution. courts. (2 Hale, P1. Crown, ch. 20, p. 150; The authorities are abundant to show that 6 Howell State Trials, 313, note.) the phrase "high crimes and misdemeanors," They saw that the High Court of Impeach- as used in the British and our Constitution, ment took jurisdiction of cases where no in- are not limited to crimes defined by statute or dictable crime had been committed, in many as recognized at common law.1 instances, and there were then, as there yet Christian, who may be supposed to have understood the British constitution when he * Pennock vs. Dialoaue,2Peters,2-18. When foreign wrote,. says: " When the words high crimes statutes are " adopted into our legislation the known and misdemeanors are used in prosecutions by and settled construction of those statutes by courts impeachment, the words high crimes have no of law has been considered as silently incorporatedimpeachment, the words hi into the acts." (United States vs. Jones, 3 Wash. C. C. definite signification, but are used merely to R., 209; Ex parte Hall, 1 Pick., 261; Sedgwick on give greater solemnity to the charge. " 1 Stat. p. 262, 426; Storyon Const.,sec. 797; Rawle on Wooddeson whose lectures were read at Const., 200.) Thisauthorsaysinreferencetoimpeach- Vooddeson, whose lectures were read at ments, "We must have recourse to the common law Oxford in 1777, declared that impeachments of England for the definition of them;" that is, to extended to cases of which the ordinary courts the common parliamentary law. (3Wheaton, 610; 1 had no jurisdiction. He says: Wood, and Minot, 448.) The Constitution contains inherent evidence of "Magistrates and officers" * * * * "may this. By it " treason, bribery, and other high crimes abuse their delegated powers to the extensive detriand misdemeanors" are impeachable. "Treason" ment of the community, and at the same time in a is defined in the Constitution; " bribery" is not; and manner not pro3esrly cognizable before the ordinary it therefore means what the common law has defined tribunals." it. As the Constitution thus itself resorts to the common and parliamentary law for the definition of its And he proceeds to say the remedy is by terms, the words " high crimes and misdemeanors" impeachment. are to be interpreted by the same codes. They are as completely included as though every crime had been specifically named. Whatever by the common * Stafford's Trial, 7 Howard's State Trials, 1297. law was treason and which is not covered by the definition in the Constitution which defined it for t 6 Am. Law. Reg., N. S., 252. the ordinary courts, is still impeachable crime so far t If an act to be impeachable must be indictable, as applicable to our institutions. then it might be urged that every act which is indictat 4 Blackstone's Com., 260, read in Oxford 1759. He ble must be impeachable. But this has never been says, also: "It may happen that a subject intrusted pretended. As the Senate must, therefore, decide with the administration of public affairs may infringe what acts are impeachable it cannot be governed by the rights of the people and be guilty of such crimes their indictable character. as the ordinary magistrate either dares not or cannot I Note to 4 Blackstene 5. punizsh," that is, cannot punish because not falling, 5 within his jurisdiction. ] 2 Wooddeson's Lectures, 596. 85 English history presents many examples of Indeed, the word "misdemeanor" has a this kind.* common-law, a parliamentary, and a popular * See Comyn's Digest, tit. Parliament. "In 1388 *that if any person shall maliciously affirm the king there are several proceedings before the Lords against to be a heretic, a papist, or that he endeavors to inthe Archbishop of York and other great officers and troduce popery, every person shall be disabled to hold against several of the judges, for having given extra- office, &c. judicial opinions and misinterpreting the law;" 4 The Lords ordered the Chief Justice and judges Hatsel, 76; and in a note it is said the Lords de- totermined that such cases "cannot be tried elsewhere "Consider whether the said charge hath been than in Parliament, nor by any other law than the law brought in regularly and legally, and whether it may and course of Parliament." * * * be proceeded in, and how, whether there be any It is elsewhere said, "such kind of misdeeds as treason in it or no." eculiarly injure the Commonwealth by the abuse of The judges reported that they did not consider the high offices of trust are the most proper" * * question whether the impeachment could be pro* * "grounds for this kind of prosecutions. ceeded in or not if it came from the Commons, but as Thus" * * * "if the judges mislead the statute of 1 Henry IV, chapter fourteen, provides their sovereign by unconstitutional opinions, if any that "all appeals of things within the realm shall be other magistrate attempt to subvert the fundamental tried and determined by the laws of the court," artilaws or introduce arbitrary power." * cles of impeachment could not be preferred "by the * "So when a lord chancellor has been thought to said earl or any private person," that appeals meant put the seal to an ignominious treaty; a lord admiral "accusation by single persons." The judges then to neglect the safeguard of the sea; an embassador to say: betray his trust; a privy counselor to propound or "That there was no treason in the charge, though support pernicious and dishonorable measures, &c., the matters in it are alleged to be traitorously done. &c." (2 Wooddeson's Lectures, 602; 1Blackstone, 257.) The great charge" * * * * "was that In the Virginia convention, Madison said, "If the he did traitorously and maliciously to bring the king President got up a treaty by surprise he would be into contempt, and with an intent to alien the peoimpeached." (3 Eliot's Debates, 660, 516, 514, 496.) ple's affections from him, say," &c. * * * In Ohio, before it was settled that the courts had * "And in like manner was most of the articles powerto declarelegislative acts unconstitutional, one upon which the character of treason seemed to be judge of the supreme court and one president judge fixed. I said that it is a transcendent misprision or of the common pleas were tried on impeachments for offense to endeavor to bring the king into contempt, the exercise of this power, and each escaped con- or to endeavor to alienate thepeople's affections from viction by only one vote. (20 Ohio Rep., Appendix, him, but yet it was not treason." * * * p. 3.) "We did not meddle with anything concerning ac"The Duke of Suffolk was impeached for neglect cusing him of misdemneanor." of duty as an embassador; the Earl of Bristol that he And so the Lords resolved, concurring in all these gave counsel against a war with Spain, whose king opinions. (6 Howard's State Trials, 318, 346.) had affronted the English nation; the Duke of Buck- The Commons afterward presented articles of imingham that he, being admiral, neglected the safe- peachment. guard of the sea; Michael de la Pole that he, being November 16, 1867, Sir R. Howard, in discussing chancellor, acted contrary to his duty; the Duke of the heads of charges in the Commons, said: Buckingham for having a plurality of office: and he "Though common law has its proper sphere, itis whom the poet calls the' greatest. wisest, meanest not in this place-we are in a higher sphere." of mankind,' for bribery in his office of lord chancel- November 11. The Commons resolved to impeach lor; the Lord Finch for unlawful methods of enlarg- and notified the Lords, and demanded that Clarening the forest, in his office of assistant to the justices don be sequestered from Parliament and committed. on Eyre; the Earl of Oxford for selling goods to his (6 Howell, 395.) own use captured by him as admiral without account- The Lords refused until the articles should be preing for a tenth to others."' (Ingersoll's Speech on sented; and before the question was settled ClarenBlount's Trial, Wharton's State Trials, 291.) don escaped to the continent, and the statute 19 Dr. Sacheverel was impeached for preaching an Charles II, chapter ten, of December 12, banished improper sermon. (Harper's Speech, Blount's Trial, him. Wharton, 301.)'The Lords therefore decided nothing. "Andrew Horne, in his Mirror of Justice, men- Among the articles agreed on in the House were tions many judges punished by King Alfred before these: the conquest for corrupt judgments." * * IX. That he introduced an arbitrary government * "Our stories mention many punishedin the time in his majesty's plantations, and hath caused such as of Edward I; our Parliament rolls of Edward III's complained therof before his majesty and counsel to time, of Richard II's time for the pernicious resolu- be long imprisoned for so doing. tions given at Nottingham Castle, afford examples XI. That he advised and effected the sale of Dunof this kind. In later times, the Parliament journals kirk to the French kink, being part of his majesty's of 18 and 21 Jac., the judgment of the ship-money in dominions, together with ammunition, artillery, and the time of Charles I questioned, and the particular all sorts of stores there, and for no greater value judges impeached." (Vaugh., 139; cited in Appendix than the said ammunitiqn, artillery, and stores were to Addisor's (Pennsylvania) Trial.) worth. Cases decided in England since the adoption of our XVII. That he was a principal author of the fatal Constitution cannot limit the powers it confers. But counsel of dividing the fleet about June, 1666. no case can be found in England which limits im- The case of the Earl of Orrery proves nothing as to peachment to crimes indictable by common law or the law. act of Parliament. The power of impeachment for November 25,1669, a petition was presented in the offenses against the State has been distinctly and House of Commons charging the Earl withcontinuously maintained. " Raising moneys by his own authority upon his The case of the Earl of Clarendon sustains this posi- majesty's subjects, defrauding the king's subjects of tion. On the 10th July, 1663, the Earl of Bristol, with- their estates. The money raised was for bribing hungry out any action of the' Commons, presented to the courtiers to come to his ends, and if the king would House of Lords " articles of high treason and other not he had fifty thousand swords to compel them." misdemeanors" against the Lord Chancellor. One The earl answered inperson and denied the charges. was- Then"That being in places of high trust, &c., he hath "The question being propounded that a daybe aptraitorously and maliciously endeavored to alienate pointed for the accusers to produce witnesses to make the hearts of his majesty's subjects from him by words good the charge," * * * i "it was negof his own." * * * "That his majesty atived-121 to 118." was inclined to popery, and had a design to alter the It was then resolvedreligion established in this kingdom." "That the accusation against the Earl of Orrery be T1.e statute 13, Charles II, chapter 1, provides left to be prosecuted at law." 86 sense. In theparliamentarysense; as applied to officers, it means " maladministration" or It never was prosecuted. (6 Howell, State Trials, produces an instance of the latter sort, wherein the 915.) Commons bring before your lordships in judgment a Sir Adam Blair was impeached in 1690 by the Com- peer offending with the greatest ingratitude against mons- a most just and most merciful sovereign." (6 State " For dispersing [distributing] a seditious and trea- Trials, (Hargrave,) 733.) sonable paper, printed and entitled'A declaration And again t was said: of King James II.' " On the question whether articles of impeachment "My lords, if the misdemeanors of which the earl shouldl be preferred, Mr. H-lawles said: impeached stands accused were not crimes by the "I do not think this to be a plain case of treason ordisnary rules of law in inferior courts, as they have by statute 25 Edward III. I do say no court can been made out to be, yet they would be offenses of a by statute 25 Edward IIl. i do say no court can public nature against the welfare of the subject and the judge this offense to be treason; and that statute did plainly not bind the lsuperior court of Parlialent bt comosn good of the kingdom, committed by the the inferior only. The proper way is to judge this highest officer of justice and attended with so great the inferior on~v. Th-c proper way is to jud-o this and immediate loss to a multitude oftsuhieers, and high treason; and therefore I am for proceeding by and immediate loss to a multitude of sufferers, and impeachment." as such they would demand the exercise of the exAnd it was resolved to impeach of high treason. traordinary jurisdiction vested in yourjudicetion for April 7, 1690, he wails admitted to bail, and at th e public safety by virtue whereof yourlordshipscan inflict that degree and kind ofpunishmentwhich no bext session of Parliament he was discharged from other court can impose."' (Page 746; 6 State Trials, bail was a case in which.there was clearly no tre- (Hiargrave,) 477, London, 1777. Same case, 16 Howere was a case in which there was clearlsyno tree- ell's State Trials, 823; and see 4 Campbell's Lord son under the statute, and yet the Commons resolved Chancellors, 536; 15 (sixtb N. S.) American Law Rethat he should be impeached and so far decided that gister, 266.) he was guilty of an impeachable, though not an in- He was convicted dictable crime, and which they called treason; adopt- He was convicted. ing the idea prevailing at the time as to constructiv Lord Melville was impeached before the Lords in treason, but which might as well have been simply 1806 for that, as treasurer of the navy, he had used called an impeachable misdemeanor. (12 Howell, the public money for purposes of private gain, prior State Trials, 1213.) to and since the statute of June, 1785. (25George III, Thomas, Earl of Macclesfield, Lord High Chancellor chapter 31.) It was conceded that lie had properly of England, was tried in May, 1725, before the House accounted for all money; that he had properly paid of Lords, on articles of impeachment, charging that all demands upon him as treasurer; that ithad even he — abeen down to a certain period"Irreproachable to those who exercised that office "In the office of chancellor did illegally and cor- to e public t oney e ViCh passed to make use of' the public money which passed ruptly insist upon and take of divers persons great through their handst sums of money in order to and before their admis- There was no colint of any pulic act against sion into their offices of master in chancery," to the welfare of the subject or the common good, or which lie appointed them. subversive of any fulndamental principle of governThe answer was that the sums of money received ment. were presents"Reckoned among the ancient and known per- He could not, therefore, be impeached unless he "Reckoned among the ancient and known pe indictable at common law or had violated, quisites" *' " * "and never befrewas idictable at or had violated a looked upon to be criminal;" statute, to do which is by the common law indict"that the giving or receiving a present on such occa- able. The managers insisted that his conduct was sion is not criminal in itself, or by the cozmmnon law of an offense at common law, and since the statute of the realm, and that there is not any act of Parliament June, 1785, a violation of that act. (Asperne's Rewhatsoever by which the same is made criminal or port, 138.) subject to any punishment or judgment." Ioe denied the charges. After hearing evidence Replication that "the charge of high crimes and questions were put to the judges: misdemeanors is true." 1. Whether money issued from the exchequer to In the argument it was insisted by the managers the credit of the treasurer of the navy in the Bank that the acts complained of violated the statutes of of England may be lawfullydrawn therefrom by him 5 and 6 Edward VI, chapter 16, against selling for the purpose of paying bills actually drawn upon offices, and violated the oath prescribed by statute the treasurer, but not yet actually presented; and 12 Richard II. (Moor, 781, Stockwith & Worth.) whether m'Lney so drawn may be deposited with a But as a question of parliamentary law it was as- banker untA the payment of such bills, and for the serted, and not controverted, that acts may be im- purpose of paying them; or whether such acts are peachable which are not indictable by common law in law a crime or offense. or act of Parliament. Ansser. The judges answered that such drawing Mr. Sergeant Pengelly, May 21,1725, said: and deposit of money were lawful and no crime. "Your lordships are now exercising a power of 2. Whether moneys issued from the exchequer to judication reserved in the original frame of the Eng- the credit of the treasurer of the navy in the Bank lish constitution for the punishment of offenses of a of England may be lawfully drawn therefrom by him public nature which may affect the nation, as well in to be ultimately applied to navy services, but in the instances where the inferior courts have no power to meantime and until required for the purpose of punish the crimes committed by the ordinary rules of being deposited with a private banker in the name justice asin cases within the jurisdiction of the courts and under the control of -his (Melville's) private of Westminster Hall, where the person offending is clerk. by his degree raised above the apprehension of dan- Answer. The judges answered that if the object of ger from a prosecution carried on in the more usual drawing the money from the Bank of England was course of justice, and whose exalted station requires to deposit it with a private banker it was not lawful, the united accusation of all the commons of Great although intended to be and in fact ultimately apBritain by their representatives in Parliament. plied to naval service; but if so deposited bona fide "This high jurisdiction may be exercised for the as the means or supposed means of more convenpreservation of the rights of the Lords and Commons iently applying the money to naval services the against the attempts of powerful evil ministers wh o money may be lawfully drawn. depend upon the favor of the Crown; or it may be 3. Whether it was lawful for the treasurer, before put in execution for the ease and relief of a good the statute 25 George III, chapter 31, (and especially prince whose honor has been betrayed by a corrupt as his salary had been augmented by the king's warservant, and yet whose clemency makes him unwill- rantin fullsatisfaction of all wages, fees, and profits,) ing to punish; so that it becomes necessary for his to apply money impressed to him for naval services faithful Commons to take into their care the protec- to any other use whatever, public or private, and tion of such an offender. whether such application would have been a misde"Former reigns have supplied your journals with meanor punishable by information or indictment. many examples of the first kind. The present reign The judges answered it was not unlawful, so as to 87 " misconduct," not necessarilyindictable,*: not The power of impeachment, so far as the Presonly in England, but in the United States.t ident is concerned, was inserted in the ConstiDemeanor is conduct, and he is guilty of mis- tution to secure "good behavior," to punish demeanor who misdemeans or misconducts. "misconduct," to defend "the community against the incapacity, negligence, or perfidy constitute a misdemeanor punishable by information of the Chief Ma3gistrate," to punish "abuse df or indictment. power," "treachery," corrupting his electThe form of these questions implies that Melville p ower," "treachery," corruptig is electhad not used the public money for private purposes ors.; or, as Madison declared, "for any act sinlce the statute of 25 George III, chapter 31, and it which might be Called a misdemeanor."* And was not at common law a misdemeanor to do so prior to the statute. The case was one not calling for any decision of public trust and employment. This is usually punthe general question whether an act to be impeach- ished by the method of parliameentary izllmeachment." able mustbe indictable. norwas any suchproposition (Vol. 4, p. 121.) discussed. The Lords decided he was not guilty. (See Prescott's Trial, Massachusetts, 1821, pp. 79-80, The first charge against Judge Humphreys was for 109, 117-20, 172-180,191.) advocating secession in a public speech, December On Chase's Trial the defense conceded that "to 29, 1860, which was no crime by common or statute misbehave or to inisdemean is precisely the same." law, and yet hlie was impeached and removed. There (2 Chase's Trial, 145.) was no rebellion then and no " confebderate " - * From 2 Madison's Papers, 1153, &c. ernment. (4 Craunch, 75; 1 Dallas. 35; 2 Wallace, jr., July 20, 1787. 139; 2 Bishop, Criminal Law, 1183-120-4; 23 Boston The following clause, relative to the President, Law cIeporter, 597, 705; 1 Bishop, 514; Burr's Trial, being under consideration: Coombe's edition, "32. "To be removable on impeachment and conviction ~ "On the 16th of 0ctober, 1637, the House being for malpractice or neglect of duty. informed the 1t thr ofe ctebee67 te m Iouse n beng lt o a"r. Pinckney moved to strike this out, and said, informed that there have been solne inllovat~ionzp f of Ile ought not to be impeachable while in office.' late in trials of men for thieir lives ancd deaths, and in "Ir. Darce. If he be not i mpe achable wh ie i.' some particular cases restraints have been put upon "Mr. Darce. If he be not impeachable while in juries in the inquiries, this matteris referred tc acom- office le will spare no efforts or means whateser to mittec. On thol8tli of Noveinhesrthis committee are get himself reilected. lie considered this as an esempowered to receive information against the Lord sential security for the Oueo BEHAVIOR of the ExecChief Justice Kelynge, for any other MIISDEANrORS "Mr. Wilson con d. besides those concerning juries; and on the 11th of ouvern. Wilsoe can do nc crirredin. December, 1667, this committee reportseveral resolu- a wir. Gouverncur Morrss. He can do nO criminal tions aaiinst &e L~ord Chicf Justlice Kelynge, of rlle- act without coadjutors, who may be punished. In case he should be reelected that will be a sufficient gal and arbitrary preeeiugs i, n his offcice. The first proof of his innocence. Besides, who is to impeach? of these resolutions is that the proceedings of the Is the impeachment to suspendhis functions? If it Lord Chief Justice in the cases now reported are isnot the mischief will o on. innovatimis ii the trialofsefor their lives-and liber- "Colonel Mason. No loint is of more importance ties; and that he llath usled an arbitrary and illegal than that the right of peachment should importance power, which is of danlgerouls conseq~uence to the than that the right of impeachment should be conpower, which is of dangcrous consequnce to the tinned. Shall aiyman bove justice? Above all, lives and liberties of the people of England, and tends shall that al y be a bove it who can commit the lost shall that manl be above it who can commit the most to the introdsucing of an arbitrary Government. The extensive injustice? Lord Chief Justice hathl undervalued, vilified, and "Dr. Franklin was for rotaining the clause as conteinned llagnal Charta, the great preserver of our favorable to the Executive. Iistory furnishes one lives, freedom, and property." (4 Hatsel Prec., 113, clives, freedosLl, Trial, 461.) (4 Rata Free., 11 example only of a First Magistrate brought to public One of the resolves against Chief Justice Scroggs justice. Everybody cried out against this as uneonwas, "That the discharging the grand jury by thi stitutional. What was the practice before this in Court of King's Bench in Trinity term last before cases where the Chief Magistrate endered himself they had finished their presentments was illegal, obnoxious? Why, recourse was had to assassination, arbitrhry, ind a higih inisdenwalenor." 4Hte,177in which he was not only deprived of his life, but of State rials,479. the opportunity of vindicating his character. It State Trimls, 479.) would be the best way, therefore, to provide in the "Misprisions which are merely positive are gene- Cnstitution for the regular punishment of the rally denominated contempts or high misdemeanors, nstxecutiv e where his ienuev sh deserve it, of which — and for his honorable acquittal where he should be "1. The first and principal is the maladministration unjustly accused. of such high offices as are in public trustand employ- G. Morris admits corruption and some few other mnent. Thlis is usually punished by the method of offenses to besuch as ought to be impeachable, but parliamentary impeachnment." (4 llackstone, 121.) thought tie cases ouhlt to be enumerated and defined. t Iin Senate, July 8, 1797, it was "Resolved, That "Mr. Madison thought it indispensable that some William Blount, esq., one of the Senators of the provision should be mado for defending the comUnited States, having been guilty of a high miede- munity against the inceapacity, negligence, or perfidy sMeano-r, enlircly inconsistent with his public trust of the Chief Magistrate. The limitation of the and daty as a Senator, be, and lie hereby is. expelled period of his service was not a sufficient security. from the Senate of the United States." (Wharton's Ic might lose his capacity after his appointment. State Trials, 202.) He might pervert his administration into a scheme IHe was not guilty of an indictable crime. (Story of peculation or oppression. lIe might betray his on the Constitution, sec. 799, note.) trustto foreign Powers. * ~ * In case of the The offense charged, Judge Story remarks, " was Executive MIagistrate, which was to be administered not defined by any statute of the United States. It by a single man, loss of capacity or corruption was was an attempt to seduce a United States Indian in- more within the compass of probable events, and terpreter from his duty, and to alienate the affections either of them might be fatal to the Republic. and conduct of the Indians from the public officers "Mr. Gerry urged the necessity of impeachments. residing among thore." A good magistrate will not fear them. A bad one Blackstone says:' The fourth species of offense ought to be kept in fear of them. Ile hoped the. more imlmediately against the king and Government maxim would never be adopted here that the Chief axe entitled mispr-isions and contenapts. Misprisions Magistrate could do no wrong. anie, in the acceptation of our law, generally under- * * ~ * * 5 * * * * stood to be all such high offenses as are lnder the "Mr. Randolph. The propriety of impeachments degree of capital, but nearly bordering thereon." was a favorite principle with him. Guilt, wherever a* * -* * " Misprisions which are merely found, ought to be punished. The Executive will positive are generally denominated contempts or have great opportunities of abusing his power, parigm mnissdem7eanoors, of which the first and principal is ticularly in time cf war. tl maclacldminist-,ation of such high offices as re in " G. Morris. The Executive ought to be impeach 88 Mr. Madison afterward maintained that " the By a public law every judge is required to wanton removal of meritorious officers would take an oath as follows: subject him (the President) to impeachment "I do solemnly swear that I will administer justice and removal from his own high trust." without respect to persons, and do equal right to the The Constitution declares that " the judges, poor and to the rich; and that I will faithfully and impartially discharge and perform all the duties inboth of the Supreme and inferior courts, shall cumbent on me as judge, &c., according to the best of hold their commissions during good beha- my abilities and understanding, agreeablyto the Convior.',,t stitution and laws of the United States. So help me Vior. t God."* By another public law-the Constitutionable for treachery. Corrupting his electors and By another public law-the Constitutionincapacity were other causes of' impeachment. For the President is required to take an oath that the latter he should be punished not as a man, but as he will " faithfully execute the office of Presian officer, and punished only by degradation from dent of the United States, and will to the best his officen of his ability preserve, protect, and defend the his office. " The proposition was agreed to by a vote of eight of his ability preserve, protect, and defend the States to two.' Constitution of the United States." September 8, 1787. These oaths are public laws defining duties, (From 3 Madison's Papers, 1528.) and a violation of them is an impeachable mis-'The clause referring to the Senate the trial of impeachment against the President for treason and demearor, for Judge Blackstone says: bribery was taken up. "A crime or misdemeanor is an act committed or "Colonel Mason. Why is the provision restrained omitted in violation of apublie law, either forbidding to treason and bribery? Treason, as defined in the or commanding it."t Constitution, will not reach many great and dangerous offenses. Hastings is not guilty of treason. At- The Constitution contains inherent evidence, tempts to subvert the Constitution may not be treason as above defined. As bills of attainder, whiche have saved the British constitution, are forbiddcn, Ano i he tenure o s an h t it is the more necessary to extend the power of im-Declaration of Right. The tenure durante, &c., was peachme nts. introduced to enable a removal to be made for mis"He moved to add after'bribery' or' maladmin- behavior.-(2 Chase's Trial, 337.) By act of 13 Wil"Hemoveistrdttoaon.' after'bribery'or'maadmin hliam 3, c. 2, s. 3, the commission of every judge runs istration.' "flquamidiu se bene gesserit."-(2 Chase's Trial, 255, 336, "'Mr. Madison. So vague a term will be equiva- qaiu se bene gesserit."-(2 ase's Trial, 255, 336, 342, 386.) See p. 145 Peck's Trial, 427, where Buchlent to a tenure during the pleasure of the Senate.) See p 145 Pek's Trial, 427, where Buh"Colonel Mason withdrew'maladministration' anan said: "Judges hold during good behaviorand substituted' other high crimes and misdcmean- official misbehavior is impeachable. What is misorsagainsstitu th e State.' behavior? We are bound to prove that the respondors against the State.' "Agreed to, eight States to three. ent has violated the Constitution or some known law "A red to, eight Sta tes to three. President of the land. This was the principle deduced from " Mr. Madison objected to the trial e Chase's Trial in opposition to the principle" * by the Senate, especially as he was to be impeached Chse's Trial in orderpposition to thrender an officer impeachby the other branch of the Legislature; and for any *ble he must be indictable." act which might be called a misdemeanor. Thle Prcsident, under these circumstances, was made improp- Act of'teptember 24, 1789, 1Stat. 76; Chase's Trial, erly dependent. He wouldprefertheSupreme Court 402. for the trial of impeachments."' " " * "At common law an ordinary violation ofa public " Mr. Williamson thought there was more danger statute, even by one not in office, though the statute of too much lenity than of too much rigor." in terms provides no punishment, is an indictable The subject of impeachment will also be found? re- misdemeanor." (Bishop's MS. letter to a member of ferred to under the following dates in 1787, to wit: the Judiciary Committee, citing 1 Bishop Cr. Law, 3d May 28, June 2, June 18, July 18, August 6, August e., 187, 535.) 20, August 22, September 4, and September 17. The The term " misdemeanor" covers every act of "mispropositions submitted declared officers impeachable behavior," in the popular sense. "formal andCcorruptconduct,"''for trcason, bribery, "Misdemeanor in office and misbehavior in office or corruption," "for treason or bribery." But the mean the same thing," (7 Dane's Abridgement, 365.) Constitution finally rejected all these limitations, Misbehavior, therefore. which is mere negation of and gave the largest power of impeachment known "good behavior," is an expresslimitation of the office to parliamentary law so far as it relates to misde- of a judge. (See North American Review for Octomeanors. Ier, 1862.) * On the 16th June, 1789, on the bill to establish a Alexander Hamilton, in discussing the judicial Department of Foreign Affairs, Mr. Madison said in "tenure of good behavior," and the remedy in cases Congress: "Perhaps the great danger" * * * of "judiciary encroachments on the legislative au*' of abuse in the executive power lies in the im- thority" by pronouncing laws unconstitutional, says: proper continuance of bad men in office. But the "It may, in the last place, be observed that the power we contend for will not enable him to do this; supposed danger of judiciary encroachments on the for if an unworthy man be continued in office by an legislative authority, which has been upon many unworthy President, the House of Representatives occasions reiterated, is, in reality, a phantomn. Parcan at any time impeach him, and the Senate can ticular misconstructions and contraventions of the remove him whether the President chooses or not. will of the Legislature may now and then happen, The danger then consists. merely in this: the Presi- but they can never be so extensive as to amount to dent can displace from office a man whose merits re- an inconvenience, or in any sensible degree to affect quire that he should be continued in it. What will the order of the political system. This may be inbe the motives which the President can feel for such ferred with certainty, from the general nature of the abuse of his power and the restraints that operate to judicial power; from the objects to which it relates; prevent it? In the first place, he will be impeach- from the manner in which it is exercised; from its able by the House before the Senate for such an act comparative weakness: and from its total incapacity of maladministration; for I contend that the wanton to support its usurpations by force. And the inferremoval of meritorious officers would subject him to ence is greatly fortified by the consideration of the impeachment and removal from his own high trust." important constitutional check which the power of (4 Eliot's Debates, 380.) instituting impeachments in one part of the legislai A statute of Henry VIII, providing for the ap- tive body, and of determining upon them in the other, pointment of a custos srotulorum and clerk of the peace would give to that body upon the members of the for the several counties of England, provides that iudicial department. This is alone a complete secuthe custos shall hold his office until removed, and the rity. There never can be danger that the jtdges, by clerk of the peace durante se belne gesserit. It recites a series of deliberate usurpations on the authority of that ignorant persons had got in by unfair means. the Legislature, would hazard the united resentment 89 therefore, that as to judges they should be im- who says that " several of the State constitupeachable when their behavior is not good-and tions have followed the example" of Great the Senate are made the exclusive judges of Britain. And up to that time the State conwhat is bad behavior. stitutions had adopted the British system with The words "good behavior" are borrowed only some modifications, but none of them from the English laws and have been construed recognizing the idea that impeachment was there in a way to enlarge the scope of impeach- limited to indictable acts, but all affirming ment to a wide range. They were first intro- "that the subjects of this jurisdiction were duced'into an English statute to procure the offenses of a political nature."* Some of removal of officers who, on trial, might prove too ignorant to perform their duties. national inquest into the conduct of public men? These general views are sustained by the If this be the design of it who can so properlybe the opinions of the framers of the Constitution, inquisitors for the nation as the representatives of opinions of the framers of the Constitution the nation themselves? It is not disputed that the declared by themselves in convention, by Mad- power of originating the inquiry, or, in other words, son* in the Virginia convention of 1788, and of preferring the impeachment, ought to be lodged by Alexander Hamiltont in the Federalist, in one branch of the legislative body; will not the by reasons which indicate the propriety of this arrangement strongly plead for an admission of the other of the body intrusted with it, while this body was branch of thatbody to a share of the inquiry? The possessed of the power to punish them for their pre- model from which the idea of this institution has sumption by degrading them. from their stations. been borrowed pointed outthatcourse to the convenWhile this ought to remove all apprehensions on the tion. In GreatBritain itis the province of the House subject, it affords, at the same time, a cogent argu- of Commons to prefer the impeachment and of the ment for constituting the Senate a court for the trial House of Lords to decide upon it. Several of the of impeachment." (Federalist, No. 81.) State constitutions have followed the example. As Impeachment is not merely nor necessarily puni- well the latter as the former seem to have regarded tire only, but it may, and often must be, protective. the practice of impeachments as abridle inthe hands The safety of the public may demand its exercise in of the legislative body upon the executive servants cases where there has been no intentional wrong but of the Government. Is not this the true light in only a mistake of judgment. The Republic cannot which it is to be regarded." be suffered to perish or its great interests to be put To what extent this writer contemplated the exerin peril from any tender regard for individual feel- tion of this poweris not leftin doubt. In the succeedings or errors, ing number of the same commentary he observes; And Thomas Jefferson evidently held that judges "The convention might with propriety have mcdiwere impeachable for assumptions of power. (Let- tated the punishment of the Executive for a deviater to Mr. Jarvis, September 28, 1820; and see Jack- tion from the instructions of the Senate or a want of son's veto message on the bank bill.) integrity in the conduct of the negotiations commit* "Were the President to commit anything so ted to him," clearly not statutory offenses. th rsdatrociouseastosummontonlyafew Stan(th ong *Thus, in that of Virginia, established in 1776, is sideatrocious as to summon only a few States (to con- seen this provision: "The Governor, when he is out sider a treaty) he would be isnpeached and convicted, of office, and others offending against the State, either as a majority of the States would be affected by his mis- by maladministration, corruption, or other means, demeanor." shall be impeachable by the House of Delegates." And again: In the same year, in the succeeding month, Delaware Mr. Madison, advertings to Mr. Mason's objection provided in her constitution that "the President to the President's power of pardoning, said it would whon he is out of office, and eighteen months therebe extremely improper to vest it in the House of after, and all others offending against the State, Representatives, and not much less so to place it in either by maladministration, corruption, or other the Senate, because numerous bodies were actuated means, by which the safety of the Commonwealth more or less by passion, and might, in the moment may be endangered, shall be impeachable by the of vengeance, forget humanity. It was an estab- House of Assembly." So North Carolina two months lished practice in Massachusetts for the Legislature later provided in her constitution: "The Governor to determine in such cases. and other officers offending against the State by "It was found, says he, that two different sessions, 6\ trat W JS "e'm' "It was foud, says he, that two different sessions, violating any part of this constitution, maladminisbefore each of which the question came, with respect tration, or corruption may be prosecuted on the imto pardoning the delinquents of the rebellion, were peachment of the General Assembly, or presentment governed precisely by different sentiments-the one ofthegrandjury of anycourtof supreme jurisdiction would execute with universal vengeance and the in this State." other would extend general mercy. The constitution of Connecticut is stated to contain "There is one security in this case to which gen- a provision "to call to account for any misdmeanor tlemen may not have adverted: if the President be and maladministration" That of New York proconnected in any suspicious manner with any per- vides: "The power of impeaching all officers of the sons, and there be grounds to believe he will shelter State for mal and corrupt conduct in their respective himsel, the House of Representatives can impeach offices is vested in the representatives of the people him; they can remove him if found guilty; they can in Assembly," and the trial is declared to be for suspend him when suspected, and the power will de- "crimes and misdemeanors." So, in the elaborate volve on the Vice President. Should he be,tuspected constitution of M3assachusetts, the eighth article dealso he may, likewise, be suspended till he be im- dares: "The Senate shall be a court with full aupeached and removed, and the Legislature shall thorityto hear and determine all impeachments made make a temporary appointment. This is a great by the House of Representatives against any officer security." (Debates of the Virginia Convention, or officers of the Commonwealth for misconduct and printed at the Enquirer Press for Richey, Worsley & maladministration in their offices." Hence, it will WAuustine Davis, 1805, pp, 353-4; 11 Howell, statute be remarked, that in all of the State constitutions to seven, 733.) which we have had access, formed prior to that of the tin the Federalist, No 65, he says: United States, the impeachable offenses arc of a "The subject of its jurisdiction are those offenses nature which may with peculiar propriety be denomwhich proceed from the misconduct of public men, or, inated "political." In neither of them are the subin other words, from the abuse or violation of some acts of impeachment mere "statutory offenses." public trust. They are of a nature which may, with This'minute recurrenceto the constitutions of several peculiar propriety, be denominated political, as they States will not be deemed inappropriate when it is relate chiefly to injuries done immediately to the rememberedthattheyarenotonlythemostauthentic society itself." evidence of the public sense of our country at an early "What," it may be asked, "is the true spirit of the period, but because, in the formation of the Federal institution itself'? Is it not designed as a method of Constitution, their provisions should have a con 90 these constitutions limited impeachment to charges has rested upon any statutable misdemean4mal and corrupt conduct in office," or, as in ors." * * ~~mal and corrupt coi~"The reasoning by which the power of the House the New York constitution of 1777, to "venal of Representatives to ppnish for contempts (which and corrupt conduct in office," while the Con- are breaches of privilege and offenses not defined by stitution of the United States discarded all any positive laws) has been upheld by the Supreme Court, stands upon similar grounds; for if the House these limitations and gave the power in the had no jurisdiction to punish for contempts until the broadest terms. It is said this provision in acts had been previously defined and ascertained by the Constitution of the Ulnited States was positive law, it is clear that the process of arrest would be illegal." (Dennvs. Anderson, 6 Wheat., 204.) copied from that of New York.* If so, the "In examining the parliamentary history of imchange of phraseology is significant. peachments, it will be found that many offenses not These general views are supported by the easily definable by law, and many of a purelypolitical character, have been deemed high crimes and elementary writers, without exception, up to misdemeanorsworthy of this extraordinaryremedy."* the last year. "There are many offenses, purely political, which Curtis, in his History of the Constitution~t have been held to be within the reach of parliamentary impeachments, not one of which is, in the says: slightest manner, alluded to in our statute-books. " Although an impeachment may involve an in- And, indeed, political offenses are of so various and quiry, whether a crime against any positive law has complex a character, so utterly incapable of being been committed, yet it is 1not necessalrily a tri-ci for defined or classified, that the task of positive legiscrinse, nor is there any necessity, in the case of crimes lation would be impracticable, if it were not alhost committed by public officers, for the istitution of absurd to attempt it. offiWhat, for instance, could any special proceeding for the infliction of positive legislation doin cases of impeachment like ishment prescribed by the laws, since they, like all the charges against Warren Hastings, in 1788? Reother persons, are amenable to the ordinary jurisdic-sort thenmust be had either to parliamentary praction of the courts of justice, in respect of offenses tice, and the common law, in order to ascertain what against positive law. The purposes of ans istpeachsnent are high crimes and misdemeanors or the whole lie wtholly beyond the penalties of the statute or the cu. - subject must be left to the arbitrarydiscretion of the tomary law. The object of the proceeding is to aicer- Senate for the time being. The latter is so incomtain whether cause exists Jor reeloving a public officer patible with the genius of our institutions that no from office. Such a cause may be found in the fact, lawyer or stateman would be inclined to countethat either in the discharge of his office, or aside nance so absolute adepotism of opinion and practice, from its functions, he has violated a law, or com- whih might make that a crime at one tie or in mitted what is technically denominated a crime. one person, which would be deemed innocent at But a cause for removal fiom office may exist where another time or in another person. The only safe no offense against positive law has been committed, guide in such cases must be the common law." * as where the individual has from imnsor-ality, or * * "And however much it may fall in with isbecility, or madcludiinist-ation become zunfit to exelr- the political theories of certain statesmen and jurists eise the office. The rules by which an impeachment to deny the existence of a common law belonging to is to be determined are therefore peculiar, and are and applicable to the nation in ordinary cases, so not fully embraced by those principles or provis- one ha as yet been bold enough to assest that thepower ions of law which courts of ordinary jurisdiction are of impeachment is limited' to offenses positively required to admillister.s" defined in the statute-book of the Union, as impeachrSelden says: ter." able high crimes and misdemeanors."t Selden says: Neither in Congress nor in any State has "Upon complaints and accusations of the Commons the Lords may proceed in judgment against-the delinquent of what degree soever and what nature * 1 Story on Const., sec. 800. He proceeds to cite soever the offense be. For where the Commons com- numerous cases. plain the Lords do not assume to themselves trial 1 Story on C at comnioni law. Neither do the Lords, at the trial of Rawle, in his work on the Constitution, says: "The a common impeachment by the Commons, decedere delegation of important trusts affecting the higher de jure sue, (depart from their own latw.) For the interests of society is always from various causes Commons are there instead of a Jury, and the par- liable to abuse. The fondness frequently felt for the ties answer, and examination of witnesses are to be inordinate extension of power, the influence of party in their presence, or they to have copies thereof; and and of prejudice, the seductions of foreign States, or judgment is not to be given but upon their demand, the baser appetite for illegitimate emoluments, are which is instead of a verdict, so the Lords do only sometimes productions of what are not inaptly judge, not try the delinquent." (Selden's Judicature termed political offenses, (Federalist, No. 65,) which in Parliaments, London, 1681, p. 6.) it would be ditficultto take cognizanceof in the ordiStory says:t nary course of judicial proceeding. " Congress have unhesitatinrly andopted toe con- " The involutions and varieties of vice are too many elusion that no previous statute is necessary to -u- and too artful to be anticipated by positive law." thorizo an impeachmenttor any official misconduct." (Rawle on Const., 200.)'* * * * "In the few, cases of impeach- "In general, those offenses which may be comment which have hitherto been tried no one of the mitted equally by a private person as by a public officer are not the subjects of impeachment." (lb., 204.) trolling influence on the minds of their delegates to "We may perceive in this scheme one useful mode the general convention, seeking to commend it to of removing from office him who is unworthy to fill their adoption by ingrafting into it parts of their own it, in cases where the people and sometimes the Pressystems, and thus imparting to it the well-ascertained ident himself would be unable to accomplish that spirit and prudence oftllose who, if adopted, were to object." (lb., 208.) be its constituents." (From an able article by John Chancellor Kent, in discussing the subject of imC. Hamilton, Esq.) peachment, says: "The Constitution has rendered *Vol. 6 Am. Law Reg. N. S. 277; Wharton's State him [the President] directly amenable by law for Trials, 287. maladministration. The inviolability of any officer of the Government is incompatible with the repub- Curtis's Hist. of Const., 260-1; 5 Eliot, 507-529. lican theory as well as with the principles of retribu-.. Story on Const., see. 799. In a note he says: " It tive justice. may be supposed that the first charge in the articles "If the President will use the authority of his staof impeachment against William Blount was a stat- tion to violate the Constitution or law of the land, utable offense; but on an accurate examination of the House of Representatives can arrest him in his the act of Congress of 1796, it will be found not to career by resorting to the power of impeachment." have been so." (1 Kent's Corn., S29.) 91 any statute been proposed to define impeach- The Constitution contains inherent eviJelnce able crimes: so uniform has been the opinion that the indictable character of an act does not that none was necessary, even in those States, define its impeachable quality. It enumerates few in number, where common-law crimes do the classes of cases in which legislative power not exist. may be exercised, -and it defines the class of The assertion, " that* unless the crime is persons and cases to which the judicial power specifically named in the Constitution, im- extends; but there is no such enumeration of peachments, like indictments, can only be in- impeachable cases, though there is of persons. stituted for crimes comrnlnitted against the statu- In England and some of the States thetory law of the United States," is a view not power of removal of officers by the Execuyet a year old, which has not been held at any tive, on the address or request of the Legislaprior time, either in England or America. ture,* exists, but the Constitution made no It wpuld certainly seem clear that impeach- provision for this as to any officer, manifestly ments are not necessarily limited to acts in- because the power of impeachment extended dictable by statute or common law, and that to every proper case for removal. it would be impossible for human prescience As to the President and Vice President there or foresight to define in advance by statute is this provision, thatthe necessary subjects of impeachments. The "Congress. may by law provide for the case of Constitution contemplated no such absurd im- renmoval, death, resignation, or inability," * * * p "declaring what officer shall then act" * possibility. It may be said there is danger in ~ 6 Until the disability be removed or a Presleaving to the Senate a power so undefined. ident shall be elected." (Art. 2, sec. 1.) It was because of this danger that the power It has already been shown that the framers has been limnitbd as it i4 by the Constitution, of the Constitution regarded the power of imand experience has shown that the limitations peachment as a means of defending " the comare more than sufficient. munity against the incapacity" of officers. The whole system of common-law crimes, This clause of the Constitution recognized the as it exists in England, and in almost every same view, article two, section one: State of the Union, is the result of a judicial Congress my bylawprovide for the ase of" power equally undefined. *' " * inability, both of the President and The system of impeachment is to be governed Vice President, declaring what officer shall then act by great general principles of right, and it is asPresident, and such officer shall act accordingly, byI getgnrlpicpeofrgt suntil the disability be removed or a President shall less probable that the Senate will depart from be elected." these, than that the whole Legislature would in the enactment of a law, or than courts in estab- "Offenses as tangible and as capable of being lishing the common law.t measured by fixed rules as any felony defined in criminal laws." And this is as definite and no less latitudinarian * Vol. 6 Am. Law Reg., N. S., 269. than the common law itself, which is "the perfect The Constitution has made the Senate, like the tion of reason" as determined by courts. For even House of Lords, sole judge of what the law is, assum- in England not all common-law offenses are impeaching their wisdom to be equal to that of the common able, but only such of them (along with others not law courts. (2 HIa;le's P. C., 276; Barclay's Digest,140; indictable) as by parliamentary usage or popular Constitution, article one, section three.) This is ne- sense rise to the dignity of "high" misdemeanors, cessarily so; for though some statutory and common and of this the House of Lords are the sole judges. law crimes are impeachable, yet not all of them are, (Peck's Trial, 10 Selden, Judicature in Parliaments, and the Senate decides which are and are not. It is 6; 2 Hale's P.., 275; Barclays Digest, 140.) said if the impeachable crimes are not defined by law On the trial of Judge Prescott, in Massachusetts, the power of impeachmeblt will be undefined and in 1821, Mr. Shaw said: "The security of our rights dangerous. The power to determine impeachable depends rather upon the general tenor and characcrimes by the Senate is no more undefined than the ter than upon particular provisions of our Constitupower of the common la courts to determine com- tion. The love of freedom arid justice so deeply mon-law crimes. Impeachment is regulated by prin- engraven upon the hearts of the people and interciples as well defined and permanently settled as the woven in the whole texture of oursocial institutions, fundamental and eternal doctrines of right, reason, a thorough and intelligent acquaintance with their and justice pervading the parliamentary jurispru- rights, and a firm determination to maintain them; dence of civilized nations, and, like the common law, those moral and intellectual qualities withit has Aucrged from primeval errors and acdapted outwhich social liberty cannot exist, and overwhich itself to an advanced civilization. The danger of im- despotism can obtain no control, these stamp the periling the safety of nations in measuring parlia- character and give security to the rights of the free mentary law by the rule which defines wrongs to in- people of this Commonwealth." * * * dividuals is infinitely greater than the evils which "But it has not been, and it cannot be, contended can flow from recognizing the law of impeachment that, in its decisions and adjudications, this court is as a parliamentary system resting upon its own solid not governed by established laws. These may be foundations. positive and express, or they may depend upon reaThe rule which allows impeachments for indictable soning and analogy. It would be idle to expect a acts enables the legislative department or the Senate rule applicable to every case in the text of the statalone to declare trivial offenses impeachable while ute-book. Laws are founded on certain general the parliamentary law limiting impeachable offenses principles and the relations of men in society. It is to misdemeaniors affectingthenation isless latitudin- the province of this court, as of all other judicial arian and attended with less danger of abuse. When tribunals, to search out and apply these principles impeachment is employed to remove officers for will- to the particular cases in judgment before them. ful violation of the Constitution or laws, for exercis- (See 4 Howard's State Trials, 47, per Selden; 6 Am. ing the powers of Congress, or the judiciary for per- Law Reg., N. S., 264.) forming acts affecting the nation unauthorized by * Removal on the address of both Houses of Parlialaw, for refusing to execute laws requiring that duty, ment is provided for in the act of settlement, 3 Halfor a perversion of lawful powers to accomplish un- lam, 262. In the convention which framed our naconstitutional objects-these arc- tional Constitution, June 2,1787, Mr. John Diekin This and the power of impeachment are the When the Constitution was adopted all the only modes of getting rid of officers whose States recognized common-law crimes, and inability from insanity or otherwise renders those added since do so, with few exceptions. them unfit to hold office, and whose every offi- But there is something peculiar to each and cial act will necessarily be misdemeanor. As different from all others in its common-law to the President and Vice President it was crimes, growing out of the rulings of judges or necessary to give Congress the power to des- its condition, and in all statutes have made ignate a successor, and so do determine the changes, so that no two States recognize the disability. As to all other officers the Consti- same crimes. tution or laws define the mode of designating The Constitution authorizes Congress "to a successor, and it is left to the impeaching provide for the punishment of counterfeiting power to remove in cases of insanity or mis- the securities and current coin of the United demeanor arising from that or other cause. States;" "to define and punish piracies and It cannot be supposed the whole nation must felonies committed on the high seas,and offenses suffer without remedy if the whole Supreme against the law of nations;" but nowhere Court or other officers should become utterly declares they may define impeachable crimes, disabled from the performance of their duties. for the very good reason that common parliaSuch an occurrence is within the range of pos- mentary law, subject, like the common law, to sibility, if not probability. be molded to circumstances and adapted to In our system it is utterly impossible to apply times, had already sufficiently defined them. any test of common law or statutory criminality. Congress cannot by any law abridge the right The Supreme Court, without much considera- of the House to impeach or the Senate to try. tion, has determined that the national courts When the Constitution confers on the House have never been clothed with jurisdiction of the " sole power of impeachment.," and on the common-law crimes.* Senate "the sole power of trial," these are indepexndent powers, not to be controlled by son, of Delaware, moved " That the Executive be the joint opinion of the.two Houses previously made removable by the national Legislature on the incorporated into a law.* Suppose such alaw requestof a majorityoftheLegislaturesofindividual passed. It cannot be repealed over a veto States." Delaware alone voted for this, and it was rejected. Impeachmentwasdeemedsufficientlycogt- except by a two-thirds vote in each Iouse. prehensive to cover every proper case for removal. Yet a majority may impeach; and, after the * T7hereasonwhichdeniesjurisdictionofcomnzon-lata veto of a repealing law, can that majority be crines to the courts of the United States does not apply denied the constitutional privilege conferred on to impeachments. them By the Constitution the trial forcrimes must be had in the State and districtwherecommitted. (Ar- "Treason, bribery, and other high crimes ticle 6 Amendments.) By the judiciary act of Sep- and misdemeanors" are, of course, impeachtember 24,1789, the Supreme Court is restricted to able. Treason nd bribery ae specifically boldingsessionsatWashington. (lStatutes-at-Large, bribery specifically 73.) By the Constitution the judicial power of the named. But "other high crimes and misUnited States is vested in the Supreme Court and demeanors" are just as fully comprehended such infe-rior courts as Congress may establish. (Arti- cle 3, section I; article 1, section 10.) It was held as early as 1812that the circuit and dis- made the sole judge of what they are. There trict courts of the United States, being the " inferior is no revising court. The Senate determines courts" established by Congress, could exercise no in the light of parliamentary law. Congress common-law criminal jurisdiction. This doctrine was reaffirmed in 1816 by a divided court, and has cannot define or limit by law that which the never been authoritatively decided since. (United Constitution defines in two cases by enumeraStates -va. Hudson, 7 Cranch, 32; United States vs. Corlidge, 1 Wheaton, 415; 1 Galli's Reports, 488; United States vs. Lancaster, 2McLean's Reports, 431; And itis said that the Supreme Court aloneWashington Circuit Court Reports, 84; United States "Possesses jurisdiction derived immediately from vs. Ravara, 2 Dallas, 297; United States vs. Worrall, the Constitution, and of which the legislative power 2 Dallas, 384; United States vs. Maurice, 2 Brock., cannot deprive it." (7 Cranch, 33.) 96; United States vs. New Bedford Bridge, 1 Wood- Where, therefore, a common-law jurisdiction is bridge & Minot, 401; United States vs. Babcock, 4 conferred by the Constitution on a court created by McLean, 113-115.) that instrument, it is one "of which the legislative This ruling has been disapproved by the ablest power cannot deprive it." (7 Cranch, 33.) commentators on constitutional and criminal law- And this is precisely what the Coistitution has by Story and Rawle and Bishop and Wharton. (1 done as to impeachments; it has created the tribuBishop's Criminal Law, third edition, 163, [20;] act nal for their trial-the Senate; it has given that body of Congress of September 24, 1789, sections 9-11; jurisdiction of all "crimes and misdemeanors" imStatutes 1842, chapter 188, section 3; Du Ponceau on peachable by parliamentary usage, and no law can Jurisdiction.) limit it. - And this view has been sustained by Story The denial of common-law criminal jurisdiction in an. Rawle and K rawle and in viegt of the dethese inferior courts rests solely on the reasons that sions referred to. (6 American Law Register. 656.) such tribunals being created not by the Contutioi, At the time the Constitution was adopted, and ever but by act of ~'Congress, they- since in England and all the original States of the Union, what is known as the "common law" and "Possess no jurisdiction but what is given them by.. common-law crimes" existed, and yet exist, in adthe power that creates them;" and that- dition to crimes defined by statute; and this is so in "There exists no definite criterion of distribution all the States except Ohio, and perhaps two or three [of jurisdiction] between the district and circuit others. courts of the same district." And that common law- *" The Parliament cannot by any act restrain the "Jurisdiction has not been conferred by any legis- power of a subsequent Parliament." (4 Inst., 42; 5 lative act." Co. Dig., 301.) 93 tion and in others by classification, and of In-addition to this there are crimes excluwhich the Senate is sole judge.* It has never sively of national jurisdiction and others exbeen pretended that treason and bribery would clusively of State cognizance. The murder of not be impeachable if not made criminal by citizens in a State is not and chnnot be made statute or so recognized by national common criminal by act of Congress where it is not perlaw. They are impeachable because enumer- petrated in the denial of a national right. The ated. Other high crimes and misdemeanors States alone provide for this and many other are equally designated by classification. offenses. And in the States not recognizing Suppose the Constitution had declared "that common-law crimes they may omit to make all persons committing'treason, bribery, or homicide a penal offense as to Indians, neother high crimes and misdemeanors' shall be groes, or others, if the Legislature so determpunished by indictment in the courts of the ine, in the absence of a law of Congress simUnited States," can it be doubted that every ilar to the " civil rights" act.* crime and misdemeanor recognized by the com- If no act is impeachable which is not made mon law would be the subject of indictment? criminal, then its criminality must depend"This would be by force of the Constitution 1. On an act of Congress defining crimes i or, employing the words crimes and misdemeanors; 2. On acts of State Legislatures defining for these are words known to the common law, crimes; or, and it is a universal principle of interpretation, 3. On the definition of common-law crimes acted on in all the courts, that a common-law in the States; or, term employed in conferring jurisdiction on 4. On the common-law crimes existing in courts is to bear its common-law meaning." England when the Constitution was adopted. Now, when the Constitution says that all It is quite clear that national law in some civil officers shall be removable on impeach- form must control it, since " the United States ment for high crimes and misdemeanors, and have no concern with any but their own laws."t the Senate shall have the sole power of trial, The national Government is complete in the jurisdiction is conferred, and its scope is itself, with powers which neither depend on defined by common parliamentary law.t nor can be abridged by State laws.$ The national courts do not take jurisdiction If, then, impeachment is limited to acts made of common-law crimes, not because common- criminal by a statute of Congress, an officer of law crimes do not exist, but because their the United States cannot be impeached, though jurisdiction is only such as is expressly con- he should go into the " Dominion of Canada" ferred on them, and no statute has conferred or the " republic of Mexico" and there stir the jurisdiction. But in the District of Colum- up insurrection or be guilty of violating all bia, under national jurisdiction, common-law the laws of the land; or if he should go into a crimes and jurisdiction of them in the courts do exist. j The act of Congress of February 27, 1801, extended and continued in force over the District the comT he peers are judges of law as well as of fact mon and statute law ofMaryland, where common-law " Thle'eers are udges.of la' as w ell as of fact." crimes existed, and organized a circuit court with (2 Hale's P. C., 275; Barclay's Digest, 140.) They, the jurisdiction conferred on circuit courts of the therefore, are not governed by the indictable char- United States by section eleven of the act of Februacter of an act. In fact, as the highest court, they ary 13, 1801. (2 United States Statutes-at-Larige, 92; make not only parliamentary law, but the law for 2 Statutes, 103-105, sections 1-3.) the courts. (Regina vs. O'Connell.) The criminal court organized by act of July 7,1838, t Impeachable misdemeanors are determined by had the same criminal jurisdiction. (5 Statutes, 306.) the Senate just as each House of Congress and the The supreme court of the District, organized by act courts having thejurisdiction to punish for -ontempts of March 3,1863, has the same jurisdiction of the prior determine what acts or neglect constitute them. (7 courts thereby abolished. (12 Statutes, section 3.) Cranch, 320.) That jurisdiction is conferred in these words: "CUomrnon-lacw crimes do exist, they are indictable, "That,". * * * "said courts" * and jzrisdiction of them has existed in the courts of the * * "shall have cognizance of all crimes United Statesfor two thirds of a century in the District and offenses cognizable under the authority of the of Colurnbia." (1 Bishop on Criminal Law, section United States." (2 Statutes, 92, act February 13,1801.) 167, 122; Du Ponceau on Jurisdiction, 62-7; KeIldall *Act of April 9, 1866, 14 Stat., 27. vs. Uniid States, 12 Peters, 524-613; United Stats vs. "It was said by one of the counsel that the W~atkrins, 3 Crflnch, 441.) t- "It was said by one of the counsel that the The highest authority on criminal law in this offense must be a breach either of the common law, country says: a State law, or a law of the United States, and that "There must in reason and in legal principle be in no lawyer could speak of a misdemeanor but as an those localities where State power is unknown com- act violating some one of these laws. This doctrine mon-law crimes against the United States. Espe- surely is not warranted, for the Government of the cially this exception must in reason extend to all United States have no concern with any but their matters iwhich concern our intercourse with foreign own laws." * * * * "But as a member as well as to all local transactions beyond the terri- of the House of Representatives, and acting as a mantorial limits of the several States. The law of na- ager of an impeachment before the highest court in tions and the law of the admiralty concerning both the nation, appointed to try the highest officers of civil and criminal things would seem, therefore, to the Government, when I speak of a misdemeanor I have been made United States common law." * mean an act of official misconduct, a violation of * * *" "And so the United States tribunal official duty, whether it be a proceeding against a would appear to have common law cognizance of positive law or a proceeding unwarranted by law." offenses upon the hi-gh seas not defined by statutes, (Per Nicholson arguendo, 2 Chase's Trial, 340; per and of all other offenses within the proper cogni- Rodney, 387.) zance of the criminal courts of a nation, committed $ Weston vs. City Council of Charleston, 2 Peters, beyond the jurisdiction of any particular State." 449. McCulloch Vs. Maryland. 4 Wheat., 316; Osborn (1 Bishop on Criminal Law, section 165, [21.]) vs. hank of the United States, 9 Ib., 738. 94 State and violate all of itslaws.* If so, a high- the rules and foundations of this House;" that way robber may be President, and he is exempt is, upon the great principles of parliamentary from impeachmentl law adapted to our condition and circumstanIt is not possible that a position so mon- ces, as modified by the Constitution, giving it strous was intended by the framers of the Con- a construction equal to every emergency which stitution. Nor can the criminal statutes or may call its powers into exercise, and giving common law of the States limit or regulate in its interpretation full effect in constitutional national impeachable offenses. The fact that forms to the maxim it was designed to make each State differs from all others in its laws effectual-" that the safety of the Republic is renders this impossible. It never could have the supreme law."* been designed to control the national power If we adopt the test that an act to be imof impeachment by State laws, ever varying peachable must be indictable at common law, and conflicting as they are.t the Constitution will be practically nullified on If impeachments were limited in England to this subject. indictable offenses, as they never have been, it It is a rule of the common law " that judges is manifest no such rule can be adopted here, of record are freed from all presentations for we have no uniform and single standard of whatever except in Parliament, where they the common law as there. may be punished for anything done by them in And as the Supreme Court has determined such courts as judges."' that the common-law crimes do not exist in Bishop declares that at common law "the docour national system, it cannot be supposed trine appears to be sufficiently established that they are more applicable to the Senate than to legislators, the judges of our highest courts, and our ordinary courts. We can, therefore, safely of all courts of record acting judicially, jurors, adopt the remark of " the great Selden " on and probably such of the high officers of each the impeachment of Ratcliffe:jZ "It were of the governments as are intrusted with rebetterij to examine this matter according to sponsible discretionary duties, are not liable to an ordinary criminal process, like an indict * Mr. Rodney, in the argument of Chase's trial, ment, for their official doings, however corsaid: "When gentlemen talk of an indictment being rpt" (1 Bishop's rim Law, 915 [362. lecessarysub~traltum nof allnoimeat icbmenIsbod rupt." (1 Bishop's Crim. Law, 915 [362.] ) a necessary substratum of an'impeachment I should be glad to be informed in what court it mustbe sup- "At common law an ordinary violation of ported. In the courts of the United States or in the a public statute by one not in office, though State courts? If in the State courts, then in hich the statute in terms provides no punishment, of them; or provided it can be supported in any of - them, will the act warrant an impeachment? If an is an indictable misdemeanor." (1 Bishop, indictment must lie in the courts of the United 535 [187.]) States, in the long catalogue of crimes there are a very few which an officer might not commit with And a similar volation by inferior oicers impunity. Hce might be guilty of treason against an was an indictable misdemeanor. individual Statc; of murder, arson, forgery,If a public officer itrustedwit definite perjury in various forms, without being amenable to the Federal jurisdiction, and unless he could be powers, to be exercised for the benefit of the indicted before them lie could not be impeached." community, wickedly abuses or fraudulently (2 Chase's Trial, 389.) exceeds them, he is punishable by inditment, The doctrifte that snothing is impeachable unless indictabse by (Tctof Conogrcss isimpracticable. though no injurious effects result to any indiIf only offences indictable by act of Congress are vidual from his misconduct." (Wlart. Crim. impeachable, the President and all civil officers will Law, sec. 2514.) escape impeachment for many of the highest crimes. w Wa m1i MIurder, arson, robbery, and other crimes committed Whatever mischievously affects the, person in a State tre indictable by State laws, but cannot or property of another, or openly outrages debe mtnde so by act of Congress. f In the argument of Chase's trial Mr. Rodney said:'Are we then to resort to the erring data of' * "It may be alleged that the powecr of impeachthe different States? In New Halapshire drunken- ment belongs to the House of Representatives, and ness may be an indictable offense, but notin another that with a view to the exercise of this power that State. Shall a United Statesijudgo be impeached and House have the right to investigate the conduct of removed for getting intoxicated inll New Hampshire, all public officers under the Government. This is when he may drink as he pleases in other States with cheerfullyt admitted. In such a case the safety of the impunity? In some States witchcraft is a heinous lReip tublic woulid be the supreme law, and the power of offense, which subjects the unfortunate person to the House in the pursuit of this object would peneindictment and punishment; in other States it is trate into the most secret recesses of the executive unknown as a crime. A great variety of cases might department." (President Polk's Message, Jour. Ho. be put to expose the fallacy of the principle, and to Rep., 29th ConD., 1st sess., 693.) " Salu spopl iisuprenma prove how improper it would be for this court to be lex:" Broorn'sLegal Maxims; Eilount's Tirial, Whart. govcrned by thepractice of the different States. The State Trials 300, pier Blount; Prescott's Trial, 181, per variation of such a compass is too great for it to be Shaw; contra, Blake, 116. relied on. This honorable body must have a stand- t 1 HIawkins, 192, ch. 73, sec. 6; 1 Salk., 396; 2 Woodard of their own, which will admit of no change or deson,596,355; Jacob's Law Dic., tit. Judlges; 12 Coke, deviattion." (2 Chase's Trial, 389.) 25-6; IHammond vs. HIowell, 2 Mod., 218; Floyd vs.:.Vol. 6 Am. Law Reg., N. S., 264; 4 Howard's State Barker, 12 Co., 23-5. "The doctrine which hold,s a Trials, 47.' judge exempt from a civil suit or indictment for any!I A minister is answerable for the justice, the hon- act done or omitted to be done by hi:n sitting as a e.sty, the utility of all measures emanating from the judge has a deep root in the common law," per Crown, as wall as for their legality; and thus the Kent: Yates vs. Lansing, 5 Johns., 291; 9 lb., 395; executive administration is, or ought to be, subordi- Cunningham vs. Buckleow, 8 Cow., 178; Peck's Trial, nate, in all great matters of policy, to the superin- 492; 2 Chase's Trial, 389. But see the ruling of Chief te.udencc and virtual control of the two houses of Justice Sippen, refeirrcd to in Addison's (Pa.) Trial, L':Iinaament. (2 Hasiamn's Const. History, 550.) 70; 1 Bishop on Crim. Law, 915 L362;] 4 Blackst., 121. 95 cency, or disturbs public order, or is injurious of court the evil would become so intolerable to public morals, or is a breach of official duty, in an officer holding for good behavior that he when done corruptly, is the subject of indict- should be removed. ment." (Whart., sec. 3.) If the President should hold out promises of It may be said the immunity of a judge from offices of honor and trust to the friends of Senindictment for his official acts at common law is ators to influence theirvotes the consequences placed on grounds of public policy, to secure his might be so pernicious and corrupting, espeindependence, and that it is the indictable char- cially in an hour of national peril, when a aecter of the act, if done by a private individual, single vote might decide the life of the GovWvhich gives jurisdiction by impeachment. But ernment, that the safety of the Republic would even this proves that personal liability to an demand impeachment. Such a Presidentwould indictment is no test of impeachability. And violate his oath faithfully to execute his duties. in the nature of things ofjicial acts cannot be There are many breaches of trust not amountdone by private individuals, so that the indict- ing to felonies, yet so monstrous as to render able character of an act is no test of its imn- those guilty of them totally unfit for office. peachability; and no such test could have Nor is it always necessary that an act to be entered into the minds of the framers of the impeachabllemustviolate a positive law. There Constitution. are many misdemeanors, in violation of official It is a rule of interpretation that a law or an oaths and of duty alike shocking to the moral instrument is not to be construed so as to make sense of mankind and repugnant to the pure its "effects and consequences" absurd, if its administration of office, that may violate no language may be fairly understood otherwise. positive law.* To permit all acts to escape impeachment, unless indictable at common law,* would lead stantlyomittoholdcourt, orshouldhabitually, ttend to consequences the most ruinous and absurd.t so short a time each day as to render it impossible to If'~~~~~ ~~~ adespatch the business." (2 Chase's Trial, 255.) If a judge should persistently hear the argu- Mr. Randolph said: "The President of the United ments of one party to causes privately;and out States has a qualified negative on all bills passed by the two Houses ofCongress."' * * "Let us suppose it exercised indiscriminately on every act On the trial of Chase Mr. Nicholson said: " You, presented for his acceptance. This surely would be M2ir. President, as Vice-President of the United an abuse of his constitutional power richly deserving States, together with the Secretary of the Treasury, impeachment; and yet no man will pretend to say it the Chief Justice, and the Attorney General, as conl- is an indictable oftense." (2Chase's Trial, 452; Wickmissioners of the sinking fund, have annually at your liffe's argument on Peck's Trial, 31.1.) disposal $8,000,000 for the purpose of paying the On Peek's trial, Mr. Wickliffe put additionalcases: national debt. tIf, instead of applying it to this "Suppose a judge under the influence of political public use, you should divert it to another channel, feelin, shall award to his favorite anew trial" * or convert it to your own p)rivate uses, I ask if there * * * * "againstknown law, would this be is a man in the world who would hesitate to say that an indictable offense?" you ought to be impeached for this misconduct. And "Suppose a judge "shalllabor yet there is no court in this country in which you for two hours in cabuse upon an unoffending, citizen could be indicted for it. NIay, sir, it would amount whom he has dragged before him." (Peck's Trial, to nothing more than a breach of trust, and would 310.) not be indictable under thc favorite common law. "If-a headof a Departmentshould diverthispower "If a judge should order a cause to be tried with and patronage for his personal or political aggraneleven jurors only surely he might be impeached for dizement." (Id., 310.) it, and yet I believe there is no court in which he On Peck's trial, Mr. Buchanan said: " The abuse could be indicted." (2 Chase's Trial, 339.) of a power which has been given may be as criminal tOn Chase's trial Mr. Rodney said: "I think Ican as the usurpation of a power which has not been'put"' * striking cases of mis- granted. Suppose amanto beindictedforanassault conduct in ajudge for which it must be admiitted that and battery. liHe is tried and found guilty; and the an impeachment will lie, though no indictment [at judge, without any circumstances of peculiar aggracommon law] could be maintained." -Ic puts the vation having been shown, fines him $1,000, and comcases: if a judge at the time appointed for court mits him to prison for a year. Now, although the " should appear and open the court, and, notwith- judge may possess the power to fine and imprison for standing there was pressing business to be done, he this offense at his discretion, would not this punishshould proceed knowingly and willfully'to adjourn meit be such an abuse of judicial discretion, and it until the next stated period." * * * afford such evidence of the tyrannical and arbitrary " Suppose he proceeded in the dispatch of business. exercise of power as would justify the Iouse of Repand from prejudice against one party or favor to his resentatives in voting an impeachment?" (Peck's antagonist he ordered on the trial of a cause, though Trial, 427.) leFal ground for postponement." * "There are offenses for which an officer man.y be'If when the jury returned to the bar to give the impeached, and against which there are no known verdict he should knowinglyy receive the verdict of positive laws. It is possible that the (lay may arrive a mlajority," when a President of the United States, having some "Were a judge to entertain the suitors with a great political object in vicw, may endea.vor to influfarce or a comedy instead of hearing their causes, enc Congress by holding out threats or inducements. and turn a jester or buffoon on the bench, I presume to them. A treaty may be imade which the President, he would subject himself to an impeachment. (2 with some view, may be extremely anxious to have Chase's Trial, 390.) ratified. The hope of office may be held out to a Mri. Harper, for the defense, pralctically abandoned Senator: and I think it cannot be doubted that for the idea that anindictable offense was necessary. He this the President would be liable to impeachment, said: " There are reasons which appear to me unan- althoughthereiso positivelawfbrbiddingit. Again, swerable in favor of the opinion that no offense is sir, a member of the Senate or of the House of Repimpeachable unless itbe also the proper subject of an resent-atives may have a very dear friend in office, indictment." * * * " Ican supposecases and the President may tell him unless you vote for where a, judge ought to be impeached for acts which my measures your friend shall bedismissed. Where I am not prepared to declare indictable [at common is the positive law forbidding this? Yet, where is law.] Suppose, forinstance, tbat a judgeshould con- the man who would be shameless cnough to rise in 96 The indiscriminate veto of all bills by the that no objection was suggested on that acPresident, his retaining in office men subject to count. his removal, knowing them to be utterly inca- The next' case is that of Judge Pickering,* pable of performing the duties of their office, who was convicted upon each of four several and othe.r misdemeanors, would manifestly be articles of impeachment before the Senate, and proper subjects of an impeachment, for other- removed from office in March 1804.t This case wise a wicked, corrupt, or incompetent foreign minister might embroil the nation in a war 4. That Blount, in April, 1797, "did conspire and imperiling our existence, to avoid which im- contrive to seduce" an Indian interpreterof the Unibe the only remedy. ted States with the Indians under a treaty between peachment might be the only remedy. them and the United States "fronm his duty, and to The impeachment trials in the United States engage" him "to assist in the promotion and exemay be said to have conclusively settled these cution of his said criminal intentions and conspira*questions.* cies." questions'.' 5. That Blount, in April, 1797, "did conspire and The first case tried-that of William Blount, contrive to diminish and impair the confidence of a Senator of the United States from Tennes- said Cherokee nation in the Government of the Unisee-simply decied that none but civil oficers ted States, and to create and foment discontents and see —simply decided that none but civil officers disaffection among the said Indians toward the" * can be impeached, and thata Senatoris not such * * * United States in relation to" ascercivil officer. But the articles of impeachment taming and marking the boundary line between the -none of which charged a statutory crime, and suandsce of the Indians and of the Um.ited States in pursome certainly no common-law offense-pro- The articles charged — ceeded upon the idea that acts were impeach- 1. That the surveyor of the district of New Hampablet which were not indictable, so much so shire did, in the port of Portsmouth, seize the ship Eliza for unlading foreign goods contrary to law, and the marshal of the district, on the 16th of October, the face of his country and defend such conduct, or 1802, by order of Judge Pickering, did arrest and debe bold enough to contend that the President could tain said ship for trial, and the act of Congress of not be impeached for it?" (Per Nicholson, 2Chase's March 2, 1789, provides that such ship may, by order Trial. 339,341; see Peck's Trial, 309.) of the judge, be delivered to the claimant on giving'The abuse of a power given may be as criminal bond to the United States, and on producing a ceras the usurpation of a power not granted." (Per tificate from the collector of the district that the duBuchanan on Peck's Trial, 427.) ties on the goods and tonnage duty of the ship had He supposes the case of a judge having discretion- been paid; yet Judge Pickering, with intent to evade arypower to fine and imposing enormous and unncces- the act of Congress, ordered the ship to be restored sary punishment. to the claimant without producing the certificate of * Those before the Senate of the United States are payment of duties and tonnage duty. the cases of- 2. That at the district court of New Hampshire, in 1. William Blount, a Senator of the United States November, 1802, the collector having libeled said July 1797, to January 1798. (Wharton's State Trials, ship because of said unlawful unlading of goods and 200.) prayed her forfeiture to the United States, yet Judge 2. John Pickering, district judge, New IIampshire, Pickering, with intent to defeat the just claims of the 1803-04. (Annals of Congress; 2 Hildreth's History, United States, refused to hear the testimony of wit518.) nesses produced to sustain the claim of the United 3. Samuel Chase, associate justice of the Supreme States, and without hearing them did order and deCourt United States, 1804-05. (Trial of Chase, by cree said ship to be restored to the claimant, contrary Smith & Lloyd, 2 vols.) to law. 4. James Peck, district judge, Missouri, 1826, 1831. 3. That the act of 24th September, 1789, authorizes (Peck's trial, by Stansbury, 1 vol.) an appeal to the circuit court in such case, and the 5. West W. Humphreys, district judge of Tennes- United States district attorney did claim an appeal see, 1862. (Congressional Globe, vols. 47, 48, 49, 2d from said decree, yet said udge, disregarding the session 37th Congress. See Report No. 44, 2d session law, intending to injure the revenues, refused to allow 37th Congress, vol. 3, Reports of Committees.) an appeal. t There were five articles- 4. That Judge Pickering being a man of loose mor1. That in 1797 Spain, owning the Floridas and als and intemperate habits, on 11th and 12th NovemLoaIsianne, was at war with England, and Senator ber, 1802, did appear on the bench of his court for the Blount " did conspire and contrive to create, promote purpose of administering justice in a state of intoxiandsetonfoot" * * "in the nitec cation produced by inebriating liquors, and did then States, and to conduct and carry on from thence nand there frequently and in a most profane and inmilitary hostile expedition against" * e e decent manner invoke the name of the Supreme' "the Floridas and Louisiana" *.* Being. (Annals of Congress of 1803-'4, page 319.) " for the purpose of wresting the same from" Spain, t 1. This case was thus commented on during Peck's s and of conqueringthe samne for Great Britain, in vio- trial: lation of the obligations of neutrality of the.United "I admit that if the charge against a judge be States. merely an illegal decision or a question of property 2.'That by the treaty of October 27,1795, the United in a civil cause his error ought to be gross and palStates and Spain agreed to restrain Indian hostilities pable indeed to justify the inference of a criminal inin the country adjacent to the Floridas, yet Blount, in tention and to convicthim upon an impeachment. 1797, "did conspire and contrive to excite the Creek And yet one case of this character occurred in our and Cherokee Indians" in the United States " to history. Judge Pickering was tried and condemned commence hostilities against the subjects and posses- upon all the four articles exhibited against him, sions in the Floridas and Louisiana, for the purpose althoughthefirstthreecontainednootherchargethan of reducing the same to the dominion of" * that of making decisions contrary to law in a cause * "Great Britain," in violation of the treaty, involving a mere question of property, and then rethe obligations of neutrality and his duties as Sen- fusing to grant the party injured an appeal from his ator. decision, to which he was entitled." (Per Buchanan, 3. That Blount, in April, 1797, to accomplish his in Peck's Trial, 428.) designs aforesaid, did" conspireand contriveto alien- Mr. Nicholson aruendo, (2Chase's Trial, 341,) in reate the confidence of said Indian tribes" from the fqrring to Pickering's case, says he " was impeached United States Indian agent, " and to diminish, im- for drunkenness and profane swearing on the bench, pair, and destroy" his influence " with the said Indian although there is no law of the United States fortribes, and their friendlyintercourse and understand- bidding them. Indeed, I do not know that there is ing with him." any law punishing either in New Hampshire, where 97 proves that a violation of law of a particular associate justice of the Supreme Court of the character, and drunkenness and profanity on the United States. In this case it was insisted for bench, are each impeachable high crimes and the accused that " no judge can be impeached misdemeanors. In this case the defense ofinsan- and removed from office for any act or offense ity was made and supported by evidence. The for which he could not be indicted," either by case does not show the opinion of Senators on statute or common law.* But this was denied this evidence. But if the insanity was regarded with convincing argnment, — and was practias proved, this case shows that a criminal in- cally abandoned bythe defense.. tent is not necessary to constitute an impeach- In 1830, James H. Peck, judge of the United able high crime and misdemeanor, but that the States district court for Missouri, was impeached power of impeachment may be interposed to by the House of Representatives for imprisonprotect the public against the misconduct of ing and suspending from practice an attorney an insane officer. of his court. 11 The argument for the proseThe next case is that of Samuel Chase,* an cution alluded to the proposition stated in Chase's trial, "that a judge cannot be imthe offense was committed. It was said by one of the peached for any offense which is not indictcounsel that these were indictableoffenses. I, how- able;"{ but the counsel for the accused repuever, do not know where: certainly not in England. Drunkenness is punishable thereby the ecclesiastical authority; but the temporal magistrate never had entreated by several of the jury to do so, and after the any power over it until it was given by a statute of jury had regularly declared through their foreman James I, and even then the power was not to be that they had found no bills of indictment, nor had exercised by the courts, but only by a justice of the any presentment to make, and instructed the jury peace, as is now the case in Maryland, where a small that itwas their duty to look after a certain seditious fine may be imposed." printer living in Wilmington. And the judge enMr. Harper had said: "Habitual drunkenness in joined on the district attorney the necessity of proa judge, and profane swearing in any person, are in- curing a file of a newspaper printed at Wilmington, dictable offenses, [at common law.] Andif they were to find some passage which might furnish the groundnot, still they are violations of the law. I do not work of a prosecution-all with intent to procure the mean to say that there is a statute against drunken- prosecution of said printer. ness and profane swearing. But they are offenses 8. That the judge at the circuit court at Baltimore,. against good morals, and as such are forbidden by in May, 1803, perverted his official right and duty to, the common law. They are offenses in the sight of address the grand jury, deliveringto them an inflam — God and man." (2 Chase's Trial, 255, 400.) matory political harangue, with intent to excite the There were eight article's of impeachment: people of Maryland against their State government, * here were eght articles of impeachment: and against the United States. 1. That on the trial of Fries for treason in the cir- [His address was in part against universal suffrage.] cuit court of the United States for Pennsylvania, in April, 1800, he * 1. Chase's Trial, 9-18, per Clark. Per Lee, 107, cit(1.) Prepared and furnished counsel an opinion in ing 2 Bacon,97. PerMartin, 137. Per larper, 254-9,. writing on the questions of law in the case before Judge Chase in his answer declared that he was trial or argument. only liable for a misdemeanor, "consisting in some (2.) Restricted Fries's counsel from recurring to act done or omitted in violation of law forbidding or: certain English authorities and statutes of the Uni- commanding it," and that he was not impeachable ted States illustrative of positions for defense. " except for some offense for which he may be in(3.) Denied counsel for defense the right to argue dicted." (1 Chase's Trial, 47, 48; 1 Story on Const., the law of the case to the jury, endeavoring to wrest sec. 796, note; 4 Eliot's Debates, 262.) from the jury the right to determine questions of t 1 Chase's Trial, 353, per Campbell. Per Rodney. law. -378. 2 Chase's Trial, 335, 339-340, per Nicholson. 2. At the circuit court at Richmond, in May, 1800, 37Ch8.se's Trial, 335, 352; 2 Chase's Trial, 351 "It is Callender was arraigned for libel on John Adams, ase's ria,,, ase's rl, a5. t is Callender was arraigned for libel on John Adams, sufficient to show that the accused has transgressed then President, and the judge, with intent to procure sufficient to show that the accused has transgressed his conviction d overruled the objection of Basset, the line of his official duty in violation of the laws heobjection ofBasset, of his country, and that this conduct can only be one of the jury, who wished to be excused because of his ount for on the ground of mpure and orrupt he had made up his mind, and required him to sit on motives (1 chase's Tril, 353, per Cmpurell.) Vio lation of official duty, whether it be a proceeding 3. That with same intent the judge refused to per- against a positive law or a proceeding unwarranted mit the evidence of a witness to be given, on pre- by law." (2 Chase's Trial, 340, per Nicholson.) tense that the witness could not prov.e the truth of the whole of one of the charges contained in an in- t 3 Chase's Trial, 255, per Harper. dictment embracing more than one fact. On Peck's Trial, 427, Buchanan said: "The princi — 4. Injustice and partiality in said case: pie fairly to be deduced from all the arguments on the, (1.) Inrcompelling prisoner's counsel to reduce to trial of Judge Chase, and from the votes of the Senate writing all questions proposed to be put to that on the articles of impeachment against him," was to witness. hold that a violation of the Constitution or law was (2.) In refusing to postpone the trial on asufficient impeachable, " in opposition to the principle," * affidavit filed. * * "that in order to render an offense im(3.) Rude and contemptuous expressions to counsel. peachable it must be indictable." (4.) Repeated and vexatious interruptions of coun- II The charge was that, as judge of the district sel, inducing them to abandon their cause and client. court for Missouri, he on the 21st April, 1826, 5. That the judge awarded a capiae for the arrest imprisoned L. E. Lawless, an attorney, for twentyof said Callender, when the statute of Virginia in four hours, and suspended him for eighteen months such case only authorized a summons requiring the from practicing law, for an alleged contempt of court accused to answer. in publishing a newspaper article reviewing a pub6. The judge required Callender to submit to trial lished decision of said judge; that said judge, during the term at which he was indicted, in viola- unmindful of the duties of his station, and that " he tion of the statute of Virginia, declaring that the held the same by the Constitution during good accused shall not answer until the next succeeding behavior only, with intent wrongfully and unjustly term, the United States judiciary act of 24th Sep- to oppress, imprison, and injure said Lawless," &c. tember, 1789, recognizing the State laws as rules of His answer conceded a liability to impeachment on decision. facts which would not be indictable 7. At the circuitcourtin Delaware, in June, 1800, the judge refused to discharge the grand jury, although ] Peck's Trial, 308, per Wickliffe. C. I.-7. 98 diated any such doctrine as a ground of In fact the charge of advocating secession defense.* was a crime of which half the leading politiMr. Wirt did not hazard his reputation by cians of the south had been guilty for many any such claim.t Peck was not convicted. years. In the seven articles of impeachment The case of West W. Humphreys, judge of against him two may be said to charge treason; the United States district court for the district and it may be claimed that one good article of Tennessee, proceeded on the ground that will sustain a conviction, by way of analogy to an officer was impeachable without having the doctrine that one good count in an indictcommitted a statutory or common-law ment, notwithstanding the presence of bad offense.. ones, will sustain a sentence. But even this is not law in England.* But there is no analogy. * Mr. Merediths propositions were (Peck's Trial, The Senate, by a separate vote on each article, 327,) that the court had the power to punish con- specifically passed on the sufficiency of each tempts: that the case of Lawless was a contempt article to constitute an impeachable offense, proper for its exercise; that the punishment was artle to constitute an impeachable offense, proper; and lastly, "that if the court had not the while a jury passes generally on all the counts power, or if, having it, the case was not a case proper of an indictment. And it is to be observed for its application, still the act did not proceed from that the report the evil and malicious intention with which it is charged, and which it is absolutely necessary should recommending impeachment did not charge have accompanied it to constitute the guilt of an treason or other indictable crime, nor was impeachable offense. Judge Peck, in the answer to his impeachment, there evidence of any; and on the trial of said: the case no doubt was expressed as to the "In the digested report of the committee of the right to convict on each of the articles. The House of Commons, which follows the report ofthe cases tried in the States fully sustain the same arguments of the managers who conducted that im-r nce the adoption of peachment, (against Warren Hastings,) it will be seen, too, that in the estimation of that committee our national Constitution.: the proceedings of courts of law furnish no rule whatever for the proceedings in an impeachment, vote on each, except that part of article six, which the latter being governed by no other law or custom charges him with confiscating the property of Andrew charges him with confiscating the property of Andrew than the lex et consuetudo psarliamenti, which left the Johnson. (49 Globe, 1861-62, p1. 4, p. 2950.) House at perfect liberty to pursue the great ends of justice untrammeled by any other rules than those *Rlepina vs. O'Connell, 11 Clark & Fin., 15; 9 Jurist, which reason and public utility prescribe." (Peck's 30; Wharton's Crim. Law, sec. 3047. Trial, 10; see 2 Hale P. C., chapter 20, page 150; t Report No. 44, 2d session 37th Congress, vol. 3 of 6 Towell's State Trials, 313,316,346, note; note to Lord House Reports. Capel's case, 4 Howell's State Trials, 12,13; Case of Earl of Danby, A. D. 1678; 11 Howell's State Trials,: On the 12th July, 1788, three of the judges of the 650; 4 Hatsel's Puc., 71.) supreme court of Pennsylvania attached and fined Oswald ten pounds and imprisoned him one month t He cites the opinion of Kent in a case in 5 Johns, for publishing a newspaper article having a tendency Rep., 291, which was a civil action against Chancel- to prejudice the public with respect to the merits of lor Lansing for punishing a contempt. Kent says: a cause depending in court. (1Dallas, 319.) "There must be the sczenter or intentional violation On 5th September, 1788, Oswald memorialized the of the statute, and this can never be imputed to the General Assembly to determine" whether the judges judicial proceedings of a court. It would be an im- did not infringe the Constitution in direct terms in peachable offense, which can never be averred or the sentence they had pronounced, and whether, of shown but under the process of impeachment." He course, they had not made themselves proper objects conceded that an intentional violation of the last icas of impeachment." impeachable, and cited Erskine's Speeches, vol. 1,374, The House, in Committee of the Whole, heard the (New York ed., 1813,) to show that impeachment evidence. Mr. Lewis, a member, maintained that should be used as an example "to corruption and the only grounds of impeachment were bribery, corwillful abuse of authority by extra legal pains." ruption, gross impartiality, or willful or arbitrary And, referring to Hammond vs. Howtell,1 Mod., 184, oppression, none of which being approved, the me2 Id., 218, and the remark that complaint should be morial ought to be dismissed. made to the king to secure the removal of a judge Mr. Finley, then a member, said: "Though he who had unlawfully imprisoned a juror for contempt, deemed it his duty to pronounce that the decision said that course was proper "if the judge had acted of the supreme court was a deviation from the spirit corruptly," * * * * "thatis, with a wicked and letter of the frame of government, yet he did not intention to oppress under color of law." (Peck's mean to assert that any ground had been shown for Trial, 493, 495.) the impeachment of the judges; but, on the contrary, he agreed that bribery, corruption, or willful and at The charges were: arbitrary infraction of the law were the only true 1. For advocating secession in a public speech at causes for instituting a prosecution of that nature." Nashville, December 29, 1860. (See 1 Dallas, 335; Addison's Trial, 129.) 2. For openly supporting and advocating the Ten- The House resolved, by 34 to 23, that the charges nessee ordinance of secession. of arbitrary and oppressive proceedings in the judges 3. For aid in organizing armed rebellion. of the supreme court are unsupported by the testi4. For conspiring with Jefferson Davis and others mony introduced, and, consequently, that there is to oppose by force the authority of the Government no just cause for impeaching the said justices. (See of the United States. the report of this case in 1 Dallas, 3d ed., Phila.,1830, 5. For neglecting and refusing to hold the district p. 353, [329].) court of the United States. On the trial of Chase Mr. Rodney, referring to 6. For acting as a confederate judge, and, as such, this case, said: " Three of the judges of the supreme sentencing men to be banished and imprisoned and court were accused of fining and imprisoning, withtheir property to be confiscated for their loyalty, out the intervention of a jury, a fellow-citizen for " and especially of property of one Andrew John- publishing a paper which they considered as a conson." tempt of court. The judges were defended by two 7. For the arrest and imprisonment of " one Wil- most able and eloquent counsel, who contended that liam G. Brownlow, exercising authority as judge of the constitution, the laws, and the practice of Pennthe district court of the confederate States." sylvania, by adopting the common-law doctrines on lie was convicted on all the articles severally by a the subject, justified the proceeding, and that if there 99 Judge Addison* was impeached in Pennsyl- in conformity with what seems to be the recogvania in 1802, and his defense was that he had nized doctrine in the Senate of the United committed no act indictable at common law; States. but the Senate almost unanimously convicted Among the ca.ses tried with great learning him, utterly repudiating that as a defense. and ability there is that of James Prescott,* In Massachusetts,t the rule is well settled who was convicted before the Senate. was no law to justify it their conduct flowed from an lected by him; (5,) of false returns on executions; (6,) honest error in judgment. But, sir, theyt did not at- of procuring a warrant of distress for money pretempt to maintain the position contended for on this viously paid him. occasion, that to support an impeachment the con- 2. Impeachment of William Hunt, a justice of the duct of a judge must be such as to subject him to an peace of Watertown, 1794. Convicted of entering on indictment." (See 2 Chase's Trial, 399.) his docket, on the trial day of causes, the personal * Impeachment of Alexander Addison, president appearance of plaintiffs who were absent, though judge of the courts of common pleas of Westmore- defendants demanded their appearance. The Senland and other counties, 1802-3, convicted of 1. Di- ate found Hunt guilty, but suspended judgment for recting a jury that the address of an associate judge a year. to them "had nothing to do with the question before 3. Impeachment of John Vinal, a justice of the them;" and 2. Preventing an associate judge from peace of Suffolk county, 1800. Convicted of extortion addressing the graury conceng their duties, by and bribery. denying the right, and by leaving the bench, and 4. Impeachment of Moses Copeland, a justice of thus irregularly adjourning the court. (Addison's the pece for Lin oln county,1807and 1808 Acquitted Trial, by Thomas Lloyd, 2d ed., Lancaster 1803.)ges; frst, that he bought a note indorsed in Mr. McKean, one of the managers, in opening the blank, and entertained suitin nameof Samuel Kingstrial, said: "Offenses under color of office" * bury,and rendered udgment,thoughinfactthenote * * * "have always been considered as was Coleland's: second, for defaulting a defendant, the most proper. and of course the usual, ground of and entering judgment before the hour set for trial; impeachment. They are such as the ordinary magistrates cannot or dare not punish." * * * * 5. Impeachment of James Prescott, judge of pro"It often happens that officers may"and do abuse bate for Middlesex, 1821. Convicted of exacting illetheir power to the injury of the Commonwealth, and gal fees, and of inserting by interlineation in a guardian's account, previously sworn to, an item due to at the same time in such a manner as not to render and paid to himself, and then to, an item due to their conduct congnizable before the ordinary tritheir conduct congnizable before the ordinary tri- and paid to himself, and then of settling the account bunals of justice, so as to proceed by indictment or as judge. information." (See Addison's Trial, 31.) See "Prescott's Trial, by Pickering and Gardner. In Penns livania the courts entertain jurisdiction Boston, 1821." In the appendix is an abstract of the of common-law crimes. Thc attorney general filed preceding impeachments. On the trial of Prescott, a motion for a rule against Addison, to show cause it was said by Mr. Blake, argeundo, that "within the in the supreme court why an information should not compass of forty long years three or four solitary inbe filed aainst him. The court held that it was the stances of trial by impeachment have occurred in be filed against him. The court held that it was the rightof the associate judge to address the grand jury; this Commonwealth. Of these, two, I believe, [three,] but the court, per Chief Justice Shippen, said: " The resulted in conviction; and Ifeel myself justified in affidavit does not state malice. It would seem to be stating that in neither of the instances alluded to was a mistake of right. Unless a crime is stated thecourtthere any point of constitutional law involved in the cannot take cognizance. There may be another rem- inquiry. edy, [by impeachment.] It does not lie with us to say his case w as conducted with great abiittal of Edwhat that is. The proceeding was arbitrary, unbe- And see report of the trial and acquittal of Edwhat that is. The proceeding was arbitrkry, unbecoming, unhandsome, ungentlemanly, unmannerly, ward Shippen, chief justice of Pennsylvania and and improper; but there not being an imputation of others, before the Senate of that State in 1865, by willful misbehavior and malice, it is not indictable or Trial of George W. SHamilton.th, county judge of Oneida the subject of an information." (Trial, 70.) Tral of Geore Smith, county judge of Oneida Judge Addison, in hisdefense, said: "No impeach- county, before the Senate of New York, 186g ment will lie but for a misdemeanor in office, and Trial of impeachment of Levi Hubbell, udge of every misdemeanor in office is indictable; the ofi- the second circuit, by the Senate of Wisconsin, June, cer impeached still remains liable to indictment, "An account of the impeachment and trial of the trial, judgment, and punishment according to law. late Francis Hopkinson Es., udge of the court of An impeachment lies only where an indictment lies. No officer can be convicted on an impeachment who admiralty for the Commonwealth of Pennsylvania; ought not to be convicted on an indictment; and the prnted by Francis Bailey, Philadelphia, 1794. punishment on, impeachment is cumulative-not ex- He was tried and acquitted in November and Declusive. The acts for which an officer may be im- cember, 1780. peached are precisely those for which he may be in- The same volume contains "An account of the dieted as an officer; misdemeanors in office, offenses, mpeachment, tral, and acquittal of John Niholson or unlawful acts done with an evil intention in his Esq., comptroller general of Pennsylvania." official capacity." (Trial, 104.) He was acquitted April 7,1794. "A mere unlawful act from a mistake or error in *In 1821, Prescott, a judge of probate, was imjudgment cannot be alleged as a impeachable peached before the Senate of Massachusetts. The cridgme. Not only wrongnot be but willful wrong, must be 12th article charged that Ware was guardian of Birch, crime. Not onlye of the overseers rqade out, or theoffense is not complete." (Page 118.) a non conzpo8mentis; that Grout, one of the overseers "Though a judge acts unlawfully and unconstitu- of the poor, had some controversy with the guardian tionally he cannot-be convicted on an impeachment as to some property of the ward not involved in the unless he has acted willfully so." (Page, 129; see 1 account; that the judge, as attorney, advised the Dallas, 335.) parties, and charged, and was paid five dollars by But this position was denied, and Addison was the guardian therefor; that the judge interlined this found guilty by a vote of 20 to 4. (See this case re-item in the account which had been previously sworn ferred to; Chase's Trial, 396.) to, and settled the account allowing this item. (Prescott's Trial, 189.) The law did not prohibit judges t The Massachusetts cases are- from acting as attorneys in matters not coming before 1. Impeachment of William Greenleaf, sheriff of their court. Worcester county, 1788. Convicted-(1,) Of detain- It was objected by the defense that this was not an ing for his private use public moneys, when the Com- offense indictable, and so not impeachable; that monwealth has a right thereto: (2,) of exhibiting especially was this so in Massachusetts, since the dishonest accounts of taxes collected; (3,) of detain- constitution authorized a removal upon the address ing for two years public moneys from town of Peter- of both Houses of the Legislature for any cause, and sham; (4,) of procuring from the treasurer of Com- left impeachment against " officers for misconduct or monwealth an execution for money previously col- i maladministration in their offices." 100 Mr. Blake,* for the defense, insisted that far the remedy by impeachment extends. But impeachment is "a process which can only be almost every conceivable act of official misderesorted to for the punishment of some great meanor is at common law indictable, though, offense against a known, settled law of the on grounds of public policy, the higher officers land." The prosecution maintained "that are not liable to prosecution in the ordinary any willful violation of law or any willful and courts for official misdemeanors. corrupt act of omission or commission in exe- But the question, as already shown, is put cution or under color of office" " is such an at rest by the practice in England, by the lanact of misconduct and maladministration in guage of the Constitution, by the opinions of office as will render him liable to punishment its framers, by contemporaneous exposition, by impeachment.' by the uniform usage under it, andbythe united Chief Justice Chase evidently holds that a opinion of all the elementary writers. The failure to perform official duty is impeachable, value of these it is unnecessary to discuss as without reference to its indictable character or they are understood by all lawyers.* the motives therefor. And further, that the It has already been shown that the violation Senate is so entirely the exclusive judge of of a public statute, though the statute in terms what is official delinquency that the President provides no punishment, is at common law cannot protect himself against impeachment indictable. for a failure to execute a law by the decree of But it maybe urged that if an officer, charged a court enjoining him therefrom. by the Cionstitution and his oath with the duty On the 15th April, 1867, in refusing the of executing the laws, knowingly and intenapplication of the so-called State of Missis- tionally suspends the operation of a particular sippi for leave to file a bill to enjoin the exe- statute, refuses to execute another, and viocution of the " reconstruction acts" of Con- lates a third, but does so with a vitew to progress, he said: mote the public interest, his motives are good, " Suppose the bill filed and the injunction prayed and he is not impeachable.t for be allowed. If the President refuse obedience This view, so plausible and insidious, is nevit is needless to observe that the court is without so power to enforce its process. If, on the other hand, ertheless so dangerous that its very monstrous the President complies with the order of the court, character will show that it cannot be mainand refuses to execute the act of Congress, is it not tained. An example will illustrate it Let it clear. that a collision may occur between the execu- be supposed that tive and legislative departments of the Govern- be supposed that wir the initiatory steps of ment? May not the House of Representatives im- the rebellion the President had declared that peach the President for such refusal? And in that the national Government had no constitutional case could this court interpose in behalf of the President, thus endangered by compliance with its man- power to suppress a rebellion by force of arms. date, and restrain by injunction the Senate of the Now, whether such an utterance was exUnited States from sitting as a court of impeach- torted by fear, or might have been an honest, ment? Would the strange spectacle be offered to but perverted political theory, or the result of the public wonder of an attempt by this court to arrest proceedings in that court? a treasonable purpose to aid traitors, would "These questions answer themselves." The question whether an act is impeachable *They are discussed in Sedgwick on Statutory and which is not indictable at common law, when Constitutional Construction. committed by officers who are answerable by t But if an officer acts without law, or even in a indictment, is only important to determine how mere ministerial capacity, but having no discretion under a law, and violates his duty so as to imperil the public safety, he is impeachable. But one of the managers said in substance: " We Bishop says: "When a man serves in a judicial or stand here on no statute, on no particular law of the other capacity in which he is called (by law) to exerCommonwealth; there is none for such a case. We cise ajudgmemt of his own, he is not punishable for a stand here upon the broad principles of the common mere error therein or for a mistake of the law. Here law-of common justice." * * * * "Such the act, to be cognizable criminally or even civilly, conduct is disgraceful and contrary to the usages of must be willful and corrupt." (Criminal Law, 913.) all civilized nations." * * * "We hae "have "When a statute [or the Constitution] forbids a shown the conduct of the respondent" * * * thing affecting the public, but provides no penalty, * " to have been grossly improper and mischievous the doing of it is indictable at common law." (535 in its tendency; this is quite enough; he has rendered [349] 187 [84.]) "Whenever the law, statutory or comhimself unworthy of office, and therefore ought to mon, casts on one a duty of a public nature, any negbe impeached and removed." (Prescott's Trial, 149. lect of the duty or act done in violation of it is indictSee Dutton's remarks, 193-4.) able." (Criminal Law. 537 [350,] 913.) Andso the Senate decided by a vote of 19 to 6, and The same rule must exist when no law authorizes convicted Judge Prescott. it. Butitshouldbe remembered thatthe ruleswhich " Prescott's Trial, 114. He quoted 4 Blackstone, prevail in ordinary courts have no application in 259, that impeachment "is a prosecution of the al- impeachment cases except as the reasons upon which ready known and established law;" and 2 Woodde- they rest commend them to the consideration of and son,611- and part 1 of Dolby's Report of the trial adoption by the Senate. The Senate is governed by of the Queen, p. 841, on a bill of pains and penalties tbo' lex et consustudo parliamenti." for adultery, where it was said by the Earl of Liver- J. In the message of December 4,1860, the President pool, "he knew not how they could make that a said: " The power to make war against a State is at subj ect of impeachment, which by the law of England variance with thewhole spirit and intent of the Conwas not a crime." stitution." * * * * "Our Union rests Mr. Webster for the defense said: "An impeach- upon public opinion. If it cannot live in the affecment is a prosecution for the violation of existing tions of the people, it must one day perish, Conlaws." (Prescott's Trial, 164.) gress possesses many means of preserving it by cont Prescott's Trial, 182, per Shaw. See Dutton's ciliation; but the sword was not placed in their speech, 194. hands to preserve it by force." 101 have been in its consequences to the nation all And this but reiterates the law of impeachthe same if it could have controlled the coun- ment as recognized in England and the United sels of the nation. This sentiment, believed States.* and acted on, would have witnessed the de- Judges have beeu impeached in England " for struction of the Government. And must the misinterpreting the laws," and the Earl of nation perish because a President honestly be- Bristol for advising " against a war with lieves in the fatal heresy that the Constitution Spain." Yet these were doubtless honest, but and Congress are powerless for self-preserva- were regarded by the impeaching power as tion? If so, the nation must die out of tender mistaken and pernicious opinions. regard to the political idiosyncrasy of the Pres- Even Judge lEumphreys, who was impeached ident. The same fatal error of opinion and before the Senate of the United States for conduct will be impeachable in one President makling a secession speech, may have honestly who knows the right and yet the wrong pur- believed what he said and might have supposed sues, while another, who believes in a fallacy his motives good; but this consideration was because he loves it, will escape unpunished, so unimportant that it was never once menthough the inherent wrong in principle and in tioned on the trial. effect is the same in both cases. The result is, that an impeachable high crime If the President would undertake to expel or misdemeanor is one in its nature or conse-'Congress as an illegal body, he could scarcely quences subversive of some fundamental or escape impeachment upon a plea of good mo- essential principle of goverzment or highly tives. No tvrant ever yet reigned who did not prejudicial to the public interest, and this may plead good motives for his usurpations. But consist of a violation of the Constitution, of even these, if they could be so in fact, never law, of an official oath, or of duty, by an act sanctify criminal acts. As well might larceny committed or omitted, or, without violating a be justified by a purpose to promote charitable positive law, by the abuse of discretionary objects, as violations ofthe Constitution by pro- powers from improper motives or for an imfessions of securing the public interest. In proper purpose. both cases the motive is illegal, and no circum- It should be understood, however, that while stancescan justifya criminalactpurposely com- this is a proper definition, yet it by no means mitted. Congress may *ithhold punishment, follows that the power of impeachment is limor pass acts of indemnity, just as the President ited to technical crimes or misdemeanors only. may pardon crime; but criminal purposes, It may reach officers who, from incapacity or studiously persisted in, present no case for clemency. private purposes, as in the contracts. Inconsidering This subject, so far as it relates to ordinary first two points he conceived it would become under their lordships to reflect on the situation in which courts, is well understood. Sedgwick, under Mr. Hastings was placed. Possessed of absolute the caption "' Good faith no excuse for viola- power, the question would be, had he exerted that tion of statutes," says: power for the public good,or had heon any occasion been actuated by base or malicious motives? If in " We have already had occasion to notice the rule the case of Cheyt Sing and the Begums, their lordthat ignorance of the law.cannot be setup in defense. shipsshould be of opinion that he was neither maliAll are bound to know the law, and this holds good cious nor corrupt, the charges naturally fell to the as well in regard to common as to statute law, as well ground. in regard to criminal as to civil cases. In regard "The Lord Chancellor concurred generally in what even to penal laws, it is strictly true that ignoriance had fallen from the noble and learned lord, but could is no excuse for the violation of a statute.* So in not go quite so far as to say that Mr. Hastings would regard to frequent attempts which have been made be justified in any gross abuse of the arbitrary power to exonerate individuals charged with disobedience which he possessed, even though it should be made to penal laws on the ground of goodfaith or error of clear that he was sctuated neither by corrupt nor by judgment, it has been held that no excuse of this cind malicious motives. Mr. Hastings had great power will avail against the peremptory words of a statute lodged in his hands undoubtedly. He was responsimposing a penalty. If the prohibited act has been ible to his country for a proper use of that power: done the penalty must be paid."t] and however pure his intentions might have been, if he violated every principle of morality and justice he * Smithws. Brown, 1 Wend., 231; Caswell vs. Allen, should not think that any public exigency ought to 7 Johnas, 63. be pleaded as a justification." March 5. The Lord Chancellor said: "The cont Sedgwick on Stat. and Const. Law, 100; Caleraft duct of the Governor General in relation to the transvs. Gibbs, 5 Term I., 19: lMorris vs. People, 3 Denio, actions with Cheyt Sing in the year 1780, appeared to 381-402; People vs.Brooks, 1 Id., 457. On the trial of him to stand in a different point of view, and to call Warren Hastings, it was argued that he had exerted for other considerations. To say the least of that his "powers for the public good." But the Lord Chan- conduct on the part of Mr. Hastings, it merited a cellor said, "however pure his intentions might'have certain degree of blame: but how far it might rise up been, if he violated every principle of morality and to a high crime and misdemeanor would depend on justice, he should not think that any public exigency other and future proceedings of the Governor Genought to be pleaded as a justification." eral that yet remained to be discussed." March 2, Lord Thurlow said: "The number of articlespreferred were twenty, each containing a great * In'the trial of Lord Melville it was insisted that number of allegations: of this number the Commons his use of the public money was not impeachable had given no evidence upon fourteen, and upon very unless the motive was guilty. " The question in the inconsiderable parts of three more." case," said the defense, " as in all cases, is the motive "The impeachment, however, might now be saidto of the heart, actio nonm est reus, nisi meus sit rea-a rest upon four points-breach of faith, oppression, person is not guilty if his heart is not guilty." (Asand injustice, as in the two articles of Cheyt Sing and pernis Rep., 290.) But in the questions put to and the Begum; corruption, as in the article of the pres- decided by the judges, the motive was ignored, and ents; and a wanton waste of the public money for only the legality of his conduct decided, 102 other cause, are absolutely unfit for the per- the Acting Secretary of State, and attested by formance of their duties, when no other rem- the seal of the Department, as follows: edy exists, and where the public interests imper- UNITED STATES OF AMERICA, atively demand it. DEPARTMENT OF STATE. When no other remedy can protect them, the To all to whom thesepresents shall come, greeting: interests of millions of people may not be im- I certify that the document hereto annexed is a correct copy of the original filed in this Department. periled from tender regard to official tenure In testimony whereof I, Frederick W. Seward, which can only be held for their ruin. Acting Secretary of State of the United States, have Mr. BUTLER' S speech occupied three hours hereunto subscribed my name and caused the seal of with the exception of a recess the Department of State to be affixed. in the delivery, with the exception of a recess Done at the city of Washington, this 12th day of of ten minutes, which was taken on the motion March, A. D. 1868, and of the independence of Mr. Senator WILsON, when he had spoken [L. S.] of the United States of America the ninetyabout two hours. When he concluded — econd. F. W. SEWARD. Mr. Manager BINGHAM. Mr. President, I now offer the nomination of Mr. Stanton I am instructed by my associates to say that as Secretary of War by President Lincoln. It we are ready.to proceed with the evidence to 18 as follows: IN EXECUTIVE SESSION, make good the articles of impeachment ex- SENATE OF THE UNITED STATES, hibited by the House of Representatives against January 13, 1862. the President of the United States. My asso- The following message was received from the Presciate, Mr. WILSON, will present the testis ident of the United States, by Mr. NICOLAY, his Seemony. retary: Mr. JOHNSON. We cannot hear, Mr. Chief To the Senate of the United States: I nominate Edwin M. Stanton, of Pennsylvania, Justice. I hope the honorable Manager will to be Secretary of War, in place of SIMON CAMERON, speak a little louder. nominated to be minister to Russia. Mr. Manager BINGHAM. I repeat, for the ABRAHAM LINCOLN. information of the Senate, that the Managers on the part of the House of Representatives I next offer, and will read, the action of the are ready to proceed with testimony to make Senate, in executive session, upon said nomgood the articles of impeachment exhibited aSStion: by the House of Representatives against the SE N EXECUTIVE SESSIO, SENATE OF THE UNITED STATES, President of the United States, and that my January 15, 1862. associate, Mr. WILSON, will present the testi- Resolved, That the Senate advise and consent to mony. the appointment of Edwin M. Stanton, of PennsylvaThe CHIEF JUJSTICE. The Managers will nia, to,be Secretary of War, agreeably to the nomproceed with their evidence. proceed with thei. Manager evWILSONce. I wish to state on And this is certified by the Secretary of the Mr. Manager WILSON. I wish to state on behalf of the Managers that, notwithstanding behalfof the documentsa, notwithstanding I, John W. Forney, Secretary of the Senate of many of the documents which we deem im- the United States, do hereby certify that the foregoportant to be presented in evidence have been ing are true extracts from the Journal of the Senate. set out in the exhibits accompanying the an- These extracts are made and certified under the auswers and also in som of the ansersw still thority of the act approved 8th August, 1846, entitled swers and also in some of the answers, we still *"An act making copies of papers certified by the Secare of opinion that it is proper for us to intro- retary of the Senate and the Clerk of the House of duce the documents originallyby way of guard- Representatives legal evidence." ing against any mishaps that might arise from Given under my hand at Washington, this 11th day of March, 1868. JOHN W. FORNEY, imperfect copies being set out in the answer Secretary of the Senate. and in the exhibits. I next offer a copy of the communication I offer, first on behalf of the Managers, a cer- made to the Senate December 12, 1867, by the tified copy of the oath of the President of the President. As this document is somewhat United States, which I will read: lengthy I will not read it unless desired. It I do solemnly swear that I will faithfully execute is the message of the President assigning his the office of the President of the United States, and reasons for the suspension of the Secretary of will to the best of my ability preserve, protect, and War defend the Constitution of the United States. ANDREW JOHNSON. Mr. STANBERY. Read it, if you please. To which is attached the following certifi- Mr. Manager WILSON. It is as follows: cate: Communicationfrom the President of the United States, relating to the suspension from the office of Secretary I, Salmon P. Chase, Chief Justice of the Supreme of War of Edwin M. Stanton. Court of the United States, hereby certify that on to the Senate of the United States: this 15th day of April, 1865, at the city of Washing- On the 12th of August last I suspended Mr. Stanton, in the District of Columbia, personally appeared ton from the exercise ofthe office of Secretary of War, Andrew Johnson, Vice President, upon whom, by the and on the same day designated General Grant to death of Abraham Lincoln, late President, the duties act as Secretary of War ad interim. of the office of President of the United States have The following are copies of the executive orders: devolved, and took and subscribed the oath of office EXECUTIVE MANSION, above set forth. WASHINGTON. August 12,1867. SALMON P. CHASE,. C. J. S. C. U. S. SIR: By virtue of the power and authority vested in me as President by the Constitution and laws of The document is certified under the hand of the United States, you are hereby suspended from 103 office as Secretaryof War, and will cease to exercise i tion of compliance with the request for his resignaany and all functions pertaining to the same.' I tion; it was a defiance, and something more. Mr. You will at once transfer to General Ulysses S. Stanton does not contenthimself with assuming that Grant, who has this day been authorized and em- public considerations bearing upon his continuance powered to act as Secretary of War ad interim, all in office form as fully a rule of action for himself as records, books, papers, and other public property now for the President, and that upon so delicate a quesin your custody and charge. tion as the fitness of an officer for continuance in his Hon. EDWIN M. STANTON, Secretary of War. office the officer is as competent and as impartial to _ t decide as his superior who is responsible for his conEXECUTIVE MANSION, duct; but he goes further and plainly intimates what WASHINGTON, D. C., August 12, 1867. he means by " public considerations of a high character;" and this is nothing else than his loss of conSI: on. Edwin. Stanton hvinbeen this day fdence in his superior. He says that these public suspended as Secretary of War, you are hereby au- considerations have "'alone induced me to continue thorized and empowered to act as Secretary of War at the head of this Department," and that they "conad interim, and will at once enter upon the discharge strain me not to resign the office of Secretary of War of the duties of the office. before the next meeting of Congress." The Secretary of War has been instructed to trans- s la g fer to you all the records, books, papers, and other holds the nguae is very significant. Mr. Stanton -public property now in his custody and charge. office only under a sense of high public duty. He is General ULYSSES S. GRANT, Washington, D. C. ready to leave when it is safe to leave, and as the The following communication was received from danger he apprehends from his removal then will Mr. Stanton. not exist when Congress is here he is constrained to WAR DEPARTMENT, remain during the interim. What, then, is that danWASHINGTON CITY, August 12, 1867. ger which can only be averted by the presence of SIR: Your note of this date has been received, in- Mr. Stanton or of Congress? Mr. Stanton does not forming me that by virtue of the powers and author- ay that "publicconsiderations of a high character" ity vested in you as President by the Constitution constrain him to hold on to the office indefinitely. and laws of the United States, I am suspended from does not say that i o one oth e r than himself call office as Secretary of War, and will cease to exercise any time be found to take his place and perform any and all functions pertaining to the same: and its duties. Oln the contrary he expresses a desire to also directing me at once to transfer to General Ulys- leave the office at the earliestmoment consistent with ses S. Grant, who has this day been authorized and these high public considerations. He says, in effect, empowered to act as Secretar of War adntrim, all that while Congress is away he must remain, but that records, books, papers, and other public property when Congress is here he can go. In other words, he records, books, papers, and other public property ha lost confidence in the President. lie is unwillnow in my custody and charge. has lost confidence in the President. Ile is unwillnow in my custody and charge. ing to leave the War Department in his hands or in Under a sense of public duty I am compelled to lng Under a sense of public duty I am compelled to the hands of any one the President may appoint or deny your right, under the Constitution and laws of the United States, withoutthe advice and consent of designate to perform its duties. If he resigns the the. Senate, and without legal cause, to suspend me President may appoint a Secretary of War that Mr. from offie of Secretary of War, or the exercise of Stanton does not approve. Therefore he will not any or all functions pertaining to the same, or with- resign. But when Congress is in session the Presiout such advice and consent to compel me to trans- Senate does not appoi nt a Secretary of War when Confer to' any person the records, books, papers, and grass meets Mr. Stanton is ready to resign. public property in my custody as Secretary. But, inasmuch as the General commanding the Whatever cogency these "considerations" may armies of the United States has been appointed ad have had upon Mr. Stanton, whatever right he may interim, and has notified me that le has accepted the have had to entertain such considerations, whatever appointment, I have no alternative but to submit, propriety there might be in the expression of them under protest, to superior force. to others, one thing is certain, it was official misconTo the PRESIDENT. duct, to say the least of it, to parade them before his To the PRESIDENT. superior officer. The suspension has not been revoked, and the Upon the receipt of this extraordinary note I only business of the War Department is conducted by the delayed the order of suspension long enough to make Secretary ad interim. the necessary arrangements to fill the office. If this Prior to the date of this suspension I had come to were the only cause for his suspension it would be the conclusion that the time had arrived when it was ample. Necessarily it must end our most important proper Mr. Stanton should retire from my Cabinet. official relations, for I cannot imagine a degree of The mutual confidence and general accord which effrontery which would embolden the head of a Deshould exist in such a relation had ceased. I suP- partment to take his seat at the council table in the posed that Mr. Stanton was well advised th at hiscon- Executive Mansion after such an act; norcanl I imtinuance in the Cabinet was contrary to my wishes, agine a President so forgetful of the proper respect for I had repeatedly given him so to understand by and dignity which belong to his office as to submit to every mode short of an express request the t he should such intrusion. I will not do Mr. Stanton the wrong resign. Having waited full time for the volunltary to suppose that he entertained any idea of offering action of Mr. Stanton, and, seeing no manifestation to act as one of my constitutional advisers after that on his 4art of an intention to resign, I addressed note was written. There was an interval of a week him the following note on the 5th of August: between that date and the order of suspension, dur"SIR: Public considerations of a high character ing which two Cabinetmeetingswere held. Mr. Stanconstrain me to say that your resignation as Secre- ton did not present himself at either, nor was he tary of War will be accepted." expected. To this note I received the following reply: On the 12th of August Mr. Stanton was notified of WAR DEPARTMENT, his suspension, and that General Grant had been WASHINGTON, August 5, 1867. authorized to take charge of the Department. In his answer to this notification, of the same date, Mr. SIR: Your note of this day has ay abeen received, stat- Stanton expresses himself as follows: "Under a sense ing that public considerations of a high character of public duty I am compelled to deny your right constrain you to say that my resignation as Secretary under the Constitution and laws of the United States, of War will be accepted. without the advice and consent of the Senate, to susIn reply, I have the honor to say that public con- pend me from office as Secretary of War or the exersiderations of a high character, which alone have else of any or all functions pertaining to the same, induced me to continue at thead of this Depart- or without such advice or consent to compel me to ment, constrain me not to resign the office of Secre- transfer to any person the records, books, papers, tary of War before the next meeting of Congress. and public property in my custody as Secretary. EDWIN M. STANTON, But inasmuch as the General commanding the armies Secreteas of War, of the United States has been appointed ad interim, The reply of Mr. Stanton was not merely a declina- and has notified me that he has accepted the appoint 104 ment, I have no alternative but to submit, under within the limits of greatest indulgence. Where our protest, to superior force." opinions take the shape of advice, and influence the It will not escape attention that in his note of action of others, the utmost stretch of charity will August 5 Mr. Stanton stated that he had been con- scarcely justify us in repudiating them when they strained to continue in the office, even before he was come to be applied to ourselves. requested to resign, by considerations of a high pub- But to proceed with the narrative. I was so much lic character. In this note of Ahtgust 12 a new and struck with the full mastery of the question manidifferent sense of public duty compels him to deny fested by Mr. Stanton, and was at the time so fully the President's right to suspend him from office occupied with the preparation of anotherveto upon without the consent of the Senate. This last is the thepending reconstruction act, that I requested him public duty of resisting an act contrary to' law, and to prepare the veto upon this tenure-of-office bill. he charges the President with violation of the law Thishe declined on the ground of physical disability in ordering his suspension. to undergo at the time the labor of writing, but stated Mr. Stanton refers generally to the " Constitution his readiness to furnish what aid might be required and laws of the United States," and says that a sense in the preparation of materials for the paper. of public duty "under" these compels him to deny At the time this subject was before the Cabinet it the right of the President to suspend him from office. seemed to be taken forgranted that as to those memAs to his sense of duty under the Constitution, that bers of the Cabinet who had been appointed by Mr. will be considered in the sequel. As to his sense of Lincoln their tenure of office was not fixed by the duty under "the laws of the United States," he cer- provisions of the act. I do not remember that the tainly cannot refer to the law which creates the War point was distinctly decided, but I well recollect that Department; for that expressly confers upon the it was suggested by one member of the Cabinet who President the unlimited right to remove the head of was appointed by Mr. Lincoln, and that no dissent the Department. The only other law bearing upon was expressed. the question is the tenure-of-office actpassed by Con- Whether the point was well taken or not did not gress, over the presidential veto, March 2, 1867. This seem to me of any consequence, for the unanimous is the law which, under a sense of public duty, Mr. expression of opinion against the constitutionality Stanton volunteers to defend. and policy of the act was so decided that I felt no There is no provision in this law which compels any concern, so far as the act had reference to the gentleofficer coming within its provisions to remain in of- men then present, that I would be embarrassed in fice. It forbidsremovals, but not resignations. Mr. the future. The bill had not then become a law. Stanton was perfectly free to resign at any moment, The limitation upon the power of removal was not either upon his own motion, or in compliance with a yet imposed, and there was yet time to make any request or an order. It was a matter of choice or of changes. If any one of these gentlemen had then taste. There was nothing compulsory in the nature said to me that he would avail himself of the proof legal obligation. Nor does he put his action upon visions of that bill in case it became a law, I should that imperative ground. He says he acts under a not have hesitated a moment as to his removal. No " sense of public duty," not of legal obligation, com- pledge was then expressly given or required. But pelling him to'hold on, and leaving him no choice. there are circumstances when to give an express The public duty which is upon him arises from the pledge is not necessary ahd when to require it is an respect which he owes to the Constitution and the imputation of possible bad faith. I felt that if these laws violated in his own case. Ho is.therefore, com- gentlemen camewithin the purview of the bill it was pelled by this sense of public duty to vindicate vieo- as to them a dead letter, and that none of them lated law, and to stand as its champion. would ever take refuge under its provisions. Thiswasnot the firstoccasion in which Mr. Stanton, I now pass to another subject. When, on the 15th in discharge of a public duty, wascalled upon tocon- of April, 1865, the duties of the presidential office sider theprovisions of that law. Thattenure-of-office devolved upon me, I found a full Cabinet of seven law did not pass without notice. Like other acts, it members, all of them selected by Mr. Lincoln. I was sent to the President for approval. As is my made no change; on the contrary, I shortly aftercustom, I submitted its consideration to my Cabinet ward ratified a change determined upon by Mr. Linfor their advice upon the question whether I should coin, but not perfected at his death, and admitted his approve it or not. It was a grave question of con- appointee,Mr. Harlan, inthe place of Mr.Usher, who stitutional law, in which I would, of course, relymost was in office at the time. upon the opinion of the Attorney General, and of The great duty ofthe time was to reestablish governMIr. Stanton, who had once been Attorney General. ment, law, and order in the insurrectionary States. Every member of my Cabinet advised me that the Congress was then in recess, and the sudden overproposed law wasunconstitutional. All spokewith- throw of the rebellion required speedy action. This out doubt orreservation; butMr. Stanton's condem- grave subject had engaged the attention of Mr. Linnation of the law was the most elaborate and em- coln in the last days of his life, and the plan accordphatic. lie referred totheconstitutionalprovisions, ing to which it was to be managed had been prethe debates in Congress, especially to the speech of pared and was ready for adoption. Aleading feature Mr. Buchanan when a Senator, to the decisions of of that plan was that it should be carried out by the the Supreme Court, and to the usage from the begin- executive authority, for, so far as I have been inning of the Government through every successive formed, neither Mr. Lincoln nor any member of his Administration, all concurring to establish the right Cabinet doubted his authority to act or proposed to of removal as vested by theConstitution in the Pres- call an extra session of Congress to do the work. ident. To all these he added the weight of his own The first business transacted in Cabinet after I bedeliberate judgment, and advised nme that it was my came Presidentwas this unfinished business of my duty to defendthe power of the President from usurp- predecessor. A plan or scheme of reconstruction ation, and to veto the law. was produced which had been prepared for Mr. LinI do not know when a sense of public duty is more coln by Mr. Stanton, his Secretary of War. It was imperative upon a head of Department than upon approved, and, at the earliest moment practicable, such an occasion as this. He acts, then, under the was applied in the form of aproclamation to the State gravestobligations of law; fobrwhenhe is calledupon of North Carolina, and afterward became the basis by the President for advice it is the Constitution of action in turn for the other States. which speaks tohim. All hisotherduties are left by Upon the examination of Mr. Stanton before the the Constitution to be regulated by statute; but this Impeachment Committee he was asked the following duty was deemed so momentous that it is imposed by question: "Did any one of the Cabinet express a the Constitution itself. doubt of the power of the executive branch of the Afterall thisIwasnotpreparedforthe groundtaken Government to reorganize State governments which by Mr. Stanton in his note of August 12. I was not had been in rebellion without the aid of Congress?" prepared to find him compelled, by a new and indefi- He answered, " None whatever. I had myself enternite sense of public dutyunder "the Constitution," to tained no doubt of the authority of the President to assume the vindication of a law which, under the sol- take measures for the organization of the rebel States emn obligations of public duty imposed by the Con- on the plan proposed during the vacation of Constitution itself, he advised me was a violation of that gress, and agreed in the plan specified in the procConstitution. I make great allowance for a change lamation in the case of North Carolina." of opinion, but such a change as this hardly falls There is. perhaps, no act of my administration for 105 which I have been more denounced than this. It of Governor Wells, to meet here on Monday. The was not originated by me; but I shrink from no re- Lieutenant Governor and city authorities think it sponsibility on that account, for the plan approved unlawful, and propose to break it up by arresting the itself to my own judgment, and I did not hesitate to delegates. Ihave given no orders on the subject, but carry it into execution. havewarnedthepartiesthat I could notcountenance Thus far and upon this vital policy there was per- or permit such action without instructions to that feet accord between the Cabinet and myself, and effect from the President. Please instruct me at once I saw no necessity for a change. As time passed on by telegraph." there was developed an unfortunate difference of The 28th of August was on Saturday. The next opinion and of policy between Congress and the morning, the 29th, this dispatch was received by Mr. President upon this same subject, and upon the ulti- Stanton at his residence in this city. He took no mate basis upon which the reconstruction of these action upon it, and neither sent instructions to GenStates should proceed, especially upon the question eral Baird himself nor presented it to me for such of negro suffrage. Upon this point three members instructions. On the next day (Monday) theriot ocof the Cabinet found themselves to be in sympathy curred. I never saw this dispatch from General with Congress. They remained only long enough to Baird until some ten days or two weeks after the riot, see that the difference of policy could not be recon- when upon my call for allthe dispatches, with a view ciled. They felt that they should renfain no longer, to their publication, Mr. Stanton sent it to me. These and a high sense of duty and propriety constrained facts all appear in the testimony of Mr. Stanton bethem to resign their positions. We parted with mu- fore the Judiciary Committee in the impeachment tual respect for the sincerity of each other in oppo- investigation. site opinions, and mutual regret that the difference On the 30th, the day of the riot, and after it was was on points so vital as to require a severance of suppressed, General Baird wrote to Mr. Stanton a official relations. This was in the summer of 1866. long letter, from which I make the following exThe subsequent sessions of Congress developed new tracts: complications when the suffrage bill for the District "SIR: I have the honor to inform you that a very of Columbia and the reconstruction acts of March 2 serious riot has occurred hereto-day. I had not been and Marchb 23,1867, allassed u overte theveto. Itwas 5applied to by the convention for protection, but the n Cabinet consultations upon these bills that a dif- Lieutenant Governor and the mayor had freely conference of opinion upon the most vital points was suited with me, and I was so fully convinced that it developed. Upon these questions there was perfect was so strongly the intent of the city authorities to accord between all the members of the Cabinet and preserve the peace, in order to prevent military inmyself except Mr. Stanton. He stood alone, and terference, that I did regard an outbreak as a thing the difference of opinion could not be reconciled. to be apprehended. The Lieutenant Governor had That unity of opinion which, upon great questions assured me that, even if a writ of arrest was issued of public policy or administration, is so essential to by the court, the sheriff would not attempt toserveit the Executive was gone. without my permission, and, forto-day, theydesigned I do not claim that a head of Department should to supend it I inclose to therewith copes of my corhave no other opinions than those of the President. respondence with the mayor, and of a dispatch which He has the same right, in the conscientious discharge theLietence with the mayor, and oh a dispatch which of duty, to entertain and express his own opinions as the resitent. I regret that no reply to my dispatch has the President. What I do claim is that the Presi- to you of Saturday has yet reached me. General dent is the responsible head of the Administration, Sheridan is still absent in Texas." and when the opinions of a head of Department are The dispatch of General Baird of the 28th asks for irreconcilably opposed to those of~the President in immediate structons and his letter of the 30th, grave matters of policy and administration there is after detailin theterrie rot hich had just hapbut one result which can solve the difficulty, and that rs a severance of the official relation. This, an the pened, ends with the expression of regret that the inis a severance of the official relation. This, in the structions which he asked forwere not sent. It isnot past history of the Government, has always been the the fault or the erroror the omission of the President rule, and it is a wise one; or such differences of opin- that thismilitary commanderwasleftwithoutinstrucion among its members must impair the efficiency of tions; but for' all omissions, for all errors, for all failany Administration. ures to instruct when instruction might have averted I have now referred to the general grounds upon this calamity, the President was openly and persistwhich the withdrawal of Mr. Stanton from my Ad- ently held responsible. Instantly, without waiting ministration seemed to me to be proper and neces- for proof, the delinquency of the President was hersary; but I cannot omit to state a special ground, aided in every form of utterance. Mr. Stanton knew which, if it stood alone, would vindicate my action. then that the President was not responsible for this The sanguinary riot which occurred in the city of delinquency. The exculpation Was in his power, but New Orleanson the 30th of August, 1866,Justly aroused it was not given by him to the public, and only to the public indignation and publ ininquiry, not only as to President in obedienceto a requisition for all the disthose who were engaged in it, but as to those who, patch more or less remotely, might be held to responsibil- No one regrets more than myself that General ity for its occurrence. I need notremind the Senate No onBaird's regrquets more than myself that General. It is of the effort made to fix that responsibility on the clear from his dispatch and letter, that if the SecrePresident. The charge was openly made, and again tary of War had given him proper instructions, the and again reiterated through all the land, that the riot which arose on the assembling of the convenPresidentwaswarnedintime, butrefused to interfere. tion would have been averted. By telegrams from the Lieutenant Governor and There may be those ready to say that I would have attorney general of Louisiana, dated the 27th and given no instructions even if the dispatch had 28th of August, I was advised that a body of dele- reached me in time; but all must admit that I ought gates, claiming to be a constitutional convention, to have had the opportunity. were about to assemble in New Orleans; that the The following is the testimony given by Mr. Stanmatter was before the grand jury, but that it would ton before the Impeachment Investigation Commitbe impossible to execute civil process without a riot, tee as to this dispatch: and this question was asked, "Is the military to "' Question. Referring to the dispatch of the 28th interfere to prevent process of court?"' This ques- of July, by General Baird, I ask you whether that tion was asked at a time when the civil courts were dispatch on its receipt was communicated? in the full exercise of their authority, and the an-' Answer. I received that dispatch on Sunday swer sent by telegraph on the same 28th of August forenoon. I examined it carefully and considered was this: "The military will be expected to sustain, the question presented. I did not see that I could and not to interfere with, the proceedings of the give any instructions different from the line of action courts." which General Baird proposed, and made no answer On the same 28th of August the following telegram to the dispatch. was sent to Mr. Stanton by Major General Baird, "Question. I see it stated that this was received then (owing to the absence of General Sheridan) in at 10.20 p. m. Was that the hour at which it was recommand of the military at New Orleans: ceived by you? "Hon. EDWIN M. STANTON, Secretary of War: " Answer. That is the date of its reception in the "A convention has been called, with the sanction telegraph office Saturday night. I received it on 106 Sunday forenoon at my residence..A copy of the dis- of the principal Departments, Mr. Madison spoke as patch was furnished to the President several days follows: afterward, along with all the other dispatches and "It is evidently the intention of the Constitution communications on that subject, but It was not fur- that the First Magistrate should be responsible for the nished by me before that time. I suppose it may executive department. So far, therefore, as we, do hae been ten or fifteen days afterward, not make the officers who are to aid himsin the duties Qdestzon. The hPresident himself being in corre- of that department responsible to him, he is not respondence with those parties upon the same subject, sponsible to the country. Again, is there no danger would it not have been proper to have advised him that an officer, when he is appointed by the concurof the reception of that dispatch? rence of the Senate, and has friends in that body, "Answer. I know nothing about his correspond- may choose rather to risk his establishment on the ence, and know nothing about any correspondence favor of that branch than rest it upon the discharge except this one dispatch. We had intelligence ofthe of his duties to the satisfaction of the executive riot on Thursday morning. The riot had takenplace branch, which is constitutionally authorized to inon Monday." spect and control his conduct? And if it should It is a difficult matter to define all the relations happen that the officers connect themselves with the which existbetween the heads of Departmentand the Senate, they iTay mutually support each other, and President. The legal relations are well enough de- for want of efficacy reduce the power of the President fined. The Constitution places these officers in the to a mere vapor, in which case his responsibility relation of his advisers when he calls upon them for would be annihilated, and the expectatio of it is advice. The acts of Congress go further: take, for st. The high executive officers, joined in cabal iexample, the act of 1789, creating the War Depart- with the Senate, would lay the foundation of discord ment. It provides that "there shall be a principal and end in an assumption of the executive power officer therein, to be called the Secretary for the only to be removed by a evoto of the overDepartment of War, who shall perform and execute ment. such duties as shall from time to time be enjoined on Mr. Sedgwick inthe same dehate, referring to the or intrusted to him by the President of the United proposition that a head of Department should only States;" "and furthermore, the said principal officer prpsition that a head of Departm ent sh ould only shall conduct the business of the said Department in beeed or suspended by the concurrence of the such manner as the President of' the United States Sente, uses this language: shall, from time to time, order and instruct." Pro- "But if proof be necessary, what is, then, the donvision is also made for the appointment of an inferior sequence? Why, in nine cases out of ten, where the officer by the head of the Department, to be called case is very clear to the mind of the President that the chiefelerk, "who, whenever said principal officer the man ought to be removed, the effect cannot be shall be removed from office by the President of the produced, because it is absolutely impossible to proUnited States," shall have the charge and custody of duce the necessary evidence. Are the Senate to the books, records, and papers of the Department. proceed without evidence? Some gentlemen conThe legal relation is analogous to that of principal tend not. Then the object will be lost. Shall a man, and agent. It is the President upon whom the Con- under these circumstances, be saddled upon the Presstitution devolves, as head of the executive depart- ident, who has been appointed for no other purpose ment, the duty to see that the laws are faithfully exe- but to aid the President in performing certain duties? cuted; but, as he cannot execute them in person, he Shall he be continued, I ask again, against the will is allowed to select his agents, and is made respan- of the President? If he is, where is the responsisible for their acts within just limits. So complete is bility? Are you to look.for it in the President, who this presumed delegatio n of authority in the relation has no control over the officer, no power to remove of a head of Depanrtment t6 the President that the him if he acts unfeelingly or unfaithfully? Without Supreme Court of the United States have decided you make him responsible, you weaken and destroy that an order made by a head of Department is pre- the strength and beauty of your system. What is to sumed to be made by the President himself. be done in cases which can only be known from a The principal upon whom such a responsibility is long acquaintance with the conduct of an officer?" placed for the acts of a subordinate ought to be left I had indulged the hope that, upon the assembling as free as possible in the matter of selection and of of'ongress, Mr. Stanton would have ended this dismissal. To hold him to responsibility for an officer unpleasant complication, according to the intimation beyond his control, to leave the questinn of the fit- given in his note of August 12. The duty which I ness of such an agent to be decidedfor him and not have felt myself called upon to perform was by no by him, to allow such a subordinate, when the Presi- means agreeable, but I feel that I am not responsible dent, moved by "public considerations of a high for the controversy or for the consequences. character," requests his resignation, to assume for Unpleasant as this necessary change in my Cabinet himself an equal right to act upon his own views of has been to me upon personal considerations, I have "public considerations," and to make his own con- the consolation to be assured that, so far as thedpublic clusions paramount to those of the President-to interests are involved, there is no cause for regret. allow all this, is to reverse the order of administra- Salutary reforms have been introduced by the Section, and to place the subordinate above the supe- retary ad interim, and great reductions of expenses rior. have been effected unqer his administration of the There are, however, other relations between the War Department, to the saving of millions to the President and a head of Department, beyond these Treasury. ANDREW JOHNSON. definedlegal relations, which necespsarily attend them, WSHINGTON, December 12, 1867. though not expressed. Chiefamongthese is mutual confidence. This relationis so delicate that it is some- Before the reading was completedtimes hard to say when or how it ceases. A single Mr. S flagrant act may end it at once, and then there is no difficulty. But confidence may be just as effectually now, I desire to submit a motion to adjourn, destroyed by a series of causes too subtle for demon- that the Senate maytransact some business of stration. As it is a plant of slow growth, so, too, it aleislative char may be slow in decay. Such has been the process legislative character. here. I will not pretend to say what acts or omis- Mr. SUMNER. I will suggest to my friend sions have broken up this relation. They are hardly that the reading of this document was called susceptible of statement, and still less of formal for, and it has not yet been nished. proof. Nevertheless,noone canreadthecorrespond- for and it has not yet been finished. ence of the 5th of August without being convinced Mr. JOHNSON. We can consider it as read that this relation was effectually gone on both sides, through. and that while the President was unwilling to allow Mr. Stanton to remain in his Administration, Mr. Mr. SHERMAN. I understand that the Stanton was equally unwilling to allow the President counsel are willingto waive the further reading. to carry on his Administration without his pres- Mr. STANBERY. As far as we are conence. cerned we will dispense with its further readIn the great debate which took place in the House cerned, we will dispense with its further read of Represetatives in 1789, in the first organization ing if it is to be considered in evidence. 107 Mr. Manager WILSON. Then I will simply evidence, I now offer the resolution passed by read the certificate. the Senate in executive session in response to Mr. STANBERY. That is unnecessary. the message of the President notifying the We agree to it. Senate of the suspension of Hon. Edwin M. Mr. SHERMAN. I move that the Senate Stanton as Secretary of War, as follows: sitting as a court of impeachment adjourn IN EXECUTIVE SESSION, until to-morrow at the usual hour. SENATE OF THE UNITED STATES, Mr. SUMNER. I would suggest ten o'clock. January 13, 1868. Mr. SHERMAN. The hour is fixed by the Re8olved, That having considered the evidence and reasons given by the President in his report of the rule. 12th of December, 1867, for the suspension from the The CHIEF JUSTICE. The hour of meet- office of Secretary of War of Edwin M. Stanton, the ing is fixed by the rule, and the motion of the Senate do not concur in such suspension. Senator from Massachusetts is not in order. And following order: The Senator from Ohio moves to adjourn until IN EXECUTIVE SESSION, SENATE OF THE UNITED STATES, to-morrow at half past twelve o'clock. January 13, 1868. Several SENATORS. NO; twelve o'clock; Ordered, That the Secretary forthwith communithe rule fixes twelve. cate an official and authenticated copy of the resoluThe CHIEF JUSTICE. The Senator from tion of the Senate non-concurring in the suspension of Edwin M. Stanton as Secretary of War, this day Ohio moves an adjournment until to-morrow at adopted, to the President of the United States, to the twelve o'clock. said Edwin M. Stanton, and also to the said U. S. The question being put, the motion was Grant, the Secretary of War ad interim. agreed to.; and the Chief Justice declared the And certified as follows: Senate sitting as a court of impeachment ad- I, John W. Forney, Secretary of the Senate of the journed until to-morrow at twelve o'clock. United States, do hereby certify that the foregoing journed until to-morrow at twelve o'clock. are true extracts from the Journal of the Senate. These extracts are made and certified under the authority of the act approved 8th August, 1846, enTUESDAY, March 31, 1868. titled "An act making copies of papers certified by the Secretary of the Senate and the Clerk of the At five minutes past twelve o'clock p. m. the House of Representatives legal evidence." Chief Justice of the United States entered the Given under my hand, at Washington, this 11th day Senate Chamber and took the chair. [ L. S.of March, 1868. J. W. FORNEY, The CHIEF JUSTICE. The Sergeant-at- Secretary of the Senate. Arms will open the court by proclamation. I next produce and offer as evidence the folThe SERGEANT-AT-ARMS. Hear ye, hear ye, lowing extract from the JournaJ of the Senate: hear ye: all persons are commanded to keep IN EXECUTIVE SESSION, silence while the Senate of the United States SENATE OF THE UNITED STATES, February 21, 1868, is.sitting for the trial of the articles of impeach- The following message was received from the Presment exhibited by the House of Representa- dent of the United States, by Mr. MOORE, his Secretives against Andrew Johnson, President of the tary: United States. ~WASHINGTON, D. C., February21,1868. The CHIEF JUSTICE. The Secretary will To the Senate of the United States: the House of Representatives. On the 12th day of August, 1867, by virtue of the notify the House of Representatives. power and authority vested in the President by the The President's counsel, Messrs. Stanbery, Constitution and laws of the United States, I susCurtis, Evarts, Nelson, and Groesbeck, en- pended Edwin M. Stanton from the o.~ce of Secretered the Chamber and took the seats assigned tary of War. In further exercise of the power and tered the Chamber and took the seats assigned authority so vested in the President I have this day to them. removed Mr. Stanton from the office and designated At twelve o'clock and seven minutes p. m. the Adjutant General of the Army as Secretary of War ad interim. the Sergeant-at-Arms announced the presence Copies of the communications upon this subject, of the Managers of the Impeachment on the addressed to Mr. Stanton and the Adjutant General, part of the House of Representatives, and they are herewith transmitted for the information of the were conducted to the seats assigned to them. Senate. ANDREW JOHNSON. Immediately afterward the presence of the The copies attached are as follows: members of the House of Representatives was EXECUTIVE MANSION, announced, and the members of the Commit- WASHINGTON, D. C., February 21, 1868. teannounced, and the members of the Comm it- SIR: By virtue of the power and authority vested tee of the Whole House, headed by Mr. E. B. in me as President by the Constitution and laws of WASHBURNE, of Illinois, the chairman of that the United States; you are hereby removed from committee, and accompanied by the Speaker office as Secretary for the Department of War, and and Clerk of the ouse of Representatives, your functions as such will terminate upon the reand Clerk of the House of Representatives, ceipt of this communication. entered the Senate Chamber and took the seats You will transfer to Brevet Major General Lorenzo prepared for them. Thomas, Adjutant General of the Army, who has this pre CHIEF JUSTICE. Gentlemen Man- dday been authorized and empowered to act as SecreThe CHIEF JUSTICE. Gentlemen Man- dtary of War ad interimn, all records, books, papers, agers on the part of the House of Representa- and other property now in your custody and charge. tives, you will proceed with your evidence in Respectfplly yours, ANDREW JOHNSON. support of the articles of impeachment. Sen- To Hon. EDWIN M. STANTON, Washington, D. C. ators will please to give their attention. EXECUTIVE MANSION, Mr. Manager WILSON. Mr. Presidentand WASHINGTON, D. C., February21, 1868. Senators, in continuation of the documentary Sia: Hon. Edwin M. Stanton having been this day 108 removed from office as Secretary for the Depart- said office with all the powers, privileges, and emolument of War, you are hereby authorized and em- ments to the same of right appertaining, unto him, powered to act as Secretary of War ad interim, and the said Edwin M. Stanton, during the pleasure of will immediately enter upon the discharge of the the President of the United States for the time being. duties pertaining to that office. In testimony whereof I have caused these letters Mr. Stanton has been instructed to transfer to you to be made patent and the seal of the United States all the records, books, papers, and other public prop- to be hereunto affixed. erty now in his custody and charge. Given under my hand, at the city of Washington, Respectfully yours, ANDREWJOHNSON. the 15th day of January, in the year of our To Brevet Major General LORENZO THOMAS, Adju- [L. S.] Lord 1862, and of the independence of the tant General United States Army, Washington, D. C. United States of America the eighty-sixth. ABRAHAM LINCOLN. To these papers is appended this certificate: By the President: I, John W. Forney, Secretary of the Senate of the WILLIAM H. SEWARD, United States, do hereby certify that the foregoing Secretary oftate. is an extract from the Journal of the Senate. This extract is made and certified under the au- UNITED STATES OF AMERICA, thority of the act approved 8th August 1846, entitled DEPARTMENT OF STATE. "An act making copies of papers certified by the To all to whom these presents shall come, greeting Secretary of the Senate and the Clerk of the House I certify that the document hereunto annexed is a of Representatives legal evidence." true copy from the records of this Department. Given under myhand, at Washington, this llth day In testimony whereof I, William H. Seward, Secrer L. S. ]o f lM~arch, 1868. tary of State of the United States, have hereunto [L.. of March, 1868.]'J.. W. FORNEY, subscribed my name and eaused the seal of the DeSecretary of the Senate. partment of State to be affixed. I now offer an extract from the Journal of the Done at the city of Washington this 21st day of March, A. D. 1868, and of the independence of Senate showing the action taken by the Senate [L. S.] the United States of America the ninetyon the message notifying that body of the re- second. WILLIAM H. SEWARD. moval of the Secretary of War and the appoint- Mr. Manager BUTLER. Mr. President, will ment of a Secretary of War ad interim: the Senate allow me to call in a witness, IN EXECUTIVE SESSION, William J. McDonald, of Washington. Mr. SENATE OF THE UNITED STATES, Sergeant-at-Arms, is he in attendance? I do February 21, 1868. not know but that the Managers will have to Whereas the Senate have received and considered ask that the witnesses be allowed to come on the communication of the President stating that he had removed Edwin M. Stanton, Secretary of War, the floor of the Senate, because there will otherand had designated the Adjutant General of the wise be some delay in calling them. I believe Army to act as Secretary of War ad interim: There- the Sergeant-at-Arms has given them a room. fore, Resolved by the Senate of the United States, That The CHIEF JUSTICE. Unless the Senate under the Constitution and laws of the United States otherwise orders, the witnesses will remain in the President has no power to remove the Secretary the of War and to designate any other officer to perform er room until they are called. the duties of that office ad interim. Mr. Manager BUTLER. I only spoke of the delay. IN EXECUTIVE SESSION, he IEF JUSTICE. MrcDonald is SENATE OF THE UNITED STATES. SENATE OF THE UNITED STATES. The CHIEF JUSTICE. Mr. McDonald is February 21, 1868. present. The witnesses will stand on the left Resolved, That the Secretary of the Senate is hereby of the Chair when examined. directed to communicate copies of the foregoing res- Mr. Manager BUTLER. I move that this olution to the President of the United States, to the Secretary of War, and to the Adjutant General of witness be sworn. the Army of the United States. The Secretary of the Senate administered To these papers this certificate is attached: the following oath to Mr. McDonald, and to I, John W. Forney, Secretary of the Senate of the each of the other witnesses as sworn: United States, do hereby certify that the foregoing "You do swear that the evidence you shall give in are true extracts from the Journal of the Senate. the case now depending between the United States These extracts are made and certifiedunderthe au- and Andrew Johmson shall be the truth, the whole thority of the act approved 8thAugust, 1846, entitled truth, and nothing but the truth: so help you God." "An act making copies of papers certifiedbythe Secretary of the Senate and the Clerk of the House of WILLIAM J. MCDONALD, being sworn, was Representatives legal evidence." examined as follows: Given under my hand at Washington, this 11th day By Mr. Manager BUTLER: [L.S.] of March, 1868. J. W. FORNEY, Question. State your name and office? Secretary of the Senate, Answer. William J. McDonald, Chief Clerk I now offer an authenticated copy of the of the Senate. commission of Edwin M. Stanton as Secretary Question. Will you look at that paper [exof War, and will here state that this is the only hibiting a paper] and read the certificate that commission under which we claim that he has appears to be signed by your name? acted as Secretary of War: Answer. It is as follows: ABRAHAM LINCOLN, OFFICE SECRETARY SENATE UNITED STATES, President of the United States of America: WASHINGTON, February 27,1868. To alwho shall see hesepreentreetAn attested copy of the foregoing resolution was To allwho shall see thesepresents, greeting: left by me at the office of the President of the United Know ye, that reposing specialtrustandconfidence States in the Executive Mansion, he not being presin the patriotism, integrity, and abilities of Edwin ent, about nine o'clock p. m. on the 13th of JanM. Stanton, I have nominated, and by and with uary, 1868. W. J. McDONALD, the advice and consent of the Senate do appoint, him Chief Cler Senate United Sta to be Secretary of War of the United States, and do Chief aterk Senate United States. authorize and empowerhim to execute and fulfill the Question. Is that certificate a correct one of duties of that office according to law, and to hold the the acts done? 109 Answer. That is a correct certificate of the Answer. I do, sir. acts done. Question. How long have you known him? Question. And the paper was left in accord- Answer. I have known him about six or ance as that certificate states? seven years.'Answer. Yes, sir. Question. Were you employed by the SecMr. Manager BUTLER. I have nothing retary of the Senate to serve a notice of the further to ask the witness. proceedings of the Senate upon him? The CHIEF JUSTICE. Are there any ques- Answer. I was. tions to be put on the part of the accused? Question. Looking at that memorandum, Mr. STANBERY and Mr. CURTIS. No, [handing a paper to the witness,] what day did sir. you attempt to make the service? Mr. Manager BUTLER. I ask Mr. Mc- Answer. The 21st of Februarvy. Donald to take the stand again. Question. What year? Question. Will you read that certificate? Answer. The present year. [handing a paper to the witness.] Question. Where did you find him? Answer. It is- Answer. I found him at Marini's Hall, at OFFICE SECRETARY SENATE UNITED STATES, a masquerade ball. WASHINGTON, lFebruary 27, 1868. Question. Was he masked? An attested copy of the foregoing resolution was Answer. He was. delivered by me into the hands of the President of An swe. Hd was. the United States at his office in the Executive Man- Question. How did you know it was him? sion about ten o'clock p. m. on the 21st of February, Answer. I saw his shoulder-straps, and I 1868. W. J. McDONALD, asked him to unmask. Chief Clerk Senate United States. Question. Did he so do? Question. Do you make the same statement Answer. He did, sir. as regards this service? as regards this service? Question. After ascertaining it was him, Answer. Yes, sir; the same statement inwhat did you do regard to that. what did you do? Answer. I handed him the resolution of the Mr. Manager BUTLER. We have nothing Senate. further to ask. Mr. STANBERY. Nothing on our part. Question. About what time of the day or Mr. Manager WILSON. The resolution to night which the first certificate of Mr. McDonald Answer. About eleven o'clock at night. refers is: Question. Did you make the service then? Answer. I did. IN EXECUTIVE SESSION, SENATE OF THE UNITED STATES, Question. Have you certified the fact on that January 13, 1868. paper? Nesolved, That, having considered the evidence and Answer Yes reasons given by the President in his report of the. *e, sir. 12th of December, 1868 for the suspension from the Question. Is that certificate true? office of Secretary of War of Edwin M. Stanton, the Answer. It is. Senate do not concur in such suspension. Question. Will ou read it Attested: J. W. FORNEY, Secretary. Will you read it? Answer. Attached to this copy of the resoThe resolution as to the service of which lution is my certificate, in these words: An attested copy of the foregoing resolution was IN EXECUTIVE SESSION, placed in my hands by the Secretary of the Senate SENATE OF THE UNITED STATES, to be delivered to Brevet Major General Lorenzo February 21, 1868. Thomas, Adjutant General of the United States Whereas the Senate have received and consid- Army, and the same was by me delivered into the ered the communication of the Presidentstatingthat hands of General Thomas about the hour of eleven he has removed Edwin M. Stanton, Secretary of War, o'clock p. m. on the 21st day of February. and designated the Adjutant General of the Army J. W. JONES. to act as Secretary of War ad interim:. Therefore, Resolved by the Senate of the UnitedStatee, That, Question. Is that certificate true? under the Constitution and laws of the United States, Answer. It is, sir. the President has no power to remove the Secretary No cross-examination. of War ad designate any other officer to perform the duties of that office ad interim. Mr. Manager WLSON. Thedocutnentthus Attest: J. W. FORNEY, Secretary. served is as follows: Mr. Manager BUTLER. We now call J.W. IN EXECUTIVE SESSION, Jones as a witness. SENATE OF THE UNITED STATES, February 21, 1868. J. W. JONES sworn and examined. Whereas the Senate have received and considered By Mr. Manager BUTLER: the communication of the President stating that he Question. Please state your name and posi- had removed Edwin M. Stanton, Secretary of War,.tion? and designated the Adjutant General of the Army to tion1? act as Secretary of War ad interim: Therefore, Answer. J. W. Jones, keeper of the sta- Resolved by the Senate of the U~nited States, That, tionery. under the Constitution and laws of the United States Question. An officer of the Senate? the President has no power to remove the Secretary officer of the Senate? of War and designate any other officer to perform the Answer. Yes, sir. duties of that office ad interim. Question. Do you know Major General Attest: J. W. FORNEY, Secretary. Lorenzo Thomas, of the United States Army, Mr. Manager BUTLER. I desire to call Adjutant General? C. E. Creecy, of the Treasury Department. 110 CHARLES E. CREECY sworn and examined. [The witness produced a paper and handed By Mr. Manager BUTLER: it to Mr. Manager BUTLER.] Question. What is your full name, and what Mr. STANBERY. Will the honorable is your official position, if any? Manager allow me to ask what is the object of Answer. Charles Eaton Creecy; I am clerk this testimony? in charge of the appointments in the Treasury Mr. Manager BUTLER. The object of this Department. testimony is to show that prior to the passage Question. Will you look at the bundle of of the act of March 2, 1867, known as the papers you have brought, in obedience to our civil tenure-of-office bill, a certain form of subpoena, and give me the form of commission commission had been used in the practice of which was used in the Treasury Department the Government, and issued by the President before the passage of the act of March 2, 1867? of the United States; that after the passage of Answer. This is it; [producing a paper.] the civil tenure-of-office bill a new form was Question. You produce this as such form? made conforming to the provisions of the tenAnswer. Yes, sir: I do. ure-of-office act, showing that the President Question. Was that the ordinary form, or acted in the Treasury Department under the one used without exception? tenure-of-office act as an actual and valid law. Answer. It was the ordinary form for the Is there any objection? permanent commission. Mr. STANBERY. No, sir. Mr. JOHNSON, and Mr. PATTERSON of Mr. Manager BUTLER, (to the witness.) Tennessee. We cannot hear one word. I return the first paper you handed me. I Mr. HOWARD. The witness must speak see there are certain interlineations; did you louder. speak of the form before it was interlined, or Mr. JOHNSON. If his answer were re- subsequently, or both? peated by the counsel it would be better. Answer. This is the commission. The alterMr. Manager BUTLER. If it will not be ations in this commission show the changes considered improper, M1r. President, I will that have been made to conform to the tenurerepeat the answer. of-office bill. The CHIEF JUSTICE. The witness will -Question. There is a portion of that paper speak for himself. in print and a portion. in writing. Do I unMr. EVARTS. We prefer that the witness derstand you that the printed portionwas the should speak so as to be heard. form used before? Mr. Manager BUTLER. I have no desire Answer. Yes, sir. to undertake the labor. to undertake the labor. Question. And the written portion shows the The CHIEF JUSTICE, (to the witness.) changes? Mr. Creecy, you will raise your voice and speak Answer. Yes, sir. as loud as possible. Question. Will you read with a loud voice The WITNESS. Yes, sir. so as to be heard the printed portion of the Mr. Manager BUTLER, (to the witness.) commission, the original commission, the whole What is your answer, then? loud enough to be commission? heard. Mr. CONNESS. I thinkifthereading should be done by the Clerk, who is in the habit of Ml. TRUMaBULL. I think it woulsd help us reading, it would be very much better for the all to hear if the witness would stand further whole Senate from the counsel. If he would stand on the The CHIEF JUSTICE. The Secretary will other side of the Secretary's desk he wouldhe Secretaryread it. have to speak louder, and all could hear. The Secretary read as follows: The CHIEF JUSTICE. Thatwould be bet The Secretary read as follows: ter. Mr. Creecy, you will go to the opposite side President of the United States of America: of the Secretary's desk. To all to whom these presents shall come, greeting: The witness changed his position to the other Know ye, that reposing special trust and confidence side of the desk, and subsequent witnesses in the integrity, diligence, and discretion of, I have nominated, and by and with the advice were examined, standing at the Secretary's and consent of the Senate do appoint him desk, to the right of the presiding officer. and do authorize and empower him to execute and Mr. Manager BUTLER, (to the witness.) fulfill the duties of that office according to law, and to have and to hold the said office, with all the rights, What is the answer to the question whetherthis privileges, and emoluments thereunto legally apperis the ordinary form of commission used before taining unto him the said..-.during the March 2, 1867? pleasure of the President of the United States for the Answer. That is the ordinary form. In testimony whereof I have caused these letters Question. For the class of appointments for to be made patent and the seal of the Treasury Dewhich such commissions would be issued was partment of the United States to be hereunto affixed. Given under my hand at the city of Washington there any other form used before that time? the - day of- in the year of our Lord 18-, and Answer. I think that is the form for the of the independence of the United States of America permanent commission. the President Question. Will you now give me the form which has been used since in the Treasury Secretary of the Treasury. Department? Question. Please state what was the altera 111 tion made of that printed form to conform to By Mr. Manager BUTLER: the provisions of the tenure-of-office act? Question. Was any change made in that Answer. The words "during the pleasure commission? of the President of the United States for the Answer. The alteration shows the change. time being" Mr. Manager BUTLER. Read thealteraMr. JOHNSON. We cannot hear. The tion, Mr. Secretary. Clerk had better read those words. The SECRETARY. Strike out "during the The SECRETARY. The words written are as pleasure of the President of the United States follows:' Until a successor shall have ben for the time being," and insert "unless this appointed and duly qualified." commission be sooner revoked by the Presilr. J OHeNSON. What are the words stricen dent of the United States for the time being."' out? The SECRETARY. The words stricken out By Mr. Manager BUTLER: are " during the pleasure of the President of Question. Do you know whether before these the United States for the time being." changes were made the official opinion of the By Mr. Manager BUTLER: Solicitor of the Treasury was taken? Question. Since that act has any other form Answer. It was. of commission been used than the one as altered Question. Have you that opinion? for such permanent appointments? Answer. I have. Answer. No, sir. Mr. Manager BUTLER. I withdraw the Question. Have you now a form of official question as to the opinion on consultation. bond for officers as used prior to the civil ten- [To the witness.] Do you know whether since ure-of-office act? the alteration of these forms any commissions Answer. Yes, sir; [producing a paper.] have been issued signed by the President of the Question. Has any change been made in United States? that? Answer. Yes, sir. Answer. No, sir. Question. As altered? Question. Please give me, if you have it, a Answer. Yes, sir. copy of the commissions issued for temporary Question. It is suggested to me to ask you appointments since the tenure-of-office act? if the President had signed both forms-both Mr. STANBERY. Is the bond put in? the temporary and permanent forms as altered? Mr. Manager BUTLER. It is. Answer. Yes, sir. Mr. STANBERY. Will you have it read? Question. Now look at the paper which I Mr. Manager BUTLER. No, unless you send you [handing a paper] and say what is desire it. It is the common, ordinary form of thatpaper? bond. Answer. It is a commission issued to Mr. Mr. STANBERY. Let me see it. Cooper as Assistant Secretary of the Treasury. [The paper was handed to Mr. Stanbery, Question. Under what date? and read by him.] Answer. The 20th day of November, 1867. Mr. Manager BUTLER, (to the witness.) Question. Who was Assistant Secretary of State whether the printed part of this paper the Treasury at the time of the issuing of that was the part in use prior to the tenure-of- commission? office act? Answer. Mr. W. E. Chandler was one. Answer. It was. Question. Do you happen' to remember, as Mr. CURTIS. What is the paper? a matter of memory, whether the Senate was Mr. Manager BUTLER. The paper isthe then in session? form of commission for temporary appoint- Answer. I think it was not. ments. Will the Secretary read it? Question. State whether Mr. Cooper qualiThe Secretary read as follows: America, fled and went into office under that first comIThe President of the United States of America, T'o all to whom these presents shalt come, greeting: Answer. He did not qualify under the first Know ye, that reposing special trust and confidence commission at all. in the integrity, diligence, and discretion of Question. What is the paper I now send —, I do appoint him and do authorize and empower him to execute and fulfill the duties you? [Handing a paper.] 6f that office accordingtolaw, andto have and to hold Answer. It is authority from the President the said office with all the rights, privileges, and to Edmund Cooper to act as Assistant Secreemoluments thercunto legally appertaining, unto tary ofthe Treasury. him the said -, during the pleasure of the ta o the reasury. President of the United States for the time being, Question. Read it. until the end of the next session of the Senate of the Mr. EVARTS. Is the other considered as United States, and no longer. In testimony whereof I have caused these letters read, the one under which he did not qualify? to be made patent, and the seal of the Treasury De- Mr. Manager BUTLER. Yes, sir; I meant partment of the United States to be hereunto affixed. so to consider it. Given under my hand, at the city of Washington, so to consider it. this - day of —, in the year of our Lord 18-, and Mr. EVARTS. How are we ever to know of the independence of the United States of America the contents if they are not read when prothe -.uced? By the President: duced?. Mr. Manager BUTLER. It is exactly the Secretary of the I'easury. same form as the other that has been read. 112 Mr. EVARTS. Then let it be so stated. change in the form of permanent appointWe know nothing whatever about it. ments of which you have spoken first ocMr. Manager BUTLER. I will hand that curred? first paper to the counsel. Answer. I think it was about'four days after [The paper was handed to the counsel for the the passage of the tenure-of-office act. President, examined by them, and returned.] Question. With what confidence do you Mr. Manager BUTLER. Do the counsel speak? Do you speak from any recollection? for the President desire to have the paper Answer. We obtained an opinion from the read? Solicitor of the Treasury on the subject. It Mr. STANBERY. Certainly. was given on the 6th, and from that day we Mr. Manager BUTLER. Very well. Let followed his opinion. the Secretary read it. Question. Then you would fix the date as The Secretary read as follows: the 6th of what month? ANDREW JOHNSON, Answer. The 6th of March, 1867. President of the United States of America: Hon. BURT VAN HORN sworn and examined. To all who shall see these presents, greeting: By Mr. Manager BUTLER: Know ye,that reposingspccialtrustandconfidence Question. Will you state whether you were in the integrity and ability of Edmund Cooper, I do appoint him to be Assistant Secretary of the Treas- present at the War Department when Major ury, and do authorize and empower him to execute General Lorenzo Thomas, Adjutant General of and fulfill the duties of that office according to law, the United States, was there to make demand and to have and to hold the said office, with all the powers, privileges, and emoluments thereunto of for the office, property, books, and records? right appertaining, unto him, the said Edmund Answer. I was. Cooper, until the end of the next session of the Sen- Quest. hen was it ate of the United States, and no longer, subject to Question. When was it? the conditions prescribed by law. Answer. It was on Saturday, the 22d of FebIn testimony whereof I have caused these letters ruary, 1868, I believe. to he made patent, and the seal of the United States Question. About what time in the day? to be hereunto affixed. Given under my hand at the city of Washington, Answer'. Perhaps a few minutes after eleven the 20th day of November, in the year of our o'clock. [L. S.] Lord 1867, and of the independence of the Question. Who were present? United States of America the ninety-second ANDREW JOHNSON. Answer. General Charles H. Van Wyck, of Bythe President: New York; General G. MI. Dodge, of Iowa; W~ILLIAM H. SEWARD, Secretary ofState. Hon. Freeman Clarke, of New York; Hon. Mr. Manager BUTLER, (to the witness.) J. K. Moorhead, of Pennsylvania; Hon. Now, will you pass to the Secretary the letter Columbus Delano, of Ohio; Hon. W. D. of authority of which you have spoken, and let Kelley, of Pennsylvania; Hon. Thomas W. it be read? Ferry, of Michigan, and myself. The SecreThe Secretary read as follows: tary of War, Mr. Stanton, and his son were EXECUTIVE DEPARTMENT, also present. WASHINGTON, December 2,1867. Question. Please state what took place. Whereas a vacancy has occurred in the office of Answer. The gentlemen mentioned and myAssistant Secretary of the Treasury of the United self wre in the office the Secretary of War States, in pursuance of the authority vested in me by self were in the ofice the Secretaryof War the first section of the act of Congress approved Feb- usually occupies holding conversation; Genrusry 13, 1795, entitled "An act to amend the act eral Thomas came in; I saw him coming from entitled'An act making alterations in the Treasury the President's; he came into the building and and War Departments,"' Edmund Cooper is hereby he came into the building and authorized to perform the duties of Assistant Secre- came up stairs, and came into the Secretary's tary of the Treasury until a successor be appointed room first; he said, "Good morning, Mr. or such vacancy be filled. ANDREW JOHNSON. Secretary, and good morning gentlemen;" the Secretary replied, "Good morning," and By MrQuestion. nagerHow did Mr. Chandler getBUTER: I believe we all did; then began this conversaQffuestion.c Tow did Mr. Chandler get out of tion as follows: [Referring to a printed docuoffice? ment.]'I am Secretary of War ad interim, Anuswer. Hae resigned.oaoyf g a and am ordered by the President of the United Question. Have you a copy of his resignation? States to take charge of the office;" Mr. Stanton then replied, " I order you to repair to your Question. Can you state from mpemory (if it room and exercise your functions as Adjutant is not objected to) at what time his resignation room and rce your fnc t as replied tookz effect;? CGeneral of the Army;" Mr. Thomas replied Aoswer. I cannot. I think it was a day or tto this, "I am Secretary of War ad interim, Answer. I cannot. I think it was a day or and I shall not obey your orders; hut I shall two before this appointment or this authority obey the orders of the President, who ha vwasgiven to Mr. Cooper. obey the orders of the President, who has was given to Mr. Cooper ordered me to take charge of the War Office;" Question. Will you have the kindness to pro- Stanton replied to this as follows, "As duce a copy of his resignation after you leave Secretary of War I order you to repair to your Answer. I will try to do so. place as Adjutant General;" Mr. Thomas replied, II shall not do so; Mr. Stanton then Cross-examined by Mr. CURTIS: said in reply, " Then you may stand there if Question. Can you fix the date when the you please," pointing to Mr. Thomas, "but 11t you cannot act as Secretary of War; if you do, Answer. No, not publicbusiness particularly. you do so at your peril;" Mr. Thomas replied Question. What public affairs were the object to this, " I shall act as Secretary of War;" of the conference? this was the conversation, I may say, in the Answer. Well, sir, the matter of the removal Secretary's room. of Mr. Stanton. I felt an interest in that matQuestion. What happened then? ter, and of course was talking with him upon Answer. After that they went to the room that subject. of General Schriver, which is just across the Question. Did you go with these other genhall, opposite the Secretary's room. tlemen whom you found there, or did you go Question. Who went first? there alone? Answer. I think, if I remember aright, that Answer. I think I did go in company with General Thomas went first, and was holding one or two of them. some conversation with General Schriver, Question. With whom did you go in comwhich I did not hear. He was followed by pany? Mr. Stanton, by General Moorhead, by Gen- Answer. I think I went with Mr. Clarke, of eral Ferry, and then by myself. Some little New York, and General Van Wyck. I am not conversation was had there, which I did not certain, that any others were with me. hear; but after I got into the room, which was Question. When you arrived at his roomwhat but a moment after they went in, however, Mr. was the hour? Stanton addressed. Mr. Thomas as follows, Answer. It was a little before eleven o'clock. which I concluded was the summing up of the Question. Whom did you find there when conversation had before- you arrived? These other gentlemen whom Mr. CURTIS. No matter about that. you have mentioned? The WITNESS. Mr. Stanton then said, "Then Answer. Not all of them. you claim to be here as Secretary of War and Question. Whoweretherewhenyouarrived? refuse to obeymy orders?" Mr. Thomas said, Answer. Ithink General Moorheadwas there "I do, sir; I shall require the mails of the for one; I think Mr. Ferry was there; I think War Department to be delivered to me, and Mr. Delano was there. Two or three others shall transact all the business of the War De- came in after I got there partment." That is the substance of the con- Question. Do you know what their business versation which I heard, and, in fact, the con- was in the office that morning? versation as I heard it entirely. Answer. No, sir. By Mr. Manager BUTLER: Question. Did they state any business? Question. Did you make any memorandum Answer. No, sir; theystated nobusinessto me. of it afterward? Question. All being' there, the next thing Answer. I made it at the time. I had my was that General Thomas came into the room? memorandum in my hand. When the con- Answer. After we had been there some versation began I had paper and pencil and moments. wrote it down as the conversation occurred, Question. You say that when that conversaand after the conversation ended I drew it up tion began between General Thomas and the from my pencil sketches in writing immediately Secretary you were ready to take notes? in the office in the'presence of the gentlemen Answer. I appeared to be ready. I had a who heard it. large white envelope in my pocket, and I had Question. What was done after that?. Where a pencil also in my pocket; and when the condid Thomas go? versation began it seemed to me that it might Answer. It was then after eleven o'clock, be well to note what was said. and my duties and the duties of the rest of us Question. Are you in the habit, generally, called us here to the House, and I left General in conversations of that kind, of making memThomas in the room of General Schriver. oranda of what is said? Cross-examined by Mr. STANBERY: Answer. I do not know that I am, unless I Question. Will you please state what was deem it important to do so. your business in the War Department on that Question. Did any one request you take morning? memoranda? Answer. Well, sir, I went there that morn- Answer. No, sir. ing, I suppose, as other gentlemen did; at Question. It was on your own motion? least, I went there for the purpose of visiting Answer. On my own responsibility, supthe Secretary. I had no special public busi- posing I had a perfect right to do so. ness. Question. Undoubtedly. After the converQuestion. Was there no object in the visit, sation was ended in the room with the Secreexcept merely to see him? tary, General Thomas, as I understand you, Answer. Yes, sir; I had an object. The went out first? times were rather exciting at that moment, and Answer. I think he did; he went across the I went, as much as anything else, to talk with hall. the Secretary, to confer with him about public Question. Who went with the Secretary from affairs. his room across the hall to where Geueral Question. Public affairs generally? Thomas had gone? C. I.-8. 114 Answer. I am not aware that any one went Answer. I cannot say. I presume it was dedirectly with him, but immediately after him, stroyed. The envelope was a large, long, white if not with him, General MOORHEAD and Mr. envelope that I put in my pocket with letters. FERRY. It was the only convenient thing I had at the Question. How long after General Thomas time. I wrote on both sides of it, and then had left the office was it that the Secretary of drew it off immediately on the Secretary's War followed him? table. Answer. But a momentortwo; perhapstwo Question. What did you do with that oriminutes. ginal memorandum-the envelope? Question. Did he state, when he left, what Answer. I presume it is torn up and dewas his object? stroyed; I do not know anything to the conAnswer. I do not recollect that the Secretary trary. stated anything. General Thomas was in the Question. When did you destroy it? room talking. Answer. That I cannot say; perhaps. very Question. Did he request any gentleman to soon after the conversation took place. go along with him? Question. Why did you destroy it? Answer. Not that I am aware of. Answer. I cannot say that it is destroyed; Question. Did you go upon your own motion, but I have no knowledge of it now. I cannot or by agreement? say that it is destroyed; perhaps it may be. I Answer. I went upon my own motion. had no occasion to keep it. I supposed there Question. All that were there did not go? was no occasion to keep it, because I had writAnswer. I do not think they all went in. I ten the thing off, or rather, a young man wrote think they did not all go in at that tirie. The it off at the table as I read it, and that is the two gentlemen named, I know, went in before same thing, I suppose, and I compared what me. he wrote after it was written with the notes, Question. How long afterthe Secretarywent because I wanted to be particular in regard did you go? to it. Answer. Perhaps it was a minute. It was Question. Is the document from which you very soon. Ifollowedthe othertwogentlemen have read here to-day a manuscript? very soon. Answer. No, sir; it is my testimony before Question. What had taken place between the committee, which is an exact copy of the the Secretary and General Thomas before you notes I took. arrived in the room, or had anything? Question. And those notes were written by Answer. I cannot say. They had some con- some young man who was present? versation; I cannot say what was said. Answer. At my suggestion he took the pen, Question. As you have given the conver- and I read to him, and then compared it, and sation in your notes, it would seem as if it found it word for word. then began after you first got in? Question. Where are those notes? Answer. The conversation I have given be- Answer. I do not know where they can be gan after I got in. As I said before, I heard found. I did not suppose it important to keep some talking; but I do not know what was the notes, because I had a copy of the notes said. before the committee and testified to it exQuestion. You mean you heard some talk- actly. ing before yqu got in there? Question. A copy of what notes do you Answer. Certainly. mean? Question. Whose voices? Answer. I had the notes I took there. Answer. I heard General Thomas's voice Question. You mean the notes written by and Mr. Stanton's voice. They had some that young man.? conversation. Answer. Yes, sir; I had them there. Question. But what that was you do not Question. What is his name? Who was he? know? ~ Answer. One of the clerks: there. I do not Answer. I do not. recollect what the young man's name was. I Question. Then the conversation followed do not know that I ever knew his name. I which you have detailed? did not ask him his name. I would know him Answer. Certainly. The first I heard when if I saw him. I went in was the question of Mr. Stanton, Question. You preserved those notes until which I have stated, and the answer of Gen- you testified? eral Thomas. Answer. Yes, sir. Question. Did you keep your notes with you Question. How long after you testified did and take your notes into that room? you preserve them? Answer. I had my envelope in my hand Answer. I cannot say that I kept them any when I went in. length of time after that. I thought it was of Question. And your pencil? no consequence. Answer. And my pencil. Question. How you disposed of the envelope, Question. Where is that envelope which you or how you disposed of those notes, you have had at that time? no recollection? Answer. No, sir; I cannot say what became Question. Do you recollectwhether you saw of the envelope; it may be in my papers some- him at all in his office after you had left Schriwhere. ver's room? Question. Have you made any search for Answer. I cannot swear positively that I them? did. I saw him after I left the room. The Answer. No, sir; my attention has not been doors were open. There are but a few feet called to that before. from one room to the other. I saw him sitting Question. When you came back into the in General Schriver's room. I will not swear Secretary's room who suggested to you, or positively that I saw him in his own office did you suggest the matter yourself, that the after I left that room. notes should be written out? How did that Question. What took place between them come to be? afterward you do not know? Answer. It was upon my own motion. Answer. No, sir. IdonotknowbecauseIleft. Question. Did you ask for a clerk? Question. Was there any friendly greeting Alswer. I had taken notes and proposed in or other circumstance took place at that time the presence of the gentlemen who heard the between the Secretary and General Thomas conversation that they should see that I had while you were in Schriver's room? them correct; and that was consented to by Answer. Well, sir, if there was, I did not see General MOORHEAD, Mr. KELLEY, and others it. I do not know that there was while I was who were present. in. What happened before I cannot say. Question. Then you proposed to have them Question. Was the memorandum that you copied? made on that envelope complete or abbreAnswer. I proposed to have them drawn off. viated? A young man was there ready to do it or willing Answer. The questions and answers as I to do it, and I asked him to write it out as I have them were complete. would read it to him from my notes. Question. Was the copy, then, an exact Question. Now, did anything else take place transcript of the memorandum? in General Schriver's room besides this talk Answer. It was merely questions and anthat you have testified to? swers. The questions were short and the Answer. Not that I am aware of; only, as answers were short. I have said, I heard some voices in there; but Question. Did it exhibit the whole converwhat was said I cannot say. sation? Question. After you went in, while you were Answer. I cannot say. I will not say that it there? did every word. I think it did not. I recolAnswer. I think there was no conversation. lect one expression, for instance, that General Question. I did not ask you simply for con- Thomas made that I did not put down; I did versation, but what else took place? not think it material. I can state it if the Answer. Nothing took place that I am aware court desire it. It occurs to me now. It is of. one expression that was used. I can state it if Question. Who first left the room? the gentleman wishes. Answer. After this conversation? Question. All I want to know is whether it Question. Yes, sir. completely covered the conversation? Answer. I cannot say whether I left it first Answer. It covered all the conversation of or General MOORHEAD or Mr. FERRY. We were any importance. all there. I think we went out in a moment Question. That you thought important? afterward. Answer. At least what I wrote. I wrote Question. Did you leave Mr. Stanton there? down just as the questions were given and Answer. Mr. Stanton was there when I went answered. I took all the conversation in subout. stance, and all of any account as it was had as Question. Did you go into his room from the questions and answers were given. there? * Question. This conversation that you took Answer. I did, sir. down in that way, did you take it down in short Question. Did you leave Thomas there, also? hand? Answer. Yes, sir. Answer. No, sir; I did not. Question. How long did Mr. Stanton remain Question. You wrote it out? in Schriver's room? Answer. I wrote it out. Answer. I cannot say, because as soon as I Question. Without abbreviation? had this copied I left for the House. Answer. Without abbreviation. Question. Do you mean to say that he did Question. Were there pauses in their convernot come in while you were engaged in having sation? Did they pause to allow you to follow the copy taken? them? Answer. At the moment ofimaking the copy? Answer. The conversation, as I said before, I will not say that he came in while the copy was very slow and deliberate. There was sufwas being taken or not. There was a short ficient time for me to write these questions and time consumed in taking it. He might have answers, as they were short, as counsel can see. done so, but I will not say. General Thomas said but very little. 116 Question. Now, I will ask you if, in that con- Answer. I think it was before that-in the versation, Mr. Stanton asked him if he wished forepart of his conversation. him to vacate immediately, or would give him Question. At the very beginning? time to arrange his private papers? Answer. Yes, sir; near the beginning. Answer. Mr. Stanton? Question. Had you taken down anything Question. Yes, sir; did Mr. Stanton ask Mr. before that was said? Thomas whether he wished him to vacate Answer. Yes, sir; the first thing he said immediately, or whether he would accord him was, "Good morning, Mr. Secretary," and (Stanton) time to arrange his private papers? "Good morning, gentlemen." Answer. There was nothing said in that con- Question. Did you take that down? versation in reference to that. There were Answer. I did, sir. other conversations, I understand, at other Question. You thought that was material? times, at which such remarks were made, as I Answer. I took it down. saw in the papers; but there was nothing of Question. Then next, after that, did he say that kind said at that time in that conversation. he did not wish any unpleasantness? 7 The question of giving time and changing Answer. I cannot say that the next words he papers did not come up in that conversation said after that were those. It was in the foreat all., part of the conversation. Rexamined by Mr. Manager BUTLER-: zQuestion. But that you thought immaterial? RQuestion. You said, if I understood you, Answer. I did not put it down; I thought, Quesion. You said, if I understood u, perhaps, it was immaterial. It occurs to me that there was a single remark of Thomas that now, as I know it excited something of a smile you did not write down, that now occurred to nOat as I knowit excite you, in answer to the counsel for the President; Mr. Manaer BINGAM. As I understand Answer. I said that was twhat remarks? it, the counsel are desiring to know of the witAnswer. I said that in answer t his que did ness what he thought of the importance that tion whether.I had sworn to all that he did say. I recollect now General Thomas saying ought to be attached to the word. I suppose hesay. did not wishany leasantness "1 I did it is not for the witness to swear what he thought he did not wish any "onpleasantness."' I did about it. not think it necessary to put that in my record. about it. Question. Did he emphasize it in thai Mr. EVARTS. We arecross-examining as Qu onpleasantness?Di to the completeness or perfection of the witAnswer. The gentlemen heard it, and it was to know why he omitted some parts and inserte spoken of afterward, but I did not think it others.hyhe omitted some was anything pertaining to this question; and Mr. ManagerBINGAM. We will notpress perhaps some other little words were said now the objection. and then that did not amount to anything. Question. I must still ask you to give to the Mr. STANBERY. We havenothingfurther Senate with a little more distinctness whether to ask of this witness. it was the remark, saying, " I do not want Hon. JAMES K. MOORREAD sworn and examany unpleasantness between us," or was it the ined. use of what has almost become a technical By Mr. Manager BUTLER: term, that " there shall not be any onpleasant- Question. I believe you are a member of the ness?" House tion. I belie ve you are a member of the Answer. Well, sir, I can only state what e ofepresentatives? General Thomas said. Question. The emphasis is something. Question. We have learned from the testiAnswer. I" Onpleasantness" was the expres- mony of the last witness that you were present sion used. at Mr. Secretary Stanton's office when General Thomas came in there to make some demand; By Mr. STANBERY: will you state now in your own way, as well as Question. This evidence is as to a word; I you can, what took place there, assisting your do not know its materiality; but did he speak memory, if you have any memorandum, as the word in the ordinary way? you please? Answer. He spoke it in the way I have Answer. I will, sir. I was present at the mentioned. War Department on Saturday morning, the Question. Now give his expression? 22d of February, I believe, and I understood Answer. He said as he came in, in connec- that General Thomas was to be there to take tion with what I have said-I did. not consider possession of the Department that morning. I it material, and did not put it down-that he went from my boarding-house, which is Mrs. did not wish any onpleasantness. Carter's on the hill; I went to the War DeQuestion. In what part of the conversation partment in company with Dr. BURLEIGH, who did that come in? boarded there, a friend of Mr. Johnson's, who Answer. Somewhere in the first part of the told me he had had a conversation with General conversation; it was in the first part. Thomas the night beforeQuestion. Was it in the first part or after Mr. CURTIS. That is not material. Stanton had ordered him to go to his room? The WITNESS. I was giving the reason why -117 I went there. I was there, and General and it was announced by some person nearthe Thomas came in. The testimony of Mr. VAN window that General Thomas was coming; and HORN is correct as to what passed. I did not I, with some others, got up and looked out take any memorandumn of the early part of the of the window apd saw him coming along the conversation; but I would corroborate his walk, and we expected somewhat of a scene statement- then. Mr. CURTIS. That we object to. Question. When he came in, did he come in Mr. STANBERY. That will not do. attended, or was he alone? The WITNESS, (continuing.) Until the point Answer. He was alone. at which he said General Thomas went across Question. Was he armed in any way? to General Schriver's room. He did go'there; Answer. I did not notice any arms. he was followed by Mr. Stanton, and Mr. Stan- Question. Side arms or others? ton asked me to go over there. After they got Answer. I did not notice anything except there Mr. Stanton put a direct question to Gen- what the Almighty had given him. eral' Thomas, and asked me to remember it. Question. Now, state just what took place He said, " General MOORHEAD, I want you to and what was said after he came in, according take notice of this and of the answer;" and to your own recollection? that induced me to make a memorandum of Answer. I think I have stated it about as it, which I think I have among my papers now. well as I can. When he came in he passed [The witness proceeded to search his papers.] the compliments, "Good morning, Mr. Secreit is very brief, and was made roughly, but so tary;" and "Good morning, gentlemen;" and I thought I could understand and know what I think Mr. Stanton asked him if he had any it meant myself, and I can explain it to any business with him. person. [Reading.] Mr. Stanton said, " Gen- Question. Did Mr. Stanton return his salute? eral Thomas, you claim to be here as Secre- Answer. Yes, sir; I think so. tary of War, and refuse to obey my orders?" Question. Was Mr. Stanton sitting or standGeneral Thomas replied, "I do, sir." After ing? that had passed I walked to the door leading Answer. During the time I was there he was into the hall and I was called back, or from doing both; I cannot tell exactly what he was what I heard my attention was attracted so that doing at the time General Thomas spoke to I returned. Mr. Stanton then said, "General him, but he was down and up and walking Thomas requires the mails of the Department aroumrd, sometimes sitting, sometimes standing. to be delivered to him." General Thomas Question. Did he ask the General to take a said: "I require the mails of the Department seat? to be delivered to me, and I will transact the Answer. I think not, sir. business of the office." I had not heard Gen- Question. Did he take a seat? eral Thomas say this entirely and clearly, but Answer. No, sir; he did not; he did not in Mr. Stanton repeated it in this way, and said: that room. I think he took a seat when he " General Thomas says'I require the mails went into General Schriver's room. of the Department to be delivered to me, and Question. But he neither took a seat nor, as I will transact the business of the office.'' I you recollect, was asked to take a seat? asked General Thomas if he had made use of Answer. Not that I recollect. those words. I asked him if he had stated Question. After these good mornings passed this; and he assented, and added: " You may what was the next thing? make it as full as you please." Answer. General Thomas said that he was That is all the memorandum I made, and I there as Secretary of War ad interim; he was made that at the time and place. appointed by the President, and came to take Cross-examined by Mr. STANBERY: possession. ton'uestion. wh~en you arfrivded at Mr. Stan- Question. Was therenothing said before that? Qton's offe whom dide you finvd there? S Answer. Not to my recollection. I took no Answer. I did not make a memorandum of emorandum of anything before that, and that, and I cannot tell exactly. There were a e sore what I have stated udready. number of members of Congress there. When Question. Did I not understand you to say number of members of Congress there. When that Mr. Stanton, when he came in and the M ir. VAN HORN was reciting the names, I re- salutes were passed, asked him what business cognized them as having been there, and I hehadwithhim? remember tJuge KELLEY in addition to the Answer. Yes, sir; and in reply to that he names mentioned. said what I have stated. I did not know you [Mr. VAN HORN sitting in the Chamber said, wished me to repeat what I had stated. I "I mentioned him."] stated that. Question. How long had you been at the Question. In reply to that question of Mir. office before General Thomas came in? Stanton, what did Mr. Thomas say? Answer. I think about half an hour. Answer. He said he was there as SecreQuestion. Did you see him coming? tary of War ad interim, to take possession Answer. Yes, sir; I saw him coming. The of the office. Mr. Stanton told him: "General windows opened out toward the White House, Thomas, I am Secretary of War; you are the 118 Adjutant General; I order you to your room, Answer. No, sir. sir." Question. Then who first commenced the Question. He ordered him to his room? serious conversation in Schriver's room? Answer. Yes, sir. Answer. Mr. Stanton, I think, asked this Question. What was the reply? question. Answer. The reply was that he would not Question. When the question was answered, obey the order; that he (Thomas) was Secre- as I understand, Mr. Stanton desired you to tary of War ad interim. remember it? Question. What followed that? Answer. Yes, sir. Answer. I do not know that there was any- Question. And then immediately you left thing further. Very soon after that General the room? Thomas retired over to General Schriver's Answer. Very shortly after. room; Mr. Stanton followed him and asked Question. Do you recollect anything said me to go over, and I have given you what between them except that before you left the occurred there. room? Question. After General Thomas left, did Answer. No, sir; I do not. Mr. Stanton tell you why he wanted you to Question. Did you get back to Mr. Stanton's accompany him? room, or only into the ante-chamber or hall, Answer. No. and then return? Question. But he asked you to go with him? Answer. I had got back to Mr. Stanton's Answer. Yes, sir. room, I think, or to the door. Question. Didyouknowwherehewas going? Question. What then induced you to return Answer. I knew he was going over to that *to General Schriver's room? room. Answer. I found there was some question Question. Did you know he was going to have asked there then that I thought was important, a further conversation with General Thomas? and I paid some attention to that, and I then Answer. I expected so; but he did not say so. went to hear what that was; and then Mr. Question. Did he ask any one else besides Stanton told me that he wanted me to take yourself to go? notice of that. Answer. I expect not. Question. That was as to the mails of the Question. Did any one else go besides your- Department? self? Answer. Yes, sir. Answer. Mr. VAN HORN and some other gen- Question. Anything further? tleman followed. Answer. Yes, sir; what I read. There was, Question. Did you get into the room as soon in addition to the mails of the Department. a as Mr. Stanton? statement that he was- there as Secretary of Answer. Immediately after him. War. Question. Did you get there before any con- Question. After that did you remain any versation began? longer in Schriver's room? Answer. I think about the time. I followed Answer. No, sir; I think not. immediately, and there was no conversation Question. Who came out first, Mr. Stanton of any marked significance until that which I or yourself? have mentioned. Answer. I came out first and left Mr. Stam Question. What was the conversation, sig- ton there. nificant or not, that took place between Mr. Question. How long did Mr. Stanton remain Stanton and General Thomas after you got into there after you left? that room? Answer. I think a very short time, for I Answer. I cannot recite it, because, as I told left about that time to go to the Capitol. It you, I did not take a memorandum of it, and was then getting on toward twelve o'clock; it was not important enough to be impressed and I left, and I know I did not get to the on my mind. I do not recollect. Capitol till after twelve o'clock. Question. But you have an impression that Question. Did all the company then leave? there was some? Answer. Most of them left. I think the Answer. I think there was some —perhaps members of the House all left. joking or something of that kind. hey ap- Question. Who stayed? peared to be in pretty good humor with each Answer. I do not remember who stayed. other. There were a number of gentlemen there, Question. That is, the parties did not seem though. to be in any passion at all? Question. Who do you recollect was there, Answer. Not hostile, besides members of the House? Question. But in good humor? Answer. I cannot call to mind now or give Answer. Yes, sir. the name of a gentleman that was there, but I Question. Joking? know there were others. Answer. Yes, sir. Question. Were any other gentlemen there Question. Do you recollect any of the jokes except the regular clerks of the Department at that passed? that-time? '119 Answer. Yes, sir; others than clerks of the Question. How long have you known him? Department. Answer. For several years; I cannot say Question. Were they military men or civil- how many. ians? Question. Have you been on terms of intiAnswer. During some part of the morning macy with him? there was a military man there. I believe Answer. I have been. during the time I was there I saw General Question. Hevisitingyourhouse, andyouhis? Grant there. Answer. Yes, sir. Question. At what time was he there? Question. Do you remember an occasion Answer. I think it was during that morning; when you'had some conversation with Mr. but I am not certain. I have been there a MOORHEAj about visiting Mr. Stanton's office? good many times, and I have seen him there at Do you remember that you had such a converdifferent times. sation? Question. Was he there during either of these Answer. I recollect going to the Secretary conversations that you have mentioned? of War with Mr. MOORHEAD on the morning of Answer. No, sir; he was not present at the the 22d of February last, I think. conversations. Question. Had you on the evening before Question. Was it before or after the conver- seen General Thomas? sations that General Grant came in? Answer. I had. Answer. I have stated that I was not distinct Question. Where? about the time, nor certain whether it was that Answer. At his house. morning or at another, but I rather think he Question. What time in'the evening? was there during that morning. Answer. In the early part of the evening; I Question. Do you/recollect any observation cannot name precisely the hour. on the part of General Thomas to the effect Question. Had you a conversation with him? that he wished no unpleasantness? Answer. Yes, sir. Answer. I do not think I recollect his using Mr. STANBERY. Wait a moment, if you that term. please. What is the relevancy of that to this Question. Anything like it? inquiry? I understand this is about a converAnswer. No, sir; I do not. sation of this witness with General Thomas. Question. Did there appear to be any un- Mr. Manager BUTLER. The object is to pleasantness? show the intent and purpose with which GenAnswer. There did not; General Thomas eralThomaswenttothe WarDepartment on the wanted to get in, I thought, and Mr. Stanton morning of the 22d of February; that he went did not want to go out. with the intent and purpose of taking possesQuestion. But there was nothing offensive sion by force; that he alleged that intent and on either side? purpose; that in consequence of that allegation Answer. There was nothing very belliger- Mr. BURLEIGH invited General MOORHEAJ ent on either side. and went up to the War Office. The converQuestion. Was there any joking in Mr. Stan- sation which I expect to prove is this: after ton's room as well as in Schriver's room? the President of the United States had apAnswer. No, sir. pointed General Thomas and given him direcQuestion. Any occasion for a laugh? tions to take the War Office, and after he had Answer. It was more stern in Mr. Stanton's made a quiet visit there on the 21st, on the room, as he once or twice ordered General evening of the 21st he told Mr. BURLEIGH that Thomas to go to his room as a subordinate. the next day he was going to take possession Question. That was the only thing that looked by force. Mr. BURLEIGH said to him — like sternness? Mr. STANBERY. No matter about that. Answer. That was rather stern, I thought. We object to that testimony. Reeixamined by Mr. Manager BUTLER: Mr. Manager BUTLER. You do not know Ques4on. The counsel for the President what you object to if you do not hear what I asked you if General Thomas was armed on offer. that occasion: will you allow me to ask if on Mr. STANBERY. We object to it. that occasion he was masked? M+. CURTIS. We know sufficiently for the Answer. He was not, sir. purpose of the objection. The CHIEF JUSTICE. The Chief Justice Hon. WALTER A. BURLEIGH sworn and ex- thinks the testimony is competent, and it will amined. be heard unless the Senate think otherwise. By Mr. Manager BUTLER: Mr. DRAKE. I suppose, sir, that the quesQuestion. What is your name and position? tion of the competency of evidence in this Answer. My name is WALTER A. BURLEIGH. court is a matter to be determined by the SenAt present I am a Delegate from Dakota Ter- ate and not by the presiding officer of the ritory in the lower House of Congress. court. The question should be submitted, I Question. Do you know Lorenzo Thomas, think, sir, to the Senate. I take exception to Adjutant General of the Army? the presiding officer of the court undertaking Ansuer. I do, sir. to decide a point of that kind. .120 The CHIEF JUSTICE. The Chief Justice officer of the Senate, I will state it as I underis of opinion that it is his duty to decide pre- stand it, subject to his correction. liminarily upon objections to evidence. If he I understand the position to be that priis incorrect in that opinion it will be for the marily, as a judge in court would have the right Senate to correct him. to do, the presiding officer of the Senate claims Mr. DRAKE. I appeal, sir, from the de- the right to rule a question of law, and then if cision of the Chair, and demand a vote of the any member of the court chooses to object, it Senate upon the question. must be done in the nature of an appeal, as Mr. FOWLER. Mr. Chief Justice, I beg taken by one Senator just now. If I am incorto know what your decision is? rect in my statement of the position of the preThe CHIEF JUSTICE. The Clief Justice siding officer I beg to be corrected. states to the Senate that in his judgment it is The CHIEF JUSTICE. The Chief Justice his duty to decide upon questions of evidence will state the rule which he conceives to be in the first instance, and that if any Senator applicable, once more. In this body he is the desires that the question shall then be sub- presiding officer; he is so in virtue of his high mitted to the Senate it is his duty to submit office under the Constitution. He is Chief it. So far as he is aware, that has been the Justice of the United States, and therefore, usual course of practice in trials of persons when the President of the United States is impeached in the House of Lords and in the tried by the Senate, it is his duty to preside in Senate of the United States. that body; and, as he understands, he is thereMr. DRAKE. My position, Mr. President, fore the President of the Senate sitting as a is that there is nothing in the rules of this Sen- court of impeachment. The rule of the Senate sitting upon the trial of an impeachment ate which applies to this question is the seventh which gives that authority to the Chief Justice rule, which declares that " the presiding officer presiding over the body. may, in the first instance, submit to the Senate, Mr. FESSENDEN. The Senator is out of without a division, all questions of evidence order. and incidental questions." He is not required Mr. JOHNSON. I call the honorable mem- by that rule so to submit those questions in the ber from Missouri [Mr. DRAKE] to order. first instance; but for the dispatch of business, The question is not debatable in the Senate. as is usual in the Supreme Court, he expresses Mr. DRAKE. I am not debating it; I am his opinion in the first instance. If the Senate stating my point of order. who constitute the court, or any member of The CHIEF JUSTICE. The Senator will it, desires the opinion of the Senate to be taken, come to order. it is his duty then to ask for the opinion of the Mr. Manager BUTLER. If the President court. please, is not this question debatable? Mr. Manager BUTLER. May I respectThe CHIEF JUSTICE. It is debatable by fully inquire whether that would extend to a the Managers and counsel for the defendant; Manager; whether a Manager would have the not by Senators. right to ask that a question of law should be Mr. Manager BUTLER. We have the submitted to the Senate? honor, Mr. President and gentlemen of the The CHIEF JUSTICE. The Chief Justice Senate, to object to the ruling just attempted thinks not. It must be by the action of the to be made by the presiding officer of the court or a member of it. Senate; and, with the utmost submission, but Mr. Manager BUTLER. Then this matter with an equal degree of firmness, we must becomes of very important and momentous insist upon our objection, because, otherwise, substance, because the presiding officer, who it would always put the Managers in the con- is not a member of the court, who has no vote dition, when the ruling was against them, of in the court, as we understand it, except posappealing to the Senate as a parliamentary sibly upon a question of equal division, gives body against the ruling of the Chair. We a decision on a question of law, it may be of have been too long in parliamentary and other the first importance, which, if made, precludes'bodies not to know how much disadvantage the House of Representatives from asking it is to be put in that position-the position, even that the Senate, who are the triers, shall whether real or apparent, of appealing from pass upon it. Thereforeif this is to be adopted the ruling of the presiding officer of the Senate. as a rule our hands are tied; and it was in We are very glad that this question has come order to get the exact rule that I have asked up upon a ruling of the presiding officer the presiding officer of the Senate to state, which is in our favor, so that we do not appear as he has kindly and fully stated, his exact to be invidious in making the objection. position. Although it has fallen from the presiding The CHIEF JUSTICE. Mr. Manager, the officer that he understands that all the prece- Chief Justice has no doubt of the right of the dents are in the direction of his intimation of honorable Managers to propose any question opinion, yet, if we understand the position they see fit to the Senate, but it is for the taken, the precedents are not in support of Senate itself to determine how a question shall that position. Lest I should have the misfor- be taken. tune to misstate the position of the presiding Mr. Manager BUTLER. I understand the 121 distinction. It is a plain one. The Managers Chief Justice Denman presided upon that trial, may propose a question to the Senate, and the and in that case, as in all the others, the body Chief Justice decides it, and we then cannot was universally addressed by counsel on all get the question we propose before the Senate sides, by prisoner, by managers, by everybody, unless through the courtesy of some Senator. as " my lords," so that there should be no recogI think I state the position with accuracy; and nition of any superior right in the presiding it is the one to which we object, I again say, officer over any other member of the assembly. respectfully as we ought, but firmly, as we Nor need I upon this matter of precedents must. stop here. In more than these cases this quesNow, how are the precedents upon this ques- tion his arisen. In Lord Macclesfield' s case tion? Sorry I am to be obliged to deny the in 1724, if I remember aright, the point arose position taken by the presiding officer of the whether the presiding officer should decide an Senate, that the precedents in this country and incidental question upon the trial; but in every England are with him. I understand that this case Lord Chief Justice King referred all quesquestion, as a question of precedents in Eng- tions wholly to the Lords, saying to the Lords land, has been settled many, many years, hun- "You may decide as you please." dreds of years. Not expecting that it would Again, when LQrd Erskine presided on the arise here, I have not at hand at this moment trial of Lord Melville, which was a trial early all the books to which I could refer, but I can in the century, conducted with as much care, give a leading case where this question arose. regard, forms, and with the utmost preservaIf I am not mistaken, it arose in the trial of tion of decency and order of the proceedings, Lord Strafford, in the thirty-second year of the question was put to him whether he ruled the reign of Charles II. The House of Lords points of law, and he expressly disclaimed that had a rule prior to the trial of Strafford, by power; saying in substance, on every ruling which the Commons were bound to address of an incidental question, "Unless any noble the lord high steward as his grace or "my lord should think that this matter should be lord," precisely as the counsel for the re- further considered in the Chamber of Parliaspondent seem to think themselves obliged to ment, I will give my opinion," thereby always address the presiding officer of this body submitting the question to the lords in the first as" Mr. Chief Justice." When the prelimi- instance. naries of the trial of Strafford and the other Again, in Lord Cardigan's case, to which I popish lords were settled, the Commons ob- have just referred, when a question of evidence jected that, as a part of the Parliament of Great arose as to whether a card on which the name of Britain,they ought notto be called upon through Harvey Garnett Tuckett was placed should be their managers to address any individual what- given in evidence, the question being whether ever, and that their address should be made to the man's name was Harvey Garnett Phipps the Lords in Parliament. A committee of Tuckett or only Harvey Garnett Tuckett, but a conference between the Commons and Peers question on which the whole trial finally turned was thereupon had, and the rule previously when afterward the whole evidence was in, adopted in the House of Lords was, after much Lord Denman, instead of deciding the question, consideration, rescinded, and a rule was re- submitted it to the Lords, as follows: ported and adopted in that trial, and it has "The inconvenience of clearing the House is so obtained ever since in all other trials. The great that I should rather venture to propose that result of the conference is stated in this way: the decision of this question, if your lordships should be called upon to decide it, had better be postponed." "On the 29th of November, 1680, it is agreed at the joint committee, upon the objection made by the The question was not at that time- pressed. Ciommons to one of the rules laid down by the Lords, And when the Attorney General of England viz:'That when the Commons should ask any questions at the'trial they should apply themselves to made his argument upon the evidence Lord the lord steward, that the managers should speak Denman arose and apologized to the House of to the Lords as a House, and say'my lords,' and Lords for having allowed him to argue, and not to the lord high steward, and say'my lord' or'your grace." said in substance he hoped this would not be A reason being given that the lord high drawn into a precedent in criminal trials, but steward was not a necessary part of the court,that he did not think -it quite rght for him to but only as Speaker of the House of Lords, interfere and stop him. And when, finally, and the Lords themselves were the only body the Lords deliberated with closed doors upon of triers. When Lord Strafford came to the the pont taken, and Lord Denman gave an bar the Lords, conformably to this doctrine, opinlon to the Lords upon whether the proof on the 29th of Novemrber, 1680, order- sustained the indictments his lordship said: " That the Lord Strafford shall be directed to apply "If, my lords, the present were an ordinary case, himself to the Lords, and not to the lord high stew- tried before one of the inferior courts, and the same ard, as often as he shall have occasion to speak athis objection had been taken in this stage to the proof trial." of identity, the judge would consult his notes, and explain how far he thought the objection well And from that day to the latest trial in Par- founded, and I apprehend that the jury would at liament, which is the Earl of Cardigan case in once return a verdict of acquittal. "Your lordships sitting in this High Court of Par1841, the rule has been followed. Earl Car- liament, unite the functions of both. I have stated digan being tried in the House of Lords, Lord my own views, as an individual member of the court, 122 of the question by you to be considered, discussed, the country is not disturbed, to be such as to and decided. Though I have commenced the debate, hold any future Jeffries as did the precedents it cannot be necessaryfor meto disclaim the purpose of dictating my own opinion, which is respectfully old; for this brings to my mind Jeffries laid before you with the hope of eliciting those of the conduct on an exactly similar question, when House at large. If any other duty is cast upon me, he was held bound by the precedents of the or if there is any more convenient course to be pur- House of Lords. sued, I shall be greatly indebted to any of your lord- rds. In the trial of Lord Delships who will be so kind as to instruct me in it. In amere, Chief Justice Jeffries, being lord high the absence of any other suggestion, I venture to the earlas he came declare my own judgment, rounded on the reasons briefly submitted, that the Earl of Cardigan is enti-to plead-I give substance now, not wordstled to be declared not guilty.". "My lord, you had better confess and throw Now, then, in the light of authority, in the yourself on the mercy of the king, your master; light of the precedents to which the presiding he is the fountain of all mercy, and it will be officer has appealed, in the light of reason, better for you so to do." The accused earl and in the light of principle, we are bound to replied to him: " Are you, my lord, one of my object to this claim of power on the part of judges, that give me such advice here on my the Chief Justice. I say again it is not a mere trial for my death?" Jeffries, quailing before question of form, for all mere forms we would the indignant eye of the man whose rights he waive; but it is a question of substance. It was interfering with, said: "No, I am not one is a question whether the House of Represent- of your judges; I only advise you as a friend. " atives can bring, by their own motion, to the I desire the precedents fixed now in good time, Senate a question of law, if the Chief Justice as strong as they were before Jeffries's time, who is presiding chooses to stand between the so that hereafter, when we get a Jeffries, if we Senate and the House and its prosecution. ever have that misfortune, he shall be bound That is a question of vital importance, upon by them. We have had a Johnson in the presiwhich, for the benefit of the people for all time dential chair; and we cannot tell who may get hereafter, if it did not make any difference in into the chair of the Chief Justice in the far this case, I would not yield one hair, because future; but, if we do ever get a Jeffries in that no jot or tittle of the rights of the people or chair, T want the precedent upon this point so of the House of Representatives, so far as I settled now that it cannot be in any way disunderstand them, shall ever fall to the ground turbed, so as to hold him to the true rule as by any inattention or inadvertence or yielding with hooks of steel. of mine. The CHIEF JUSTICE. The Chair will Allow me to state again the proposition de- state the question for the consideration of the dlared by the learned presiding officer, because Senate. The honorable Manager put a questo me it seems an invasion of the privileges tion to the witness. It was objected to on the of the House of Representatives. It is this: part of the counsel for the President. The that when the House of Representatives pro- Chief Justice is of opinion that it is his duty poses a question of law to the Senate of the to express his judgment upon that question, United States on the trial by impeachment of subject to having the question put upon the the President of the United States, the Chief requisition of any Senator to the Senate. Are Justice presiding in this as a court can stand you ready for the question? between the House of Representatives and the Mr. GRIMES. The question is, whether Senate and decide the question; and then, the judgment of the Chief Justice shall stand unless by the courtesy of some Senator who as the judgment of the Senate? may be induced to make a motion for them, the The CHIEF JUSTICE. Yes, sir. House of Representatives, through its Mana- Mr. DRAKE. No, sir. I raise the quesgers, cannot get that question of law decided tion that the presiding officer of the Senate had by the Senate. no right to make a decision of that, question. I should be inclined to deem it my duty, and The CHIEF JUSTICE. The Senator is I believe my associate Managers will agree not in order. with me if we are put in that position, to ask Mr. DRAKE. I wish that question put to leave to withdraw and take instruction from the Senate, sir. the House before we lay the rights of the House, The CHIEF JUSTICE. The Senator will bound hand and foot, at the feet of any one come to order. man, however high or good or just he may be; Mr. CONKLING. Mr. President, I rise for for, as I respectfully bring to your attention, information from the Chair. I beg to inquire itis a question of most momentous consequence, whether the question upon which the Senate is although not so great, not of so much conse- about to vote is whether the proposed testiquence now, when we have a learned, able, mony be competent or not, or whether the honest, candid, patriotic Chief Justice in the presiding officer be competent to decide that chair, as it may be hereafter. Let us look question or not? forward to the time which may come in the The CHIEF JUSTICE. It is the last queshistory of this nation when we get a Jeffries tion, whether the Chair in the first instance as lord high steward or Chief Justice. I want, may state his judgment upon such a question. then, that the precedent set in this good time, That is the question for the consideration of by good men, when everything is quiet, wbhp the Senate. The yeas and nays will be called, 123 Mr. CONKLING. Before the yeas and nays It is settled, in other words, that the peers are called, I beg that the whole of the latter alone are the judges in every case of the law clause of the seventh rule may be read for the and the fact; that the lord chancellor presidinformation of the Senate. ing is but a ministerial officer to keep order; The CHIEF JUSTICE, (to the Secretary.) to present for the decision of the peers the Read the rule. various questions as they arise; to take their Mr. HOWARD. Read the whole of the rule. judgment upon them; and there his authority The Secretary read as follows: stops. "VII. The Presiding Officer of the Senate shall And this doctrine is considered so well direct all necessarypreparationsin the Senate Cham- settled, I may be permitted to say further, ber, and the presiding officer upon the trial shall (here speaking from recollection of that which direct all the forms of proceeding while the Senate are sitting for the purpose of trying an impeachment. I have, however, carefully examined,) that it and all forms during the trial not otherwise specially is carried into the great text-books of the law provided for. The presiding officer may, in the first and finds a place inthe fourth Institute of instance, submitto the Senate, without a division, all questions of evidence and incidental questions'; but Coke, wherein he declares that the peers are thesameshall, onthe demand of one fifthof themem- the judges of the law and fact, and conduct bers present, be decided by yeas and nays." the whole proceedings according to the law Mr. Manager BINGHAM. Mr. President, and usage of Parliament. after consultation with my associate Managers, As I understand this question as it is preI ask leave to make some additional remarks sented here, I agree with my associate that to the Senate before this vote be taken and to it is of very great importance, not only as call the attention of Senators especially to rule touching the admissibility of evidence-for seven to which the President made reference. we certainly have no ground of complaint of We think ourselves justified in asking the the presiding officer for the ruling he made Senate to consider that rule seven does not touching the admissibility of the evidence contemplate any departure from the long- which we offer through. this witness-but as established usage governing proceedings of this touching every other question that can arise; character; in other words, that rule seven for example, questions that may involve the simply does provide that, " The presiding validity, legality, if you please, of any of the officer may, in the first instance, submit to charges preferred in these articles. If such a the Senate, without a division, all questions ruling were asked here of the presiding officer, of evidence and incidental questions; but the we submit that it is not competent for him to same shall, on the demand of one fifth of the pronounce any judgment on the subject, that members present, be decided by yeas and it is alone for the Senate to determine; and nays." We respectfully submit to the Senate, they determine it simply for the reason, as I with all respect to the presiding officer, that said before, that they have the sole power to his rule means no more than this: that if no try all questions involved in the case. question be raised by the Senators and one We stand, then, upon what we believe has fifth do not demand the yeas and nays, it been the uniform practice touchiing this quest authorizes the presiding officer simply to take tion in England, and we consider that the Presthe sense of the Senate upon all such questions ident presiding now in the Senate has no more without a division, and there it ends. power over this question before the Senate than I beg leave further to say to the Senators, in has the lord chancellor, when he presides over connection with what has fallen already from the deliberations of the peers, to decide any my associate, that,I look upon this question question. Being himself a peer, he has but now involved in the decision of the presiding his own vote. I do not think a case can be officer as settled by the very terms of the Con- found wherein it was consented by the peers stitution itself. The Constitution of the United that the lord chancellor should give.a decision States, as the Senators will remember, pro- in any case which is to stand as the judgment vides that the Senate shall have the sole of the court without consulting the peers. That power to try all impeachments. The expres- is the position that we assume, and we ask it sion, " the sole power," as the Senate will to be understood and considered by the Senate. doubtless agree, necessarily means the only We understand that the question upon which power. It includes everything pertaining to the vote of the Senate is to be had is, whether the trial. Every judgment that must be made the Senate shall decide that the presiding offiis a part of the trial, whether it be upon a pre- cer, himself not being a member of that body liminary question or a finalquestion. It seems which is invested with the sole power to try to me that the words were incorporated in the impeachments, and therefore to decide all Constitution touching this procedure in im- questions in the trial, can himself make a dae peachment in the very.light of the long con- cision, which decision is to stand as the judgtinued usage and practice in Parliament. It ment of this tribunal unless reversed by a is settled, I beg leave to remind Senators, in subsequent action of the Senate. That we the very elaborate and exhaustive report of the understand to be the question that is submitCommons of England upon the Lords' Jour. ted, and upon which the Senate is about to vote. nals that the peers alone decide 11 questions Mr. Manager BUTLER. And that the Manof law and fact arising in such a tril awrs cannot raise the question. 124 Mr. Manager BINGHAM. It is also sug- ence I maintain that the language of the Congested by my associate that there is also in- stitution, in these words: volved in the question the further proposition that the Managers, in the event of such decis- he Chieif Justih e United Statll pres is tried ion being made by the presiding officer, cannot call even for a review of that decision by is conclusive without argument. He presides the Senate. here not as a member of this body; for if that Mr. WILSON. I move that the Senate re- were assumed the claim would be in derogatire for the purpose of consultation. tion, nay, in violation, of another provision of Several SENATORS. NO, no. the Constitution which confides to the Senate Mr. SHERMAN. Before that is done I the sole power of trying all impeachments. I desire to submit a question to the Managers in know of no language which could be used more accordance with the rule. specific in its character, more inclusive and The CHIEF JUSTICE. Does the Senator exclusive in its terms. The language includes, from Massachusetts withdraw his motion? as has here been maintained by Mr. Manager Mr. WILSON. I withdraw it for a moment. BUTLER in the opening argument, all the memMr. SHERMAN. I send to the Chair a bers of the Senate, all the men chosen under question. the Constitution and representing the several The CHIEF JUSTICE. TheSecretarywill States of the Union, whatever may be their read the question. qualities, whatever may be their capacities, mlhe Secretary rea th stion of Mr.SHER-whatever may be their interests, whatever may MANThe Secretary read follow question be their affiliation with or to the person acMANx, as follows: cused. The Senate sits in its constitutional I ask the Managers what are the precedents in capacity to decide under the Constitution the the cases of impeachment in the United States upon quesall this point? Did the Vice President. as Presiding tion of the guiltof the accused, with all Officer. decide preliminary questions, or did he sub- the felicities and with all the infelicities which mit them in the ffrst instance to the Senate? belong to the tribunal organized under and by Mr. Manager BOUTWELL. Mr. President virtue of the Constitution. We must accept and gentlemen of the Senate, I am very much it as it is, with no power to change it in any indisposed to ask the attention of the Senate particular. further. As a question concerning the rights So, also, the words of the Constitution are of the House in this proceeding, it seems to exclusive. With all deference I am forced to me of the gravest character; and yet I can assert and maintain that these words exclude very well foresee that the practical assertion every other man, whatever his station, rank, on all questions arising in a protracted trial of position elsewhere, whatever his relations to the principle which the Managers assert here this body under or by the Constitution. The in behalf of the House is calculated to delay Senate by the Constitution has the sole power the proceeding, and very likely at times to in- to try all impeachments, and no person not of volve us in temporary difficulties. In what I the Senate, and exercising the functions of a say I speak with the highest personal respect Senator in legislative and executive affairs, can for the Chief Justice who presides, being fully in any way interfere to control or affect their assured that in the rulings he might make decision or their judgment in the slightest deupon questions of law and the admissibility of gree. Therefore, Mr. President, it mustfollow testimony he would always be guided by that as a constitutional duty that the Senate, without conscientious regard for the right for which he advice, as a matter of right, must decide every is eminently distinguished. incidental question which by any possibility can But I also foresee that if the Managers act- controltheultimatejudgmcntoftheSenateupon ing for the House in the case now before the the great question of the guilt or innocence of Senate and before the country, and acting, I the party accused. If under any circumstances may say, in behalf of other generations and of the testimony of a witness proffered may be deother men who unfortunately may be similarly nied or may be admitted upon the judgment of situated in future times, should admit that any person or by any authority, except upon the the Chief Justice of the Supreme Court of the judgment and authority of the tribunal before United States, sitting here as the presiding which we here stand, then a party accused and officer of this body for a specified purpose, and impeached by the House of Representatives for a specified purpose only, has a right to de- may be acquitted or he may be convicted upon cide, even as preliminary to the final judgment any authority or opinion which is not in tact of the Senate, questions of law and evidence the judgment of the Senate itself. Upon this which in the end may be vital in the decision point I think there can finally be no difference of this tribunal upon the question of the guilt of opinion. or the innocence of the person arraigned, they But, Mr. President, as one of the Managers, would make a surrender, in substance, of the and without having had an opportunity to constitutional rights of the House and tie consult my associates on the point, and speakconstitutional rights of the Senate sitting as ing, therefore, with deference to what may be the tribunal to try impeachments presented b their judgment or what might be the judgment the House of Representatives. With all def9- of the House, I should be willing to proceed 125 in the conduct of this case upon the under- the peers) as may be useful in reasoning by analogy, standing that the right is here and now solemnly so far as the nature of the rules in the respective asserted by the Senate for themselves and as courts of the learned persons consulted shall appear to the peers to be applicable to the nature and eira pre.cedent for all their successors that every cumstances of the case before them, and not otheirquestion of law is to be decided by the Senate wise."-8s Burke p. 42; Report on the Lords Journal; without cci.sultation with the presiding officer. Trial of Warren Hastings. I hold that the judgment must be exclusively In the volume of Burke here quoted the rewith the Senate. Still I am willing that in all port is set out at length. I read further from these proceedings the presiding officer of the the same report: Senate shall give his opinion or his ruling, "Juri8diction of the Lords. if you please to call it a ruling, upon questions "Your committee finds that in all impeachments of the Commons of Great Britain for high crimes and incidental of law and evidence as they arise, misdemeanors, before the peers in the high court of unless some member of the Senate or the Man- Parliament, the peers are not triers or jurors only, agers or the counsel for the respondent should but by the ancient laws and constitution of this kingfirst desire the judgment of the Senate. dom known by constant usage are judges both of law and fact; and we conceive that the Lords are I happen to have an extract from the record bound not to act in such a manner as to give rise to in the case referred to by my associate, and I an opinion that they have virtually submitted to a will read it in the presence of the Senate. division of their legal powers, or that, putting themselves into the situation of-mere triers or Jurors, they In the trial of Lord Melville, which is re- may suffer the evidence in the cause to be produced ported in the twenty-ninth volume of the State or not produced before them, according to the disTrials, Lord Chancellor Erskine evidently acted cretion of the judges of the inferior courts"-8 Burke, uon this idea. Upon a question of the ad- ren Hastings.. bmissibiity of testimony, it having been argued I read, also, the extract from fourth Institute by the managers on one side and the counsel to which I before referred: for the respondent on the other, Lord Erskine saidfor the respondent on "It is by the laws and customs of Parliament that said: all weighty matters in Parliament moved concern"If any noble lord is desirous that this subject ing the peers of the realm, &c., ought to be determshould be a matter of further consideration in the ined, adjudged, and discissed by the course of the Chamber of Parliament, it will be proper that he Parliament, and not by the civil law, and yet by the should now move to adjourn; if not, I have formed common law of this realm used by the more inferior an opinion, and shall express it." courts; for this reason the judges ought not to give any opinion in a matter of Parliament." —Fourth InTo that theory of the administration of the stitute, page 15. duties of the Chair with reference to the rights of the House of Representatives and to the th Manager BUTLER.. Mr. President, of thie House of Re~presentatives and to the there was a question asked by one member of rights of the respondent, for myself, I should the Senate a question asked by on e member of not object; but I cannot conscientiously, even the Senate as to the precedents. I have sent hdoctrine as a forthe trial of Judge Chase, which I read from in this p~resence, consent to ~the doctnne a the third volume of Benton's Abridgment of matter of right that the presiding officer of the Senate is to decide interlocutory questions, and theDebates of Congress The rule in that especially to decide them under such circum-n the following words: stances that it will not be in the power of the "All motions made by the parties or their counsel shall be addressed to the President of the Senate, and, Managers to take the judgment of the Senate if he shall require it shall be committed to writing, upon the wisdom and justice of the decision. and read at the Secretary's table; and all decisions Mr. Manager BINGHAM. By leave of the shall be had by yeas and nays, and without debate, which shall be entered on the records." Senate I desire to read in their hearing an abstract which I have made touching this ques- In the course of the trial there arose this tion from the authorities to which I referred, question: whether a Mr. Hay, a witness in the and which I believe is accurate. I read first case, should use a certain paper to refresh his in the hearing of the Senate the abstract which memory. was made from the report of the Commons of " Mr. Harper here interrupted Mr. Hay, and said: England upon the Lords Journals:' The witness may refer to anything done by himself at the time the occurrence happened which he relates. " Relatitn of Judges, &c., to the Court of Parliament. But I submit it to the court how correct it is to refer " Upon examining into the course of proceeding in to what was not done by him, or done at the time.' the House of Lords, and into -he relation' which ex- "The President asked Mr. Hay whether the notes ists between the peers on the one hand, and their were taken by him. attendants and assistants, the judges of the realm, persons. Hay. The statement was made by diself, perent barons of the exchequer of the coif, the king's learned counsel, and the civilians masters of the the greater part; the rest by Mr. Nicholasand Mr. chancery on the other, it appears to your committee irt. Ibelieve shallbeabletostatefromitevery that these judges and other persons learned in the material occurrence which took place at the time. common and civil laws are no integrant and neces- "The President. Haveyouthe parts made by yoursary part of that court. Their writs of summons are self separate? essentially different; and it 1oes not appear that they "Mr. Hay said he had not. or any of them have, or of right ought-to have, a de- ThePresidentthen put the question, whether the liberative voice, either actually or virtually, in the witness should be permitted to use the paper; and judgments given in the high court of Parliament. ~the question being taken by yeas and nays, passed in Their attendance in that court is solely ministerial; the negative-yeas 16, nays 18." and their answers to questions put to them are not to There, upon the question whether Mr. Hay be regarded as declaratory of the law of Parliament, but as merely consultory responses, in order to fur- should refresh his memory on the stand by nish such matter (to be submitted to the judgment of notes which were not made by himself, which 126 was certainly an incidental'question of law, the The CHIEF JUSTICE. On this question President, instead of undertaking to decide it the yeas are 25 and the nays are 25. The in Chase's case, directly put the question to Chief Justice votes in the affirmative. The the court and had it decided in the first instance Senate will retire for conference. by yea or nay, not expressing any opinion The Senate, with the Chief Justice, thereupon whatever upon that question. (at seven minutes before three o'clock) retired We have nothing further to add. to their conference room for consultation. Mr. EVARTS. I rise, Mr. Chief Justice The Senate having retired, and Senators, to make but a single observa- Mr. SHERMAN submitted the following tion in reference to a position or an argument order: pressed by one of the honorable Managers to Ordered, That under the. rules, and in accordance aid the judgment of the Senate upon the ques. with the precedents in the United States in cases tion submitted to it. That question we under- of impeachment, all questions other than those of order should be submitted to the Senate. stand to be whether, according to the rules of this body, the Chief Justice presiding shall Mr. HENDERSON move d to postpone the determine, preliminarily, interlocutory ques- ent queston the tions of evidence and of law as they arise, present questin orthe purpose of tating up subject to the decision of the Senate upon presentation by any Senator of the questionto might propose an amendment thereto. them. The honorable Manager, Mr. BOUTE Mr. ONNESS called for the yeas and ayL, recognizing the great inconvenience that would on this motion and they were ordered; and being taken resulted-yeas 32, nays 18; as arise in the retarding of the trial from this benllgtakenresulted eas 32, nays 18; as appeal to so numerous a body up6n every in- oows: terlocutory question, while he insists upon the YEAS-Messrs. Anthony, ayard, uckalew Came ron, Cattell, Cole, Corbett, Cragin Davisixon, magnitude and importance of the right de- Doolittle, Edmunds, Fessenden, Fowler, Frelinghuytermination, yet intimates that the Managers sen, Henderson, Hendricks, Johnson, McCregry, will allow the Chief Justice to decide, unless MorrillofVermongNorton, Patterson ofNew Hampwiaowthey siee rasoi to odect. Onlhes shire, Patterson of Tennessee, Pomeroy, Ross, Saulsthey see reason to object. On the part of the bury, Sprague. Trumbull, Van Winkle, Vickers, Wil-, counsel for the President, I have only this to ley, and Williams-32. say: that we shall take from this court the NAYS-Messrs. Chandler, Conkling, Conness, Drake, Ferry, Howard, Howe, Morgan, Morrill of rule as to whether the first preliminary deci- Maine, Mrton, Hoye, Ramsey, Sherman, Stewart, sion is to be made by the Chief Justice or is to Sumner, Thayer Tipton, and Wilson-18. be made by the whole body, and we shall not NOT VOTJING-Messrs. Grimes, Harlan, Wade, submit to the choice of the Managers as to how far that rule shall be departed from. So the motion to postpone was agreed to. Whatever the rule is we shall abide by it. But Mr. HENDERSON submitted the fQllowing if the court determines that in the first instance resolution: the proper appeal is to the whole body on every Resolved, That Rule 7 be amended by substituting interlocutory question, we shall claim as a mat- therefor the following: ter of right and as a matter of course that that The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber, and proceeding the presiding officer on the trial shall direct all the Mr. Manager BOUTWELL. That is con- forms of proceeding while the Senate are sitting for ceded, Mr. President. We do not debate that the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for. point. W And the presiding offieer on the trial may rule all Mr. WILSON. I renew my motion that the questions of evidence andincidentalquestions, which Senate retire for consultation. ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a Mr. THAYER. On that motion I call for formal vote be taken thereon, in which case it shall the yeas and nays. be submitted to the Senate for decision;, or he may, Mr. CAMERON. I hope we shall not retire.. at his option, in the first instance submit any such Several SENATORS. Debate is out of order. question to a vote of the members of the Senate. The CHIEF JUSTICE. The Senator is out Mr. MORRILL, of Maine, moved to amend of order. the proposed rule by striking out the words Mr. CAMERON. Well, I only say that. " which ruling shall stand as the judgment of The question being taken by yeas and nays, the Senate." resulted-yeas 25, nays 25; as follows: After debate, YEAS-'Messrs. Anthony, Buckalew, Cole, Conness, The amendment was rejected. Corbett, Davis, Dixon, Edmunds, Fowler, Grimes Mr. SUMNER moved to amend the resoluHendricks, Howe, Johnson, McCreery. Morrill of tion by adding thereto: Maine, Morrill of Vermont, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, That the Chief Justice of the United States, prePomeroy, Ross, Vickers, Williams, and Wilson-25. siding in the Senate on thetrial of the President of the NAYS-Messrs. Cameron, Cattel, Chandler, Conk- United States, is not a member of the Senate, and ling, Cragin, Doolittle, Drake, Ferry Fessenden, has no authority, under the Constitution, to vote on Frelinghuysen, Henderson, Howard, Morgan, Nye, any question during the trial, and he can pronounce Ramsey, Saulsbury, Sherman, Sprague, Stewart, decision only as the organ of the Senate, with its Sumner, Thayer, Tipton, Trumbull, Van Winkle, assent. and Willey-25. NOT VOTING-Messrs. Bayard, Harlan, Wade, After debate, ard Yates-4. Mr. SUMNER called for the yeas and nays 127 on his amendment, and they were ordered; and Mr. HENDRICKS objected to the reception being taken, resulted-yeas 22, nays 26; as of the proposition, as it did not relate to the follows: matter on which the Senate had retired to conYEAS-Messrs. Cameron, Cattell Chandler, Conk- fer; and he moved that the Senatereturn to the ling, Conness, Corbett, Cragin, Drake, Howard, Mor- Senate Chamber; which motion was agreed to. gan, Morrill of Maine, Morton, Nye, Pomeroy, The Senate returned to its Chamber at Ramsey, Stewart, Sumner, Thayer, Tipton, Trum- eighteen tes pst six o'clock ae at hull, Williams, and Wilson-22. eighteen minutes past six o'clock p. m. bull. Williams, and Wilson —22. NAYS-Messrs. Bayard, Buckalew, Cole, Davis, The CHIEF JUSTICE. The Senate has Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fow- had under consideration the question before it ler, Frelinghuysen, Henderson, Hendricks, Howe, hen it retired Johnson, McCreery, Morrill of Vermont, Norton, w and has directed me to report Patterson of New Hampshire, Patterson of Tennes- the rule adopted, which will be read by the see, Ross, Sherman, Sprague, Van Winkle, Vickers, Secretary. and Willey-26. NOT VOTING-Messrs. Anthony, Grimes, Harlan, The SECRETARY. The seventh rule, as now Saulsbury, Wade, and Yates-6. amended, reads: So the amendnment of Mr. SUMNER was re- The Presiding Officer of the Senate shall direct all jected. necessary preparations in the Senate Chamber, and the presiding officer on the trial shall direct all the Mr. DRAKE moved to amend the resolu forms of proceeding while the Senate are sitting for tionbystriDRAKin moutd l after the or,.t,ut' the purpose of trying an impeachment, and all forms tion by striking out all after the word II that' during the trial not otherwise specially provided for. and inserting.: And the presiding officer on the trial may rule all questions of evidence andincidental questions, which It is the judgment of the Senate that under the ruling shall stand as the judgment of the Senate, Constitution the Chief Justice presiding over the unless some member of the Senate shall ask that a Senate in the pending trial has no privilege of rul- formal vote be taken thereon; in which ease it shall ing questions of law arising thereon, but that all be submitted to the Senate for decision, or he may, such questions should be submitted to a decision by at his option, in the first instance submit any such the Senate alone. question to a vote of the members of the Senate. After debate, The CHIEF JUSTICE. Gentlemen ManMr. DRAKE called for the yeas and nays, agers on the part of the House of Representand they were ordered; and being taken, atives, you will please state your question. resulted-yeas 20, nays 30; as follows: Mr. Manager BUTLER. Will you spare us YEAS-Messrs. Cameron, Cattell, Chandler, Cole, a moment for consultation? The chairman of Conkling, Conness, Drake, Ferry, Howard, Howe, the Managers is out Morgan, Morrill of Maine, Morton, Nye, Ramsey, Mr. TRUMBULL. Mr. President, unless Stewart, Sumner, Thayer, Tipton, and Wilson-20. NAYS-Messrs. Anthony, Bayard, Buckalew, Coa- the Managers desire that we should continue bett, Cragin, Davis, Dixon, Doolittle, Edmunds, Fes- now in session to take immediate action, I senden, Fowler, Frelinghuysen, Henderson, Hend- would propose that the Senate adjourn until ricks, Johnson, McCreery, Morrill of Vermont, Norton, Patterson of New HamPshire, Patterson of Ten- half past twelve o'clock to-morrow. nessee, Pomeroy, Ross, Saulsbury, Sherman, Sprague, Mr. FERRY and others. The rules fix Trumbull, Van Winkle, Vickers, Willey, and Wil- twelve o'clock. liams-30. NOT VOTING-Messrs. Grimes, Harlan, Wade, Mr. TRUMBULL. Very well; until twelve and Yates-4. o'clock. If the Managers desire to submit any So the amendment was rejected. particular action at this moment I will withdraw the motion; if not, I insist upon it. The question recurring on the rule proposed draw the motion; if notIIAMS. I move, firnsist upon it.he by Mr. HENDERSON, after debate, Mr. WILLIAMS. I move, first, that the Mr. FERRY N called for the yeas and nay s, as amended, be printed for the use of the and they were ordered; and being taken, re- The CHIEF JUSTICE. The Senator from sulted in —yeas 31, nays 19; as follows: Oregon moves that the rules, as amended, be YEAS-Messrs. Anthony, Bayard, BuckalewCam. printed for the use of the Senate. eron, Corbett, Cragin. Davis_ Dixon, Doolittle, Edmunds Fessenden, Fowler, Prelinghuysen, Hen-. The question being put,. the motion was derson, Hendricks, Johnson, McCreery, Morrill of agreed to. Vermont, Norton, Patterson of New Hapshire, Mr. TRUMBULL. I now renew my motion Patterson'of Tennessee, Pomeroy, Ross, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, ickers that the Senate, sitting as a court of impeachWilley, and Williams-31. ment, adjourn. NAYS —Messrs. Cattell, Chandler, Cole, Conkling, Mr. Manager BTLER. We have nothing Conness, Drake, Ferry, Howard, Howe, Morgan, Morrill of Maine, Morton, Nye, Ramsey, Stewart, to oppose to the motion. Sumner, Thayer, Tipton, and Wilson-19. The CHIEF JUSTICE. Have the counsel aNOT VO`T4ING-Messrs. Grimes, Harlan, Wade, for the President anything to propose? Messrs. STANBERY and EVPr.TS indicated that So the resolution submitted by Mr. HEN- Messrs. STNBERY and ER DERSON was agreed to. DERSON Swas agreed submito.d trso.The CHIEF JUSTICE. It is moved that Mr. SUMNER submitted the following reso- the Senate,'sitting as a court of impeachment. lution: adjourn until to-morrow at twelve o'clock. Resolved, That the Chief Justice of the United The motion was agreed to; and the Chief States presiding in the Senate on the trial of the Justice declared the Senate, sitting as a court Presidentof the United States is not a member of the Senate, and has no authority under the Consti- of impeachment, adjourned until to-morrow'at tutionto vote on any question during the trial. twelve o'clock. 128 WEDNESDAY, April 1, 1868. you had aconversation with General LorenzomThomas The Chief Justice of the United States en- on the evening of the 21st of February last. State if he said anything as to the means by which he intered the Senate Chamber at five minutes past tended to obtain, or was direct.ed by the President twelve o'clock and took the chair. to obtain, possession of the War Department? If soy The usual proclamation having been made state al he said as nearly as you can. by the Serge ant-at-Arms, JIstiMr. STANBERY. We object, Mr. Chief The Managers of the impeachment on the JustiCe. part of the House of Representatives appeared The CHIEF JUSTICE. Do you desire to and took the seats assigned them. make any observations to the court? and took the seats assigned them. The counsel for the respondent also appeared Mr. STANBERY. We do, sir. The CHIEF JUSTICE. The question will and took their seats. The presence of the House of Representa- be submitted to the Senate. tives was next announced, and the members Mr. HOWARD. What is the question? The CHIEF JUSTICE. The Secretary will of the House, as in Committee of the Whole, The CHIEF JUSTICE. The Secretary will headed by Mr. E. B. WASHBURNE, the chairman read the question again. of the committee, accompanied by the Speaker The Secretary again read the question. and Clerk, entered the Chamber, and were con- Mr. FRELINGUYSEN. r. President dacted to the seats provided for them. desire to submit a question. The CHIEF JUSTICE. The Secretary will read the minutes of the last day's proceedings. read the question submitted bythe Senator The Secretary read the Jorna of the pro from New Jersey [Mr. FRELINGHUYSEN] to the The Secretary read the Journal of the proceedings of the Senate yesterday sitting for Managers. the trial of the impeachment. The Secretary read as follows: M UMNER. M.President,'I send to Do the Managers intend to connect the conversaMr. SUMNER.- Mr. President, I send to tion between the witness and General Thomas with the Chair an order which is in the nature of a the respondent? correction of the Journal. The CHIEF JUSTICE. Are the Managers The CHIEF JUSTICE. The Secretary will prepared to reply to the question? read the order proposed. Mr. Manager BUTLER. Mr. President, if The Secretary read as follows: the point is to be argued, with the leave of the It appearing from the reading of the Journal of Senate we will endeavor to answer that quesyesterday that on a question where the Senate were tion in the argument. equally divided the Chief Justice, presiding on the. Itistobeargued. trial of the President, gave a casting vote, it is hereby declared that, in the jucgment of the Senate, such The honorable Manager will proceed, if he vote was without authority under the Constitution desires. of the United States. Mr. STANBERY. We do not hear the Mr. SUMNER. On that question I ask for answer. the yeas and nays. Mr. Manager BUTLER. The answer is, The yeas and nays were ordered; and being Mr. President, if you will allow me to repeat taken, resulted-yeas 21, nays 27; as follows: it, that, as I understand, the point raised is to YEAS-Mlessrs. Cameron, Chandler, Cole, Conk- be argued on the one side and the other, we'ling, Conness, Cragin, Drake, IHoward, Howe, Mor- will endeavor to answer the questin submitted atn, Morrill'of rMgaiin'eMtortonPomeroy Ramsey, will endeavor to answer the question submitted gan, Morrill of Maine, Morton, Pomeroy Ramsey, Stewart, Sumner, Thayer, Tipton, Trumbull, Wil- by the Senator from New Jersey in the course liams, and Wilson-21. of our argument. NAYS —Messrs. Anthony, Bayard, Buckalew, Cor- r. TRUMBULL. Mr. President, I should bett, Davis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, like to hear thle question read again, as I think Hendricks, Johnson, McCreery, Morrill of Vermont, the answer to the inquiry of the Senator from Norton, Patterson of New Hampshire, Patterson ofquestion propounded by Tennessee, Ross, Sherman, Sprague, Van Winkle, Vickers, and Willey-27. the Managers, as I heard it. NOT VOTING-Messrs.Cattell,Harlan,Nye, Sauls- The CHIEF JUSTICE. The Secretary will bury, Wade, and Yatbs-6.. read the question again. Senators will please So the proposed order was rejected. give their attention. The CI-IEF JUSTICE. Senators, during The Secretary again read the question of the proceedings yesterday a question was sub- Mr. Manager BUTLER. mitted by the Managers on the part of the The CHIEF JUSTICE. Do the Managers impeachment in relation to evidence, and that propose to answer the question of the Senator question was objected to by the counsel for the from New Jersey? President. The Managers will now please to Mr. Manager BUTLER. If there is to be submit that question in writing. no argument, Mr. President, I will answer the Mr. Manager BUTLER presented the ques- question proposed. If there is to be an argution in writing at the Secretary's desk: ment on the part of the counsel for the PresiThe CHIEF JUSTICE. The Secretary will dent, we propose, as a more convenient method, read the question. to answer the question.in the course of our The Secretary read the following question argument, because otherwise we might have to proposed to be put to the witness, WALTER A. make an argument now. I can say that we do BURLEIGH: propose to connect the respondent with this " You said yesterday, in answer to my question, that testimony. 129 The CHIEF JUSTICE. Senators - to charge us with an entirely new offense Mr. STANBERY. Is it in order now, Mr. against a totally different statute, and that is Chief Justice, for us to argue the question? a conspiracy between General Thomas and the The CHIEF JUSTICE. If the counsel President and other persons unknown, by desire to submit any observations to the Sen- " force" in one article, " by intimidation and ate, they may do so. threats" in another, to hinder and prevent Mr. Mr. STANBERY. Mr. Chief Justice and Stanton from holding the office of Secretary Senators, we have at length reached the domain of War, and that in pursuance of that conspirof law; we are no longer to argue questions acy certain acts were done which are not of mere form or modes of procedure, but have named, with intent to violate the conspiracy come at last to a distinct legal question, proper act of July, 1861. to be argued by lawyers and to be considered These are the only charges that have any by lawyers. relevancy to the question which is now put. I The question now, Mr. Chief Justice and need not refer to the other articles, in which Senators, is, whether any foundation is laid, offenses are charged against the President either in the articles or in any testimony yet arising out of his declarations to General Emgiven, why the declarations of General Thomas ory, the speeches made, one at the Executive should be used in evidence against the Presi- Mansion in August, 1866, another at Clevedent. General Thomas is not on trial; it is land on the 3d day of September, 1866, and the President, the President alone, and the another at St. Louis on the 8th of September, testimony to be offered must be testimony that 1866. Forthe presentthey are out of the way. is binding upon him or admissible against Now, what proof has yet been made under him. the first eight articles? The proof is simply, It is agreed that the President was not pres- so far as this question is concerned, the proent on the evening of the 21st of February, duction in evidence of the orders themselves. when General Thomas made these declara- There they are to speak for themselves. As; tions. They were made in his absence. He vet we have not had one particle of proof of had no opportunity of hearing them or contra- what was said by the President, either before dicting them. If they are to be used against or after he gave those orders or at the time him, it is because they were uttered by some that he gave those orders-not one word. one speaking for him, who was authorized by The only foundation now laid for the introhim to make these declarations of his inten- duction of this testimony is the production of tions and his purposes. the orders themselves. The attempt made Now, first of all, what foundation is laid why here is, by the declarations of General Tliomasi the declarations of General Thomas as to what to show with what intent the President issued' he intended to do, or what the President had those orders;.not by producing him here to authorized him to do, should be given in evi- testify what the President told him, but withdence against the President? It will be seen out having him sworn at all, to bind the Presthat by the first article the offense charged ident by his declarations not made under oath; against the President is that he issued a cer- made without the possibility of cross-examintain order to Mr. Stanton for his removal; or- ation or contradiction by the President himself; dering his removal, and adding.that General made as though they are made by the authority Thomas was authorized to receive from him a of the President. transfer of the books, papers, records, and Now, Senators, what foundation is laid to, property in the Department. Now, the of- show such authority, given by the President to fense laid in that article is not as to anything General Thomas, to spea for him as to his that was done under it, but simply that in tent, or even as to General Thomas's intent, itself the mere issuing of that order is the is quite another question. You must which is quite another question. You must gravamen of the offense charged. So much find the foundation in the orders themselves, for the first article.. for as yet you have no other place to look for What i; the second? That on the same day, it. Now, whatare these orders? That issued the 21st ot February, 1868. the Presidentissued to General Thomas is the most material one; a letter of authority to General Thlomas, and but, that I may take the whole, I will read also the gravam.en there is the issuing of that letter that issued and directed to Mr. Stanton hinof authority, not anything done under it. self. He says to Mr. Stanton, by his order of What next? The third article goes upon February 21, 1868: the same letter of authority, and charges the issuing of it to be an offense with intention to SIn: Byvirtueof thepowerandauthoritvested in me as President by the Constitution and laws of violate a certain statute. the United States you are hereby removed from Then we come to the fourth article, which office as Secretary for the Department of War, and charges a conspiracy. Senators will observe your functions as such will terminate upon receipt that in the three first articles the evidence of this communication. that iln the three first articles the evidence f" You will transfer to Brevet Major General Locharged is issuing certain orders, nothing be- renzo Thomas, Adjutant General of the Army, who yond, as in violation either of the Constitution has this day been authorized and empowered to act as Secretary of War ad interim, all records, books, or of the act called the tenure-of-office act. papers, and other public property now in your But by the fourth article the Managers proceed custody and charge." C. I. —9. 130 So much for that. Then the order to Gen- acts, and, under certain circumstances, the eral Thllomas of the same day is: declarations of the agent, made in performance Sin: Hon. Edwin M. Stanton having been this of that authority, not outside of it, but in perday removed friom office as Secretary for the Depart- formance of it, bind the principal. ment of War, you are hereby authorized and em- Now, I ask powered to act as Secretary of War ad interim, and I ask ths honoable court where is will immediately enter upon the discharge of the there any evidence yet establishing anything duties pertaining to that office. like a conspiracy between the President and Mr. Stanton has been instructed to transfer to youof all th e records, books, papers, and other public prop- General Thomas? Where is there any proof erty now in his custody and charge. yet establishing any agency between General Respectfully, yours, ANDREW JOHNSON. Thomas and the President, in which the PresiTo Brcevet Major General LORENZO THOMAS, Adjutant dent was principal and General Thomasthe Gewieral Ultited States8Arrny, WVashington. D. C.' agent, save this letter of authority? I do not There they are; fhey speak for themselves, admit that this letter of authority constitutes orders made by the President to two of his the relation of principal and agent at all. I subordinates; an order directing one of them do not admit that the President is to be bound to vacate his office and to transfer the books by any declarations made by General Thomas and public property in his possession to another on the footing that he is agent of the Presiparty, and the order to that other party to take dent; but if he were, if this were a case strictly possession of the office, receive a transfer of of principal and agent, then I say this letter of the books, and act as Secretary of War ad I authoritygives no-authority to General Thomas interiml. Gentlemen, does that make them to bind his principal beyond the express conspirators? Is that proof of a conspiracy authority so given. or tending to have a conspiracy? Does that The object of this proof, as we are told by mlake General Thomas an agent of the Presi- the learned Manager, is to show that General dent in such a sense as that the President is to Thomas declared that it was his intention and be bound by everything he says and everything the intention of the President, in executingthat he does even within the scope of his agency? authority, to use force, intimidation, and If it makes him his agent, does this letter of threats. Does the authority authorize anyauthority, this written authority, authorize him thing of that sort, even if it were a case of printo do anything but that which lie is commanded cipal and agent? Suppose a principal gives to do-go there and demand possession, gb authority to his agent to go and take possession there and receive a transfer from the person? of a house of his in the occupation of a tenant, Does it authorize him to use force? Does it and to receive from that tenant the delivery of authorize him to go beyond the letter and the the house; does it authorize the agent to go meaning of the authority which is given him? there mante forti to commit an assault and batNot at all. tery upon the tenant, to drive him out vi et Now, in the first place, it must be either on armis, or even scarcely to use the molliter the footing of a conspiracy between General manus? I submit not. Is the principal tobe Thomas and the President or upon the footing made a criminal by the act of his agent acting df a direct agency, in which the President is simply under an authority which purports the principal and General Thomas is the agent, only to give a right of peaceable possession thattlie declarations of General Thomas, either and of surrepder by the consent of the party in as coconspirator or as agent of a principal, possession? Is the principal to be bound by acting within his authority, are to be admitted any excess of authority used, by his agent in in evidence. I do not know any other ground, executing it; or is he, when the authority is in upon which the learned Managers can place writing and does not authorize force to be the admissibility of this hearsay declaration, bound by the declarations of the agent that not under oath, by a party not on the record. force will be used? Which of us would ever be I agree that when a proper foundation is safe in giving any authority to an agent if we laid by proof of a conspiracy in which A, B, are to ble submitted to consequences like these? and C are concerned then the declarations of But, Senators, thlis is not a question of prinany one of the conspirators, made while the cipal and agent. What, I pray you, has the conspiracy is in process, made, too, in further- President done that liheis held to be a conspiraance of the conspiracy, not outside of it, not tor or as a principal giving unlawful authority in reference to any other unlawful act, but in to an agent? Does the lPresident appoint Genreference to the very unlawful act agreed upon, eral Thomas his agent in any individual capamay be admitted.' I concede that, under these city to take possession of an office that belonged circunmstances, the declaration of any one con- to him or of books and papers that were his spirator binds all his fellows, although made property? Not at all. What is the nature of in their absense. So, too, I agree, Senators, this order? It is, according to the accustomed that when an agency is established, either by formula, the designation of an officer, an officec' parolprooforby writing-andwhen established already known to the law, to do what? To by writing that is the measure of the agency, exercise a public duty, to perform the duties and you cannot extend it by parol proof- of a public office. Is the person thus appointed when an agency is constituted either by parol by the President his agent? When he accepts proof or by writing to do a certain thing, the his appointment does he act only under the 131 instructions of the principal, and is he the ager tells us they expect to lay the foundation. agent of the principal to carry out a private Is that enough for the introduction of evidence purpose or to perform a private duty? Cer- which prima facie is inadmissible? Is that tainly not. He at once becomes an officer of enough? It is not enough. the law, with liabilities himself as a public I agree that there are exceptions in cases of officer, liable to removal, liable to impeach- conspiracy, and, perhaps, of agency, to the ment, liable to indictment and prosecution for necessity of the introduction of preliminary anything which he may do in violation of his proof, laying the foundation before witnesses duties as a public officer. are called to state the declarations of a coAre all the officers of the United States who conspirator or of an agent. They are extreme have been appointed just in this way the agents cases and so put in the books, but no such exof the President? When the President gives a treme case is shown here. But we have heard commission, either a permanent one or a tem- no reason why we must in this case reverse the porary one, to fill a vacancy or to fill an office order of testimony and go into that which is during a disability, are the persons so desig- prima facie inadmissible under the assurance nated and appointed his agents, and is he that a foundation is hereafter to be laid. bound by everything they do? If they take a What prevents the gentlemen from laying bribe, is it a bribe to him? If they commit an that foundation? What prevents them from assault and battery, is it an assault and battery showing a conspiracy in the first place? What committed by him? If they exceed their an- prevents them from showing instructions outthority, doeshebecomeliable? Notatall. If side 6f this letter of authority to use force, third persons are injured by them in the exer- intimidation, or threats? What reason is cise of the power which he has given, may there? None whatever is stated. Is it a matthose third persons go back upon the Presi- ter merely at the option of counsel in the introdent as the responsible party under the prin- duction of testimony to begin at the wrong ciple respondeat superior? end, to introduce what is clearly inadmissible There is no idea of principal and agent here; without a foundation, and to say " We will give it is the case of one public officer giving orders you the superstructure first and the foundation to another'Dublic officer. He clothes him, not last?" Does that lie merely in the option of with his authority, but with the authority of the counsel? Was such a thing as that ever heard? law, and the public officer so appointed stands None have ever heard it; and I say, and such under an obligation of oath, not to the princi- are the authorities, that it must be an extreme pal, not to the President, but to the law itself; case, founded upon direct assurance upon the and if he does any act which injures a third professional honor of counsel, before a court person, or which violates any law, it is he that will allow testimony prima facie inadmissible is responsible, not the President who has ap- to be admitted under the statement that herepointed him. after a proper foundation will be laid. Senators, it seems to us that these con- Mr. Manager BUTLER. Mr. President, I clusions are inevitable. I shall scarcely trouble must ask that the usual rule shall be enforced this honorable court, made up so largely of here; that if any authorities are to be cited by lawyers of the greatest eminence, with the the counsel for the President they must be citation of authorities upon a point so clear as cited in their opening, so that we can have this. I understand the learned'Managers to opportunity to reply to. them, and not after I say that they expect hereafter to connect the have replied have authorities cited. If there President with these declarations of General are none I will go on. Thomas. The CHIEF JUSTICE. Such is the unMr. Manager BUTLER. I believe I did not doubted rule. use the word " hereafter." Mr. STANBERY. I think, Mr. Chief JusMr: STANBERY. Does the learned Man- tice, I will allow this question to stand without ager say that he has heretofore done it? the production of authorities. Mr. Mqnager BUTLER. Ionly say now that Mr. Manager BUTLER. Mr. President and I did not say "hereafter." Senators, the gravity of the question presented, Mr. STANBERY. You expect to do it, not being more than the mere decision of a given that you have done it? I do not want to criti- interrogatory, has induced the President's cise the language of the gentleman nor to have counsel to argue it at length, they seeing that mine criticised. What I understood the gen- largely upon this question and the testimony tleman to say, in answer to the question put by adduced under it upon one of the articles of a Senator, was that he did expect to show a this impeachment the fate of their client may connection. If he did not mean that he meant depend. It is a grave question, and therefore nothing; or he meant one thing and said an- I must ask the attention of the Senate and the other. It was to meetthe objection thatas yet presiding officer, as well as I may, to some you have laid no foundation that the question considerations which determine it in my mind. was put to the learned Manager " do you ex- But before I do so I pray leave to sketch the pect to lay a foundation;" and the answer was exact status of the case up to the point at which in the affirmative. Drawn out after one or two the question is produced; and I may say-I repetitions of the question, the honorable Man- trust without offense-that the learned counsel 132 for the President has entirely ignored that to take possession by force, had a right to use status. I take for the evidence of it the prop- the whole Army of the United States to enforce ositions put forwardin the answerof the Pres- the President's order. Therefore, the Presiident, the papers that have been already ad- dent was notified that Mr. Stanton only yielded duced, and the testimony, so far. as we have his office at first to superior force; and so he gone. It.appears, then, that on or about the did wisely and patriotically, because if he had 12th day of August last past, possibly before not yielded, a collision might have been the President conceived the idea of removing brought which would have raised a civil war, Edwin M. Stanton from office at all hazards, which in the language of the late rebels and claiming the power and right to do so against General Thomas, is an "onpleasantness" bethe provisions of the act known as the tenure tween loyal and rebel men. of civil office act, he undertook to suspend him The President knew that Mr. Stanton at under that act. Therefore the decision of this first said, "I will only yield this office to question, in one of its aspects, will decide the superior force." Then Mr. Stanton having great question here at issue this hour. Is that thus yielded it, the General of the Army took act, up to this time, to be treated as a law of the possession, and on the action of the Senate the land, as an act of Congress valid and not to be General vacated it in obedience to the high infringed by any executive officer whatever? behest of the Senate, and Mr. Stanton was Because, if it is a law, then the President ad- reinstated in it in obedience to the high behest mits that he undertook to remove Mr. Stanton of the Senate, and being there he was still in violation of that law, and that he issued the more fortified in his position than at first. order to General Thomas for that purpose, and If he would not yield it except to superior only to violate it; and his palliation is that he force on the 12th of August, 1867, do you.bemeant to make a case for judicial decision, but lieve, Senators, is any man so besotted as to to do so he intended to issue the order to Mr. believe that the President did not know that Thomas, and Thomas was, under it, to act in Mr. Stanton, so reinstated, so fortified, meant violation of the provisions of that act. Am I to hold the office against everything but force? not right upon this proposition? The President had been notified that Stanton That being so, then we have him on his part yielded only to the General of the Army; wieldintending to violate the law; we have him, ing superior force he had seen Stanton put then, issuing an order in violation of the law; back by the high authority of the Senate; he we have him then calling to his aid, to carry had seen Stanton sustained by a vote of the out the violation of that law, an officer of the Senate, declaring that the attempt to remove Army. him was illegal'and unconstitutional; and Now, in the light of that position, what is then, for the purpose of bringing this to an the next thing we find? Wefindthat he issues issue, the President of the United States isan order to Lorenzo Thomas to take possession sued his order to General Thomas, another of the War Department. The learned counsel officer of the Army, " You will immediately for the President says that that is an order in enter upon the discharge of the duties of the the usual form.. I take issue with him. There War Office." What then? He had come to are certain ear-marks about that order which the conclusion to violate the law and take show that it was not in the usual form. It has possession of the War Office; he had come to in it words of imperative command. It is not the conclusion to do that against the law and simply, "you are authorized and empowered in violation of the law; he had sent for to take possession of the War Department;" Thomas, and Thomas had agreed with him to but it is "you will immediately"-all other do that by some means if the President would things being laid aside, at once, whatever may give him the order, and thus we have the oppose —"you will immediately enterupon the agreement between two minds to do an undischarge of the duties of that office." lawful act; and that, I believe, is the definition, Now, we must take another thing which of a conspiracy all over the world. appears in this case beyond all possibility of Let me restate this. You have the determinacavil, and that is, that the President knew at tion on the part of the part of the President to do what had that time that Mr. Stanton from the first, to been declared to be, and is, an unlawful act; wit, on the 12th of August last, claimed the you have Thomas consenting; and you have right not to be put out of that office, and when therefore an agreement of two minds to do an he went out he notified the President solemnly unlawful act; and that makes a conspiracy, so that he only went out in obedience to superior far as I understand the law of conspiracy. So force. To get him out, the President author- that upon that conspiracy we should rest this ized to take possession the General of the evidence under article seven, which alleges Army of the United States; and that, for all thatlegal purposes and for all actual purposes, was didunlawequivalent to using the force of the whole Army "Andrew Johnson" * * did unlawequivalent to using the force of the whole Army fully conspire with one Lorenzo Thomas, with intent,of the United States to take possession of that unlawfully to seize, take, and possess the property office, because if the General of the Army of the United States in the Department of War in thought that the order was legal, he, obeying the custody and charge of Edwin M. Stanton." the orders of his superior, when he was ordered And also under article five, which alleges a 133 like unlawful conspiracy not alleging that in- we shall show that Thomas was then talking tent. about to execute the common purpose. We Then there is another ground upon which asked Mr. BURLEIGH if he was a friend to this evidence is admissible, and that is upon General Thorhas; he said yes; if they were the ground of principal and agent. Let us, if intimate? yes; accustomed to visit backward you please, examine that ground for a few mo- and forward? yes. Governor MOORHEAD has ments. The President claims by his answer already told you that Mr. BURLEIGH was a friend here that every Secretary, every Attorney Gen- of the President. There needed somebody to eral, every executive officer of this Govern- aid in this enterprise; some moral support was ment exists by his will, upon his breath only; wanted in this enterprise; and we propose to that they are all his servants only, and are re- show that General Thomas was endeavoring to sponsible to him alone, not to the Senate or get one of the members of the House of RepCongress or either branch of Congress; and resentatives to support him in the enterprise, he may remove them for such cause as he and was laying out the plan, and that he asked chooses; he appoints them for such cause as he him to go with him the next morning and aid chooses; and he claims this right to be illimit- him in the enterprise, and be there aiding and able and uncontrollable, and he says in his abetting in the enterprise. Such is the testimessage to you of December 12, 1867, that if mony we propose to show, and that is one way any one of his.Secretaries had said to him that in which we propose to connect the President he would not agree with him upon the uncon- with the joint enterprise. Such is the exact stitutionality of the act of March 2, 1867, he condition of things. would have turned him out at once. All this Now, having shown a common object, had passed into history, and Mr. Thomas knew whether a lawful or unlawful one would that as well as anybody else. Now, then,what make no difference as to this point; but, as I is the position and duties of a Secretary of contend, a common, unlawful object, and havWar, whether ad interim or permanent? It ing shown the two parties agreeing upon one is that he- thing, having shown the authority of one to "Shall perform and execute such duties as shall the other to do an act, can we not put in the from time to time be enjoined on or intrusted to him declarations of both parties in regard to that by the President of the United States agreeably to act? Do not the acts of one become the acts Intruted t him greealy tothe Constitution"- of the other?'lake the testimony we put in Intrustedrday. Why did not my learned fiiends tion. object to what Thomas said to Mr. Stanton "Relative to military commissions, or to the land when he demanded the War Office? The or naval forces, ships, or warlike stores of the United States, or such other matters respecting military or President was not there. To use the argunaval affairs as the President of the United States ments of the learned counsel for the President, shallassignto the said Department," * * * * shall assign to the said Department," * * *Thomas was not upon oath; he was acting in "and that the said principal officer shall conduct the business of the said Department in such manner as the President's absence. Why should we put the President of the United States shall from time in the act of Thomas there yesterday? It was to time order or instruct." because he was doing in relation to the thing Therefore, his commission is to do precisely itself. as the President desires him to do about any- Mr. STANBERY. That was within the thing that pertains to the War Office, and he authority. stands, then, as the agent of the principal-to Mr. Manager BUTLER. Ah! that was do what? He was authorized by the President within the authority. How was it within the to obtain possession of the War Office. Was authority? It was within the authority because he authorized to do anything else that we hear the President had commanded him to take of up to that time? No. He was to obtain possession. Now, then, I want to show the possession of the office. Now, what do we means by which he was to take possession. propose to show by this evidence? Having How was that to be done? Why, they say shown that Thomas was authorized to obtain (and only the gravity of the occasion prevents possession of the office; having shown that he me from believing it a stupendous joke) we had agreed with the President to obtain it; should show what he said by calling Thomas. having put in testimony that the two stood to- On the trial of one conspirator call the other gether in the pursuit of one common object, to show the conspiracy I Was that ever done the President wanting Thomas to get in, and in any court upon any question whatever, exThomas wanting to get in, and both agreeing cept one conspirator turns State's evidence or and concerting means together to get in, the king's evidence, as it is called? and Thomas, question is whether, under every rule of law, I believe, is not quite bad enough to do that we are not permitted to shoW the acts and yet. It was never done by intelligent counsel. declarations, however naked these declarations These, then, are the foundations on which may be, of either of these two parties about we stand. Now, what are the authorities for the common object? And the very question receiving these declarations? I hold in my presupposes that we are only to ask the decla- hand Roscoe's Criminal Evidence, and I prorations of Thomas about the common object. pose to cite it upon this point: that we are not But the case does not quite stop here, because bound to put in all our evidence at once, and 134 tha$, by the very acts and declarations of the These three men had engaged in locking a conspirators themselves, we may prove the man up in jail, and weeks afterward one of conspiracy: the defendants made a declaration as to his I read from page 390:' purpose, and that was to oppress the party "The rule, says Mr. Starkie, that oneman isnot to injured by keeping him locked up and putting be affected by the acts and declarations of a stranger, him to bodily inconvenience. rests on the principles of th e p urest j ustice "Jervis, for the defendants, objected that this dec"Acts and declarations of a stranger," you laration of the defendant, Court, ought not to be will observe- received in evidence, because it was made in the "and although the courts, in cases of conspiracy, absence of the other defendants." have, out of convenience, and on account of the diffi- * * * * * * * * * * culty in otherwise proving the guilt of the parties, " GARROW, B3.-I am of opinion that this declaraadmitted the acts and declarations of strangers to be tion of the defendant, Court, is evidence. It is negiven in evidence, in order to establish the fact of a cessary that the plaintiff should connect all the conspiracy, it is to be remembered that this is an defendants as joint trespassers in the fact of imprisinversion of the usual order, for the sake of conven- onment; and, having done so, I must receive in eviience, and that such evidence is, in the result, mate- dence anything that either of the defendants said rial so far only as the assent of the accused to what relative to the trespass, though in the absence of the has been done by others is proved."-2 Stark. Ev., others. So much as to the law. On the hardship of 235, second edition. the case I need only say that if the law were not so, "It has since been held that the prosecutor may a man going to do another an injury might proclaim either prove the conspiracy which renders the acts his malice in the market-place and yet shut-out eviof'the conspirators admissible in evidence, or he may dence of such malice from the consideration of the prove the acts of the different persons, and thus jury by only associating himself in the transaction prove the conspiracy." with other persons a, shade less guilty than himself; And we have attempted to prove the cony and persons may always avoid the declarations of the And we have attempted to prove the con- malice of their codefendants operating against spiracy in the same way. them by taking care not to be concernedinthedoing Again, the authority says: |of things which they cannot afterward justify." "Where, therefore, a party met, which was joined Is not this case precisely in point with ours, by the prisoner the next day, it was held, that di- only a hundred times stronger?. But I maybe rections given by one of the party on the day of their wered that th meeting, as to where they were to go, and for what ans at is an English case. Well, purpose, were admissible, and the case,was said to I have here a United States case, the case of fall within Rex v8. Hunt, 3 B., and Ald., 566, where the United States vs. Gooding, 12 Wheaton; I evidence of drilling at a different place two days shall read from pages 469 and 470. Let me before, and hissing'an obnoxious person, was held receivable." state the case. One Gooding had fitted out at The answer of the learned counsel to the Baltimore a slaver called the General Winderauthority would be to say,'"those were acts." and I may say, in passing, a very proper name I agree; but declarations simply may be proof for it-and having fitted her out he sent her to of such conspiracy. Now, then, if the Senate the West Indies, and there being at the West believe that we have shown any common pur- Indies, before she started on her voyage to pose, which is all that is necessary, between the Africa, the captain undertook to tell a witness President and Thomas, then this authority on what voyage she was going, where she was which we find on page 393 is in point: bound; the evidence offered being: "The cases in which after the existence of a con- "That he, Captain Colt, was at St. Thomas while spiracy is established, and the particular defendants the General Winder was at that island, in September, have been proved to have been parties to it, the acts 1824, and was frequently on board the vessel at that or declarations of other conspirators may be given time; that Captain Hill, the master of the vessel, in evidence against them, have already been con- then and there proposed to the witness to engage on sidered (vide ante, pp. 76-80.) It seems to make Ao board the General Winder as mate for the voyage difference as to the admissibility of this evidence, then in progress, and-described the same to be a voywhether the other conspirators be indicted or not, age to the coast of Africa for slaves, and thence back or tried or not; for the making of them codefend- to Trinidad de Cuba; that he offered to the witness ants would give no additional strength to their dec- seventy dollars per month, and five dollars per head larations as against others." for every prime slave which should be brought to That authority answers the argument of the Cuba; that on the witness inquiring who would see the crew paid in theevent of adisaster attending the learned counsel for the defendant when he voyage, Captain Hill replied,'Uncle John,' meansays Thomas is not here on trial. No; but ing (as the witness understood) John Gooding, the his conspirator is, his master is, his principal defendant." is, and the fact that he is not present makes The defendant being in Baltimore at that no difference on the question of evidence. The time. The first point taken in this case was evidence is admissible because of the mutual that the act of hiring a man to be a mate was agreement. in the scope of his authority; and the second To show that this doctrine stands upon the point was that telling who would pay him was same ground, as well in civil cases as in crim- a declaration of one of the principals, of one inal, I refer next to 2 Carrington and Payne, of the conspirators, if you please, of one party p. 232. This was an action of false imprison- engaged in a jqint transaction with the other. ment against three certain defendants: Upon that the court say: " The plaintiff's counsel wished to give in evidence " Those declarations and explanations are as much that several weeks after all the defendants had within the scope of the authority as the act of hiring locked the plaintiff up in the cage, the defendant, itself. Our opinion of the admissibility of this eviCourt, said,'I will take care that neither of the dence proceeds upon the ground that these were not Wrights shall have a bed to lie on before the end the naked declarations of the master, unaccompanied of six months.' At the time this was said the other with his acts in that capacity, but declarations defendants were not present." coupled with proceedings for the objects of the voy 135 age, and while it was in progress. We give no opinion kept asking men enough to go with him he would upon the ioint whether mere declarations undertil other circumstances would have been admissible." the hand of the law was laid upon him. Therethe hand of the law was laid upon himn. ThereNow, let us see the condition of General fore I respectfully answer the question put by Thomas. IHe had been on the 21st of Febru- the learned Senator that we have connected and ary ordered to take possession " immediately," do expect to connect the President with. this at once. He had gone to a friend of his, Mr. by a series of acts, a series of declarations, a BURLEIGH, and wanted him to aid him in this series of operations which will leave no doubt object. He was hiring a mate, if you please, on the mind of any Senator what this purpose on that voyage, precisely within the case of was. But we claim, further, that there is no Gooding. He was wanting somebody to aid doubt upon any man's mind what the purpose him; and he thereupon describes to BURLEIGH was at that hour. the voyage; that it was to be a slaver's voyage; I desire, in closing, simply to call your atwhat he was to pay; how it was to be received; tention to the opening address of the Attorney how he was to seize the slave; or, in other General-I beg pardon, the learned counsel words, how he is to seize the War Department; for the defendant; he will pardon me, but I and we offer to put these things in evidence by have been so accustomed to meet him in other his declarations. relations that I sometimes forget. He says I have but one authority more, and I will that we have now got to a question of law fit cease troubling the Senate upon this point. I to be argued' by lawyers to. lawyers, implying read from 3 Greenleaf on Evidence, section that all other questions which have been argued ninety-three: before this high court, as he insists upon calling " The evidence in proof of a conspiracy will gen- it, have not been fit to be argued either by erally, from the nature of the case, be'circumstan- It is for you to defend tial.' Though the common design is the essence of lawyers or to lawyers. It is for you to defend the charge, it is not necessary to prove that the de- yourselves from that sort of imputation. I fendants came together and actually agreed in terms had supposed the great questions we had been to have that design and to pursue it by common had sup osed the great questions we ha d been means. [Ifitbe proved that the defeidants purseed arguing were not only fit to be argued by lawby their acts the same object, often by the same yers to lawyers, but by statesmen to statesmen, means, one performingone part and another another by the Representatives of the people to the part of the same, so as to complete it with a view to Senators of the United States. And I insist the attainment of that same object, the jury will be Senators of the United States. And I insist justified in the conclusion that they were engaged in that this question is not one to be narrowed a conspiracy to effect that object." down to the attorney's office, but is to be Almost in the language of this authority the viewed in the light of the law and enlightened object was to get the War Department at all jurisprudence as itwill be administered by the hazards. That is agreed; that is in the Presi- Senate of the United States. dent's answer. It is there said to be a high The question for you to determine is, will constitutional prerogative to do it! They had this evidence aid you, for you are both court been notified that Stanton would hold it by and jury; this is not a case where the court force, as, thank God, up to this hour, he has rule one way and the jury may go another; held it against these conspirators; and being but you are both court and jury-will this evinotified that he would not deliver it except to dence enlighten you if you hear from this Secforce, they then started out to devise ways and retary ad interim as to what he was'doing and means, and we shall show you, andby these very intending to do in this matter, joint enterprise conversations with this very person, Thomas de-'of himself and the President. Will it enlighten dared that if he had not been arrested by the you upon the judgment you are to render'? If intervention of the courts he would have used it will not, then you will say so, and vote that force on the morning when he was there, as it shall not be heard, and the people's case has been shown. will not be brought before the Senate. If, on Now, are we, upon the trial of this issue, to the contrary, it will enlighten you, then I rebp told that the President of the United States spectfully and earnestly urge that it may be can emn)loy men to go to do this, that, and the received. And in this we are fortunate in other, which is illegal, admitted to be illegal, being sustained by the high authority of the unless the law is unconstitutional, and then presiding officer. I had supposed this questurn back upon us and say, " Oh, you cannot tion was ruled and settled yesterday, and hardly put in what my agents said while they were expected to debate it this morning. All I can pursuing this thing,. while they were getting say is, as the decision is made, however much together means to execute my will." Let me I might have objected to the mode in which it illustrate for a moment. This is only to Bun- was made, I respectfully submit stare decisus LEIGH. Suppose Thomas had gone to get the let the decision stand, in the language of the - commander of this department, General Em- rule, as the judgment of the Senate. ory, with his forces. Suppose he had said to Mr. CUR'ITIS. Mr. Chief Justice, I ask to himn, "I want you to come to-morrow to aid have the question propounded- by the honorme and see me take this Department by force," able Managers read. It is long, and consists could we not put that in? Is this objected to of different parts, and I desire it to be disbecause he only asked Mr. BTILEIJGH? If he tinctly understood before I speak to it. 136 The CHIEF JUSTICE. The Secretary will case within one of the exceptions which exist read the question propounded by Mr. Manager in the law; one of these exceptions, as has BUTLER to the witness. been said by my associate counsel, being the The Secretary read as follows: case of principal and agent; the other the " You said yesterday, in answer to my question, case of coconspirators. that you had a conversation with General Lorenzo I do not propose, to go over the argument Thomas on the evening of the 21st of February last. which was so clearly and forcibly put, as it State if he said anything as to the means by which was so clearly and forcibly put, as it he intended to obtain, or was directed by the Presi- seems to me, by my associate, who opened it. dent to obtain, possession of the War Department. I think Senators must have understood perIf so, state what he said.s nearly as you can." fectly well the grounds upon which it is our Mr. CURTIS. Mr. Chief Justice and Sen- intention to rest this objection to the declaraators, you will observe that this question con- tions of General Thomas so far as regards his tainstwo distinct branches. Thefirstinquires own intent, that he was not the agent of the of the witness for declarations of General President, that he received from a superior Thomas respecting his own intent. The second officer an order to do a certain thing, and in inquires of the witness for declarations of Gen- no sense thereby became an agent of that eral Thomas respecting directions given to him superior officer, nor did that superior officer by the President. In reference to the first become accountable for the manner in which branch, that is, the separate and independent he might carry out that order; and that this is intent of General Thomas himself, I am not specially true when the nature of the order is aware that its subject-matter is anywhere put nothing but the designation of one public officer in issue by the articles. General Thomas is to notify another public officer that he has not on trial. It is the President who is on been designated to discharge the duties of the trial. It is his intentions or directions, the office from which the latter has been removed; means, the unlawful means, whichhe is charged in which case whatever this designated person with having adopted and endeavored to carry may do he does on his own account and by into effect, which constitute criminality in those force of his own views of how the authority is articles which relate at all to this subject; and to be carried out unless he has received some therefore it seems to me that it is a sufficient special instructions in regard to the mode of objection to the first part of this question that carrying them out. it relates to a subject-matter wholly immaterial, We submit, then, in the first place, that the and which, if proved by legitimate evidence, intentions of General Thomas are immaterial, ought in no manner to affect the case of the and the President cannot be affected by them; President. The President is not charged here and secondly, if they be material, they must be with any ill intentions or illegal intentions of proved by sworn evidence, and not by hearsay General Thomas; he is charged here with his statements. own illegal intentions; with them alone can he The other part; Senators, of the question be charged; and therefore I respectfully sub- appears to me to admit of even less doubt; mit to Senators that that branch of the question and that part is attempting to inquire of the which seeks to draw into this case evidence of witness what was said by General Thomas rethe intentions of General Thomas, aside from specting directions or instructions given to him instructidns given to him or views communi- by the President, which presents the naked cated to him by the President himself, is utterly case of an attempt to prove an authority of an immaterial, and ought not to be allowed to be agent by the agent's own declarations. The proved by any evidence, whether competent or question is whether the President gave instrucincompetent. tions to General Thomas in regard to the parIn the next place, I submit that the evidence ticular. manner or means by which this order which is offered to prove the intention of Gen- was to be carried out. Upon its face the order eral Thomas, if that fact were in issue here, is intelligible. We understand it to be in the and could, when proved, have any effect upon usual form. There is no allusion made to the the President's case, is not of an admissible exercise of force, threats, or intimidation of character. The intent of a party, as every any kind. Now they propose to superadd to lawyer knows; is a fact, and it is a fact to be this written order, by means of the declarations proved by legal and admissible evidence, just of the agent himself, that he had an authority as much as any other fact. It is natural for a to use threats, intimidationi or force; and no person not a lawyer to say that the true way to lawyer will say that that can be done unless ascertain a man's intent is to take what'he there is first laid the foundation for it byshow- says is his intent; because intent is a state of ing that the two parties were connected tomind, and when that is expressed that expres- gether as coconspirators. I agree that if they sion is fit evidence of it. All that is true; but could show a conspiracy between the President' inasmuch as it is not sworn evidence of it, in- and General Thomas to which these declaraasmuch as it is not given by the man when on tions relate, then the declarations of one of the stand in the presence of the accused and them in reference to the subject-matter of that with opportunity for cross-examination, it is conspiracy would be evidence against the other. no evidence at all, unless you can bring the Now, what is the case as it stands here be 137 fore you, and as is asserted by the honorable and character and operation from any agreeManager himself? He starts out with the ment between them, any concurrence of their proposition that the President in his answer minds by which the two parties assent and has admitted his intention to remove Mr. Stan- agree together so as to accomplish something ton from office. That, he says, was an illegal which without that assent and agreement could intention. That, he says, was an intention to not be done? Is it not as plain as day that be carried out by means of the order given to military obedience is not conspiracy and canGeneral Thomas; and when the President, he not be conspiracy? Is it not as plain as day says, gave that order to General Thomas, and that it is the duty of the subordinate officer General Thomas accepted it and undertook when he receives an order from his commander to execute it, there was an agreement between to execute that order'? them to do an illegal act. What was the ille- My associate [Mr. Evarts] suggests to me gal act which thus far we have got what he that, as is a well-known fact, and will, no calls a conspiracy to do? It was to remove doubt, appear in the course of the proceedings, Mr. Stanton; and, if that be contrary to the when General Grant received an order from tenure-of-office act, that, when accomplished, the President to take this same place, he put may be an illegal act. But is that the illegal it upon the ground of military obedience. Was act which they are now undertaking to prove? that a conspiracy? Senators, there can be no Is that the extent of the conspiracy which they such thing as a conspiracy between the Comarenowundertakingto show? Notat all. They mander-in- Chief and a subordinate officer, arisare passing altogether beyond that. They now ing simply from the fact that the Commanderundertake to say, "We will show that he con- in-Chief issues an order and the subordinate spired with General Thomas to remove Mr. officer obeys it. Therefore I respectfully subStanton by force, threats, or intimidation, and mit that the honorable Managers have not only thus to commit a totally distinct crime under proved not even the conspiracy to remove Mr. the conspiracy act." That is the conspiracy Stanton without force, but- they have offered which they propose to show. Having shown no evidence here tending to prove any cononly an agreement to remove Mr. Stanton, and spiracy at all. It rests exactly where the written starting with that agreement, which of course orders place it; an order from a superior offimakes the entire limits of the conspiracy, as cer to an inferior officer and an assent by him they call it, of which they have given evidence, to execute that order. all circumscribed within this intention merely It has been said by the learned Manager in to remove Mr. Stanton, they now graft on to the course of his argument that we ought to that by a pure and mere assumption a conspir- have objected, if we took this view of the case, acy to remove him by force; and so, having to the declarations made by General Thomas proved a conspiracy to remove him without when he went to the War Department on Satforce, wewill now givein evidence the declara- urday, the 22d of February. We could not tions of these coconspirators to show a conspir- make any objection to what he then said. It acy to remove him with force. I respectfully was competent evidence. He was there in submit they have then traveled out of the limits pursuance of the order given to him by the of the conspiracy which they themselvespretend President. He was doing what the President they have given any evidence of; and as soon authorized him to do, namely, delivering one as they get out of the limits of that conspiracy order to Mr. Stanton, he being for that purpose which they allege and say they have given some merely the messenger of the President; and, proof of, and advance to another and totally having executed that, to take possession under different conspiracy, namely, the conspiracy to the other order. Of course he authorized him turn out Mr. Stanton by force, then they must to demand possession, and he did demand it; give some evidence of that other conspiracy but that demand was as much an act and as before they can use the declarations of either capable of proof and proper to be proved as of the parties to it as evidence against the Pres- any other act. Therefore we could have taken ident. * no such exception; itcould not have come at But, Senators, I do not think this thing all within the range of any of the objections should be left here. It is an entire misconcep- which we now.take. -tion of the relations of these two parties, the The learned Manager relies, also, on certain Commander-in-Chief anda subordinate officer, authorities which he has produced from the one receiving an order from the other, under books. The first is a case stated in Roscoe's any circumstances which appear here, or which Criminal Evidence; page 390, I think, he read there is any evidence here tending to prove, to from, showing that under some circumstances call it a conspiracy. The learned Manager has the acts of coconspirators, even before the said: " If I show an agreement between two person on trial had joined the conspiracy, may persons to do an unlawful act that is a con- be proved. I see no difficulty in that. The spiracy, is it not?" It may be; but when the first thing is to prove a conspiracy, which is Commander-in-Chief gives an order to a subor- a separate and independent fact, or may be dinate officer to do an act, and the subordi- wholly separate and independent from the nate officer goes to do it, is that done by agree- evidence by which you prove the other step, ment between them? Does it derive its force namely, that a particular person joined in it. 138 In that case the Government undertook to show, and Senators, I had occasion to remark yesin the first place, that there was a conspiracy. terday, upon the ruling of the presiding officer They proved it by the assembling together of of the Senate, that the Managers on the part a body of men for the purpose of military of the House had no cause of complaint touchtraining, &c. Having proved that theje was a ing that ruling, which had relation to the introconspiracy, they then took the necessary step duction of this testimony. I said it, Senators, to show that the accused on a subsequent day because I was assured when I did say it that the joined himself in that conspiracy. That was ruling of the presiding officer stands upon all all regular and proper. the authorities, English and American, and If they will take the first step here and in upon that point I challenge to-day any authorsupport of their-articles undertake to show by ity to call in question the ruling that the testievidence a conspiracy between the President mony this morning objected to, and ruled as and General Thomas, when they have done admissible yesterday by the presiding officer, that they may go on and give evidence of the is not admissible. declarations of one or both of them to charge I have listened with due attention to the the other; but until they do I submit that they learned gentlemen who have argued in support cannot give such evidence. of this objection. Adimitting their premises, The case from 2 Carrington and Payne was it might be but just to them to say that their a case of a oint act of three persons falsely conclusions follow; but, Senators, I deny their imprisoning a fourth. There was the con- premises. There is nothing ifi the record that spiracy; there was the false imprisonment, the justifies that they shall assume here, for the illegal act, done in pursuance of the con- purposes of this question, that we are respiracy; and the court decided that a declara- stricted, as was intimated by the learned counsel tion made subsequent to the imprisonment as for the President, to the article which alleges to what the intentions of the parties were and that this conspiracy was to be executed by how they intended to carry it out would be force. There is nothing in this case, as it admissible against the others, all of which falls stands before the Senate, that justifies the easily within the same rule. assumption that the Senate is to be restricted The case from 12 Wheaton was one where in the decision of this question to the other the owner of a ship having authorized the article which alleges that this conspiracy was master to fit out a vessel, the declarations of to be exercised by threats and intimidation. the master were given in evidence to show the There is nothing in the question propounded object and intentions of the voyage. Unques- by my associate to the witness which justifies tionably, if he had made him his agent to carry the assumption made here that the witness is on a slaving voyage he made him his agent to to testify that any force was to be employed at' do all.acts necessary to carry it out. What all, although, if he were so to testify, I claim was the act that was given in evidence? It upon the authorities, and upon all the authorwas an attempt to engage a person to go on a ities, that the testimony is admissible. slave-trading voyage in a subordinate capacity. The Senate will notice that in article five In the course of that attempt he stated to him there is no. averment of force, there is no what the character and purposes of the voyage averment of threat or intimidation. There is were; but it was an act which he was engaged simply an averment in article five of an unlawin, an act within the scope of his authority to ful conspiracy entered into between the accused carry on the voyage and to engage persons to and Lorenzo Thomas to violate the tenure-ofassist him in doing so. This, also, falls easily office act. My associate was right upon all within the scope of the principles upon which authority, and it is conceded, that if two or we rely. more agree together to violate a law of the. We submit, then; to the Senate that neither land it is a conspiracy. That is the point we of these questions should be allowed to be put make here. In article five there is no averto this witness. I ought to say, and I am re- ment of force, nor is any needed; there is no minded by one of my associates to say, that the averment of threat or intimidation, nor is any statement by the honorable Manager that the needed; but there is simply an averment of a answer of the President admits his intention conspiracy entered into between the accused to remove Mr. Stanton from office illegally and Lorenzo Thomas, and other persons unand at all hazards is not true. The honorable known to the House of Representatives to preManager is mistaken if he has so read the an- vent the execution of the tenure-of-office act. swer. The answer distinctly says, in the first That act declares that a removal, appointment, place, that the President believed, after the or employment, made or had, contrary to the greatest consideration, that Mr. Stanton's case act, or an interference, if you please, with the was not within the tenure-of-office act; and provisions of the act and contrary to its requirethe answer further says that he never author- ments, shall be a misdemeanor on the part of ized General Thomas to employ threats, force, any man. Of course, if a combination be or intimidation, and if the honorable Manager entered into between two or more to prevent refers to the answer as his evidence for one its execution, that combination itself amounts purpose he must take it as it stands. to a conspiracy. Mr. Manager BINGHAM. Mr. President The counsel have succeeded most admirably 139 in diverting the attention of Senators from the The conspiracy entered into here between question which underlies the admissibility of these two parties was to prevent the executhis evidence, and which controls it. I refer tion of this law, which is so plain that no man now specifically to article five, upon which, can mistake it; nor can the President, in the among other articles, we claim this question presence of this tribunal, or Lorenzo Thomas. arises which was not referred to by the counsel either, shelter himself by the intimation that for the accused. it was a military order to a subordinate. Are "That said Andrew Johnson, President of the Uni- we to be told in the presence of the Senate that ted States, unmindful of the high duties of his office it is competent for the President of the United and of his oath of office, on the 21st day of February, States either to shelter himself or ny of his in the year of our Lord 1868, and on divers other dayst and times in said year, beforethe25th day of March, subordinates, by issuing to-morrow a military in the year of our Lord 1868, at Washington, in the order, either to Adjutant General Thomas or District of Columbia, did unlawfully conspire with to any other officer of the Army of the United one Lorenzo Thomas, and with other persons to the House of Representatives unknown, to prevent and States, to disperse the Congress of the nation? hinder the execution of an act entitled "An act regu- This is an afterthought, gentlemen of the SenIating the tenure of certain civil offices, "passed ate. It is no military order; it is a letter of March 2,1867, and in pursuance of said conspiracy, did unlawfully attempt to prevent Edwin M. Stan- authority within the express words of the statute ton, then and there being Secretary for the Depart- and in violation of it. The evidence is that ment of War, duly appointed and commissioned un- L der the laws of the United States, from holding said Thomas accepted it and acted upon office, whereby the said Andrew Johnson, Presi- it. The evidence of his action upon it was dent of the United States, did then and there com- given yesterday, and received by the Senate mit and was guilty of a high misdemeanor in office." ~O~. ~~without objection. It is too late to raise the Now, the tenure-of-office act, which is recited question of the competency of this testimony in this article, provides expressly that the per- after there is evidence here tending to show son holding any civil office at the time of its a conspiracy to violate the plain letter of this enactment, who has theretofore been appointed law. by and with the advice and consent of the It is perfectly justifiable, I take it, in this Senate- tribunal for me to say further, and say it upon'" And every person who shall hereafter be ap- my own honor as one of the Managers on the pointed to any such office, and shall become duly part of the House, that we rely, not simply qualified to act therein, is and shall be entitled to hold such office until a successor shall have been in upon the declarations of Lorenzo T homas to like manner appointed and duly qualified." show this purpose of the accused at your Lbar That is to say, all such officers shall hold their to disregard this statute, to violate its plain office until a successor be appointed by and provisions, that the officer thus affirmed by the with the advice and consent of the Senate. The Senate upon suspension shall forthwith enter act then provides that the President of the upon the duties of his office, but we expect by United States shall. during the recess of the the written confession of' the accused himself Senate, not at any other time than during the to show to this Senate this day, or as soon recess of the Senate, in case he is satisfied that thereafter as we can be heard, that it was his any officer is declared, fixed purpose, in any event, to defy "Guilty of misconduct in office or crime, or for any the authority of the Senate and prevent Stanreason shall becomeincapable or legallydisqualified ton from resuming the functions of the office. to perform its duties, in such case, and in no other, There was no reference then made to the inthe President may suspend such officer and designate tervention courts. The accused grasped some suitable person to perform temporarily the duties of such office until the next meeting of the the power in his own hands of repealing the Senate, and until the case shallbe acted upon by the law of the nation, of challenging the power Senate; and such person so designated shall take the f the nation oaths and give the bonds required by law to be taken o o bring him to its bar to answer; and given by the person duly appointed to fill such and now, when we attempt to progress with office; and in such case it shall be the duty of the the trial according to the known and estabPresident, within twenty days after the first day of lished rules of evidence in all courts of jus. such next meeting of the Senate, to report to the Senate such suspension, with the evidence and rea- tice, we are met with the plausible and insons for his action in the case, and the name of the genious-more plausible and more ingenious person so designated to perform the duties of such than sound-remark of the learned counsel office; and if the Senate shall concur in such suspension and advise and consent to the removal of such for the accused who has just taken his seat, officer, they shall so certifyto thePresident, who may that the declaration of one coconspirator canthereupon remove such officer, and, by and with the advice and consent of the Senate, appoint another not be given in evidence against another as to'person to such office. But if the Senate shall refuse his mode of executing it. I state it, perhaps to concur in such suspension, such. officer, so sus- a little more strongly than the counsel stated pended, shall forthwith resume the functions of his Office." it, but that was exactly the significance of his The sixth section of the same act provides: remark. I should like to know whence he derives any such authority. "That every removal, appointment, or employ- derives any such authority. ment, made, had or exercised contrary to the pro- A declaration of a coconspirator made in the visions of this act, and the making, signing, sealing, prosecution of the conspiracy, I venture to countersigning, or issuing of any commission or letter say here upon all authority, is admissible even of authority for or in respect to any such appoint- a ment or employment, shall be deemed,. and are as to the mode in which he would execute and hereby declared to be high misdemeanors." carry out the common design-admissible not 140 simply against himself, but admissible against sel for the accused attach to it. It is not -his coconspirator, admissible against them, simply that they desire (I say it with all renot to establish the original conspiracy, but, spect) that this testimony shall be ruled out; to prove the intent and purpose of the party but they desire in some sort, in some question-.to execute the conspiracy. The conspiracy is able shape, a judgment now, on the part of complete upon all authoritywheneverthe agree- the Senate, upon the main question, whether ment is entered into to violate the law, no Andrew Johnson is guilty of a crime, even matter whether an overt act is ever committed though it be proved hereafter as charged. As afterward in pursuance of it or not; but the I have intimated, it was his purpose to defy the overt acts that are committed afterward by final judgment of the Senate itself and the auany one of the conspirators in pursuance of thority of the law which declares, if he does the conspiracy are evidence against him, and so defy it, his act shall be a high misdemeanor. against his coconspirators. That is precisely That is what is to be signified by this decision the ground upon which the ruling was made of the Senate. It is not simply the incompeyesterday by the presiding officer of the court. tency of this evidence that is looked for, but That is the ground upon which we stand to-day. the insufficiency of the charge in the fifth artiI quite agree with the learned counsel for the cle against the accused which is hoped for by accused that the declaration of a purpose to your decision. do some act independent of the original design I understand it was intimated by one of the of the conspiracy, to commit some substantive, counsel that, if this was a conspiracy, the acceptindependent crime, is evidence against nobody ance by General Grant of the appointment of but the party who makes it; but how can the Secretary of War ad interim was also a conSenate judge that such was the declaration of spiracy. The Senate will see very clearly from Thomas, when not one word has dropped from my reading of the statute, or from my remindthe lips of the witness as to how he intended to ing them, rather, of that which they do know, carry into effect this conspiracy, which was to that this does not follow, and cannot be at all. prevent the execution of this law, and which, It involves a very different question, for the in the language of the accused, as we hope to reason that the statute expressly authorizes the show it here to the Senate, was determined President, for reasons of course satisfactory to upon by himself, in which Lorenzo Thomas himself. during the recess of the Senate, to suswas in perfect accord with him, having volun- pend the Secretary of War, and to appoint tarily entered upon this duty? He did not act a Secretary ad interim, upon the condition, that day, Senators, as Adjutant General of the nevertheless, that he shall, within twenty days United States. He acted as Secretary of War after the next session of the Senate, report his ad interim; so denominated himself in pres- action together with the evidence, and have the ence of the Secretary; and claimed that he was decision of the Senate upon it. He did so act. Secretary of War by virtue of a letter of author- There was no conspiracy in it, and there is none ity which lie carried upon his person. alleged here. He did so act. He did recognize Now we are to be told that because he is not on the obligation of the law. He did avail himself trial before this tribunal his declarations can- of the authority with which it invested him. He not be admitted in evidence, while the counsel did suspend the Secretary of War and appoint themselves read the text going to show that if a Secretary ad interim. He did within twenty they were joined in the record, as he may be days thereafter report the fact to the Senate hereafter, in the event of a certain decision by together with his reasons. The Senate, in purthis tribunal, his declarations would be clearly suance of the act, did pronounce judgment admissible. upon the sufficiency of the causes of suspenThe Senate have it in their power, (and there sion, and reversed, in accordance with the act, is authority for saying that,) sitting as a high the action of the President. The Senate noticourt of impeachment, to apply the reason of flied him of it. In the meantime he enters the rule, although by the order of the proceed- into his combinations, his conspiracies, to defeat ing at the common law a different condition the action of the Senate and to overturn the of things might obtain in which alone it would majesty of the law; and now, when we bring apply. We cannot impeach Lorenzo Thomas him to the bar of the Senate and produce his at all, for the reason that he is not a civil written letter of authority issued to his coofficer of the Government. So we understand conspirator in direct violation of the law, while it. The power of the House of Representa- the Senate was in session, and afterits action Eves does not extend beyond the President, upon this very question, and prove Thomas's vice President, and other civil officers. To act, in pursuance of the conspiracy, at the War be sure he claims to be a civil officer; and he Department asserting the authority to control is one, if the President of the United States that Department, declaring that he would take has power, by this combination with him, to possession of its mails, declaring that he would repeal your statute and to repeal the Constitu- not obey the orders of the Secretary of War, tion of the country. Edwin M. Stanton, who is declared such by the I have thus spoken on this question, Sena- solemn action of the Senate and by the express tors, for the purpose of exposing the signifi- letter of the law; and while we attempt to purcance and importance which I know the coun- sue it further by showing his declarations, 141 coupled with an attempt, as I assert now in the in judgment with them, Mr. President-that we presence of the Senate, to get additional aid in do not deem it our duty to make answer to so the execution of this conspiracy, we are told general a question as that; and it will certainly that it is not competent. occur to the Senate why we should not make I desire to see the authority anywhere recog- answer to it. nized as respectable in a court of justice that, Mr. EVARTS. Mr. Chief Justice, as we when there is evidence tending to show a con- claim on the part of the counselspiracy for the accomplishment of a given pur- Mr. Manager BINGHAM. I rise to aquespose between two or more persons, it is not com- tion here. I understand that we speak here petent upon the trial of any one of the conspira- under a rule of the Senate, as yet at least, that tors to prove the declarations and acts of any requires us to be restricted to an hour on each of his coconspirators, whether living or dead, side. whether on trial or not, made in the prosecu- Mr. STANBERY. And one counsel, if you tion of the common design, no matter what go according to the rule. means he intended to employ. Mr. Manager BINGHAM. No; I do not Now, I beg leave to say that I believe it will understand that. I understand, on the conturn out-as I said before, the Senate will be trary, that the practice heretofore thus far in the judge of that when they hear the evidence, the progress of this trial has been to allow the and they cannot judge of it before-that there counsel to divide their time as they pleased, will be in this conversation between BURLEIGH within but one hour on each side. The point and Thomas enough to indicate to the satisfac- to which I rise now, however, is this: that we tion of Senators that he did not simply desire understand that in a proceeding of this sort the to acquaint him of how this agreement and Managers have always claimed and asserted conspiracy between himself and Johnson was where the point was raised at all, the right to to be executed in the morning, but relying conclude upon all questions that were raised in upon his personal friendship he desired his the progress of the trial. The hour has been presence there on that occasion. If that be so, well nigh expended in this instance on each he was seeking for aid by which to carry into side, as I am told, though I have not taken any effect the original conspiracy and execute it, special note of the time. But we raise the and what was that? To defeat the action of question; and I state that the fact that our the Senate, to defeat the requirement of the time has been exhausted, as I am advised, is law that the Secretary of War should forthwith the only reason why I raise it now; and thus resume the duties of the office and to control we are cut off from any further reply. Our it himself. only object' in raising the question is that we I think that I have said all that it is needful shall not be deemed to have waived it, because for me to say. I leave the question for the we are advised that it was settled years ago in decision of the Senate, perfectly assured that Melville's case by the lord chancellor prethey will hear first and decide afterward. It siding and by the peers that the Managers is certainly very competent for the Senate, as it might waive their privilege by their silence. is competent for anlly court of justice in the Mr. Manager BUTLER. We have the affirmtrial of cases where questions of doubt arise, ative. to hear the evidence, and, where they them- Mr. STANBERY. On this question? Oh, selves are the judges both of the law and the no. fact, to dismiss so much of it as they may find Mr. Manager BINGHAM. We have made incompetent, if there be any of it incompetent. the proposition to introduce the proof, but the I insist upon it that there is no word of this tes- objection to its admissibility comes from the timony which upon anyjust rule of evidence can othier side. for a moment be questioned or challenged by The CHIEF JUSTICE. Do the Managers anybody. object to the counsel for the President proMr. JOHNSON. Mr. Chief Justice, I de- ceeding? sire the bonorable Managers to answer two Mr. Manager BINGHAM. We only raise questions which I send to the Chair. the question to save our right of being heard The CHIEFJUSTICE. The Secretary will in reply; and, as I stated before, the only reason read the questions propounded by the Senator we object now is that we understand. without from Maryland. -notice given to us, that our hour has been exThe Secretary read as follows: hausted. Therefore we object. The honorable Managers are requested to say Mr. EVARTS. Mr. Chief Justice and Senwhether evidence hereafterwill be produced to show- atorsFirst. That the President, before the timewhen the The CHIEF JUSTICE. Before the coundeclarations of Thomas which they propose to prove Th e CHIEF JUSTICE. Before t were made, authorized him to obtain possession of sel proceeds the Chair desires to state to the the office by force or threats, or intimidation, if Senate, and obtain their judgment upon the necessary; or, Secondly, If not, that the President had knowledge construction of this rule. In the present case, that such declarations had been made and approved with the consent of the Senate, the Chief Jusof them. tice will not apply the rule, but pursue the Mr. Manager BINGHAMI. I am instructed course which has been heretofore pursued, of by my associates to say-and I am in accord allowing each counsel an hour and not limiting 142 the number of persons speaking, hbut for future The CHIEF JUSTICE. The Chair sees guidance the Chief Justice would like to take nothing in the seventh rule which requires the sense of the Senate, and will as soon as this question to be taken by yeas and nays this discussion is closed; or he will take it now unless they are demanded in the usual mode if any Senator desires it. by one fifth of the Senators present. Senators, Mr. Manager BUTLER. Will the presiding you who are of opinion that the limitation in officer allow me a single observation here? the twentieth rule applies to the whole number The CHIEF' JUSTlCE. Certainly. of persons to argue will please say ay, and Mr. Manager BUTLER. It is this: that I the contrary opinion no. limited myself expressly, and divided my time The question being put, it was decided in with my brother Manager, in the argument, and the affirmative nem. con. left out many things that I should have On- The CHIEF JUSTICE. The Senate decides deavored to address to the Senate, upon the that the limitation of one hour has reference understanding of the rule that we could only to the whole number of persons to speak on have an hour on a side. Tlhe rule said so, and each side. and not to each person severally; I supposed it meant what it said. Now, if the and will apply the rule as thus construed. presiding officer and the Senate shall allow Mr. CONKLING. Mr. President, I move the gentlemen on the other side to have an hour that the counsel for the President, having been each, there will have been an administration under misapprehension as to the application of the rule which is exceedingly onerous upon of this rule, owing to the suggestion of the us, and which we ought to have been notified Chair, have permission in this instance to subof before; and we should like to know whether mit any additional remarks which they may we caf ever have a conclusion on one of these wish to submit. questions, which is our right and the right of Mr. TRUMBULL. Mr. President, before the people of the United States. that motion is put I desire to inquire whether Mr. CONNESS. Mr. President, I ask for the counsel for the President have exhausted the application of the rule. their hour. The CHIEF JUSTICE. Senators, the Chair The CHIEF JUSTICE. They have. will state the question to the Senate. The twen- Mr. THAYER. Mr. President, I hope the tieth rule provides that — Senator from New York-. "All preliminary or interlocutory questions and The CHIEF JUSTICE. Debate is not in all motions shall be argued for not exceeding one order. hour on each side, unless the Senate shall, by order, Mr. THAYER. I desire to submit an eamendment to the motion of the Senator from The twenty-first rule-provides: New York. "The case on each side shall be opened by one The CHIEF JUSTICE. The Senator will person. The final argument on the merits may be send his amendment to the Chair in writing. made by two persons on each side, (unless otherwise ordered by the Senate upon application for that pur- Mr. EVARTS. Mr. Chief Justice, perhaps pose,) and the argument shall be opened and closed I may be allowed to say that we do not underon the part of the House of Representatives." stand that as yet on our side we have tranOn looking at these two rules together, the scended the twentieth rule, We have not occuChief Justice was under the impression that it pied an hour in debate on our side of the was intended by the twentieth rule to limit the question. time, and not limit the persons; whereas. by the The CHIEF JUSTICE. The Chief Justice twenty-first rule, it was intended to limit the thinks that the counsel for the defendant have number of persons and leave the time unlim- occupied one hour. ited; and he has acted upon that construction. Mr. EVARTS., Subject, of course, to the He will now, with the leave of the Senate, sub- computation of the Chair. If the hour has mit to them the question: Does the twentieth expired I was not aware of it. I do not desire, rule limit the time without respect to the num- nor do my associates desire, that we should ber of persons? Upon that question the Chair transcend the rule. We supposed we had will take the sense of the Senate. some moments of the hour unoccupied. I Mr. DRAKE. The yeas and nays are re- rose with the intention, however, of claiming, quired, I suggest, Mr. President. on the part of the counsel for the President, The CHIEFJUSTICE. Theyliave notbeen the right of closing as well as opening accordrequired as yet. ing to the ordinary rules of interlocutory disMr. DRAKE. I suggest now this point of cussion. order: that all orders and decisions must, since The CHIEF JUSTICE. That question is the change made in the seventh rule yesterday, not at present before the Senate. be taken by yeas and nays; that there is no Mr. CONKLING. After the suggestion of provision now existing in the rules for putting the counsel I withdraw my motion. a question to the Senate without a division; The CHIEF JUSTICE. The Secretary will that that is struck out; and that the twenty- read the question proposed by Mr. Manager third rule requires that "all the orders and BUT.LER. decisions shall be made and had by yeas and The Secretary read as follows: nays."' You said yesterday, in answer to my question, 143 that you had a conversation with General Lorenzo whether evidence hereafter will be produced to Thomas on the evening of the 21st of February last. showState if he said anything as to the means by which 1. That the President before the time when the he intended to obtain, or was directed by the Presi- declarations of Thomas which they propose to prove dent to obtain, possession of the Wa.r Department? were made authorized him to obtain possession of If so, state all he said as nearly as you can. the office by force, or threats, or intimidation, if ne1r.J UTNa now ssacessary; or, Mr. JOHNSON. I ask now that the ques- 2. If not, that the President had knowledge that tion I sent to the Chair be read. such declarations had been made and approved of The CHIEF JUSTICE. The question before them. the Senate now is, Shall the question pro- SeveralSENATORS. Questionl Questionl pounded by Mr. Manager BUTLER be put to The CHIEF JUSTICE. Senatorsthe witness? Mr. DR'AKE. I call for the yeas and nays, Mr. DRAKE. On that question the yeas and let us see ifthe Senate will not order them. and nays must be taken under the rules, I The yeas and nays were ordered; and being submit. taken, resulted-yeas 39, nays 11; as follows: Mr. EDMUNDS and others. No, no. YEAS —Messrs. Anthony, Cameron, Cattell, ChandMr. DRAKE. It is so, sir. ler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Mr. EDMUNDS. It is not so. Edmunds, Ferry, Fessenden. Fowler, Frelinghuysen, The CHIEF JUSTICE. Upon the question Grimes, Henderson, Howard, Howe, Morgan, MorrilI of Maine, Morrill of Vermont, Morton, Nye, Patterof order raised by the Senator from Missouri, son ofNew vampshire, Pomeroy, Ramsey, Ross. Sherthe Chair is of opinion that he may submit man, Sprague, Stewart, Sumner, Thayer, Tipton, this question to the Senate without having the Trumbull, Van Winkle, Willey, Williams, and Wilyeas and nays taken, unless the yeas and nays NAYS-Messrs. hayard, Buckalew, Davis, Dixon, are demaaned by one fifth of the members Doolittle, Hendricks, Johnson, McCreery, Norton, present. Patterson of Tennessee, and Vickers-11. NOT VOTING-Messrs. Harlan, Saulsbury, Wade, Mr. TRUMBULL. I should like to hear and Yates —4. the seventh rnle read as amended. The CHIeF JUSTICE. The Secretary will The CHIEF JUSTICE. On this question the TeadC the rule. yeas are 39, and the nays 11. So the Senate The Secretary read as follows: decides that the question proposed by Mr. Man~The Screvreadas ollws:ager BUTLER shall be put to the witness. "VII. The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Hon. WALTERF A. BURLEIGH resumed the Chamber, and the presiding officer on the trial shall stand, and his examination was continued. direct all the forms of proceeding while the Senatetand, and his examination was continued. are sitting for the purpose of trying an impeach- By Mr. 2Manager BUTLER: ment, and all fortes during the trial not otherwise Question. You said yesterday, in answer to specially provided for. And the presiding officer on my question, that yo had a conversation ith the trial may rule all questions of evidence and inci-my question, that you had a conversation with dental questions, which ruling shall stand as the General Lorenzo Thomas on the evening of judgment of the Senate. unless some member of the the 21st of February last. State if he said Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for anything as to the means by which he intended decision; or he may, at his option, in the first to obtain or was directed by the President to instance, submit any such question to a vote of the obtain possession of the War Department? If members of the Senate." so, state all he said, as nearly as you can? Mr. JOHNSON. The questions that I sub- Alswer. On the evening of the 21st of mitted. —. February last, I learned that General Thomas The CHIEF JUSTICE. Debate is not in had been appointed Secretary of War ad inorder. terim, I think while at the Metropolitan Hotel. Mr. JOHNSON. I am not about to debate. I invited Mr. Leonard Smith, of Leavenworth. The questions that I submitted were not, as I Kansas, to go with me up to his house and see think, heard byall the members of the Senate. him. We took a carriage and went up. I I mean the questions which the honorable found the General there getting ready to go Managers thought it their duty to decline to out with his daughters to spend the evening at answer. I ask that they be again read before some place of amusement. I told him I would the vote is taken. not detain him if he was going out; but he inThe CHIEF JUSTICE. The questions sub- sisted on my sitting down, and I sat down for mitted by the Senator from Maryland will be a few moments. I told him thatIhadlearned again read. he had been appointed Secretary of War. He Mr. Manager BOUT WELL. MaytheMan- said he had; that he had been appointed that agers be allowed to suggest that the Managers day, I think; that after receiving his appointheard the questions and respectfully declined to ment from the President he went to the War answer theim? It seems to the Managers, also, Office to show his authority or his appointment somewhat in the nature of an argument upon to Secretary Stanton, and also his order to take the questions involved. possession of the office; that the Secretary reMr. JOHNSON. Read the question. marked to hfm that he supposed he would give The CHIEF JUSTICE. The Secretary will him time to remove his personal effects or read the question. his private papers, somethingto that effect; and The Secretary read as follows: reply was "certainly. " He said that in a short The honorable Manaogers are requested to say time the Secretary asked him if he wouwd give 144 him a copy of his order, and he replied " cer- Mr. EVARTS. That we object to. What tainly," and gave it to him. He said that it date do you fix that inquiry as applying to, Mr. was no more than right to give him time to BUTLER? take out his personal effects. I asked him Mr. Manager BUTLER. I believe he was when he was going to assume the duties of the restored by the President to the Adjutant Genoffice. He remarked that he should take pos- eral's office about a week, if I remember session the next morning at ten o'clock, which aright-you will correct me if I am wrongwould be the 22d; and I think in that con- before he was made Secretary ad interim; and nection he stated that he had issued some order it was within that week that he made these in regard to the observance of the day; but of declarations which I now offer. that I am not quite sure. I remarked to him Mr. EVARTS. Your inquiry, then, is for that I should be up at that end of the avenue declarations made antecedent to the action of the next day, and he asked me to come in and the President of which you have given evidence? see him. I asked him where I would find him, Mr. Manager BUTLER. My inquiry is not and he said in the Secretary's room up-stairs. for declarations. My inquiry is for attempts on I told him I would be there. Said he, " Be his part to seduce the officers of the War Dethere punctual at ten o'clock." Said I, " You partment to his allegiance by telling them what are going to take possession to-morrow? " he would do for them when he came in over ". Yes." Said I, " Suppose Stanton objects them, precisely as Absalom sat at the gate of to it, resists." "' Well," said he, " I expect Israel and attempted to seduce the people from to meet force by force" or "use force." their allegiance to David, the king, by telling Mr. CONKLING. Repeat that. them what he would do for them Then he got The WITNESS. I asked him what he would to be king. [Laughter.] do if Stanton objected or resisted. He said he Mr. EVARTS. Do you propose that in your would use force or resort to force. Said I, question, about Absalom? "Suppose he bars the doors?" His reply was, Mr. Manager BUTLER. No, sir; I put that " I will break them down." I think that was in my illustration. [Laughter.] about all the conversation that we had there The CHIEF JUSTICE. Do the counselfor at that time in that connection. the President object to the question? By Mr. Manager BUTLER: Mr. EVARTS. We object. Question. Did he say anything to you about Mr. Manager BUTLER Shall I reduce it being there at the time? writing? Answer. He told me to be there at ten o' clock, The CHIEF JUSICE. Yes, sr. if I came. Mr. EDMUNDS, (at three o'clock p. m.) Question. Was there anything said further in I move that the Senate sitting on this trial take Question. Was there anything said further in a recess for ffteen minutes. the conversation that you remember, by you to The motion was agreed to. him, as to what purpose you would be there fors? The CHIEF JUSTICE resumed the chair Answer. Well, to witness the performance; at three o'clock and fifteen minutes, and called to see him take possession of the office; noth- the Senate to order. ing more than that. Hon. WALTER A. BURLEIGH'S examination Question. Were you up there at the office at resumed: any time before he assumed the duties of Sec- Mr. Manager BUTLER. With the Presiretary ad interim after he assumed the duties dent's leave, I will withdraw the question I of Adjutant General? put for a moment, in order to put another The WITNESS. At the Secretary's office? which I think will not be objected to. [To Mr. Manager BUTLER. At the Adjutant the witness.] I observe, Mr. BURLEIGH —Idid General's office? not observe at the moment, but I have observed Answer. Yes, sir. I have frequently been since-that you did not answer one part of my there. first question to day, which was, whether anyMr. CURTIS, (to Mr. Manager BUTLER.) thing was said by Thomas at that conversation Will you repeat the question? as to what orders he had received from the Mr. Manager BUTLER. The question is President? whether you were at the Adjutant General's Mr. EVARTS. Thatis covered by ourpreoffice after General Thomas assumed the duties vious objection. of Adjutant General and before he attempted Mr. Manager BUTLER. Certainly; it is to assume the duties of Secretary ad interim. the same thing; part of the same question. You say you were. [To the witness.] Will you answer? Answer. Yes, sir; I was there several times; Answer. During the conversation General I do not recollect how many; but two or three Thomas, after stating, in reply to my inquiry; times. that he would use force if necessary, stated that Question. Did you hear him saying anything he had been required or ordered by the Presto the officers and clerks of the Department ident to take charge of the War Department, there as to what his intention was when he and he was bound to obey the President as his came in command? superior or superior officer. 145 Question. Did that come in before or after ficiently virulent toward Mr. Stanton for having he spoke of force in the conversation? suspended him from the office of Adjutant GenAnswer. It was in connection with the force, eral, the President then is ready to appoint and it was repeated, also, in connection with him Secretary ad interim, which he does within the breaking of the door to which I have al- two or three days thereafter. luded. I thought I mentionedit; but perhaps We charge that the whole procedure shows I did not. the conspiracy. Here is the taking up of this Mr. Manager BUTLER. I now offer the disgraced officer and restoring him to a position question which was objected to. in the War Office when he was a known enemy The CHIEF JUSTICE. The Secretary will of Mr. Stanton's, feeling aggrieved, undoubtread the question. edly, that Mr. Stanton had deposed him, and The Secretary read as follows: putting him in there so that he might haveQuestion. Shortly before this conversation about some official station; and then, after having which you have testified,:and after the President re- done that, Mr. Thomas goes to seducing clerks stored Major General Thomas to the office of Adju- to get them read to receive him when he taut General, if you know the fact that he was so ready to receive him when he restored, were you present in the War Department should be brought into the War Office itself as and did you hear Thomas make any statements to its head. Now, I propose to show his acts, the officers and clerks, or either of them. belonging the acts of oneof these coconspirators, clusto the War Office as to the rules and orders of Mr. Stanton or of the office which he, Thomas, would tering about the point of time just before the revoke, relax, or rescind in favor of such officers and period when he was going to break down the employ's when he had control of the affairs therein? doors of this office with crowbars and axes If so, state when, as near as you can, it was such conversation occurred, and state all he said as nearly and force, as has been testified as he said he as you can? was, that he was trying to seduce the clerks Mr. EVARTS. The counsel for the Presi- and employ~s from their allegiance. We insist dent object to that question as irrelevant and it is all a part of one transaction, and entirely immaterial to any issue in this cause, and as comes'within the ruling which has just been not to be brought in evidence against the Pres- made. I believe I have stated the matter as ident by any support given by the testimony the Managers desired I should. already in, which would, under any ruling of Mr. EVARTS. The question which led to this court, or on any principle of law, permit the introduction of this witness' statements of these declarations or statements of General General Thomas's statements to him, of his inThomas made to the clerks of the War Depart- tentions, and of the President's instructions to ment antecedent to the time of the issue of him, General Thomas, was based upon the the orders by the President, which are in evi- claim that the order of the President of the 21st denuce, as to what he, Thomas, would do when of February, upon Mr. Stanton forremoval, and he, Thomas, if at all, should become Secretary upon General Thomas to take possession of of War. the office, created and proved a conspiracy; Mr. Manager BUTLER. Mr. President, I and that thereafter, upon that proof, declado not desire to argue this question, for the rations and intentions were to be given in reason that I think it falls within the question evidence. That step has been gained, and, in last discussed. If Thomas, as was the ground the judgment of this honorable court, in conwe- put the last question upon, was a cocon- formity with the rules of law and of evidence. spirator with the President, how can either my That being gained, it is similarly argued that learned friends on the other or the Senate know if, on a conspiracy proved, you can introduce when that conspiracy commenced? You will declarations made thereafter, by the same rule observe the question carries with it this state you can introduce declarations made theretoof facts: Thomas had been removed from the fore; and that is the only argument which is office of Adjutant General for many years under presented to the court for the admission of President Lincoln under the administration of this evidence. Mr. Stanton of the War Office. That is a fact So far as the statements of the learned Manknown to. all men who know the history of the ager relate to the office, the position, the charwar. Just before he made him Secretary of acter, and the conduct of General Thomas, it Warad interim the President restored Thomas is sufficient for me to say that not one particle to the War Office as the Adjutant General of the of evidence has been given in this cause bearArmy. That was the first step to get him in ing upon any one of those topics. If General condition to make a Secretary of War of him. Thomas has been a disgraced officer; if these That was the first performance of the Presi- aspersions, these revilings are just, they are dent, the first act in the drama. He had to not justified by any evidence before this court. take a disgraced officer, and take away his dis- Anl if, as matter of fact, applicable to the grace, and put him into the Adjutant General's situation upon which this proof is sought to office, from which he had been by the action be introduced, the former employments of of President Lincoln and Mr. Stantop suspended General Thomas and the recent restoration of for years, in order to get a fit instrument on, him to the active duties of Adjutant General which to operate; get him in condition. That are pertinent, let them be proved; and then was part of the training for the next stage. we shall have at least the basis of fact of GenHaving got him in that condition, he being suf- eral Thomas's previous relations to the War C. I. —10. 146 Department, to AMr. Stanton, and to the office it were so framed as not in probability to conof Adjutant General. nect itself with the transaction, it ought notto And, now, having pointed out to this honor- be received; but the question is so restrictedable court that the declarations sought to be and we do not stand here to claim it unless it given in evidence of General Thomas to affect falls out on the evidence that it is nearly conthe President with his intentions, are confess- nected in point of time with the operations of edly of a period antecedent to the date to these parties-and the testimony itself manwhich any evidence whatever before this court ifestly, as is explained by the Manager on the brings the President and General Thomas in part of the House who has put the question, connection, I might leave it safely there. But indicates a desire and purpose on the part of what is there in the nature of the general proof Thomas to make his arrangements with the sought to be introduced that should affect the employ6s of the War Department. President of the United States with any respon- The CHIEF JUSTICE. The Chief Justice sibility for these general and vague statements is of opinion that no sufficient foundation has of an officer of what he might or could or been laid for the introduction of this testiwould do, if thereafter he should come into mony. He will submit the question to the Senthe possession of power over the Department? ate with great pleasure, if any Senator desires Mr. Manager BINGHAM. I desire to say it. The question is ruled to be inadmissible. a word or two in reply. I am willing to con- Mr. HOWARD. Mr. Presidentcede that any question beyond what may have Mr. Manager BUTLER. I respectfully — been said by one who is shown to have entered The CHIEF JUSTICE. The Senator from into a conspiracy before the transaction is not Michigan. Does the Senator desire the quesadmissible. I concede it, however, subject to tion to be taken by the Senate? this exception: that the Senate being the triers Mr. HOWARD. Yes, Mr. President. of the fact as well as of the law, will remember Mr. Manager BUTLER. I was about rising that the rule of evidence has been so extended *to ask the Senate if they would not relax the on very similar occasions in courts of justice rule, and when the Managers on the part of as to allow of declarations of this sort so shortly the House of Representatives and of the peoanterior to the time in which the conspiracy is ple have a question which they deem of conshown to have been actually entered into to go sequence to their case allow that to be put to to the jury and allow them to determine what the Senate upon the motion of the House of weight ought to be attached to them. That is Representatives. the principle upon which the question is put. The CHIEF JUSTICE. The Secretary It is qualified by the words " shortly before." will read the question. Suppose it were within two or three days, and The Secretary read as follows: the act done on the part of the coconspirator was Question. Shortly before this conversation about an act tending to bring about the result sought which you have testified, and after the President reto be accomplished by that which was after- stored Major General Thomas to the office of Adjuwar mutuallypagreed une e them; whichw s atant General, if you know the fact that he was so ward mutually agreed upon between them; is restored, were you present in the War Department, there any one here to doubt that it is evidence and did you hear Thomas make any statements to tending to show that beyond the facts, so far as the officers and clerks, or either of them, belonging to the War Office, as to the rules and orders of Mr. they have been traced, some understanding, Stanton or of the office which he, Thomas, would some arrangement was entered into, and, if revoke, relax,or rescind in favor of such officers and you please, a voluntary one, on the part of the`mployes when he had control of the affairs therein? If so, state as near as you can when it was such conman who afterward became by solemn agree- versation occurred, and state all he said as nearly as ment a party to the conspiracy-a voluntary act you can. committed on his part in order to commend The CHIEF JUSTICE. The question is, him to the chief in the conspiracy itself. The Shall the question proposed by Mr. Manager general rule as stated in the book, would admit, BUTLER be put to the witness? I am satisfied, of that latitude of construction. Mr. HOWARD. On that question I ask for I read from Roscoe' s Criminal Evidence, p. 88: the yeas and nays. "The evidence in conspiracy is wider than, per- The yeas and nays were ordered; and being haps, in any other case, other principles as well as taken, resulted-yeas 28, nays 22; as follows: that under discussion tending to give greater latitude in proving this offense. Taken by themselves the YEAS-Messrs.Anthony,Cameron,Cattell,Chandacts of a conspiracy are rarely of an unequivocally ]er, Cole, Coleng, Conness, Corbett, Cragin, Drake, guilty character, and they canl only be properly esti-, Henderson, Howard, Howe, Morgan, Morrill of YVe - mated when connected with all the sutrrounding cir- mont, Morton, Nye, Patterson of New HIampshirc, cumstances. itPomeroy, Ramsey, Ross, Sprague, Stewart, Sumner, " Not only, as in the cases before mentioned, may Thayer, Tipton, Trumbull, and Wilson-28.' the acts and declarations of the prisoner himself on NAYS-Messrs. Bayard, Buckalew, Davis, Dixon, formerocecasions be admitted when referable to the Doolittle, Edmunds, Ferry, Fessenden, Fowler, Freroint in issue, but also the acts and declarations of linghuysen, Grimes, Hendricks, Johnson, McCreery, otner ipersons" — Morrill of Maine, Norton, Patterson of Tennessee, Sherman, Van Winkle, Vickers, Willey, and WilMeaning, of course, on former occasions, liams-22., supplying the ellipsis- NOT VOTING-Messrs. Harlan, Saulsbury, Wade, "with whom he has conspired, may, if referable to and Yates-4. the issue, be given in evidence against him." The CHIEF JUSTICE. On this question That is the general rule: and yet I admit if the yeas are 28 and the nays 22. So the Sen 147 ate decides that the question shall be put to all of the heads or officers in charge of the difthe witness. ferent departments of the office come in with Mr. Manager BUTLER. With the leave of their clerks that morning, and he wanted to the President, I will put this question by por- address them. He stated that the rules which tions. [To the witness.] Shortly before the had been adopted for the government of the conversation about which you have testified, clerks by his predecessor were of a very arbiand after the President restored Major General trary character, and he proposed to relax them. Thomas to the office of Adjutant General, if I suggested to him that perhaps I had better you know the fact that he was so restored, go. Said he,." No; not at all; remain;" and were you present in the War Department? I sat down, and he had some three or four offiAnswer. Yes, sir; I was. cers-four or five perhaps-come in, and By the CHIEF JUSTICE: each one brought in a room-full of clerks, and Question. Did you know the fact that he he made an address to each company as they was so restored? came in, stating to them that he did not proAnswer. He told me so. He was acting in pose to hold them strictly to the letter of the the office. instructions; but when they wanted to go out By Mr. Manager BUTLER: they could go out, and when they wanted to Question. Did you hear Thomas make any come in they could come in; that he regarded statement to the officers and clerks, or either them all as gentlemen, and supposed they of them, belonging to the War Office, as to would do their duty, and he should require the rules and orders of Mr. Stanton, or of the them to do their duty; but so far as their little office, which he, Thomas, would revoke, re- indulgences were concerned-I suppose such lax, or rescind in favor of such officers and as going out across the street or something of employ6s when he had control therein? If that kind-he did not propose to interfere with so, state when this conversation was as near them; all he expected was that they would do as you can. their duty. I waited until he concluded, and Answer. Soon after General Thomas was we took the walk, and I came away. I rerestored to his position as Adjutant General I marked to the General he would make a very had occasion to go to his office to transact fine politician. some business with him; and after transacting Question. Did he say anything as to the the business I invited him to take a short walk character of the orders that existed before? with me. The general remarked that he had Answer. He said that they were very harsh made an arrangement and arbitrary-nothing more than that, that I Mr. EVARTS. Mr. BUTLER, your question know of-and he proposed to relax them. was "when?" Question. You have told us that you had Mr. Manager BUTLER, (to the witness.) known General Thomas for some time. Had When was this? he been off duty as Adjutant General of the Answer. Soon after General Thomas's res- Army for sometime before this? tOration to office as Adjutant General. Answer. Yes, sir. Question. How long before the time when Question. How long? he was appointed Secretary of War? Answer. I am not able to tell you; some Answer. I should think not more than a two or three years, I should think. week or ten days. I have no definite means Mr. STANBERY. Mr. Chief Justice, we of knowing now. object to this mode of proving orders for reQuestion. Go on. moval. Answer. He remarked to me- Mr. Manager BUTLER. I will not press it Mr. EVARTS. Wait a moment, Mr. Wit- a hair. I will get the order. ness. I understood your question, Mr. BUTLER, Mr. STANBERY. Especially do we object allowed by the Senate, to refer to statements when it is said to disgrace an officer. We would made by General Thomas at the War Office, as rather see the proof than hear the assertion. heard by,this witness, to clerks there of the Mr. Manager BUTLER. Does the gentleDepartment. The witness is now proceeding man, when he makes the gesture accompanying to state what took place in a walk between those words mean my assertion, for I am going him and General Thomas. to prove it upon the oath of a witness. The WlTNESS. No, sir; we had not taken Mr. STANBERY. Is the gentleman speakthe walk. I am not in the habit of testifying ing to me? What was the question? before courts, and you will pardon me for a Mr. Manager BUTLER. Whetheryoumean little latitude. my assertion or the assertion of the witness? Mr. Manager BUTLER. He had not said The CHIEF JUSTICE. This controversy that they took the walk. does not appear to have any proper relation to Mr. EVARTS. This, I understand, is only the case on trial. inducement, Mr. BUTLER. Mr. Manager BUTLER, (to the witness.) Mr. Manager BUTLER. The inducement Had he been away from the city, and not in the to the conversation. Adjutant General's office for a considerable The WVITNESS. The General remarked to period of time? me that he had made an arrangement to have Answer. Yes, sir; he had been sent South. 148 Mr. STANBERY. That will not do. question before that, so as to fix the date. [To Mr. Manager BUTLER, (to the witness.) the witness.] When did you see him as near How lately had he returned to the office when as you can recollect? he made this speech? Answer. I have seen him nearly every day Answer. I am not able to say; but a very I since then. few days. Question. At any time did you have any Question. Since you had the conversation conversation with him about this conversation about breaking down the doors of the War as to which you have testified? Office by force have you seen General Thomas? Answer. I have had. Answer. Yes, sir; I have. Mr. EVARTS. You mean the conversaQuestion. Were you called upon bythe Man- tion with the clerks? tagers to give your testimony in their room? Mr. Manager BUTLER. No, sir; I mean Answer. I was. the conversation about breaking down the Question. Did you do so? doors of the War Office by force. Answer. I did. The WITNESS. I have, sir. Question. Was it taken down in short-hand? Mr. Manager BUTLER. Do you still obAnswer. I am not able to say how it was ject, gentlemen? taken down. I did not see it. Mr. STANBERY. Letus see your question. Question. After it was taken down after you Mr. Manager BUTLER. I will put the gave it was General Thomas called in? question. The question is, at the time when Answer. He told me he was to be called in. you have seen him since has he restated to I did not see him go in. I saw him on the floor you any portion or all of that conversation of the House, and he told me he had been sum- about breaking down the doors of the War moned, and was going up as soon as some one Office? came for him. Mr. EVARTS. That we object to as leadQuestion. Did you see him after he had been ing, among other things. up? Mr. STANBERY. It is clearlyta leading Answer. I did. question. Question. What did he tell you as to your Mr. Manager BUTLER. I will put it in testimony? this form: Since the first conversation has he Mr. EVARTS. That we object to. restated any portion of that conversation; and, The CHIEF JUSTICE, (to the Managers.) if so, what portion? The honorable Managers will reduce the Mr. STANBERY. We object to that as question to writing. leading. Mr. Manager BUTLER. I have heard the Mr. EVARTS. We object, if the court objection. I propose to show, if I am allowed, please, that the question should be what subthat Mr. BURLEIGH'S testimony beforethe Man- sequent conversations he has had, if they are agers, which I propose to put in his hand and to be given in evidence. identify in a moment, was read to General Mr. Manager BUTLER. Very well; to save Thomas, containing exactly what he has testi- all objection, then, I will ask this question: fled here, and General Thomas said it was all What did he state to you, itfanything, as to the true and never informed Mr. BURLEIGH that it conversation which he'had previouslyhad with was not true. I do this by way of settling the you about breaking down the War Office? question that there can be no mistake about Mr. EVARTS. That we object.to. Ask it * what conversations the witness has had with Mr. STANBERY. For what purpose? him since, if you wish to give them in evidence. The CHIEF JUSTICE. The Manager will Mr. Manager BUTLER. I am content with reduce his question to writing, it being ob- that, if that is not objected to. [To the witjected to. ness.] What conversations have youhad with Mr. Manager BUTLER. Well, I will not him on that subject since? press it to take time by an argument. [To the Mr. EVARTS. That we object to as not witness.] Have you had any conversation since admissible evidence. with him as to this conversation about which Mr. Manager BUTLER. Timeo Danaos et you have testified? dona ferentes. I shall not alter my question Answer. I have. again. Question. What has he said about it? The CHIEF JUSTICE. The question, being Mr. STANBERY, Mr. EVARTS, and Mr. objected to, will be reduced to writing. CURTIS. That we object to. Mr. Manager BUTLER reduced his quesMr. Manager BUTLER. I propose to put tion to writing, and read it, as follows: in subsequent declarations confirming exactly Que8tion. Have you had any conversation sincethe the declarations which have been allowed to be first one and since his appointment as Secretary of ut in Isuppose I can put in the same dec- War ad interim with Thomas when he said anything gut in. I suppose I can put in the same dec- about using force in getting into the War Office orin larations twice. any way or manner reasserting his former conversaThe CHIEF JUSTICE. The question will tion, and, if so, state what he said? be reduced to writing if objected to. The CHIEF JUSTICE. Do the counsel Mr. Manager BUTLER. I will ask a single object to that question? 149 Mr. EVARTS. We object to the question, Thomas should deal, or with a portion of the if the court please. regular Army of the United States?" That The CHIEF JUSTICE. Do you desire to is the argument; and as he did not, these be heard in support of the objection? declarations meant nothing. I want to show Mr. EVARIS. Very briefly. The acts of that afterwards Mr. BURLEIGH asked him) the President and the acts of General Thomas, " General Thomas, I went up there to see the in pursuance of any authority from the Presi- performance, and it did not come off according dent or otherwise, have been given in evidence. to contract; what is the meaning of this? you That testimony is very limited. What occurred did not go and break in; I wanted to see that between General Thomas and Mr. Stanton at go on; I was going tostandbyyou," orwords. the War Office is the only measure and extent to that effect: "I went there to give you my of evidence bearing upon the actual conduct countenance," or something like that; and either of the President, through his agent, or thereupon Mr. Thomas said: "Well, the reason of the agent. It was allowed to give evidence I did not was that I was arrested by the' of this appointee's declarations as to what he courts and held to bail, and I could not; I intended to do, and that evidence has been concluded it was not best to use force; I did given. Now, statements after the action was not dare do it." Is not that perfectly compecomplete as to what his intentions were before tent to meet this argument of the counsel, and cannot be at all material, for intentions not to show what prevented the outbreak of a civil executed in the subsequent action certainly are war; that it was not the President; it wias not not material. But this is still more objection- his coconspirator; it was not their malignity able as being but an alleged repetition, after nor want of it; it was not their will or want the transaction was complete, of what his in. of it; but it was the fortunate intervention of tentions had been before or rather relative' to the tribunalofjustice. That is the point upon what he said about what his intentions had been which we propose to put in this question. before. It is enough to prove what his inten- TheCtHIEF JUSTICE. The Secretary will tions had been before under the latitude which read the question. has been allowed by the court to introduce that The Secretary read the question, as follows: evidence, to wit, the declarations made to this Question. Have you had any conversation since the witness; but General Thomas's statements first one and since his appointment as Secretary of War ad interim —with Thomas-where he has said afterward as to what previously he, General anything about using force in getting into the War Thomas, had stated as to what his intentions Office, or in any way or manner reasserting the were is not admissible within any rules of former conversation; andif so, state what he said? evidence. The CHIEF JUSTICE. Senators, the Chief Mr. Manager BUTLER. Mr. Chief Justice, Justice is of opinion that within the spirit of I understand the Senate by solemn decision the decision just made by the Senate, this have decided that Adjutant General Thomas, question is admissible. Does any Senator being Secretary of War ad interim, under the desire that the question shall be submitted circumstances, was so far in conspiracy or in to the Senate? If not, the question will bet agreement with the President, was so far his put. servant or agent, that in the course of the pro- Mr. Manager BUTLER, (to the witness.) ceeding in which he was engaged his acts might Will you now state? Mr. BURLEIGH, you say be, and his declarations were, evidence. That you have had many conversations. I want to decision, of course, covers all acts and all call your attention to one special conversadeclarations. We have shown that on the tionnight of the 21st of February General Thomas Mr. CURTIS. I suppose the question should said: " I am going up to-morrow morning with be put to him. axes and force, bills and bows, to go into the Mr. Manager BUTLER, (to the witness.) office, break open the door; I am going in by Have you had any conversation since the first force; I am going to obey my orders; I am one and since his appointment as Secretary going to obey the orders of the President; I of War ad interim-with Thomas-wherein am going in with force, and I am going to break he said anything about using force in getting down the doors if they are not opened to me." into the War Office, or in any way or manner Then it is also in evidence that Mr. Thomas reasserting the former conversation; and if went up the;next morning, not at ten o'clock, so, state what he said? but about half past eleven, in a much more Answer. Some time in the fore part of last mild and quiet manner than he had threatened week I met General Thomas and we were talkover night to do. ing over this question; it had become noised: The argument will be raised by the counsel about; and he told me that the only thing for thePresident, " This was mere talk of Mr. that prevented his taking possession of the Thomas, because if he meant anything by it, War Department that morning was his arrest or if the President had so ordered him, if it by the United States marshal, who called on was serious really, why did he not the next him at a very unusual hour, I think about the -morning go up there with force, either with the time he was getting out of bed. Maryland militia, or the Virginia militia, or Question. You have stated what he said. some other proper force with which Mr. Now say what you stated to him? Giv' ls 150 the whole conversation as well as you can on Question. How many addresses, then, did that occasion? he make to separate assemblies? The WITNESS. This last occasion? Answer. I think he made four or five. I did Mr. EVARTS. That is not within your not count them, and it was a matter that did question. not impress itself on my mind very much. Mr. STANBERY. You are now asking Question. Did he make the same address to for declarations of Mr. BURLEIGH. all of them? Mr. Manager BUTLER. I am asking for Answer. Very nearly the same. both parts of the conversation, which I never Question. Now, please to state what his yet heard objected to in a court of justice. address was to each of them that he made on Mr. STANBERY. You ask for declara- that occasion? tions of this witness. Answer. I can only give it to you in a very Mr. Manager BUTLER, (to the witness.) vague manner. It was a matter that did not What you said to Thomas and he said to you, concern me very much. It was to state to part of which you have just given us. them that he had come back and assumed the The WITNESS. I do not now recollect the duties of the office; that he was glad to see precise language which I used to him. It was, them; that he proposed to relax somewhat the however, in connection with my having gone up arbitrary rules; perhaps he did not denominate there, and that the feast to which I was invited them arbitrary rules; he had to me before that; or the performance did not come off; and he that he did not wish to hold them up to so strict gave me as a reason for it that he was arrested accountability in being there precisely at nine by the United States marshal and taken down o'clock, and in not leaving without a written before Judge Cartter's court, otherwise he leave as he said had been the case before. He should have gone in and taken possession of stat'ed to them that he should expect them to the office, as he told me he would. discharge their duty, and if they did that it Question. When was this last conversation, was all he cared about. as near as you can tell? Question. When he said he had returned to Answer. I think it was about the first of his office what office did you understand him last week. as returning to? Answer. Adjutant General. Cross-examined by Mr. STANBERY: Answer. Adjutant General. Question. When he gave these orders to Question. Referring to the interview you these heads of bureaus and their clerks did you had with General Thomas in the Adjutant Gen- understand him to be giving orders as Adjueral's office prior to his appointment as Secre- tant General? tary of War, had you business there with him, Answer. I did not understand him to be as Adjutant General? giving orders at all, but it was a mere address. Answer. I had business with the Adjutant Question. Was he delivering an address then General. I can state what it was, if you desire as Adjutant General? to know. Answer. Certainly. Question. No. I do not care about that; Question. In reference to how he expected but you went there to see the Adjutant Gen- to carry on that office? eral on business? Answer. What he expected of them. Answer. Yes, sir. Question. You do not mean that he sent for Question. And you say you had heard before all the employes in the War Department, do that that General Thomas was restored to his you? office? Answer. I think he told me that he directed Answer. I think I had heard it the day be- the head of every department connected with fore, and I think I heard it from himself. the Adjutant General's office to come. Question. While you were there he sent for Question. But not those connected with the the heads of bureaus and their clerks, did he? other offices-those of the Commissary GenAnswer. Yes, sir. eral, the Quartermaster General, &c. Question. Whom first did he send for? Answer. No; only those that were under Answer. I cannot name them now. In fact, him. I am not sufficiently familiar with their names Question. When these heads of bureau reto tell. ceived these orders, did they object that he Question. Who first'came in? had no right to give them such orders, or did Answer. I am not able to say. General they thank him for them? Williams was present. I do not know but that Answer. I heard no objection. They conhe came in first, and I do not know as he gratulated him, a great many of them. did. Question. Was anything said about his giving Question. Did he make an address to each them any other orders, or giving them to any head of bureau and his clerks or did he talk to other than his own officers, those under him them all together? as Adjutant General? Answer. Each one. Answer. I did not understand it in any other Question. In succession? wav. Answer. Yes, sir. Question. Then did you hear or see anything 151 improper at that time, and if you did let us that the next day would be what he called a know what it was? dies non, being the holiday of the anniversary Answer. I do not know that I am the judge of Washington's birthday, when he had directed of what is proper or not proper in the Adju- that the War Department should be closed, tant General's office. Nothing occurred that that the day thereafter would be Sunday, and was very offensive to me. that on Monday morning he should demand Question. Did anything occurthat.was atall possession of the War Department and of its offensive? property, and if that demand was refused or Answer. No, sir. resisted he should apply to the General-inChief of the Army for a force sufficient to enSAMUELs WILKEESON sworn and examined. able him to take possession of the War DepartBy Mr. Manager BUTLER: ment; and he added that he did not see how Question. Do you know Lorenzo Thomas, the General of the Army could refuse to obey Adjutant General of the United States Army? his demand for that force. He then added Answer. I do. that under the order that the President had Question. How long have you known him? given to him he had no election to pursue any Answer. Between six and seven years. other course than the one that he indicated; Question. Have you had any conversation that he was a subordinate officer directed by with him relative to the change in the War an order from a superior officer, and that he Department? If so, state as near as you can must pursue that course. when it was and what it was in relation to that Question. Did you see him afterward and change. have conversation with him on the subject? Answer. I had a conversation with him re- Answer. I did. specting that change on the 21st day of Feb- Question. When was that? ruary. Answer. That evening. Question. What time in the day? Question. Where? Answer. Between one and two o'clock in the Answer. At Willard's Hotel. afternoon. Question. What did he say there? Question. Where? Answer. He then said that he should the Answer. At the War Department, in his next day demand possession of the War Deoffice. partment, and that if the demand was refused Question. State what took place at that in- or resisted he should apply to General Grant terview? for force to enable him to take possession, and Mr. EVARTS. Do you propose this as cov- he also repeated his declaration that he could ered by the former ruling? not see how General Grant could refuse'to Mr. Manager BUTLER. Entirely so, after obey that demand for force. he had his order. Question. State whether these were earnest The WITNESS. I asked him to tell me what conversations or otherwise? had occurred that morning between him and Answer. Earnest conversations I the Secretary of War in his endeavor to take Question. Yes, sir, on his part. -possession of the War Department. He hesi- Answer. If you mean by earnestness that he tated to do so till I told him that the town was meant what he said filled with rumors of the change that had been Question. Yes. made, of the removal of Mr. Stanton and the Answer. They were in that sense earnest. appointment of himself. He then said that since the affair had become public he felt re- Cross-examined by Mr. EVARTS: lieved to speak to me with freedom about it. Question. Are you connected with the press? He drew from his pocket a copy, or rather the Answer. I am a journalist by profession. original, of the order of the President of the Question. And have been for a great numUnited States, directing him to take possession ber of years? of the WNVr Department immediately. He told Answer. A great number of years. me that he had taken as a witness of his action Question. Living in Washington during the General Williams, and had gone up into the session of Congress for the most part? -War Department and had shown to Edwin M. Answer. I have for the last seven years lived Stanton the order of the President, and had in Washington in the winter. demanded by virtue of that order the posses- Question. You say that General Thomas told sion of the War Department and its books and you that, under the order of the President, he papers. He told me that Edwin M. Stanton, did not see how he could do otherwise than he after reading the order, had asked him if he had stated. would allow to him sufficient time for him to Mr. Manager BUTLER. Are you repeating gather together his books, papers, and other the testimony of the witness? personal property and take them away with MIr. EVARTS. Yes. him; that he told him that he would allow Mr. Manager BUTLER. I understood him to him all necessary time to do so, and had to say " under the orders of the President. " then withdrawn from Mr. Stanton's- room. Mr. EVARTS. I understood him to say He further told me, that day being Friday, "under the order." 152 Mr. Manager BUTLER. That I wanted Answer. Yes, sir; he claimed to be Secretary certain, of War. The WITNESS. " Under the order," referring GEORGE W. KARSNER sworn and examined. to the original? Mr. EVARTS. Paper? By Mr. Manager BUTLER: The WITNESS. The original paper. Question. What is your full name? Question. Nothing else??Answer. George Washington Karsner. Answer. Nbthing else. Question. Of what place are you a citizen? Mr. EVARTS, (to Mr. Manager BUTLER.) Answer. Delaware. Now you are answered. Question. What county? Mr. Manager BUTLER. Entirely. Answer. New Castle county. Mr. EVARTS, (to the witness.) So all the Qiestion. Do you know Major General Lodifference between the conversation on Friday renzo Thomas.? night and Friday forenoon was that at night he Answer. Yes, sir. proposed to do what he did propose to do on Question. How long have you known him. Saturday, and in the forenoon conversation he Answer. I have known him a great while; proposed to do it on Monday? I think I have known him since a short time Answer. On Monday. after his graduation from West Point.. Question. Did you say anything further re- Question. Was he originally from the same garding the expected holiday. Saturday, except cnty with you? that that would be a dies non? Answer. Yes, sir. Answer. Nothing, sir. Question. Did you see him in Washington Question. No orders to that effect were re- somewhere about the 1st of March of this ferred to? year? Answer. Pardon me; he told me that he had Answer. I think it was about the 9th of issued an order to close the War Department March I first recollect seeing him here. on Saturday. Question. When had you seen him prior to Question. That he had himself? that time? Answer. That he had himself issued an order Answer. Not for several years. I cannot to close the War Department on Saturday. remember exactly when I last saw him before Question. As Adjutant General? that. Answer. He did not say whether he had done Question. Where did you see him in Washthat as Adjutant General or as Secretary of War. ington? Question. You did not understand anything Answer. I saw him in the President's House; about that? in the East Room of the President's House. Answer. He simply told me he had issued Question. What time in the day or evening? an order to close the War Departm'ent on Sat- Answer. It was, perhaps, a quarter past ten: urday. o'clock in the evening. Question. This was in the morning conver- Question. The evening of what day in the sation? week; do you remember? Answer. It was in the afternoon conversa- Answer. I think it was on a Monday evening. tion of Friday. Question. Was the President holding a levee Question. The one o'clock conversation? that evening? Answer. Yes, sir. Answer. Yes, sir. Question. Did he tell you when that order Question. Did you have any conversation had been issued? with him? Answer.'No, sir. Answer. Yes, sir. Question. Did you know, from anything said Question. Please state how the conversation in that conversation, when it had been issued? began; what was said? Answer. No, sir. Mr. EVARTS. With General Thomas? ~ Question. Did you know, from anything said Mr. Manager BUTLER. With General in that conversation, by whom it had been Thomas. issued other than that it was by him, General Answer. Well, it commenced by my apThomas, in some capacity? proaching him and mentioning that I was a: Answer. No, sir. He told me that it had Delawarean, and I supposed he would recogbeen issued, and he told me that on Friday. nize me, which I think he did, but could notQuestion. So far as you know, or then un- remember my name. I then gave him my derstood, it might have been issued by him as name, and told him I knew him a great many Adjutant General? years ago, and knew his father and brother and. Answer. I know nothing about that. all the family. I gave him my hand, and he talked. He said he was a Delaware boy, which Reixamined by Mr. Manager BUTLER: I very well knew; and he asked: me what we Question. In either of these conversations, were doing in Delaware. I do not remember in connection with what he said, did he say the answer I gave to him, but said I to him, whether he was Secretary of War, or did he "General, the eyes of Delaware are on you." claim to be? [Laughter. ] 153 The CHIEF JUSTICE, Order I Answer. It was not in the middle of it - it The WITNESS. I gave my advice to him. was on the pavement, and I was standing by I told him I thought Delaware would require the court-house, to the best- of my recollection. him to stand firm. "-Stand firm, General," Question. You were standing by the courtsaid I. He said he would, he was standing house, and he was on the pavement? firm, and he would not disappoint his friends; Answer..I think so. and in two: days, or two or three days, or a Question. Was he walking; past or standing short time, he would kick that fellow out. there? [Laughter.] Answer.- I cannot recollect.* Question. Was anything further said? Question. But you do recollect that- one day Answer. Yes; there was something further being before the court-house you saw Thomas said. I will tryto recollect it. [A pause.] I standing on the pavement? repeated again to him what the desire, I pre- Answer. I was standing by the court;house. sumed, of Delaware would be, and he said I Question. How near? need not give myself any concern about that, Answer. Within half the space of this room. he was going to remain firm, and kick that fel- Question. How far was he from you? low out without fail. Answer. I think he was- on the oppositeside Question. When he said he would "kick of the street. that fellow out" did he in any way indicate to Question. On the other pavement? you to whom he referred?: Answer. Yes; I think so. As regards the Answer. He did not mention any name. time and whether I: spoke to him or not I canQuestion. The question was whether he indi- not tell. I saw him there. cated to whom he referred'? Question. That is what youreeollet; seeing Answer. Well, I think he referred to the him there that day. Was he standing orwalkSecretary of War. I did not have any doubt ing? on my mind- Answer. I presume he was walking. I do Mr. EVARTS. That was not the question. not recollect. Mr. Manager BUTLER. It answers all I Question. But you recollect seeing him desire. The witness is yours, gentlemen. there? Answer; Yes. Cross-examined by Mr. STANBERY: Anser. Yes. Question. Can you not tell us whether he Question. You said you had known General was standing or walking? Thomas many years before? Answer. Sometimes it is a little difficult for Answer. Yes, sir. a person's memory to run that well. That has Question. Please to state as-near as you can been several years ago, many years before the recollect when you had seen General Thomas war. before this interview in the East Room. How Question. When did you ever see: him to many years was it since: you had seen him speak with him? before? Answer. I used to speak to him- a great many Answer. I was in this city during, the war, years ago when he would be at New Castle vise and perhaps I might have seen him then, but iting his people. He married his wife in New I am not-certain. Castle. Question. What is the time that you are Question. How many yearsand when? That certain that you last saw him? is the question?. Answer. It was a good many years; I can — Answer. It is: very difficult for me to: answer not remember how long it was. I cannot re- how many years or when; but I. saw him there member the time. and I Saw him in the city of Washington. Question. Where? In Delaware or here? Question. You now recollect that you saw Answer. I think I saw him in- New Castle at him in the city of Washing-ton-; a little whileone time. ago you could not recollect that? Question. Before or after he: went to West Answer. I think now I do recollect seeing Point? him, but not to speak to him. He-was ai-offiAnswer. Long since he left West Point-; cer, I was a citizeni -long since he was in the Army. Question. Whereabouts- in Washingtoni did Question. On what occasion was it at New you see him before- this time? Castle that you think you, recollect seeing him? Answer. I cannot tell that but; I have seen Answer. I saw him in the street. I do not him in Washington. I know him when:-I see recollect that I had any conversation with him him. at New Castle. His father lived there, and his Question. When, then, did you ever speak brother. to him- before this time-? -Name;a time.Question. In which- of the- streets- of New Answer. Every time I would come within Castle did you see:him? speaking distance: of him I have spoken to Answer.- Well, there are not many' streets him; but to name a time I cannot. in New Castle. [Laughter.] I saw'him- in the Question. You cannot answer when: it- *was main street, I think, or where you ever spoke:to him before? Question. What part of the street-? Answer. No, sir; not particularly. 154 Question. On this occasion did you come Question. Did you go with Tanner to that from Delaware to see General Thomas? levee? Answer. No, sir; I had other business in Answer. Yes, sir. Washington. Question. And after you had seen the PresiQuestion. Did you expect to see him or dent and Cabinet, you then asked him where intend to see him? ~ you would find Thomas? Answer. Well, I wished to see the President Answer. No; that was not the manner. of the United States, and I wished to see the Question. What was it? Cabinet. I saw them all except General Thomas Answer. Said I, "I see them all but Genin the reception room. I then walked into the eral Thomas." I did not know the members East Room and I saw him there; I went to him of the Cabinet personally, but they were pointed in the East Room and spoke to him. out to me-Mr. Browning and all the Cabinet Question. You wanted to see him as well as except Mr. Thomas. I think they were all the rest of the Cabinet? present in the reception room. Answer. Well, he was acting, the papers Question. And all were pointed out to you? stated, as a member of the Cabinet. Answer. Yes, sir; they were pointed out Question. Whereabouts in the East Room did to me. you encounter him? Question. Having seen the President and Answer. On the west side, I think, of the having seen all the members of the Cabinet, East Room. then you asked where you could find General Question. Was it near the door of exit? Thomas? Answer. No, sir. Answer. No, sir. Question. Near the center of the room? Question. What then? Answer. I think'it was. It was not the Answer. I did not ask where I could find center of the room exactly, but somewhere in him. Said I, "I miss General Thomas here; the center of the distance between that and the he is not in this room." My friend said no, place of going out. he was not in that room; and when we left the Question. At that time was General Thomas reception room and came into the East Room apparently going out? I saw him there. Answer. No, sir. When I first saw him there Question. Did you go with your friend he was very much engaged, speaking with a Tanner from the reception room to the East gentleman very earnestly, and I waited until Room? he had leisure and then I'approached him. Answer. Yes, sir. Question. Did you know the gentleman he Question. Did he point out Thomas to you? was speaking with? Answer. No, sir; I pointed him out myself. Answer. No, sir. Question. What was the first thing you said Question. But you had something to say to to Thomas after he was through with his conhim. What did you intend to say to him when versation with the gentleman he was speaking you found out that he was there? You say you to; how did you first address him? went over to see him; what did you intend to Answer. I have already stated that. say to him? Question. State it again. Answer. Well, his being a Delawarean and Answer. I addressed him as a Delawarean, I from the same State, I wanted to pass the knowing him to be so. I told him I was from compliments with him. I was glad to see him. Delaware. He said he was a Delaware boy I had no particular desire to see him on any himself. I knew that very well, and knew his business; but I just said to him what I have family. already stated. Question. Did you shake hands with him? Question. You did not go there especially to Answer. Yes, sir. say to him that thing, then, but only to see him? Question. What followed when you told him Answer. I was drawn there for the purpose that you were from Delaware? of seeing Mr. Johnson, President of the United Answer. As I before stated, he asked me States; I had never seen him. how things were coming on in Delaware, how Question. After you had seen Mr. Johnson, we were all getting along or how we were and the other members of the Cabinet, I un- coming on; that was about the amount he derstand you to say you then wanted to see asked me. General Thomas? Question. What was your answer? Answer.. I asked a friend with me where Answer. I do not recollect the answer I General Thomas was; said I, "I, do not see gave. him." Question. What was said next, if you do not Question. Who was that friend that was with recollect that answer? you? Answer. The next was, as I before stated, Answer. It was John B. Tanner. that I told him the eyes of Delaware were on Question. Where was he from? him, and to stand firm: that was the language Answer. Washington. I addressed to him. Question. Does he live here? Question. Was that all you said? Answer. Yes, sir. Answer. Well, no; I repeated, perhaps, some 155 part of that or pretty much all. I repeated a Answer. Oh, well, you know, when we get portion of it, at any rate. away from home we think a good deal of home, Question. When you asked him to stand firm and are inclined to speak in behalf of our own what was his reply? State. Answer. He said he was standing firm. Question. At that time were you in sympathy Question. What did you next say? with the wishes of Delaware that he should do Answer. I told him the people of Delaware something in regard to the War Office? would expect it of him. He said they should Mr. Manager BUTLER. I object. not be disappointed. Mr. STANBERY. What is the ground of'Question. What next? the objection? Answer. That he would stand firm; and he Mr. Manager BUTLER. I do not think this then remarked that he would kick that fellow is the proper mode of proving the sympathies out in two or three days, or in a short time, of Delaware on this occasion; and, if it is, the or in a few days; I cannot remember what his sympathies of Delaware are a matter wholly exact expression was. immaterial to this issue. Question. Now, I ask you, Mr. Karsner, if Mr. STANBERY. We agree to that. The this idea of kicking out did not first come from question was as to the sympathies of the wityou; whether you did not suggest it? ness. I will put the question in this form. [To Answer. No, sir. the witness.] Was the line of conduct he spoke Question. You did not? of taking that which suited you? Answer. No, sir. Answer. I do not know whether it would or no. Question. You are sure of that? Question. Did you in that conversation give Answer. I have taken an oath here. him any advice beyond standing firm what he Question. I ask you if you are sure of that? should do? Answer. I am sure of that. Answer. No, sir; not any advice further Question. When he said he would kick him than I have stated. out did you reply? Question. After you parted there to whom Answer. I do not know what I did reply just did you first communicate this conversation to that, for it was a pretty severe expression. that you had had there with General Thomas? Question. What did you reply, severe or Answer. Well, I communicated it-if the not; what did you say to him? question is right for me to answerAnswer. I do not think I told him it would Mr. STANBERY. Yes, sir; you will be all right even; I do not think I did. answer it. Question. What did you tell him? Answer. I communicated it to Mr. Tanner. Answer. I said " I think Delaware will ex- Question. Your friend? pect something from you." [Greatlaughter.] Answer. Yes, sir; that night. Question. Was that what you meant by the Question. Whereabouts did you communisevere remark you made to him? cate that to Mr. Tanner? The WITNESS. What do you mean? Answer. Going along the street. Mr. STANBERY. Was that the severe Question. Going away from there that night? remark, "that Delaware expected he would do Answer. Yes, sir; if my memory serves something?" me aright, I think I did that night. The WITNESS. Delaware, I told him, would Question. To whom next? expect him to stand firm, and his conduct Answer. I cannot tell the, next one exactly. would be viewed by Delaware, or something to Question. Do you mean to say you have no that effect. recollection now of telling anybody else but Question. Was that the severe remark which Tanner? you have said you made? Answer. Yes; I told several that same thing. Answer. I did not make any severe remark. I did not charge my memory with the persons Mr. Manager BUTLER. I think you mis- I told it to. understood the witness, Mr. Stanbery. He Question. You told several that night, the said simply that it was a severe remark that next day, or when? General Thomas made. Answer. The next day. The WITNESS. Yes, sir; that is what I in- Question. In Washington? tended to convey. Answer. Yes, sir. Mr. STANBERY, (to the witness.) Did the Question. What did you tell, and whom to? conversation stop there? Answer. I say I cannot recollect precisely Answer. It was not a very long one. There the persons I told it to. I told it to several. might have been some few words said after Question. Do you recollect any one besides that. Just before I left I renewed the desires Tanner? of Delaware. [Laughter.] Answer. Yes, I recollect a gentleman from The CHIEF JUSTICE. Orderl order! Delaware. By Mr. STANBERY: Question. What was his name? Question. How did you renew the desires Answer. His name was Smith. [Laughter.] of Delaware? Did you feel yourself author- Question. What was the. first name of that ized to speak for Delaware? Mr. Smith? 156 Answer. It was not John. [Great laughter.] apartment up stairs over the House of RepreQuestion. What was it, if you say you recol- sentatives. lect itwas not John? Answer. I think it was William. ReFxamined by Mr. Manager BUTLER: Question. Whereabouts did you see William Question. You have been asked if you were Smith? summoned before the Managers& Did you Answer. In Washington. testify there? Question. Whereabouts? Answer. I did. Answer. I saw him on the street. Question. After you had testified there, was Question. Near the court-house? General Thomas called in? Answer. No, sir. Answer. Yes, sir. Question. Whereabouts, then? Question. Was your testimony, as you have Answer. 1 do not know where your court- given it here, read over before him? house is here. Mr. GROESBECK. We object to that. Question. Whereabouts in Washington did The WITNESS. Yes, sir. you see Smith? Mr. Manager BUTLER. Now, I propose to Answer. I think it was on Pennsylvania ask whether General Thomas was asked if that avenue. was true, and ir he admitted upon his oath that Question. That is a pretty long avenue. it was true, all you have stated. Whereabouts on the avenue? Mr. CURTIS. We object to that, Mr. Chief Answer. Not far from the National Hotel. Justice. Question. On the street? Mr. Manager BUTLER. I think it is comAnswer. Yes, sir. petent. Question. What did you tell William Smith? Mr. CURTIS. We do not think they can Answer. I told William Smith just what I support their witness by showing what a third have told you. [Laughter.] Yes, sir, I told person, General Thomas, said. him just what I have sworn to here. The CHIEF JUSTICE, (to the Managers.) Question. What part of Delaware was Wil- Do you press the question? liam Smith from? Mr. Manager BUTLER. I do press the Answer. He is from the banks of the Bran- question, Mr. Chief Justice, for this reason: dywine. [Great laughter.] upon an innocent and unoffending man there Question. Which bank of the Brandywine has been a very severe cross-examination does he live on? within the duties of the counsel, undoubtedlyAnswer. I think he is on the east bank of he did not mean to do more than his dutythe Brandywine, or northeast. attempting to discredit him here by that crossQuestion. Does he live in town or country? examination as to a conversation. If that Answer. He lives in the country. He is a cross-examination meant anything, that is what farmer. it meant. Now, I proposeto showthat the coThe CHIEF JUSTICE. The Chief Justice conspirator here, Thomas, admitted the corthinks that this examination is irrelevant, and rectness of this man's statements. This man should not be protracted. was heard as a witness by the House of RepreBy Mr. STANBERY: sentatives; the Managers of the House of RepQuestion. Mr. Karsner, when- were you resentatives, having taken his testimony, not summoned before an-y committee in this mat- willing to do any injustice to General Thomas, ter? brought General Thomas in and sat him down. Answer. I do not recollect the day. It was and -on his oath put the question to him, is about the 13th, I think. what this man says true? being the same then, Question. Did you, remain in Washington as he swears here, and General Thomas from the 9th till the 13 lth? admitted it word for word. I think it is comAnswer. Yes, sir. I was engaged in try- petent and do press it.,ing-to get a mail route in Delaware to facili- Mr. CURTIS. Our view of it is, Mrr. Chief tate post office matters, and I was detained Justice, that, having called this witness and here. I had engaged our Representative, Mr. put him on the stand, they cannot show that NICHOLSoN, and his father was very ill at the he has, on a different occasion, told the same time, and he was some time out of the House, story. That is a plain matter, and I do not which protracted my stay. understand that that is the ground which they Question. Have you remained here ever take. since. Mr. Manager BUTLER. We do not proAnswer. No, sir. pose that.~ Question. Do you know at whose instance Mr. CURTIS. Then they offer the declarayou were summoned? tions of General Thomas, not in reference to: Answer. No; I cannot tell that exactly, at any conspiracy, not in reference to any agreewhose instance,wrhat particular person had me ment between himself and the President as to summoned. I was summoned before the Man- doing anything, not in reference to any act agers of the House of Representatives, and done pursuant to that conspiracy, but simply ordered at a certain'time to be at the judiciary the declarations of General 2homasas to some 157 thing which General Thomas had said to this questions, which rulingshall standas thejudgment of witness to support the credit of the witness. We the Senate, unless some member of the Senate shall ask that a formal tote be taken thereon, in which case object to thats incompetent. it shall be submitted to the Senate for decision; or Mr. Manager BUTLER. Mr. President, he may, at his option, in the first instance, submit having made the offer, and it being objected any such question to a vote of the members of the to, and it being clearly competent, if General Senate. Upon all such questions the vote shall be without a division, unless the yeas and nays be deThomas is ever brought here to contradict it I manded by one fifth of the members present or rewill waive it. quested by the presiding officer, when the same -shall Mr. CURTIS. Very well. be taken. Mr. Manager BUTLER. Then we are Mr. HENDRICKS. I suppose that, being through with the witness; but we must request a change of a rule, stands over for one day. him to remain in attendance until discharged. The CHIEF JUSTICE. If any Senator Mr. DOOLITTLE. Now, Mr. Chief Jus- objects. tice, I move that the court adjourn until to- Mr. HENDRICKS. Yes, sir; I do object. morrow at twelve o'clock. The CHIEF JUSTICE. It will lie over for The CHIEF JUSTICE. It is moved by one day. the Senator from Wisconsin that the Senate, The Managers on the part of the House of sitting as a court of impeachment, adjourn Representatives will proceed with their eviuntil to morrow at twelve o'clock. dence. Senators will please to give theirattenThe motion was agreed to; and the Senate, tion. sitting for the trial of the impeachment, ad- Mr. Manager BUTLER. We propose now journed until to-morrow at twelve o'clock. to call General Emory. Mr. STANBERY. Before the Managers THURSDAY, April 2, 1868. proceed with another witness we wish to recall The Chief Justice of the United States en- for a moment Mr. Karsner, the last witness. tered the Senate Chamber at five minutes past Mr. Manager BUTLER. Mr. President, I twelve o'clock and took the chair. submit that if Mr. Karsner is to be recalled, The usual proclamation having been made the examination and cross-examination having by the Sergeant-at-Arms, been finished on both sides, he must be reThe Managers of the impeachment on the called. as the witness of the respondent, and part of the House of Representatives appeared the proper time to recall'him will be when they and took the seats assigned them. put in their case. The counselfor the respondent also appeared Mr. STANBERY. We wish to recall him and took their seats. but a moment to ask a question which, perThe presence of the House of Representa- haps, would have been put if it had not been tives was next announced, and the members stopped yesterday. of the House, as in Committee of the Whole, The CHIEF JUSTICE. Is there any obheaded by Mr. E. B. WASHBURNE, the chair- jection to recalling the witness for the purpose man of that committee, and accompanied by of putting a single question to him? the Speaker and Clerk, entered the Senate Mr. Manager BUTLER. Not if it shall not Chamber, and were conducted to the seats be drawn into a precedent. provided for them. GEORGE W. KARSNER recalled. The CHIEF JUSTICE. The Secretary will By Mr. STANBERY: read the minutes of the last day's proceedings. Question. Mr. Karsner, where did you stay The Secretary read the Journal of the pro- that night of the 9th of March after you had ceedings of the Senate yesterday sitting for the the conversation with General Thomas? trial of the impeachment. Answer. I stayed at the house of my friend, Mr. DRAKE. I send tothe Chair and offerM Tanner, in Georgeton. for adoption an amendment to the rules.. Tanner, in Georgetown. The CHIEF JUSTICE. The Secretary will Question. What is the employment of Mr. The CHIEF JUSTICE. The Secretary will Tanner? read the amendment.'he Secretary read as follnswer. I believe he is engaged in one of The Secretary read as. follows: the Departments here in Washington. Amend rule seven by adding the following:t he Departments here in Washigton. Upon all such questions the votes hall be without Question. In which one? a-division, unless the yeas and nays be demanded by Answer. I think the War Department. one fifth of the members present orrequestedby the Question. Do you recollect whether on the presiding officer, when the same shall be taken. next morning you accompanied Mr. Tanner to Mr. I)RAKE. Please read the rule as it the War Department? would be if amended. Answer. I do not. The Secretary read as follows: Question. You do not recollect that? VII. The Presiding Officer of the Senate shall Answer. I do not recollect whether I accomdirect all necessary preparations in the Senate Chamber, and the presiding officer on the trial shall direct panied him or not. Sometimes I did and someall the forms of proceeding while the Senate are times I did not. I had other business,. and sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially 1 - provided for. And the presiding officer on the trial accompany him, and at oter times I did acmay rule all questions of evidence and incidental company him. 158 Question. At any time did you go with him me, that the memorandum covers it perhaps as to the War Department and see Mr. Stanton distinctly as I could possibly state it. I wrote in regard to your testimony? it immediately after the occurrence of the The WITNESS. I appeal to the court. appearance of General Thomas, and perhaps it Tbe CHIEF JUSTICE. Answer the ques- will state substantially and more perfectly than tion. I could state from memory now what occurred. Answer. I saw Mr. Stanton. Question. Unless objected to you may read it. Several SENATORS. Louder; we cannothear. Mr. STANBERY. We shall make no objecThe CHIEF JUSTICE. Raise your voice tion. so that you can be heard in the Chamber. The witness read as follows: By Mr. STANBERY: WAR DEPARTMENT. Question. You say you saw Mr. Stanton? WASHINGTON CITY, February 22, 1868. Answer. Yes, sir; I saw Mr. Stanton. In the presence of Secretary Stanton, Judge KELLEY, Question. What did you see him about? MOORHEAD, DODGE, VAN WYCK, VAN HORN, DELANO, and Freeman Clarke, at twenty-five minutes past Answer. Nothing particular about; only I twelve m., General Thomas, AdjutantGeneral, came was introduced to him. into this Secretary of War Office, saying, "Good Quest ion. Whonm by? -morping," the Secretary replying, "Good morning, Question. Whom by?-Tae sir." Thomas looked around and said, "I do not Answer. By Mr. Tanner. wish to disturb these gentlemen and will wait." Question. What was your object in seeing Stanton said, "Nothing private here; what do you him? want, sir?" Thomas demanded of Secretary Stanton the surAnswer. Well, I had seen all the great men render of the Secretary of War Office. Stanton dein Washington, and I wished to see him. nied it to him, and ordered him back to his own office in e Washington. andmI wished toseehim. n as Adjutant General. Thomas refused to go. "I Question. That is your answer? claim the office of Secretary of War, and demand it Answer. Yes, sir. by order of the President." Question. In that conversation with Mr. STANTON. "Ideny your authority to act, and order you back to your own office." Stanton was any reference made to your con- THOMAS. "I will stand here. I want no unpleasversation with General Thomas? antness in the presence of these gentlemen." Answer. I think there was. STANTON. " You can stand there if you please, but you cannot act as Secretary of War. I am Secretary Question. Did you receive a note from Mr. of War. I order you out of this office and to your Stanton at that time, a memorandum? own." Answer. No, sir.' THboMAS.'"I refuse to go, and will stand here.".STANTON. "HOW are you to get possession; do you Question. Did he give you any directions mean to use force?" where to go? THOMAS. "I do not care to use force, but my mind Answer. No, sir. is made up as to what I shall do. I want no unpleasantness, though. I shall stay here and act as Question. Did he speak about your being Secretary of War." examined as a witness before the committee STANTON. "You shall not, and I order you as your or that you should be? superior back to your own office." THOMAS. "I will not obey you, but will stand Answer. There was something said to that here and remain here." effect. STANTON. "You can stand there, as you please. Mr. STANBERY. That is all, sir. I order you out of this office to your own. I am Secretary of War, and your superior." Mr. Manager BUTLER. That is all, Mr. Thomas then went into opposite room across hall Karsner. (General Schriver's) and commenced ordering General Schriver and General E. D. Townsend. StanHon. THOMAS W. FERRY sworn and ex- ton entered, followed by MOORHEAD and FERRY, and amined. ordered those generals not to obey or pay attention By Mr. Manager BUTLER: to General Thomas's orders; that he denied his asBy Meer. 1anager BUTLER: sumed authority as Secretary of War ad inte-nim, and Question. Were you present at the War forbade their obedience of his directions. "I am Office on the morning of the 22d of February Thomas, out of War, thisand fficenow order your own qua errs." when General Thomas came there? THOMAS. "I will not go. I shall discharge the Answer. I was. functions of Secretary of War." STANTON. "You will not." Question. At the time when some demand THOMAS.'I shall require the mails of the War was made? Department to be delivered to me, and shall transact Answer. I was. the business of the office." STANTON. "You shall not have them, and I order Question. Will you state whether you paid you to your own office." attention to what was going on there, and Mr. Manager BUTLER, (to the counsel for whether you made any memorandum of it? the respondent.) The witness is yours genAnswer. I did pay attention, and I believe I tlemen. made a memorandum of the occurrences as far as I observed them. Cross-examined by Mr. STANBERY: Question. Have you that memorandum? Question. Did the conversation stop there? Answer. Yes, sir, [producing a paper.] Answer. So far as I heard. Question. Will you please state, assisting Question. You then left the office? your memory by that memorandum, what took Answer. I left in about fifteen or twenty place there, in tle order as well as you can. minutes after that. I left General Thomas in and as distinctlys you can?. General Schriver's room, and returned into Answer. I believe, if my recollection serves the Secretary of War's room. 159 Question. Did the Secretary return with you, that there should be troops here, and called or did he remain? the President's attention to a report of GenAnswer. He remained a few moments in eral Canby, my predecessor, recommending General Schriver's room, and then returned to that there should always be at the seat of his own room. When I left, he was in his own Government at least a brigade of infantry. a room. battery of artillery, and a squadron of cavalry Question. How early in the morning of the and some conversation, mostly of my own, was 22d did you get to the office of the Secretary had in reference to the formation of a military of War? force in Maryland that was then going on. Answer. My impression is it was about a Question. What military force? quarter past eleven in the morning. It was a Answer. A force organized by the State of little after eleven, at any rate. Maryland. Question. Had you been there at all the Question. Please state as well as you can night before?,what you stated to the President, in substance, Answer. I had not. relative to the formation of that military force. Question. Did you hear the orders given by Answer. I merely stated that I did not see General Thomas in Schriver's room? the object of it, as near as I can recollect, and Answer. Yes, sir. that I did not like the organization; I saw no Question. Were you in Schriver's room at necessity for it. the time those orders were given? Question. Did you state what your objections Answer. I was at the threshold; I had were to the organization? reached the threshold. I believe I was the Answer. I think it is likely I did; but I canfirst that followed Secretary Stanton. I believe not recollect exactly at this time what they I was the first and Mr. MOORHEAD second. were. I think it likely that I stated that they were clothed in uniform that was offensive to TW;ILLIiAMr H. EMo-swornYswo and examined. our people, some portions of them; and that By Mr. Manager BUTLER: they were officered by gentlemen who had been Question. State your full name? in the southern army. Answer. William Helmsley Emory. Question. By the offensive uniform do you Question. What is your rank and command mean the gray? in the Army? Answer. Yes, sir. Answer. I am colonel of the fifth cavalry, Question. Do you remember anything else and brevet major general in the Army. My at that time? command is the department of Washington. Answer. Nothing. Question. How long have you been in cornm- Question. Did you call upon the President mand of that department? upon your own thought or were you sent for Answer. Since the 1st of September, 1867. at that time? Question. Soon after you went into corn- Answer. I was sent for. mand of the department did you have any Question. When again did he send for you conversation with the President of the United for any such purpose? States as to the troops in the department or Answer. I think it was about the 22d of their station? February. Answer. Yes. Question. In what manner did you receive Question. Before proceeding to give that the message? conversation, will you state to the Senate the Answer. I received a note from Colonel extent of the department of Washington, to Moore. what it extends, its territorial limits, I mean? Question. Who is Colonel Moore? Answer. The department of Washington Answer. He is the Secretary of the Presiconsists of the District of Columbia, Mary- dent and an officer of the Army. land, and Delaware, excluding Fort Delaware. Question. Have you that note? Question. State as well asyou can; ifyou can- Answer. I have not. It may be in my desk not give it all, give the substance of that con- at the office. versation which you had with the President Question. Did you produce that note before when you first entered upon command? the committee of the House of RepresentaAnswer. It is impossible for me to give any- tives?.thing like that conversation. I can only give Answer. I read from it. the substance of it. It occurred long ago. He Question. Have you since seen that note as asked me about the location of the troops, and copied in their proceedings? I told him the strength of each post, and as Answer. I have. near as I can recollect the commanding officer Question. Is that a correct copy? of the post. Answer. That is a correct copy. Question. Go on, sir; if that is not all. Mr. Manager BUTLER, (to the counsel for Answer. That was the substance and im- the respondent.) Shall I use it, gentlemen? portant part of the conversation. There was Mr. CURTIS. Certainly. some conversation as to whether more troops Mr. EVARTS. Use it, subject to. the proshould be sent here or not. I recommended duction of the original. 160 Mr. Manager BUTLER. If desired. I sup- me "' What order do you refer to? " I replied, pose it will not be insisted on. [Handing a " To Order No. 17 of the series of 1867.' He printed paper to the witness. ] Will you read it? said,"':I would like to see the order," and a The witness read as follows: messenger was dispatched for it.'At this time EXECUTIVE MANSION, a gentleman came in who I supposed had busiWASHINGTON, D. C., February 22, 1868. ness in no way connected with the business that GENERAL: The President directs me to say that he I had in hand, and I withdrew to the further will be pleased to have you call on him as early as of the room, and while there the messenger Very respectfully and truly, yours, came with the book of orders and handed it WILLIAM G. MOORE, to me. As soon as the gentleman had withUnited State8 Army. drawn I returned to the President with the book Question. How early did you call? in my hand, and said I would take it as a favor Answer. I called immediately. if he would permit me to call his attention to Question. How early in the day? f that order; that it had been passed in an approAnswer. I think it was about midday. priation bill, and I thought it not unlikely had Question. Whom did you find with the Pres- escaped his attention. He took the order and ident, if anybody? read it, and observed, " This is not in conformAnswer. I found the President alone when ity with the Constitution of the United States, I first went in. that makes me Commander-in-Chief, or with Question. Will you have the kindness to the terms of your commission." state as nearly as you can what took place Mr. HOWARD. Repeat his language, if there? you please. Answer. I will try and state the substance The WITNESS. I cannot repeat it any nearer of it, but the words I cannot undertake to than I am now doing. state exactly. The President asked me if I Mr. CONKLING. Repeat your last answer recollected a conversation he had had with me louder, so that we may hear. when I first took command of the department? Mr. JOHNSON. What he said. I told him that I recollected the fact of the The WITNESS. What who said, the Presconversation distinctly. He then asked me ident or me? what changes had been made. I told him no Mr. HOWARD. The President. material changes, but such as had been made The WITNESS. He said, "This is not in I could state at once. I went on to state that conformity with the Constitution of the United in the fall six companies of the twenty-ninth States, which makes me Commander-in-Chief, infantry had been brought to this city to win- or with the terms of your commission." I ter; but as an offset to that four companies of replied, "That is the order which you have the twelfth infantry had been detached to South approved and issued to the Army for our govCarolina on the request of the commander of ernment," or something to that effect. I canthat district; that two companies of artillery not recollect the exact words, nor do I intend that had been detached by my predecessor, one to quote the exact words, of the President. He of them for the purpose of aiding inputting said, "Am I to understand that the President tlown the Fenian difficulties, had beenreturned of the United States cannot give an order to the command; that although the number of except through the General of the Army," or companies had been increased the numerical " General Grant?" I said, in reply, that that strength of the command was very much the was my impression, that that was the opinion same, growing out of an order reducing the that the Army entertained, and I thought upon artillery and infantry companies fromthe max- that subject they were a unit. I also said, " I imum of the war establishment to the mini- think it is fair, Mr. President, to say to you mum of the peace establishment. The Presi- that when this order came out there was condent said, " I do not refer to those changes." siderable discussion on the subject as to what I replied that if he would state what changes were the obligations of an officer under that,he referred to, or who made the report of the order, and some eminent lawyers were conchanges, perhaps I could be more explicit. suited-I myself consulted one-and the opinHe said, "I refer to recent changes, within a ion was given to me decidedly and unequivoday or two," or something to that effect. I cally that we were bound by the order, constitold him I thought I could assure him that no tutionalor notconstitutional." The President changes had been made; that under a recent observed that the object of the law was evident, order issued for the government of the armies Mr. Manager BUTLER. Before you pass of the United States, founded upon a law of from that, did you state to him who the lawyers Congress, all orders had to be transmitted were who had been consulted? through General Grant to the Army, and in Answer. Yes. like manner all orders coming fiom General Question. What did you state on that subGrant to any of his subordinate officers must ject? necessarily come, if in my department, through Answer. Perhaps, in reference to that, a me; that if by chance an order had been given part of my statement was not altogether corto any junior officer of mine it was his duty rect. In regard to myself, I consulted Mr. at once to report the fact. The President asked Robert J. Walker. 161 Question. State whatyou said to him, whether Mr. EVARTS. Allow us to look at it. correct or otherwise? [The paper was handed to the counsel and Answer. I will state it. I stated that I had examined.] consulted Mr, Robert J. Walker, in reply t6 Mr. STANBERY. We have no objection. his question as to whom it was I had consulted; Mr. EVARTS. We will treat that as equivand I understood other officers had consulted alent to Order No. 17, unless tbme difference Mr. REVERDY JOHNSON. should appear. Questionz. Did you say to him what opinion Mr. Manager BUTLER. There is no difhad been reported from those consultations? ference, I believe, and it is the sameas is set Answer. I stated before that the lawyer that out in the answer. Do you desire to have it I consulted stated to me that we were bound read? by it undoubtedly; and I understood from Mr. JOHNSON. The Manager will read it, ome officers, who I supposed had consulted if he pleases. Mr. JOHNSON, that he was of the same opinion. Mr. Manager BUTLER read as follows: ~ Question. What did the President reply to [General Orders, No. 15.] that? WAR DEPARTMENT, Answer. The President said "the object of ADJUTANT G(ENERAL'S OFFICE, the law is evident." There the conversation WASHINGTON, March 12, 1868. ended by my thanking him for the courtesy v The following extract of an act of Congress is published for the information and government of all with which he had allowed me to express my concerned: own opinion. [PUBLIC —No. 85.] Question. Did you then withdraw? "An act making appropriations for the support of the Answer. I then withdrew. - Army for the year ending June 30, 1868, and for Question. Did you see General Thomas that other purposes." morning? " SEC. 2. And be it further enacted, That the headAnswer. I did not, that I recollect. I have quarters of the General of the Army of the United no recollection of it. States shall be at the city of Washington, and all orQuestion. (Handing a paper to the witness.) ders and instructions relating to military operations issued by the President or Secretary of War shall be State whether that is an official copy of the issued through the General of the Army, and, in case order to which you referred? of his inability,through the next in rank. The Gen~er. No, sir~ It ~~is only a part of the ral of the Army shall not be removed, suspended, swer. No, sir. It is only a part of the relieved from command, or assigned to duty elseorder. The order which I had in my hand, where thanat said headquarters, except at his own and which I have in my office, has the appro- request, without the previous approval of the Senpriation bill in frontof it. Tlhatis, perhaps, ate; and any orders or instructions relating to mill, priation bill in front of it. That is perhaps, tary operations issued contrary to the requirements another form issued from the Adjutant Gen- of this section shall be null and void; and any officer eral's office; but it is the substance of one mwho shall issue orders or instructions contrary to the tral's office; but it is the substance of one provisions of this section shall be deemed guilty of a part of the order. misdemeanor in office; and any officer of the Army Question. Is it so far as it concerns this who shall transmit, convey, or obey any orders or inmatter? structions so issued contrary to the provisions of this Answer. So far as coqncerns thzis matter it section, knowing that such orderswereso issued, shall Answer. So far as concerns this matter it be liable to imprisonment for not less than two nor is the same order; but it is not the same copy, more than twenty years, upon conviction thereof in or, more properly, the same edition. There are any court of competent jurisdiction. "SEC. 3. And be it further enacted, That section two editions of the order one published with three of the j oint resolution relative to appointments the appropriation bill, and this is a section of to the Military Academy, approved June 16, 1866, the appropriation bill, and probably has been be, and the same is hereby, repealed." * published as a detached section. * *published as a detached section. "SEC. 5. And be it further enacted, That it shall be Question. Is that an official copy? the duty of the officers of the Army and Navy and Answer. Yes, sir; that is an official copy. of the Freedmen's Bureau to prohibit and prevent Question. This, I observe, is headed " Order whipping or maiming of the person as a punishment uestion. This, I observe, is headed Order for any crime, misdemeanor, or offense, by any preNo. 15. " 1 observed you said " No. 17." Do tended civil or military authority in any State lately you refer to the same or different orders? in rebellion until the civil government of such State Answer. I refer to the same order, and I shall have been restored. and shall have been recogt.hnkwer Ordfer No.17 the onme containing te nized by the Congress of the United States. think Order No. 17 is the one containing the "SEC. 6. And be itfurther enacted, That all military appropriation bill, the one I referred to, and forces now organized or in service in either of the the one I had in my hand, and, I think, the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Louisiana, Mississippi, one that is on file in my office. That made and Texas, be forthwith disbanded, and that the furthe confusion in the first place. I may have ther organization, arming, or calling into service of said Order 15 or 17, but Orde'rNo. 17 embraces, the said militia forces, or any part thereof, is hereby prohibited, under any circumstances whatever, until I think, all the appropriation bill, and is the the same shall be authorized by Congress." full order. * * * * * * * * * * Question. This is No. 15, and covers the "Approved March 2,1867." second and third sections of that act? By order of the Secretary of War: Answer. The sections are the same. E. D. TOWNSEND, Mr. Manager BUTLER, (to the counsel for Official: the respondent.) I propose to put this paper in E. D. TOWNSEND, evidence, if you do not object. Assistant Adjutant General. C. I.-11. 162 Question. You are still in command of the Question. I understood you to say that the department. as I understand? answer was'"constitutional or not constituAnswer. Yes, sir. tional," in'your response to General BUTLER. C Answer. I made a mistakes then. The question was whether we were bound by it, Question. TIhe paper which you had and and I should like to correct it. which wvas read by the President on that day Mr. Manager BUTLER. You may do so. was marked " Orders No. 17," was it? Mr. STANBERY. Certainly. [To the Answer. Fifteen or seventeen. witness.] You said in your former answer QuestTon. This is fifteen, is the other seven- that the advice was that you were bound to teen? obey it whether it was constitutional or not. Answer. I think it was, but I will not be sure. Answer. Until it was decided. We had no Question. In that paper marked No. 17 was right to judge of the Constitution-the officers the whole appropriation act printed and set out, had not. and was it in other respects like this? Question. That was the advice you got? Answer. In other respects like that. There Answer. Yes, sir. is one thing I wish to state. The copy on file Question. Until it was decided-decided by in my office contains the appropriation bill, and whom and where? I may have confounded them. It is numbered Answer. By the Supreme Court; and not seventeen. only that, after the decision is made it must Question. And it is your impression that the be promulgated to us in orders as null and void, paper read by you at the President's was the and no longer operating. same you had? Question. When you said to the President Answer. That is my impression, although it that he had approved something, did you speak may have been that now before you. I cannot in reference to that Order No. 17 which consay. tained the whole of the act? Question. As I understand you, when the Answer. I did. document No. 17 was sent to the officers of the Question. What did you mean to say-that Army there was a discussion among them, you he had approved the order, or had approved said? the act? Answer. Yes. Answer. As far as we are concerned, the Question. I see this document contains no order and the act are the same thing; and if construction of that act, but simply gives the you will observe, it is marked "approved.: act for their information; is that so? That means by the President.'Answer. Yes, sir. Question. What is marked "approved," the Question. Upon reading the act, then, a dis- order or the act? cussion arose among the officers of the Army? Answer. The act is marked "approved." Answer. Yes. The order contains nothing but the act, not a Question. As to its meaning, or what? word besides. Answer. A discussion with a view of ascer- Question. Then the approval that you retaining what an officer's obligations were under ferred to was to the act? that act. Answer. I consider the act and the order Question. You had received no instructions the same. frcm the War Department or elsewhere except Question. But the word "approved" you what are contained in that document itself? speak of was to the act? Answer. None whatever. Answer. Of course; but as far aswe are conQuestion. It left you, then, to construe the cerned in the Army the act and the order are the act? same thing. Answer. Yes, sir. Mr. Manager WILSON. Mr. President, we Question. Upon that you say that to settle now offer a duly authenticated copy of General your doubts you applied to an eminent lawyer? Emory's commission: Answer. I had no doubt myself, but to The President of te United State: satisfy the doubts of others. lb all who shall see these presents, greeting: Question. Youappliedto an eminentlawyer? Know ye, that I do hereby confer on William I. Answer. Yes, sir. Emory, of the Army of the United States, by and with Question. And that gentleman whom you the advice and consent of the Senate, the rank of major general by brevet in said Army, to rank as applied to was Mr. Robert J. Walker? such from the 13th day of March, in the year of our Answer. Yes, sir. Lord 1865, for gallant and meritorious services at the battle of Cedar creek, Virginia; and I do strictly Question. Was it he that advised you that charge and require all officers and soldiers to obey you were bound to obey only orders coming and respect him accordingly; and he is to observe through General Grant, whether it was con- and follow such orders and directions from time to time as he shall receive from me or the future Presistitutional or unconstitutional to send orders dent of the United States of America, and other offiin that way? cers set over him according to law, and the rules and Answer. The question of constitution was. discipline of war. This commission to continue in force during the pleasure of the President of the not raised; it was only a question of whether United States for the time being, we were bound by that order. Given under my hand at the city of Washington, 163 this 17th day of July, in the year of our Lord 1866, Mr. Manager WILSON. I will read it: and of the ninety-first Year of the independence of HEADQUARTERS ARMY OF THE-UNITED STATES, the United States. ANDREW JOHNSON. HEADQUA TES, O. THE uNIE STATE6, [Seal of the War Deapartment.] SIR: WASHINGTON, D. C., January 24, 1868. [Seal of the Warr Department.] SIR: I have the honor Very respectfully to request By the President: to have in writing the order which the President gave EDWIN M. STANTON. me verbally on Sunday, the 19th instant, to disreSecretary of War. gard the orders of Hon. E. M. Stanton as Secretary of This is duly certified from the Department, War until I knew from the President himself that they were his orders. the certificate being as follows: I have the honor to be, veryrespectfully,yourobedient servant, U. S. GRANT, Gener-al. ADJTWAR DEPARTMENT, His Excellency A. JOHNSON, ADJUTANT GENE-IRAL'S OFFICE. President of the United States. March 24. 1868. It appears from the records of this office that the Upon which letter is the following indorseannexed document is a true copy of the original ment: commission issued to Brevet Major General W. H. ExECUTIVE MANSION, Emory, United States Army, from this office. WASHINGTON, D. C., January 29, 1868. E. D. TOWNSEND, ANDREW JOHNSON, President of the United States. Assistant Adjutant General. In reply to request of General Grant of the 24th January, 1868, the President does so, as follows: Be it known that E. D. Townsend, who has signed As requested in thiscommunication, General Grant the foregoing certificate, is an assistant adjutant is instructed in writing not to obey any order from general of the Army of the United States, and that the War Department assumed to be issued by the to his attestation as such full faith and credit are direction of the President, unless such order i s known and ought to be given. by the General commanding the armies of the UniIn testimony whereof I, E. M. Stanton, Secretary ted States to have been authorized by the Executive. of War, have hereunto set my hand, and ANDREW JOHNSON. [L S.] caused the seal of the Department of War of Mr. CAMERON. I should be glad to have the United States of America to be affixed on tha read by the Cler this 24th day of March, 1868. tat rea y te ler. E. M. STANTON, The CHIEF JUSTTCE. The Secretary will Secretary of War, read the order. We also offer the order assigning General The Sedretary read the letter of General Emory to the command of the department Grant and the indorsement last read by Mr. of Washington: Manager WILSON. Mr. Manager WILSON. The next docu[Special Orders, No. 426.] ment which we produce is a letter written by HEADQUARTERS ARMY OF THE UNITED STATES, the President of the United States to General ADJUTANT GENERAL'S OFFICE, WASHINGTON, August 27, 1867. Grant of date of February 10, 1868. It is the [Extract.] original letter, and I send it to counsel that 25. Brevet Major General W. H. Emory will forth- they may examine it. with relieve Brevet Major General Canby, in com- [The letter was handed to the counsel for mand of the department of Washington, and by the President, and examined by them.] direction of the President is assigned to duty accord- Mr. STANBERY. Mr. Chief Justice, it ilg to his brevet of major general while exercising Mr. STANBERY. Mr. Chief Justice it such command. appears that this is a letter purporting to be a By command of General Grant: part of a correspondence between. General Assistant Ad. tant General.D Grantandthe President. Iaskthehonorable Official: Managers whether it is their intention to proE. D. TOWANSEND, duce the entire correspondence? A8ssistantIAdcjutant General. Mr. Manager WILSON. It is not our in-We now offer the order of the President, un- tention to produce anything beyond this letter der which General Thomas resumed his duties which we now offer. as Adjutant General of the Army of the United Mr. STANBERY. No other part of the States: correspondence but this letter? EXECUTIVE MANSION, Mr. Manager WILSON. Thatis allwe proWASHINGTON, D. C., February 13, 1868. pose now to offer. GENERAl: I desire that Brevet Major General [The letter was returned to the Managers.] Lorenzo Thomas resume his duties as Adjutant Gen- Mr. STANBERY. We wish the honorable eral of the Army of the United States. Respectfully, yours, ANDREW JOHNSON. Managers to state what is the purpose of inGeneral U. S. GRANT, commanding Army of the Uni- troducing this letter? What is the object? ted States, Washington, D. C. What isthe relevancy? What does it relate to? It is the original order. Mr. Manager WILSON. I may state that I now offer the original letter of General the special object we have in view in the introGrant requesting the President to put in writ- duction of this letter is to show the President's ing a verbal order which he had given him own declaration of his intent to prevent the prior to the date of this letter. Both the let- Secretary of War, Mr. Stanton, resuming the ter andl the indorsement by the President are duties of the office of Secretary of War, notoriginal. withstanding the action of the Senate on his Mr. STANBERY. Allow us to look at it. case, and the requirement of the tenure-ofMr. Manager WILSON. Certainly. office bill. Do you desire it read? [The letter was handed to counsel, and after Mr. STANBERY. Certainly, if it is to examination returned to the Managers.] come in. 164 Mr. Manager WILSON. I ask the Secre- places you in a different predicament, and shows that tary to read it. you not only concealed your design from the President, but induced him to suppose that you would The CHIEF JUSTICE. The Secretary will carry out his purpose to keep Mr. Stanton out of read it.' office, by retaining it yourself after an attempted The Secretary read the letter, as follows restoration by the Senate, so as to require Mr. Stanton to establish his right by udicial decision. EXECUTIVE MANSION, February 10, 1868. I now give that part of this "history," as written GENERAL: Th extraordinary character of your yourself ih your letter of the 28th ultimo: GEEAL heetrodiay hratrfyor "Some time after I assumed the duties of Secretary letter of the 3d instant would seem to preclude any of War ad inter the President asked me my vicws reply on my part; but the manner in which publicity as to the course Mr. Stanton would have to pursue, has been given to the correspondence of which that ast letter forms a part, and the grave questions which siontoobtainpossessioo gfhisoffice. Myreply was, are iivolved, induce me to take this mode of giving, in substance, that Mr. Stanton would hava to appeal as a proper sequel to the communicationswhichhave to the courts to reinstate him, illustrating my posipassed between us, the statemcnts.of the five mom- tion by citing the ground I had taken in the case of bers of the Cabinet who were present on the occa- the Baltmore police commissioners." sion of our conversation on the 14th ultimo. Copies Now, at that time, as you admit in your letter of of the letters which they have addressed to me upon the 3d instant, you held the office for the very object You speak of my letter of the 31st ultimo as a re- u say that in a iteration of the "Pmany and gross misrepresenta- yo ccepting the offc e one motive a tions" contained in certain newspaper articles, and prevent the Presidentfro appointing some other reassert the correctness of the statements contained eron who ould retain possession, and thus mse in your commrpunication of the 28th ultimo: aqdding- judicial proceedings necessary. You knew thePrespand here I give your own words-" anything inyours ident was unwilling to trust the office with any one in repls to it to the -y contrary anythingingyurs who would not, by holding it, compel Mr. Stanton When a controversy upon matters of fact reaches to resort to the courts. You perfectly understood the point t t a which this has been brought, further thatinthis interview, "some time after you accepted the office, the President, not contentwithyour assertion or denial between the -immediate partiese an you sse should cease, especially where, upon either si aee, desired an expression of your views, and you loses the character of the respectful discussion which answered him that'Mr. Stanton "would have to is required by the relations in which the parties stand appeal to the courts. to each other, and degenerates in tone and temper. If the President had reposed confidence before he In such a case, if there is nothing to rely upon but the knew your views, and that confidence had been vioopposing statements, conclusions must be drawn from lated, it might have been said he made a mistake; those statements alone, and from whatever ntrinsic but a violation of confidence reposed after that conprobabilities they afford in favor of or against either versation was no mistake of his, nor of yours. It is of the parties. I should not shrink from this test in the fact only that needs be stated, that at the date this controversy; but, fortunately, itis notleft to this of this conversation you did not intend to hold the test alone. There were five Cabinet officers present office with the purpose of forcing Mr. Stanton into at the conversation, the detail of which, in my letter court, but did hold it then, and had accepted it, to of the 28th ultimo, you allow yourselfto say, contains prevent that course from being carried out. In "many and gross misrepresentations." These gen- other words, you said to the President, "that is the. tlemen heard that conversation and have read my proper course," and you said to yourself, "I have statement. They speak for themselves, and I leave accepted this office and now hold it to defeat that the proof without a word of comment. course." The excuse youmake in a subsequent parI deem it proper, before concluding this communi- agraph of that letter of the 28th ultimo, that aftercation, to notice some of the statements contained in ward; you changek your views asto what would be a your letter. proper course, has nothing to do with the point now You say that a performance of the promises alleged under consideration. The point is that before you to have been made by you to the President "would changed your views you had secretly determined to have involved a resistance to law, and an inconsist- do the very thing which at last you did-surrender ency with the whole history of my connection with the office to Mr. Stanton. You may have changed the suspension of Mr. Stanton." You then state that your views as to the law, but you certainly did not you had fears the President would, on the removal change your views as to the course you had marked of Mr. Stanton, appoint some one in his place who out for yourself from the beginning. would embarrass the Army in carrying out the recon- Iwill onlynotice one more statement in yourletter struction acts, and add: of the 3d instant-that the perform ance of the prom"It was to prevent such an appointment that I ac- ises which it is allegedwere made byyou would have cepted the office of Secretary of War ad interim, and involved you in the resistance of law. I know of no not for the purpose of enabling you to get rid of Mr. statute that would have been violated had you, carStanton by my withholding it from him in opposition rying out your promises in good faith, tendered your to law, or, not doing so myself, surrendering it to one resignation when you concluded not to be made a who would, as the statements and assumptions in partyinany legalproceedings. You add: your communication plainly indicatewas sought." "I am in a measure confirmed in this conclusion First of all, you here admit that fiom the very be- by your recent orders directing me to disobey orders ginning of what you term "the whole history" )f from the Secretary of War, my superior, and your your connection with Mr. Stanton's suspension, you subordinate, without having countermanded his auintended to circumventthePresident. Itwas to carry thority to issue the orders I am to disobey." out that intent that you accepted the appointment. On the 24th ultimo you addressed a note to the This was in your mind at the time of your acceptance. President requesting in writing an order given to It was not, then, in obedience to the order of your you verbally five days before to disregard orders from superior, as has heretofore been supposed, that you Mr. Stanton as Secretary of War until you "knew assumed the duties of the office. You knew it was fromthePresidenthimselfthattheywerehisorders." the President's purpose to prevent Mr. Stanton from On the 29th, in compliance with your request, I did resuming the office of Secretary of War; and you in- give you instructions in writing "not to obey any tended to defeat that purpose. You accepted the orderfromtheWarDepartment, assumed to be issued office, not in the interest of the President, but of Mr. by the direction of the President, unless such order is Stanton. If this purpose, so entertained by you, had known by the General commanding the armies of been confined to yourself~ if, when acccpting the the United States to have been authorized by the office, you had done so with a mental reservation to Executive." frustrate the President, it would have been a tacit There are some orders which a Secretary of War deception. In the ethicsof some persons such acourse may issue without the authority of the President; is allowable. But you cannot stand even upon that there are others which he issues simply as the agent questionable ground. The "history" of your con- of the President, and which purport to be " by direcnection with this transaction, as written by yourself, tion" of the President. For such orders the Presi 165 dent is responsible, and he should therefore know are referred to as explanatory of it. Do you and understand what they are before giving such "direction." Mr. Stanton states, in his letter of theose papers 4th instant, which accompanies the published cor- Mr. Manager WILSON. All has been read respondence, that he "has had no correspondence which we propose to offer. with the President since the 12th of August last;" Mr. STANBERY. You do not, therefore, and he further says that since he resumed the duties refore, of the office he has continued to discharge them propose to offer the papers, copies of which "without any personal or written communication accompany that letter and which are referred with the President;" and he adds, "no orders have to in it? been issued from this Department in the name of the President with my knowledge, and I have received Mr. Manager WILSON. I have stated to no orders from him." the counsel that we offered a letter of thb PresIt thus seems that Mr. Stanton now discharges the ident of the United States. It has been read. duties of the War Department without any refer- We ence to the President, and without using his name. We proposed to offer the letter; we have ofMy order to you had only reference to orders " as- fered it; and it is in evidence. sumedto beissuedhby the direction of the President." Mr. STANBERY. You do not now proIt would appear from Mr. Stanton's letter that you have received no such orders from him. However, pose to offer in your note to the President of the 30th ultimo, in Mr. Manager WILSON. The entire letter which you acknowledge the receipt of the written has been read. order of the 29th, you say that you have been informed by Mr. Stanton that he has not received any Mr. STANBERY. ~ We do not understand order limiting his authority to issue orders to the that. We ask that the documents referred tO Army, according to the practice of the Department, be read with that letter. They accompany it, and state that "while this authority to the War Department is not countermanded, it will be satisfac- and are referred to in it and explain it. tory evidence to me that any orders issued from the Mr. Manager WILSON. We offer nothing, War Department by direction of the President are sir, bt the letter. authorized by the Executive." s but the letter. The President issues an order to you to obey no or- Mr. STANBERY. Then we object to it. derfrom the War Department, purporting to be made Mr. Manager WILSON. If the counsel have "by the direction of the President," until you have anything to offer when they cm to present referred it to him for his approval. You reply that you have received the President's order and will not their case we will then consider it. obey it; but will obey an orderpurportingto be given Mr. STANBERY. We ask it as a part of by his direction, ifit comes front the War Department. the letter. Suppose there were a postscript You will not obey the direct order of the President, but will obey his indirect order. If, as yousay, there there, would you not read't? has been a practice in the War Department to issue Mr. Manager WILSGON. There is no postorders in the name of the President withoit his direc- crit. That st tion, does not the precise order you have requested s e ttes i. and havereceived changethe practice as to the Gen- Mr. STANBERY. But there is matter eral of the Army? Could not the President counter- added to it. mand any such order issued to you from the War Mr. Ianager WILSON. There is no matter Department? If you should receive an order from anager ILSON There is no ma tter that Department, issued in the name of the Presi- added to it. The letter is there as written by dent, to do a special act, and an order directly from the President. the President himself not to do the act, is there a Mr. STANBERY. Mr. Chief Justice, we doubt which you are to obey? You answer the question when you say to the President, in your letter of will take a ruling upon that point. On the first the 3d instant, the Secretary of War is " my superior page of the letter the matter is referred to, and your subordinate," and yet you refuse obedience hich I will read: to the superior out of a deference to the subordi- w ead: nate. "GENERAL: The extraordinary character of your Without further comment upon the insubordinate letter of the 3d instant would seem to preclude any attitude which you have assumed, I am at loss to reply on my part; but the manner in which publicity know how you can relieve yourself from obedience to has been given to the correspondence of which that the orders of the President, who is made by the Con- letter forms a part and the grave questions which stitution the Commander-in-Chief of the Army and are involved induce me to take this mode of giving, Navy, and is therefore the official superior as well of as a proper sequel to the communications which have the General of the Army as of the Secretary of War. passed between us, the statements of the five memRespectfully, yours, ANDREW JOHNSON. bers of the Cabinet who were present on the occasion General U. S. GRANT, CommandingsArmiesoftheUnited of our conversation on the 14th ultimo. Copies of the letters which they have addressed to me upon. State8, Wahington, D. C. the subject are accordingly herewith inclosed." [Several Senators had gone out during the Again, he says: reading of the letter.] "There were five Cabinet officers present at the Mr. Manager WILSON. we now — conversation, the detail of which, in my letter of tl'e The CHIEF JUSTICE. Before the honor- 28thultimo, you allow yourselfto say, contains'many able Manager proceeds, he will wait until the and gross misrepresentations.' These gentlemen heard that conversation and haveread my statement. seats of the Senators are filled. The Sergeant- They speak for themselves, and Ileave the proof at-Arms will inform Senators that their pres- without a word of comment." ence is wanted. That is an answer to the statement referred Several Senators having returned to the to and made a part of the letter. Chamber, Mr. Manager WILSON. I suppose the The CHIEF JUSTICE. The honorable counsel does not claim that this is not the letManager may proceed. ter complete. We propose to offer nothing Mr. STANBERY. I ask the honorable beyond that, and this letter is in evidence. Manager if he is done reading all that belongs Mr. STANBERY. We wish to make the to that letter. In thatletter certain documents point, Mr. Chief Justice, that the gentlemen 166 are now bound to produce those communica- of evidence is the letter admissible. I admit tions as a part of that letter. that if the letters, according to the statement The CHIEF JUSTICE. Do the counsel here, showed a statement adopted by the Presiobject to the introduction of the letter without dent himself in regard to the matter with which the accompanying papers? we charge him, it would be a somewhat different Mr. STANBERY. Certainly. question, although it would not take it then Mr. Manager WILSON. I submit, Mr. entirely out of the rule of evidence; but anyPresident, that the objection comes too late, body can see by this reference that it is not the even if it would have been of force if made at point at all. I venture to say that in these the proper time. The letter has been sub- letters, when the gentlemen come to offer them mitted and read, and is in evidence now. in evidence here and we come to consider them, Mr. STANBERY. We assumed that you there is not a single stastement of any Cabinet were going to read the whole of it. officer whatever that will in any manner qualify Mr. Manager WILSON. The whole of the the confession of the President written upon letter has been read. the paper now read that his purpose was to The CHIEF JUSTICE. The Chief Justice prevent the execution of the tenure-of-office act is of opinion that the objection may now be and prevent the Secretary of War, after being taken. [To the counsel fbr the respondent.] confirmed by the Senate, and his suspension Do you object to the introduction of the letter being non-concurred in, from entering upon without the accompanying papers? forthwith and resuming, as that law requires, Mr. STANBERY. We do, sir. the duties of his office. That is the point of Mr. EVARTS. Our point is that these in- this matter. We introduce it for the purpose closures form a part of the communication of showing the President's confession of his made by the President to General Grant; and intent, and we say that in every point of light we assumed that they would be read as a part we can view it, for the reasons I have already of it when the letter was offered. stated, the letters referred to of the Cabinet Mr. Manager BINGHAM. We desire to ministers are foreign to the case, and we are state, Mr. President, that we claim that we are under no obligation to introduce them, and in under no obligation by any rule of evidence our judgment have no right to introduce them whatever, in introducing a written statement at all, being wholly irrelevant. of the accused, to give in evidence the state- Mr. EVARTS. Mr. Presidentments of third persons referred to generally The CHIEF JUSTICE. Before you proby him in that written statement. In the first ceed the counsel for the President will please place, their statements, we say, would not be to state their objection in writing. evidence against the President at all. They The objection was reduced to writing and would be hearsay. They would not be the sent to the desk. best evidence of what the parties affirmed. The CHIEF JUSTICE. The Secretarywill The matter contained in the letter of the Pres- read the objection made by the counsel for the ident shows that the papers, without producing President. them here, have relation to a question of fact The Secretary read as follows: between himself and General Grant, which The counsel for the President object that the letter question of fact, so far as the President is con- is not in evidence in the case unless the honorable cerned, is affirmed in this letter by himself Managers shall also read the inclosures therein reanid for himself, and concludes him; and we ferred to and by the letter made part of the same. insist that if forty members of his Cabinet Mr. STANBERY. Mr. Chief Justice, is were to write otherwise it could not affect this the question now before your Honor or before question. It concludes him; it is his own the court? declaration; and the matter of dispute be- The CHIEF JUSTICE. Before the body. tween himself and General Grant, although it Mr. STANBERY. Before the body? is referred to in this letter, is no part of the The CHIEF JUSTICE. Before the court. matter upon which we rely in this accusation Mr. STANBERY. The Managers read a against the President. letter from the President to use against him Mr. STANBERY and Mr. CURTIS. We certain statements that are made in it, and rely upon it. perhaps the whole; we do not know the object. Mr. Manager BINGHAM. Of course the They say the object is to prove a certain intent gentlemen rely on it; but they ask us to in- with regard to the exclusion of Mr. Stanton troduce matter which we say by no rule of evi- from office. In the letter the President refers dence is admissible at all, and for the reason to certain documents which are inclosed in it which I have stated already; it is notthe highest as throwing light upon the question and exevidence of the fact. If we are to have the plaining his own views. Now, I put it to hontestimony of the members of this Cabinet about orable Senators: suppose he had copied these a matter of fact, and, as I said before, this letters in the body of his letter, and had said letter discloses that it is a matter of fact, I just as he says here, " I refer you to these; claim that the highest evidence, so far as they these are part of my communication," could are concerned, is not their unsworn letter, but any one doubt that these copies, although they is their sworn testimony; and that by no rule come from other persons, would be admis 167 sible? He makes them his own. He chooses will submit the objection to the consideration to use them as explanatory of his letter. He of the Senate. The Secretary will read the is not willing to let that letter go alone; he objection. sends along with it certain explanatory matter. The Secretary read as follows: Now, you must admit, if he had taken the The counsel for the Presidentobjectthat the letter trouble to copy them himself in the body of his is not evidence in the case unless the honorable Manletter, they must be read. Suppose he attaches agers shall also read the inclosures therein referred them, makes them a part, calls them " exhib- to and by the letter made part of the same. its," affixes them, attaches them to the letter Mr. CONKLING. Mr. President, may I ask itself by tape or seal or otherwise, must they a question? I call for the reading of the words not be read as part of the communication, as i the letter relied upon now for this purpose. the very matter which he has introduced as I send my question to the Chair in writing. explanatory, without which he is not willing to e CHIEF JUSTICE. The Secretary will send that letter? Undoubtedly. Does the read the question proposed by the Senator form of' the thing alter it? Is he not careful from New York. to send the documents not in a separate pack- The Secretary read as follows: age, not in another communication, but en- The counsel for the respondent will please read the closage, in the letter itself, so that when the let- words in the letter relied upon touching inclosures. closed in the letter itself, so that when the letter is read the documents must be read? It Mr. STANBERY read as follows: seems to me there cannot be a question but " GENERAL: The extraordinary character of your letter of the 3d instant would seem to preclude any that they must read the whole and not merely reply on my part: but the manner in which publicity the letter; for it was the whole that the Presi- has been given to the correspondence of which that dent sent to be read to give his views, and not letter forms a part, and the grave questions which are involved, induce me to take this mode of giving, merely the letter unconnected with these doc- as a proper sequel to the communications which have uments. passed between us, the statements of the five memMr. Manager WILSON. Mr. President, bers of the Cabinetwho were present onthe occasion Mr. Manager WILSON. Mr. President, of our conversation on the 14th ultimo. Copies of the Managers do not care to protract this dis- the letters which they have addressed to me upon the cussion. We have received from the files of subject are accordingly herewith inclosed." the proper Department a letter complete in The CHIEF JUSTICE. Senators, you who itself, a letter written by the President and are of opinion that the objection of the counsigned by the President, in which, it is true, sel for the President be sustained will say he refers to certain statements made by mem- "ay — bers of the Cabinet touching a question of Mr. CONNESS. I call for the yeas and nays. veracity pending between thle President and The yeas and nays were ordered. General Grant. Now, we insist that that ques- The CHIEF JUSTICE. Senators, you who tion has nothing to do with this case. Every- are of opinion that the objection of the counthing contained in the letter which can by any sel for the President be sustained will answer possibility be considered as relevant to the "yea" as your names are called; those of the case is tendered by offering the letter itself; contrary opinion will answer " nay." and the statement of the President referring to Mr. DRAKE. I ask for information, whether, the alleged inclosures shows that those inclo- if this objection is sustained, it has the effect sures relate exclusively to that question of of ruling out the letter as evidence altogether? veracity pending between himself and the The CHIEF JUSTICE. It has. General. and are in no wise connected with Mr. ANTHONY. Mr. President, I would the issue pending between the President and desire, if it is proper, that the question should the representatives of the people in this case. be put in a different form; that it should be an We are willing to submit this point without affirmative vote. further discussion. The CHIEF JUSTICE. This is an affirmThe CEIIEF JUSTICE. Does the honor- ative form. able Manager considerhimself entitled to read Mr. CONNESS. I wish the Chair would an extract from the letter containing so much state the question. of it as would bear upon his immediate object The CHIEF JUSTICE. Senators, you who without reading the whole letter? are of opinion that the objection of the counMr. Manager WILSON. We read all there sel for the President be sustained will, as your is of the letter. names are called, answer " yea;" those of the The CHIEF JUSTICE. That is not the contrary opinion, "nay." If the yeas carry question. Would tl* honorable Manager con- it the effect will be to exclude the evidence. sider himself entitled to read so much of the If the nays carry it the effect will be to admit it. letter as bore upon his immediate object with- Mr. EVARTS. To exclude it, unless the out reading the whole? inclosures are also offered, if our objection Mr. Manager WILSON. I will state, in prevail. reply to the question propounded by the Pres- Mr. ANTI-IONY. Mr. President, perhaps ident, that we, of course, expect to use the I am rather dull, but I do not precisely underletter for any proper purpose connected with stand the effect of the decision of this question. the issues of the case. A negative vote admits the evidence I underThe CHIEF JUSTICE. The Chief Justice stand. 168 The CHIEF JUSTICE. It does. Mr. STANBERY. We see that this is the Mr. ANTHONY. And an affirmative vote copy Mr. Stanton requested. Read the inexcludes it. dorsement if you please. The CHIEF JUSTICE. Unless the in- Mr. Manager WILSON. Have you any obclosures are produced and read. jection to its being read? Mr. HENDERSON. Mr. President, lis- Mr. STANBERY. No; we want it read. tening to the question asked by the Senator Mr. Manager WILSON. It is as follows: from Rhode Island, I presume he desires to EXECUTIVE MANSION, know whether the letter with the inclosures WASHINGTON, D. C., February 21, 1868. can afterward be read as evidence, even if the SIR: Hon. Edwin M. Stanton having been this day objection be sustained. removed from office as Secretary for the Department The CHIEF JUSTICE. Undoubtedly it of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and will immeexcludes the evidence only in the case that the diately enter upon the discharge of the duties perinclosures be not read. taing to that offce. Mr. HENDERSON. So I understand. Mr. Stanton has been instructed to transfer to you. rsall the records, books, papers, and other public propThle CHIEF JUSTICE, (to the Secretary.) erty now in his custody and charge. Call the roll. Respectfully, yours, ANDREW JOHNSON. The Secretary called the roll down to the To BrevetMajorGeneralLoRENzO THOMAS, Adjutant name of Mr. CAMERON. General United States Army, Washington, D. C. Mr. JOHNSON. Mr. Chief Justice, I do Officialcopy: not think the puestion is understood. Respectfully furnished to Hon. Edwin M. Stanton. L. THOMAS, The CHIEF JUSTICE. The roll is being Secretary of War ad interim. called. Mr. JOHNSON. The question is not un- Mr. CURTIS. We want the indorsement derstood evidently. read. The CHIEF JUSTICE, (to the Secretary.) ir. Manager WILSON. The indorsement Proceed with the call. The call of the roll can- is, Received 2.10 p. m., February 21, 1868; not be interrupted. present General Grant." The Secretary concluded the calling of roll, Mr. EVARTS. That indorsement is whose? and the result was-yeas 20, nays 29; as fol- Mr. STNBERY It is in the handwriting lows: M.of Mr. Stanton. DYEAS-Messrs. Bayard, Conkling, Davis, Dixon, Mr. Manager WILSON. I do not know. Joolittle, Fowler, Grimes, Henderson, Hendricks, Mr. STANBERY. Is that fact admitohnson, McCreery, Morrill of Vermont, Norton, ted? Patterson of Tennessee, Ross, Sprague, Trumbull, Mr. ManagerBUTLER. It is in the handVan Winkle, Vickers, and Willey-20. NAYS-Messrs. Anthony, Buckalew, Cameron, writing of Mr. Stanton. Cattell, Chandler, Cole, (Conness, Corbett, Cragin, Mr. Manager WILSON. We next offer Drake, Edmunds, Ferry, Fessenden, Frelinghuysen, s of the order removing Mr. Stanton and Howard, Howe, Morgan, Morrill of Maine, Nyer. Stanton and Patterson of New Hampshire, Pomeroy, Ramsey, the letter of authority appointing General Sherman, Stewart, Sumner, Thayer, Tipton, Wil- Thomas, with certain indorsements thereon, liams, and Wilson-29. NOT VOTING —Messrs. Harlan, Morton, Sauls- forwarded b the Presdent to the Secretary bury, Wade, and Yates-5. of the Treasury for his information. [The The CHIEF JUSTICE. On this question document was handed to the counsel for the the yeas are 20 and the nays 29. So the respondent, and afterward returned by them objection is not sustained. to the Managers.] Have the counsel for the Mr. Manager WILSON. I now offer the respondent any objection to the introduction letter in evidence. it having already been read. of that document? If not, I ask that it may I now offer a copy of the letter of appointment be read by the Secretary. of the President appointing Lorenzo Thomas The CHIEF JUSTICE. The Secretary will Secretary of War ad interim, as certified to by read the paper. General Thomas. I will, however, in the first The Chief Clerk read as follows: place, submit it to the counsel for examination, [Copy.] [submitting the paper to the counsel for the EXECUTIVE MANSION, respondent.] I call the attention of counsel WASHINGTON, D. C., Februarv 21, 1868. SIR: By virtue of the power and authority vested to one thing in connection with that letter, and in me as President b the Constitution and laws of that is, we offer it for the purpose of showing the United States, you are hereby removed from that General Thomas attempted to act as Sec- office as Secretary for the Ddpartment of War, and retary of War ad interim, and that his signa- your functions as such will terminate upon receipt of this communication. ture as such is attached to that copy. It we You will transfer to Brevet Major General Lorenzo are not called upon to prove his signature, of Thomas, Adjutant General of the Army, who has course we shall not introduce any testimony this day been authorized and empowered to act as ~course we sh ntoucytetmo y Secretary of War ad interim, all records, books, for t!at purpose. papers, and other piublic property now in your cusMr. CURTIS. Stop one moment, if you tody and charge. please. Let us look at this paper further. Respectfully, yours, ANDREW JOHNSON. plhease counsel for the respon'it having ex* To Hon. E. M. STANTON, Washington, D. C. [The counsel for the respondent having ex- Official: amined the paper returned it to the Managers.] W. G. MOORE, United States Azmy.' 169 [Copy.] For horses for artillery and cavalry practice,$1,000. EXECUTIVE MANSION, For repairs of officers' quarters. $5,000. WASHINGTON, D. C., February 21,1868. For targets and batteries for artillery practice, $500. SIR: Hon. Edwin M. Stanton having been this day For furniture 6f cadets' hospital, $200. removed from office as Secretary for the Department For gas pipes, gasometers, and retorts, $600. of War, you are hereby authorized and empowered For materials for quarters for subaltern officers, to act as Secretary of War ad interim, and will imme- $5,000. diately enter upon the discharge of the duties per- For ventilating and heating the barracks and other taming to that office. academic buildings; improving the apparatus for Mr. Stanton has been instructed to transfer to you cooking for the cadets; repairing the hospital buildall the records, books, papers, and other public prop- ings, including the introduction of baths for the sick, erty now in his custody and charge. the construction of water closets in the library buildRespectfully, yours, ANDREW JOHNSON. ing, and new furniture for the recitation-rooms. To BrevetMajorGenerFalLORENzo THOMAS, Acjutant For purchase of fuel for cadets' mess-hall, $3,000. General United States Army, Washington, D. C. For the removal and enlargement of the gas-works, Official: $20,000. W. G. MOORE, United States Army. For additional appropriations, for which estimates were not made last year: February 21, 1868. For enlarging cadet laundry, $5,000. Respectfully referred to the honorable the Secre- For furniture for soldiers' hospital, $100. tary of the Treasury, for his information. For increasing the supply of water, replacing mains, By order of the President: &c., $15,000. W. G. MOORE, United States Army. For ice-house and additional store and servants' rooms, $7,500. TREASURY DEPARTMENT, February 29, 1868. For fire-proof building for public offices, $15,000. I certify the within to be true copies of the copies For breast-high wall of water battery, $5,000. of orders of the President on file in this Department For permanent derrick on the wharf, $2,500. for the removal of Edwin M. Stanton from the office SEC. 2. And be it further enacted, That the cadets of of Secretary for the Department of War and the ap- the Military Academy be entitled to the ration now pointment of Lorenzo Thomas to be Secretary ad received by the acting midshipmen at the Naval interim. Academy, commencing at the date of the approval H. McCULLOCH, of the law authorizing the same. Secretary of the Treasury. SEC. 3. And be it further enacted, That hereafter the Mr. Manager BUTLER. Mr. President, we assistant professor of Spanish shall receive the same Mr.Manager BUAT pER.Mr.P dent epay and emoluments allowed to other assistant prohave here now an official copy of General fessors of the academy. Orders No. 17, of which General Emory spoke, SEC. 4. And be it further enacted, That no part of and we now offer it, so that there may be no the moneys appropriated by this or any other act shall be applied to the pay or subsistence of any cadet mistake that this document and the one shown from any State declared to be in rebellion against to him are the same so far as regards the point the Government of the United States, appointed ati ssue. [The document was handed to the after the 1st day of January,.1867 until such State shall have been restored to its original relations to counsel for the respondent, and presently re- the Union. turned to the Managers.] Do you want it Approved February 28, 1867. read? Mr. STANBERY. Oh, no. II.-[PUBLIC-No. 85.] Mr. Manager BUTLER. Then we offer it An act making appropriations for the support of the without reading it. Army for the year ending June 30, 1868. and for The document is as follows: other purposes. Be it enacted by the Senate and louse of Representa, [General Orders, No. 17.] tives of the United States of America in Congress. assemWAR DEPARTMENT, bled, That the following sums be, and the same ar( ADJUTANT GENERAL'S OFFICE, hereby, appropriated, outof any money in the TreasWASHINGTON, March 14, 1867. ury not otherwise appropriated, for the support of The following acts of Congress are published for the Army for the year ending the 30th of June, 1868: the information and government of all concerned: For expenses of recruiting, transportation of reI. An act making appropriations for the support cruits, and compensation to citizen surgeons for of the Military Academy for the year ending June medical attendance, $300,000. 30 1868. For pay of the Army, $14,757,952. II. An act making appropriations for the support For commutation of officers' subsistence, $2,228,982. of the Army for the year ending June 30, 1868. For commutation of forage for officers' horses, III. An act making appropriations for fortifica- $104,600. tions for the year ending June 30, 1868. For payments in lieu of clothing for officers' servants, $276,978. f I. —[PUBLIC —NO. 54.] For payments to discharged soldiers for clothing An act making appropriations for the support of the not drawn, $200,000. Military Academy for the fiscal year ending June For contingencies of the Army, $100,000. 30, 1868, and for other purposes. For artificial limbs for soldiers and seamen, $70,000. Beit enacted by the Senate and House of Representa- For Army medical museum, $10,000. tives of the United States of America in Congress as- For fhedical works for library of Surgeon General's sembled, That the following sums be, and the same office, $10,000. are hereby, appropriated, out of any money in the For expenses of Commanding General's office, Treasury not otherwise appropriated, for the support $10,000. of the Military Academy for the year ending the 30th For repairs and improvements of armories and of June, 1868: arsenals: For pay of officers, instructors, cadets, and musi- For arsenal and armory at Rock Island, Illinois, cians, $154,840. $686,500. For commutation of subsistence, $5,050, For the erection of a bridge at Rock Island, IlliFor pay in lieu of clothing to officers' servants, nois, as recommended by the chief of ordnance, $156. $200,000: Provided, Thatthe ownership ofsaid bridge For current and ordinary expenses, $66,467. shall be and remain in the United States, and the For increase and expense of library, $3,000. Rock Island and Pacific Railroad Company shall For expenses of Board of Visitors, $5,000. have the right of way over said bridge for all purFor forage for artillery and cavalry ho'ses, $9,000. poses of transit across the island and river, upon the 170 condition that the said company shall, before any such orders were so issued, shall be liable to imprisonmoney is expended by the Government, agree to pay ment for not less than two nor more than twenty and shall secure to the United States, first, half the years, upon conviction thereof in any court of compecost of said bridge, and second, half the expenses of tent jurisdiction. keeping said bridge in repair; and upon guaranty- SEC. 3. And be it further enacted, That section three ingsaid conditionsto the satisfaction of the Secretary of the joint resolution relative to appointments to of War, by contract or otherwise, the said company the Military Academy, approved June 16, 1866, be, shall have the free use of said bridge for purposes of and the same is hereby, repealed. transit, but without any claim to ownership thereof. SEC. 4. And be it further enacted, That the sum of For Watervliet arsenal, West Troy, New York, $150,000 be, and the same is hereby, appropriated out $38,200. of any moneys in the Treasury not otherwise approFor current expenses of the ordnance service, priated, to be disbursed by the Secretary of War, in *$300,000. the erection of fire-proof buildings at or near the For Alleghany arsenal, Pittsburg, Pennsylvania, city of Jeffersonville, in the State of Indiana, to be $34,000. used as storehouses for Government property. For Champlain arsenal, at Vergennes, Vermont, SEC. 5. And be itfurther enacted, Thatitshallbethe $800. duty of the officers of the Army and Navy and of the For Columbus arsenal, Columbus, Ohio, $139,625. Freedmen's Bureauto prohibitand prevent whipping For Fort Monroe arsenal, Old Point Comfort, Vir- or maiming of the person, as a punishment for any ginia, $6,000. crime, misdemeanor, or offense, by any pretended For Fort Union arsenal, Fort Union, New Mexico, civil or military authority in any State lately in re$10,000 bellion until the civil government of such State shall For Frankford arsenal, Bridesburg, Pennsylvania, have been restored and shall have been recognized $30,000. by the Congress of the United States. For Kennebec arsenal, Augusta. Maine, $1,525. SEC. 6. And be it further enacted, That all militia For Indianapolis arsenal, Indianapolis, Indiana, forces now organized or in service in either of the $169,625. States of Virginia, North Carolina, South Carolina, For Leavenworth arsenal, Leavenworth, Kansas, Georgia, Florida, Alabama, Louisiana, Mississippi, $15,000. and Texas be forthwith disbanded, and that the fur-For New York arsenal, Governor's Island, New ther organization, arming, or calling into service of York, $1,200. the said militia forces, or any part thereof, is hereby For Pikesville arsenal, Pikesville, Maryland, $800. prohibited, under any circumstances whatever, until For St. Louis arsenal, St. Louis, Missouri. $65,000 the same shall be authorized by Congress. For Washington arsenal, Washington, District of SEC. 7. And be itfurther enacted, That the paymasColumbia, $50,000. ter general be authorized to pay, under such regulaFor Watertown arsenal, Watertown, Massachu- tions as the Secretary of War shall prescribe, in addisetts, $21,667. tion to the amount received by them, for the travelFor the purchase of the Willard Sears estate, ad- ing expenses of such California and Nevada volunjoining the Watertown arsenal grounds, $49,700, or teers as were discharged in New Mexico, Arizona, or so much thereof' as may be necessary; and the Secre- Utah, and at points distant from the place or places tary of War is hereby authorized to sell at public of enlistment such proportionate sum according to auction a lot of land belonging to the United States, the distance traveled as have been paid to the troops situated in South Boston, if, in his opinion, the same of other States similarly situated; and such amount is not needed for the public service, and pay the pro- as shall be necessary to pay the same is hereby apceeds thereof'into the Treasury. propriated out of any moneys in the Treasury not Bureau of Refugees, Freedmen, and Abandoned otAerwise appropriated. Approved March 2, 1867. Lands: For salaries of assistant commissioners, sub-assist- III.-[PUBLIC-No. 86.] ant commissioners, and agents, $147,500. For salaries of clerks, tS2,800. An act making appropriations for the construction, For stationery and printing, $d3,000. preservation, and repairs of certain fortifications For quarters aiid fuel, $200,000. and other works of defense for the fiscal year endFor commissary stores, $1,500,000. ing June 30, 1868. For medical department, $500,000. Be it enacted by the Senate and House of RepresentaFor transportation, $800,000. tives of the United States of America in Conaress as-. For school superintendents, $25,000. sembled, That the following sums be, and t!hey are For buildings for schools and asylums, including hereby, appropriated out of any money in the Treasconstruction, rental, and repairs, $500,000. ury not otherwise appropriated for the construction, For telegraphing and postage, $18,000: Provided, preservation, and repair of certain fortifications and That the Commissioner be hereby authorized to apply other works of defense for the year ending the 30th any balance on hand, at this date, of the refugees of June, 1868. and freedmen's fund, accounted for in his last annual For Fort Scammel, Portland, Maine, $50,000. report, to aid educational institutions actually incor- For Fort Georges, on Hlog Island ledge, Portland, porated for loyal refugees and freedmen: And pro- Maine. $50,000. videdfurther, That no agent or clerk not heretofore For Fort Winthrop. Boston, Massachusetts, $50,000. authorized by law shall receive a monthly allowance For Fort Warren, Boston, Massachusetts, $50,000. exceeding the sum of $200. For fort at entrance of New Bedf'ord harbor, MasSEC. 2. And be it further enacted, That the head- sachusetts, $30,000. quarters of the.General of the Army of the United For Fort Schuyler, East river, New York, $50,000. States shall be at the city of Washington, and all For Fort at Willett'sPoint, opposite Fort Schuyler, orders and instructions relating to military opera- New York, $50,000. tions issued by the President or Secretary of War For fort on site of Fort Tompkins, Staten Island, shall be issued through the General of the'Army, New York, $50,000. and, in case of his inability, through the next in For fort at Sandy Hook, New Jersey, $50,000. rank. The General of the Army shall not be re- For repairs of Fort Washington, on the Potomac moved, suspended, or relieved from command, or river, $25,000. assigned to duty elsewhere than at said headquar- For Fort Monroe, Hampton Roads, Virginia, ters, except at his own request, without the previous $50,000. approval of the Senate; and any orders or instruc- For Fort Taylor, Key West, Florida, $50,000. tions relating to military operations issued contrary For Fort Jefferson, Garden Key, Tortugas, $50,000. to the requirements of this section shall be null and For Fort Clinch, Amelia Island, Florida, $25,000. void; and any officer who shall issue orders or in- For fort at Fort Point, San Francisco Bay, Califorstructions contrary to the provisions of this section nia, $50,000. shall be deemed guilty of a misdemeanor. in office; For fort at Lime Point. California, $50,000. and any officer of the Army who shall transmit, con- For fort at Alcatray Island, San Francisco Bay, vey, or obey any orders or instructions so issued con- California, $10;d,000. trary to the provisions of this section, knowing that For Fort Preble, Portland harbor, Maine, $50,000. 171 For Fort McClary, Portsmouth harbor, New Hamp- Answer. On the 22d of February I received shire, $50,000. a note from Colonel Moore desiring to see me For Fort Independence, Boston harbor, Massachusetts, $50,000. the following morning at the Executive ManFor survey of northern and northwestern lakes, sion. $150,000. Question. Who is Colonel Moore? For Fort Montgomery, at the outlet of Lake Cham- Question. Who is Colonel Moore? plain, $25,000. Answer. He is on the staff of the President; For purchase and repair of instruments, $10,000. an officer of the Army. For purchase of sites now occupied and lands pro- Question. Does he act as Secretary to the posed to be occupied for permanent sea-coast de- President fenses: Provided, That no such purchase shall be resident? made except upon the approval of its expediency by Answer. I believe he does. the Secretary of War and of the validity of the title by Question. You received that note on the the Attorney General, $50,000. n t o ecd hat te n t For purchase of sites now occupied by temporary night of the 22d; about what time at night? sea-coast defenses: Provided, That no such purchase Answer. About seven o'clock in the evening. shall be made except upon the approval of its x- Question. Was any time designated when pediency by the Secretary of War and of the validity of the title by the Attorney General, $25,000. you should go? *For construction and repair of barracks and quar- Answer. Merely in the morning. ters for engineer troops at the depot of engineer Question. Sunday morning Did you go? supeplies near St. Louis, Missouri, $20,000.'or construction and repair of barracks and quar- Answer. I did. ters for engineer troops at the depot of engineer sup- Question. At what time in the morning? plies at Willett's Point, New York, $25,000. swer. About ten o'cloc SEC. 2. And be it further enacted, That there shall Answer. About ten o'clock. not be over fifty per cent. of the foregoing appropri- Question. Did you meet Colonel Moore ations expended during the fiscal year ending 30th there June, 1868, and the residue thereof shall not be ex- Answer. I did. pended till otherwise ordered. SEC. 3. And be it further enacted, That, in order to Question. What was the business? determine the relative powers of resistance of the Answer. He desired to see me in reference turret and thebroadside systems of iron-clad vessels to a matter directly concerning myself. of war, and whether or not our present heaviest guns are adequate to the rapid destruction of the heaviest Question. How concerning yourself? plated ships now built, or deemed practicable on Answer. Some time in December my name either system, and whether or not our best stone forts had been submitted to the Senate for brevets. will resist our heaviest guns, and, if not, what increase in strength, by adding either stone or iron or Those papers had been returned to the Execvariation in form, is.necessary to that end, the Sec- utive Mansion, and on looking over them he retary of War and the Secretary of the Navy aree had hereby authorized to detail a joint board of not less than six competent officers, three from the Army been set aside, and his object was to notify me and three from the Navy, whose duty it shall be to of that fact in order that I might make use of construct and test, by firing upon them, such targets infuence, if I desired it, to have the matter as they may deem necessary for the purposes above named. And the Secretary of War and the Secretary rectified. of the Navy are hereby authorized and directed to Question. After that did he say anything supply the board with such facilities for this purpose about your seeing the President? as they may require: Provided, It can be done from the unexpended funds and materials now at their Answer. I asked him how the President disposal, the expenses to be borne equally by the was. He replied " Very well; do you desire to War and Navy Departments, and from such funds at see him," to which I replied "Certainly;" and their disposal as the Secretary of War and the Secretary of the Navy may designate respectively. in the course of a few moments I was admitApproved March 2,1867. ted into the presence of the Executive. By order of the Secretary of War. Question. Was a messenger sent in to know E. D. TOWNSEND, if he would see you? OfficialAssistant Adutant General. Answer. I am unable to answer. I had a Official: E. D. TOWNSEND, conversation with Colonel Moore at the time. Assietant Adjutant General. He notified him. GEORGE W. WALLACE sworn and examinred. Question. Did Colonel Moore leave the room where you were conversing with him until you By Mar. Manager BUTLER: went in to see the President? Questibn. What is your name and rank in Answer. He left the room to bring out this the Army of the United States, if you have package of papers. No other object that I am any? aware of. Answer. George W. Wallace, lieutenant col- Question. Did he go into the office of the onel of the twelfth infantry, commanding the President where the President was for that garrison of Washington. purpose? Question. How long have you been in com- Answer. Yes, sir; he passed in the same mand of the garrison of Washington? door I did. Answer. Since August last. Question. And came out and brought a Question. What time in August? package and explained to you that your name Answer. The latter part of the month. The appeared to be rejected and then you went in exact date I do not recollect. to see the President? Question. State if at any time you were sent Answer. I did. I went in at my own refor to go to the Executive Mansion about the quest. 23d of February last. Question. After you had passed the usual 172 salutations what was the first thing he said to Mr. STANBERY. We object, Mr. Chief you? Justice, to that mode of examination-in-chief. Answer. The President asked me if any That way of examining a witness is altogether changes had been made in the garrison within new to us. a short time; any movement of troops. Mr. Manager BUTLER. I will not press it, Question. The garrison of Washington? sir. I always desire to waive whenever I can. Answer. The garrison of Washington. [To the witness.] Was there anything more Question. What did you tell him? said? Answer. I replied that four companies of Answer. Nothing more said on that subject. the twelfth infantry had been sent to the sec- Question. On your part or his? ond military district on the 7th of January, and Answer. Neither. beyond that no other changes had been made. Questions. Did you find out next day that you In doing so I omitted to mention another com- had not been rejected by the Senate? pany that I have since thought of. Mr. STANBERY. What has that got to do Question. Had he ever'sent to you on such with it? an errand before? Mr. EVARTS. It is wholly immaterial. Mr. CURTIS and Mr. EVARTS. He did Mir. Manager BUTLER. Not at all. The not send this time. President sends for an officer of the Army Mr. Manager BUTLER. Isthatquitecertain? through his Secretary, and informs him that the Mr. CURTIS. Yes; it is proved. Senate has rejected him, and then having got Mr. Manager BUTLER. Perhaps we shall him into his presence begins to inquire about see differently when we get through. [To the the movement of troops when it was not true witness.] Did he ever get you into his room, that he had been rejected. directly or indirectly, in order to put such a The WITNESS. If I used the word "rejected" question as that before? in my testimony I was not aware of it. I do Mr. EVARTS. That we object to. It as- not know that that was the expression; and sumes that he was got in then. when I come to reflect I think the language Mr. Manager BUTLER. If he was not got was that my name had been " set aside."' in, how was he there? Mr. Manager BUTLER. What made you Mr. EVARTS. This witness has said that change it? upon his inquiry how the President was the Mr. STANBERY. He did not change it. Private Secretary said "Would you like to He said "set aside" before. see him?" and the witness said "Certainly," Mr. Manager BUTLER, (to the witness.) and went into his room. If that is being got Do you say now that you did not understand into his room, directly or indirectly, I am very that you were rejected? much mistaken. Answer. That my name was set aside. My Mr. Manager BUTLER. I assumeonethe- own view of the matter was that I had been ory, Mr. President, and the counsel assume rejected. another. Question. If that was your view why did you Mr. EVARTS. No; I follow the testimony. change the language just now from "' rejected" I assume nothing. to "' set aside?" Mr. Manager BUTLER. I again say that I Mr. EVARTS. He did not change it. He assume another theory upon the testimony, said "set aside" before. It was you that and I think the testimony was that he came changed it. there by the procurement of the President. I Mr. Manager BUTLER. I understand what should so argue to the Senate if it become my he says, perfectly. opportunity to argue; but, without pausing for Mr. EVARTS and Mr. STANBERY. So that, I will ask this question. [To the wit- do we. ness.] Were you ever in that like position with Mr. Manager BUTLER, (to the witness.) regard to the President before you got there Why did you interrupt, sir, and say, " Well, I then? do not know that I did say' rejected?'" Answer. Never. The WITNESS. I have a perfect right, sir, Question. Did he say to you anything upon I presume, to make use of such language as I this subject: " I asked the same question of think proper in my replies. your commander, General Emory, yesterday, Mr. Manager BUTLER. Undoubtedly. I and he told me the same as you do? " also have a right to ask why do you use it? I Answer. I do not understand the question. do not object to the right. I only want to know Question. Did he say to you that he had the reason. asked the same question the day before of The WITNESS. My reason was to correct General Emory, and got the same answer? any misapprehension in regard to the expresAnswer. No, sir. sion of Colonel Moore. My own view was that Question. Did he speak of it as a thing that it amounted to a rejection; but he said " set he desired to know or a thing that he did know aside;" he used that language, I believe. already? Question. Did he make any difference beMr. EVARTS. What he did say is the tween "set aside" and "rejected" that you question? know of at that time? '173 Answer. Thatisaquestion I neverthoughtof. Question. While in the discharge of the Question. You did not think of it at that duties of your office, did you learn the office time? routine of practice by which money was drawn Answer. No, sir. from the Treasury for the use of the War DeQuestion. Did he advise you to use influence partment? with Senators to get yourself confirmed? Answer. I did, sir.'Mr. STANBERY. What has that to do Question. Will you state the steps by which with the question-what Colonel Moore ad- money could be drawn from the Treasury for vised him? the use of the War Department? Mr. Manager BUTLER. In order to show Answer. By requisition of the Secretary of whether he understood that he was rejected, War upon the Secretary of the Treasury, which because there was no occasion to use influence requisition passes through the accounting offices with Senators'if he did not understand that he of the Department, and is then honored by the was rejected. [To the counsel for the respond- issue of a warrant signed by the Secretary of ent.] Do you continue your objection? the Treasury, upon which the money is paid by Mr. STANBERY. Certainly; but there is the Treasurer of the United States. no use to continue it; you keep on asking the Question. Please name the accounting offiquestion in that way. [A pause.] Are you cers through whose offices it will pass. through with the witness, Mr. Manager? Answer. The Second Comptroller of the Mr. Manager BUTLER. I will let you know Treasury has the control of the War and Navy when I am, sir. [A pause.] I am now through accounts. Several of the auditing officers pass with the witness. upon war requisitions-the Second Auditor and Mr. STANBERY. So are we. the Third Auditor, and possibly others. Mr. DRAKE. Mr. President, I move that Question. Please trace and give the offices, the Senate take a recess for ten minutes. if you can, through which a requisition from The motion was agreed to; and the Senate the War Department for money would go, from resumed its session at two o'clock and forty- one office to the other, until the money would five minutes p. m. get back to the War Office? The CHIEF JUSTICE. The honorable Answer. My attention has not been called to Managers will proceed with their evidence. that subject until now, and I am not sure that Mr. Manager WILSON. We now, offer a I can state accurately the process in any given certified copy of the order restoring General case. My impression, however, is that a reThomas to the duties of the Adjutant Gen- quisition from the Secretary of War would come eral's office. to the Secretary of the Treasury, and pass from The CHIEF JUSTICE. Is there any ob- the Secretary's office to the office of the Second jection to the order? Comptroller of the Treasury for the purpose Mr. STANBERY. Has not that been put of ascertaining whether or not the appropriain before? tion upon which the draft was to be made had, Mr. Manager WILSON. No, sir; this is or had not, been overdrawn. The requisition the order 6f the General of the Army, issued would pass from the office of the Comptroller in pursuance of the President's request, which through the office of the Auditor, and thence we put in before. back to the Secretary of the Treasury. ThereThe CHIEF JUSTICE. The Secretary will upon, in the warrant room of the Secretary of read the order. the Treasury, a warrant for the payment of the The Secretary read as follows: money would be issued, which would also pass IIEADQUARTERS ARnY OF TIlE UNITED STATES, through the office of the Comptroller, being WASHINGTON, D. C., February 14, 1868. countersigned by him. Then it would pass into SIR: General Grant directs me to say that the the office of the Register of the Treasury to be President of the United States desires you to resume there registered, and thence to tle Treasurer your duties as Adjutant General of the Army. there registeredS and thence tie Treasurer Very respectfully, yours, of the United States, who upon this requisi~ C. B. COMSTOCK. tion, would issue his draft for the payment of Brevaet Brigadier General, A. A.. D. C. the money. This is substantially the process, General L. T Adjutant Genral although I am not sure that I have stated the Official copy for Hon. E. M. Stanton. Secretary of different steps accurately. War. L. THOMAS. Question. Ought it not to go to the Second Adjutant General.first ADJUTANT GENERAL'S OFFICE, ebruary 14, 1868. Auditor first? Answer. Quite possibly the requisition would WILLIAM E. CHANDLER sworn and exam- first go to the Auditor. ined. Question. The Second Auditor and then the By Mr. Manager BUTLER: Comptroller? Question. Mr. Chandler, I believe you were Answer. The Second or Third Auditor, and once Assistant Secretary of the Treasury? then to the Comptroller. Answer. I was, sir. Question. Is there any method known to Question. From what time to what time? you by which the President of the United Answer. From June, 1865, until the 30th of States or any other person can get money November, 1867. from the Treasury of the United States for the 174 use of the War Department except through a i the functions of the office of Secretary for the Derequisition of the Secretary of War? I i partment of War, notwithstanding the refusal of the Answer.tio oftherecirt.ry Senate to concur, &c.; and, also, by further unlawAnswer. There is not. fully devising and contriving, and attempting to deQuestion. I now desire to ask you what is vise and contrive, means, then and there, to prevent the course of issuing a commission to an offi- the execution of an act entitled'An act making confirmed by the Senate? appropriations for the support of the Army for the cer, say who has been confirmed by the Senate? fiscal year ending June 30, 1868, and for other purWhat is the official routine in the Treasury poses,' approved March 2, 1867; and also to prevent Department? I suppose it is the same for all? the execution of an act entitled'An act to provide f6r the more efficient government of the rebel States,' Answer. A commission is prepared in the passed," &c. Department and signed by the Secretary. It Deparded o he Presidtent and signed by the Secretary. It And in order to get the means of doing that, is forwarded to the President and signed by the wanted to control the purse as well as the him. It is then returned to the Treasury sword, and he wanted his man, his Secretary, offier, it is hereld until his oath and bonded h if in no warmer and closer relations to him,' to officer, it is held untilhis oath and bond have be in the ofce of Assistant Secretary of the been filed and approved; in the case of an Treasury, the Assistant Secretary of the officer not required by law to give bond the Treasury now by law being allowed to sign commission is held until he qualifies by taking warrants. the oath. It is my impression that this is the M anager BNGHAM and r. anager usual form. There are some officers in the r. Manager BINGHAM and Mr. Manager WILSON. Then the eighth article. Treasury Department whose commissions are L. countersigned by the Secretary of State in- Mr.ManagerBUTLER. Then,asnyassostead of lby the Secretary of the Treasury. ciates call to my attention, the eighth article The Assistant Secretaries, for instance, havecarges thatcommissions which are counterstgned by the "With intent unlawfully to control the disbursececountersigned by the,ment of the moneys appropriated for the military Secretary of State and not by the Secretary of service and for the Department of War, on the 21st the Treasury. day of February, in the year of our Lord 1868 "Question. As I suppose the Secretary of the HeTreasury's own commission is? "did, unlawfully and contrary to the provisions of Answer. It issues from the office of the Sec- an act," &c.retary of State, I suppose. Do these acts. Question. On the 20th of November, 1867, Mr. EVARTS. No; appointed Thomas. was there any vacancy in the office of Assistant You now propose to prove under that that he Secretary of the Treasury? appointed Cooper, or tried to do so. Answer. There was not, sir. iMr. ManagerBUTLER. This is the means: Question. Was there any vacancy up to the "with intent unlawfully to control." 30th of November? Mr. EVARTS and Mr. STANBERY. Did Answer. There was not. what? Question. Do you know Edmund Cooper? Mr. Manager BUTLER. Mr. STANB~ERY. Will the honorable "Did unlawfully and contrary to the provisions of Mnanager allow ne to ask what is the object of an act entitled'An act regulating the tenure of eertain civil offices,' passed March 2, 1868, and in violathis testimony about Mr. Cooper? What is tion of the Constitution of the United States"the purpose? And while the Senate were in session, notto go Mr. Manager BUTLER. The object is to on with the verbiage, appoint Lorenzo Thomas. show that one of the ways and means described Mr. EVARTS. The allegation is that with in the eleventh article by which the President this intent which you have stated, the Presiproposed to get control of the moneys of the dent didUnited States appropriated for the use of the "UThere being no vacancy in the office of Secretary War Department was, against law and without for the Department of aar, and with intent to vioright, to appoint his Private Secretary Assist- late and disregard the act aforesaid"ant Secretary of the Treasury. Which is the tenure-of-office actMr. CURTIS. Is that all the answer? "Then and there issue and deliver to one Lorenzo Mr. Manager BUTLER. I have answered Thomas a letter of authority in writing, in substance so far. If you have any other question I shall as follows; that is to say." be very glad to answer it. Now, you propose to prove under that, that Mr. CURTIS. Is that the only answer you there being no vacancy in the office of Assistant make to the question? Secretary of the Treasury, he proposed to apMr. Manager BUTLER. It is a sufficient point his Private Secretary, Edmund Cooper, answer, in my judgment, for the time. Assistant Secretary of the Treasury. That is Mr. EVARTS. What part of the eleventh the idea, is it under the eighth article? We article is this applicable to? object to this as not admissible under the eighth Mr. Manager BUTLER. Both the eighth article. As by reference to it will be perceived, and the eleventh articles. The eleventh article it charges nothing but an intent to violate the charges him with- civil tenure act, and no mode of violating that " Unlawfullydevisingandcontriving, and attempt- except in the want of a vacancy in the War Deing to devise and contrive, means by which lie should partment, the appointment of General Thomas prevent Edwin M. Stanton from forthwith resuming contrary to that act. 175 As for the eleventh article the honorable generally drawn as was the indictment in the court will remember that in our answer we Martha Washington case, which I now have in stated that there was in that article no such my mind, it having been drawn by an exceeddescription, designation of ways or means, or ingly good pleader, as tradition says, giving one attempts at ways or means, whereby we could general count, and then several specific counts, answer definitely; and the only allegations or setting out specific acts in the nature of there are, that in pursuance of a speech that specifications; so that, if the pleader fail in the Presidentmade on the 18th of August, 1866, setting out his specific acts, he still may hold he- under the general count, and the count setting ".Afterward, to wit, on the 21st day of February, out specifications is instead of a bill of particuA. D. 1868, at the city of Washington. in the District lars. Now, then, I say we need not discuss of Columbia, did,unlawfully, and in disregard of the requirement of the Constitution that he should take the question of pleading. care that the laws be faithfully executed, attempt to The only question is, is this competent, if we prevent the execution of an act entitled'An act can show it was one of the ways and means? regulating the tenure of certain civil offices,' passed March 2,1867, by unlawfully devising and contriving, The difficulty that rests in the minds of my and attempting to devise and contrive means by learned friends on the other side is that they which he should prevent Edwin M. Stanton from cluster everything about the 21st of February, forthwith resuming the functions of the office of Se cluster everything about the 21st of February retary for the Department of War, notwithstanding ~1868, They seem to forget that the act of the the refusal of the Senate to concur in the suspension 21st of February, 1868, was only the culminatheretofore made by said Andrew Johnson of said tion of a purpose formed long before, as in. the Edwin M. Stanton from said office of Secretary for the Department of War; and also, by further un- President's answer he sets forth, to wit: as lawfully devising and contriving, and attempting to early as the 12th of August, 1867, that he was devise and contrive means, then and there, to pre- determined then to get out Mr. Stanton, at any vent the execution of an act erititled'An act making appropriations for the support of the Army for rate-I would use the words " at all hazards;" the fiscal year. ending June 30, 1868, and for other but perhaps they might be subject to criticism purposes,' approved March 2, 1867: and, also, to pre- until we get through our casecertainly bythe vent the execution of an act entitled'An act to pro-rough our case-certainly bythe vide for the more efficient government of the rebel use of force, as the evidence now in shows. States,' passed March 2,1867, whereby," &c. He formed his purpose. The only allegation here as to time and prin- To carry it out there are various things to cipal action, in reference to which all these do. He must get control of the War Office; unnamed and undescribed ways and means but what good does that do if he cannot get were used, is, that on the 21st of February, somebody who shall be his servant, his slave, 1868, at the city of Washington, he did unlaw- dependent on his breath, to answer the requifully, and in disregard of the Constitution, at- sitions of his pseudo officer whom he may aptempt to prevent the execution of the civil point; and therefore he began when? Stantenure-of-office act, by unlawfully devising and ton was suspended, and as-early as the 12th of contriving and attempting to devise and con- December he had got to put that suspension trive means by which he should prevent Edwin and the reasons for it before the Senate, and M. Stanton from resuming his place in the he knew it would not live there one moment War Department. And now proof is offered after it got fairly considered. Now he begins. here, substantively, of efforts in November, What is the first thing he does? "To get 1867, to appoint, in the want of a vacancy in somebody in the Treasury Department that the office of Assistant Secretary of the Treas- will mind me precisely as Thomas will, if I can ury, Mr. Edmund Cooper. We object to that get him in the War Department." Thatisthe evidence. first thing; and thereupon, without any vacancy, Mr. Manager BUTLER. The objection, he must make an appointment. The difficultyMr. President and Senators, is twofold: first, that we find is that we are obliged to argue our that the evidence is not competent; second, case step by step upon a single point of evithat the pleading is not sufficient. I do not dence. It is one of the infelicities always of propose now to discuss the question of plead- putting in a case that sharp, keen, ingenious ing. It is said that the pleading is too general. counsel can insist at all steps on impaling you If we were trying an indictment at common upon a point of evidence; and therefore I have law for a conspiracy, or for any acts in the got to proceed a little further. nature of a conspiracy, and we made the alle- Now, our evidence, if you allow it to come gation too general, the only objection to that in is, first, that he made this appointment; that would be that it did not sufficiently inform the this failing, he sent it to the Senate, and defendant under it what acts might be given in Cooper was rejected. Still determined to have evidence; and the remedy for a defendant in Cooper in, he appointed him ad interim, prethat case would be to move for a specification cisely as this ad interim Thomas was appointed, or for a bill of particulars; and if he neglects without law and against right. We put it as a to move for that, the court take care in the part of the whole machinery by which to get course of the case, if any surprise is upon him, hold, to get, if he could, his hand into the because of evidence that he could not have Treasury of the United States, although Mr. known of, or could not have expected to allow Chandler has just stated there was no way to get him to come in and meet that new evidence. it except by a requisition through the War DeTherefore indictments for conspiracies are partment; andatthesame moment, toshow that 176 this was partof the sameillegal means we show tion was, who was Edmund Cooper. I supyou that although Mr. McCulloch, the Secre- pose my friends do not mean to object to that tary of the Treasury, must have known that alone. The question was, do you know him sThomas was appointed, yet the President took and who is he? pains-we have put in the paper —to serve on Mr. STANBERY. We asked what you Mr. McCulloch an attested copy of the ap- intended to prove in reference to Edmund pointment of Thomas ad interim, in order that Cooper? he and Cooper might recognize his warrants. Mr. Manager BUTLER. I have stated that Did I not answer my friends that this was a at very considerable length. I propose to sufficient ground? Mlore than that, I have prove that Mr. Edmund Cooper took possesyet to learn in a somewhat extended practice sion in the Treasury Department before the of the law, (not extending, however, so long as 30th of November, and that he had this comthat of most of the gentlemen on the other mission, showing that the Pre3ident gave a side,) that it was ever objected anywhere, when commission illegally in violation of the tenureI was tracing a man's motives, when I was of-office act to which I wish to call your atten-'tracing this course, that I had not a right to tion. The tenure-of-office act provides that put in every act that he did, valeat quantum. "in such case and in no other," to wit, where Everything that comes out of his mouth, every an officer has been guilty of misconduct or act that he does, I have a right to put in. crime, or fQr any reason becomes incapable or Let us see if that is not sustained by authori- legally disqualified to perform the duties of his ties. The question arose in the trial of James office, the President may suspend him; and Watson for high treason in the year 1817 be- then the sixth section provides thattore one of the best lawyers of England, Lord fore one of the best lawyers of England, Lord "The making, signing, sealing, countersigning, Ellenborough, assisted by Mr. Justice Holroyd, or issuing of any commission or letter of authority Mr. Justice Bayly, and Mr. Justice Abbott. for or in respect to any such appointment or emThe objection there was precisely the one ployment, shall be deemed. and are hereby declared to be, high misdemeanors." the learned counsel raise here. It was alleged that certain speeches had been made which Therefore the very signing and issuing of were treasonable speeches. That was all that this commission-the signing it, if he did not was said about them; they were not set out issue it; the issuing.of it, if he did not sign ally further. I got this book (32 State Trials) it-there being no vacancy which is contemfor an entirely different purpose; but it con- plated by the act, is a crime, and another tains an authority directly in point. Certain crime in and part of the great conspiracy. speeches were alleged; the indictment charged Therefore the question will be whether we'that certain speeches were wnade without setting shall be allowed to go into the condition of them out; and it was claimed that they could Mr. Cooper. I cannot put the whole of my not be proved as overt acts; and the question offer in one question, because I cannot prove'was whether certain other speeches could be it all by one witness. put in as tending to show the animus with The CHIEF JUSTICE. It will be neceswhich the first set of speeches had been spoken. sary to reduce the question to writing, in order Lord Ellenborough closed the discussion by that it may be submitted to the Senate. saying: Mr. Manager BUTLER. I will put it rather "Lord E tenborough. If there had been no particu-in the form of an offer to prove. 1 will write lar overt act under which this evidence was receiv- it as an offer to prove in a moment. able, it is an universal rule of evidence that what a Mr. STANBERY. It is not a question so party himself says may be given in evidence against much, Mr. Chief Justice, as to who Edmund him, to explain any part of his conduct to which it Cooper is, but what Edmund Cooper has got bears reference. Cooper is, but what Edmund Cooper has got "Mr. Wetherell,(thecounselforthedefendant.) We to do with this case; what the illegal appointdo not object that it is not evidence, but that it is meat of Edmund Cooper to be Assistant Secnot proof of the overt act. "Lord Ellenborough. There cannot be a doubt that retary of the Treasury ad interim, or other-,whatever proceeds from the mouth of man may be wise, has to do with this case; or what the given in evidence against him; it shows the inten-nt of Edmund Cooper forthe purtion with which he acts."2 Ste Tri page 1 pose of controlling the moneys in the Treasury "Whatever proceeds from his mouth." A Department has to do with this case. That is fortiori, Senators, when it is under his hand the material inquiry. like the seal of a commission, if his declara- Now, I understand the learned Manager to tions can be given, may not his acts? I would say that the proof he intends to make in regard not have troubled the presiding officer, I would to Mr. Cooper is, in the first place, that there not have troubled Senators so long upon this was an illegal appointment of Mr. Cooper, and matter had it not been that there may be other in that the President violated the Constitution acts all clustering around this grand conspir- of the United States, and violated the tenureacy which we propose, if we are permitted, to of-office act. Well, Mr. Chief Justice, have put in. they given us notice to come here to defend The CHIEF JUSTICE. The Manager will any such delinquency as that, if-it be a delinreduce his question to writing. quency? Have the House of Representatives Mr.' Manager BUTLER. The simple ques- impeached the President for anything done in 1' 77 the removal of Mr. Chandler; if he was re- A. D. 1868, at the city of Washington, in the District moved, or in the appointment of Mr. Cooper, of Columbia, did, unlawfully and in disregard of the if he was appointed in his place? They se- requirement of the Constitution that he should take if he was appointed in his place 9 They care that the laws be faithfully executed, attempt to lected one instance of what they claim to be a prevent the execution of an act entitled'An act violation of the Constitution and of the tenure- regulating the tenure of certain civil offices."'" of-office act in regard to a temporary appoint- That is the unlawful thing; and how? ment made during the session of the Senate; ment made during the session of the Senate; "By unlawfully devising and contriving, and atand that was the case of General Thomas, and tempting to devise and contrive, means by which he of General Thomas alone. As to that, of should prevent Edwin M. Stanton from forthwith course, we have no objection to their going resuming the functions of the office of Secretary for into evidence, because we have had notice of the Department of War, notwithstanding the refusal into evidence, because we have had notice of of the Senate to concur in thesuspension theretofore it, and are here ready to meet it; but as to any made by said Andrew Johnson of said Edwin M. high crime and misdemeanor in reference to Stanton from said office of Secretary for the Department of War; and, al!o, by furthur unlawfully devisthe appointment of Mr. Cooper, certainly the ing and contriving, and attempting to devise and gentlemen have no authority to make such a contrive, means, then and there, to prevent the execharge, because they come here with a dele- cution of an act entitled'An act making appropriagated authority; they come here onl to make tions for thd support of the Army for the fiscal year gated authority; they come here onlyto make ending June 30, 1868, and for other purposes."' the charges found good by the House of Representatives, and not the charges that they That is the act which contains the section choose to manufacture here. The Managers requiring the orders for military operations to have no right to amend these articles. They go through General Grant. That is the means must go to the House even for that. If they he contrived there to get Stanton out. So that choose to go to the House and get a new art- has nothing to do with this. What further? cle founded upon an illegal act in the appoint- "And, also, to prevent the execution of an act enment of Mr. Cooper, let them go, and let us titled'An act to provide for the more efficient govhave time to answer it and to meet it. ernment of the rebel States."' So much for the admissibility of the testi- Now. what relevancy has the appointment mony as to the illegal appointment of Mr. of Cooper with the government of the rebel Cooper. It is a matter not charged. That is States, or with the execution of the reconstrucenough. It is a matter they are not authorized tion acts, or, in fact, with any offense charged to charge; they have no such delegated author- in any one of the eleven articles? ity here. Mr. Manager BINGHAM. Mr. President, What is the next ground, Mr. Chief Justice, we consider the law to be well settled and acupon which they ask to prove anything in re- cepted everywhere in this country and England lation to Mr. Cooper? They say they expect to-day, that where an intent is the subjectto prove that Mr. Cooper was put into that matter of inquiry in a criminal prosecution place of Assistant Secretary of the Treasury other and independent acts on the part of the by the President in order to control the dis- accused, looking to the same result, are admisbursement of the moneys in that Department. sible in evidence for the purpose of establishThat I understand to be the next ground. ing that fact. And we go further than that. Now, let us see what they have charged about We undertake to say, upon very high and comthat. Here they have got an article charging manding authority, not to be challenged here an illegal act of the President in reference to the or elsewhere, that it is settled that such other. disbursementofthepublicmoney-articleeight. and independent acts, showing the purpose to Let us see what Mr. Cooper has to do with that. bring about the same general result, although "That said Andrew Johnson, President of the at the time of the inquiry the subject-matter. United States, unmindful of the high duties of his of a separate indictment, are, nevertheless, adoffice and of his oath of office, with intent unlawfully to control the disbursements of the moneys appro- missible. I doubt not that it will occur to the priated for the military service and for the Depart- recollection of honorable Senators that among ment of War, on the 21st day of February"- other cases illustrative of the rule which I have Did a certain thing. What was it? Ap- just cited it has been stated in the books-the point Mr. Cooper? Give him authorityto act cases have been ruled first and then incorpoin any office? No. He appointed Thomas; rated into books of standard authorities-that and that appointment is the only appointment where a party, for example, was charged with set out as the means to control those disburse- shooting with intent to kill a person named, it'ments. If it was necessary to frame an article was competent, in order to show the malice, founded upon the appointment of Thomas as a the malicious intent of the act, to show that at means used by the President to get control of another time and place he laid poison. A these public moneys, was it not equally neces- party is charged with passing a counterfeit sary to have an article founded upon the same note; it is competent, in order to prove the line of conduct in reference to Mr. Cooper? scienter, to show that he was in possession of Unquestionably. other counterfeit notes of a different denominThen, in the eleventh article, what is there that ation; and the rule, as stated in the books, authorizes the introduction of this testimony? is, that what is competent to prove the scienter, That he made certain speeches. What then? as a general principle, is competent to prove "Afterward, to wit, on the 21st day of February, the intent. C. I. —12. 178 Now, what is the allegation in the eleventh may be a distinct proposition before the Senarticle? That this procedure was taken on the ate we offer to prove that, there being no part of the President for the purpose of setting vacancy in the office of Assistant Secretary of aside and defeating the operation of that law. the Treasury, the President unlawfully apThat law stands with the other legislation of pointed his friend and theretofore Private Secrethis country. tary, Edmund Cooper, to that position, as one Mr. STANBERY. What law? of the means by which he intended to defeat Mr. Manager BINGHAM. The tenure-of- the tenure of civil office act and other laws of office act. That law stands with the other Congress. legislation of this country; and I undertake to Mr. EVARTS. Will you be so good as to say, without stopping to cite the statutes, that insert the date in your offer, by the existing law of the United States the Mr. ManagerBUTLER. Iwill,sir. [After appropriations made for the support of the a pause.] 1 have inserted a date satisfactory Department of War and for the support of the to myself, and I hope it will be to the counsel Army can only be reached in the Treasury of for the President. the nation through the requisitions drawn by Mr. EVARTS. I have no doubt it is corthe Secretary of War. Here is an independ- rect. ent act done by the accused, as is well said Mr. Manager BUTLER. We offer to prove by my associate, for the purpose of aiding this that afterthe President had determined on the result. How? By appointing an Assistant removal of Mr. Stanton, Secretary of War, in Secretary of the Treasury, who, under the law spite of the action of the Senate, there being and regulations, is authorized to act upon the no vacancy in the office of Assistant Secretary warrants that may be drawn upon the Treasury of. the Treasury, the President unlawfully apthrough that Department or any other Depart- pointed his friend and theretofore Private Secment; by appointing a person, in other words, retary, Edmund Cooper, to that position, as to discharge the very duty which he desires one of the means by which he intended to dehim to discharge in aid of his design; and feat the tenure of civil office act and other what is that? That the money appropriated laws of Congress. by Congress, and not to be drawn from the Mr. EVARTS. I donot understand thatto Treasury except in pursuance of law, to-wit, be a date. I ask you to be good enough to put through the Secretary of War, duly constituted in the 20th of November. such by the appointment of the President with Mr. Manager BUTLER. I want to have it the advice and consent of the Senate, may, appear in relation to that. nevertheless, be drawn out of the Treasury Mr. EVARTS. Put in what you have also, by a person acting as an officer, without the if you please. advice and consent of the Senate, through the Mr. Manager BUTLER. If the learned requisitions made on the Treasury by his counsel will allow me, I will make my offer as Secretary of War ad interim, appointed in the I like. presence of the Senate, in defiance of the Mr. EVARTS. Undoubtedly. Ionlyasked Senate, and in violation of the law. you to name the date. You can do as you If the appointment of such an officer throws please about it. no light on this subject, of course it has noth- The CHIEF JUSTICE. The Secretary will ing to do with the matter; if it does, it has a read the proposition. great deal to do with it. If the question stops The Secretary read as follows: with the inquiry who Edmund Cooper is, of course it throws no light upon this subject; We offer to prove that, after the President had determined on the removal of Mr. Stanton, Secrebut if the testimony discloses such relations tary of War, in spite of the action of the Senate, with the President and his appointment under there being no vacancy in the office of Assistant Secsuch circumstances as indicates a purpose on retary of the Treasury, the President unlawfully appointed his friend and theretofore Private Secretary, the part of Cooper to cooperate with the Presi- Edmund Cooper, to that position, as one of the means dent in this general design, I apprehend it will by which he intended to defeat the tenure of civil throw a great deal of light upon this subject. office act and other laws of Congress. And, in the event of the removal of the head Mr. EVARTS. The action of the Senate, I of the Department, (and if this rule is to be think, was in December, 1867. established that might happen any hour, with- Mr. STANBERY. February 13. out regard to the opinions of the Senate to the Mr. Manager BUTLER. January 13. contrary or to the requirements of the law,) Mr. STANBERY. Yes; that is it. this Assistant Secretary of the Treasury would Mr. EVARTS. January 13, 1868; so that have the control of the whole question. I am what you now offer was after that. free to say, so far as I am concerned in this Mr. Manager BUTLER. Oh, no. ThePresmatter. if nothing further be shown than the ident formed the purpose, as he tells us in the mere inquiry of the appointment of Cooper, it letter to General Grant and as he tells us in may not throw any light upon the subject; but his answer, on the 12th of August, 1867, when T do not so understand the matter. There is he suspended Mr. Stanton, to suspend him more than that in it. indefinitely; to try to see if the Senate would Mr. Manager BUTLER. In order that there not agree to that; if they would not, then to 179; keep him suspende&-indefinitely, and remove cution of an act entitled'An act making approprijhim as soon as ever he could get anybody to ations for the support of the Army for the fiscal year aidhim. Thsnats our pposgtionybof at ending June30, 1868, and for other purposes,' approved aid him. That is our proposition of what the March 2, and, also, to prevent the execution of an evidence and the claims of the President show; act entitled' An act to provide for the more efficient he meant to do that in spite of what happened; *government of the rebel.States,' passed March 2, and we say after that intent was formed'he made theappointment ofCoper. He had done what he has been charged to made the appointment of Cooper. have done. And now, in that connection, we 1867, then. We want to get the 12th of August, claim that this was a part of the machinery to 1867, then. ~We want to get at the date; that is all. carry out this thing; because, suppose, looking The CHIEF JUSTICE. Do the counsel for forward to have happened exactly what did the President desire to be'heard further? happen, to wit, that Mr. Stanton would not Mr. EVARTS. No, sir; but we object to give up the War Department, then the question it. It is not within any article of impeach- was, would Mr. McCulloch answer the reqnirmrent. sitions of Thomas or of anybody else he should'The CHIEF JUSTICE. The Chief Justice put in, if Stanton should hold on? It is clear will submit the question to the Senate. The that the President knew he would not, because, question is, whether the evidence proposed by although he served a notice upon McCulloch the honorable Managers shall be admitted? to do it, McCulloch will not to-day, and he has Mr. SHERMAN. Ishould like tbohavethe not been able to get one through Thomas. Managers answer a: question before the vote Now, then, he gets Thomas in; he must put is taken. in somebody in the Treasury Department who The CHIEF JUSTICE. The Secretary will willobey Thomas. Thereupon he puts Cooper read the question proposed by the Senator in; and with a single stroke ofhis penhe claims fromr Ohio. to have the right to remove McCulloch; and he The Secretary read as follows: also claims, and has put it in his answer, that McCulloch, as one of his Cabinet, has agreed Will the Managers read the particular clauses of o a oe of his n t has g the eighth and eleventh articles to prove which this to go at a stroke of that he has gnited testimony is offered? the whole Army and Treasury of the United. Mr. Manager BUTLER. As I understand States within his control. It was with intent it, it is to prove the intent alleged in the eighth to do that that he made the appointment of article in these words: Cooper; and to show that it was with that intent, we show, so anxious was he to do it, that "With intent unlawfully to control the disburse- he did not make thea appointment lawfulld, ments of the moneys appropriated for the militaryintment lawfully service and for the Department of War." that he first made it when the Senate was not He did a certain actwith that intent. Now, in session, by issuing a full commission; then to prove that intent, we show he did a certain he sent it tothe Senate, and the Senate rejected other act which would enable him to control Cooper; but still, so bent was he on having the moneys. Cooper not Private Secretary, but Assistant The CHIEF JUSTICE. The eighth article Secretary of the Treasury, where he could control. the moneys of the United States, that he Mr. Manager BUTLER. The eighth article first appointed him ad interim, showing that he reads: got him underthe same designation as Thomas; "That said Andrew Johnson, President of the and the designation shows something. United States, unmindful of the high duties of his The CHIEF JUSTICE. Are Senators ready office, and of his oath of office, with intent unlawfully for the question? to control the disbursements of moneys appropri- Mr. JOHNSON. - requesttheManagers to answer a question which I have sent to the Chair. The CHIEFJUSTICE. Whatactischarged? The CHIEF JUSTICE. The Secretary will Mr. Manager BUTLER. The act charged read the question propounded by the Senator is, that with that intent, he appointed Thomas. from Maryland. Now,toprmvetheintentwithwhichhe appointed The Secretary read as follows: Thomas, we prove that he also prepared a man The Managers are requested to say whether they who, in the office of Assistant Secretary of the propose to show that Cooper was appointed by the Treasury, would answer Thomas's requisitions. President in November, 1867, as a means to obtain Now, as to the other point, I will read, in the unlawful possession of the public money, other than by the fact of the appointment itself?'answer to the question of the Senator, from the eleventh article: Mr. Manager BUTLER. We certainly do "By unlawfully devising and contriving, and at- -is that an answer?-more than by the aptempting to devise and contrive, means bywhich he pointment. That we may not be misundershould prevent Edwin M. Stanton from forthwith stood hereafter, we propose to show that he resuming the functions of the offic.e of Secretary for appointed him, and thereupon Mr. Cooper the Department of War, notwithstanding the refusal of the Senate to concur in the suspension theretofore went into the exercise of the duties of the made by said Andrew Johnson of said Edwin M. office before his appointment could by any Stanton from said office of Secretary for the Depart- possibility be legal; and that he has been-we ment of War; and also,by further unlawfully devising and contriving, and attempting to devise and hope and believe we shall show that he has contrive, means, then and there, to prevent the exe- been-controlling other public moneys since.: 180 The CHIEF JUSTICE having put the ques- Mr. Manager BUTLEtR (to the witness.) tion on the admissibility of the evidence and Do you remember the date of it? declared that the negative appeared to prevail. The WITNESS. It is within a year. I can Mr. HOWARD and Mr. SUMNER called for find it if you give me the statutes for the last the yeas and nays; and.they were ordered. year. Mr. HENDERSON. Before the vote is The CHIEF JUSTICE. The Chief Justice taken, I desire that some testimony shall be will put a question to the witness: whether read. I send my request to the Chair. before the passage of the act to which he reThe Secretary read Mr. HENDERSON'S re- fers any warrant could be drawn by the Assistquest, as follows: ant Secretary, unless he was acting Secretary It is requested that the testimony of the witness, in the absence of the Secretary? Chandler, in regard to the mode and manner of Answer. There could not. Prior to the obtaining money on a requisition of the Secretary passage of this act no money could be drawn of War be read. from the Treasury upon the signature of an The CHIEF JUSTICE. It can only be Assistant Secretary, unless when acting Secread from the notes of the short-hand re- retary under an appointment for that purpose. porter; but the witness can restate it. By Mr. Manager BUTLER: Mr. HENDERSON. I will inquire if the Question. When the Assistant Secretary acts witness will be permitted to restate it? for the Secretary, does he sign all warrants for The CHIEF JUSTICE. Certainly. the payment of money? Mr. HENDERSON. My object is to know Answer. When acting Secretary, of course whether money can be. obtained upon the re- he signs all warrantsfor the payment of money. quisition of the Assistant Secretary, and not Mr. CAMERON. I desire to ask a question. of the Secretary himself, just to that point. The CHIEF JUSTICE. The Senator will Mr. EVARTS. Let him answer to that reduce his question to writing and send it to very point. the Chair. Mr. Manager BUTLER. Let him answer. Mr. CAMERON. I did not understand The CHIEF JUSTICE, (to the witness.) that. I desire to ask a question merely as to Answer the question proposed by the Senator the practice. I can do it in less time than by from Missouri. Will the Senator state the writing it. question to the witness? The CHIEF JUSTICE. The rule requires Mr. HENDERSON. I prefer that the Man- it to be reduced to writing. agers should do so. Mr. Manager BUTLER. I will read thelaw Mr. Manager BUTLER, (to the witness.) to which reference has been made: Will you state now whether the Assistant Sec- "An act supplemental to an act to establish the Treasretary can sign warrants? sury Department," approved the 2d of September, Mr. CUaTIS rand Mr EVARTS7 Tat is Mr. CURTIS and Mr. EVARTS. That is " Be it enacted by the Senate and Holuse of Representanot the question. tives of the United States of Amnericain Congress asseriMr. Manager BUTLER. For the payment bled, That the Secretary of the Treasury shall have of money? power, by an appointment under his hand and official of money? o' * s 1 seal, to delegate to one of the Assistant Secretaries Mr. CURTIS. The question is, whether of the Treasury authority to sign in his stead all waron requisitions of thd War Department- rants forthe payment of money into the public TreasMr. anager BUTLER. hether, upon ury and all warrants for the disbursement from the Mr. Manager BUTLER. Whether, upon public Treasury of money certified by the proper acthe requisition of any Department of the Gov- counting officers of the Treasury to be due upon acernment, the Assistant Secretary of the Treas- counts duly audited and settled by them; and such ury can sign warrants on the Treasury for the warrants so signed shall be in all cases of the same ury cansign warrants on the Treasury for the validity as if they had been signed by the Secretary payment of money? of the Treasury himself." The WITNESS. Until the passage of a late Mr. CONKLING and others. What is the statute, whenever the Secretary of the Treas- date of that? ury was present and acting, money could not Mr. Manager BUTLER. The date is March be drawn from the Treasury upon the signa- 2, 1867, the same date as the tenure-of-office ture of the Assistant Secretary of the Treasury. act. An act has been passed within a year allowing A single other question, which, perhaps, is the Assistant Secretary to sign covering-in war- rather a conclusion of law than of fact. [To rants and warrants for the payment of money the witness.] In case of the removal or abupon accounts stated; but the practice still sence of Mr. McCulloch or the Secretary of continues of signing all customary warrants the Treasury, as I understand, the Assistant by the signature of the Secretary of the Treas- Secretary performs all the acts of the Secreury. The warrants are prepared and the ini- tary? tials of the Assistant Secretary in charge of the Mr. EVARTS. That is a question of law. warrants placed upon them, and then they are Mr. Manager BUTLER. I said I doubted signed by the Secretary of the Treasury when as to that. I was only asking for the practice. he is present. [To the witness.] Is that the practice? Mr. FESSENDEN. I ask that that law may Answer. I am not certain that it is, without be read. I should like to know what it is an appointment as acting Secretary for the exactly. Assistant Secretary, signed by the President. 181 Mr. CAMERON. I desired to put a ques- arily signed by that Assistant Secretary in all tion, and I think it is contrary to the practice cases since that time. to require me to put it in writing; but I have Mr. FESSENDEN. Now, let the second reduced it to writing, and I ask that it be question be read. read. The Secretary read the second question, as The CHIEF JUSTICE. The Secretary will follows: read the question proposed by the Senator Has anyAssistant Secretarybeen authorized to sign from Pennsylvania. any warrants except such as are specified by'the act.? The Secretary read as follows: The WITNESS. No Assistant Secretary has Can the Assistant Secretary of the Treasury, under been authorized to sign warrants except such the law, draw warrants for the payment of moneys as are specified in this act, unless when acting by the Treasurer without the direction of the Secre- Secretar tary of the Treasury? Secretary. The CHIEF JUSTICE. Senators, you who The WITNESS. Since the passage of the act, are of opinion that the evidence offered on the I understand, the Assistant Secretary can sign part of the Managers should be admitted will, a warrant for the payment of money in the as your names are called, answer "yea;" cases specified. those who are of the contrary opinion will say By Mr. EVARTS: 61"nay." The Secretary will call the roll. Question. Is not that by deputation? The question being taken, the result was anAnswer. Which is presumed rather to be nounced-yeas 23, nays 26. with the assent and approval of the Secretary Mr. CONNESS. I desire to know how my of the Treasury. name is recorded? Mr. CAMERON. I willask another ques- The CHIEF JUSTICE. The Senator is tion without reducing it to writing. recorded among the yeas. The CHIEF JUSTICE. If there be no ob- Mr. CONNESS. That is a mistake. I jection, the Senator from Pennsylvania will voted in the negative, and I wish myself rebe allowed to put a question without reducing corded correctly. it to writing. The change being made, the result was anMr. WILLIAMS. Mr. President, I object. nounced-yeas 22, nays 27; as follows: The CHIIEF JUSTICE. The Senator from nounced-yeas 22, ays 2; as follows Oregon ohjects. YEAS-Messrs. Anthony, Cameron, Cattell, ChandOregon objects. ler, Cole, Conkling, Corbett, Cragin, Drake, Howard, Mr. CAMERON. The question I intended Howe, Morgan, Morrill of Vermont,.Nye, Pomeroy, to ask was, has it been the practice- Ramsey, Ross, Sprague, Sumner, Thayer. Tipton, The CHIEF" JUSTICE. The Senator is and Wilson —22.'The CHIEF JUSTICE. The Senator is NAYS-Messrs. Bayard, Buckalew, Conness, Danot in order. vis, Dixon, Doolittle, Edmunds, Ferry, Fessenden, Mr. Manager BUTLER, (to the witness.) Fowler, Frelinghuysen, Grimes, Henderson, Hendas it ben the practice for him to sign wa ricks, Johnson, McCreery, Morrill of Maine, Norton, Has it been the practice for him. to sign war- Patterson of New Hampshire, Patterson of Tentiesrants? see, Sherman, Stewart, Trumbull, Van Winkle, VickAnswer. Since the passage of the act in ers. Willey, and Williams-27. queon i;t has. NOT VOTING-Messrs. Harlan, Morton, Saulsquestionit has. bury,.Wade, and Yates —5. The CEF JUSTICE. Senators, the The CHIEF JUSTICE. The yeas are 22, question is: Shall the evidence proposed by the The CHIEF JUSTICE. Theeee s are 22 Managers be received? the nays are 27. So the evidence is not Managers be received? Mr. FESSENDEN. I should like to put a received. question as soon as I have an opportunity to Mr. Manager BUTLER. Then I have write it. [After writing.] There are two nothing further to ask this witness at present. questions which I wish to put. We may wish to call him again, however, at uThe CHIEF JUSTICE. The Secretary will another part of the case, when we get along read the questions proposed by the Senator further, so thatwe can offer this in another from Maine. Mr. EVARTS. We shall reserve our quesThe Secretary read as follows: tions till then. Question. Has it been the practice since the passage of the law for an Assistant Secretary to sign warrants CHARLES A. TINKER sworn and examined. unless specially appointed and authorized by the By Mr. Manager BUTLER: Secretary of the Treasury? y r. anager UTLER Question. Has any Assistant Secretary been author- Question. What is your full name? ized to sign any warrants except such as are specified Answer. Charles A. Tinker. in the act? Question. What is your business? The WITNESS. It has not been the practice Answer. I am a telegraph operator. for an Assistant Secretary since the passage of Question. Are you in charge of any office? the act to sign warrants except upon an ap- Answer. I am in charge of the Western pointment by the Secretary for that purpose Union Telegraph office in this city. in accordance with the provisions of the act. Question. Were you at any time in charge Immediately upon the passage of the act the of the military telegraph office of the War Secretary authorized one of his Assistant Sec- Department? retaries to sign warrants of the character de- Answer. I was. scribed in the act, and they have been custom- Question. From what time to what time? 182 Answer. I can hardly tell from what time. [Producing a bound letter-book, the pages I was in charge of the military telegraph office of which were press copies of dispatches.] of the War Department up to August, 1867. Question. Have you that original press copy? I think I was personally in charge something Answer. I have it. like a. year; I was connected with the office Mr. Manager BUTLER. Read from it, for something like five years. please? Question. Whilein charge of that office state -Mr. STANBERY. Oh, no. whether a dispatch from Lewis E. Parsons, of Mr. EVARTS. Let us see what it is. Montgomery, Alabama, came to Andrew John- [The book was handed to the counsel for the son, President of the United States, and if so respondent.] at what date? Mr. STANBERY. I wish to ask a prelimiAnswer. I think while in that office I saw-a nary question. [To the witness.] Did you great many such dispatches. make this press copy yourself? Question. Whatpaperhaveyouinyour-hand? Answer. The press copy is made by:the Answer. I have what professes to be a copy clerk. The telegram is written -by one of the of a telegram from Lewis E. Parsons, Mont- operators. gomery, Alabama, addressed to "His Excel- Mr. EVARTS. By you? lency Andrew Johnson, PreSident." The WITNESS. Not by me personally. Question. Do you know whether that tele- Mr. CURTIS. We object. gram calne through the office? Mr. EVARTS. This book does not prove Answer. I recognize this as being the char- itself. acter of dispatch which passed through or was Mr. Manager BUTLER. I do not underreceived atthe military telegraph office. stand the objection, if there is any. Mr. CURTIS. That we must object to. Mr. EVARTS. We do not understand that Mr. Manager BUTLER, (to the witness.) a telegraph company's books prove themselves Were there duplicate originals of telegrams like a record. You bring no living witness that received kept at the military telegraph office? verifies anything here. Answer. What is called a press copy was Mr. Manager BUTLER. I will pass from taken of each dispatch before being delivered this for a moment. [To the witness.] Do you from the office. remember, as an act of memory, whether such Question. Was such a press copy taken of a telegram as that passed through the office? each dispatch before it was sent? Answer. I do not remember this dispatch Answer. Not before being sent. having passed through the office; I cannot take Question. The original was kept, then? my oath that I remember the particular disAnswer. The original was kept on file in the patch. Qffice. Question. Will you state whether you have Question. State whether at my request you an original dispatch of the same date signed examined those press copies? "Andrew Johnson?" Answer. I did. Answer. I have. Question. Did you find such a dispatch as I Question. Produce it? have described among those press copies? Answer. I have a book in which the dispatch Answer. I did. is filed. Question. Did you copy it? [Producing a bound letter-book on the pages Answer. I made a copy. of which were pasted dispatches.] Question. Have you got that in your hand? Question. Are you so familiar with the sigAnswer. No, sir; I have not. nature of Andrew Johnson as to know whether Question. Can you givean explanation as to that is his name signed to it? that copy you now have in your hand? Answer. I believe that to be his signature; Answer. I made a copy of the dispatch and I am very familiar with it. answered the summons of the Managers, and I Question. Have you any doubt in your own placed the copy in your hands, and I heard you mind as to that? order your clerk to make a copy of that, and Answer. None whatever. after a short time the clerk returned with that Question. Is this book which I hold in my copy and read the copy which he had made, hand and you have just produced, the record and you returned to me the copy I had made. book of the United States military telegraph, Question. Have you that copy? of the executive office wherein original disAnswer. I have. patches are put on record? Question. Very well; produce the original Answer. It is the book in which the original dispatch and the copy both? dispatches were filed. Mr. EVARTS. I ask what is meant by the Question. Do you know whether this dispatch "original dispatch." I understood this was a passed through-the office to Lewis E. Parsons? dispatch received here. Answer. I do know from the marks it conMr. Manager BUTLER. The original press tains. Copy is meant. Mr. CURTIS. That is an inference. The WITNESS. I mean to saythatI havethe The WITNESS. I can answer that. I saw original press copy. the dispatch in the office. t88 By Mr. Manager BUTLER: Question. Where do they come from now? Question. And it bears the marks of having Answer. They come from the War Departbeen sent? ment through the telegraph office; it has the Answer. Yes, sir. original dispatches of the War Department. Mr. STANBERY. Now, let us see the dis- Question. They came to the telegraph office patch. [The book was handed to the counsel for from the War Department? the respondent and examined by them.] This Answer. Yes, sir. is very good reading; but will you tell us what Question. They camne originally as records is the object of this testimony? We like the from the War Department? document; but what is the object of it here? Answer. From the War Department to the Mr. Manager BUTLER. Do you object to telegraph office, and I bring them here. this document whatever the object is? Mr. Manager BUTLER. I submit now to Mr. STANBERY. We object until we know the Senate that I propose to use in evidence the purpose. if it is otherwise competent, the dispatch oi Mr. Manager BUTLER. The question that Lewis E. Parsons to which Andrew Johnson I put now is simply whether you object to the made reply. Having proved what I have vehicle of proof? proved, is there any objection, I:rean now as Mr. EVARTS. No. to the vehicle of evidence simply, not as to the Mr. Manager BUTLER. If it is proper to competency of the contents? read it at all the question is whether it is Mr. EVARTS. On that point in this presproved. ent case, although we regard the proof of Mr. Mr. EVARTS. It proceeded from the Pres- Parsons' dispatch as incompetent and insuffiident, and therefore it is proved. cient, we shall waive any objection of that Mr. JOHNSON. What is the date? kind, and the question may now stand upon the Mr. Manager BUTLER. January 17, 1867; competency of the proof. the same date with Parsons' dispatch. Mr. Manager BUTLER. On the question Mr. STANBERY. Now, the object? of relevancy, I suppose? Mr. Manager BUTLER. Not yet, sir. Mr. EVARTS. Yes, and competency; its [To the witness.] On the same day that this admissibility in any way. is dated do you find in the records of the Mr. Manager BUTLER. Admissibility of Department a press copy of a dispatch from the proof'of the contents? Lewis E. Parsons to which this is in answer? Mr. EVARTS. Yes. We have had no Answer. I find in the press copy book a copy notice to produce the original, but we care of a dispatch which that was in answer to. nothing about that. Mr. EVARTS. How does that appear? Mr. Manager BUTLER. To that I answer Mr. Manager BUTLER. It appears be- we have the original here. cause the witness has sworn to it. Mr. EVARTS. No; but the original of Mr. Mr. EVARTS. If it is an answer, it speaks Parsons' dispatch delivered to the President. for itself. We have had no notice to produce that; we Mr. Manager BUTLER. Again I must re- know nothing about it; but we waive that. ply, if the question is put to me how it appears, Now, we inquire in what view and under what' he has sworn that it is an answer. [To the article these dispatches dated prior to the civil witness.] Now, what was this telegraph office? tenure act are introduced? The heading of the dispatch is "United States Mr. Manager BUTLER. In order that the Military Telegraph." Was this telegraph un- Senate acting both as court and jury may under the control of the War Department? derstand whether these papers are admissible Answer. At that time it was not under the in evidence, it becomes necessary, with the control of the War Department. leave of the president and the Senate, to read Question. Where were the books kept? them de bene, in order that we may show how The WITNESS. Do I understand you to mean they become competent. the lines? Mr. CURTIS. We do not object to your Mr. Manager BUTLER. I do not mean the reading them de bene esse. lines. I mean the office. Mr. Manager BUTLER. The dispatch of Answer. It was. Mr. Parsons is: Question. Was it in the War Department MONTGOMERY, ALABAMA., building'? January 17, 1867. Answer. It was. Legislature in session. Efforts making to reconsider Answer. I the wafrs. evote on constitutional amendment. Report from Question. And were the officers employ6s of Washington says it is probable an enabling act will the War Department? pass. We do notknowwhattobelieve. IfindnothAnswer. They were. ing here. LEWIS E. PARSONS, Question. Were the records of its doings His Excellency ANDREW JOHNSON, President. at that office kept in the War Department? The response is: Answer. They were. Question. And are these books and these UNITED STATFFICE, WASHINTOARY TELEGR. APH, papers produced from the War Department? January 17,1867. Answer. No, sir; they are not. Whatpossible good can be obtained by reconsider 184 ing the constitutional amendment? I knowof none ern States, the President of the United States, in the present posture of affairs; and I do not believe from his high position, was absolutely telethe people of the whole country will sustain any set graphing t the Legislture, in answer to a of individuals in attempts to change the whole char- graphing to the Legislature, in answer to a acter of our Government by enabling acts or other- question of those States when they were askwise. I believe, on the contrary, that they will ing for advice, urging them not to accept the eventually uphold all who have patriotism and cour- ng f or advice, urging them not to accept the age to stand by the Constitution and who place their amendment to the Constitution. I do not care confidence in the people. There should beno falter- to argue this any further. ing on the part of those who are honest in their Mr. EVARTS. If we understand the liondetermination to sustain the several coordinate departments of the Government in accordance with its orable Managers aright, this evidence is suporiginal design. ANDREW JOHNSON. posed to be relevant and competent only in Hon. LEWIS E. PARSONS, Montgomery, Alabana. reference to the crimes charged in the tenth I have no further call, after having read these and eleventh articles. Is that so? Was that dispatches, so that they may be seen of the your proposition, Mr. BUTLER? Senate, to argue the question whether this is Mr. Manager BUTLER. My proposition is competent evidence upon articles charging that it is relevant under those. I have made Andrew Johnson with attempting to overthrow no proposition as to the rest the acts of Congress, to oppose their validity, Mr. EVARTS. You did not name any and to bring its legislation into contempt. It others. is either under the tenth or the eleventh article Mr. Manager BUTLER. I did not think it quite competent. necessary. Mr. EVARTS. The tenth is confined to the Mr. EVARTS. Very well; I shall not think President's speeches. It alludes to nothing it necessary to consider any others. else. Mr. Manager BUTLER. Very well; we Mr. CURTIS. Speeches, not telegrams. are agreed on that. Mr. ManagerBUTLER. Iam reminded by Mr. EVARTS. Now, if the Chief Justice the learned counsel that that article refers to and Senators will give their attention to the speeches and not telegrams. I know it; but tenth article, it will be found that the entire with what intent were those speeches made? charge there is that the PresidentFor what purpose were they made? They " Designing and intending to set aside the rightful were made for the purpose of arraying the authority and powers of Congress, did attempt to country against the Congress of the United bring into disgrace, ridicule, hatred, contempt, and reproach the Congress of the United States and the States and its lawful acts, and to bring it into several branches thereof, to impair and destroy the ridicule and contempt. Now, I am upon the regard and respect of all the good people of the Unipoint where the attempt is made to array the ted States for the Congress and' legislative power thereof. (which Al officers of the Government ought people against the lawful acts of Congress and to inviolably to preserve and maintain.) and to excite "' destroy the regard and respect of all the good the odium and resentment of all the good people of people of the United States for the Conagainst Congress and the laws by people of the United States for the Congress it duly and constitutionally enacted." and legislative power thereof," and " to ex- it duly andcons tionally enac ted." cite the odium and resentment of all the good NThat is the entire purview of the intent. people of the United States against Congress Now, the only acts charged as done with this.and the laws by it duly and constitutionally intent are the delivery of a speech at the Exeenacted." I cutive Mansion in August, 1866, and two We must go back a moment, if the Senate speeches, one at St. Louis and the other at please, and I shall take buta moment, because Cleveland, in September, 1866. The article I think this is too clear for argument. The that by means of these utterancesPresident had gone forward in August and "Said Andrew Johnson has brought the high office of the Presidentof the United States into contempt, September, 1866, declaring everywhere that ridicule, and disgrace, to thegreatscandal of allgood Congress had no power to do what it was pro- citizens, whereby said Andrew Johnson, President posing to do. Congress had proposed the of the United States, did commit, and was then and constitutional amendment to the people of the there guilty of, a high misdemeanorin offce." States, and for the purpose of preventing that That is the gravamen of the crime; that he constitutionalamendmentfrombeingaccepted, brought the presidential office into scandal by every possible contumely was thrown upon these speeches made with this intent. SenaCongress and every possible step taken to pre- tors will judge from the reading of this televent its acceptance, and this is one of the steps. gram, dated in January, 1867, whether that I will not argue further under that proposi- supports the principal charge or intent of his tion. Then the eleventh article charges that, derogating from the credit of Congress or "intending to deny the power of the Thirty- bringing the presidential office.into discredit. Ninth Congress to propose amendments to the The eleventh article has for its substantive Constitution of the United States,"' he did charge nothing but the making of the speech declare so and so. We find with that intent of the 18th of August, 1866, saying that by that that when Congress had passed an act for the speech he declared and affirmedpacification of the southern States and for the "In substance, that the Thirty-Ninth Congress of settlement of the difficulty, in the shape of a the United States was not a Congress of the United proposedamendment to the Constitution, and States authorized by the Constitution to exercise proposed amendment to th e Constitution, and legislative power under the same, but, on the conwhen that was being considered by the south- trary, was a Congress of only part of the States, 185 thereby denying, and intending to deny, that the under one; and therefore I treat the proposilegislation of said Congress was valid or obligatory tion to introduce this evidence under the elevupon him, the said Andrew Johnson, except in so far enth article only-from which I think it mus as he saw fit to approve the same, and, also, thereby enth article only-from which I think it must denying, and intending to deny, the power of the appear to Senators that there can be no doubt said Thirty-Ninth Congress to propose amendments upon this point. If attention be given to the to the Constitution of the United States; and in pur- eleventh article it will e seen that we char suance of said declaration" — eleventh article it will be seen that we charge That is, in pursuance of the speech made at that the President didthe Executive Mansion on the 18th of August, o" On the 18th day of August, A. D. 1866, at the city of Washington, and in the District of Columbia by 1866- public speech, declare and affirm, in substance, that " The said Andrew Johnson, President of the Uni- the Thirty-Ninth Congress of the United States was ted States, afterward, to wit, on the 21st day of Feb- not a Congress of the United States authorized by ruary, A. D. 1868, at the city of Washington, in the the Constitution to exercise legislative power under District of Columbia, did, unlawfully, and in disre- the same, but, on the contrary, was a Congress of gard of the requirement of the Constitution that he only part of the States, thereby denying and intendshould take care that the laws be faithfully executed, ing to deny that the legislation of said Congress was attempt to prevent the execution of an act entitled valid or obligatoryupon him, and also thereby deny-'An act regulating the tenure of certain civil offices,' ing and intending to deny the power of the Thirtypassed March 2, 1867"- Ninth Congress to propose amendments to the ConWhich was after the date of this dispatch- stitution of the United States""By unlawfully devising and contriving, and at- The very subject of these telegraphic distempting to devise and contrive, means by which he patches — should prevent Edwin M. Stanton from forthwith should prevent Edwin M. Stanton from forthwith "And, in pursuance of said declaration, the said resuming the functions of the office of Secretary for And rew J o hnson, President of the United States, the Department of War." Andrew Johnson, President of the United States, afterward to wit, on the 21st day of February, A. D. The court will consider whether this dis- 1868"patch touches that subject. Which we understand to include all these "And also by further unlawfullydevising and con- dates between the time when the declaration triving, andattemptingtodeviseandcontrive, means, which is the basis of this article, to wit, Authen and there, to prevent the execution of an act entitled'An act making appropriations for the sup- gust 18, 1866, up to and including the 21st of port of the Army for the fiscal year ending June 30, February, 1868, so that all that period is open 1867, and also t purpventosthe es,' appxecutiroved March 2, to us for the introduction of testimony showentitled'An act to providefor the more efficient gov- ing the transactions of the President on this ernment of the rebel States,' passed March 2, 1867." pointAlso, after the date of this dispatch. It is " Onthe21stdayofFebruary, A. D.1868, atthecity of under one or the other of these two articles Washington. in the District of Columbia, did, unlawthat this dispatch is, in its date and in its sub- fully, and in disregard of the requirement of the Con-' that dsupp is to eit tean inwilltr stitution that he should take care that the laws be stance, supposed to berelevant. I will read it: faithfully executed, attempt to prevent the execuWASHINGTON, D. C., January 17, 1867. tion of an act entitled' An act regulating the tenure What possible good can be obtained by reconsider- of certain civil offices,' passed March 2, 1867, by Wbing the constitutional amendment? Ikbyowof none unlawfully devising and contriving, and attempting in the copresent postiture t ional amendment? I do not believnone to devise and contrive, means by which he should in the present posture of affairs; and I do not believe that the people of the whole country will sustain any prev ent Edw in M. Stanton from for Secretary for th resuming set of individuals in attempts to change the whole the functions of the office of Secretary for the Depcharacter of our Government by enabling acts or partment of War, notwithstanding the refusal of the character of our Government by enabling acts or genate to concur in the suspension theretofore made otherwise. I believe, on the contrary, that they will Senate to concur in the suspenion theretofore made eventuallyphold all who have patriotis andcour- by said Andrew Johnson of said Edwin M. Stanton eventuallyuphold all who have patriotism and cour- from said ofce of Secretary for the Department 0f age to stand by the Constitution, and who place their confidence in the people. There should be no falter- contriving, andlso, by furthermpting to delvis and cnve ing on the part of those who are honest in their contriving, and te to evie acontrive determination to sustain the several coordinate de- means, then and there, to prevent the execution of partments of the Government in accordance with its an act entitled'An act making appropriations for original design. ANDREW JOHNSON. the support of the Army for the fiscal year ending June 30, 1868, and for other purposes,' approved Hon. LEWIS E. PARSONS, M[ontgomery, Alabama. March 2, 1867; and, also, to prevent the execution of There is nothing here pertinent in depreci act entitled'An act to provide for the more efficient government of the rebel States,' passed tion of Congress, nothing tliat tends to the March 2, 1867," scandal Qf the presidential office, nothing that Herein we see the nature and extent of the has relation to the defeat of laws not then influence of the conduct of the President in passed, and not possible to be the subject of sending out this telegram. Here was Mr. Parcrime or misdemeanor on the part of the sons, who is known upon public fame to have President in resisting or opposing; and we find been the provisional Governor of the State of nothing whatever in these transactions-if in- Alabama in the year 1865 and 1866, aman of troduced undoubtedly leading into a wide field influence in that part of the country, who asks of inquiry - that touches any crime or any the President's opinion upon the very matter intent or any purpose mentioned in these ofthe reconstruction ofthe rebel States. He articles. Mr. Manager BOUTWELL. Mr. President says: and Senators, if this evidence is admissible id slature n ssconstitution al amrtes makingdto Reconunder either of the articles-and I have no from Washington says it is probable an enabling act doubt it is admissible under both the tenth and will pass." eleventh-it is sufficient for our purpose. It Which, undoubtedly, related to those acts is enough that we show it to be admissible which have come to be called acts for the gov 186 erinent of the rebel States, enabling acts; So that the adoption of the fourteenth article measures of Congress by and through:which is a part of the reconstruction acts. these States were to be restored to the,Union. The CHIEF JUSTICE. Do the counsel He asks the opinion of the President as to what for the respondent desire to be heard further? they;shall do. -HeIsays: Mr. STANBERY. No, sir. "We do not know what to believe."'Mr. HOWARD. I offer a question to the Now, what does the President say? Managers. "What possible good can be attained by reconsid- The CHIEF JUSTICE. The question ofering the constitutional amendment?" fered by the Senator from Michigan will be read. Which had been rejected. The Secretarv read as follows: "I know of none in the present posture of affairs; What amendment of the Constitution is referred to and I do not believe the people of the whole country in Mr. Parson's dispatch? will sustain any set of individuals "- Mr. Manager BUTLER. I can answer. IHere is the -gist of the offense of this par- There was but one amendment at that time ticular telegraphic dispatch, and showing, also, pending before the country, and that was wherein it applies under the charge contained known as the fourteenth article, the one con, in the eleventh article. We set forth in the cerning which I have just read, and which is eleventh article that in August, 1866, lie had required to be adopted by every State Legislacharged that Congress was not a constitutional ture before the State can be admitted to reprebody representing all the States of the Union. sentation in Congress. In thisdispatch he speaks of Congress, because The CHIEF JUSTICE. Senators, the he can refer to no other set of men, as a " set Managers offer in support of the accusations of individuals." He says: of the House of Representatives two telegraphic " I do not believe thb people of the whole country messages, one signed by Lewis E. Parsons, will sustain any:setof individuals "- and one signed by Andrew Johnson. The Thus characterizing Congress as a set ofindi- question is, is the evidence proposed oil the viduals, which is seen in what he says in re- part of the Managers admissible? gard to them- Mr. DRAKE. I ask for the yeas and nays. "-in attempts to change:the whole character of our The yeas and nays were ordered; and being Government by enabling acts or otherwise." taken, resulted-yeas 27, nays 17; as follows: And we say that herein we have evidence YEAS-Messrs. Anthony, Cameron,Cattell, Chandof the intent of the President to defeat the will ler, Cole, Conkling, Conness, Corbett, Cragin, Drake, -of Congress in regard to the enforcement of Henderson, Howard, Morgan, Morrill of Vermont, the reconstruction laws, which is preciselythe Nye, Patterson of New Hampshire, Pomeroy, the reconstruction laws, which is preciselythe Ramsey, Ross, Sherman, Sprague, Stewart, Sumner, offense charged against him in the eleventh Thayer, Tipton, Willey, and Wilson-27. article preferred by the House of Representa- NAYS-Messrs. Buckalew, Davis, Dixon, Dootives. I am reminded, too, that the original little, Edmunds, Ferry, Fessenden, Fowler, Frelingives. I am reminded, too, that the huysen McCreery, Morril of Maine. Norton, Patterreconstruction act provides for the adoption son of Tennessee, Trumbull, Van Winkle, Vickers, of the constitutional amendment as one of the and Williams-17. NOT VOTING-Messrs. Bayard, (Grimes, HIarlan, conditions-precedent to or coincident with the Hendricks, Howe, Johnson, Morton, Saulsbury, right of a State organized under the reconstruc- Wade, and Yates —10. tion laws to be admitted to representation in So the evidence was admitted. Congress. Mr. Manager BUTLER. I suppose that the The CHIEF JUSTICE. Do the counsel dispatches need not be read again; they have for the respondent desire to say anything fur- been read once or twice. ther? Mr. CURTIS. No; we waive the further Mr. EVARTS and Mr. CURTIS. Nothing reading. further. Mr. tOOLITTLE. Mr. Chief Justice, the Mr. Manager BUTLER. I wish, if the pre- hour of five having arrived, I move that the siding officer will allow me, to call attention to court adjourn until to-morrowat twelve o'clock..the fifth section of the act of March 2, 1867, The CHIEF JUSTICE. It is moved that known as the reconstruction act, which is the the Senate sitting as a court of impeachment act described in the eleventh article, which now adjourn until to-morrow at twelve o'clock. provides: The question being put, it was declared that "And when such constitution shall be ratified by a the motion was not agreed to. majority of the persons voting on the question of FOWLER. Icllfordiision. ratification who are qualified as electors for dele- Mr. FOWLER. I call for a division. gates, and when such constitution shall have been The CHIEF JUSTICE. The result has submittedtoCongressforexaminationand approval, been announced. It is too late to call fora and Congress shall have approved the same, and when dsion. said State, by a vote of its Legislature elected under division. said constitution, shall have adopted the amendment Mr. RAMSEY. The question was not unto the Constitution of the United States proposed by derstood I think. the Thirty-Ninth Congress, and known as article fourteen, and when said article shall have become a The CHIEF JUSTICE. If that be the part of the Constitution of the United States, said case, the question will be put again. State shall be entitled to representation in Congress, The question being put again the Chief and Senators and Representatives shall be admitted therefrom on their taking the oaths prescribed by Justice declared that the motion appeared to law." be agreed to. 187 Mr. CONNESS and Mr. SUMNER called and nays being taken;upon the request of the for the yeas-and nays, and they were ordered; presiding officer. and being taken, resulted-yeas 22, nays 22; as Mr. CONKLING. Not having heard the follows: motion of the Senator from Vermont, I ask YEAS —Messh. Anthony, Buckalew, Cameron, Cor- for the reading of the seventh rule as it is now, bett, Cragin, Dstvis, Dixon, Doolittle, Fowler, Fre- which is not before us, and which we have no linghuysen, Henderson, McCreery, Morrill of Ver- means of knowing anything about. mont, Norton, Patterson of Tennessee, Ramse The CEJUSTCE. The Secretaryill Sprague, Tipto'n, Trumbull, Van Winkle, Vicker. TheSecretaryhwill and Willey-22. read the seventh rule. NAYS —Messrs. Cattell, Chandler, Cole, Conkling, The SECRETARY. The seventh rule is as Conness, Drake, Edmunds, Fessenden, Howard, follows: Howe, Morgan, Morrill of Maine, Nye, Patterson of New Hampshire, Pomeroy, Ross, Sherman, Stewart, "VII. The Presiding Officer of the Senate shall diSumner, Thayer, Williams, and Wilson-22. rect all necessary preparations in the Senate Cham-.NOTVOTING-Messrs. Bayard, Ferry, Grimes, ber, andthepresidingofficeronthe.trialshalldirectall Harlan, Hendricks, Johnson, Morton, Saulsbury, the forms of proceeding while the Senate are sitting Wade, andYates-10. for the purpose of trying an impeachment, and all The CHIEF JUSTICE. On this question forms during the trial not otherwise specially proThe CHIEF JUSTICE. On this question vided-for. And the presidingofficeron the trialmay theyeas are.22, and the nays are 22. The Chief rule all questions of evidence and incidental quesJustice votes in the affirmative. The Senate, tions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall sitting as a court of impeachment, stands ad- ask that a formal vote be taken thereon, in which journed until to-morrow at -twelve o'clock. case it shall be submitted to the Senate for decision; or he may, at his option, in the first instance, submit any such question to a vote of the members of the FRIDAY, April 3, 1868. Senate." It is proposed to add the following to the The Chief Justice of the UnitedStates entered rule the Senate Chamber at five minutes past twelve o'clock and took the chair. Upon all such questions the vote shall be without'clock and took thechair. - a division, unless the yeas and nays be demanded by The usual proclamation having been made one fifth of the members present or requested by the by the Sergeant-at-Arms, presiding officer, when the same shall be taken. The Managers of the impeachment on the Mr. DRAKE. I have no objection to the part of the House of Representatives appeared amendment proposed by the honorable Senator and took the seats assigned them. from Vermont. The counsel-for the respondent also appeared The CHIEF JUSTICE. The amendment and took their -seats. to the rule will be so modified if there be no The presence of the House of Representa- objection.;[To the Chief Clerk.] Read the tives was next announced, and the members amendment as modified. of the House, as in Committee of the Whole, The Chief Clerk read the amendment as headed by Mr. E. B. WASHBURNE, the chair- modified, as follows: man of that committee, and accompanied by the Speaker and Clerk, entered the Senate Attheendof ruleseveninsert: _Upon all such questions the vote shall be without Chamber, and were conducted to the seats pro- a division, unless the yeas and nays be demanded by vided for them. one fifth of the members present, when the same The CHIEF JUSTICE. The Secretary will shall be taken. read the minutes of the last day's proceed- The amendment to the rules, as modified, ings. was agreed to. Tlhe Secretary read the Journal of the pro- Mr. DRAKE. I move that the rules, as ceedings of the Senate yesterday sitting for the now amended, be printed for the use of the trial of the impeachment. Senate. Mr. DRAKE. Mr. President, I move that The motion was agreed to. the Senate take up the proposition which I The CHIEF JUSTICE. The Managers on offered yesterday, to amend the seventh rule, the part of the House of Representatives will and have a vote upon it. proceed with their evidence. The CHIEF JUSTICE. The amendment Mr. Manager BUTLER. Before putting any will be considered as before the Senate unless question to Mr. Tinker, the witness under exobjected to. amination at the adjournment, I will put in a Mr. EDMUNDS. Let it be read. single paper with the leave of the court. The The CHIEF JUSTICE. The Secretary paper is a "message of the President of the will read the amendment. United States, communicating to the Senate a The Secretary read as follows: report of the Secretary of State, showing the Amend the seventh rule by adding the following: proceedings under the concurrent resolution Upon all such questions the vote shall be without of the two Houses of Congress of the 13th a division. unless the yeas and nays be demanded by instant, requesting the President to submit to one fifth of the members present or requested by the the Legislatures of the States an additional arti presiding officer, when the same shall be taken. cthe Legislatures of the States an additional article to the Constitution of the United States." Mr. EDMUNDS. Mr. President, I move to Mr. STANBERY. What article is that? strike out that part of it relating to the yeas What date? 188 Mr. Manager BUTLER. The fourteenth DEPARTMENT OF STATE. article. The document is dated June 22, 1866. WASHINGTON, June 20,1866. It is the same article to which the dispatch The Secretary of State, to whom was referred the concurrent resolution of the two Houses of Congress related. We offer it in order to show to what of the 18th instant in the following words:'! Thatthe the dispatch referred. President of the United States be requested to trans[The document was handed to the counsel mit forthwith to the executives of the several States of the United States copies of the article of amendfor the respondent.] ment proposed by Congress to the State Legislatures, Mr. STANBERY, (returning it.) Mr. Chief to amend the Constitution of the United States, Justice, we do not see the particular ri~levancy passed June 13, 1866, respecting citizenship, the basis of representation, disqualification for office, and of this message to any article which we are validity of the public debt of the United States, &c., called upon to answer. However, we have no to the end that the said States may proceed to act objection to the gentleman reading it. upon the said article of amendment, and that he ren. quest the executive of each State that may ratify Mr. Manager BUTLER.,Mr. Clerk, will saidamendment to transmit to the Secretary of State you read the message? a certified copy of such ratification," has the honor The Chief Clerk read as follows'* to submit the following report, namely: that on the 16th instant Hon. A3MASA ConBB, of the Committee of Message from the President of the United States. com- the House of Representatives on Enrolled Bills, municating to the Senate a report of the Secretary of brought to this Department and deposited therein State, showing the proceedings under concurrent reso- an enrolled resolution of the two Houses of Congress lutions of the two Houses of Congress of the 13th in- which was thereupon received by the Secretary of stant, requesting the President to submnit to the Legis- State and deposited among the rolls of the Departlature of the Statesan additional article to the Consti- ment, a copy of which is hereunto annexed. Theretution of the United States. upon the Secretary of State, on the 16th instant, in To the Senate and House of Rlepresentatives: conformity with the proceeding which was adopted I submit to Congress a report of the Secretary of by him in 1865 in regard to the then proposed and State, to whorn was referred the concurrent resol afterward adopted congressional amendment of the tion of tte 18th instant, respectina submission to Constitution of the United States concerning the t he Leg isl atu r eso a iion t prohibition of slavery, transmddittedional acertified copies of the to the Constitution of the United States of an additional arti- the annexed resolution to the Governors of the sevle stom the Constitution otha Uthe Seta of iState will eral States, together with a certificate and circular be seen from this report that the Secretary of State letter. A copy of both of these communications is had, on the 16th instant, transmitted to the Govern- hereunto annexed. ors of the several States certified copies of thee joint Respectfully submittedr resolution passed on the 13th instant, proposing an WILLIAM H. SEWARDs amendment to the Constitution. ThW PRESIDENTD Even in ordinary times any question of amending the Constitution must be justly regarded as of par- [Circular.] amount importance. Thisimportanceis at thepresent time enhanced by the fact that the joint resolu- DEPARTMENT OF STATE, tion was not submitted by the two Houses for the WASHINGTON, June 16, 1866. approval of the President, and that of the thirty-six SIR: I have the honor to transmit an attested States which constitute the Union eleven are ex- copy of a resolution of Congress, proposing to the eluded from representation in either Hous6 of Con- Legislatures of the several States a fourteenth article gress, although, with the single exception of Texas, to the Constitution of the United States. The dethey have been entirely restored to all their func- cisions of the several Legislatures upon the subject tions as States, in conformity with the organic law are required by law to be communicated to this of the land, and have appeared at the national cap- Department. ital by Senators and Representatives who have ap- An acknowledgment of the receipt of this complied for and have been refused admission to the munication is requested by your excellency's most vacant seats. Nor have the sovereign people of the obedient servant. WILLIAM H. SEWARD. nation been afforded an opportunity of expressing His Excellency the Governor of the State of-. their views upon the important questions which the amendment involves. Grave doubts, therefore, may UNITED STATES OF AMERICA, naturally and justly arise as to whether the action DEPARTMENT OF STATE. of Congress is in harmony with the sentiments of the To all to whom these presents shall come, greeting: people, andwhether State Legislatures, elected with- I certify that annexed is a true copy'of a conout reference to such an issue, should be called upon current resolution of Congress, entitled, "Joint by Congress to decide respecting the ratification of resolution proposing an amendment to the Constituthe proposed amendment. tion of the United States," the original of which resoWaiving the question as to the constitutional va- lution, received to-day, is on filein this Department. lidity of the proceedings of Congress upon the joint In testimony whereof, I, William H. Seward, Secresolution proposing the amendment, or as to the retary of State of the United States, have hereunto merits of the article which it submits, through the subscribed my name and caused the seal of the executive department, to the Legislatures of the Department of State to be affixed. States, I deem it proper to observe that the steps Done at the city of Washington, this 16th day taken by the Secretary of State, as detailed in the of June, A. D. 1866, and of the independence accompanying report, are to be considered as purely [L. S.] of the United States of Americathe ninetieth. ministerial, and in no sense whatever committing WILLIAM H. SEWARD. the Executive to an approval or a recommendation of the amendment to the State Legislatures orto the [Concurrent resolution, received at Department of people. On the contrary, a proper appreciation of State Japuary 16, 1866.] the letter and spirit of the Constitution, as well as Joint resolution proposing an amendment to the of the interests of national order, harmony, and Constitution of the United States. union, and a due deference for an enlightened public judgment, may at this time well suggest a doubt ved y the Senate and Iiou e of Repogesentares whether any amlendmnent to the Constitution ought of the United States of America in Congress assembled, to be proposed by Congress. and pressed upon the (two thirds of both Houses concurring,) That the Legislatures of the several States for final decision, following article be proposed to the Legislatures of until after the admission of such loyal Senators and the several States as an amendment to the ConstituRepresentatives of the now unrepresented States as tion of the United States, which when ratified by have been or as mayhereafter be chosen in conform- three fourths of said egislatures shall be valid as ity with the Constitution and laws of the United partofthe Constitution, namely: States. ANDREW JOHNSON. ARTICLE XIV. WASHINGTOwN, D. C., June 22, 1866. SECTION 1. All persons born or naturalized in the 189 United States and subject to the jurisdiction thereof line, made by Andrew Johnson on the 18th are citizens of the United States and of the State day of August, 1866; if so, produce it? whercin they reside. No State shall make or enforce any law which shall abridge the privileges or immu- Answer. I have the files of the Associated nities of citizens of the United States; nor shall any Press dispatches sent on that day, containing State deprive any person of life, liberty, or property what purports to be a copy of the speech dewithoutdueprocessof law,nordenyanypersonwithin its jurisdiction the equal protection of the laws. livered by the President. [Producing a roll SEC. 2. Representatives shall be apportioned among of manuscript.] the several States according to their respectiveenum- Question. From the course of business of hers, counting the whole number of persons in eachu State, excluding Indians not taxed. But when the the offiee are you enabled to state whether right to vote at any election for the choice of electors this was sent? for President and Vice President of the United States, Answer. It has the sent" marksput upon Representatives in Congress, the executive and judi- A sathe sent r n cial officers of a State, or the members of the Legis- all dispatches sent over the line. lature thereof, is denied to any of the male inhabit- Question. And this is the' original manuants of such State being twenty-one years of age script? and citizens of the United States, or in any way abridged, exceptforparticipationinrebellionorother Answer. That is the original manuscript crime, the basis of representation therein shall be telegraphed reduced in the proportion which the number of such uestion By what association was this speech male citizens shall bear to the whole number of male Question. By what association was this speech citizens twenty-one years of age in such State. telegraphed? SEC. 3. No person shall be a Senator or Represent- Answer. By te Associated Press, by their ative in Congress, or elector of President and Vice ns e y e site President, or hold any office, civil or military, under agent in the city of Washington. the United States, or under any State, who, having Mr. CURTIS. We must object to this, Genpreviously taken an oath as a member of Conress, eral BUTLER. He says it has a mark on it. or as an officer of the United States, or as a member He does not say of any State Legislature, oras an executive or judi-He does not say he put the mark on it, or that cial officer of any State, to support the Constitution he knows that anything was done, thus far. of the United States, shall have engaged in insurrec- Mr. Manager BUTLE (to the witness.) tion or rebellion against the some, or given aid or Can you tell me, ir, t what extent over the comfort to the enemies thereof. But Congress may, Can you tell me sir, to what extent over the by a vote of two thirds of each House, remove such country the telegraphic messages sent by the disability. Associated Press go? SEC. 4. The validity of the public debt of the Uni- Answer. I suppose tey go to all parts of ted States, authorized by law, including debts in- Answer. I suppose they go to all parts of curred for payment of pensions and bounties for ser- the country; I cannot state positively. They vices in suppressing insurrection or rebellion, shall are telegraphed directfrm ashingon to not be questioned. But neither the United States f rom Washington to nor any State shall assume or pay any debt or obli- New York, Philadelphia, and Baltimore, there gation incurred in aid of insurrection or rebellion addressed to the agents of the Associated Press, against the United States, or any claim forthe lossor and from New York they are distributed emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void. through the country. SEC. 5. The Congress shall have power to enforce, Mr. Manager BUTLER, (to the counsel for by appropriate legislation, the provisions of this the respondent. The witness is yours, genarticle. SCIIUYLER COLFAX, Speaker of the House of Representatives. tlemen. LA FAYETTE S. FOSTER,' Mr. CURTIS. We will not detain you, Mr. President of the Senate pro tempore. Tinker. Attest:DWRD MCPHERSO, Mr. Manager BUTLER. You can step down Clerk ofthe House of Representatives. for the present, Mr. Tinker; but do not leave. J. W. FORNEY,. Secretary of the Senate. JAMES B. SHERIDAN sworn and examined. [To which is appended the certificate of J. By Mr. Manager BUTLER: W. Forney, Secretary of the Senate, dated Question. Your whole name, MIr. SheriApril 2, 1868, that the foregoing are true ex- dan. tracts from the records of the Senate.] Answer. James Bernard Sheridan. CHARLES A. TINKER'S examination resumed. Question. What is your business? By 5Mr. Manager BUTLER: Answer. I am a stenographer. Question. You told us yesterday you were Question. Where employed? manager of the Western Union T'elegraph Answer. At present in New York city. office. Have you from that office what pur- Question. What was your business on the ports to be a copy of a speech wihich was tele- 18th of August, 1866? graphed to the country or any portion of the Answer. I was a stenographer. country, as made by Andrew Johnson on the Question. State whether you reported a 18th of August, 1866; if so, produce it? speech of the President on the 18th of August, Mr. DRAKE. I will state that we have 1866, in the East Room of the President's not heard the question put.by the honorable Mansion. Manager. Answer. I did. The CHIEF JUSTICE. The Manager will Question. Have you the notes taken at the be good enough to repeat the question. time of that speech? Mr. Manager BUTLER. It is whether, Answer. I have; [producing a note-book being agent of the Western Union Telegraph containing short-hand notes.] Company, you have what purports to be a copy Qtuestion. Did you take down that speech of a speech which was telegraphed over that correctly as it was given? 190 Anlswer. I did, to the best of my ability. the respondent.) The witness is yours, genQuestion. How long experience have you tlemen. had as a reporter? Mr. STANBERY. Have you got through Answer. Some fourteen years now. with this witness? Question. Did you write out that speech at Mr. Manager BUTLER. I said the witness the time?' was yours, gentlemen. Answer. I wrote out a part of it. Mr. STANBERY, Is this all you expect Question. Where? of this witness-? Answer. At the Presidential Mansiow. Mr. Manager BUTLER. All at present, Question. Who was present? and we may never recall him. Answer. There were several reporters pres- Cross-examined by Mr. EvARTs: ent, Mr. Clephane, Mr. Smith. Question. WhatClephane? Doyouremem- Question. You have produced a note-book ber his first name?. of original stenographic report of a-speech of Answer. James, I think, is his first name? the President? Question. What Mr. Smith? Answer. Yes, sir. Answer. Francis H., I believe, is his name. Question. Is it of the whole speech?: Question. The official reporterof the House? Answer. Of the whole speech. Answer. At that time, I believe, he was con- Question. Was it wholly made by you?' nected with the House. Answer. By me; yes, sir; Question. Who else? Question. How long did the speech occupyAnswer. I think Colonel Moore was in the in the delivery? room part of the time; I do not know that he Answer. Well, I suppose some twenty or was in all the time. twenty-five minutes. Question. What Colonel Moore? Question. By what method of stenographic Answer. The President's Private Secretary, reporting did you proceed on that occasion? William G. Answer. Pitman's systemn of phonography. Question. After it was written out, what, if Question. Which is, as I understand, reanything, was done with it? porting by sound, and not by sense? Mr. CURTIS. He says he wrote a part. Answer. We report the sense by the sound. Mr. Manager BUTLER. The part that you Question. I understand you report by sound wrote out? wholly? Answer. I do not know. I think Mr. Moore Answer. Signs. took it. I was very sick at the time, and did Question. And not by memory of or attennot pay much attention to what was going on. tion to sense? Question. You think Mr. Moore took it? Answer. No good reporter can report unless Answer. I think either he or Mr. Smith took he always pays attention and understands the it, as I wrote out my share of it. We divided it sense of what he is reporting. among us; Mr. Clephane, Mr. Smith, and I Question. That is the very point I wish to wrote out the speech, I think. arrive at, whether you are attending to the Question. Look at that manuscript, [hand- sound and setting it down in your notation, ing to the witness the manuscript produced by or whether you are attending to the sense and C. A. Tinker,] and see whether you recognize setting it down from your memory or attention your hand-writing. to the sense? The WITNESS, (having examined the manu- Answer. Both. script.) No, sir; I do not recognize any of the Qulestion. Both at the same time? writing here as mine. Answer. Yes, sir. Question. Have you since written out from Question. Your characters are arbitrary, are your notes any portion of the speech as you theynot? Thatis, they are peculiar to your art? reported it? Answer. Yes, sir. Answer. I wrote out a couple of extracts Question. They are not letters?' from it. Answer. No, sir. Question, (handing a paper to the witness.) Question. Nor words? Is that your writing? Answer. We have word signs. Answer. Yes, sir. Question. But generally sound signs? Question. State whether what you hold in Answer. We have signs for sounds, just as your hand is a correct transcript of that speech the letters of the alphabet represent sounds. made from your notes? Question. But not the same? Answer. It is. Answer. No, sir. Question. When was that written? Question. This transcript that you made of Answer. It was written when I appeared be- a portion of your report for the use of the fore the Board of Managers. committee was made recently, I suppose? Question. Will you have the kindness to put Answer. Yes, sir; a few weeks ago. your initials upon it? Question. Now, sir, what in the practice of [The witness marked it "J. B. S."] your art is the experience as to the accuracy Mr. Manager BUTLER, (to the counsel for of transcribing from these stenographic notes 191....,........-~II ---....... after the lapse of a considerable period of Question. Were you employed on the 18th time? of August, 1866, to make a report of the PresAnswer. Perhaps I can illustrate better by ident's speech in reply to Mr. JOHNsoN? the present case-this report which. I made Answer. Iwas. Iwas engagedin connection here-the extract I gave when I was called be- with Mr. Smith for the Associated Press, and fore the Managers, as I had accompanied the also for the Daily Chronicle at Washington. President on his tour. I did not know what Question. Did you make a report? they wanted me for; and when they told me Answer. I did. to turn to this speech I did not even know Question. Where was this speech made? that I had the notes of it with me; but I Answer. In the East Room of the White turned to the speech, and found it there in the House. book, and I read off, as they requested I should, Question. You say it was in reply to Mr. the extracts which the Managers for the prose- JoHNSON? cution handed me, which I identified. Answer. It was in reply to Hon. REVERDY Question. You read, then, from your sten- JOHNSON. ographic notes? Question. State partially who were present? Answer. Yes, sir. Answer. There were a great many persons Question. And it was taken down? present-the committee of the convention. I Answer. The reporter of the Managers, I noticed among the prominent personages Genbelieve, took it down; but I afterward wrote eral Grant, who stood beside the President itout for them. during the delivery of the speech. Several Question. You do not make a sign for every reporters were present-Mr. Murphy, Mr. word? Sheridan, Mr. Smith, and some others. Answer. Almost every word. "Of the" we Question. Were any of the Cabinet officerc generally drop, and indicate that by putting present? the two words closer together. Of course we Answer. I do not recollect whether any of have ruales governing us in writing. them were present or not. Question. That is, you have signs which Question. Did youreport that speech? belong to every word excepting when you drop Answer. I did. the particles? Question. What was done with that report? Answer. Yes, sir. State all the circumstances. Question. But not, as a matter of course, a Answer. With regard to the Associated Press sign that is the representative of a whole word? report I will state that Colonel Moore, the Answer. Yes, sir; we have signs representing President's Private Secretary, desired the privwords. ilege of revising it before publication; and, in Question. Some signs? order to expedite matters, Mr. Sheridan, Mr. Answer. Yes, sir. Smith, and myself united in the labor of tranQuestion. For instance, for the word "juris- scribing it; Mr. Sheridan transcribed one porprudence," you have no one sign that repre- tion, Mr. Smith another, and I a third. After sents it? it was revised by Colonel Moore it was then Answer. No, sir; I should write that taken and handed to the agent of the Assoi'j-r-s-p.? X * ciated Press, who telegraphed it throughout the Question. And that is an illustration of your country. course of proceeding, is it not? Question. Look at that roll of manuscript Answer. Yes, sir. lying before you and see if that is the speech Question. Are these letters that you thus that you transcribed and Moore corrected? use, or only signs that represent letters? Answer, (having examined the manuscript Answer. Yes, sir. produced by C. A. Tinker.) I will state here Mr. EVARTS, (to the witness.) That is all. that I do not recognize any of my writing. It Mr. Manager BUTLER. That is all for the is possible I may have dictated to a long-hand present; remain within call. writer on that occasion my portion, though I am not positive in regard to that. - JAMES 0. CLEPHANE sworn and examined. Question. Who was present at the time of By Mr. Manager BUTLER: the writing out? Question, What is your busiLness? Answer. Mr. Smith, Mr. Sheridan, and ColAnswer. I am at present deputy clerk of the onel Moore, as far as I recollect. supreme court of the District of Columbia. Question. Do you know Colonel Moore'.s Question. What was your employment on the handwriting? 18th of August, 1866? Answer. I do not. Answer. I was then secretary to Governor Question. Did you send your report to the Seward, Secretary of State. Chronicle? Question. Are you a phonographic reporter? Answer. I would state that Mr. McFarland, Answer. I am. who had engaged me to report for the ChroniQuestion. How considerable has been your cle, was unwilling to take the revised report experience? of the President's speech as made by Colonel Answer. Some eight or nine years. Moore. He desired to have the speech as it 192 was delivered, as he stated, with all its imper- here in a moment. This witness is yours, fections, and, as he insisted upon my rewrit- gentlemen, [to the counsel for the respondent.] ing the speech, I did so, and it was published in the Sunday Mlorning Chronicle of the Cross 19th. Question. You acted upon the employment Question. Have you a copy of that paper? of the Associated Press? Answer. I have not. Answer. Yes, sir; in connection with Mr. Question. After that report was published Smith. in the Chronicle of Sunday morning, the 19th, Question. You were jointly to make a report, did you see the report? were you? Answer. I did, sir, and examined it very Answer. We were to take notes of the encarefully, because I had a little curiosity to see tire speech, each of us, and then we were to how it would read under the circumstances, divide the labor of transcribing being a literal report, with the exception of a Question. Now, did you take phonographic word, perhaps, changed here and there. notes of the whole speech? Question. You say with the exception of a Answer. I did. word changed here and there; how? Question. Where are your phonographic Answer. Where the sentence was very awk- notes? ward, and where the meaning was obscure, Answer. I have searched for them, but candoubtless in that case I made a change. I not find them. recollect doing it in one or two instances, Question. Now, sir, at any time after you though I may not be able to point them out had completed the phonographic notes did you just now. If I had my original notes I could translate or write them out? do so.,Answer. I did. Question. With what certainty can you speak Question. The whole? as to the Chronicle's report being an accurate Answer. The whole speech. one? Question. Where is that translation or writAnswer. I think I can speak with certainty ten transcript? as to its being accurate, a literal report, with Answer. I do not know, sir. The manthe exception that I have named, perhaps, a uscript, of course, was left, in the Chronicle eword or two here and there changed in order office. I wrote it out for the Chronicle. to make the meaning more intelligible, or to Question. You have never seen it since, have make the sentence a little more round. you? Question. Will you give us an illustration Answer. I have not. of that change? Question. Have you made any search for it? Mr. EVARTS. Some instance. Answer. I have not. Mr. Manager BUTLER. Yes, someinstance. Question. And these two acts of yours, the Mf. STANBERY. He said he could not phonographic report and the translation or recollect. writing out, are all that you had to do with the The WITNESS. I will state that my atten- speech, are they? tion was called to a particular instance; I think Answer. Yes, sir. it was a day or two after. Some correspond- Question. Now, you say that subsequently ent, learning that the Chronicle had published you read a printed newspaper copy of the a verbatim report, had carefully scrutinized it- speech in the Washington Chronicle? some correspondent who had listened to the Answer. Yes, sir. delivery of the speech; and he wrote to the Question. When was it that you read that Chronicle a complaint of its not being so, as, newspaper copy? in one instance, there was an expression of Answer. On the morning of the publication,'you and I has saw," or something of that August 19, Sunday morning. sort, and that sentence, of course, was cor- Question. Where were you when you read erected in the report published in the Chroni- it? cle. It appeared in the notes "you and I has Answer. I presume I was at my room. I saw," as this correspondent stated. generally saw the Chronicle there. By Mr. Manager BUTLER: Question. And you there read it? Question. How was it corrected in the Answer. Yes, sir. Chronicle? Question. From this curiosity that you had? Answer. "You and myself have seen," or Answer. Yes. I read it more carefully besomething to that effect; I do not now remem- cause of that reason. ber. Question. Had you before you your phonoMr. Manager BUTLER. I am informed, graphic notes, or your written transcript from Mr. President, there being two manuscripts, them? that Mr. Tinker has given me the one which Answer. I had not. was written out at length as a duplicate, and Question. And had not seen and have never not the original, as I had supposed, and I shall seen them in comparison with the newspaper have to ask to bring him on again. I have copy before you? sent for him for that purpose. He will be Answer. No, sir. 193 Reexamined by Mr. Manager BUTLER: one member of the Senate who in this trial is Question, (handing to the witness a b-ound taking notesofthe evidence. Why? Because volume of the Washington Daily Chronicle.) you rely upon the busy fingers of the reporter Have you before you a copy of the Sunday who sits by my side to give you a transcript of Morning Chronicle of the 19th of August, it, upon which you must judge. Therefore, 1866? in every business of life, ay, in the very busiAnswer. I have. ness of this court, we rely upon stenography. Question. Look upon the page before you Now, this gentleman says that he made a and see if you can find the speech as you re- stenographic report of that speech; that that ported it? was jointly made up by himself, Mr. Sheridan, Answer. I find it here, sir. and Mr. Smith; that his employer, not being Question. Look at that speech, look at it a satisfied with that joint report, which was the little carefully, and tell me whether you have President's utterance distilled through the any doubt that that is a correct report, a ver- alembic of Colonel Moore's critical discrimbatim report of the speech of Andrew John- ination, he drew out with care an exact literal son on that occasion; and if so, what ground transcript under the chiding of his employer, have you for doubt? and for a given purpose; and that the next Mr. EVARTS. Mr. Chief Justice, we ob- day, having curiosityto see whatwould be the ject to that as a mode of proving the speech. difference, and how the President of the UniIt is apparent that there is a report of this ted States would appear if put to paper litespeech, and that it has been written out, and rally, he examined that speech in the Chronicle, that is the best and most trustworthy evidence and then with the matter fresh in his mind, of the actual speech as nmade. In all legal only a few hours intervening, with his attenproceedings we are entitled to that degree of tion freshly called to it, he said then he knew accuracy and trustworthiness which the nature that that was a correct copy; that that was the of the case admits; and whenever evidence correct speech. of that degree of authenticity is presented, Now, the learned counsel say the manuscript then for the first time will arise the considera- is the better evidence. If there was any evition of whether the evidence itself is cornm- dence that that manuscript had been preserved petent and should be received. Now, it is perhaps we might be called upon to produce it impo.ssible to contend, upon the testimony of in some technicality of criticism of law as adthis witness, as it stands at present, that he ministered in a very technical manner. But remembers the speech of the President so that who does not know the ordinary course of busihe can produce it by recital, or so that he can ness, and, if that is to be disputed, I will ask the say upon any memorandum of his own shown witness; but who does not know that the ordihint (for none is shown) that from memory he nary course of business in a newspaper office, can say it is the speech. What is offered? after such manuscripts are got through with, is The same kind of evidence, and that alone, to throw them into the waste-paper basket; which would grow out of some person who they are not preserved. Therefore I act upon heard the President deliver the speech, and that usual and ordinary and common undersubsequently read in the Chronicle the report standing of the business of life as all courts of it, that he thinks that report was a true state- must act upon it. ment of the speech; for this witness has told Then this is a question for the witness, and us distinctly that reading this speech from he testifies. The question that was objected curiosity to see how it would appear when re- to, the one we are discussing, is, looking at produced, without the ordinary guarantees of that report, from your knowledge of the reaccuracy he had neither his original notes port, having twice written it out, portions of it nor his written transcript, and he read the news- certainly, and from having seen it the next paper as others would read it, but with more morning, with your curiosity awakened, can care, from this degree of curiosity which he you tell the Senate whether that is a correct had. If the true character of a production report? Thereupon the learned counsel for of this kind, as imputed to its author, is to be the President gets up and says he cannot. How regarded as important, we insist that this kind does the learne'd counsel for the President of-evidence concerning a newspaper report of know that?. How does he know that Mr. Cleit is not admissible. phane is not one of those gentlemen who, in his Mr. Manager BUTLER. Mr. President, if profession, having once read a speech can reI understand there is no question of degree of peat it the next day? evidence. We must take the business of the The difficulty is that I do not see how the world as we find it, and must not burrow our- objection arises. The question I put to the selves and insist that we have awoken up a witness is a plain one. "' Sir, there is what I hundred years ago. The art of stenography say is a copy of that speech, is a transcript of and stenographic writing and phonography has that speech; from your knowledge, having progressed to a point which makes us rely upon heard it, having written it down in short-hand, it in all the business of life. There is not a having written it once for correction by the gentleman of this Senate who does not rely President's Private Secretary, and then having upon it every day. There is not more than rewritten it again from your notes for publicaC. I.- -13. 194 tion in the Chronicle, and then having exam- this question: Mr. Witness, looking at that, ined it immediately after publication-from all can you tell me whether that is a correct tranthese sources of knowledge can you say that script of the speech made by the President? that is a correct copy?" Thereupon the coun- Mr. EVAR'S. The learned Manager is sel for the President says you cannot? How quite correct in saying that I do not know but does he know that the witness cannot repeat that this witness can repeat from memory the every word of it? President's speech; and whenever he offers The difficulty is the objection does not apply; him as a witness so to do I will not obiect. It and I should have contented myself with this is entirely competent for a person who has heard statement except that, once for all, I propose to a speech to repeat it under oath, he asserting put before the Senate, so as not ever to have that he remembers it and can do so, and whento argue it again in the course of putting in ever Mr. Clephane undertakes that feat it is this class of testimony, the argument as to within the competency of evidence. What suc-stenographic reporting. Now, allow me to cess hewill have in itwe shall determine when state, once for all, two authorities upon this that experiment has been tried. That method point, because I am not going to take the time of evidence from this witness is not attempted, of the Senate with arguing these questions but another form of trustworthy evidence is hereafter, for by doing so, I should play into sought to be made competent; that is, that by the hands of this delay which has been so often his notes, and through his transcript of those attempted here. In O'Connell's case, to prove notes, he is able to present, under his present his speeches on that great trial, the newspapers oath and belief in his accuracy and compewere introduced; and no trial was ever fought tency as a reporter, this form of evidence. with more sharpness or bitterness-newspapers Whenever that is attempted we shall make no were introduced containing Mr. O'Connell's objection to that as trustworthy. speeches, or what purported to be his speeches, But when the Managers seek to avoid reand the only proof adduced was that they had sponsibility and accuracy through the oath of been properly stamped and issued from the the witness applied in either form, and seek to office, and the court held that Mr. O'Connell, put it, neither upon present memory nor upon allowing those speeches to go out without con- his own memoranda, but upon the accuracy tradiction for months, must be held to be with which he has followed or detected inacresponsible for them to the public. curacies in a newspaper report made the subIn the trial of James.Watson, for high trea- sequent day, and thereupon to give credit and son, reported in 32 State Trials, this question authenticity to the newspaper report upon his arose, and the question was whether a copy wholesale and general approval of it, then we might be used, that copy made even of partially must contend that the sacred right of freeobliterated short-hand notes: dom of speech is sought to be invaded by over"Mr, Attorney General, (to Mr. Dowling.) You throwing certainly one of the responsible and state that you took in short-hand the address of Mr. important protections of it; and that the rule Watson to the people? requiring the oath of somebody who heard and I did." " Have you your short-hand notes here?" can remember, or, according to the rules of "Ihave." evidence, preserved the aids and assistances "Be so good as to read to my lords and the jury by which he presently in the court of justice what it was he said?" "il31. Wetherell. Pray, Mr. Short-hand Writer, may.speak, should be adhered to. And we are when did you take that note?" not to be told that it is technical to maintain "I took it on the 2d of December, in Spafields." in defense of what has been regarded as one "' When did you copy it out?" " I copied it out the same evening." of the commonest and surest rights in any free " Is that the copy you made that evening?" country-freedom of speech, that whenever it No; it is not. This is the short-hand note I took. is drawn in question it shall be drawn in quesand this is a literal copy; the short-hand note I took with a pencil, and in the crowd, and, perhaps, having tion upon the surest and mostfaithful evidences. been taken six months' back, it may be somewhat The learned Manager has said that you are defaced: but I can read the short-hand note with a familiar, as apart of the daily routine of your little difficulty, though certainly I could read the transcriptwith more ease; I will read the short-hand congressional duties, with the habit of stenonote if it is wished." graphic reporting and reproduction in the " Mr. Justice Abbott. You made that transcript the same evening?" newspapers, and that you rely on it habitually; "I madethis transcriptyesterday; I made another and I may add rely on it habitually to be transcript the same evening." habitually misled. Correction is the first deAnd he was allowed to read his transcript. mand of every public speaker-correction and While this authority is not exactly to the point revision, in order that this apparatus, dependof difference raised here, I say I put it in once ing upon the ear and the sudden strokes of the for all upon the question, because I have heard ready-writer, may not be the firm judgment a cross-examination as to the merits of Pit- against him of what was said by him. Now, man's system of short-hand writing as if we when sedulously this newspaper has under-.were to have it put in controversy here, that the taken that no such considerations of accuracy whole system of stenography was an unavail- shall be afforded to the President of the United able means of furnishing information. There- States in respect of this speech to be spread fore my present proposition is the right to put before the country, but that express orders 195 shall be given that it shall be reported with all Mr. Manager BUTLER. It was simply a its imperfections — mistake. [To the witness.] Nowgive methe Mr. Manager BUTLER. I pray correction, document I asked for? sir. I have not sedulously done that; but The WITNESS Yes, sir. [Producing a roll offer it that the speech of the President's Pri- of manuscript.] vate Secretary should not go before the By Mr. Manager BUTLER: country. Question. Is this the document you supposed Mr. EVARTS. The instructions of the you were testifying about before? editor were that it should be reported " with Answer. This is. all its imperfections " as caught by the short- Question. Do you give the same testimony hand writer, without the opportunity of that about that that you didrevision which every public speaker at the Mr. CURTIS and Mr. STANBERY. That hustings or in the halls of debate demands as will not do. Letushavehistestimonyaboutthis. a primary and important right. Whenever, Mr. Manager BUTLER. Well, sir, we will therefore, Mr. Clephane shall rise and speak give all the delay possible. [To the witness.] from memory the speech of the President here, Now, sir, will you tell us whether that was swearing to its accuracy, or whenever he shall sent through the Associated Press? produce his notes and their transcript as in Answer. It bears the marks of having been Watson's case, some foundation for the proof sent, and is filed with their dispatches of that of the speech will have been laid. date. Mr. Manager BUTLER. Stand down, Mr. Question. From the course of business of Clephane, for a moment. I will offer this your office, have you any doubt that it was so directly. Now I will call Mr. Tinker. sent? Answer. None whatever. CHARLES A. TINKER recalled. Mr. CURTIS. We object to that. If the The CHIEF JUSTICE. The witness witness can say it was sent from any knowledge states that he desires to make an explanation. he has, of course he will say so. He cannot He will make it. reason on facts. THE WITNESS. Yesterday when called upon Mr. Manager BUTLER, (to the witness.) the stand I was attending to my duties in After that speech was sent', if it was, did you charge of the telegraph office in the gallery; I see it published in the Associated Press reports? had not a moment's notice that I was to be Answer. I cannot state positively; Ithink I called. I then telegraphed to my office for did. the documents contained in packages that Question. Was that brought to your office were there, which I had been previously for the purpose of being transmitted, whether examined about before the Managers. These it was or not? documents were brought to me by a boy from Answer. I did not personally receive it; but the office, and I put them upon the stand. it is in the dispatches of the Associated Press Last night when taken from the stand I sent on that day. deposited them in the office of the Sergeant- Mr. Manager BUTLER. That is all at at-Arms, and this morning brought one of present. Now we will recall Mr. Sheridan. these packages upon the stand, and I opened it here, supposing it to be the one on which I JAMES B. SHERIDAN recalled. was to be examined. As I saw that the By Mr. Manager BUTLER: reporters were in trouble about it, I thought I Question, (handing to the witness the manhad made a mistake, and I consequently went uscript last produced by Mr. Tinker.) Now, to my office after Mr. Clephane came upon the examine that manuscript and see whether you stand, and I have now the speech of the Presi- find any of your handwriting in it? dent telegraphed by the agent of the Asso- Answer, (having examined the manuscript.) ciated Press on the 18th of August, 1866. I see my writing here. Mr. ST-k>NBERY. Mr. Tinker, what'docu- Question. What is it you- have there? ment was that General BUTLER handed you? Answer. I have a report of the speech made Answer. This is one of the documents. by the President on the 18th of August. Mr. STANBERY. Is that the speech of the Question. In what year? 18th of August at all? Answer. Eighteen hundred and sixty-six. Answer. This is not the speech of the 18th Question. Have you ever seen Mr. Moore of August. write? Mr. Manager BUTLER. That is the 22d of Answer. A good many years ago, when he February speech, is it? [Laughter.] was reporter for the Intelligencer and I reMr. STANBERY. No matter what it is. ported for the Washington Union, and we had The WITNESS. I have not looked to see what seats together. this is. Question. He was a reporter for the IntelliMr. Manager BUTLER. You will find out gencer, was he? what that document is in good time. Answer. Yes, sir. Mr. STANBERY. You had better put it in Question. Are there any corrections made' in good time." in that report? 196 Answer. Yes, sir. comparison of the manuscript now in your Question. Do you see any corrections there? hands with your stenographic notes? Answer. Yes, sir. Answer. I have not. Question. Is that the manuscript which was Question. When was this completed on your prepared in, the President's office? part? Answer. I think it is; I am pretty certain Answer. Avery few minutes after the speech it is. was delivered. Question. Have you any doubt in your mind? Question. And what did you do with the Answer. Not the least. manuscript after you had completed it? Question..Was the President there to cor- Answer. I hardly know. I sat at the table rect it? there writing it out, and I think Mr. Smith took Answer. No, sir. it as I wrote out; I am not certain about that. Question. Then he did not exercise that great Question. That ended your connection with right of revision there, did he, to your knowl- it? edge. Answer. That ended my connection with it. Answer. I did not see the President after he I left for New York the same night. left the East Room. Question. I desire that you should leave your Question. Do you know whether Colonel original stenographic notes as part of the case Moore took any memoranda of that speech.? subject to our disposal? Answer. I do not. There was quite a crowd Answer. Certainly. there. I had no opportunity of observing. Mr. Manager BUTLER. Put your initials Question. Will you pick out and lay aside upon these papers. the portions that are in your handwriting? The WITNESS. I will do so. [The witness proceeded to do so.] [The notes were marked "J. B. S."] Mr. Manager BUTLER. I will give you Mr. Manager BUTLER. One of my assotime to do that in a moment. [To the counsel ciates desires me to put this question, which I for the respondent.] Anything further with suppose you have answered before: whether this witness? that manuscript which you have produced in No response. your handwriting was a true transcript of your Question. Do you think you have now all notes of that speech? that are in your handwriting? Answer. It was. I will not say it was writAnswer. Yes, sir. ten out exactly as it was spoken. [Selecting certain sheets and handing them Question. What is the change, if any? to Mr. Manager BUTLER.] Answer. I do not know that there were any Mr. EVARTS. We will now put a few changes, but frequently in writing out we exquestions. ercise a little judgment. We do not always write out a speech just as it is delivered. Cross-exanmined by Mr. EVARTS: Question. Is that substantially a true version Question. You have selected the pages that of what the President said? are in your handwriting and have them before Answer. It is undoubtedly. you. How large a proportion do they make of FRANCIS H. SMITH sworn and examined. the whole manuscript? Answer. I can hardly tell. I have not ex- By Mr. Manager BUTLER: amined the rest. Question. Are you the official reporter of the Question. Well, no matter; was this whole House of Representatives? manuscript made as a transcript from your Answer. I am, sir. notes? Question. How long have you been so enAnswer. This part that I wrote out. gaged? Question. Was the whole? Answer. In the position I now hold since Answer. No, sir. the 5th of January, 1865. Question. The whole was not made from Question. How long have you been in the your notes? business of reporting? Answer. No, sir; Mr. Clephane wrote his Answer. For something over eighteen years. part from his notes, and Mr. Smith from his. Question. Were you employed, and if so by Question. Then it is only the part that you whom, to make a report of the President's now hold in your hands that was produced speech in August, 1866? from the original stenographic notes that you Answer. I was employed at the instance of have brought in evidence here? one of the agents of the Associated Press at Answer. That is all. Washington. Question. Did you write it out yourself from Question. Who aided in that report? your stenographic notes, following the latter Answer. Mr. James O. Clephane and Mr. with your eye, or were your notes read to you James B. Sheridan. by another person? Question. Did you make such report? Answer. I wrote out from my own notes, Answer. I did. reading my notes as I wrote. Question. Have you got your short-hand Question. Have you made any subsequent notes? 197 Answer. I have. Answer. I have. Question. Here? Question, (handing a manuscript to the witAnswer. Yes, sir. ness.) Is that it? Question. Produce them? Answer. It is. Answer. I will do so, [producing a note- Question. Is that speech as written out by book.] you a correct transcript of your notes? Question. After you had made your short- Answer, (having examined the manuscript.) hand report, what did you do then? It is, with the exception of two important Answer. In company with Mr. Clephane and corrections, which I handed to the committee Mr. Sheridan I retired to one of the offices in a day or two afterward. I do not see them the Executive Mansion, and wrote out a portion here. of my notes. Question. Do you remember what they were? Question. What did the others do? Answer. In the sentence "I could express Answer. The others wrote other portions of more by remaining silent and letting silence the same speech. speak what I should and what I ought to say," Question. What was done with the portion I think the correction was " and letting silence that you wrote? speak and you infer," the words' you infer " Answer. It was delivered to Colonel Moore, having been accidentally omitted. The other Private Secretary of the President, sheet by I do not see; it is the insertion of the word sheet as written by me, for revision.' overruling" before the words " unerring Question. How came you to deliver it to Providence." Colonel Moore? Answer. I did it at his request. Cross-examined by Mr. EvaRTS: Question. What did he do with it? Question. Is the last paper that has -been Answer. He read it over and made certain shown you a transcript of the whole speech? alterations. Answer. Of the entire speech. Question. Was the President present while Question. And from your notes exclusively? that was being done? Answer. From my notes exclusively. Answer. He was not. Question. Have you any doubt that the tranQuestion. Had Colonel Moore taken any script that you made at the Executive Mansion memoranda of the speech, to your knowledge? from your notes was correctly made? Answer. I am not aware whether he had or Answer. I have no doubt the transcript I not. made from my notes at the Executive Mansion. Question. Did Colonel Moore show you any was substantially correctly made. I rememmeans by which he knew what the President ber that, having learned that the manuscript meant to say, so that he could correct the was to be revised, I took the liberty of making speech? certain revision myself as I went along, corAnswer. He did not. He stated to me prior recting ungrammatical expressions and changto the delivery of the speech that he desired ing the order of words in sentences in certain permission to revise the manuscript, simply instances, corrections of that sort. to correct the phraseology, not to make any Question. Those two liberties, then, you took change in any substantial matter. in writing out your own notes? Question. (Handing to the witness the man- Answer. Yes, sir. uscript last produced by C. A. Tinker.) Will Question. Have you ever made any examyou look and see whether you can find any ination to see what changes you thus made? portion of the manuscript that you wrote out Answer. I have not. there? Question. And you cannot now point them Answer. I recognize some portion of it. out? Question. Separate it as quickly as you can. Answer. I cannot now point them out. [The witness separated the sheets written by Question. You have made a more recent him.] ~ transcript from your notes? Answer. I find what I wrote in two different Answer. Yes, sir. portions of the speech. Question. Did you allow yourself the same Question. Have you now got the portions, liberties in that? occurring, you say, in two different portions Answer. I did not. of the speech, which you wrote out? Question. That, then, you consider as the Answer. I have. notes as they are? Question. Are there any corrections on that Answer. A literal transcript of the notes as manuscript? they are, and as they were taken. Answer. There are quite a number. Question. Do you report by the same system Question. In whose handwriting, if you of sound, phonography, as it is called, that was know? spoken of by Mr. Sheridan? Answer. In the handwriting of Colonel Answer. 1 hardly know what system I do Moore, so far as I see. report by. I studied short-hand when I was a Question. Have you written out from your boy going to school, a system of phonography notes since the speech? as then published by Andrews & Boyle, which 198 I have used for my own purposes since then, and Answer. I cannot say whether I succeeded made various changes from year to year. or not. Question. Can you phonographic reporters Question. That was one rule; what other write out from one another's notes? rule of change did you allow yourself? Answer. I do not think any one could write Answer. No other. out my notes except myself. Question. No grammatical improvement? Question. Can you write out anybodyelse's? Answer. Yes, sir; I may say, if you will Answer. Probably not, unless written with a allow me, that very often the singular verb was very great degree of accuracy and care. used where perhaps the plural ought to be. Question. You corrected, then, the gramJAMES 0. CLEPHANE recalled. mar? ~ By Mr. Manager BUTLER: Answer. Yes, sir; in some instances. Question, (handing to the witness a part of Question. Can you suggest any other rule the manuscript last produced by C. A. Tinker.) of change? You have already told us that you took the Answer. I cannot at the present time. speech and wrote it out. Is what I now hand you the manuscript of your writing out? By Mr. Manager BUTLER: Answer. It is. Answer. It is. By Mr. Manager BUTLER: Question. Has it any correctlbns upon it? Question. What is your rank? Answer. It has quite a number. Answer. I am a paymaster in the Army with Question. Who made those? the rank of major. Answer. I presume they were made by Colo- Question. When were you appointed? nel Moore. He took the manuscript as I wrote Answer. On the 14th day of November, it. I cannot testify positively as regards his 1866. handwriting. I am not sufficiently familiar Question. Did you every pay anybody. with it. Answer. No, sir; not with Government Question. Was that manuscript as you wrote funds. [Laughter. ] it a correct copy of the speech as made? Question. What has been your duty? Answer. I cannot say that I adhered as Answer. I have been on duty at the Execclosely to the notes in preparing this report utive Mansion. as I did in regard to the Chronicle. Question. What kind of duty? Question. Was it substantially accurate? Answer. I have been acting in the capacity Answer. It was. of Secretary to the President. Question. Did you in any case change the Question. Were you so acting before you sense? were appointed? Answer. Not at all, sir; merely the form of Answer. I was. expression. Question. How long had you acted as SecQuestion. And the form of expression, why? retary before you were appointed major? Answer. Oftentimes it tended to obscure the Answer. I was directed to report to the meaning,. and for that reason it was changed; President in person in the month of November, or the sentence, perhaps,was an awkward one, 1865. and it was changed to make it more read- Question. Had you been in the Army prior able. to that time? Answer. I had been a major and assistant Cross-examined by Mr. EVARTS: adjutant general. Question. What rules of change did you Question. In the War Department? prescribe to yourself in the deviations you Answer. Yes, sir. made from your phonographic notes? Question. Did you hear the President's Answer. As I have said, I merely changed speech of the 18th of August, 1866? the form of expression in order perhaps to * Answer. I did. make the meaning more intelligible or the sen- Question. Did you take any notes of it? tence less awkward. Answer. I did not. Question. That is to say, when the meaning Question, (placing the manuscript last prodid not present itself to you as it should, you duced by Mr. C. A. Tinker before the witness. ) made it clearer, did you? Look at the manuscript which lies before you Answer. I will state, sir, Mr. Johnson is in and see whether you corrected it. [The witthe habit of using quite often- ness proceeded to examine the manuscript.] Question. I do not ask you about Mr. John- I do not care whether you corrected it all; did son. What I asked you was this: When the you correct any portion of it? meaning did not present itself to you as it Answer. Yes, sir. should, you made it clearer? Question. Where were the corrections made? Answer. I do not know that I in any case Answer. In an apartment in the Executive altered the meaning. Mansion. Question. But you made the meaning clearer? Question. Who was in the apartment when Answer. I endeavored to do so. you made the corrections? Question. And you did, did you not? Answer. Messrs. Francis H. Smith, James 199 B. Sheridan, James 0. Clephane, and, I think, Thereisa page in which several lines are erased: Mr. Holland, of the Associated Press. but whether or not I erased them I cannot say. Question. Had you any memorandum from Question. Do you know of anybody else that the President by which to correct it? r had anything to do with revising it? Answer. None, sir. Answer. No, sir. Question. Do you claim to have the power Question. Did you do that revision by the of remembering, on hearing a speech, what a direction of the President? man says? Answer. I did not, sir, so far as I can recol. Answer. I do not, sir. lect. Question. Do you not know that the Presi- Question. He did not direct you? dent, on that occasion, had been exercising Answer. No, sir. his great constitutional right of freedom of Question. Did you say to Mr. Smith then speech? and there that you did it by the direction of The WITNESS. Will you repeat that ques- the President? tion, if you please? Answer. Not that I remember. Question. Did you not know that on that Question. Do you mean to say that you made occasion the President had been exercising these alterations and corrections upon this very his great constitutional right of freedom of solemn occasion of this speech without any speech? authority whatever? Mr. CURTIS. That puts a question of law Answer. That is my impression. to the witness, and I do not think it is admis- Question. After you made the revision did sible? you show it to the President? Mr. Manager BUTLER.' I am not asking Answer. No, sir. a question of law, but a question of fact. [To Question. Did you ever tell him that you had the witness.] Did you not so understand tfken that liberty with his constitutional rights? it? Answer. I cannot recall the fact that I did. Answer. I so understood it, sir. Question. What did you do with the manuMr. STANBERY. Then we are to un- script? derstand the fact that it was constitutional to Answer. The manuscript, as it was revised, exercise freedom of speech? was handed, I think, to the agent of the AssoMr. Manager BUTLER. In the idea of the ciated Press, who dispatched it from the office President and this witness, he thinks it is con- in order that it might be published in the afterstitutional to exercise it in this way. It may noon papers. be constitutional, but I think not decent. Question. Was it published in the papers? Mr. STANBERY. That is a matter of taste. Answer. I think it was. By Mr. Manager BUTLER: Question. Have you any doubt of that? Questioh. Now, then, sir, how dare you cor- Answer. I cannot say positively, as I have rect the President's great constitutional right not examinedthe papers. That wasthe object. of freedom of speech without any memoran- Question. Was the speech-whether cordum' to do it by? rectly or not I do not ask-but was that speech, Answer. It was an authority I assumed. purporting to come from the President, pubQuestion. How came you to assume the au- lished in the Associated Press dispatches? thority to exercise this great constitutional Answer. I do not know. I refer more to right for the President? the city papers than to those to which the AsAnswer. Well, that is a difficult question to sociated Press furnished information. answer. Question. Was the same speech published Mr. EVARTS. It ought to be a difficult in the Intelligencer? one to ask. Answer. The speech was published in the By Mr. Manager BUTLER: Intelligencer. Question. Why should you assume the au- Question. Is that newspaper taken at the thority to correct his speech? Executive Mansion? Answer. My object was, as the speech was Answer. It is. an extemporaneous one, simply to change the Question. Was it at that time? language, and not to change the substance. Answer. It was at that time. Question. Did you change the substance Question. Seen by the President? anywhere? Answer. Yes, sir; I presume it was. Answer. Not that I am aware of. Question. Did he ever chide you, or say Question. Are there' not pages there where anything to you that you had done wrong in vour corrections are the most of it? the correction, or had misrepresented him in Answer. I am not aware of that fact. this speech at all. Question. Look and see if there is not a Answer. He did not. larger number of corrections on some pages? Question. Even down to this day? Answer, (after examining the manuscript.) Answer. He has neyer chided or rebuked In the hasty examination that I have made I me for the correction of a speech. find no one page-perhaps there may be a single Question. Has he ever said there was anyexception-where my writing predominates. thing wrong about it? 200 Answer. I have never heard him say so. Mr. Manager BUTLER. We put all verNo cross-examination. sions in evidence, and we will read one. Mr. Manager BUTLER. I now propose, Mr. EVARTS. We should like to have the with your Honor's leave and the Senate's,'to one read that you rely on. read the speech as corrected by Colonel Mr. TIPTON. Mr. Chief Justice, I move Moore, unless that is objected to. If that is that we now take a recess of fifteen minutes. objected to, I propose to put in evidence the Mr. TRUMBULL. Before that motion is report of Mr. Smith, the Associated Press re- put I wish to put it in the form'of an adjournport, and the report of the Chronicle, reading ment until three o'clock, that we may do some one only. You are aware, sir, that the Presi- legislative business. ["No, no."] There is dent complains in his answer that we do not a rule that ought to be altered, and if the Sengive the whole speech. We have nowbrought ator from Nebraska will allow me I will.nove all the versions that we can conveniently of his that the court adjourn until three o'clock. whole speech, and it' not objected to we will The CHIEF JUSTICE. The Senator from put them all in. Otherwise, I will only put in Illinois proposes that the court adjourn until the extracts. three o'clock. Mr. EVARTS. What version do you now Mr. JOHNSON. What for? offer? The CHIEF JUSTICE. The Senator from Mr. Manager BUTLER. All, hoping to get Illinois will state the object of the adjournment. the truth out of the whole of them. Mr. JOHNSON. 1 think the honorable Mr. EVARTS. The speech as proved now member did state the purpose, but I did not by the witnesses, in the version which passed hear him. under Colonel Moore's eye? The CHIEF JUSTICE. The Senator from Mr. Manager BUTLER. I think I must Illinois states that he desires an adjournment ask that the objection, if any is to be taken o for the purpose of taking up a rule in legismy offer, shall be put in writing. lative session. You who are, in favor of adMr. EVARTS. Before it is made? journing until three o' clock will say "ay, " the Mr. Manager BUTLER. No, sir; as it is contrary opinion "'no." made. The motion was not agreed to. Mr. EVARTS. Well, the speech as proved The CHIEF JUSTICE. The question now in Mr. Srnith's and Mir. Sheridan's copy we is on the motion of the Senator from Nebraska, regard as in the shape.of evidence, the accu- [Mr. TIPTON. racy of the report to be judged of, there being competent evidence on the sul)ject. The speech Mr. DRAKE. I suggest an amendment th the motion of the Senator from Nebraska, that in the Chronicle we do not understand to be supported by any such evidence, and we shall we take a recess for twenty minutes. object to that as not authentically proved. The CHIEFJUSTICE. TheChairwill ut speech in the Intelligencer, which seems to have the question on the longest time first. The been supported in the intent of the honorable motion is to take a recess for twenty minutes. Managers by proof of that newspaper being The motion was not agreed to. taken at the Executive Mansion, has not been The CHIEF JUSTICE. The question now produced, and has not been offered, as I un- recurs on the motion of the Senator fiom Nederstand. braska, to take a recess for fifteen minutes. M~r. 1MS1anager BUTLER. No. The motion was agreed to; and at the ex' Mr. EVARTS. Therefore we dismiss that. piration of fifteen minutes the Chief Justice The Chronicle speech, then, we consider not resumed the chair, and called the Senate to orproved by authentic evidence submitted to the der at two o'clock, and forty-five minutes p. m. court. The stenographic reports in the two Mr. GRIMES. I move that this court stand forms indicated we suppose have proof to sup- adjourned until Monday at twelve o'clock. port them, which is competent, and enable the Mr. CONNESS. 1 hope not. court under competent evidence to judge of Mr. DRAKE. I ask for the yeas and nays their accuracy, their accuracy to be the subject upon that motion. of remark, of course, as the cause proceeds, The CHIEF JUSTICE. It is moved that and without desiring here to anticipate the dis- the Senate adjourn until Monday at twelve cussion as to whether any evidence concerning o'clock, and on this question the yeas and nays them (as we have excepted and objected in our are demanded. answer to the tenth and eleventh articles) is Theyeas and nays were not ordered. admissible. Saving that for the purpose of Mr. DRAKE. The'rule requires us to sit discussion in the body of the case, we make no every day. other objection to the reading of the speeches. Mr. JOHNSON. No; it does not. It is Mr. Manager BUTLER. Do you want the " unless otherwise ordered." whole of them read? We are content with one, The CHIEF JUSTICE. The question is the others being subject to be used by either on the motion to adjourn. party. Mr. SUMNER. The yeas and nays have Mr. EVARTS. Whichever version you put been called for. in evidence we wish read. The CHIEF JUSTICE. There was not a 201 sufficient number rising to demand the yeas We think, or thought, we had partially succeededand nays, and they were not ordered. but as the work progressed, as reconciliation seemed Mr. SUMNER. Then there was a misap. to be restored and the country become united, we Mr. SUMNER. Then there was a msap-found a disturbing and marring element of opposiprehension, if the Chair will pardon me. tion thrown in; and in making any allusion to that, The CHIEF JUSTICE. lThe Chief Justice I shall make no more allusion than has been in the will put the question again on ordering the convention and by the distinguished gentleman who has placed the proceedings of the convention before yeas and nays. me,-I shall make no more allusion than I think the The yeas and nays were ordered; and being times justify. We have witnessed in one Departtaken, resulted- yeas 19, nays 28; as follows: ment of the Government every effort, as it were, to prevent the restoration of peace, harmony and union; we have seen, as it were, hanging upon the Fessenden, Fowler, Grimes, Henderson, Hendricks, verge of the Government, as it were, a body, calling Johnson, McCreery, Norton, Patterson of Tennessee, or it wassuming to be the Congress of the United States, Ramsey, Saulsbury, Trumbull, Van Winkle, Vickers, when it was but a Congress of a part of the States; and Wilson-19. we have seen Congress assuming to be for the Union NAYS-Messrs Anthony, Cameron, Cattell, Chand- when every step they took was to perpetuate dissoler, Cole, Conkling, Conness, Cragin, Drake, Ed- lution, and make disruption permanent. We have munds Ferry, Frelinghuysen, Howard, Howe, Mor- seen every step that has been taken, instead of bringgan, Morrill of Maine Morrill of Vermont, Nye, ingabout reconciliation andharmony, has been legisPatterson of New Hampshire, Pomeroy, Ross, lation that took the character of penalties, retaliaSprague, Stewart, Sumner, Thayer, Tipton, Willey, tion and revenge. This has been the course; this and Williams-W28. has been the policy of one department of your GovNOT VOTING-Messrs. Bayard, Doolittle, Har; ernment. The humble individual who has been lan, Morton, Sherman, Wade, and Yates —7'. addressed here to-day, and now stands here before you, has been occupying another department of the So the motion was not agreed to. Government. The manner of his getting there I shall not allude to noi —suffice it to say, I was there Mr. Manager BUTLER. I now offer the by the Constitution of my country (applause,) and version of the speech sworn to by Mr. Smith: being there by the Constitution of my country, I placed my foot upon the Constitution as the great Speech of the President of the United States, August rampart of civil and religious liberty (applause,) 18, 1866. having been taught in early life, and having pracThe President said: ticed it through my whole career to venerate, respect, Mr. Chairman, and gentlemen of the committee:- and make the Coustitution of my fathers, my guide Language is inadequate to express the emotions and through my public life. (Applause.) feelings of this occasion; and perhaps I could ex- I know it has been said, and I must be permitted press more by remaining silent and letting silence to indulge in this line, that the executive departspeak, what I would and what I ought to say. I con- ment of the Government, has been despotic and fess, though having had some experience in public life, tyrannical. Why, let me ask this audience here having been before many public audiences-I con- to-day, and the distinguished gentlemen who stand fess the present occasion and audience is well calcu- around me- where is the vote I evergave,-where is lated, and not only well calculated, but has in fact, the speech [ ever made -where is a single act of my partially overwhelmed me. I have not language to whole public life but what has been arrayed against express, or to convey, as I have said, in an adequate tyranny and against despotism? (Applause.) What manner, the feelings and emotions produced by the position have I ever occupied, what ground have I present occasion. In listening to the address that ever stood upon, when I failed to advocate the your distinguished and eloquent chairman has just amelioration and elevation of the great mass of my delivered, the proceedings of the convention, as they countrymen? (Applaule.) transpired, recur to my mind, and seemingly, that I So far as charges of that kind is concerned, it is partook here of the enthusiasm which seemed to pre- simply intended to deceive and delude the public vail there. And upon the reception of the dispatch, mind, that there is some one in power who is seeksent by two distinguished members of that conven- ing to trample upon and pervert the principles of tion, conveying in terms the scenes that have just the Constitution by endeavoring to cover and delude been described, of South Carolina and Massachusetts the people so far as their own public acts are conarm in arm, marching into that convention giving cerned. Ihave felt it my duty, in vindication of the evidence that the two extremes could come together, principles of the Constitution of my country, to call that they could peril in future, for the preservation their attention to these proceedings; but when we of the Union, as they had in the past, when the ac- go forward and examine who has been playing tyrant, companying statement that in that vast assembly of and where has been the tyranny and despotism exerdistinguished, eloquent, and intellectual persons that cised, the elements of my nature, and the pursuits of were there, every face was suffused with tears-when my life, has not made me in my practice aggressive, I undertook to read the dispatch to one associated nor in my feelings; but, my nature, rather on the with me in office, I could not give utterance to the contrary, is defensive; and having placed my feet feelings it produced. (Applause.) or taken my stand upon the broad principles of I think we may justly, conclude we are moving liberty and the Constitution, there is not enough under proper inspirations; I think Icannot be mis- power on earth. to drive me from it. [Great Aptaken that an unerring Providence is in this matter. plause.] The nation is imperilled; it has just passed through Upon that broad platform I have taken my stand. a mighty, bloody and momentous ordeal; and while I have not been awed, or dismayed, or intimidated by we have passed through thatwe do not find ourselves their words or encroachments; but I have stood free from difficulties and dangers that surround us. there, in conjunction with patriotic spirits, sounding While our brave men have performed their duties in the tocsin of alarm that the citadel of liberty was the field-officers and men-while they have won encroached upon. [Applause.] laurels that are imperishable, there are still greater I said on one occasion before, and I repeat now, and more important duties yet to perform; and while that all that was necessary in this great st"rggle was we have had their cooperation in the field we want here, in the contest with tyranny and despotism,was their support out of the field when we are trying to for the struggle to be sufficiently audible that the bring about peace. great mass of the American people could hear the Every effort has been made, so faras the executive struggle that was going on, and when they underdepartment of the Government was concerned to stood and heard the struggle going on, and came up, restore the Unions to heal the breach, to pour oil and looked in, and saw who the contestants were, into the wound which had been inflicted, and-to and understood about what that contest was, they speak in common phrase, to prepare, as the learned would settle that question upon the side of the Conand wise physician would, a plaster that was co-ex- stitution and principle. L" Good."] tensive with the wound and that was healing in its It has been said here to-day, my faith is abiding character. (Applause,) in the great mass of the people. It is, and in the 202 darkest moment of the struggle, when the clouds alderman in a village, to the Presidency of the Uniseemed to be the most lowering, my faith instead ted States; and now, in standing before you, don't of giving way, loomed up as from the gloom of the you think that all reasonable ambition should be cloud, through which I saw that all would be safe in gratified? If I wanted power if I wanted to perthe end. petuate my own power, and that of those who are But tyranny, and despotism I We all know that around me, how easy would it have been for me to tyranny and despotism even, in the language of have held the power placed in my hands. Thomas Jefferson, can be exercised, and exercised With the bill called the Freedmen's Bureau, and more effectually, by many than one. We have seen the Army placed at my discretion, [laughter and Congress organized; we have seen Congressin its applause] I could have remained at the capital with advance, step by step, has gradually been encroach-'fifty or sixty millions of appropriations, with the ing upon constitutional rights and violating the fun- machinery to be worked by own hands, with my damental principles of the Government, day after day, satraps and dependants in every township and civil and month after month. We have seen a Congress district in the United States, where it might be necesthat seemed to forget that there was a Constitution sary, with the Civil Rights bill coming along as an of the Constitution of the United States, that there auxiliary [laughter] and all the other patronage of. was limits, that there was boundaries to the sphere the Government, I could have proclaimed myself or scope of legislation. We have seen Congress in a dictator. [" That's a fact."] My pride and my power a minority, assume to exercise, and have exercised is, if I have any, to occupy that position which repowers, if carried out and consummated, will result tains the power in the hands of the people. [" Good" in despotism or monarchy itself This is truth, and and applause.] Itisuponthem Ihave alwaysrelied; because I and others have seen proper to appeal to it is upon them I now rely. ["And they will not dethe country, to the patriotism and republican feel- sert you either"-applause.] And I repeat, neither ing of the country, I have been denounced; slander the taunts nor jeers of Congress, nor of a subsidized after slander, vituperation after vituperation of the and culminating press can drive me from my purpose. most virulent character, has made its way through [Applause.] the press. What then has been my sin? What has I acknowledge no superior but two,-my God, —the been your sin? What has been the cause of your author of my existence, and the people of the Unioffending? Because you dare stand by the Consti- ted States. [Applause.] The one, I try to obey all tution of our fathers. [Applause.] His commands as best I can, compatible with mortal I look upon the proceedings of this convention as man; the other, in a political and representative being more important than any convention that ever sense, the high behest of the people has always been sat in the United States. [Applause.] When I look in strict respect, has always been obeyed by me. at that collection of citizens coming together volun- [Applause.] tarily, and sitting in council, with ideas, with prin- Mr. Chairman, I have said more than I intended ciples and views, commensurate with all the States to say. For the kind allusions made in the address and coextensive with the whole people; and when I and in the resolutions or propositions adopted by contrast it with a collection of gentlemen who were your convention, I want to say to you that in this trying to destroy the country, I look upon it as more crisis, in this period of my public life, I prize that last important than any convention that has sat, at least, resolution, more than all that has come to me. To since 1787; and I think I may say here too that in have the endorsement of a convention, constituted as the declarations that it has made, which are equally that was, emanating spontaneously, from the great important with the Declaration of Independence mass of the people, I prize it above consideration, and itself; and I here, to-day, pronounce it a second I trust and hope my future conduct will not cause the declaration of independence. [Great applause.] convention that adopted that to have regretted the In this connection, I may remark, when you talk assurance they have given. [" Very sure of it."] about declarations of independence, there area great Before separating, and leaving you, gentlemen one many people in the United States, who want to be and all, committee and strangers, please accept my free, that cannot claim exactly, and in fact, that thanks for this kind manifestation of regard and rethey are free at this time. I may say that your spect that you have manifested, on this occasion, and address and the declarations made, are nothing more to one that feels so little entitled to it, except upon nor less than a reaffirmation of the Constitution of thesimpleconsideration ofhavingperformedhisduty. the United States. [Great applause.] Yes, I will go I repeat again, as I have said in substance, that I further, and say that the declarations that you have have, and shall always continue to be guided by a there made, and the principles enunciated in that conscientious conviction. That always gives me address, is a second proclamation of emancipation courage. The Constitution I have made my guide. to the people of the United States [applause;] for Then, accept my sincere thanks for this manifestain the promulgation, in the proclamation reaffirming tion of your approbation and regard. these great truths, you have laid down a platform, a constitutional platform, upon which all can make Mr. Manager BUTLER, having concluded common cause, and stand, rallying for the restora- the reading, continued: I do not propose, genion of the States, and the restoration of the Union without reference to whether they belong to this tlemen, to read any more of these versions, but association, or this party or that party; but the to leave them here for any correction that may theory is, my country rises above party. Upon this be desired. common ground they can stand. LApplause.]I offered an order in How many are there in the United States, that now Mr. ANTHONY. I offered an order in require to be free? They have got shackles upon legislative session, and I do not know that it is their limbs and are bound, as tight as though thime. If not, I were in fact in slavery. Then, I repeat, it is a second should lile to repeat it. proclamation of emancipation to the people of theshould like to repeat it. United States, and fixes a common ground upon The CHIEF JUSTICE. The Chief Justice which all may stand. thinks it is not in order to call up any business I have said more now, Mr. Chairman, and gentle- transacted in lenislative session. men of the committee, than I intended to have said; but, in this connection, and in conclusion, let me ask Mr. CONKLING, (to Mr. ANTHONY.) this intelligent audience, and committee here to-day, Offer it originally now. what have I or you to do, other than the promotion or advancement of the common weal? I am opposed Mr. ANTHONY. Then I move that the to egotism-as much so as any one, but here, in acon- presiding officer be authorized to assign a place versational manner and in the reception of the pro- upon the floor to the reporter of the Associated ceedings of this convention, I must add, what have I to gain, consulting human ambition, more than I Press. have gained, excepting one thing? My race is run. Mr. CONKLING. A single reporter. I have been placed here by the Constitution of the The CHIEF JUSTICE. The Chief Justice country; and I may say here, from the lowest to the highest position in the Government, I have occu- thinks it is not in order to interrupt the busipied. I passed through every single position from ness of the trial with such a motion. 203 Mr. EVARTS. General BUTLER, will you have witnessed in one department of the governallow us to ask what copies or Versions of the ment every effort, as it were, to prevent the restoraseech of August 18, 1866,you consider in- tion of peace and harmony in the Union. We have speech of August 18, 1866, you consider in- seen hanging upon the verge of the government, as cluded in the testimony received? One has it were, a body called, or which assumes to be, the been read. Congress of the United States-but, in fact, a ConMr Manager BUTLER. I conside ress of only part of the States. We have seen this Mr. Manager BUTLER. I cmde h ongress assume and pretend to be for the Union, two copies, one that Mr. Smith made, which when its every step and act tended to perpetuate dishas been read, and the corrected version, as union and make a disruption of the States inevitable. the substantial copies. Instead of promoting reconciliation and harmony, its the substantial copies. legislation has partaken of the character of penalties, Mr. EVARTS. And no others? retaliation, and revenge. This has been the course Mr. Manager BUTLER. I do not offer the and the policy of one department of your governChronicle, not because it is not evidence, but ment. The humble individual who is now addressing you stands the representative of another department because I have the same thing in Mr. Smith's of the government. The manner in which he was report. called uponto occupy that position I shall not allude Mr. EVARTS. Then it is only those two, to on this occasion; suffice it to say that he is here under the Constitution of the country, and being here and they will both be printed as part of the by virtue of its provisions, he takes his stand upon evidence in the case? that charter of our liberties as the great rampart of Mr. Manager BUTLER. For aught I care. civil and religious liberty. [Prolongedcheering.] Having been taught in my early life to hold it sacred, and The other report offered in evidence-the having practiced upon it during my whole public one revised by Colonel Moore and published- career, 1 shall ever continue to reverence the Constiis as follows: tution of my Fathers and to make it my guide. [Hearty applause.] I know it has been said, and I must be MR. CHAIRMAN AND GENTLEMEN OF THE COMMITTEE: permitted to indulge in this remark that the ExecuLanguageis inadequate to express the emotions and tive Department of the government has been despotic feelings produced by this occasion. Perhaps I could and tyrannical. Let me ask this audience of distinexpress more by permitting silence to speak and you guished gentlemen around me here to-day to point to to infer what I ought to say. I confess that, not- a vote I ever gave, to a speech I ever made, to a single withstanding the experience I have had in public act of my whole public life, that has not been against life, and the audiences I have addressed, this occasion tyranny and despotism. What position have I ever and this assemblage are well calculated to, and do occupied, what ground have I ever assumed, where overwhelm me. As I have said, I have not language it can be truthfully charged that I failed to advocate, to convey adequately my present feelings and emo- the amelioration and elevation of the great masses tions. In listening to the address which your elo- of my-countrymen? [Cries of "Never," and great quent and distinguished chairman has just delivered, applause.] theproceedings of the Convention, as they transpired, So far as charges of that kind are concerned, I will recurred to my mind. Seemingly I partook of the say that they are simply intended to deceive and inspiration that prevailed in the Convention when I delude the public mind into the belief that there is received a despatch sent by two of its distinguished some one in power who is usurping and trampling members, conveying in terms the scene which has upon the rights and perverting the principles of the Just been described of South Carolina and Massa- Constitution. It is done by those who make such chusetts, arm in arm, marching into that vast assem- charges for the purpose of covering their own acts. blage, and thus giving evidence that the two ex- ["'That's so," and applause.] I have felt it my duty tremes had come together again, and that for the in vindication of principle and the Constitution of future they were united as they had been in the past, my country, to call the attention of my countrymen for the preservation of the Union. When the de- to these proceedings. When we come to examine spatch informed me that in that vast body of men, who has been playing the tyrant, by whom do we distinguished for intellect and wisdom, every eye find that despotism has been exercised? As to mywas suffused with tears on beholding the scene, I self, the elements of my nature, the pursuits of my could notfinishreadingthedespatch to one associated life, have not made me, either in my feelings or in with me in the office, for my own feelings overcame my practice, aggressive. Mynature, on the contrary, me. [Applause.] is rather defensive in its character; but I will say I think we may justly conclude that we are moving that, having taken my stand upon the broad princiunder a proper inspiration, and that we need not be ples of liberty and the Constitution, thereis not power mistaken that the finger of an Overruling and Uner- enough on earth to drive me from it. [Loud and ring Providence is in this matter. The nation is in prolonged applause.] Having placed myself upon peril. We have just passed through a mighty, a that broadplatform, I have not been awed, dismayed, bloody, a momentous ordeal, yet do not find ourselves or intimidated by either threats or encroachments, free from the difficulties and dangers that at first but have stood there, in conjunction with patriotic surrounded us. While our brave men have per- spirits, sounding the tocsin of alarm when I deemed formed their duties, both officers and men (turning the citadel of liberty in danger. [Great applause.]to General Grant, who stood at his right,) while they I said on a previous occasion, and repeat now, that have won lairels imperishable, there are still greater all that was necessary in this great struggle against and more important duties to perform; and while we tyranny and despotism was, that the struggle should have had their co-operation in the field, we now need be sufficiently audible for the American people to their support in our efforts to perpetuate peace. hear and properly understand.,They did hear, and [Applause.] So far as the Executive Department of looking on and seeing who therontestants were and the government is concerned, the effort has been what-that struggle was about, they determined that made to restore the Union, to heal the breach, to they would settle this question on the side of the pour oil into the wounds which were consequent Constitution and of principle. [Cries of" That's so," upon the struggle, and, to speak in common phrase, and applause.] to prepare as the learned and wise physician would, I proclaim here to-day, as I have on other occaa plaster, healing in-character and co-extensive with sions, that my faith is abiding in the great mass of thewound. [Applause.] Wethought, andyet think, the people. In the darkest moment of this struggle, that we had partially succeeded, but as the work when the clouds seemed to be most lowering, my progressed, as reconciliation seemed to be taking faith, instead of giving way, loomed up through the place, and the country becoming united, we found a dark cloud far beyond-I saw that all would be safe disturbing and marring element opposing us. in the end. My countrymen, we all know that, in In alluding to that element I shall go no further the language of Thomas Jefferson, "tyranny and than did your Convention and the distinguished gen- despotism even can be exercised and exerted more tlemanwho has delivered to me the reportofits pro- effectually by the many than the one." We have ceedings. I shall make no reference to it that I do seen a Congress gradually encroach, step by step, not believe the time and the occasion justify. Wo upon constitutional rights, and violate, day aftery, 204 day, and month after month, the fundamental prin- have proclaimed myself Dictator I ("That's true," ciples of the Government. (Cries of "That's so I" and applause.) and applause.) We have seen a Congress thatseemed But, gentlemen, my pride and ambition have been to forget that there was a Constitution of the United to occupy that position which retains all power in States, and tkat there was a limit to the sphere and the hands of the people. (Great cheering.) It is scope of legislation. We have seen a Congress in a upon that I have always relied: it is upon that I rely minority assume to exercise powers which, if allowed now. (Avoice-"And the people will not disappoint to be carried out, would result in despotism or mon- you.") And I repeat, that neither the taunts nor archy itself. (Enthusiastic applause.) This is truth; jeers of Congress, nor of a subsidized, calumniating and because others as well asmyself have seen proper. press, can drive me from my purpose. (Great apto appeal to the patriotism and republican feeling of plause.) I acknowledge no superior except my God, the country we have been denounced in the severest the author of my existence, and the people of the terms. Slander upon slander, vituperation upon United States. (Prolonged and enthusiastic cheervituperation, of the most villanous character, has ing.) For the one, I try to obey all His commands as made its way through the press. best I can compatible with my poor humanity; for What, gentlemen, has been your and my sin? the other, in apolitical and representative sense, the What has been the cause of our offending? I will high behests of the people have always been retell you-daring to stand by the Constitution of our spected and obeyed by me. (Applause.) Mr. Chairfathers. man, I have said more than I intended to say. For [Approaching Senator JOHNSON.] I consider the the kind allusions to myself contained in your adproceedings of this convention, sir, as more import- dress and in the resolutions adopted by the convenant than those of any convention that ever assem- tion, let me remark that, in this crisis, and at this bled in the UnitedStates. (Greatapplause.) When period of my public life, I hold above all price, and I look with my mind's eye upon that collection of shall ever recur with feelings of profound gratificacitizens, coming together voluntarily, and sitting in tion to the lastresolution containing the indorsement council with ideas, with principles and views com- of a convention emanating spontaneously from the mensurate with all the States, and coextensive with great mass of the people. I trust and hope that my the whole people, and contrast it with the collection future action may be such that you and the convenof gentlemen who are trying to destroy the country, tion that you represent may not regret the assurance I regard it as more important than any convention of confidence you have expressed. (" We are sure that has sat at leastsince1787. (Renewed applause.) of it.") Before separating, my friends, one and all, I think I may say also that the declarations thatwere committee and strangers, please accept my sincere there made are equal with the Declaration of Inde- thanks for the kind manifestations of regard and pendence itself, and I here to-day pronounce it a respect you have exhibited on this occasion. I resecond Declaration of Independence. (Cries of peat that I shall always continue to be guided by a "Glorious," and most enthusiastic and prolonged ap- conscientious conviction of duty, and that always plause.) Your address and declarations are nothing gives me courage, under the Constitution, which I more nor less than areaffirmation of the Constitution have made my guide. of the United States. (Cries of "Goodl" and applause.) Yes, I will go further, and say that the WILIAM N. HUDSON sworn and examined. declarations you have made, that the principles you have enunciated in your address, are a second procla- By Mr. Manager BUTLER: mation of emancipation to the people of the United States-(renewed applause)-for in proclaiming and Question. What is your business? reproclaiming these great truths youhave laid down Answer. I am a journalist by occupation. a constitutional platform upon which all can make uestion. Where is your home? common cause, and stand united together for the restoration of the States and the preselzation of the Answer. In Cleveland, Ohio. Government without reference to party. The query Question. What paper do you have charge of? only is the salvation of the country, for our country Answer. The Cleveland Leader. rises above all party considerations or influences. (Cries of "Good I" and applause.) How many are Question. Where were you about the 3d or there in the United States that now require to be 4th of September, 1866? free?-they have the shackles upon their limbs, and Answer. I was in Cleveland. are bound as rigidly as though they were in fact in slavery? I repeat, then, that your declaration is the Question. What was your business then? second proclamation of emancipation to the people Answer. I was then one of the editors of the of the United States, and offers a common ground Leader. upon which all patriots can stand. (Applause.) Mr. Chairman and gentlemen: Let me, in this con- Question. Did you hear the speech that Presnection, ask you what have I to gain more than the ident Johnson made there from the balcony of advancement of the public welfare? I am as much a hotel? opposed to the indulgence of egotism as anyone, but here, in a conversational manner, while formally re- Answer. I did. ceiving the proceedings of this convention, I may be Question. Did you report it? permitted again th ask,whatha-ve I to gain, consulting Aswe. I human ambition, more than I have gained, except in Answer. I did, with the assistance of another one thing? My race isnearly run. Ihavebeenplaced reporter. in the high office which I occupy under the Constitu- Question. Who is he? tion of the country, and I may say that I have held, from lowest to highest, almost every position to which Answer. His name is Johnson. a man may attain in our Government. I have passed Question. Was your report published in the through every position, from an alderman of a vil- a the next day? lage to the Presidency of the United States; and surely, gentlemen, this should be enough to gratify a Answer. It was. reasonable ambition. If I wanted suthority, or if I Question. Have you a copy? wished to perpetuate my power, how easy would it Answer. I have. have been to hold and wield thatwhich was placed in my handsbythe measure calledthe "Freedmen's Bu- Question. Will you produce it? reau bill." (Laughter and applause.) With an army [The witness produced a copy of the Clevewhich it placed at my discretion I could have re- land Leader of September 4, 1866.] mained at the capital of the nation, and with fifty or sixty millions of appropriations at my disposal, Question. Have you your original notes? with the machinery to be worked by my own hands, Answer. I have not. with my satraps and dependants in every town and village, and then with the "Civil Rights bill" follow- ston. e a tey ing as an auxiliary-(laughter)- in connection with Answer. I cannot tell. They are probably all the other appliances of the Government, I could destroyed, 205 Question. Have you the report in the paper mean, take this part: " Haven't you got the of which you are the editor, which was pub- court? Haven't you got the Aftorney General? lished the next day? Who is your Chief Jastice?" Is that the synopAnswer. I have the report which I have sub- tical part or is that the verbatim -part? mitted. Answer. That is part of the verbatim report. Question. What can you say as to the accu- Mr. Manager BUTLER, (to the counsel for racy of that report? the respondent.) I propose now, gentlemen, Answer. It is not a verbatim report, except to put this in evidence. in portions. There are parts of it which are Mr. EVARTS. We will cross-examine him verbatim, and parts are synopsis. before you put the paper in evidence. Question. Does the report distinguish the Mr. Manager BUTLER. Yes, sir. parts which are not verbatim from those which are? Cross-examined by Mr. EVARTS: Answer. It does. Question. Mr. Hudson, was this newspaper Question. Is all put in that Mr. Johnson that you edited and for which you reported of did say? the politics of the President or of the opposite Mr. EVARTS. He says not. opinion? By Mr. Manager BUTLER: Answer. It was Republican in politics. Question. Is anything left out which John- Question. Opposite to the views of the Presson said? ident, as you understood them? Answer. Yes. Answer. It was. Mr. EVARTS. Do you mean the President Question. At what time was this speech or reporter Johnson? made? Mr. STANBERY. Whom do you mean by Answer. On the 3d of September, 1866. Johnson? Question. At what hour of the day? Mr. EVARTS. There was another John- Answer. About nine in the evening. son mentioned. Question. It commenced then? Mr. Manager BUTLER. Not on this occa- Answer. It commenced. sion. Question. When did it conclude? Mr. EVARTS. Yes, reporter Johnson. Answer. I think about a quarter before ten. Mr. Manager BUTLER. I mean Andrew Question. And was there a large crowd Johnson " last aforesaid. " there? Answer. The report leaves out some por- Answer. There was. tions of Mr. Johnson's speech; states them in Question. Of the people of Cleveland? synoptical form. Answer. Of the people of Cleveland and sur-. Question. Is there anything putin there that rounding towns. he did not say? Question. Was this balcony from which the Answer. There are words used which he did President spoke also crowded? not use, in stating the substance of what he Answer. Yes. said. There is nothing substantially stated Question. And where were you? that he did not state. Answer. I was upon the balcony. -Question. Whenwasthat report prepared by Question. What convenience or arrangement yourself? had you for taking notes? Answer. It was prepared on the evening of Answer. I took my notes upon my knee as the delivery of the speech. I sat. Question. Did you seeit after it was printed? Question. Where did you get light from? Answer. I did. Answer. From the gas above. Question. Did you examine it? Question. At what time that evening did you Answer. I did. begin to write out your notes? Question. Now, sir, what can you say as to Answer. To the best of my remembrance the accuracy of the report wherever the words about eleven o'clock. are professed to be given? Question. And when did you finish? Answer. To the best of my remembrance it Answer. Between twelve and one. is accurate. Question. And when did it go to press? Question. You now believe it to be accu- Answer. About three o'clock in the morning rate? -between three and four. Ahswer. I do. Question. Did you write the synoptical parts Question. How far do you say it is accurate from your notes, or from your recollection of where substance is professed to be given? the drift of the speech? Answer. It gives the substance-the sense Answer. From my notes. without the words. Question. You added nothing, you think, Question. Taking the synoptical part and to the notes? the verbatim part, does the whole give the sub- Answer. Nothing. stance of what he said on that occasion? Question. But you did not produce all that Answer. It does. was in the notes? Is that it? Question. By way of illustration of what I Answer. I did not. 206 Question. You omitted wholly some parts Answer. I may have misapprehended the that were in your notes, did you not? question. I did not compare my manuscript Answer. I endeavored to give the substance transcript; I compared the speech as printed. of all the President said. Question. With what? Question. You mean the meaning, do you not? Answer. With my notes. Answer. The meaning. Question. That was not my question; but Question. As you understood it? you say you did compare the speech as printed Answer. As I understood it. with your notes, and not with your transcript? Question. That is the drift of it? Answer. Not with the transcript. Answer. Exactly. Question. Did you find that there were no Question. That is what you mean exactly. errors in the print as compared with the oriYou think you meant to give the drift of the ginal notes? whole that you did not report verbatim Answer. There were some typographical Answer. Yes. errors. Question. Did you not leave out any of "I the Question. No others? drift?". Answer. No others to the best of my rememAnswer. Not intentionally. brance. Question. But actually? Question. Not a word? Answer. Not to my remembrance. Answer. I remember no others. Question. Have you ever looked to see? Question. Were there any others? Answer. I have not compared the speech Answer. Not that I remember. with any full report of it. Question. Are you prepared to say that you Question. Nor with your notes? observed in comparing your printed paper of Answer. I did subsequently compare the that morning with your phonographic notes speech with my notes. that the printed paper was absolutely accurate? Question. Do you mean this drift part? Answer. lMy notes were not phonographic. Answer. I mean to say that I compared the Question. What are they? speech as reported here with my notes. Answer. They were made in writing. Question. I mean the part that is synoptical; Question. Written out in long-hand? did you compare that with your notes? Answer. Yes. Answer. 1 did. Question. Do you mean to say, sir, that you Question. When? can write out in long-hand, word for word, Answer. On the next day, and I have had a speech as it comes from the mouth of a occasion to refer to it several times since. speaker? Question. When did your notes disappear? Answer. I mean to say that in this instance Answer. In the course of' a few weeks. They I did parts of the speech. were not preserved at all. Question. Then you did not even have notes Question. Are you sure, then, that you ever that were verbatim except for part of the compared it with your notes after the immedi- speech? ately following day? Answer. That was all. Answer. I am. Question. And then you made your synopsis Question. Did you destroyyour notes inten- or drift as it went along? tionally? Answer. Yes. Answer. I did not. Question. How and upon what rule did you Question.'Where are they? select the parts that you should report accuAnswer. I cannot tell. rately and those of which you should give "the Question. In regard to the part of the speech drift?" which you say you reported verbatim, did you Answer. Whenever it was possible to report at any time, after writing it out that night, accurately and fully, I did so. When I was compare the transcript with the notes? unable to keep up with the speaker I gave the Answer. I did. substance as I could give it. There were times Question. For the purpose of seeing that it during the speech when, owing to the slowness was accurate? with which the speaker spoke and the interrupAnswer. I did. tions, a reporter was able to keep up writing in Question. When was that? long-hand with the remarks of the President. Answer. That was on the next day. Question. Then that is your report of his Question. With whose assistance? speech? * Answer. I think without assistance, to the Answer. It is. best of my remembrance.' Question. Not by the aid of phonography or Question. Did you find any changes neces- short-hand? sary? Answer. No,. Answer. There were typographical errors Question. Did you abbreviate or write in full in the reading of the proof. There were no the words that you did write? material errors. Answer. I abbreviated in many instances. Questions. But were there no errors in your Question. Do you remember that? transcript from the notes? Answer. I do. 207 Question. Can you give us an instance of one Answer. I can say in addition to that, that of your abbreviations that is now written out there are portions of this which are reported here in full? verbatim. Answer. I cannot. Question. Now, Iwant you to tell me whether Question. You cannot recall one? all that purports to be verbatim is, in your memAnswer. I cannot. ory and knowledge, accurately reported? Question. Now, sir, without any printed Answer. It is accurately reported; I should paper before you, how much of President not say with absolute accuracy. Johnson's speech, as made at Cleveland on Question. The whole? the 3d of September, can you repeat? Answer. Yes, sir. Answer. 1 can repeat none of it. Question. Now, in regard to the portion of Question. None whatever? the speech that you did not profess to report Answer. Verbatim, none. verbatim, what assurance have you that you Question. Do you think you could give "the did not omit some part of the speech? drift" of some of it? Answer. There are portions which are not Answer. I think I might. given with entire fullness; but the substance Question. As you understand it and remem- and meaning in all cases I intended to give. ber it? Question. What assurance have you that Answer. Yes, sir. some portions of the speech are not omitted Question. Do you mean to be understood entirely from your synoptical view? that you wrote down one single sentence of Answer. I was able to take notes of nearly the President's speech, word for word, as it every sentence uttered by the President, and I came from his mouth? am confident that I did not fail to take notes Answer. I do. of at least any paragraph of the report. Question. Will you point out anywhere any Question. Any paragraph of the speech! such sentence? That is to say, you are confident that nothing Answer. The sentences which were read by that would have been a paragraph after it was the Manager were written out word for word. printed was left out by you? Question. Those three questions which he Answer. Yes, sir read? Now, do you mean to say that any ten Question. He dil not speak in paragraphs, consecutive lines of the printed report of your did he? newspaper you wrote down in long-hand, word Answer. Of course not. for word, as they came from the President's Question. You are sure you did not leave mouth? out what would be the whole of a paragraph; Answer. I cannot tell how much of it I wrote did you leave out what would be half of a down at this distance of time. It is my im- paragraph? pression, however, that there were as much as Answer. I endeavored to state the substance that, and more. of the President's remarks on each subject Question. Can you say anything more than which he took up. this, that you intended to report as nearly as Question. That is the result; that you inyou could and as well, under the circumstances, tended to state the substance of his remarks without the aid of short-hand faculty, what the on each subject that he took up? President said? Answer. Yes, sir. Answer. I can say, in addition to that, that Question. And you supposed that you did so? there are parts of this speech which were re- Answer. Yes, sir. ported as he said them. Question. Now, was this synoptical report Question. From present memory? that you wrote out anything but your original Answer. From memory of the method in notes that you wrote out that night? which those notes were taken. Answer. Condensed from them. Question. What parts can you so state? As Question. Condensed from your original to all tha4 purports to be verbatim are you ready notes? so to swear? Answer. Yes, sir. Anlswer. I cannot swear that it is the abso- Question. Thatis to say, your original synoplute language in all cases. I can swear that it tical view, as written down, was again reduced is an accurate report. in a shorter compend by you that night? Question. What do you mean by an accurate Answer. The part of the speech so reported. report, and not an absolute report? Question. And still you thijnk that in this Answer. I mean to say a report which gives last analysis you had the whole of the Presithe general form of each sentence as it was dent's speech? uttered, perhaps varying in one or two words Answer. I endeavored to state his meanoccasionally. ing. Question. I asked you justnow if you could Question. Now, can you pretend to say, sir, say any more than that you intended to report that in respect to any of thatportion of your as well as you could under the circumstances report it is presented in a shape in which any in which you were placed and without the aid man should be judged as coming from his own of short-hand faculty? mouth? 208 ]Mr. Manager BUTLER. Stop a moment. Question. Was there no phonographic reI object to the question. porter to take down this speech? Mr. EVARTS. It is as atest of his accuracy. Answer. There was none for our paper. Mr. MIanager BUTLER. You may ask him There were reporters present, I believe, for h1ow saccurate; I do not object to that but other papers, but I cannot swear to that of whether he thiilks the man should be judged my own knowledge. upon it is not a proper question. Mr. EVARTS. We submit upon this, Mr. Mr. EVARTS. I ask him if he professes Chief Justiceto state in this synoptical portion of the printed Mr. Manager BUTLER. Wait for a moment. speech made by him it is so produced as to I have not yet got through with the witness. be properly judged as having come from the Mr. EVARTS. Go on, sir. mouth of the speaker? The WITNESS. I can only say that it gives, Reexamined by Mr. Manager BUTLER: to the best of my belief, a fair report of what Question. You have been asked, Mr. Hudwas seen. son, about the crowd and about the manner idn Question. In your estimate? which you took the speech; were there conAnswer. In my estimate. siderable interruptions? Question. And view? Answer. There were. Answer. And belief. Question. Were there considerable pauses Question. You spoke of a reporter John- by the President from step to step in his son, who took part as I understand you, in this speech? business; what part did he take? Answer. There were; and necessary pauses. Answer. He also took notes of the speech. Question. Why " necessary?" Question. But independently from you? Answer. Because of the interruptions of the Answer. Independently of me. crowd. Question. But the speech as printed in your Question. Was the crowd a noisy one? paper was made from your notes, not from Answer. It was. his? Question. Were they bandying back and Answer. From mine with the assistance of forth epithets with the President? hiis? Mr. EVARTS. We object to that. The Question. Then you orought his in also? question is what was said.,Adswer. Yes, sir. Mr. Manager BUTLER. I do not adopt that Question. You condensed and mingled the question. I will repeat my question whether reporter Johnson's report and your own, and epithets were thrown back and forward between produced this printed result? the President and the crowd. Answer. I did. Mr. EVARTS and Mr. CURTIS. We object Question. What plan did Johnson proceed to the question. The proper question is what with in giving the drift or effect of the Presi- was said. dent's speech? Do you know? Mr. Manager BUTLER. That is your Answer. Johnson took as full notes as question. possible. Mr. EVARTS. The question as put is leadQuestion. As possible for him? ing and assuming a state of facts. It is asking Answer. As full notes as possible for him if they bandied epithets. Nobody knows what of the President's speech.' bandying" is, or what " epithets" are. Question. How much of this report, or how Mr. Manager BUTLER, (to the witness.) much of' this analysis or estimate of what the Do you know what bandying means, Mr. WitPresident said was made out of your notes and ness? Do you not know the meaning of the how much out of Johnson's? word? Answer. The substance of the report was Mr. CURTIS. I suppose our objection is made from my notes, the main portion of it. first to be disposed of, Mr. Chief Justice. Question. What as to the rest? Mr. Manager BUTLER. I wanted to see Answer. Wherever Mr. Johnson's notes whether, in the first place, I had got an intelwere fuller than mine I used them to correct ligible English word. However, I withdraw mine.. the question. [A pause.] My proposition is Question. Was that so in many instances? this, sir; it is not to give languageAnswer. That was not so in a majority of Mr. EVARTS. There is no objection if you instances. have withdrawn your question. Question. But in a minority? Mr. Manager BUTLER. I have not. I have Answer. In a minority. only withdrawn the question as to the meaning Question. A considerable minority? of a word which one of the counsel for the Answer. Considerable. President did not understand. I was about, Question. Did Johnson write long-hand, too? sir, stating the question. In Lord George GorAnswer. Yes: don's case, when he was upon trial, as your Question. What connection had Johnson honor will remember, the cries of the crowd with you or the paper? were allowed to be put in evidence as cries, Answer. He was the reporter of the paper. though it was objected that they could not be 209 put in evidence. But that question precisely memorandum by which the witness may refresh is not raised here because I am now upon the his recollection. point, not of showing what was said, not re- The CHIEF JUSTICE. Do the counsel peating language, but of showing what was for the President object to the proof of the said and done by way of interruption. I am loss of the original notes? following the line of cross-examination which Mr. EVARTS. We do not on this question. was opened to me. It was asked what inter- This witness is to speak by his recollection if ruptions there were; whether there was a he can; if he cannot he is allowed to refresh crowd there; how far he was interrupted; how it by the presence of a memorandum which he far he was disturbed. If the President stopped made at the time. in the midst of a speech to put back an epi- Mr. Manager BUTLER. We deny that to thet which was thrown to him from the crowd, be the rule of law. It may be by any memoand if the crowd was answering back and he randum which was correct at the time to his replying, if they were answering backward and knowledge. On this point I am not without forward, a man could very well write down in authority. In Starkie on Evidence is a referlong-hand what he had just said. ence to a case in 2 Adolphus and Ellis, 210, Mr. EVARTS. The witness stated that where it was said: there were interruptions. "In many cases, such as where an agent has been Mr. Manager BUTLER. And I am follow- employed to make a plan or map and has lost the ing that up. items of actual adtneasurement, all he can state is inMr EVthat the plan or map is correct, and has been conMr. EVARTS. That is the only point of structed from materials which he knew at the time your inquiry. to be true." Mr. Manager BUTLER. I asked the na- IIe has then a right to use the map or plan ture of them to know whether they would be which he made afterward, having lost his fieldlikely to disturb a speaker and make him notes, to refresh his memory, saying he knew pause. them to be true. If the witness puts down/ Mr. EVARTS. The question to which we these cries at the time and these interruptions objected was,' Was there a bandying of epi- and these epithets, and he is willing to state thets backward and forward between the Pres- that he knows the- to be true, because he ident and the crowd?" copied them off from his original notes, which. The CHIEF JUSTICE. The honorable he has not now, he has a right to refresh his.. Manager will be good enough to reduce his memory by that copy. I read again from; question to writing. Starkie: Mr. Manager BUTLER. I will not stop to "If the witness be correct in that which he posido it in that form; but I will put it in another tively states from present recollection, namely, that shape. [To the witness.] What was said by at a prior time he had a perfect recollection, and the crowd to the President, and what was said having that recollection, truly stated it in the document produced in writing, though its contents are by the President to the crowd? thus but mediately proved, must be true." Answer. The President was frequently interrupted by cheers, by hisses, and by cries Mr. EVARTS If he presently recollects Mr. Manager BUTLER. The question now apparently from those opposed to him in the crowdis upon his using that memorandum to refresh crowd. MngrULR(otewns. that recollection. We cannot be drawn from Mr. Manager BUTLER, (to the witness.) the point. You have the right to refr'esh your memory by The CHIEF JUSTICE. The honorable any memorandum which you have, or copy of anager will please reduce h on to Manager will please reduce his question to memorandum made at the time. Mr. EVARTS. Not a copy. writing. Mr. Manager BUTLER, having reduced the Mr. Manager BUTLER. Yews, sir, any copy question to writing, read it as follows: of a memorandum which you knojv is a copy made at the time; and state, if you please, what Question. I desire to refresh your recollection from I, t d any memorandum made by you at or inear the time kind of el ithets passed. which you have, which you know to be correct, and [The witness, placing a newspaper before from that state what was said by the crowd to the him, was about to read therefrom.] President and what he said to the crowd:? Mr. EVARTS. We do not regard the news- Mr. EVARTS. That question I do not paper as a memorandum made at the time. object to. Mr. Manager BUTLER. He may refer Mr. Manager BUTLER, (to the witness.) to it. Look at the memorandum and go on. Mr. EVARTS. Our objection is that it is Mr. EVARTS. That is not a memorandum; not a memorandum. it is a newspaper. Mr. Manager BUTLER. We may as well The CHIEF JUSTICE, (to the witness.) have that settled at once, if it is to be done. Is that a memorandum made by you at the When a man says, "'I wrote down the best I time? could, and put it in type within four hours of that The WITNESS. This is a copy of a memotime, and I know it was correct, for I examined randum made by me at the time. it," I insist that on every rule of law in every The CHIEFJUSTICE. Are the notes from court where any man ever practiced that is a which you made that memorandum lost? C. I.-14. 210 1he WITNESS. They are. Mr. Manager BUTLER. What was then The CHIEF JUSTICE. You may look at done by the crowd? it unless there is some objection on the part The WITNESS, (consulting the newspaper.) of some Senator. The President went on to say that it was unforMlr. JOHNSON. Mr. Chief Justice, Idonot tunate for some that God rules on high and understand the question asked by the Manager. deals in justice. and there were then cheers. Mr. Manager BUTLER. I do not under- Mr. EVARTS. Mr. ChiefJustice, the point stand the counsel for the President as ob- made by the learned Manager was this, that jecting. in following his examination of this witness, Mr. JOHNSON. I am not objecting at all; in order to prove that he had times and chances I only want to know what the question is. to write out in long-hand what the President The CHIEF JUSTICE. It is inquired on had said, he could show that there were inthe part of the Managers what interruptions terruptions of space. That is the whole matter there were, and the witness is requested to as I understand it, and now he is reading the look at a memorandum made at the time in President's speech,which is not yet in evidence. order to refresh his memory. Of that mem- nor permitted to be given in evidence as a part orandum he has no copy, but he made one at of the question whether there were interrupthe time, and it is lost. The Chief Justice tions or not to allow him to write it out. rules that he is entitled to look at a paper Mr. Manager BUTLER. He is, I underwhich he knows to be a true copy of that mem- stand, not giving the President's speech, but orandum. If there is any objection to that he is giving such portions only as show where ruling, the question will be put to the Senate. the interruptions. come in, because he has Mr. Manager BUTLER, (to the witness.) skipped long passages. Now, when we comGo on now, sir, beginning at the beginning. pare these interruptions with that which he The WITNESS, (with a newspaper before took accurately, we shall see how he had time him.) The first interruption of the President to take verbatim certain portions of the speech. by the crowd occurred on his referring to- We go on unless stopped. Mr. EVARTS. Mr. Chief Justice, we un- The CHIEF JUSTICE, (to the witness.) derstand the ruling of the court, to which of The witness will look at the memorandum, and course we submit, that the witness is allowed then testify as well as he can from his present to refresh himself by looking at a memorandum recollection. made at the time, which this is considered Mr. Manager BUTLER, (to the witness.) equivalent to, and thereupon, state from his Go on, sir, from where you left.off. memory, thus refreshed, what occurred. He The WITNESS. The next interruption ocmust swear from memory refreshed by the curred where the President remarked that if memorandum, and not by reading the memo- his predecessor had livedrandum. Mr. EVARTS. The question is of the inMr. Manager BUTLER. He may read the terruption and its duration and form, not of memorandum to refresh his memory and then its being when the President said this or that, testifjry. or what he said. Mr. EVARTS. Yes, sir; but not to read Mr. Manager BUTLER. I beg your parit aloud to us. don. I put the question, and it was expressly The CHIEF JUSTICE, (to the witness.) said there was no objection to it, " What did Look at the memorandum and then testify. the President say to the crowd and what did Mr. Manager BUTLER. You may read it the crowd say to the President?" That was if you please. not objected to, but it was said, " That is what The WITNESS. The first interruption of the we want." I put it in writing, and the writing President occurred when he referred to the is on the desk, that I want what the crowd said name of' General Grant. He said that a large to the President and what the President said number in the crowd desired to see General to the crowd. That was not objected to. ['To Grant, and to hear what he had to say, where- the witness.] Go on, sir. upon there were three cheers given for General The WITNESS. When this remark was made Grant. The President went on, and the next the crowd responded "'Never," "' Never," and interruption occurred when he spoke of his gave three cheers for the Congress of the Univisit, and alluded to the name of Stephen A. ted States. The President went on: " I came, Douglas, at which therewerecheers. Thenext here as I was passing along, and having been serious interruptionoccurredat thetimethatthe called upon for the purpose of exchanging President used this language: "I was placed views and ascertaining if we could'upon that ticket," the ticket for the Presidency, The CHIEF JUSTICE. Mr. Manager, do "with a distinguished citizen now no more;" we understand that this witness is to read the whereupon there were cries, " It's a pity;" speech? " l'Too bad;" " Unfortunate." The President Mr. Manager BUTLER. No, sir; he is not proceeded to say, " Yes, I know there are some reading the speech; he is skipping whole parawho say "unfortunate." graphs, whole pages of it almost; it is only Mr. EVARTS and Mr. CUJRTIS. That will where the interruptions come in. [To the witnot do.. ness.] Now just read the last words before 211 the interruptions come in, if you please, which counter cries. The interruptions continued. will bring out all we want, and that will save When Mr. Seward's name was mentioned there all trouble. was a voice " God bless him," and cheers for The WITNESS. When the President re- Mr. Seward. He said that he would bring Mr. marked that he came here for the purpose of Seward before the people, show them his gapascertaining, if he could, who was wrong and ing wounds and bloody garments and ask who responsible, the crowd said: "You are," and was the traitor. There were cries of "Thad. there were long continued cries. The President Stevens," when the President asked "Why inquired, later in the speech, who could place don't you hang Thad. Stevens and Wendell his finger upon any act of the President's devi- Phillips?" and there were cheers and hisses. ating from right, whereupon there were cheers The President proceeded to say that, having and counter-cries of "New Orleans" long fought traitors at the South, he would fight continued; and that cry was repeated, fre- them at the North, when there were cheers and quently breaking the sentences of the President hisses, and there were also cries. when the into clauses, and at the close of each sentence President said that he would do this with the it was of some length. At the same time there help of the people, "We won't give it." were cries, " Why don't you hang Jeff. Davis?" The interruptions continued in the shape of The President responded, " HangJeff. Davis!" cheers and hisses and cries of the same sort Then there were shouts and cries of " Down with throughout the speech. him," and there were other cries of "Hang Question. Were those cries and cheers and Wendell Phillips." The Presidentasked,"' Why hisses continued so as to make the interruption don't you hang him?" There were answers go on for some time? given, " Give us an opportunity?" The Presi- Answer. Frequently for several minutes. dent went on to ask: "Haven't you got the Question. In that time would you be enabled court? Haven't you got the Attorney Gen- to get up with him and get your report out? eral? Who is your Chief Justice, who has re- Answer. I was able to make during most fused to sit on his trial?" He was then inter- of these a verbatimn report of what the Presirupted by "groans and cheers." He went on dent said. to speak of calling upon Congress, "that is trying to break up the Government " Recross-examined by Mr. EVRTS: Mr. STANBERY. Stop. Question. You made a memorandum at the Mr. Manager BUTLER, (to the witness.) time of these interruptions? Well, sir, state what took place then? Answer. I did. The WITNESS. When he said, " I called Question. Of these cries and hisses? upon your Congress, that is trying to break up Answer. I did. the Government " there were cries of" A lie" Question. And while you were doing that from the crowd, hisses, and voices cried " Don't you could catch up with reporting the Presiget mad," and the President responded "' I am dent's speech, could you? not mad." There were then hisses. After a Answer. Yes, sir. sentence or two there were three more cheers Question. Now, sir, have you not in every given for Congress. Then after another sen- statement that you have made of these intertence voices cried " How about Moses?" ruptions read from that newspaper before Question. What next? you? Answer. The next interruption I find noted Answer. I have read from the newspaper here some. I think that every one was in the newsMr. EVARTS. That is not what you are to paper. testify to; not what you find there, but what Question. Are you not quite sure of it? you remember. Answer. I will not be positive. Mr. Manager BUTLER. The question is Question. Not positive but that you rememwhether after seeing it you can remember it ber some that are not in the newspaper? to tell it to us? Answer. Possibly. Answer. The nextinterruption, I remember, Question. Have you forgotten any that were was a cry of "Yes," when the President in- in the newspaper? qUired " Will you hear me." These crieswere Answer. No. I have not given all that taken up and were repeated sometimes for occurred in the newspaper. several minutes. There was allthis time great Question. Without that newspaper, do you confusion, cheersbythefriends ofthePresident, recollect any of those interruptions? and counter-cries by those apparently opposed Answer. I do. to him. The President repeated his question Question. All of them? asking if the people would hear him for his cause Answer. I should not be able to give all of and for the Constitution of his country, and them without the aid of the memorandum. there were again cries' Yes, yes," "Go on." Question. Did you not make a full report He proceeded in the next sentence to inquire of these interruptions on your notes? whether in anv circumstances he ever violated Answer. I did. the Constitution of the country, to which there Question. Of all that the crowd said? were cries in response of " Never, never," and Answer. Not of all that they said. 212 Question. Why not of all that they said? Question. How long did you continue with Answer. Of all that I was able to catch. the party? Question. All that you could put down? Answer. I continued with them till they arAnswer. Yes. rived at Cincinnati, on their return. Question. You got all that you could put Question. Did you go professionally as a down, and you left out soine of what they said reporter? because you had not time to put it down; and Answer. I did. yet you were catching up with the Presi- Question. Had you accommodation in the ent?. train as such? Answer. I gave my first attention to report- Answer. I had. ing the President. Whatever time I had for Question. The entr6e of the President's car? putting down cries besides that I did so. Answer. I had. By Mr. Senator GRImES: Question. Were you at Cleveland? Question. I desire the witness to specify Answer. I was. the particular part of the report, as published, Question. Did you make a report of his which was supplied by the reporter Johnson? speech at Cleveland from the balcony?'Answer. It is impossible for me to do that at Answer. I did. this time. Question. How, phonographically or stenoMr. Manager BUTLER. If the Senator graphically? will allow me, I will ask the witness whether Answer. Stenographically. any special part of the report itself was sup- Question. Have you your notes? plied by Johnson or whether it was only cor- Answer. I have. rected by Johnson's notes? Question. Here? The WITNESS. The report was made out Answer. Yes, sir. from my notes, corrected by Mr. Johnson's Question. Produce them. [The witness notes. I cannot say whether there were entire produced a memorandum-book.] Have you, sentences from Mr. Johnson's notes or not. at my request, copied out those notes since you By Mr. Manager BUTLER: have been here? Question. I will ask you whether there can Answer. I have. be such practice in reporting as to enable a Question, (exhibiting a manuscript to the person by long-hand to make out a substantially witness.) Is that the copy of them? accurate report? Answer. It appears to be. Mr. EVARTS. To that we object. You Question. Is that an accurate copy of your can ask whether this witness by his practice notes? can do it, not whether other people can do it. Answer. It is. Mr. Manager BUTLER, (to the witness.) Question. How accurate a report of the Have you had such practice? speech is your notes? Answer. I have had considerable practice in Answer. My notes are, I consider, very acreporting in this way, and can make out a sub curate so far as I took them. Some few senstantially accurate report. tences in the speech were interrupted by con[The witness, at the request-of the honorable fusion in the crowd, which I have indicated in Manager, put his initials on the newspaper to making the transcript, and the parts about which he had referred, the Cleveland Leader which I am uncertain I inclose in brackets. of September 4, 1866.] Question. Where you have not inclosed in brackets, how is the transcript? DANIEL C. McEwEN sworn and examined. Answer. Correct. By Mr. Manager BUTLER: Question. Was your report published? Question. What is your profession? Answer. I cannot say. I took notes of the Answer. Short-hand writer. speech, but owing to the lateness of the hourQuestion. How long has that been your pro- it was eleven o'clock or after-it was impossifession? ble for me to write out a report of the speech Answer. Foraboutfourorfiveyears, Ishould and send it to the paper which I represented. judge. Therefore I went to the telegraph office after Question. Were you employed in Septem- the speech was givenand dictated some of my ber, 1866, in reporting for any paper? notes to other reporters and correspondents, Answer. I was. and we made a report which we gave to the Question. What paper? agent of the Associated Press, Mr. Gobright. Answer. The New York World. Question. Did the agent of the Associated Question. Did you accompany Mr. Johnson Press accompany the presidential party for and the presidential party when they went to a purpose? lay the corner-stone of a monument in honor Answer. Yes, sir. of Mr. Douglas? Question. Was it his business and duty to Answer. I did. forward reports of speeches? Question. Where did you join the party? Answer. I supposed it to be. Answer. I joined the party at West Point, Question. Did you so deal with him? New York. Answer. I did. 213 Question. Have you put down the cheers Mr. Manager BUTLER. The court before and interruptions of the crowd or any portion whom the man is tried for breaking the laws of of them? decency. Answer. I have put down a portion of them. Mr. EVARTS. Did you ever hear of a man It was impossible to take them all. being tried for freedom of speech in this counQuestion. State whether there was a good try? deal of confusion and noise there? Mr. Manager BUTLER. No; but I have Answer. There was a great deal of it. seen two or three women tried; I never heard Question. Exhibition of ill-feeling and tem- of a man being tried for it' before. [Laugh. per? ter.] [To the witness.] I was asking you Answer. I thought there was. whether there was considerable excitement in Question. On the part of the crowd? the manner of the President at the time he was Answer. On the part of the crowd. cautioned by the crowd not to get mad? I Question. How on the part of the Presi- Answer. I was not standing where I could dent? see the President. I did not notice his manAnswer. He seemed a little excited. ner; I only heard his tone of voice. Question. Do you remember anything said Question. Judging from what you saw and there to him by the crowd about keeping his heard? dignity? Answer. I did not see the President. Answer. I have not it in my notes. Question. What you heard? Question. Do you remember it? Answer. He seemed excited; I do not know Answer. I do not remember it from hearing. what his manner is from personal acquaintance Question. Was anything said about not get- when he is angry. ting mad? Mr. Manager BUTLER, (to the counsel for Answer. Yes, sir. the respondent.) The witness is yours, genQuestion. Did the crowd caution him not to tlemen. get mad? Mr. EVARTS. Do you propose to offer this Answer. The words used were, "Don't get report of the speech? mad, Andy. " Mr. Manager BUTLER. I do. Question. Was he then speaking in consider- Mr. EVARTS. Very well; then I will crossable excitement or otherwise? Did heappear examine the witness. considerably excited at that moment when they told him not to get mad? told him not to get mad? Cross-examined by Mr. EVARTS: Mr. EVARTS. That is not any part of the Question. Did you report the whole of the present inquiry, which is to verify these notes, President's speech? to see whether they shall be in evidence or not. Answer. No, sir. The hour was late and I Mr. Manager BUTLER. Iunderstand; but left shortly before the close; I do not know I want to get as much as I can from memory how long before he closed his speech. and as much as I can from notes, and both Question. So your report does not profess together will make a perfect transcript of the to be of the whole of the speech? scene. Answer. No, sir. Mr. EVARTS. But the present inquiry, I Question. From the time that he commenced understand, is a verification of notes. When- till the point at which you left off did you ever that is abandoned and you go by memory report the whole of his speech? let us know it. Answer. No, sir. Certain sentences were Mr. Manager BUTLER. The allegation is broken off by the interruptions of the crowd, as that it was a scandalous and disgraceful scene. I before stated. The difference between us is that the counsel Question.'But aside from the interrupfor the President claim the freedom of speech tions, did you continue through the whole and we claim the decency of speech. We are tenor of the speech till the point at which you now trying to show the indecency of the occa- left? sion. That is the point between us, and the Answer. I did. surroundings are as much part of the occasion Question. Did you make a report of it word as what was said. for word as you supposed? Mr. EVARTS. I understand you regard Answer. Yes, sir; as I understood the the freedom of speech in this country to be speech. limited to the right of speaking properly and Question. And did you attempt to include, discreetly. word for word, the interruptions of the assemMr. Manager BUTLER. Oh, no. I regard blage? freedom of speech in this country the freedom Answer. I did. I took what appeared to be to say anything by a private citizen in a decent the principal exclamations of the crowd; I manner. could not hear all of them. Mr. EVARTS. That is the same thing. Question. When did you make the copy or Mr. Manager BUTLER. Oh no. transcript that you produce here? Mr. EVARTS. And who is thdjudge of the Answer. I made that about two weeks since, decency? after I was summoned before the Managers of 214 the impeachment, and gave evidence concern- that were furnished with the copy as I took it ing the speech there. from the original notes. Question. Can you be as accurate or as con- Question. How did it compare? fident in a transcript made after a lapse of two Answer. It was the same. years as if it had been made presently, when Question. Were the slips of proofs the same the speech was fresh? as the paper published the next day? Answer. I generally find that when a speech Answer. Just the same with such typographis fresh in my mind I read the notes with more ical corrections as were made there. readiness than when they become old; but as Question. Have you a copy of the paper? to the accuracy of the report I think I can Answer. I have. make as accurate a transcript of the notes now Question. Will you produce it? [The witas at that time. ness produced a copy of the Cleveland Herald Question. When you transcribe after the of September 4, 1866.] Can you now state lapse of time you have nothing to help you whether this is a substantially accurate, report except the figures that are before you in your in this paper of what Andrew Johnson said notes? the night before? Answer. that is all, with me. Answer. Yes, sir; it is generally. There Question. Are you not aware that in phono- are some portions there that were cut down, graphic reporting there is frequent obscurity and I can point out just where those places are. in the haste and brevity of the notation? Question. By being "cut down"do you mean Answer. There sometimes is. the substance given instead of the words? By Mr. Manager BUTILER: Answer. Yes, sir. Question. I observe that the counsel on Question. Does it appear in the report which the other side asked for the politics of the are substantial and which are the verbatim Leader. May I ask you for the politics of the parts? World? Answer. Not to any other person than myAnswer. I have understood them to be Dem- self, as I can tell from my recollection. ocratic. Question. Can you point out that which is EVERETT D. STARK sworn and examined. substantial, and that which is accurate in the report? By Mr. Manager BUTLER: The WITNESS. Do you wish me to go over Question. What is your profession? the whole speech for that purpose? Answer. I practice law now. Mr. Manager BUTLER. I will for the presQuestion. What was your profession in Sep- ent confine myself to such portions as are in the tember, 1866? articles. Ifmylearned Iriends wantyou to go Answer. I practiced law then. over the rest they will ask you. Question. Where? The WITNESS. Commencing a little before Answer. In Cleveland. I may say I was where the specification in the articles of imformerly a short-hand reporter, and do more peachment begins, I can read just what Mr. or less of it now in law business. Johnson said at that point. Question. Did you report the speech of An- Question. Do so. drew Johnson, President of the United States, Answer, (reading.) I" Where is the man livfrom the balcony of the Cleveland Hotel on ing, or the woman, in the community, that the night of the 3d of September, 1866? I have wronged, or where is the person that Answer. Yes, sir. can place their finger upon one single hairQuestion. For what paper? breadth of deviation from one single pledge I Answer. For the Cleveland Herald. have made, or one single violation of the ConQuestion. Did you take it in short-hand? stitution of the country? What tongue does Answer. I did. he speak? What religion does he profess? Question. Was it written out by you and Let him come forward and place his finger published? upon one pledge I have violated." There Answer. It was. there was some interruption by the crowd, and Question. Was it published as written out various remarks were made, of which I have by you? noted one, because only one did Mr. Johnson Answer. Yes, sir. pay any attention to, and that was a voice that Question. Have you your short-hand notes? cried "Hang Jeff. Davis." The President Answer. I have not. said, " Hang Jeff. Davis? Hang Jeff. Davis? Question. Are they in existence? Why don't you?" There was then some apAnswer. I suppose not. I paid no attention plause and interruption, and he repeated " Why to them. I suppose they were thrown in the don't you?" and there was again applause chip-basket. and interruption; and the President went on, Question. Did you ever compare the printed " Have not you got the court? Have not you speech in the Herald with your notes for any got the court," repeating it twice. " Have purpose, or with the manuscript? not you got the Attorney General? Who is Answer. I did with the manuscript that your ChiefJustice-and that refused to sit upon night. That is, I compared the slips of proofs the trial?" There was then interruption and 215 applause, and he went on to say: "I am not Question. The only memorandum is the the prosecuting attorney; I am not the jury; newspaper report? but I will tell you what I did do: I called Answer. The newspaper report. upon your Congress that is trying to break up Question. What is the date of the newsthe Government" — At that point there paper? was interruption and confusion, and there Answer. September 4, 1866. may have been words there uttered by the Question. Did you make a stenographic President that I did not hear, but I think not. report of the whole of the President's speech? " Yes, did your Congress order hanging Jeff. Answer. I did with one exception. Davis?" and then there was confusion and Question. What exception is that? applause. And then the President went on Answer. It was a part of what he said about to say, "But let prejudices pass," and so on. the Freedmen's Bureau. Somewhere about Question. Will you now come toward the the commencement of, I should say, the latter conclusion of the other point mentioned in the half of his speech by time, he went somewhat specifications, and state whether you reported into details and figures which I omitted to take that accurately? down. Answer. Commencing a little before where Question. Did you write out your notes in the specification is of the speech he said: " In full? bidding you farewell here to-night, I would Answer. No, sir. ask you with all the pains Congress has taken Question. You never did that? to calumniate and malign me, what has Con- Answer. I never did that. gress done? Has it done anything to restore Question. And you have not now either the the Union of the States? But, on the contrary, notes or any transcript of them? has it not done everything to prevent it? And Answer. Only this. because I stand now as I did when the rebellion Question. You have got a newspaper; I uncommenced I have been denounced as a traitor. derstand that. Now, did you prepare for the My countrymen, here to-night, who has suffered newspaper the report that is there contained? more than I? Who has run greater risk? Answer. I did. Who has borne more than I? But Congress, Question. And you prepared it on the plan of factious, domineering, tyrannical Congress, some part verbatim and some part condensed? has undertaken to poison the minds of the Answer. Yes, sir. American people and create a feeling against Question. What was your rule of condensame"'-so far Mr. Johnson's words, and I con- tion and the motive of it. eluded the sentence here in this fashion-" in Answer. I had no definite rule that I can consequence of the manner in which I have give. The reason why I left out a part of what distributed the public patronage." These lie said of the Freedmen's Bureau was were not Mr. Johnson's words, but contained Question. That was not condensed at all, in a summary way the reasons that he gave was it? just at that point for his action. Answer. That part was not taken. That I Mr. EVARTS, (to the Managers.) Do you did take was somewhat condensed. propose to offer this report of the Cleveland Question. I am only asking about what you speech also? did take, not what you did not take. What was Mr. Manager BUTLER. I propose to read your rule in respect to what you put verbatim one and offer all, so that the President may into your report and what you condensed? have the privilege of collating them in order How did you determine which parts you would to have no injustice done him as to what he treat in one way or the other? said. Answer. Wrell, sir, perhaps I was influenced Mr. EVARTS. We do not claim any priv- somewhat by what I considered would be a ileges of that kind; on the contrary, we pro- little more spicy or entertaining to the reader. pose to object to all of them that they are not Question. In which interest, that of the Presproperly proved. ident or his opponents? Mr. Manager BUTLER. Certainly. I ob- Answer. Well, I do not know that. served that the President objected in his an- Question. Which side were you on? swer that we did not put in all he said, and I Answer. I was opposed to the President. mean to do the best I can in that regard now. Question. But you do not know which you Mr. EVARTS. That is exactly what we thought the interest was you selected the spicy desire, if anything is to come in. Now, I will part for? proceed with the witness. Answer. I was very careful of those parts that occasioned considerable excitement or Cross-examined by Mr. EvARTS: interest in the crowd, in his hearers, to take Question. You have a newspaper report them down carefully, as he said them. here? Question. The parts that the crowd were Answer. I have. most interested in you thought you would take Question. And that is all you have? down carefully? Answer. That is all the memorandum I Answer. With more particularity. have. Question. And the parts that they were inter: 216 ested in, as you observed, were those that they ance. The same objection will be made if this made the most outcry about? Was it not so? second or Cleveland Herald report is preAnswer. Yes, sir; partially so. sented. Question. That was your judgment and Mr. Manager BUTLER. I do not propose guide? to argue the question. Suppose we were tryAnLswer. Considerablv. ing any other case for substantive words, Question. Now, in regard to the condensed would not this be a sufficient proof? I do not part of your report, are you able to say that propose to withdraw the other report of Mr. there is a single expression in that portion of McEwen. I propose to put it in, subject to your report which was used by the President, comment, to be read if these gentlemen desire so that the words as they came from his mouth it read, and the other report, so that we may were there set down? have all three reports: the Post office report, Answer. No, sir; I think it is not the case the Republican report, and the Democratic in those particular points that I condensed. I report. A natural leaninlg makes me lean to did so by the use, in some part, of my own this particular report as the one which I mean words. shall be the standard report, because it is sworn Question. And for compression of space, did to expressly by the party as having been writyou not? ten down by himself, published by himself, and Answer. Yes, sir; primarily. corrected by himself, and I am only surprised Question. Was not your rule for condensa- that there should be objection to it. tiofi partly when you had got tired of writing Mr. EVARTS. Nothing can better maniout? fest, Mr. Chief Justice, the soundness of our Answer. No, sir. objection than the statement of the Manager. Question. Not at all? He selects by preference a report made by and Answer. One reason was it was getting on through the agency of political hostility, and between three and four o'clock, and I was on the plan of condensation, and on the method directed to cut down toward the last, and I did of condensing another man's notes, the amount so more toward the last than I did in the and quality relatively not being discerned, inearlier parts of the speech. stead of a sworn report by a phonographer Question. In order to be ready for the press? who took every word and brings his original Answer. In order to be ready for the morn- notes transcribed and brings his transcriping press. tion and swears to their accuracy; and here Mr. EVARTS. We object to this report as deliberately, in the face of this testimony as a report of the President's speech. to what was said, thus authentically taken Mr. Manager BUTLER, (to the witness.) and authentically preserved and brought into Mark it with your initials and leave it on the court to be verified, the honorable Manager table. [The witness marked with his initials proposes to present, as of the speech in its proI" E. D. S." the copy of the Cleveland Herald duction, the notes framed and published in the referred to by him.] I forgot to ask you what motive, and with the feeling and under the inare the politics of the Herald. fluence and in the method, that has been The WITNESS. It was at that time what we stated. We object to it as evidence of the called "Johnson Republican." Some called words spoken. it "Post Office Republican." The editor of Mr. Manager BUTLER. If, Mr. President the Herald had the post office at that time. and Senators, I had not lived too long in this Mr. Manager BUTLER. I propose now, world to be astonished at anything, I should sir, to offer as the foundation, as the one upon have been surprised at the tone in which this which I rely, the Leader's report as sworn to proposition is argued. Do I keep back from by Mr. Hudson, the first witness as to this these gentlemen anybody's report? Do I not speech. give them all reports-everything I can lay my Mr. EVARTS. That we object to; and the hand on? Am I obliged to go into the enemy's grounds of objection, made manifest doubtless camp? Shall I not use the report of my friends to the observation of the Chief Justice and the and not of my enemies, and then give them an Senators, are greatly enhanced when I find that opportunity of having the reports of my enethe managers are in possession of the original mies to correct that of my friends? Is all minutes of a short-hand reporter of the whole virtue, all propriety in the Democratic report? speech and his transcript made therefrom and Can that never be wrong? At one time I think sworn to by him. We submit that to substitute President Johnson, if I remember, would not for this evidence of the whole speech, upon like to have had me put in the " World's" rethis mode of authentication, the statement of port of him; and when they changed exactly I Mr. Hudson upon the plan and theory as testi- do not know. I have offered this report-why? flied to by him, is contrary to the first princi- Because this is the fullest complete report. ples of justice in evidence. He has not said The reason why I did not rely upon Mr. Mchow much is his and how much is the reporter Ewen's report is that he testified on the stand Johnson's, and it is in considerable part con- that he got tired and went away and did not redensed, a statement of "drift," determined port the whole speech; but this is a retort of by circumstances, not of the President's utter- the whole speech, and the only report which 217 purports to be a report of the whole speech. Mr. ions of the stenographer. We submit that there Stark'sreport, ashesays, leftoutaportion. Mr. is no proper evidence; there is no living wit-' McEwen expressly swear she left out a portion. ness that by memory can produce the PresiHence I cannot put them in, or if I offered dent's speech, and there is no such authenticato do so I should be met with the objection, tion of notes in any case but Mr. McEwen's " You do not put in the whole speech." I do that makes the published speeches evidence. choose the report which the witness swears is Mr. Manager BUTLER. I shall not debate a complete report of the speech except so far the matter further. I rise simply to say that as he synopsized; and then, so far as the other I have made no such proposition. I think this two reports go, I bring them in here to correct is an accurate report so far as we have put it it, so that the President shall take no detri- into the articles. It is an accurate report, a ment. Oh, how he stickles now for exactness I sworn accurate report, and by a man whom we The President was willing that Mr. Moore can trust and do trust; The others, we think, should make a speech for him on the 18th of are just as accurate perhaps; that we do not August, and that went out. Now, then, here go into; we simply put them forward, so that are three reports, representing the three un- if there is any change the President may have fortunate divisions of opinion on thisquestion; the benefit of it. He comes in here in his and we offer them all to the counsel. We say answer and says that we will not give him the which we prefer, and then he almost berates full benefit of all he said; and then, when we us, as much as his courtesy will allow him to take great pains here to bring everybody that do, because we choose our friends, and I am made a report that we can hear of in this case glad to say not his. The question is not of and we offer them all, he says we must take a competency but of weight of evidence, and has given one. To that we answer we take the simply been argued so. [Mr. EVARTS rose.] one that has the whole speech. And now I I ask that there may be a decision. I think will test the question: if the gentlemen will I have the close sometimes, sir. agree not to object to McEwen's report, beMr. EVARTS. Not on our objection. cause it is not a report of the whole speech, I Mr. Manager BUTLER. I beg your par- will take that. don; it is on my offer. Mr. EVARTS. We will not make that Mr. EVARTS. Our objection. objection. Mr. Manager BUTLER. No; my offer. Mr. Manager BUTLER. Very good; putit The CHIEF JUSTICE. Do the counsel in then. desire to be heard further? The CHIEF JUSTICE. The honorable Mr. Manager B UTLER. Does not the pre- Manager then withdraws his proposition to read siding officer think we have the close? the Cleveland Leader? The CHIEF JUSTICE. The counsel for Mr. Manager BUTLER. No, sir; I am the respondent have not exhausted their hour. going to read this and put in both the others Mr. Manager BUTLER. Have we got to as evidence, with your leave, I will take this keep on in order to get the close until we oc- as the standard copy. cupy our whole hour? Mr. HOWARD. Mr. President, if the ManThe CHIEF JUSTICE. The rule of the agers have no objection to it, I desire to move Senate is that each side shall have an hour. that the trial be postponed until to-morrow at Mr. Manager BUTLER. Be it so. I can the usual hour, for the purpose of enabling the even get on with that rule. Senate to transact some business. Mr. EVARTS. Discredit is now thrown Mr. CONKLING and others. Let us finish upon the most authentic report, first by an this matter. observation that it omits a part of the speech, Mr. HOWARD. I withdraw my motion for and secondly by a suggestion that it has but the present. Democratic responsibility. There you have it Mr. Manager BUTLER. Mr. Clerk, will fairly and squarely, that it is not on the accu- you have the kindness to read this? [handing racy of phonography nor on the honesty of to the Chief Clerk the Cleveland Lea&r of transcription, but on the color of the mind September 4, 1866.] through which the President's speech is to be Mr. EVARTS. The honorable Managers run, and by double condensation reproduced will correct us if we are in error in supposing to the tone and the temper of a party print. that when I had made manifest our objections There is precisely that condensation in the first to the imperfect reports, as matter of lawful original notes of Mr. Hudson, and condensa- right on our part to object, the Managers said tion then from those notes into the space that that if we would not object to McEwen's for the newspaper takes, and is offered confess- incompleteness they would put that in as the edly on the principle of selection which the report of the speech. Now, it seems, they prolearned Managers have adopted of preferring pose to put the others in also. what they consider a friendly report. Mr. Mr. Manager BUTLER. We want to be Chief Justice and Senators, I have read neither fully understood, so that we shall have no of them. I did not know before that the ques- mistake. We put this in as the standard. We tion of whether the authenticity of stenography put in the other two, so that if the President was reliable depended upon the political opia- emes in here with witnesses to sa- it 4i not 218 true, (because all things are possible,) then we the yeas are 35, and the nays'are 11. So the shall have the additional authentication of the report of the Leader is admitted in evidence. other two reports. Mr. Manager BUTLER. I now offer also Mr. EVARTS. The learned Manager is the report of Mr. McEwen. Is that objected familiar enough with the course of trials to to? know that it will be time enough for him to Mr. EVARTS. Our former objection. We bring forth these additional copies to contra- make no additional objection. diet this movement of ours when we make it. Mr. Manager BUTLER. Then I understand Mr. Manager BUTLER. I never knew that that is in evidence. I now offer the report of was the way. Will you allow this to be read, Mr. Stark in the Cleveland Herald. Is there or do you still make any objection? I claim any objection to that? that they shall all go in. Mr. EVARTS. The same, I suppose. Mr. EVARTS. We object to the two copies Mr. Manager BUTLER. Now I will read from newspapers. the report in the Leader, as it is a short one. Mr. Manager BUTLER. Very good. I ask Mr. HOWARD. I understand that the honthat that question be decided, then. We say orable Managers are about to read these they all go in. speeches from the reports. The CHIEF JUSTICE, (to the Managers.) Mr. Manager BUTLER. Unless the readYou offer the Cleveland Leader first? ing may be dispensed with and they be put in Mr. Manlager BUTLER. I offer the whole print. three at once. Mr. JOHNSON. Let them be considered The CHIEF JUSTICE. The Chief Justice as read. will not put. the question upon all three at once Mr. STANBERY. We do not want them unless so directed by the Senate. read. Mr. Manager BUTLER. Under the direc- Mr. Manager BUTLER. Very well, then, tion of the presiding officer, I will offer first the I do not want the reading. They will be taken Leader, and ask a vote on that. as read, and printed. [" Agreed."] The CHIEF JUSTICE. The Managers offer The reports thus put in evidence are as fola report made in the Leader newspaper of lows: Cleveland, as evidence in the cause. It appears [From the Cleveland Leader.] from the statement of the witness, Hudson, that President Johnson's Speech. the report was not made by him wholly from FELLOW CITIZENS:-It is not for the purpose of his- own notes, butfromhisownotesandth making a speech that I now appear before you. I his own notes, but from his own notes and the am aware of the great curiosity which prevails to see notes of another person whose notes are not pro- strangers who have notoriety and distinction in the duced, nor is that person himself produced for country. I know a large number of you desire to see General Grant, and to hear what he has to say. [A examination. Under these circumstances the voice: "Three cheers for Grant."] But you cannot Chief Justice thinks that that paper is inad- see him to-night. He is extremely ill. I repeat I missible. Does any Senator desire a vote of am not before you now to make a speech, but simply the Senate on the question? to make your acquaintance-to say how are you and th e Senate on t he question >? -to bid you good-bye. We are on our way to Chicago, Mr. DRAKE. 1 ask for a vote on the ques- to participate in or witness the laying of the cornertion, sir. stone of a monumentto the memory of a distinguished fellow-citizen who is now no more. It is not necesMr. Manager BUTLER. I supposed this sary for me to mention the name of Stephen A. question was to be decided without debate. Douglas to the people of Ohio. (Applause.) I am free The CHIEF JUSTICE. It is. Senatorsto say I am flattered by the demonstrations I have The CHIEF JUSTICE. It is. Senators, witnessed, and being flattered, I don't mean to think you who are of opinion that the Leader news- it personal, but as an evidence of what is pervading paper is admissible in evidence the public mind, and this demonstration is nothing Mr. CONNESS and Mr. SUMNER called more nor less than an indication of the latent sentiment or feeling of the great masses of the people with for the yeas and nays; and they were ordered. regard to this great question. The CHIEF JUSTICE. Senators, you who I come before you as an American citizen simply, are of opinion that the Leader newspaper is and not as the Chief Magistrate clothed in the insignia and paraphernalia of state; being an inhabitant,admissible in evidence will, as your names of a State of this Union. I know it has been said are called, answer "yea;" those of the con- that I was an alien; (Laughter,) and that I did not trary opinion, "nay." reside in one of the States of the Union and theretrary opinion, nay* fore I could not be the Chief Magistrate, though the The question being taken by yeas and nays, Constitution delares that I must be a citizen to occupy resulted-yeas 35, nays 11; as follows: that office. Therefore all that was necessary to depose YEAS-XMessrs. Anthony, Cameron, Cattell, Chand-its occupant was to declare the office vacant, or under ler Cole Conkling, Conness, Corbett, Cragin, Drakea pretext to prefer articles of impeachment. And Edundso, Ferry, Fessenden, oFrelinghuysen. Hen- thus the individual who occupies the Chief Magisrew riamoshirm, Pomeroy, Ramsey, Ross, Shermon, the Presidency. I was placed upon that ticket with Sprague, Stewart, Sumner, Thayer, Tipton, Van a pity;" "Too bad;" "Unfortunate."] Yes, I know WNinkle, Willey, and Williams-35. there are somewho say, "Unfortunate." Yes, unNAYS-Messrs. Buckalew, Davis, Dixon, Doolit- fortunate for some that God rules on high and deals tle, Fowler, Hendricks, Howe, McCreery, Patterson injustice. (Cheers) Yesunfortunate Theways of Tennessee, Trumbull, and Vickers-l. in Justice. (Cheers.) Yes, unfortunat e ways NOT VOTING-Messrs. Bayard GVrimes, Harlan, of Providence are mysterious and incomprehensible, Morton, SaulburyOTING-Messrs. Bayarde,, Grimes, Harlan, controlling all those who exclaim, "Unfortunate." T, C J Iates-. eBully for you."] I was going to say, my countryThe CHIEF JUSTICE. On this question men, a short time since I was elected and placed 219 uponthe ticket. There was a platformproclaimedand Then I am President, and President of the whole. adopted by those who placed me upon it. Notwith- United States. [Cheers.] I will tell you another standing a mendacious press; notwithanding a sub- thing. I understand the discordant notes in this sidized gang of hirelings who have not ceased to tra- crowd to-night. lie who is opposed to the restoraduce me, I have discharged all my official duties, and tion of the Government and the Union of the fulfilled my pledges. And I say here to-night that States is a greater traitor than Jeff. Davis or if mypredecessor had lived, the vials of wrath would Wendell Phillips. [Loud cheers] I am against have poured out upon him. (Cries, "Neverl" both of them. Cries," Give it to them."] Some of "Neverl" and three cheers for the Congress of the you talk about traitors in the South, who have not United States.) I came here as I was passing along, courage to go away from your homes to fight them. and having been called uppn for the purpose of ex- [LLaughter and cheers] The courageous men, Grant, changing views, and ascertaining, if we could, who Sherman, F.arragut, and the long list of the diswas wrong. [Cries, "You arel"] That was my tinguished sons of the Union, were in the field, and object in appearing before you to-night. I want to led on their gallant hosts to conquest and to victory, say that I have lived among the American people, while you remained cowardly at home. [Applause, and have represented them in some public capacity Bully.j Now when these brave men have returned for the last twenty-five years. Where is the man or home many of whom have left an arm or a leg or the woman who can place his finger upon one single their blood upon many a battle-field, they found you act of mine, deviating from any pledges of mine or at home speculating and committing frauds upon in violation of the constitution of the country. the Government. LLaughter and cheers,] You pre[Cheers and cries of "New Orleans "] tend now.vto have great respect andsympathy for the Who is he-what language does he speak?-what poor, brave fellow who has left an arm on the battlereligion does he profess-that can come and place his field. [Cries, "Is this dignified?"] I understand finger upon one pledge I ever violated, or one prin- you. ou may talk about the dignity of the PresicipleIeverproved falseto? [Voice"NewOrleansl" dent. [Cries, "How was it about his making a Another, "Why don't you hang Jeff. Davis?" Hang speech oil the 22d of February?"] I have been with Jeff. Davis? [Shouts andcriesof"Down withhimil"] you on the battle-fields of this country, and I can Hang Jeff. Davis? [Voice "Hang Wendell Phil- tell you furthermore to-night, who have to pay lips 1"] Why don't s/ou hang him? [Cries of "Give these brave men who shed their blood. You specuus an opportunity "] Haven't you got the court? lated and now the great mass of the people have got Have n't you got the Attorney General? Who is to work it out. [Cheers.] your Chief Justice, who has refused to sit on his It is time that the great mass of the American peotrial? [Groans and cheers.] I am not the Chief ple should understand what your designs are. [A Justice I Iam not the Attorney General I I am no voice, " What did General Butler say?"] What did jury I But I'll tell you what I did do. I called upon General Butlersay? (hlisses.) Whatdid Grantsay? your Congress, that is trying to break up the Gov- (cheers) and what does General Grant say about Genernment. [Hisses and cries of "A lie l" Great con- eral Butler? (Laughter and cheers.)- What does fusion. Voice "Don't get mad "] I am not mad. General Sherman say? [A voice, "WhatdoesSheri[Hisses.] Iwilltell you who is mad. "Whom the dan say? New Orleansl New Orleansl"] General gods want to destroy they first make mad." Did your Sheridan says that he is for the restoration of the Congress order any of them to be tried? [Three government that General Sheridan fought for. cheers for Congress.] Then, fellow-citizens, we might (Bully.) But fellow citizens, let this all pass. I care as well allay our passion and permit reason to re- not for my dignity. There is a certain portion of our sume her empire and prevail. In presentingthe few countrymen will respect a citizen wherever he is remarks that I designed to make, my intention was entitled to respect. [A voice: "That's so."] There to address myself to your common sense, your judg- is another class that have no respect for themselves, ment, your better feelings not to the passion and ma- and consequently they cannot respect any one else. lignancy of your hearts. [Voice." How aboutMoses?"] [Laughter and cheers.] I know a man and a gentleThis was my object in presenting myself on this oc- man whenever I meet him. I have only to look in casion, and to say " how dye" and "good-bye." In his face, and if I was to see yours by the light of day the assembly hereto-nighttheremarkhas been made I do not doubt but that I should see cowardice and " traitor I" Traitor, my countrymen I Will you hear treachery written upon it. [Laughter and cheers.] me? (Cries," Yesl") And willyou hear me for my Come out here where I can see you. [Cheers.] If you cause and for the constitution of my country? ever shoot a man you will do it in the dark, and pull ["Yesl Yes! Go on "] the trigger when no one is by to see. [Cheers.] I I want to know when or where or under what cir- understand traitors. I have been fighting them at cumstances Andrew Johnson, not as Executive, but the southern end of the line, andive are now fighting in any capacity, ever deserted any principle, or vio- them in the other direction. [Laughter and cheers.] lated the constitution of this country. [Neverl I came here neither to criminate or recriminate, but neverl] Let me ask this large and intelligent au- when attacked, my plan is to defend myself. [Cheers.] dience if your Secretary of State, who served four When encroached upon, I care not from what qcuaryears under Mr. Lincoln, and who was placed upon ter it comes, it will meet with resistance. As Chief' thebutcher's block as itwere and hacked and gashed Magistrate Ifelt, after taking the oath to support the all to pieces, scarred by the assassin's knife-when Constitution, and when I saw encroachments upon he turned traitor? [Cries of "never 1"] If I were your constitutional rights, I dared to sound the tocdisposed to play the orator and deal in declamation, sin of alarm. (Three cheers for Andrew Johnson.) even to-night I would imitate one of the ancient Then if this be right, the head and front of my tragedies, aad would take Mr. Seward, bring him offending is in telling when the Constitution of our before you, and point you to the hacks and scars upon country was trampled upon. Let me say to those who his person. ["Voice, God bless him l" I would thirst for more blood, who are still willing to sacriexhibitthebloodygarments saturatedwith gore from fice human life, if you want a victim, and the counhis gaping wounds. Then I would ask you who is try requires it, erect your altar and lay me upon it to the traitor? LVoice, "Thad. Stevensl"' Why pour the last libation to human freedom. (Loud apdon'tyou hang'Thad. Stevens and Wendell Phillips? plause.) I love my country. Every public act of [Cheers.] I have been fighting traitors in the South. my life testifies that it is so. Where is the man that They have beenwhipped and crushed. They knowl- can put his finger upon any one act of mine that goes edge their defeat and accept the terms of the con- to proveto the contrary. And what is my offending? stitution. And now, as I go round the circle, having (Voice,'"Because you are not a radical," and cries fought traitors at the South, I am prepared to fight of "veto.") Somebody says'veto.' Veto of what? them at the North [Cheers,4 God being willing with -is called the Freedmen's Bureau bill? I can tell your help. [Cries, " we won t give it."] They will be you what it is. Before therebellion commenced there crushed North and this glorious Union of ours will were four millions of slaves and about 340,000 white be preserved, ]Cheers.] I do not come here as the people living in the South. These latter paid exChief Magistrate of twenty-five States out of thirty- penses, bought the lands and cultivated them, and six. [Cheers.] after the crops were gathered, pocketed the profits. I come here to-night with the flag of my country That's the way the thing stood up to the rebellion. and the constellation of thirty-six stars untarnished. The rebellion commenced, the slaves were liberated, Are you for dividing this country? [Cries " No."] and then came up the Freedmen's Bureau bill. This 220 provides for the appointment of agents and sub- give the reasons of his absence on this occasion. So agents in all States, counties, and school districts, then it will not be expected he will be here. Re will who have power to make contracts for the freedmen not address you to-night. You cannot see him toand to hire them out, and to use the military power night, so far as that goes, on account of his extreme to carry them into execution. The cost of this to the indisposition.people was twelve million dollars at the beginning. Fellow citizens, in being before you to-night, it The further expense would be greater, and you are is not for the purpose of making aspeech, but simply to be taxed for it. That is why I vetoed it. I might to make your acquaintance, and while I am telling refer to the Civil Rights bill, which is even more atro- you "How do you do,"-at the very same time to tell cious. I tell you, my countrymen, that though the you "Good bye." We are here to-day on our tourto powers of hell and Thad. Stevens and his gang were a visit for the purpose of participating in or witnessy, they could not turn me from my purpose. There ing the laying of the chief corner stone to a monuis no power that could turn me, except you and the ment to be erected to one of our distinguished felGod who spoke me into existence. low citizens who is no more. It is not necessarY for In conclusion, he said that Congress had taken me to mention the name of Stephen A. Douglas to much pains to poison their constituents against him. the people of Ohio. [Cheers.] It is a name familiar But what had Congress done? Have they done any- to all; and, being on a tour to participate in the thing to restore the Union of these States? No, on ceremonies, passing through this city, and section of the contrary, they had done everything to prevent country, and witnessing the demonstration or maniit; and, because he stood now where he did when festations of regard and respect which have been the rebellion commenced, he had been denounced as made, I am free to say to you that so far as I am cona traitor. Who had run greater risks or made greater cerned,-and I think I may speak for all those who sacrifices than himself? But Congress, factious and accompany me,-that we feel extremely flattered and domineering. had taken to poisoning the minds of gratified at thedemonstrations that have been made the American people. It was with them a question by the people of the country through which we have of power. Every friendoftheirs who holds an office passed. And in being flattered I want at the same as assessor, collector, or postmaster, [A voice — time to state that I don't consider that entirely per"Turn Benedict outl"] wanted to retain his pliace. sonal, but as an evidence of what is pervading the Rotation in office used to be thought a good doctrine public mind, that there is a great issue before the by Washington, Jefferson, and Adams; and Andrew country that is not yet settled, and these demonstraJackson, God bless him, thought so. [Applause] tions are nothing more nor less than an indieatioii This gang of office-holders-these blood-suckers and of a latent sentiment of the feeling of the great mass cormorants-had got fat on the country. You have of the people which is being developed in reference gotthem over your district. Hence you see a system to the proper settlement of those great questions, of legislation proposed that these men shall not be [Cheers.] turned out; and the President, the only channel And in coming before you to-night, I come before through which they can be reached, is called a you an American citizen. Not simply as the Chief tyrant. He thought the time had come when those Magistrate receiving, and going along as an officer who had enjoyed fat offices forfouryears should give with the insignia and paraphernalia of State, but way for those who had fought for the country. Hence appear before you as a fellow citizen, being an indiit was seen why he was assailed and traduced. He vidual of one of the States of this Union. I know had stood by them in the field and God willing he that it has been said and e nitended for on the part would continue to stand by them. He had turned of. some that I was an alien;-[laughter and cries of aside from the thread of his remarks to notice the " shame "]-that I did not reside in one of the States insult sought to be given him. When an insult offered of the Union, and therefore I could not be Chief he would resent it in a proper manner. But he was Magistrate, though the Constitution declared that I free to say he had no revengeful or resentful feel- was. And all that was necessary was simply to introings. All he wanted when the war was over and duce a resolution declaring the office vacant or depeace had come was for patriotic and Christian men posing the occupant or under pretext to prefer artito rally round the flag of the country in a fraternal cles of impeachment, and that the individual who hug, and resolved that all shall perish rather than occupied the Chief Magistracy was to be disposed of that the Union shall not be restored. While refer- and driven from power [Cries of "Never."] But, rinng to the question of suffrage, some one in the fellow citizens, but a short time since you had a. crowd asked him, "How about Louisiana?" To ticket before you for the Presidency and Vice PresiWhichhe responded, "Let the negroes vote in Ohio dency. I was placed upon that ticket with a distinbefore you talk about their voting in Louisiana." guished fellow citizen who is now no more. Yes, I [Laughter and cries' of " Good I"] Take the beam know there are some that will complain. Unfortuout of your own eye before you see the mote in your natel Yes unfortunate for some that God rules on brother's." [Renewed laughter.] In conclusion, high and deals in right. Yes, unfortunate that the after some further remarks, he invoked God's best ways of Providence are mysterious and incompreblessings on his hearers. [Applause.] hensible, controlling all those who exclaim " unfortunate." [Voices "Bully for you."I I was going to say, my.countrymen, but a short time since I waa [D. C. MeEwen's report of the Cleveland Speech.] selected and placed upon the ticket; and thete was FELLOW CITIZENS OF THE CITY OF CLEVELAND: In a platf',rm proclaimed and adopted by those who being presented here to-night, not for the purpose placed me upon it. of making a speech, I am well aware of the great And now, notwithstanding [?] a subsidized gang of curiosity that exists on the part of strangers in refer- hirelings (Cheers) [and traducers] I [have discharged etice to seeingindividualswho are here amongst them all my official duties3. And 1 say here, if my predewho have notoriety and distinction in the coun- cessor had lived, the vials of wrath would have been try. Most of the persons here to-night —A voice poured out upon him. (Cheers. Cries of "Never;" "'Louderl"] Well, you must remember there are a three cheers for the Congress of the United StateS.) good many people here to-night, and it requires a I came here to-night in passing along and being pretty strong voice to reach the utmost verge of this called upon for the purpose of exchanging, to the audience to-night, and especially one who, from extent that the time would permit, of opinions and speaking for the last two or three days, has to some views, and to ascertain, if we could, who was in the extent marred or destroyed what little voice he had. wrong. (Laughterand criesof "Oh, oh.") Thatwas But for the time I consume, if you will bear with me, object in appearing before you to-night, and I want Iwill try and make myself heard, notwithstanding to say this, that I have lived with and been among tie hoarseness under whichI labor. What I was go- the American people and have represented them in ingto say, though, is, I know that a large number are- some capacity for the last 25 years; and where is the i-ere who would desire to see Gen. Grant and to hear man living, or the woman, in the community where whathemight say. [A voice —" That's so"] But the I have lived and had the confidenco of the people, fact is that Gen. Grant is extremely ill. His health that can place his finger upon one single [(?)] deviwill not permit of his appearing before this audience ating from any pledge I ever made,-in violation of hbe to-night. It would be much more pleasureto me the laws of my country? (Cheers. A voice "Heow tohearhimherebeforeyou, andtohearwhathemight about New Orleans?") Where is he? What lainhatVe to say, than to sived speech of my own, or to guage does he speak, what religion does he profeb 221 that can come forward and place his finger upon 6ne And I will tell you another thing. I will tell you tledge I have violated or one principle I (ever) [?] another thing. Iunderstand the discordant notes in [A voice "New Orleans."] New Orleans. (Hang this crowd here to-night. And I will tell you furtherJeff. Davis.) Just upon that subject-Hang Jeff. more; he that is opposed to the restoration of the Davis? [Voices "No" and "Down with him."] Government and the re-union of the States is as great [HangWendell Phillips."] Hang Jeff. Davis? [" No"] a traitor as Jeff. Davis or Wendell Phillips [Loud [" Yes"] Why don't you? Why don't you? [A Cheers] Iam against both of them (A voice"Give voice, "Give us the opportunity."] Haven't you got it to them") I am against both of them. the court? Haven't you got the Attorney General? I fought the traitors of the South, and I will now [A voice "No, he is removed."] Who is your Chief fight them in the North. And I will tell you another Justice and has refused to sit upon the trial? [Cheers.] thing, I have been with them down there, and when [?] I am not the Chief Justice; I am not the prose- men were sleeping on their arms; [I knew who was cuting Attorney. [" Good" and cheers.] I am not with them and about them.] When some of you talk the jury. about traitor in the South you hadn't courage to get But I will tell you what I did do. Icalled up our outof your [closets] but persuaded[somebody else]to Congress that is trying to break up the Government go. [Laughter and applause.] Thecourageous men — [A voice, "You lie," and cheers, "Not so," Hisses. while Grant, Sherman, Farragut,-the long list of "Don't get mad, Andy."] Well, I will tell you who the distinguished sons of the United States-were in is mad,' Whom the Gods intend to destroy, they first the field of battle, leading on their gallant hosts to make mad." Yes, Did your Congiess order any of conquest and victory, you were cowardly at home. them to be tried? [Three cheers for Gen. Grant and [Cheers.] [Cries of "Bully."] And now when these Congress.] Then fellow citizens, we might as well brave men have returned home; many of them leavallay our feelings and let passion subside and reason ing an arm or a leg or his blood in or upon some resume her empire and prevail [Cheers] In pre- battle-field, you were at home speculating and comsenting myself in the few remarks that I intended to mitting frauds upon your government. [Laughter make, my intention was to address myself to your and cheers.] You pretend now as great respect and common sense, to your judgment, to the better feel- sympathy for the poor brave fellow that left his arm ing, not the passion and the malignancy of your on the battle-field [voices and confusion] I underhearts. (Cheers) This was my object in presenting stand you. And you may talk about the dignity of myself on this occasion, and to merely tell you "How the President [if he does not make a speech on the do you do," and at the same time to bid you "Good 22d of July or the 22d of February.] bye." In this crowd here to-night, the remark has I have been with you (A voice "That was whisky") been made "Traitor," "Traitor "? My countrymen I have been with you in the battle of this country. will you hear me? [Voices "Yes"] And will you And I can tell you furthermore I know who has to hear me for my cause and for the Constitution of my pay for it. These brave men shed their blood; you country? [Cries of "Yes"] I want to know when speculated and got the money, and now the great orwhere or under what circumstances Andrew John- mass of people must work it out (cheers) [and all son-not as Chief Executive but acting in any other this hanging.] I care not for your prejudice; it is capacity-ever deserted any principle or violated the time for the great mass of the American people to Constitution of his country [Cries of " Never " and understandwhatyour designs are. [Avoice, "That's " You abandoned your party."] so,"] and in addition to this, the South, in proposing Let me ask this large and intelligent audience here to come to terms, even proposed to come forward and to-night if your Secretary of State, who served four pay theirpart(Avoice-"Letthemcome.") Isaythen years under Mr. Lincoln, and who was placed upon let them come. (A voice-" That's right") and these the butcher'sblock, as it were, and chopped in pieces, brave men that conquered them, and after having hacked, -and scarred all over by the assassin's knife prostrated them, [?] (while) these gentlemen with the when he turned traitor? ("Cries of"Never.") But if heel of power upon their necks, what do they say? were disposed to play the orator and deal in decla- They do not say anythingaboutit.-[A voice-" What mation here to-night, I would imitate one of the did General Butler say?"] Gen. Butler? [Hisses] ancient tragedies that we have such a graphic ac- What does General Grant say? [Cheers.] And count of,-yes, I would take William H. Seward, and what does General Grant say about General Butler? I would bring him before you, and would point you [Laughter and applause] What does Gen. Sherto the hacks and scars upon his person (A voice, man say? (A voice-" What did General Sheridan " God bless him") Yes, I would exhibit his bloody say?") General Sheridan says he is for a restoration garments, caused by blood from wounds inflicted by of the Government. General Sheridan fought for the assassin's knife. (Three Cheers for Seward.) it. [Cries of "Bully."] Yes, I would unfold his bloody garments before you But fellow citizens,let this all pass. I care not for to-night, and ask who had committed treason. (A my dignity. There is a certain portion of our counvoice Thad. Stevens.) Yes, I would ask you why Jeff. trymen that will respect their fellow citizen whenDavis was not hanged? [And I wouldgive the reason ever he is entitled to respect, [A voice " that's so,"and hang Thad. Stevens and Wendell Phillips.] and cheers.] There is another portion of them that I tell you, my countrymen, I have been fighting have no'respect for themselves, and consequently the South. They have been whipped, they have they cannot respect anybody else [cries of Bully, and been crushed; and they are very willingto acknowl- cheers, and other exclamations in the audience.] I edge their error and accept the terms of the Consti- know a gentleman and a man whenever I can see tution; and now, as I go around the circle, having him. And furthermore, I know [when I look a man fought traitors at the South, I am prepared to fight in the face and can see him]-[The President was *traitors at the North. (Cheers.) God being willing here understood to express a wish that he could see with your help (Cries "We will do it," and "We some one in the crowd] I will bet now if there can won't do it,") they will be crushed North and South, be a light that cowardice and treachery can be seen and this glorious Union of ours will be preserved, it. [Laughter & cheers] Come out here where we and in coming here to-night [it] was not coming as can see you. (Cheers) And if ever you shoot a man the Chief Magistrate of twenty-five States. No. I you will shoot in the dark and pull your trigger when came here to-night as the Executive of 36 States. no one is by. [Cheers] I understand traitors. I [Cheers.] I come here to-night with the flag of my have been fighting them for five years. We (fought) countryin my hand, a constellation of 36, nottwenty- it out on the Southern end of the line, and now five stars. [Cheers]. I come here to night with the we are going to go the other direction. And this constellation of my country intact-[noise and con- man, such aone as insulted me to-night, when you?] fusion]-determined to defend the Constitution of my you will see that he has ceased to be a man. But in country let the consequences be what they may. I ceasing to be a man he shrank into the dimensions come here to-night with the Union, the entire circle of a reptile [Cheers.] And having so shrank, as an of the States [not a segment of a circle.] (A voice honest man I will tread upon him. I came here to"How many States make you President?") How night neither to criminate nor to recriminate; but many States made me President? Wa'n't you when provoked, my nature is not to (advance), but against secession? [" Yes."] Were youfordissolving it is todefend [Cheers.] And when encroached upon, the Union? L"No"] Were you for dividing this I care not from what quarter it comes, it is entitled Government? ["No."] Then I am President, and to resistance-[as resistance to oppression.] I am President of the whole United States. [Cheers,] As your Chief Magistrate [have I felt for taking 222 the oath:o support the Constitution of my country, to defray the expense of emancipating four million after I sew the encroachments of the enemy upon of slaves. In the first instance it has cost you three your constitutional rights.] I saw the citadel of thousand million of dollars. Three million of dolliberty encroached upon, and as an honest man, and lars you have expended; and after having given a being placed there as your sentinel, I have dared to full and fair opportunity to enjoy the products of sound the tocsin of alarm, (A voice "God bless An- his own labor, then these gentlemen that are such drew Johnson.") Should I have ears and not hear? great philanthropists, that are such great friends to Should I have a tongue and not speak? (Voices humanity-the great masses of the people who toil "No, no") Then if this be right, the head and front and labor six days in the week, and some of them not of my offending is in [saying] when the Constitution even resting on the 7th, must be taxed to pay $12,000,-.ofmycountrywastramipledupon. [Avoice"Bully." 000 to sustain that Freedmen's Bureau [The system And let me say to-night, though my [head] has been so kept on the country would run up to fifty millions threatened, though it has been said that my blood is of dollars]. In the days of John Quincy Adams to be shed.-[A voice-" I can't see it."] Let me say $12,000,000 was looked upon as an enormous expense to those that thirst for my blood-(A voice-" There [to the existence of the Government] but here are is better blood than yours shed.")-Let me say to $12,000,000 for the Freedmen's Bureau. Your attenthose who are still willing to sacrifice human life, tion mycountrymen. I have not got to the point yet. let me say to those, if you want a victim, and my (Cheers) country requires it, erect your altar (A voice " Bully Your attention, I would rather speak to five hunfor you.") [The confusion prevented the reporter dred men who would give me attention than to ten from hearing the remainder of the sentence save thousand who are not willing to hear me. How does the words "'and the individual who addresses you the matter stand? The whole proposition stands to to-niglit."] Erect your altar if you still thirst for transfer 4,000,000 of slaves from the original ownersblood (Cries of "Never.") And if you want it, take as I have just told you-in the South to their new taskout the individual who addresses you, lay him upon masters; [yes,] a worse system of slavery than ever your altar, and the blood that now warms and ani- existed before [was to transfer four million of slaves mates his existence shall be poured out as the last to a new set of task-masters who were to work them, libation to human freedom. (Loud applause.) I to control them, to make their contracts; and in the love my country [over popularity] and all my life end if there were any profits made, they would put testifies that it is so (A voice "That is so.") Where them into their own pockets instead of-[the reis the man that [used to be] toiling for a home and mainder of the sentence was broken by cheers and abiding place for his children that can look Andrew voices "True " True"]. But on the other hand, if Johnson in the face and say that he was not his the system turned out to be unprofit able and was friend? Where is the man that has participated in losing business, you the people had to foot up the any and all our wars, since our war with Mexico bill and the Government pay the expense. That is down to the present time, that can put his finger the Freedmen's Bureau Bill. upon any one act that goes to prove [but what he Now when they talk about power and usurpation, stood at all times for the country?] (A voice "That I stand to-night where I have always stood. [See is so."] Then what is my offending? (A voice — this measure before you.] Before this Congress came "Because you are nota Radical.") (Cries of " Veto.") up or this rebellion commenced; and because I opSomebody says "Veto." (A voice-" Bully for the posed it, exercising one of the most conservative veto,"-chcers.) Veto of what? What is called the powers in the Constitutions of the country. What Freedmen's Bureau Bill. And I can tell you what could I do by the veto power [A voice " Send it over it is. (A voice-" Tell us.") Before the Rebellion your head"] Can you [present anything?] No. But commenced there were four million of persons, that all that the Executive can do, who was the reprewere called colored persons, that were held as slaves sentative of the people, the people's tribune, is to say by about 340,000 people living in the South. These when a measure is unconstitutional, is to say when 340,000 slaveholders paid the expenses [worked the it is extravagant and improvident and [?] let the negroes] as they are commonly called, and at the people consider of it (Cheers) Was there any tyranny expiration of the year, [when] the rice, tobacco, and in stopping the measure until you can get the people cotton were sold, after paying all the expenses, the to consider it? [A voice "No."J Then as your trislaveholders put the money in their pockets. Your bune, as your representative, I said when this bill attention, they put the profits, if there was any, in was [passed]-and a bill, too, if I had been disposed their pockets. In many instances there were no and with plenty of power, I could have taken it into profits, [thus he that bought the land and the slaves my hands, with thousands of satrabs and from 12 to came out (?)] Well that is the way the thing stood 50 millions of expenditure, I could have declared my before the rebellion. The rebellion commenced, the self dictator,-I said no, that the power is where the slaves were turned loose, and then we come up to Constitution placed it, in the hands of the people. the Freedmen's Bureau Bill. What did the Freed- (Cheers) So much for the Freedmen's Bureau Bill. men's Bureau propose? It is to appoint agents and And if I was disposed to [comeJ along, in connecsub-agents, in all the States, counties, school dis- tion with this [and] call your attention to the Civil tricts, and parishes, with power to make contracts Rights Bill, it is only more enormous than the other. for all the slaves, with power to control, power to [Confused voices mingled with cheers.] And let me hire them out and to dispose of them; and in addition say to you, all the threats and menaces emanating to that the whole military power of the Government from what is called the extreme men, your STEto aid the execution of the Freedmen's Bureau Bill vENSES, your SUMINERS, and your Phillipses, and (A voice-" Bully.") I never fear clamor (A voice- from all that class, I care not; as they have once " Good for you.") I never [have] been afraid of the talked about forming a league with hell and a covepeople, for it is in them I relied, and upon them I nant with the devil. [Laughter and cries of " bully."] always relied. Then when I got the truth, the argu- I tell you, my countrymen here to-night, that though ment and the fact and reason on my side, neither the powers of hell and THAD. STEVENS and his gang clamor nor frowns nor menaces can drive me from my [were by,] they could not turn me from my purpose. purpose. [Cries of "Bully," and cheers]. There is no power to control me save you and the And now to the Freedmen's Bureau Bill. What God who spoke me into existence. [" Three cheers"] Nwas it? Four millions of slaves were emancipated, In bidding you farewell, [I would be willing] that given an equal chance, a fair start to make their own this Congress which has been in session and which support; to work, produce, and having worked and has taken so much pains to poison the minds of their produced, to appropriate the product of their own constituents against me-what has this Congress labor to their own sustenance and support. But the done? [A voice, "Nothing."] Has itdone anything Freedmen's Bureau comes along and says that we to restore the Union of these States? [A voicemust take charge of four million of slaves. (Cries of "No."] But on the contrary, they have done every"No," never.) The Freedmen's Bureau comes along thing in their power to prevent it. [A voice-"That and proposes to appropriate a fraction less than is so."] But because I stand now where I did when $12,000,000 to sustain this Freedmen'sBureau. I want this rebellion commenced, I have been denounced to give some facts; I want to put the nail in, and as a traitor and recreant to the cause of my country. having put it in, to clinch it on the other side. [Cries of "Never."] My countrymen here to-night, [Cheers] Then we come along and propose at the who has suffered more than I? [Cries of "No one."] beginning, as an initiative, to appropriate $12,000,000 Who has run greater risks,-who has done more than I that address youhereto-night? [Cries of "No one," let the negrocs vote in Ohio before you talk about and "God bless you, old man."] But this factious, negroes voting in Louisiana. LA voice "Never."] domineering tyrannical party in Congress has under- Take the beam out of your own eye before you see taken to poison the minds of the American people. the mote thai is in your neighbor's. You are very (Voices-"Tha,t's so;" and cheers.) It is just a ques- much disturbed about New Orleans, but you won't tion of power; and the attempt has been [?] every let a negro [go] to the ballot box to vote in Ohio. iman that held a place in their districts. The Presi- [Then my countrymen this is my claim] We under(lent cannot control it-oh no; [my] Congressmen stand these questions. control it. [Laughter.] Yes, your assessors and Then in parting with you-[The speech is not concollectors and postmasters-(A Voice —" lit'em eluded ip my notes —D. C. McEEwen.] again.")-Why they used to have an axiom in old times that rotation in office was a good thing. Washington used to think so, Jefferson thought so, Mon- [Cleveland Herald report.] roe thought so; Jackson-God bless him I —thought Prest. Johnson then stepped forward and spoke as so. [Cheers, a Voice, "Here's a second Jackson."] follows: But now when we talk about-[The sentence was in- PREST. JOHNSON'S SPEECH. terrupted by confusion in the assembly.] Your attention. I would rather have your attention [than Fellow Citizens of Cleveland:-It is not for the purto listen to you.] pose of making a speech I came here to-night. I am Now how does the matter stand? Why, this gang, aware of the great curiosity that exists on the part this gang of cormorants and bloodsuckers, that have of strangers in reference to seeing individuals who lived at home and fattened upon the country the last are here amongst us. [Louder.] You must rememfour or five years, never going into the field,-oh, ber there are a good many people here to-night, and they are great patriots and everybody [wants to turn it requires a great voice to reach the utmost verge them out (?)] Look at them [?.] Everybody are trai- of this vast audience. I have used my voice so contors that are against us. Hence you hear a system stantly for some days past that I do know as I shall of legislation proposed, to do what? [ Why that these be able to make you all hear, but I will do my best men shall not be turned out. "We have got our to make myself heard. particular fr'iends in power in the districts(?)] and What I am going to say is: There is a large numthe President, the tribune of the people, the only ber here who would like to see General Grant, and channel through which you can reach and vacate hear him speak,' and hear what he would have to these places and bring honest men in, is denounced say; but the fact is General Grant is not here. He is as a tyrant because he stands [in vindication of the extremely ill. His health will not permit of his appeople. (Cheers.) All it wants is for the country to pearing before this audience to-night. It would be LunderstadF.] I think the time has come when those a greater pleasure to me to see him here and have him who have stayed at home and enjoyed all the fat of- speak than to make a speech of' my own. So then fices four or five years, got rich,-I think it is noth- it will not be expected that he will be here to-night, ing more than right that a few of those who have & you cannot see him on account of his extreme fought the battles of the country [as well as] others indisposition. who have staid at homue [should join in] the benefits Fellow Citizens: In being before you to-night it is of the victory. [How it is with Tennessee? Why, it not for the purpose of making a speech, but simply is that [I mean to say that I stood up with these men to make your acquaintance, and while I am telling at home] and in the field, and God being willing, I you how to do, and at the same time tell you goodintend to stand by them again. [Cries of "Good," bye. We are here to-night on our tour towards Bully," and cheers.] a sister State for the purpose of participating in and Then, my-countrymen,-I have been drawn into witnessing they laying of the chief corner stone over this. I intended simply to make my acknowledge- a monument to one of our fellow citizens who is no ments for the cordial welcome that you have given more. It is not necessary for me to mention the me. But even in going along, passing the civilities name of Stephen A. Douglas to the citizens of Ohio. of life, if I am insulted while the civilities are going It is a name familiar to you all, and being on a tour on I will resent it in a proper manner. [Cries of to participate in the ceremonies, and passing through "Good" & cheers.] Then in parting with you here your State and section of country and witnessing to-night, if I know the feelings of my own heart, the demonstration and manifestation of regard & there is no anger. I have no revengeful feelings to respect which has been paid me, I am free to say to gratify. (A voice "Everybody loves you") All that you that so far as I am concerned, and I think I am I want is —now that peace has come, now when the speaking for all the company, when I say we feel war is over-is for all patriotic and Christian men to extremely gratified and flattered at the demonstrarally round the standard of their country, and unite tion made by the country through which we have in one [eternal, patriotic oath,] and swear by the passed, and in being flattered, I want to state at the altar and their God that all shall sink together but same time that I don't consider that entirely perwhat this Union shall be restored. (Cheers.) Then sonal, but as evidence of what is pervading the in partingwith you here to-night, Ihand over to you public mind. that there is a great issue before the this flag, not with 25 but with 36 stars; I hand over country, and that this demonstration of feeling, is to you the Constitution of my country unimpaired, more than anything else, an indication of a deep though breaches have been made upon it, with the interest among the great mass of the people in regard confident hope that you will repair the breaches and to all these great questions that agitate the public preserve the Constitutipon intact. I hand it over to mind. In coming beforeyou to-night, Icome before you, in whain 1 have always trusted, and uponwhom you as an American citizen, and not simply as your I have always relied, andsofarIhaveneverdeserted. Chief Magistrate. I claim to be a citizen of the And I feel confident, though speaking here to-night Southern States, and an inhabitant of one of the t'or heart that responds to heart-men that agree in States of this Union. I know that it has been said, principle, men that agree in some great doctrine and contended for on the part of some, that I was [that compare ideas or notions, when they come to an alien, for I did not reside in any one of the States the hour of actingin harmony and concert.] Then in of the Union, and therefore I could not be Chief parting with you to-night, 1 hand over the flag, the Magistrate, though the States declared I was. Gonstitution and the Union into hands that I know But all that was necessary was simply to introduce will preserve it, and at the proper time will render a resolution declaring the office vacant or depose the the proper[?]. occupant, or under some pretext to prefer articles of Then farewell; and the little ill-feeling that has impeachment, & the individual who occupies the been [stricken out]:-if some man who has been Chief Magistracy would be deposed and deprived of morose and felt malignant under the influence of power. some party leader and that don't feel that he is free, But, fellow-citizens, a short time since you had a let me say just in conclusion, and in this connection ticket before you for the Presidency and Vice PresiI tell you there are a good many white men in this dency; I was placed upon that ticket, in conjunction country need emancipating. And let the work of with a distinguished fellow citizen who is now no emancipating go on. Strike the shackles from the more. (Voice, "a great misfortune too"). I know white man's limbs and let him stand erect. You free there are some who will exclaim, "unfortunate." your folks at home before you go to the negroes. You admit the ways of Providence are mysterious and 224 unfortunate but uncontrolable by those who would twenty-five stars. I came here to-night with the exclaim unfortunate. I was going to say my coun- Constitution of my country intact, determined to trymen, but a short time since, I was selected and defend the Constitution let the consequences be placed upon a ticket. There was a platform prepared what they may. I came here to-night for the Union; and adopted by those who placed me upon it, and the entire circle of these States. [A Voicc.' How now, notwithstanding all kinds of misrepresenta- many States made you President?"] How many tion: notwithstanding since after the sluice of mis- States made me'President? Was you against secesrepresentation has been poured out, notwithstanding sion? Doyouwant to dissolve the Union? [Avoice, a subsidised gang of hirelings have traduced me and No.] Then I am President of the whole United maligned me ever since I have entered upon the dis- States, and I will tell you one thing. I understand charge of my official duties, yet I will say had my the discordant notes in this audience here to-night. predecessor have lived, the vials of wrath would And I will tell you furthermore, that he that is ophave been poured out on him (cries of never, never, posed to the restoration of the Government and the never.) I come here to-night in passing along, and union of the States, is as great a traitor as Jeff being called upon, for the purpose of exchanging Davis, and I am against both of them. Ifought opinions and views as time would permit, and to as- traitors at the South now I fight them at the North. certain if we could who was in the wrong. (Immense applause.) I appear before you to-night and I want to to say I will tell you another thing; I know all about this: that I have lived and been among all Ameri- those boys that have fought for their country. I can people, and have represented them in some ca- have been with them down there when cities were pacity for the last twenty-five years. And where is besieged. Iknow who was with them when some of the man living, or the woman in the community, you, that talk about traitors, had not courage to come that I have wronged, or there is the person that can out of your closets, butpersuaded somebody else to go. place their finger upon one single hair breadth of Very courageous meaul While Grant, Sherman deviation from one single pledge I have made, or Farragut, and a long host of the distinguished one single violation of the Constitution of the coun- sons of the United States were in the field of battle try. What tongue does he speak? What religion you were cowards at home; and, now when these does he profess? Let him come forward and place brave men have returned, many of them having left his fingerupon one pledge I have violated. (A voice. an arm or leg on some battle-field while you were " Hang Jeff Davis"): (Mr. President resumes.) Hang at home speculating and committing frauds upon Jeff Davis? Hang Jeff, Davis? Why don't you? your government, you pretend now to have great (Applause.) Why don't you? (Applause.) Have respect and sympathy for the poor fellow who left you not got the Court? Have you not got the Court? his arm on the battle-field. I understand you, who Have not you got the Attorney General? Who is talk about the duty of the President and object to your Chief Justice —and that refused to sit upon the his speech of the 22d of July, (Voice. "22d of Februtrial? (Applause.) I am not the Prosecuting At- ary")-22d of February. I know who have fought torney. I am not the jury. But I will tell you what the battles of the country, and I know who is to pay I did do; I called upon your Congress, that is trying for it. Those brave men shed their blood and you to break up the Government, (immense applause.) speculated, got money, and now the great mass of Yes, did your Congress order hanging Jeff Davis? the people must work it out. (Applause and confu(Prolonged applause, mingled with hisses.) sion.) I care not for your prejudices. It is time for But, fellow citizens, we had as well let feelings and the great mass of the American people to understand prejudices pass; let passion subside; let reason re- what your designs are in not admitting the Southern sume her empire. In presenting myself to you in the States when they have come to terms and even profew remarks I intended to make, my intention was posed to pay their part of the national debt. I say, to address myself to your judgment and to your good Let them come: and those brave men, having consense, and not to your anger or themalignity of your quered them and having prostrated them in the dust hearts. This was my object in presenting myself on with the heel of power-upon them, Whatdo they say? this occasion, and at the same time to tell you (Voice,"WhatdoesGeneralBuTLERsay?") General good-bye. I have heard the remark made in this BUTLERI What does General Grant say? And what crowd to-night, "Traitor, traitorl" (Prolonged con- does General Grant say of General BUTLER? What fusion.) My countrymen, will you hear me for my does General Sherman say? He says he is for rescause? For the Constitution of my country? I toration of the Government; and General Sherman want to know when, where and under what circum- fought for it. stances Andrew Johnson, either as Chief Executive, But fellow citizens let this all pass. I care not for or in any other capacity ever violated the Constitu- malignity. There is a certain portion of our countion of his country. Let me ask this large and in- trymen that will respect their fellow citizen whentelligent audience here to-night, if your' Secretary ever he is entitled to respect, and there is another of State, who served four years under Mr. Lincoln, portion that have no respect for themselves, and conwho was placed under the butcher's blow and ex- sequently have none for anybody else. I know a posed to the assassin's knife, when he turned traitor. gentleman when I see him, And furthermore, Iknow If I were disposed to play orator, and deal in de- when I look a man in theface-[Voice,-" Which you clamation, here to-night, I would imitate one of the can't do."] I wish I could see you, I will bet now, ancient tragedies we have such account of-I would if there could be a light reflected upon your face that take William H Seward and open to you the scars cowardice and treachery could be seen in it.' Show.he has received. I would exhibit his bloody gar- yourself. Come out here where wecan see you. If ment and show the rent caused by the assassin's ever you shoot a man, you will stand in the dark knife. [Three cheers for Seward.] Yes, I would un- and pull your trigger, I understand traitors, I have fold his bloody garments here to-night and ask who been fighting them for five years. We fought it out had committed treason. I would ask why Jeff on the Southern end of the line, now we are fighting Davis was not hung? Why don't you hang Thad in the other direction. And thoe men —such a one Stevens and Wendell Phillips? I can tell you, my as insulted me to- night-you may say, has ceased to countrymen I have been fighting traitors in the be a man, and in ceasing to a man shrunk into the South, [prolonged applause,] and they have been denomination of a reptile, and having so shrunken, whipped, and say they were wrong, acknowledge as an honest man, I tread upon him. I came here their error and accept the terms of the Constitu- to-night not to criminate or recriminate, but when tion. provoked my nature is, not to advance, but to deAnd now as I pass around the circle, having fought fend, and when encroached upon, I care not from traitors at the South, I am prepared to fight traitors what quarter it comes, it will find resistance, and at the North, God being willing with your help resistance at the threshold. As your Chief Magis["You can't have it," and prolonged confusion,] trate I have felt, after taking an oath to supportthe they would be crushed worse than the traitors of the Constitution of my country, that I saw the encroachSouth, and this glorious Union of ours will be pre- ments of the enemy upon your sovereign rights. I served. In coming here to-night, it was not coming saw the citadel of liberty intrenched upon and, as an as Chief Magistrate of twenty-five States, but I come honest man, being placed there as a sentinel, I have here as the Chief Magistrate of thirty-six States. I dared to sound the toesin of alarm. Should I have came here to-night with the flag of my country in cars and not hear; have a tongue and not speak when my hand, with a constellation of thirty-six and not the enemy approaches? 225 And let me say to-night that my head has been minds of the America an people, and create a feelin threatened: It has been said that my blood was to against me in consequence of the manner in whichI be shed. Let me say to those who are still willing to have distributed the public patronage, sacrifice my life [derisive laughter and cheers,] if you While this gang-this common gang of cormorants want a victim and my country requires it, erect your and bloodsuckers, have been fattening upon the altar and the individualwho addresses you to-night, country for the past four or five years-men never while here a visitor, [No, No," and laughter] erect going into the field, who growl at being removed from your altar if you still thirst for blood, and if you want their fat offices, they are great patriots Look at it, take out the individual who now addresses you them all over your district I Everybody is a traitor and lay him upon your altar, and the blood thatnow that is against them, I think the time has come, courses his veins and warms his existence, shall be when, those who stayed at home and enjoyed offices poured out as a last libation to Freedom. I love my for the last four or five years-I think it would be no country, and I defy any man to put his finger upon more than right for them to give way and let others anything to the contrary. Then what is my offense? participate in the benefits of office. Hence you can ]Voices, "You ain't a Radical," "New Orleans," see why it is that I am traduced and assaulted. I "Veto"] Somebody says "Veto." Veto of what? stood up by these men who were in the field, and I What is called the Freedmen's Bureaa Bill, and in stand by them now. fine, not to go into any argument hereto-night, if you I have been drawn into this long speech, while I do not understand what the Freedmen's Bureau Bill intended simply to make acknowledgments for the is, I can tell you. [Voice-" Tell us"] Before the re- cordial welcome; but if I am insulted while civilibellion there were 4,000,000 called colored persons ties are going on I will resent it in a proper manner, held as slaves by about 340,000 people living in the and in parting here to-nigkt, I have no anger nor South. That is 340,000 slave owners paid expenses, revengeful feelings to gratify. All I want nowbought land and worked the negroes, and at the ex- peace has come and war is over-is for all patriotic piration of the year when cotton, tobacco, and rice men to rally round the standard of their country and was gathered and sold,after all paying expenses, these swear by their altars and their God, that all shall slave owners put the money in their pocket-(slight sink together but what this Union shall besupported. interruption)-your attention-they put the prop- Then in parting with you to-night, I hang over you erty in their pocket. In many instances there was this flag-not of 25 but of 36 stars-I hand over to you no profit and many come out in debt. Well, that is the Constitution of my country-though imprisoned, the way things stood before the rebellion, The re- though breaches have been made upon it-with conbellion commenced and the slaves were turnedloose. fidence hoping you will repair the breaches, I hand Then we come to the Freedmen's Bureau Bill. And it over to you, in whom I have always trusted and what did the bill propose? It proposed to appoint relied, and, so far, I have never deserted-and I feel agents and sub-agentsin all thecities, counties, school confident, while speaking here to-night, for heart districts and parishes, with power to make contracts responds to heartof man, that you agree to the same for all the slaves, power to control and power to hire great-doctrine. them out-dispose of them, and in addition to that, Then farewell! The little ill feelings aroused here the whole military power of the Government applied to-night. for some men have felt a little ill; let us to carry it into execution. not cherish them. Let me say, in this connection, Now [clamor and confusion] I never feared there are many white people in this country that clamor. I have never been afraid of the people, for need emancipation. Let the work of emancipation by them I have always been sustained. And when go on. Let white men stand erect and free. [A I have all the truth, argument, fact and reason on voice, " What about New Orleans"]. You complain my side, clamor nor affront, nor animosities can of the disfranchisement of the negroes in the Southdrive me from my purpose. ern States, while you would not give them the right Now to the Freedman's Bureau. What was it? of suffrage in Ohio to-day. Let your negroes vote in; Pour million slaves were emancipated and given an Ohio before you talk about negroes voting. Take equal chance and fair start to make their own sup- the beam out of your own eye before you see the port-to work and produce; and having worked and mote in your neighbours eye. You are very much produced, to have their own property and apply it disturbed about New Orleans-but you will not allow to their own support. But the Freedmen's Bureau the negro to vote in Ohio. comes and sayswe must take charge ofthese4,000,000 This is all plain, we understand this all and in slaves. The Bureau comes along and proposes, at parting with you to-night let me invoke the blessing an expense of a fraction less than $12,000,000 a year of God upon you, expressing my sincere thanks for, to take charge of these slaves. You had already ex- the cordial manner in which you have received me. pended three thousand million dollars toset them free and give them a fair opportunity to take care Mr. EDMUNDS. I move that the Senate of themselves-then these gentlemen, who are such for this great friends of the people, tell us they must be taxed sttng ral stand adjourned untl totwelve million dollars to sustain the Freedman's morrow at twelve o'clock. Bureau. [Great confusion.] I would rather speak Mr. FESSEXDEN. I wish to make a moto five hundred men who would give me their atten- tio that takes precedece of that, that when tion than to one hundred thousand that would not, [With all this mass of patronage he said he could the court adjourns it adjourn to meet on Monhave declared himself dictator.] day next. The Civil Itights bill was more enor~mous than the other. I have exercised the veto power, they say. Mr. DRAKE. That has been decided against, Let me say to you of the threats from your Stevenses, Mr. FESSENDEN. It can be considered Sumners, Phillipses and all that class, I care not for again because other business has been done in them. As they once talked about forming a "league with Hell and a covenant with the devil." I tell you, the meantime. my countrymen here to-night, through the power of Mr. EDMUNDS. I rise to a point of order, Hell, death and Stevens with all his fowers com- that under the rules the motion to adjourn takes bined, there is no power than can control me save you the people and the God that spoke me into ex- precedence. istence. In bidding you farewell here to-night, I The CHIEF JUSTICE. The Chair is of would ask you with all the pains Congress has taken opinion that the motion to adjourn takes prep to calumniate and malign me, what has Congress motion done? Has it done anything to restore the Union of cedence of every other motion if it is not withthe States? But, on the contrary, has it not done drawln. everything tobpreventait? Idid h h b Mr. EDMUNDS. I will withdraw it at the.And because I stand now as I did when the rebellion commenced, I have been denounced as a traitor. request of the Senator from Maine. My countrymen here to-night, who bassuffered more Mr. FESSENDEN. I can afterward renew than I? Who has run greater risk? Who asborne more than I? But Congress, factious, domineering, the motion to adjourn. tyrannical-Congress has undertaken to poison the The CHIEF J USTICE. The Senator from C. I.-15. 226 Maine moves that when the Senate sitting as Answer. Yes, sir; I have had experience a court of impeachment adjourns it adjourn during the whole of that time in connection to meet at twelve o'clock on Monday. with newspaper reporting and outside. Mr. FERRY called for the yeas and nays, Question. Reporting for courts? and they were ordered; and being taken, re- Answer. Yes, sir. sulted-yeas 16, nays 29; as follows: Question. With what papers have you been YEAS-Messrs. Buckalew, Corbett, Davis, Dixon, lately connected? Doolittle, Fessenden, Fowler, Henderson, Johnson, Answer. More recently with the Missouri McCreery, Norton, Nye, Patterson of Tennessee, previous to that time with the Mis Trumbull, Van Winkle, and Vickers —16. NAYS-Messrs. Anthony,Cameron, Cattell, Chand- souri Republican. ler, Cole, Conkling, Conness, Cragin, Drake, Ed- Question. Do the names of those papers munds, Ferry, Frelinghuysen, Hendricks, Howard, indicate their party proclivities, or are they Howe, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ross, reversed? Sherman, Sprague, Stewart, Sumner, Thayer, Willey, Answer. They are the reverse. and Williams-29.uestion TheDemocratmeansepblican, NOT VOTING —Messrs. Bayard, Grimes, Harlan, Question. TheDemocratmeansRepublican Morton, Ramsey, Saulsbury, Tipton, Wade, and and the Republican means Democrat? Yates-9. Answer. Exactly. So the motion was not agreed to. Question. To what paper were you attached Mr. EDMUNDS. I move that the Senate on or about the 8th of September, 1866? sitting for this trial adjourn. Answer. The Missouri Democrat. The CHIEF JUSTICE. The Senator from Question. Did you report a speech delivered Vermont moves that the Senate sitting as a from the balcony of the Southern Hotel in St. court of impeachment adjourn until to-morrow Louis by Andrew Johnson? at twelve o'clock. Answer. I did. The motion was agreed to. Question. What. time in the day was that speech delivered? Answer. Between eight and nine o'clock in SATURDAY, April 4, 1868. the evening. The Chief Justice of the United States en- Question. Was there a crowd in the streets? tered the Senate Chamber at twelve o'clock and Answer. Yes, sir, there was, and on the took the chair. balcony also. The usual proclamation having been made Question. Where were you? by the Sergeant-at-Arms, Answer. I was on the balcony, within two The Managers of the impeachment on the or three feet of the President while he was part of the House of Representatives appeared speaking. and took the seats assigned them. Question. Where were the rest of'the presiThe counsel for the respondent also appeared dential party? and took their seats. Answer. I cannot tell you. The presence of the House of Representa- Question. Were they there? tives was next announced, and the members Answer. I have no recollection of seeing of the House, as in Committee of the Whole, any of the party on the balcony. headed by Mr. E. B. WASHBURNE, the chair- Question. Did the President come out to man of that committee, and accompanied by answera call from the crowd in the street the Speaker and Clerk, entered the Senate apparently? Chamber, and were conducted to the seats pro- Answer. Yes, sir, I judge so; I know there vided for them. was a very large crowd in the street in front The CHIEFJUSTICE. The Secretary will of the hotel, and there were continuous cries read the minutes of the last day's proceedings. for the President, and in response to those The Secretary read the Journal of the pro- cries I supposed he camne forward. ceedings of the Senate yesterday sitting for the Question. Had he been received in the city trial of the impeachment. by a procession of the various charitable socieThe CHIEF JUSTICE. Gentlemen Man- ties? agers, you will please to proceed with your evi- Answer. He had during the afternoon been dence. The Senators will please to give their received by the municipal authorities. attention. Question. Had the mayor made him ant address of welcome? L. L. WALBRIDGE sworn and examined. Answer. Hehad. By Mr. Manager BUTLER: Question. Had he answered that address? Question. What is your business? Answer. He had. Answer. Short-hand writer. Question. Did you take a report of that Question. How long have you been engaged speech? in that business? Answer. I did. 4Answer. Nearly ten years. Question. How fully? Question. Have you had during that time Answer. I took every word. any considerable experience: and if so, how Question. After it was taken, how soon was much in that business? it written out? 227.Answer. Immediately. Question. What occasion calledyou to revise Question. How was it written out? it with your notes a little over a year ago? Answer. At my dictation. Answer. I was summoned here by the ComQuestion. By whom? mittee on the New Orleans Riots, and immeAnswer. The first part of the speech previous diately after receiving the summons I hunted to the banquet was written out in one of the up my notes and again made a comparison rooms of the Southern Hotel. That occupied with them of the printed speech. about half an hour, I think. We then attended Question. How far did that second comparithe banquet, at which other speeches were son assure you of corrections? made. Immediately after the conclusion of Answer. It was perfectly correct. the banquet we went to.the Republican office, Question. Now, in regard to particularity of and there I dictated the speech to Mr. Mona- reporting; were you enabled to report so corhan and Mr. McHenry, two attaches of the rectly as to give inaccuracies of pronunciation Republican. even? Question. You have spoken of a banquet; Answer. Yes, sir. I did so in that instance. was there a banquet given to the President and Question. Where are your original notes his suite by the city? now? Answer. There was at the Southern Hotel, Answer. I cannot tell you, sir. I searched immediately after the speech on the balcony. for them immediately after I was summoned Question. At that banquet did the President here, but failed to find them. speak? Question. You had them up to the time you Answer. He made a very short address. were examined before the committee on the Question. And there was other speaking New Orleans riot? there, I presume. Answer. I had, and brought them with me Answer. Yes, sir. here, but I have no recollection of them since Question. After that speech was written out that time. was it published? Question. Have you a copy of that paper? Answer. It was. Answer. I have. Question. When? Question. Will you produce it? Answer. On the very next morning, in the [The witness produced a newspaper, being Sunday Republican. the Missouri Democratof Monday, September Question. After it was published did you 10, 1866.] revise the publication by your notes? Question. Is this it? Answer. I did. Answer. It is. Question. How soon? Question. From your knowledge of the manAnswer. Immediately after the speech was ner in which you took the speech, and from printed in the Sunday morning Republican I your knowledge of the manner in which you went to the Democrat office in company with corrected it, state whether you are now enabled my associate, Mr. Edmund T. Allen, and we to say that this paper which I hold in my hand very carefully revised the speech for the Mon- contains an accurate report of the speech of day morning Democrat. the President delivered on that occasion? Question. Then it was on the same Sunday Answer. Yes, sir; I am enabled to say it is that you made the revision? an accurate report. Answer. Yes, sir; the Sunday after the Mr.ManagerBUTLER. Iproposeifther speech. is no objection, to offer this in evidence, and Question. When you made the revision had also if there is objection. you your notes? Mr. EVARTS. Before that is done let us Answer. I had. cross-examine this witness. Question. State whether you compared the Mr. Manager BUTLER. Certainly. speech as printed with those notes? Answer, Yes, sir; I did at that time, and Cross-examined by Mr. EVARTS: since. Question. I understand that you took down, Question. When you compared it did you as from the President's mouth, the entire make any corrections that were needed, if any speech, word for word, as he delivered it? were needed? Answer. Yes, sir. Answer. My recollection is that there were Question. In the transcript from your notes one or two simple corrections, errors either in and in this publication did you preserve that transcribing or on the part of the printer. That form and degree of accuracy and completeis all that I remember in the way of corrections ness? Is it all the speech? of the speech. Answer. It is the whole speech. Question. Did you afterward have occasion Question. No part of it is condensed or parato revise that speech with your notes? phrased? Answer. I had. Answer. No, sir; the whole speech is there Question. When was that? in complete form. Answer. I think that was little over a year Question. You say that, beside the revision ago. of the speech which you made on the Sunday 228 following its delivery,.you made a revision a pended and stayed, it seems that the time has aryear ago? rived when we should have peace; when the bleeding Answer. Yes, sir. arteries should be tied up [A voice: "New Orleans;" G Go on."] Question. For what reason and upon what Perhaps if you had a word or two on the subject occasion? of New Orleans, you might understand more about Answer. As I said, it was owing to my hav- itthanyoudo [Laughter and cheers.] And if you rwill go back [Cries for Seward]-if you will go back ing been summoned before the Committee on and ascertain the cause of the riot at New Orleans, the New Orleans Riot. perhaps you would not be so prompt in calling out New Orleans. If you will take up the riot at New Question. A committee of Congress? Orleans, and trace it back to its source, or to itsimmeAnswer. Yes, sir. diate cause, you will find out who was responsible Question. At Washington? for the blood that was shed there. A swer. Yes, sir. If you will take up the riot at New Orleans, and Aneswer. hes, asir. tha* trace it back to the Radical Congress [great cheerQuestion. When was that? ing, and cries of" bully,"] you will find that the riot Answer. I should say a little over a year at New Orleans was substantially planned-if you I cannot fix the date precisely. will take up the proceedings in their caucuses you ago. I cannot fix the date precisely. will understand that they there knew [cheers] that a Question. Were you then inquired of in convention was to be called which was extinct, by regard to that speech? its powers having expired; that it was said, and the Answerd I wais. ntention was that a new government was to be A4n swer. I was. organized; and in the organization of that governQuestion. And did you produce it then to ment the intention was to enfranchise one portion that committee? of the population called the coloredpopulation, who Answer. I did. had just been emancipated, and at the same time disfranchise white men. [Great Cheering.] When Question. Were you examined before any you begin to talk about New Orleans [confusion] other committee than that? you ought to understand whatyou are talking about. Answer. No, sir. When you read the speeches that were made or Answer. No, sir, take up the facts-on Friday and Saturday before Question. Was your testimony reduced to thatConventionsat-you will therefindthatspeeches writing? were made incendiary in their character, exciting that portion of the population, the black populaAnswer. I believe so. tion, to arm themselves and prepare for the shedQuestion. And signed by you? ding of blood. [A. Voice: "Thats sol" and cheers]. Answer. No, sir; not signed. You will also find that that Convention did assemble in violation of law, and the intent of that ConlMer. EVARPTS. We suppose, if the court vention was to supersede the recognized authorities please, that this Seport is within the compe- in the State government of Louisiana, which had tency of proof. been recognized by the Government of the United States, and every man engaged in that rebellion-in Mr. Manager BUTLER, (to the witness.) that Convention, with the intention of superseding Was your testimony published? and up turning the Civil Government which had been recognized by the Government of the United The WITNESS. 1The testimony I gave last States-I say that he was a traitor to the Constituwinter? tion of the United States, [cheers,] and hence you Ir. Manager BUTLER. Yes, sir; before find that another rebellion was commenced, having the. New Ola ro commiits origin in the Radical Congress. These men were the New Orleans riot committee. to go there; a government was to be organized, and Answer. I am not aware whether it was or the one in existence in Louisiana was to be supernot. seded, set aside and overthrown. You talk to me about New Orleans I And then the question was to Mr. Manager BUTLER. Will the Seere- come up, when they had established their governtary have the kindness to read this speech? ment-a question of political power-which of the'TIhe Chief Clerk read as follows, from the: ltwo governments was to be recognized-a new govT hiefCler rea as ollos, fom t ie ernment inaugurated under this defunct ConvenMissouri Democrat of Monday, Septemiber 10, tion —set up in violation of law and without the 1866: iconsent of the people. And then when they had Speech of President Johnson. I established their government, and extended universal or impartial franchise as they called it to this Being set down at the Southern, a large crowd col- I colored population, then this Radical Congress was lected in Walnut street, and called loudly for the to determine that a government established on negro President. He answered their summons by the fol- votes was to be the government of Louisiana. lowing address:! [Voices —"Never," and cheers and "Hurrah for Fellow Citizens of St. Louis: In being introduced Andy."] to you to-night it is not for the purpose of making a much for the New Orleans riot-and there was speech. It is true I am proud to meet so many of the cause and the origin of the blood that was shed, my fellow citizens here on this occasion, and under and every drop of blood that was shed is upon their the favorable circumstances that I do. [Cry, "how skirts. and they are responsible for it. [Cheers]. I about British subjects?"] We will attend to John i could trace this thing a little closer but I will not Bull after a while so far as that is concerned. I do it here to-night. But when you talk about New [Laughter and loud cheers.] I have just stated that Orleans, and talk about the causes and consequences I was not here for the purpose of making a speech, that resulted from proceedings of that kind, perhaps, but after being introduced simply to tender my cor- as I have been introduced here, and you have prodial thanks for the welcome you have given lme in voked questions of this kind, though it don't provoke your midst. [A voice: "Ten thousand welcomes;", me, I will tell you a few wholesome things that has hurrahs and cheers.] Thank you, sir. I wish it was in I been done by this Radical Congress. [Cheers]. my power to address you under favorable circum- I In connection with New Orleans and the extension stances upon some of the questions that agitate and of the Elective franchise, I know that I have been distract the public mind at this time. Questions that traduced and abused. I know it has come in advance have grown out of a fiery ordeal we have just passed of me here, as it has elsewhere, and that I have through and which I think as important as those we I attempted to exercise an arbitrary power in resisthave just passed by. The time has come when it ing laws that was intended to be enforced on the seems to me that all ought to be prepared for peace — Government. [Cheers and cries of'" hear"]. the rebellion being suppressed, and the shedding of Yes, that I had exercised the veto power, ["bully blood being stopped, the sacrifice of life being sus- for you,"] that I had abandoned the power that 229 elected me, and that I was a t-r-ai-tor [cheers] be- umphant. [Cheers] Now: my countrymen, let me cause I exercised the veto power in attempting to, call your attention to a single fact, the Freedmen's and did arrest for a time, a bill that was called a Bureau. [Laughter and hisses] Yes; slavery was freedmen's bureau bill. [Cheers.] Yes that I was a an accursed institution till emancipation took place. t-r-ai-t-o-r! And I have been traduced, I have been It was an accursed institution while one set of men slandered, I have been maligned, I have been called worked them and got the profits. But after emanciJudas,-Judas Iscariot, and all that. Now, my coun- pation took place they gave us the Freedmen's trymen here to-night, it is very easy to indulge in Bureau. They gave us these agents to go into every epithets, it is very easy to call a man Judas, and cry county, every township, and into every school-disout t-r-ai-tor, but when he is called upon to give trict throughout the United States, and especially arguments & facts, he is very often found wanting. the Southern States. They gave us commissioners. Judaas, Jtdas Iscariot, Judaasl There was a Judas They gave us $12,000,000 and placed the power in the once, oneof the twelve apostles. Ohl yes, and these hands of the Executive, who was to work this matwelve apostles had a Christ. [a voice, "And a chinery, with the army brought to its aid, and to susMoses, too." Great laughter.] The twelve apostles tain it. Then let us run it, on the $12,000,000 as a had a Christ and he could not have had a Judas un- beginning, and, in the end, receive $50,000,000 or less he had had twelve apostles. If I have played $60,000,000, as the case may be, and let us work the the Judas, who has been my Christ that I have played 4,000,000 of slaves. In fine, the Freedmen's Bureau the Judas with? Was it Thad. Stevens? Was it was a simple proposition to transfer 4,000,000 of Wendell Phillips? Was it Charles Sumner? [Hisses slaves in the Inited States' from their original and cheers.] Are these the men that set up and com- owners to a new set of taskmasters. [Voice; " Never," pare themselveswith the Saviour of men, and every- and cheers.] I have been laboring four years to body that differs with them in opinion, and try to emancipate them; and then I was opposed to seeing stay & arrest their diabolical and nefarious policy them transferred to a new set of taskmasters, to be is to bedenounced as a Judas. ["Hurrah for Andy," worked with more rigor than they had been heretoand cheers.] fore. [Cheers] Yes, under this new system they In the days when there ware twelve apostles, and would work the slaves, and call on the Government when there ware a Christ, while there ware Judases, to bear all the expense, and if there was any profits therewareunbelievers,too. Y-a-s; while there were left, why they would pocket them, [laughter and Judases there ware unbelievers. [Voices-" hear." cheers,] while you, the people, must pay the expense "Three groans for Fletcher."] Yes, oh! yes l unbe- of running the machine out of your pockets, while lievers in Christ: men who persecuted and slandered they got the profits of it. So much for this quesand brought him before Pontius Pilate and preferred tion. charges and condemned and put him to death on I simply intended to-night to tender you my sinthe cross, to satisfy unbelievers. And this same per- cere thanks. But as I go along, as we are talking secuting, diabolical and nefarious clan to-day would about this Congress and these respected gentlemen, persecute and shed the blood of innocent men to who contend that the President is wrong, because carry out their purposes. [Cheers] But let me tell he vetoed the Freedmen's Bureau bill, and all this; you —let me give you a few words here to-night-and because he chose to exercise the veto power, he but a short time since i heard some one say in the committed a high offense. and therefore ought to crowd that we had a Moses. [Laughter and cheers]. be impeached. [voice, "never."] Y-a-s, y-a-s, Yes, there was a Moses. And I know sometimes it they are ready to impeach him. [voice, "let them has been said that have said that I would be the try it."] And if they were satisfied they had the Moses of the colored man. ["Never," and cheers.] next Congress, byas decided a majority as this, upon Why, I have labored as much in the cause of eman- some pretext or other-violating the Constitutioncipation as any other mortal man living. But while neglect of duty, or omitting to enforce some act of I have strived to emancipate the colored man, I have law, upon some pretext or other, they would vacate felt, and now feel, that we have a great many white the Executive Department of the United States. [A men thatwant emancipation. [Laughter and cheers.] voice, "too bad they don't impeach him."] Wha-t? There is a set amongst you that have got shackles on As we talk about this Congress, let me call the soltheir limbs, and are as much under the heel and con- diers' attention to this immaculate Congress. Let trol of their masters as the colored man that was me call your attention. Oh I this Congress, that emancipated. [Cheers] could make war upon the Executive because he I call upon you here to-night as freemen —as men stands upon the Constitution and vindicates the who favor the emancipation of the white man as well rights of the people, exercising the veto power in as the colored ones. I have been in favor of eman- their behalf-because he dared to do this, they can cipation, I have nothing to disguise about that-I clamor, and talk about impeachment. And by way have tried to do as much, and have done as much, of elevating themselves and increasing confidence and when they talk about Moses and the colored man with the soldiers, throughout the country, they talk being led into the promised land, where is the land about impeachments. that this clan proposes to lead them? [Cheers] So far as the Fenians are concerned; upon this When we talk about taking them out from among subject of Fenians, let me ask you very plainly here the white population and sending them to other to-night, to go back into my history of legislation, climes what is it they propose? Why, it is to give and even when Governor of a State-let me ask if us a Preedmen's Bureau. And after giving us a there is a man here to-night, who, in the dark days freedmen's bureau, what then? Why, here in the of Know-nothingism, stood and sacrificed more for South it is not necessary for me to talk toyou, where their rights? [Voice, "good," andcheers.] I have lived'and you have lived, and understand the It has been my peculiar misfortune always to have whole system, and how itoperates; we know how the fierce opposition, because I have always struck my slaves have been worked heretofore. Their original blows direct, and fought with right and the Constituowners bought the land and raised the negroes, or tion on my side. [Cheers.] Yes, I will come back purchased them, as the case might be; paid all the to the soldiers again in a moment. Yes, here was a expenses of carrying on the farm, and, in the end, neutrality law. I was sworn to support the Constiafter producing tobacco, cotton hemp and flax, and tion and see that that law was faithfully executed. all the various products of the Couth, bringing them And because it was executed, then they raised into the market without any profit to them, while a clamor & tried to make an appeal to the foreigners; these owners put it all into their own pockets. This and especially the Fenians. And what did they doi was their condition before the emancipation. This They introduced a bill to tickle and play with the was their condition before we about their " Moses." fancy, pretending to repeal the law and at the same [Cheers and laughter] time making it worse and then left the law just where Now what is the plan? I ask your attention. it is. [Voice-" That's so.]-They knew that whenCome, as we have got to talking on this subject give ever a law was presented to me, proper in its provisme your attention for a few minutes, I am address- ions, ameliorating and softening the rigors of the ing myself to your brains, andnot toyour prejudices; present law that it would meet my hearty approbato your reason and not to your passions. And when tion but as they were pretty well broken down and reason and argument.gain resume their empir this losing public confidence, at the heels of the session mist, this prejudice that has been incrusted upon the they found they must do something. And hene, publi minid must give way and reason become tri what did they do? They pretended to do something 230 for the soldiers. Who has done morefor thesoldiers our fields laid waste again, our business and comthan I have? Who has periled more in thisstruggle merce suspended and all trade stopped. Are you than I have? [Cheers] But then, to make them prepared to see this land again drenched in our their peculiar friends and favorites of the soldiers, brothers' blood? Heaven avert it, is my prayer. they came forward with a proposition to do what? [Cheers.] I am one of those who believe that man Why,wewill givethesoldier $50 bounty-$50 bounty- does sin, and havingsinned, I believe he must repent. your attention to this-if he has served two years; And, sometimes, having sinned and having repented and $100 if he has served three years. makeshima better man thanhe wasbefore. [Cheers.] Now, mark you, the colored man that served 2 I know it has been said that I have exercised the years can get his $100) bounty. But the white man pardoning power. Y-a-s, I have, [Cheers and must serve three before he can get his. [Cheers]. But "What aboutDrake'sconstitution?"] Y-a-s, Ihave, that is not the point. While they were tickling and and don't you think it is to prevail? I reckon I have attempting to please the soldiers, by giving them pardoned more men, turned more men loose and set $50 bounty for two years' service, they took it into them at liberty that were imprisoned, I. imagine, their heads to vote somebody else a bounty, [laughter] than apy other living man on God's habitable globe and they voted themselves not $50 for 2 years service; [Voice, "bully for you," and cheers.] Yes, I turned your attention-I want to make a lodgement in your forty-seven thousand of our men who engaged in this minds of the facts because I want to put the nail in, struggle, with the arms they captured with them, and having put it in, I want to clinch it on the other and who were then in prison, I turned them loose. side. [Cheers]. The brave boys, the patriotic young [Voice, "bully for you, old fellow," and laughter.] men who followed his gallant officers, slept in the Large numbers have applied for pardon, and I tented field, and periled his life, and shed his blood, have granted them pardon. Yet there are some who and left his limbs behind him and came home mangled condemn and hold me responsible forso'doing wrong. and maimed, can get $50 bounty, if lie has served 2 Yes, there are some who stayed at home, who did not years. But the members of Congress, who never go into the field on the other side, that can talk about smelt gunpowder, can get $4,000 extra pay. [Loud others being traitors and being treacherous. There cheering] are some who can talk about blood, and vengeance, This is a faint picture, my countrymen, of what and crime, and everything to " make treason odious," has transpired. [A Voice, "Stick to that question."] and all that, who never smelt gunpowder on either Fellow citizens you are allfamiliar with the work of side. [Cheers] Yes, they can condemn others and restoration. You know that since the rebellion col- recommend hanging and torture, and all that. If I lapsed, since the armies were suppressed on the field, have erred, I have erred on the side of mercy. Some that everything that could be done has been done of these croakers have dared to assume that they are by the executive department of the Government for better than was the Saviour of men himself-a kind the restoration of the Government. Everything has of over righteousness-better than everybody else, been done with the exception of one thing, and that and always wanting to do Deity's work, thinking he is the admission of members from the eleven States cannot do it as well as they can. [Laughter and that went into the rebellion. And after having ac- cheers] Yes, the Saviour of man came on the earth cepted the terms of the Government, having abol- and found the human race condemned and sentenced ished slavery, having repudiated their debt, and sent under the law. But when they repented and believed, loyal representatives, everything has been done, ex- he said, "Let them live." Instead of executing and cepting the admission of Representatives which all putting the world to death, he went upon the cross the States are constitutionally entitled to [Cheers] and there was painfully nailed by these unbelievers When you turn and examine the Constitution of the that I have spoken of here to-night and there shed United States, you canl find that you cannot even his blood that you and I might live. [Cheers] Thinlk amend that Constitution so as to deprive any State of it I To execute and hang, and putto death eight milof its equal suffrage in the Senate. [A voice, "They lions of people. [Voices, "never"] It is an absurdhave never been out."] It is said before me, "they ity, and such a thing is impracticable even if it were have never been out." I say so, too and they can- right. *But it is the violation of all law, human and not go out. LCheers] That being the fact, under the divine. [Voice, "hang Jeff. Davis."] You call on Constitution they are entitled to equal suffrage in Judge Chase to hang Jeff. Davis, will you? [Great the Senate of the United States, and no power has cheering] I am not the Court, I am not the jury, nor the right to deprive them of it, without violating the the judge. [Voice, "nor the Moses."] Before the Constitution. [Cheers]. And the same argument case comes to me, and all other cases, it would have applies to the House of Representatives. to come on application as a case for pardon. That -How, then does the matter stand? It used to be is the only way the case can get to me. Why don't one of the arguments, that if the States withdrew Judge Chase-Judge Chase, the Chief Justice of the their Representatives and Senators, that that was United States, in whose district he is-why don't he secession-a peaceable breaking up of the Govern- try him? [Loud cheers.] But, perhaps, I could anment. Now, the Radical power in this Government swer the question; as sometimes persons want to be turn around and assume that the States are out of facetious and indulge in repartee, I might ask you a the Union, that they are not entitled to representa- question, why don't you hang Thad. Stevens and tion in Congress. [Cheers.] Thatis to say, they are Wendell Phillips? [Great cheering.] A traitor at dissolutionists, and their position now is to perpetu- one end of the line is as bad as a traitor at the other. ate a disruption of the Government, and that, too, I know that there are some who have got their while they are denying the States the right of repre- little pieces and sayings to repeat on public occasentation, they impose taxation upon them, a prin- sions, like parrots, that have been placed in their ciple upon which, in the revolution, you resisted the mouths by their superiors, who have not the courage power of Great Britain. We deny the right of taxa- and the manhood to come forward and tell them tion without representation. That is one of our great themselves, but have their understrappers to do their principles. Let the Government be restored. I have work for them. [Cheers] I know there is some that labored for it. Now I deny this doctrine of secession, talk about this universal elective franchise upon come from what quarter it may, whether from the which they wanted to upturn the government of North or from the South. I am opposed to it. I am Louisiana and institute another; who contended that for the Union of the States [Voices, "that's right," we must send men there to control, govern, and manand cheers.] I am for thirty-six States, remaining age their slave population, because they are incomwhere they are, under the Constitution, as your petent to do it themselves. And yet theyturnround fathers made it, and handed it down to you. And if when they get there and say they are competent to it is altered, or amended, let it be done in the mode go to Congress and manage the affairs of State and manner pointed by that instrument itself, and [Cheers] Beforeyoucommencethrowingyourstones, in no other. [Cheers.] you ought to be sure you don't live in a glass house. I am for the restoration of peace. Let me ask this Then, why all this clamorl Don't you see, my counpeople here to-night if we have not shed enough trymen it is a question of power; and being in power blood: Let me ask, are you prepared to go into an- as they are, their object is to perpetuate their power? other civil war. Let we ask thispeople here to-night Hence, when you talk about turning any of them out are they prepared to set man upon man, and, in the of office, oh, they talk about "bread and butter." name of God, lift his hand against the throat of his [Laughter.) Yes,thesemen arethemost perfect and fellow. [Voice "Never"] Are you prepared to see complete' bread and butter party" that has over 231 appeared in this government. [Great cheering.] ultimately redress all wrongs and set the GovernWhen you make an effort, or struggle to take the ment right. Then, gentlemen, in conclusion, for the nipple out of their mouths, how they clamor! They cordial welcome you have given me in this great city have staid at home here five or six years, held the of the Northwest, whose destiny no one can foretell. offices, grown fat, and enjoyed all the emoluments of Now, [Voice: "Three cheers for Johnson,"] then, in position; and now, when you talk about turning one bidding you good night, I leave all in your charge, of them out, " Oh, it is proscription;" and hence they and thank you for the cordial welcome you have come forward and propose in Congress to do what? given me in this spontaneous outpouring of the peoTo pass laws to prevent the Executive from turning pie of your city." anybody out. [Voice, "Put'em out."] Hence, don't you see what the policy was to be? I believe in the JOSEPH A. DEAR sworn and examined. good old doctrine advocated by Washington, Jeffer- B Mr. Manager BUTLER: son and Madison, of rotation in office. These people who have been enjoying these offices Quesion. What is our business seem to have lost sight of this doctrine. I believe y that when one set of men havre enjoyed the emolu- Answer. Journalist. ments of office long enough, they should let another Question. How long has that been your portion of the people have a chance. [Cheers.] business How are these men to be got out- [Voice, "Kick'em out." Cheers and laughter] unless your Execu- Answer. Five years. tive can put them, unless you can reach them Question. Can you report speeches made? through the President? Congress says he shall not Answer. I am a short-hand writer as well.. turn them out, and they are trying to pass laws to Qestion Did you joine presidentil party prevent it beingdone. Well, let me say to you if you Question. Did you join te p'esidential party will stand by me in this action [Cheers,] if' you will when it went to St. Louis, via Cleveland? stand by me in trying to give the people a fair Answer. I did at Chicago on the 6th of Sepchance, soldiers, and citizens, to participate in those offices, God being willing, I will "kick them out" tember, 1866, I believe. just as fast as I can. [Great cheering.] Let me say Question. Were you with the presidential to you in concluding, what I have said, and I intended to say but little, but was provoked into this party at St. Louis. rather than otherwise, I care not for the menaces, Answer. I was. the taunts and jeers, I care not for the threats; I Question. Did you take a report of any of do not intend to be bullied by my enemies nor over- the speeches made there? awed by my friends [cheers]; but, God willing with your help, I will veto their measures whenever they Answer. I reported all the speeches made cometo me. [Cheers.] I placemyselfuponthe ram- there. parts of the Constitution, and when I see the enemy Qlestion. For what paper were you reportapproaching, so long as I have eyes to see, or ears to hear, or a tongue to sound the alarm, so help me God, ing? I will do it and call upon the people to be my judges. Answer. I was with the party as the corre[Cheers.] I tell you here to-night that the Constitu- spondent of the Chicag epblicn. I made tion of the country is being enchroached upon.dent of the Chicago Republican I made tell you here to-night that the citadel of liberty is the reports for the St. Louis Times. being endangered. [A voice-" Go it, Andy."] Question. Have you your notes of that reI say to you then, go to work; take the constitution as your palladium of civil religious liberty; takepor it as our chief ark of safety. Just let me ask you Answer. I have part of them. here to-night to cling to the Constitution in this Question. Was there speaking on the steamgreat struggle for freedom, and for its preservation, boat? as the ship-wrecked mariner clings to the mast when the midnight tempest closes around him. [Cheers] Answer. There was. So far as my public life has been advanced, the people Question. Did you report that speech? of Missouri, as well as of other States, know that my Answer. I did; part of it. Yes, I reported efforts have been devoted in that direction which would ameliorate and elevate the interests of the great that speech on the steamboat. mass ofthepeople. [Voice: "That's so"] Why,where's Question. Was that in answer to an address thespeech, where'sthevotetobegotofmine, butwhat of welcome by the mayor? has always had a tendency to elevate the great working classes of the people? [Cheers] When they Answer. I think thatwas a speech in answer talk about tyranny and despotism, where's one act to an address of welcome by Captain Eads. of Andrew Johnson's that ever encroached upon the? Whom did he rights of a ir.eeman in this land? But because I have stood as a faithful sentinel upon the watch tower of represent? freedom to sound the alarm, hence all this traduction Answer. I believe he represented a commitand detraction that has been heaped upon me. tee of citizens which et the [" Bully for Andy Johnson"] tee of citizens which met the party at Alton. I now, then, in conclusion, my countrymen, hand Question. How did you make this report? over to you the flag of your country with thirty-six Answer. By short-hand writing. stars upon it. I hand over to you your constitution with the charge and responsibility of preserving it Question. How soon did you write it out? intact. I hand over to you to-night the Union of Answer. That evening. these States, the great magic circle which embraces Question. How accurate is it where it purthem all. I hand them all over to you, the people, orts to be acc in whom I have always trusted in all great emer- toe accurate? gencies-questions which are of such vital interest- Answer. Itwasareportmadeforthe St. Louis I hand them over to you as men who can rise above Times; and, as a matter of course, reporting for party, who can stand around the altar of a com- per of str mon country with their faces upturned to heaven, paper of strong Democratic politics, I corswearing by Him that lives forever and ever that the rected inaccuracies of grammar. That is all. altar and all shall sink in the dust, but that the coifn'- Question. Have you since written that out stitution and the Union shall be preserved. Let us from your note stand by the union of these States, let us fight ene- your otes so far as you have the notes mies of the Government, come from what quarter Answer. I have. they may. My stand has been taken. You under- Question, (handing a manuscript to the stand what my position is, and in parting with you witness.) Look there and see if that is your now, leave the Government in your hands, with the witness. there and see if that is your confidence I have always had that the people will writing out from your notes? 232 Answer, (examining themanuscript.) This Mr. STANBERY. We willfirst cross-exis. amine the witness. Question. An exact transcript? Mr. Manager BUTLER. Certainly. Answer. An exact transcript. Question. So far as it goes, is it an accurate Cross-examined by Mr. STANBERY: report of the speech as delivered by Andrew Question. Was this copy of yours published Johnson? anywhere? Answer. With the exception I have men- Answer. Yes. tioned. Question. In what paper? Question. With the exception of inaccuracies Answer. In the St. Louis.Times. of grammar Question. What date? Mr. STANBERY. Is that the speech at the Answer. The Sunday following; I think the steamboat or the hotel? 9th. Mr. Manager BUTLER. At the Southern Question. State how much time it requires Hotel, on the balcony. They are both here; a short-hand writer to write out his notes in but I am now asking for the one at the balcony. what is called long-hand, compared with that The WITNESS. The first is the speech at the which is required in taking down the notation. Lindell Hotel. - Answer. We generally reckon the difference Question. The other, the one we are inquir- between the rates of speed in writing long-hand ing about, was at the Southern Hotel? and short-hand as about one sixth or one Answer. At the Southern Hotel. seventh. Mr. Manager BUTLER. I mistook. I saw Question. That is, it takes six or seven times the memorandum "'steamboat" there. [To as long to write out the speech as it does to the witness.] Now take the speech at the take the notes? Southern Hotel. So far as your report goes, Answer. No, sir. as I understand, it is an accurate report of the Question. How then? speech? Answer. There are frequently interruptions Answer. It is. in the course of a.speech; there are frequent Question. Why is it not all there? pauses of a speaker, and a great many things. Answer. I have lost part of my notes. Question. But suppose there are no pauses, Question. Whereabouts does it commence? but you are merely taking down the speech? Answer. The speech in my notes commences Answer. If a man talks steadily for two or abruptly in the middle of a sentence, " Who three minutes together, it will take from twelve have got the shackles upon their limbs, and to twenty minutes to write out what he may which are as much under control and will of say in three minutes time ordinarily. the master as the colored men who were eman- Question. That is, four times as long? cipated." Answer. Yes. Mr. HOWARD. Where was this speech Question. Suppose he speaks rapidly and made? excitedly? Mr. Manager BUTLER. At the Southern Answer. If he is a very fluent speaker it may Hotel, St. Louis. It is the same speech that take longer. has been read. [To the witness.] Will you Question. Of course there is a difference read, sir, where your report begins? between speakers as to that? Answer, (reading.) "Who have got the Answer. A very great deal of difference. shackles upon their limbs, and which are as Question. In a rapid speaker what is the promuch under control and will of the master as portion of time? the colored men who were emancipated. Answer. My last answer covers it; I cannot [Hisses and cheers.]' And I call upon you as say more precisely than that. ifreemen to advocate the freedom " — Question. Does the standard you give of four Question. That will do for the present., Does times as long apply to those who speak delibthe speech then go through? erately? Answer. It goes through to the end. Answer. Yes; I think that would. A man Mr. Manager BUTLER, (to the counsel could easily write out the remarks of a delibfor the respondent.) Gentlemen, you will see erate speaker in four times the length of time. that this report begins at about the top of the Question. What, then, is the proportion of first full column of the previous report after time in the case of a rapid speaker? the speech commences. [To the witness.] Answer. Some men speak about as high as Have you ever compared that with this paper? two hundred and thirty words a minute. A Answer. I do not know what " this paper" long-hand writer can write out about twentyis. eight or thirty words a minute steadily if he is Question. This paper is the St. Louis Dem- a' rapid penman and has no difficulty in readocrat. ing his notes. Answer. No, sir; I never have. Question. Then it ought to be from eight to Mr. Manager BUTLER. We offer this paper ten times as long for a rapid speaker? now in evidence; I do n.t care to read it. The Answer. About seven times as long. variations are not remarkable, Question. Twenty-eight to two hundred? 233 Answer. That is about seveni times. charge of having been a traitor, asked had he played Question. Then the long-hand writer who is " Judaa," to Thaddeus Stevens Wendell Phillips or,will get, in case of a rapid speaker, Charles Sumner, spoke of the majority in Congress reporting will get, in case of a rapid speaker, as "this same persecuting nefarious and diabolical one word in seven? clan" and referring to an interruption about "MoAnswer. If he attempts to write out in full. ses" said that there were other men in the country who claimed their sympathy besides colored men. Reexamined by Mr. Manager BUTLER: (Transcript of notes resumed.) * * * * who have got the shackles upon their limbs and Question. Do I understand you that the which are as much under control and will of the whole of your report of the speech was pub- master as the colored men who were emancipated (hisses and cheers) and I call upon you as freemen lished in the Times from all your notes? to advocate the freedom of the white man as well as Answer. Not the whole of it. the colored man. Ihave nothing tocomplain about Question. Was it condensed for that public- emancipation. I tried to do as much and have done as much as —and when they talk about Moses and ation? the promised land-where is the promised land that Answer. It was considerably condensed. these people propose to lead them to when they talk Question. Was Andrew Johnson a rapid about taking them out of America and sending them to other climes what is it they propose? Why it is speaker in the manner that he spoke? to give them a Freedman's Bureau and then what? Answer. Mr. Johnson is a very fluent speaker Why here in the South it is not necessary for me to and a very incoherent one. talk to you about the system and.how it operates. We know slaves have been worked here before. Question. Repeating frequently his words? Their original owners bought the land and bought Answer. Very frequently; very tautological, the negroes, paid all the expenses of carrying on the very verbose, farm and in the end after bringing the products to the market, if there was any profit on them these Question. Does that enable him to be taken men put it into their pocket. with more ease? I am not addressing myself to your passions, and when reason and argument again resume their sway Answer. it enables him to be taken with on the public mind this prejudice must give way and more ease. reason and argument become triumphant. Now let Question. Is it not within your experience me callyour attention to a single fact, the Bureau. that there are men who by practice in long- This slavery was an \accursed institution but after that there are men who by practice in long- emancipation took place the Congress here gave us hand by abbreviations can -follow very accu- our commissioners, gave us twelve millions of dollars, rately or quite accurately a speaker who spoke placed the power in the hands of the President or the Executive, who was to work this machinery with as Andrew Johnson spoke? the army to sustain it, and let us work the four milAnswer. I think they could give the sense lions of slaves. In fine the freedmen's Bureau was of his speech without doing him any injustice. a simple proposition to transfer the four million of slaves in the United States from their original ownQuestion. How was it, taking into considera- er to a new set of taskmasters. I had been laboring tion the interruptions, supposing such a writer for years to try and get them freed and I was opposed had been taking him from the balcony? to seeing them transferred to a new set of taskmasters to be worked with more rigor than before. Yes, Answer. He would have to indicate the in- under this new system they would work the slaves terruptions; he could not write them out. the government was to bear all the expense and if Question. But could he get the sense of what there was any profits left they would pocket them. So much for this question. I merely intended to the speaker was saying? tender you here tonight my thanks tonight as we Answer. Of the speaker, or the interruptions? go along and not to talk about this Congress that Question. Of the speaker. says the President is wrong because he vetoed the' freedmen's Bureau Bill, and because the President Answer. Yes, he could. exercised the veto power, he has committed a high By Mr. STANBERY: offence and therefore he ought to be impeached. (No) uestion. A long hand-writer may tae the Yes they are ready to impeach him and if they were satisfied of having as large a majority in the next sense and substance of a speech; that is, he Congress as this, they would upon some pretext of may take the sense and substance as to his violating some law or some provision of the consti, ideas of what are the sense and substance? tution they would vacate the Executive of the Unii deas of wha t ar ed t he msense and substance? ted States. As they talking about the soldiers letme Answer. Undoubtedly; he must rely on his call the attention of the soldiers to this immaculate own view of what was intended to be said. Congress, this Congress which can make war upon By Mr. Manager BUTLER:'upon the). By Mr. Manager BUTLER: the President because he stands bythe constitution Question. By dictating a report from the and exercises the veto power in behalf of the.people notes, with another person to write out, it can they dared to talk about impeachment be much more rapidly written out, can it not? By way of immortalizing themselves and increasbe much more rapidly written out, can it not? ing the confidence of the soldiers, throughout this ~.Answer. Yes, sir; at least one fourth.,country at one time they talked about impeachment. Mr. Manager BUTLER. I put this report (How about the Fenians?) (Laughter) So far as in evidence. I do not propose to read it. the Fenians are concerned let me ask any Fenians, if there are any here to-night, to go back to my hisMr. STANBERY. Let it be printed. tory and say who in the dark days of Kfow-nothingMr. Manager BUTLER. Certainly. ism, stood and made more sacrifice for their rights. The report made by the witness, Joseph A, It has been my peculiar misfortune always to have fierce opposition because I have always struck my Dear, is as follows: blows direct and fought with the right, and Constitution on my side. Yes here was the law of neutrality Speech from balcony of Southern Hotel. and I was sworn to support the Constitution and see After a few words of thanks Mr. Johnson was in- that law faithfully executed (" Why didn't you do terrupted with inquiries " about New Orleans" and it?") The law was executed, and because itwasexein reply he charged the responsibility of that riot on cuted they raised a clamor and made an appeal to Congress, saying it was certainly planned and that the Fenians and they pretended to repeal the law, every drop of blood shed in it rested on the skirts of but left it just as it was. They knew that wheneve the Radical Congress, defended himself from the a law was presented to me proper in its haraoter 234 tand softening the provisions of the present law it pardoning power: Yes, I have (cheers) And I reckon would meet my hearty approbation. But, to return I have pardoned more men than any other man to the soldier, as they were pretty well broken down living on the habitable globe. Yes, I turned fortyand losing confidence at the end of secession, they seven thousand of our men, who were engaged in thought they must do something for the soldier. this struggle, who were in prison with the arms we What did they do? Who has done more for the captured-Iturnedthem loose. Large numbers have soldier than I have? who has sacrificed more for applied for pardons and thus I have granted pardons the soldier than I have? But they to make them to some. But by some I am attempted to be held the friends of the soldier they come forward with a responsible for doing wrong. Yes, there are some proposition-to do what? To give to the soldier who stayed at home and did not go into the field who fifty dollars ($50) bounty if he has served two (2) years, call out about blood and punishment and making one hundred dollars ($100) if he has served three (3) treason odious and all that (Laughter) who never years. Now markthis. Thecolored manthatserved smelledgunpowderontheotherside. Yes they would twoyearscanlgethisonehundred($100)dollarsbounty, condemn and they would hang and torture and all but the white man must serve three for his. that and they that make the comparison-but if I But that is not the point. While they were tick- have erred I have erred on mercys side and some of ling and attempting to please the soldier by giving these croakers assume to setup that they are better him fifty ($50) dollars for two (2) years services they than the Saviour of mankind, himself-a kind of tookitinto their head to give somebody else a bounty, over righteousness-thinking they are better than.not of fifty ($50) dollars for two years services-now, anybody-else and are always wanting to do the attention I as I want to make an impression on your Deity's work, thinking they can do better than he minds of the facts-When, the brave boy who has can. Yes, the Saviourcame and foundman sentenced followed his gallant Officer, who slept on the tented and under the law but when they repented he said field, who perilled his life, shed his blood and left his " let them live." Instead of putting them to death limbs behind him, he can get fifty ($50) dollars bounty he went upon and was there painfully nailed by those if he has served two years, but the Member of Con- unbelievers that I have spoken of and there shed gress who never smelt gunpowder can get four thous- his blood and died that you and I might live. Will and dollars ($4,000) extra pay (Loud Cheers) That you execute and put to death eight million of peois a true picture my countrymen 6f what has trans- ple? It is an absurdity and is impracticable even pired in the past. Fellow citizens you are all famil- if it were right, but it is a violation of all law human iar with the work of restoration; you know that ever and divine. (Hang Jeff Davis.) since the rebellion collapsed everything has been You call on Judge Chase to hang Jeff. Davis; will done that could be done by the Executive department you? (Laughter.) I amL not the court, I am not the of the Government-in fact, all has been done except Jury nor the Judge. Before the case comes to me, the admission of the members of the eleven States and all other cases, it would have to come as a case that went into rebellion, but having laid down their or application for pardon. That is the only way alms, abolished slavery, repudiated their debts and. cases can come before me. Why don't Judge Chase, sent loyal representatives, everything has been done Chief Justice of the United States-in whosedistrict except the admission of the representatives which he is-why don't he try him? But perhaps I can all the States are constitutionally entitled to. When answer the question, and as sometimes people will you examine the Constitution of the United states be facetious and indulge in repartee, I might ask you will find that you cannot refuse to any state its you a question-why dont you hang Thad Stevens, suffrage in the Senate (They have never been out) and Wendell Phillips? [Hisses, Laughter, and That's so l and I have always said they could not go Cheers.] I say that a traitor at one end of the line out (cheers) and that being so they are entitled to is as bad as a traitor at the other. 1 know men on their equal suffrage in the United States Senate, and some occasions who repeat sayings that have been no power has the right or can deprive them of it placed in their mouths by their superiors. who have without violating the Constitution of the United not the courage to come forward and say themselves, States. And the same argument applies to the Rep- but have their understrappers come forward. I know resentatives in the House. It used to be said that there are some who talk about the elective franchise when the states refused to send their representatives for which they wanted to overturn the Government that that was secession, a breaking up of the Union. of Louisiana, who say, "We must make contracts Now the Radical party have turned round and say and send men to these colored people and manage that the States are not entitled to representation in their affairs for them, and yet say they are compeCongress. That is to say they are dissolutionists and tent to go to Congress and and manage affairs of state. their position nowis to perpetuate the dissolution of Before you commence throwing your stones you the Union and that too while they deny the right of ought to be able to say that you doent live in glass representation they impose on them taxation-a houses. Then why all this clamor? Dont you see, principle upon which in the revolution your fathers my countrymen, it is a question of power and resisted the power of Great Britain. We deny the being in power it is their object to perpetuate their right of taxation without representation-this is one power. Hence when you turn any of them out of of the great principles of ourgovernment. (Cheers.) Office they talk about" breoad and butter." Yes, it Let the government be restored, let peace be restored. is the most perfect and complete bread and butter Many years I have labored for and I am for it now. party that has ever appeared in this government, I deny this doctrine of secession come from whatever and hence when you make an offer to take a single quarter it may, whether from the North or South. I piece out of their mouths how they clamor. The am opposed to it. I am for the Union of these states man who has stayed at home four or five or six years for the thirty six stars representing thirty six states and grown fat and indulged in all the emoluments remaining where they are. I am for the Constitu- of office and grown rich, when you talk about turntion as our fathers have made it and handed it down ing one of them out it is "proscription," -and hence to us and if it is altered or amended let it be done in it is one of the objects of the Congress of the United the mode appointed for it by that instrument itself States to pass a law preventing the Executive from and in no other. I am for the restoration of peace. turning any one out. (Turn them all out.) Hence, Let me ask this people here tonight if we have not dont you see what the policy was to be. shed enough blood. Let me ask this people here to- How were the people to get hold of the offices. The night, are you prepared to go into, to gointo, another idea of rotation in office of the days of Madison and civil war? (No.) Let me ask this people here to- Jefferson seems to be lost sight of; bu' my belief is night: are they prepared to set Man upon man and that when one set of men have been in long enough in the name of God liftup hishand against the throat it is time somebody else should have a turn, How of his brother? Are you prepared to see our fields are these men to be turned out? (Kick them out) again laid waste our commerce and business sus- How is this to be done unless you can reach them pended and all trade stopped? Are we prepared to through the Executive. Congress proposes to pass see this land that gave a brother birth, drenched in laws to keep them in, How is this to be done unless a brothers blood? I am one of those who believe it is by the President of the United States. Well let that a man May sin and that a man May repent and me say to you, if you will stand by me in vindication sometimes that having sinned & having repented it of the constitution of the United States in trying to makes him a better man than before, (Cheers.) give the soldiers and people a chance, I will kick I know it has been said that I have exercised the them out as fast as I can (Loudcheers). I care not for 235 the menaces, for the taunts, the jeers, the threats. I Question. That is to say, if I understand, the don't intend to be bullied by my enemies or even commissions of officers in the Treasury are overawed by my friends but God being willing with your belp Iwillveto every measure of theirs whenever prepared at your Department? they come before me. I place myself on the ram- Answer. Yes, sir; of a portion of the officers parts of the constitution and when I see the enemy of the Treasury approaching so long as I have eyes to see or ears to o e re asury. hear or a tongue to sound the alarm so help me God Question. Such as whom? I will do it and call for you to the rescue (Loud Answer. Such as Comptrollers, Auditors, cheers). countellryou here to-night that the constitution Treasurers, Assistant Treasurers, officers of the of the country has been encroached upon, the citadel of liberty is being endangered (Go in Andy I) Come Mint, Commissioner of the Revenue. up to the work and protect your constitution as the Question. Secretary and Assistant Secretary? palladium of our civil and religious liberty for it is Answer. Yes, sir. the ark of our safety. Yes let me ask you to cling to the constitution in this great struggle for freedom Question. Then, after being prepared, they as the shipwrecked mariner clings to the plank in are sent to the Treasury? the night when the tempest.fiows around him. So Answer. Yes, sir. far as my public life is concerned the people of Mis- uestiower. Those that belong there? souri know that my efforts have been in that direc- Question. Those that belong there? tion which would elevate the great masses of the Answer. Yes, sir. people. Where is the speech or vote of mine but Question. Those belonging to your office are what has always had a tendency to elevate the great masses of the people and when they talk about issued from your office? tyranny or despotism where is one act of Andrew Answer. From the Department of State. Johnson's that has encroached upon the rights of a Question. Now, will you have the kindness freeman. But because I have stood upon the outworks of to tell us whether, after the passage of the civil freedom and have sounded an alarm hence all this tenure act, any change was made in the corndetraction that has been heaped upon me. Then in missions of the officers of your Department to conclusion here to-night I hand over the flag of your country with thirty-six stars upon it. I hand over conform to that act? the constitution of your country with the charge and Answer. There was. responsibility of preserving it intact. I hand over Question. What was that change? Tell us to you to-night the great circle of these states. I hand them over to you, the people; I must I have how the commission ran in that regard before always trusted the people. The great questions which and how it has been since? pertain to your interest I hand them over to you Answer, (ref forms.) The formof with the charge to preserve them as men who can rise above party & come around the altar of a com- the old commission was " during the pleasure mon country & with faces upturned to heaven swear of the President of the United States for the by him and all shall sink into the dust but that the time being." Those words have been stricken constitution shall be preserved. Let us stand up for n Te words e e tin the Union of these States, let us fight the enemies out, and the words "subject to the conditions of the government come from whatever quarter they prescribed by law " inserted. may. You understand what my position is-no tyr- Question. Does that apply to all commis anny-and with you to-night. I leave the Union inall commi your hands with the confidence I have always had sions? that the people will redress all wrongs and set the Answer. That applies to all commissions. government right. Then gentlemen of this great Question. hen was that done? city of the Western States in bidding you farewell I Question. When was that done? leave all in your charge and thank you greatly for Answer. Shortly after the passage of the the cordial welcome you have given me to your city tenure-of-office act. (Loud cheers). JOSEPH A. DEAR. Question. About how soon, if you can tell us, ROBERT S. CHEW sworn and examined. one month or ten days? By IMrr. Manager BUTLER: *Answer. I cannot say exactly, but when the first case came up, making it necessary for the Question. You are employed in the State commission clerk to prepare a commission, he AnDeswartment? am. applied for instructions under that act. uAnswers. In am. capacity? Question. Was the subject then examined in Question. In what capacity? the Department? Answer. Chief clerk. Answer. It was. Question. Is it part of your duty to super- Question. Was this change made after that vise and know the commissions issued. examination or before? Answer. The duty devolves particularly upon Answer. After the examination. the commission clerk of the Department to Question. Was it made by the direction of prepare all commissions. The commission is the Secretary or not? first made out by a clerk who is called the com- Answer. The case was submitted by the Secmission clerk of the Department. It is brought retary to the legal examiner, and upon his opinto me, and by me sent to the President. When ion the change was made. returned with the President's signature it is Question. By order of the Secretary? submitted by me to the Secretary of State, Answer. I think so. who countersigns it. It then goes to the com- Question. You print the form of your commission clerk for the seal to be affixed. missions on parchment by copper-plate, do you Question. Then, when it does not belong to not? your Department, where does it go-when it Answer. Yes, sir. is not a commission of an officer in your De- Question. Wasthe copper-platethen changed partment? to make all forms? Answer. To the Treasury. Answer. It was. 236 Question. For the various kind of commis- that act been issued to a head of Departsions? ment? Answer. Yes, sir. Answer. I am not aware of any. I brought Question. Have you blank forms of the vari- no forms of commission to a head of Departous kinds of commissions issued by your ment', and did not examine that question. Department? Question. Have you a separate plate for the Answer. I have. [Producing a number of commission of a head of Department? blank forms.] Answer. I cannot answer that question. Question. Prior to the passage of the act of Question. But you recollect no instance in the 2d of March, 1867, being the tenure of which any change has been made there? civil-office act, were all the commissions issued Answer. I do not. to hold office " during the pleasure of the Pres- By Mr. Manager BUTLER: ident forthe time being?" Were they all issued Question. Has there been any commission in that form? issued to a head of Department since March 2, Answer. They were all issued in that form. 1867? Question. Since this change have all com- Answer. I do not recollect at this momissions been issued in the changed form? ment. Answer. They have been. Mr. Manager BUTLER. Then, of course, Question. Have such changed commissions there is no change. been signed by the President? Mr. STANBERY. Of course not; that is Answer. They have been. what we have proved. Question. Has there been, down to to-day, Mr. Manager BUTLER, (to the witness.) any other change than the one you have stated? Hand to the Clerk all the forms you have Answer. None at all, that I am aware of. brought with you. We offer them in eviQuestion. Has any commission whatever for dence. any officer been sent out from your Department The forms offered in evidence are as folsince the passage of the act, except in this lows: changed form? Temporary Commission of Deputy Postmaster-Old Answer. I am not aware of any. Form. In the form now used, the words in brackets Questions. Could there have been, except are omitted, and the words "subject to the conditions by accident, without your knowing it? prescribed by law" inserted. Answer. Not unless by accident. President of the United States of America Mr. Manager BUTLER, (to the counsel for To all who shall see these presents, greeting: the respondent.) I now propose, gentlemen, Know ye, that, reposing special trust and confito offer these forms in evidence, but I will not dence in the integrity, ability, and punctuality of read them unless you desire. - -, I do appoint deputy postmaster Mr. STANBERY. You will allow us to and do authorize and empower him to execute and fulfill the duties of that office according to law; ask some questions first, I suppose. and to have and to hold the said office, with all the Mr. Manager BUTLER. Certainly. powers, privileges, and emoluments to the same of right appertaining unto him the said - - [durCross-examined by Mr. STANBERY: ing the pleasure of the President of the United States for the time being, and] until the end of the next Question. Mr. Chew, as I understand you, session of the Senate of the United States, and no the old form contained this clause, "said longer. ofcer to Inold and exercise the ofice durng Itestimony whereof I have caused these letters officer to hold and exercise the office during to be made patent, and the seal of the United States the pleasure of the. President of the United to be hereunto affixed. States for the time being." That was the old Given under my hand, at the city of Washington, form? the - day of -, in the year of our Lord fAnswrer. Yes, sir. [L.,.] one thousand eight hundred and -, and Answer. Yes, sir. LL 23'J of the independence of the United States of Question. And I understand you that the America the words " during the pleasure of the President By the President: of the United States for the time being" are now left out, and the words " subject to the Secretary of State. cQnditions prescribed by law" are inserted? Answer. Yes, sir. INew Form Permanent Postmaster-No Form of old Answer. Yes, sir. Commission in the Department. Question. Have you ever changed one of your plates or forms so as to introduce in place President of the United States of America: of what was there before these words, "to To all who shall see these presents, greeting: hold until removed by the President, with the Know ye, that, reposing special trust and confiof the Senate?" dence in the integrity, ability, and punctuality of consent of the Senate?"., I have nominated, and by and with the Answer, No, sir. advice and consent of the Senate do appoint, - Question, You never have? deputy postmaster, and do authorize and emAnswer. We never have, power him to execute and fulfill the duties of that lAnswer. We never have. office according to law; and to have and tohold the Question. Let me ask you if any commission said office, with all thepowers, privileges, and emol-,s8 been issued to a head of Department differ- uments to the same of right appertaining unto him, the said, for the term of, subbject to ent-from those that you issued before the ten- the conditi ons precribed by of sw.ect to ure-of.office act? Has any commission since In testimony whereof I have caused these lItters 237 to be made patent, and the seal of the United States [This commission is used for attorneys and hereunto affixed. marshals. The term of service is four years. Given under my hand, at the city of Washington, the - day of —, in the year of our Lord The words "unless the President of the UniL. one thousand eight hundred and -, and of ted States for the time being should be pleased the independence of the United States of to revoke and determine this commission" are America the. *America the-. - now stricken out, and the words "subject to By the President: the conditions prescribed by law" are inserted. ] Secretary of State. Secretary[ of State. Form of Commission for Judges. Answers for per[Postmasters are appointed for four years. manent or temporary. The words " unless the President of the United States for the time being should be pleased President of the United States of America: sooner to revoke and determine this commis- To all who shall see these presents, greeting: ioonv are t ow r omitted, and the words " subject Know ye, that reposing special trust and confidence sion," are now omitted, and the words "subject in the wisdom, uprightness, and learning of-. to the conditions prescribed by law" inserted.] —, I do authorize and empower him to execute and fulfill the duties of that office according to Netw Form Temporary Comnmission of Miarshal and At- the Constitution and laws of the United States, and touney. In Commst issons ofea 1bct 1 Ms "adiligence" isto have and to hold the said office with all the powers, Eused int ead of l geatrnting." privileges, and emoluments to the same of right appertaining unto him the said - -. P esident of the United States of Asmerica: In testimony whereof I have caused these letters To all who shall see these presents, greeting: to be made patent, and the seal of the United States Know ye, that reposing special trust and confidence to be hereunto affixed. in the integrity, ability, and learning of - —, Given under my hand, at the city of Washington, I do appoint him to be Attorney of the United States the - day of in the year of our Lord for the --, and do authorize and empower him to [L. S.] -, and ofthe independence of the United execute and fulfill the duties of that office according States of America the to law; and to have and to hold the said office, with all the powers, privileges, and emoluments thereunto By the President: legally appertaining unto him, the said - [until the end of the next session of the Senate of the Secretary of State. United States, and no longer;] subject to the condi- [In case of judges of Territories the words tions prescribed by law. ii In testimony whereof I have caused these letters ubject to the conditions prescribed by law," to be made patent, and the seal of the United States are inserted. This commission is used for to be hereunto affixed. judges of the Supreme Court of the United Given under my hand, at the city of Washington,dges of district courts and Territo the - day of —, in the year of our Lord iStates, judges of district courts and Territothe - day of —, in the year of our Lord E ] one thousand eight hundred and -, and of ries, and is temporary or permanent, as the the independence of the United States of case may be.] America the -- Form of New Commnission of Secretaries of Legation By the President: used either in the recess or session of the Senate. Secretary of State. ~ | President of the United States of America: To -, greeting: [Old form: " Duringthe pleasure ofthe Pres- Reposing special trust and confidence in your inident of the United States for the time being, tegrity, prudence, and ability, I do appoint (or nomiand until the end of the next session of the Sen- nate) - secretary of the legation of the United States of America -, authorizing you, ate of' the United States and no longer, " instead hereby, to do and perform all such matters andthings of the words in brackets in the above form.] as to the saidplaceoroffice dothappertain,orasmay be duly given you in charge hereafter, and the same New Form-Permanent Marshals and Attorneys. to hold and exercise, subject to the conditions prescribed by law. President of the United States of America In testimony whereof I have caused the seal of ToPreho sidsent theUnited Statesento greetic: the United States to be hereunto affixed. To all 2who shall see these presents, greeting: I GGiven under my hand, at the city of Washington, Know ye, that, reposing special trust and confi- the - day of —, in the year of our Lord one dencein the integrity, ability, and --, I have thousand eight hundred and —, and of the nominated, and, by and with the advice and consent [L. S.] independence of the United States of America of the Senate, do appoint him of the the - United States in and for the - -, and do authorize and empower him to execute and fulfill the By the President: duties of that office according to law; and to have and to hold the said office, with all the powers, priv- Secretary of State. ileges, and emoluments to the same, of right appertaining unto him, the said -- for the term [The "words during the pleasure of the of --, subject to the conditions prescribed President of the United States for the time by law. being were formerly used. In testimony whereof I have caused these letters to be made patent, and the seal of the United States Old Temporary Consular Commission. to be hereunto affixed. Given under my hand, at the city of Washington, The President of the Usited States of America: the - day of —, in the year of our Lord To all who shall see these presents, greeting: [. ] one thousand eight hundred and -, and of Know ye, that reposing special trust and confithe independence of the United States of dence in the abilities and integrity of —--- —, Ido America the -. appoint him consul of the United States of America - -- and such other parts as shall be nearer thereto By the President: than to the residence of any other consul or vice consul - -of the United States, within the same allegiance; and Secretary of State. do authorize and empower him to have and to hold 238 the said office, and to exercise and enjoy all the rights, Form of Commissions used for Governors, Secretaries preeminences, privileges, and authorities tQ the same of Territories, and officers under the supervision of of right appertaining, [duringthe pleasure ofthe Pres- other Departments, &tc., either permanent or tempoident of the United States for the time being, and] rary, as the case may be. until the end of the next session of the Senate of the United States, and no longer, he demanding and re- President of the United States of America: ceiving no fees or perquisites of office whatever which shall not be expressly established by some law of the To all oho shall see these presents, greeting: United States. And I do hereby enjoin all captains, Know ye, that reposing special trust and confidence masters, and commanders of ships and other vessels, in the integrity and ability of - -, I do aparmed or unarmed, sailing under the flag-of the said point him —, and do authorize and empower him States, as well as all other of theircitizens, to acknowl- to execute and fulfill the duties of that office accordedge and consider him, the said,- - accord- ing to law, and to have and to hold the said office, with ingly. And I do hereby pray and request —, gov- all the powers, privileges, and emoluments thereernors and officers, to permitthe said fuilly unto of right appertaining, unto him, the said and peaceably to enjoy and exercise the said office without giving, or suffering to be given unto him, any In testimony whereof I have caused these letters molestation or trouble; but, on the contrary, to afford to be made patent, and the seal of the United States him all proper countenance and assistance; I offer- to be hereunto affixed. ing to do the same for all those who shall, in like Given under my hand, at the city of Washington, manner, be recommended to me by. the - day of —, in the year of our Lord one In testimony whereof I have caused these letters to thousand eiht hundred and -, and of the be made patent, and the seal of the United States to [L. S] i ndendence of the United States of America be hereunto affixed. the Given under my hand, at the city of Washington, the - day of —, in the year of our Lord one By the President: r Ij thousand eight hundred and -, and of the - - independence ofthe United States of America Secretary of State. the —. Ely the President: Form of Old Commission of Permanent Ministers Pleni- potentiary issued as far back as 1790. Secretary of State. President of the United States of America [The words in brackets have been omit- To — -, greeting: ted since the passage of the tenure-of-office Reposing special trust and confidence in your inacts.] tegrity, prudence, and ability, I have nominated, and by and with the advice and consent of the Senate do Netw Permanent Consular Comlmissons. appoint, envoy extraordinary and minister plenitfhe President of the United States of America: potentiary of the United States of America -, To all eho shall see these p-esents, greeting: authorizing you hereby to do and perform all such Know ye, that reposing special trust and confi- matters and things as to the said place or office doth dence in the abilities and integrity of -, I appertain, or as may be duly given in charge herehave nominated, and by and with the advice an after, and the said office to hold and exercise during consent of the Senate do appoint him _ _ ofand the pleasure of the President of the United States consent of the Senate do appoint him, -, of the United States of America being. ahe United States of Americ a a ndsuhotheivingIn testimony whereof I have caused the seal of the parts as shall be nearer thereto than to the residence In testimony whereof I have caused the seal of the United States to be hereunto affixed. of any other consul or vice consul of the United States within the same allegiance; and do authorize Given under my and, at the city of Washington, and empower him to have and to hold the said-, in the year of our Lord one office, and to exercise and enjoy all the rights, pre- [L., thousand eight hundred and -, and of the eminences, privileges, and authoritiesto the same ofependence of the United States of Amer right appertaining, subject to the conditions pre- the b - Scribed by law; the said demanding Byctha President: and receiving no fees or perquisites of office whatever which shall not be expressly established by some law of the United States. And I do herebyry of State. enjoin all captains, masters, and commanders of ships and other vessels, armed or unarmed, sailin he words during the pleasure of the under the flag of the said States, as well as all other President of the United States for the time of their citizens, to acknowledge and consider him being" are now stricken out and the words the said accordingly. And I do hereby pray subject to the conditions prescribed by law" and request, governors and officers, to permit the said fully and peaceably to enjoin and inserted. The same with commissions for exercise the said office without giving, or suffering ministers resident and secretaries of legato be given untohim, any molestation or trouble; tion 1 but, on the contrary, to afford him all proper countenance and assistance; I offering to do the same Forc of Old Comnoision of Ministers Resident, perma,for all those who shall in like manner be recom- nent or temporary, and is used for temporary commismended tome by sions of Envoys Extraordinary and inisters PleniIn testimony whereof I have caused these letters potentiary. to be made patent, and the seal of the United States to be hereunto affixed. Given under my hand, at the city of Washington, President of the United States of America: the -day of -, in the year of our Lord one To -- --, greeting: lbousandd eight hundred and -ates and of the Reposing special trust and confidence in your inithe -edec othUntdSaeofA r tegrity, prudence, and ability, I, --, of thie United States of America, --—, authorizing ByI~ the Presiden~t: gyou hereby to do and perform all such matters and things as to the said place or office doth appertain or Secrec9 ~ of Sate.as may be given you in charge hereafter, and the said office to hold and exercise [during the pleasure leretofore this commission read during f the President of the United States for the time the pleasure of the President of the United I testimony whereof I have caused the seal of States for the time being."] the United States to be hereunto affixed. 239 Given under my hand at the city of Washington Schedule A. the - day of -, in the year of our Lord one List of removals of heads of Departments made by thousa eendce oeigthe Un ited States of Am era the President at any time during the session of the the Senate: ay the resident: Timothy Pickering, Secretary of State, removed................'May 13, 1800. Secreta'v of State. That is the whole of schedule A. Then comes [If used as a temporary commission, the Schedule B. words used in place of those in brackets are List of appointments of heads of Departments " until the end of the next session of the Sen- made bythe President at anytimeduring the session ate of the'United States, and no longer."] of the Senate: Timothy Pickering, Postmaster General, June 1, 1794. Examination of ROBERT S.'CHEW resumed. Samuel L. Southard, Acting Secretary of the TreasBy Mr. STANBERY: ury, January 26, 1829. Question. Mdr. Chew,,how long have yi ~Asbury Dickins, Acting Secretary of the Treasury, Question. Mr. Chew, how long have you March 17, 1832 been Chief Clerk? John Robb, Acting Secretary of War, June 8,1832, Answer. Since July, 1866. and July 16,1832. Question. How long have you been in the McClintock Young, Acting Secretary of the TreasQuestzion. How long have you been iln the ury, June 25, 1834. Department of State? Mahlon Dickerson, Acting Secretary of War, JanAnswer. Since July, 1834. uary 19, 1835. C. A. Harris, Acting Secretary of War, April 29, Question. That is, you have been there 1836. thirty-four years? Asbury Dickins, Acting Secretary of State, May19, Answer. Yes, sir. 1836. C.. A. Harris, Acting Secretary of War, May 27,1836. Question. In all that time before this change McClintock Young, Acting Secretary of the Treasdid commissions run in this way " during the ury, May14, 1842, and June 30,1842, and March 1,1843. pleasure of the President?" John Nelson, Acting Secretary of State adinterim., Answer. They did. February 29, 1844. Anszwer. They did. McClintock Young, Acting Secretary of the TreasBy Mr. Manager BUTLER: ury, May 2, 1844. Question, (handing a written paper to the Nicholas P. Trist, Acting Secretary of State, March witness.) I suppose you know Mr. Seward's McClintock Young, Acting Secretary of the Treashandwritiig? ury, December 9, 1847. _.4nswer. I do. John Appleton, Acting Secretary of State, April 10, 1848. Question. Is the letter I have just shown Archibald Campbell, Acting Secretary of War, May you signed by him? 26, 1848. Answer. It is. John McGinnis, Acting Secretary of the Treasury, June 20,1850. Mr. Manager BUTLER, (to the counsel Winfield Scott, Acting Secretary of War adinterim, for the respondent.) I offer now, gentlemen, July 23, 1850. a list prepared by the Secretary of State, Mr. William S. Derrick, Acting Secretary of State, December 23, 1850, and February 20, 1852. Seward, and sent to the Managers, of all the William L. HIodge, Acting Secretary of the Treasappointments and removals as they appear in ury. February 21, 1852. the State Department of officers from the be- William Hunter, Acting Secretaryof State, March 19,1852. ginning of the Government. William L. Hodge, Acting Secretary of the TreasMr. STANBERY and Mr. CURTIS. Of ury, April 26, 1852. all officers? William Hunter, Acting Secretary of State, May 1, 1852. Mr. Manager BUTLER. Of heads of De- William L. Hodge, Acting Secretary of the Treaspartments. It is accompanied with a letter ury, May 24 1852, and June 10, 1852. mply describing the list whic I will read, as William Hunter, Acting Secretary of State, July 6, simply describing the list which I will read, as1852. mere inducement. John P. Kennedy, Acting Secretary of War, August Mr. CURTIS. We have no objection. 19,1852. Mr. Manager BWUTLER. I will read it: uWilliam L. Hodge, Acting Secretary of the Treasr. anager BUTLER. will read it ury, August 27,1852, and December 31,1852, and JanDEPARTMENST OF STATE, uary 15, 1853. a TYWASHINGTON, March 26, 1868. William Hunter, Acting Secretary of State, March 3, 1853. SIR: In reply to the note which you addressed to Archibald Campbell,ActingSecretary of War, Janme on the 23d instant, in behalf of the House of uary 19, 1857. Representatives in the matter of the impeachment Samuel Cooper, Acting Secretary of War, March of the President, I have the honor to submit here- 3, 1857. with two schedules, A and B. Philip Clayton, Acting Secretary of the Treasury, Schedule A presents a statement of all removals May 30, 1860. of the heads of Departments made by the President Isaac Toucey, Acting Secretary of the Treasury, of the United States during the session of the Senate December 10, 1860. so far as the same can be ascertained from the records Thomas A. Scott, Acting Secretary of War, August of this Department. 2,1861. Schedule B contains a statement of all appoint- George HIarrington, Acting Secretary of the Treasments of heads of Departments at any time made ury, December 18, 1861. by the President without the advice and consent of F. W. Seward, Acting Secretary of State, January the Senate, and while the Senate was in session, so 4, 1862, and January 25, 1862, and February 6,1862, far as the same appears upon the records of the De- and April 9, 1862. partment of State. George Harrington, Acting Secretary of the TreasI have the honor to be, very respectfully, yourobe- ury, April 11, 1862, and May 5, 1862. dient servant, WILLIAM H. SEWARD. I William Hunter, Acting Secretary of State, May Hon. JoHN A. BINGHAM, Chairman. 14,1862. 240 George Harringten, Acting Secretary of the Treas- Mr. EVARTS. That is the fact, as we supurn, May 19,1862. pose-what the authority or the form of au~. W. Seward, Acting Secretary of State, June 11, thprity wast 1862, and June 30, 1862. George Harrington, Acting Secretary of the Treas- Mr. Manager BUTLER. I am asking now ury, January 8, 1863. from whence and by whom issued; whether F. W. Seward, Acting Secretary of State, Decem- the letter, whatever may be its form, came diber 23, 1863, and April 11, 1864., George llarrington, Acting Secretary of the Treas- rectly from the head of the Department to the ury, April 14,1864, and April 27, 1864, and June 7, Chief Clerk, Mr. Hunter, or to Mr. Appleton, 1864, and June 30, 1864. the chief clerk I believe-whether it F. W. Seward, Acting Secretary of State, January who was the chief clerk, I believe-whether it 4, 1865, and February 1, 1865. came directly from the head of the DepartGeorge Harrington, Acting Secretary of the Treas- ment or from the President. ury, March 4, 1865. Mr. EVARTS. The objection we make is William E. Chandler, ActingSecretary ofthe Treas- Mr. EVARTS. The objection we make is r December 20,1865. that the letter of authority shows from whom W. Seward, Acting Secretary of State, May 15, it came, and is the best evidence of from whom 1866. William E. Chandler, Acting Secretary ofthe Treas- it came. ury, December 20, 1866. Mr. Manager BUTLER. Suppose it should John T. Hartley, Acting Secretary of the Treasury, happen to turn out that there was not any September 16, 1867 and November 13, 1867. F. W. Seward, Acting Secretary of State, March letter? 11, 1868. Mr. EVARTS. Then you would be in a situation where you could prove it by some title of the last schedule which has just been other evidence. The question is in regard to title of the last schedule which has just been letters of authority. read. Will the Manager read it again? lettrManagers of authority. Mr. Manager BUTLER. " List of appoint- Mr. Manager BUTLER. I am asking from.anager E.. is o.appoin- whom the authority proceeded, because I do ments of heads of Departments made by the who proceeded, because do President at any time during the session of the not know now to whom to send to ask to pro duce the letter until I find out who wrote it. Senate." [Tothewitness.] Youtold us,I Mr. The CHIEF JUSTICE, (to the witness.) Chew, how long you had been in the State Were any authorities given except in writing Department. How long was that? and by letter? Answer. I was appointed in July, 1834. The WINE. Only in writing Question. We see by the list that there have Mr. Manager BUTLER. I again say, sir, been certain appointments of Acting Secre- that I am not able to know whom to sen to taries of State; tell us under what circum- until I can ask from whom those letters came. stanceslthey were made? until I can ask from whom those letters came. stances they were made? That is competent always. er. STANBERYe. We must ask that that The CHIEF JUSTICE. You can ask where question be repeated. the papers are: where these writings are preMr. Manager BUTLER. I will repeat the served? question. [To thewitness.] There are in the Mr. Manager BUTLER. Well, I am inlist certain acting appointments, like those of cined, may it please your Honor, to put this Mr. Hunter, Mr. Appleton, and Mr. F. W. question, with the leave of the presiding offiSeward. I do not ask the authority under cer. [Tothewitness.] Fromwhom didthese which they were made; but I ask the circum- letters of which you speak come? stances under which they were made? What Mr. CURTIS and Mr. EVARTS. That we was the necessity for making them-the ab- object to. sence of the Secretary or otherwise? The CHIEF JUSTICE. The honorable Answer. The absence of the Secretary. Manager will reduce his question to writing. Question. Since 1834, in the thirty-four years Mr. Manager BUTLER. What I propose you have been there, has there been any to ask is whether any of theletters of authorappointment of Acting Secretary except on ity this witness has mentioned came from the account of the temporary absence of the Sec- Secretary of State or from any other officer. retary, to your knowledge? If he says they all came from the President Answer. I do not recall any at this time. that will end the inquiry. If he says they all Question. By whom were those acting ap- came from the Secretary of State then I may pointments made? want to send for them. I really cannot unAnswer. They were made by the President derstand the objection. orby his order. The CHIEF JUSTICE. Do the counsel Question. That is exactly what I want to for the President object to that question? know. Did the letter of authority in most of Mr. EVARTS. We object to proof of the these cases-take Hunter's case and Apple- authority sought to be proved, except by the ton's case, for example-proceed from the production of the writing by which the witness head of the Department or from the President? has stated that in all cases it is evidenced. If Mr. EVARTS. We object that the papers it is sought to be proved who made a manual nmust be produced if their form is to be con- delivery of a paper where manual delivery was sidered as material. made to this witness, this witness can speak Mr. Manager BUTLER. I am not asking concerning that, and give such information as for form; I am asking for fact. pertains to that; but he can go no further. 241 Mr. Manager BUTLER. I am not now Mr. Manager BUTLER. I am not anxious proving the authority; I am proving the source upon that part of it, sir. I am content with of authority. I am endeavoring to find out the question as it stands. from which source of authority these letters The CHIEF JUSTICE. The Chief Justice came. If they came from the President, that conceives that the question in the form in which is one thing, and then I can apply there, if I it is put is not objectionable, butchoose, for them; whereas if they came from Mr. Manager BUTLER. I will put it, then, the Secretary of State, that is another thing, with the leave of the Chief Justice. and then I can apply there. I am asking, in The CHIEF JUSTICE. The Chief Justice the usual course of examination, as I under- was about to proceed to say that if it is intended stand the examinations of witnesses, whence to ask the question whether these documents certain papers came; were they the papers of of which a list is furnished were signed by the the Secretary of State or were they the papers Secretary, then he thinks it is clearly incomof the President? That does not put in their petent without producing them. effect. Mr. Manager BUTLER. Under favor, Mr. Mr. CURTIS. Do you mean to inquire who President, I have no list of these documents; signed the letters of authority; is that your none has been furnished. inquiry? The CHIEF JUSTICE. Does notthe quesMr. Manager BUTLER. I mean to inquire tion relate to the list which has been furnished? precisely whether the letter of authority came Mr. Manager BUTLER. It relates to the from the Secretary or from the President. people whose names have been put upon the Mr. CURTIS. Do you mean by that who list; but I have no list of the documents at signed the letter, or do you mean out of whose all. I have only a list of the facts that such manual possession it came into this gentle- appointments were made, but I. have no list of man s? the letters. whether they came from the PresiMr. Manager BUTLER. I mean, sir, who dent or from the Secretary or from anybody signed the letter, if you put it in that form. else. Mr. CURTIS. That we object to. The CHIEF JUSTICE. In the form' in Mr. Manager BUTLER. I do not do that which the question is put the Chief Justice for the purpose of proving the contents of the thinks it is not objectionable. If any Senator letter, but for the purpose of identification of desires to have the question taken by the Senthe letter. ate he will put it to the Senate. [To the Mr. CURTIS. The signature is as much a Managers, no Senator speaking.] You can part of the letter and its contents as anything put the question in the form proposed. else. Mr. Manager BUTLER, (to the witness.) Mr. EVARTS. Is this offered to prove who State whether any of the letters of authority signed the letter? We say the paperitself will which you have mentioned came from the Secshow who signed it. retary of State, or from what other officer. Mr. Manager BUTLER. The difficulty is Mr. CURTIS. I understand the witness is that unless I talk an hour these gentlemen are not to answer by whom they were sent. determined that I never shall have the reply Mr. Manager BUTLER. I believe I have on my proposition. My proposition is not to this witness. prove the authority, nor to prove the signa- The CHIEF JUSTICE. The Chief Justice ture, but it is to prove the identity of the paper; will instruct the witness. [To the witness.] and it is not to prove that it was a letter of You are not to answer at present by whom authority, because Mr. Seward signed it, for these documents were signed. You may say instance, but it is to prove whether I am to from whom they came. look for my evidence in a given direction or in The WITNESS. They came from the Presanother direction. If the witness says that ident. Mr. Seward signed it, for example, I should By Mr. Manager BUTLER: have no right to argue to the Senate that, Question. All of them? therefore, lt was the authority of Mr. Seward; Answer. Such is the usual course. I know but I am desirous, if I can, to ascertain whether of no exception. it is worth while for me to go any further than Question. Do you know of any letter of to argue this question; and the objection seems authority for the Chief Clerk acting as Secreto me over-sensitiveness. tary of State which did not come from the The CHIEF JUSTICE. The Secretary will President? read the question propounded by the honorable Answer. I do not. Manager. Question. Will you upon your return to the The Secretary read as follows: office examine if there is any and report to me? Queetion. State whether any of the letters of author- Answer. I will. ity which you have mentioned came from the Secre- By Mr. STANBERY: tary of State or from what other officer? Question. Mr. Chew, I see by this list only The CHIEF JUSTICE. "Came from the one instance of the removal by the President Secretary of State." Do I understand you to of a head of Department during the session of mean signed by him? the Senate, and that was an early one, May 13, C. I.-16. 242 1800. You know nothing yourself about the T. Pickering, Secretary of State, to John Adams. circumstances of that removal? DEPARTMENT OF STATE Answer. Not at all. PHILADELPHIA, 12 May, 1800. uestion. You do not know whether that offi- SIR: I have to acknowledge the receipt of your Question. You do not know whether thatotffi- letter, dated last Saturday, stating that, "as you cer had refused to resign whenrequested, or not? perceive a necessity of introducing a change in the Answer. I do not. administration of the office of State, you think it Question. In your knowledge since you have proper to make this communication of it to the presQuestion. In your knowled ge since you have ent Secretary of State, that he may have an opporbeen in the Department of State in the last tunity of resigning if he chooses;" and that "you thirty-four years, do you know of any in- would wish the day on which his resignation is to take place to be tamed by himself." stance in which a head of Department, when he Several matters of importanece in the office, in has received a request from the President to which my agency will be useful, will require my diliresign, has refused to resign? gent attention until about the close of the present Mr' Manager BUTLER. Stop a moment; quarter. I had, indeed, contemplated a continuance lM~r. Manager iBUTLER. Stop a moment;in office until the 4th of March next, when, if Mr. I object to that. Jefferson was elected President, (an event which, in The CHIEF JUSTICE. Do the counsel your conversation with me last week, you considered for the President press the question.? as certain,) I expected to go out, of course. An apfor the President press the question? prehension of that event first led me to determine Mr. STANBERY. Not now, sir. We have not to remove my family this year to the city of the records. Washington; because to establish them there would oblige me to incur an extraordinary expense which By Mr. STANBERY: I had not the means of defraying; whereas, by sepQuestion. Have you examined the records of arating myself from my family, and living there eight the Department to ascertain under what circum- or nine months with strict economy, I hoped to save enough to meet that expense, should the occasion stances it was that President Adams removed occur. Or, if I then went out of office, that saving Mr. Pickering from the head of the State Depart- would enable me to subsist my family a few months ment in 1800 while the Senate was in session? longer, and perhaps aid mein transporting them into the woods, where I had land, though all wild and unAnswer. I have not. productive, and where, like my first ancestor in New By Mr. Manager BUTLER: England, I expected to commence a settlement on Question. Do you know that he was removed bare creation. I am happy that I now have this resource, and that those most dear tome have fortitude while the Senate was in session of your own enough to look at the scene without dismay, and even knowledge? without regret. Nevertheless, after deliberately reAnswer. I do not. flecting on the overture you have been pleased to Mr. STANBERY, (to the Managsers.) You make to me, I do not feel it to be my duty to resign. Mr. STANBERY, (to the Managers. ) You I have the honor to be, &c. have proved it, gentlemen, yourselves. TIMOTHY PICKERING. Mr. Manager BUTLER. I now offer, sir, A, 12 from the ninth volume of the works of John SIR: Divers causes and considerations, essential to Adams the administration of the Government, in my judgMr. STANBERY. There you will find it, ment, requiring a change in the Department of State, guess. you are hereby discharged from any further service as Secretary of State? JOHN ADAMS, Mr. Manager BUTLER. I offer from the President of the United States. ninth volume of Little & Brown's edition of To TIMOTHY PICKERING. 1854 of the works of John Adams by his grand- Now, will the Senate allow the Executive son, Charles Francis Adams,, what purport to Journal of the Senate, of May 12, 1800, to be be official letters from Timothy Pickering, Sec- brought up, by which we propose to show that retary of State, to John Adams, President, at the same hour, on the same day, Mr. Adams, and from John Adams to him. Is there any the President, sent a nomination to the Senate? objection to my reading them? Mr. STANBERY. Do I understand the Mr. JOHNSON. Will you state the page, Manager to say, "the same hour?" Do you Mr. Manager? expect to prove it? Mr. Manager BUTLER. Pages 53, 547 55. Mr. Manager BUTLER. I should think, I offer these printed copies as the best evidence when we come to look at the correspondence, of official letters of that date, it is so long ago. that I am wrong; I think the sending to the We have not been able to find any record of Senate was a little previous. [Laughter.] them thus far, but we are still in search. Is Mr. STANBERY. You do? there any objection? Mr. Manager BUTLER. I do. Mr. STANBERY. Not at all. Mr. STANBERY. Andyou expect to prove Mr. Manager BUTLER. Then I will read that? them: Mr. Manager BUTLER. I do. [After a SIR: As I perceive a necessity of introducing a pause.] I have not yet heard a decision upon change in the administration of the office of State, I the question whether I am to have the Jourthink it proper to make this communication of it to the present Secretary of State, that he may have an nal. opportunity of resigning, if he chooses. I should Mr. STANBERY. Certainly; we have no wish the day on which his resignation is to take place objection to be named by himself. I wish for ananswer to this n letter on or before Monday morning, because the Mr. ManagerBUTLER. Itisthe Executive nomination of a successor must be sent to the Senate Journal, and I suppose it cannot be brought as soon as they sit. in unless the Senate directs it. I will say it is With esteem, I am, sir, your most obedient and in unless the Senate directs it. I will say it is humble servant, JOHN ADAMS. not printed. To T. PICKERING, Secretary of State. Mr. SHERMAN. Mr. President, I move 243 that the Journal be furnished for that purpose. office until the next meeting of the Senate, and I suppose there will be no objection. iuntil the case shall be acted upon by the Senate." The motion was agreed to. The eighth section provides: CHARLES E. CREECY recalled. " That whenever the President shall, without the. dvice and consent of the Senate, designate, authorBy Mr. Manager BUTLER: ize, or employ any person to perform the duties of Question. You have been sworn once in this any office, he shall forthwith notify the Secretary of case? the Treasury thereof." Answer. Yes, sir. It will be seen, therefore, Mr. President Question, (handing a paper to the witness.) and Senators, that the President of the United You have told us that you were appointment States says in his answer that he suspended clerk in the Treasury. Are you familiar with Mr. Stanton, under the Constitution, indefithe handwriting of Andrew Johnson. nitely and at his pleasure. I propose, now, Answer. I am. unless it be objected to, to show that that is Question. Is that his handwriting? false under his own hand, and I have his letter Answer. It is. to that effect, which, if there is no objection, I Question. Did you produce this letter from will read, the signature of which was identified the archives of the Treasury to-day in obe- by C. E. Creecy. dience to a summons? [The letter was handed to the counsel for Answer. I did. the respondent.) Mr. Manager BUTLER. Mr. President and Mr. STANBERY. We seenoinconsistency Senators, it will be remembered that the answer with that part of the act, certainly. of the President to the first article says, in Mr. Manager BUTLER. That was a queswords: tion I did not put to you. I asked you if you "And this has ever since remained, and was the had any objection. opinion of this respondent at the time when he was Mr. STANBERY. I tell you we see no forced as aforesaid to consider and decide what act inconsistency, much less falsehood, in that or acts should and might lawfully be done by this letter. respondent, as President of the United States, to letter. cause the said Stanton to surrender the said office." Mr. Manager BUTLER. To that I answer * * * * * * * * * * the falsehood is not in the letter, but it is in "This respondent was also aware that this act"- the answer. The tenure-of-civil-office act- Mr. Manager BUTLER thereupon read the "was understood and intended to be an expression letter, as follows: of the opinion of the Congress by which that act was EXECUTIVE MANSION passed, that the power to remove executive officers WASHINGTON, D. C., August 14, 1867. for cause might, by law, be taken from the President SIR: In compliance with the requirements of the and vested in him and the Senate jointly; and eighth section of the act of Congress of March 2, although this respondent had arrived at and still 1867,. entitled "An act regulating the tenure of cerretained the opinion above expressed and verity tain civiloffices,"you are hereby notified that on the believed, as he still believes, that the said first sec- 12th instant Hon. Edwin M. Stanton was suspended tion of the last-mentioned act was and is wholly from office as Secretary of War and General Ulysses inoperative and void by reason of its conflict with S. Grant authorized and empowered to act as Secrethe Constitution of the United States." tary of War ad interim. * * * * * * * * * * I am, sir, very respectfully, y6urs, "And this respondent, further answering, says, ANDREW JOHNSON. that it is provided in and by the second section of To Hon. HUGH MCCULLOCH,'An act to regulate the tenure of certain civil offices,' Secretary of the Treasury. that the President may suspend an officer from the performance of the duties of the office held by him, I wish to call attention again, because it for certain causes therein designated, until the next may have escaped the attention of some Senmeeting of the Senate and until the case shall be ators acted on by the Senate; that this respondent, as President of the United States, was advised, and he Mr. CURTIS. We object to the gentleman verily believed and still believes, that the executive arguing the question. power of removal from office confided to him by the Mr. STAN BERY. It is time certainly we Constitution as aforesaid includes the power of suspension from %ffice at the pleasure of the President; should know what all this discussion means, and this respondent, by the order aforesaid, did sus- What question is now before the Senate? What pend the said Stanton from office not untilthe next is your question? Let us know whether we meeting of the Senate, or until the Senate should have acted upon the case, but by force of the power have any objection; how it is that this stateand authority vested in him by the Constitution and ment is made. laws of the United States, indefinitely and at the Mr. Manager BUTLER. I am endeavorothpleasurecondsection of the President." ing to show, sir, that while the President says Now, the second section of the act regulat- he did not suspend Mr. Stanton under the ing the tenure of certain civil offices provides: tenure-of-office act, and that he had come to "That when any officer appointed as aforesaid, the conclusion that he had the right to suspend excepting judges of the United States courts, shall, him before August 12, 1867, without leave of during a recess of the Senate. be shown by evidence satisfactory to the President to be guilty of miscon-the tenure-of-offce act, and without leave of duct in office or crime, or for any reason shall be- the Senate, yet, acting under the eighth section come incapable or legally disqualified to perform its of the act to which he refers in his letter, he duties, in such case, and in no other, the President may suspend such officer and designate some suitable expressly says in that letter that he did suspend person to perform temporarily the duties of such him under this act. 244 Mr. STANBERY. We understand all will allow me to say he said he expected to that. prove it. Mr. CURTIS. He does not say any such Mr. Manager BUTLER. The Senate heard thing. We do not object to the honorable what I said. I said I expected it would appear Manager offering his evidence; we object to from the whole matter, exactly using that his arguing upon the effect of the evidence at phrase. I am quite sure I know what I said. this stage. 1But, however, as it was the duty of John Mr. Manager BUTLER. I have argued Adams to send it first to the Senate, I presume nothing, sir, except to read the law. he did his duty and sent it first to the Senate The CHIEF JUSTICE. Gentlemen Man- before he sent it to Pickering. I mean to say agers, the Executive Journal is now here. further, that it being all done on the same day, Mr. Manager BUTLER. I now produce it must be taken to be at the same time in law. the Executive Journal of the Senate. But another piece of evidence I adduce is, that Mr. JOHNSON. Of what date? he asked Pickering to send in his resignation Mr. Manager BUTLER. Monday, May 12, because it was necessary to send a successor 1800. May 9 is the last previous date of execu- to the Senate as soon as they sat, which he tive session: did. "MONDAY, May 12, 1800. The CHIEF JUSTICE. Do the honorable "The following written messages were received Managers require the Executive Journal any from the President of the United States by Mr. further? Shaw, his Secretary:urter "Gentlemen of the Senate: Mr. Manager BUTLER. No further. " I nominate the Honorable John Marshall, Esq., Mr. STANBERY. We have a certified copy of Virginia. to be Secretary of State, in place of the of it. Honorable Timothy Pickering, Esq., removed. The Journal was returned to the Secretary's "The Honorable Samuel Dexter, Esq., of Massachusetts, to be Secretary of the Department of War, office.] in the place of the Honorable John Marshall,nominated for promotion to the office of State. CHARLES E. CREECY recalled. UNITED STATES Ma 12 "JOHN ADAMS. By Mr. Manager BUTLER: "UNITED STATES: May 12, 1800." Question, (submitting papers to the witness. ) " Gentlemen of the Senate: Upon receipt of that notification by the Presi"I nominate William H. Harrison, of the North- dent of the United States that he had suswestern Territory, to be Governor of the Indiana Territory. JOHN ADAMS. pended Mr. Stanton according to the provis"UNITED STATES, May 12, 1800." ions of the civil tenure-of-office act, what was "Gentlemen of the Senate: done? "I nominate Israel Ludlow, of the Northwestern Answer. A copy of the executive communiTerritory, to be Register of the Land Office at Cin- cation was sent to the Treasurer, First Compcinnati. troller, First Auditor, Second Auditor, and "JAMES FINDLAY," &C. Third Auditor. Then follows a long list of nominations: Question. Have you the letters of transmis" Gentlemen of the Senate: sal there? " I nominate Seth Lewis, Esq., of Tennessee, to be Answer. I have. Chief Justice of the Mississippi Territory, in the Question. Will you have the kindness to place of William McGuire, Esq., resigned. "JOHN ADAMS. read them? "UNITED STATES, May 12, 1800." Answer. Here is one: OrdThe messages were read. TREASURY DEPARTMENT, August 15, 1867. " Ordered, That they lie for consideration." SIR: In accordance with the requirements of the "TuTSDAY, poeay 13, 1800. eighth section of an act entitled " An act regulating " The Senate proceeded to consider the message the tenure of certain civil officers," I transmit hereof the President of the United States of the 12th with a copy of a letter from the President notifying instant, and the nominations contained therein, of this Department of the suspension of Hon. E. M. John Marshall and Samuel Dexter, to office, where- Stanton from the office of Secretary of War and the upon, authorizing of General Ulysses S. Grant to act as "Resolved, That they do advise and consent to the Secretary of War ad interim. appointments agreeably to the nomination. I am, very respectfully, "Ordered, That the Secretary lay this resolution HUGH McCULLOCH, before the President of the United States." Secretary of the Treasury. Mr. STANBERY. Will you please to read R. W. TAYLOR, esq., First Comptroller, &c. where it appears there, at what hour, what The same letter was sent to the others. time of day, that was done? Question. Are those officers the proper Mr. Manager BUTLER. I have not under- accounting and disbursing officers of the Detaken to state the hour. I stated directly to partment? the Senate, in answer to you, that I thought that Answer. They are for the War Department. the letter went to the Senate with the nomin- Question. Then, if I understand you, all the ation, and I believed it would appear from an disbursing officers of the Treasury for the War examination of the whole case that the nom- Department were notified in pursuance of the ination of a successor went to the Senate prior act. to the letter going to Mr. Pickering. Mr. CURTIS. We object to that.' Mr. STANBERY. The honorable Manager Mr. EVARTS. That is a question of law. 245 Mr. Manager BUTLER. Were thereupon their proofs, and enable themselves to proceed notified? with the defense. We find ourselves in a conAnswer. Yes, sir. dition in which it is absolutely necessary to Question. Were you there to know of this make this request, and I think, and my coltransmission? leagues agree with me in that Answer. Yes, sir. The CHIEF JUSTICE. The Chief Justice Question. Did you prepare the papers? suggests to the counsel that it would be better Answer. Yes, sir. to postpone that matter until the Senate is full. Question. Did you prepare them in pursu- Mr. CURTIS. The reason why I thought of ance of any other act of Congress except the making it known at this moment, Mr. Chief civil tenure-of-office act? Justice, was that I was under the apprehension Answer. No, sir. that there might be some motion for an adMr. Manager BUTLER. That is all. [A journment, which might in some way interfere pause.] with this application, when it would not be in Mr. CONNESS. I was going to move a order for me to present it after such a motion recess; but if the witness is to be cross-exam- to adjourn. ined now- Mr. Manager BOUTWELL. -Mr. President Mr. STANBERY. That will answer. I can and Senators, in the schedule "B," offered wait until the recess. a short time since from the State Department, Mr. HOWARD. Let-the examination of the first name that appears among those apthis witness be finished. pointed during the session of the Senate is that Mr. Manager BUTLER. I can say to the of Timothy Pickering, who from that record Senate that we shall reach within a few min- appears to have been appointed Postmaster utes a place to rest. General on the 1st day of June, 1794. We The CHIEF JUSTICE. Does the Senator think it a proper time to call the attention of from California withdraw his motion? counsel for the respondent to the statutes Mr. CONNESS. I understand the counsel which we suppose explain the nature of that to wish a recess at this time. I move a recess proceeding.'This is the only appointment of for fifteen minutes. the head of a Department which appears from The CHIEF JUSTICE. The honorable this record as having been made during the Manager informs the Senate that he expects session of the Senate. The statutes are first to close his evidence within a short time. a statute of the 22d of September, 1789, in Mr. Manager BUTLER. I expect to close which it is provided "that there shall be it with certain exceptions which I shall name. appointed a Postmaster General; his powers Mr. CONNESS. There appears to be a and salary, and the compensation to the difference of opinion; I only desire to repre- assistant or clerk and deputies which he may sent the wishes of the body. I think We had appoint, and the regulations of the Post Office better have a recess. shall be the same as they last were under the The CHIEF JUSTICE. How long? resolutions and ordinances of the late ConMr. CONNESS. I move that the Senate gress. " And it was provided in the second sectake a recess for fifteen minutes. tion " that this act shall continue in force until The motion was agreed to; and the Chief the end of the next session of Congress, and Justice resumed the chair at fifteen minutes to no longer." Showing that it was merely a conthree o'clock, and called the Senate to order. tinuance of the post office system that existed Mr. CONNESS. There seem to be but few under the Continental Congress. Senators present and I move that the Senate Mr. JOHNSON. Will the Manager give adjourn. the date of that act? Mr. SUMNER. No; I hope not. Mr. Manager BOUTWELL. That act was Mr. CONNESS. If there is any chance of passed on the 22d of September, 1789. On the getting them in, I will withdraw the motion. 4th day of August, 1790, the Congress passed Mr. SUMNER. The better motion would a supplementary brief act in these words: be a call of the Senate. "Thatthe act passed the last session of Congress Mr. CONNESS. That is not in order. intituled An act for the temporary establishmentof Mr. CURTIS. Mr. Chief Justice, it is sug- the Post Office be. and the same hereby is, continued gested to me by my colleagues —-- in force until the end of the next session of Congress, The CEHIEF JUSTICE. Is the motion with- and no longer." Which was a continuance of the continental drawn? Mr. CONNESS. I will withdraw it at system of post office arrangement.'On the 3d present.. day of March, 1791, Congress passed another Mr. CURTIS. It is suggested now by my act: colleagues that I should make known to the " That the act passed the first session of Congress lenars that It ishour ienon t thes intituled'An act for the temporary establishment of Senators that it is our intention, if the testi- the Post Ofice,' be, and the same is hereby, continued mony on the part of the prosecution should be in full force until the end of the next session of Conclosed to-day, as we suppose it will be, to ask gress, and no longer." the Senators to grant to the President's coun- On the 20th day of February, 1792, Congress sel three days in which to prepare anal arrange passed an act making various arrangements in 246 regard to the administration of the post office Mr. Manager BINGHAM. Mr. President and establishing certain post routes; and it is and gentlemen of the Senate, we offer in eviprovided in that act: dence several executive messages of the Pres"That the act passed the last session of Congress ident of the United States, of dates respectively intituled'An act to continue in force for a limited December 16, 1867; December 17, 1867; time an act entitled "An act for the temporary es- aga, December 16, 1867; the fourth January tablishment of the Post Office,"' be, and the same is December 16, 1867; the fourth January hereby, continued in full force until the 1st day of 13, 1868, and the fifth December 19, 1867. June next, and no longer." [The messages communicate information of This act from which I now read did not con- the suspension of John H. Patterson from the tain any provision for the establishment of a office of assessor of internal revenue for the Post Office Department as a branch of the fourth district of Virginia; of Charles Lee Government, but the last section provided: Moses from the duties of counsel at Brunai, " That this act shall be in force for the term of two Borneo; of John H. Anderson from the office sears from the said 1st day of June next, and no of collector of internal revenue for the fourth longer." district of Virginia; of Charles H. Hopkins, Which would continue this provisional post assessor of internal revenue for the first disoffice system until the 1st day of June, 1794. trict of Georgia, and of John B. Lowry, postOn the 8th day of May, 1794, the Congress master at Danville, Virginia.] passed an act covering the whole ground of Mr. Manager BINGHAM. I also offer in the post office system, and in that act they evidence, Mr. President and Senators, the provided for the establishment, at the seat of communication of the Secretary of State acthe Government of the United States, of a Gen- companying one of the messages just presented, eral Post Office, and that there should be " one in which, under date of December 19, 1867, he Postmaster General," which is the first act thus addresses the President of the United which provides for the appointment of a Post- States: master General; and then there were all the SIR: In compliance with the provisions of section provisions in regard to the details of the office. two of the act regulating the tenure of certain civil The last section of this act which was passed offices, passed March 2, 1867, I have the honor to onthe 8th day of May, 1794, declared: report that Charles Lee Moses, United States cono~~n the8th yofay 174,decare sul at Brunai, Borneo, was, during the recess of the " That this act shall be in force from the 1st day of Senate, suspended from the functions of his office, June next." and that OliverB. Bradford, consular clerk at ShangWhich was the day on which the provisional hae, was appointed to fill the place temporarily." post office department which was the contin- I suppose I need not read all the details. uance of the continental system terminated. We offer in evidence all these messages, with That day was Sunday; but on that day General the accompanying papers, as received by the Washington, who was then President, thought Senate from the President. fit, although the Senate was nominally in ses- Mr. Manager BUTLER. I believe now, sion, and although it was Sunday, to make the sir, that I may inform the Senate that the case appointment of Timothy Pickering, as Post- on the part of the House of Representatives is master General. I suppose it will appear from substantially closed. There may be a witness the Journal of the Senate that he was immedi- or two, who are on their way here, which we ately nominated to the Senate and confirmed. shall ask on Monday morning leave to put in. This fully explains the nature of the appoint- Theirtestimony is substantially cumulative, not ment of Mr. Pickering who is, as appears very material; and it is possible that we may from this record, the only person who was have left out a piece or two of documentary made the head of a Department by an ap- evidence in the nature of public documents. pointment during the session of the Senate. Until we can examine carefully all the testiMr. Manager WILSON, Mr. President, I mony to see that we have omitted nothing, wish to call the attention of counsel for the we should not like to preclude ourselves from respondent to an entry on the Executive Jour- offering that. But with these immaterial exnal of the Senate of the 10th of May, 1800, ceptions, and I trust they will turn out to be also of the 12th of May, 1800, and the 13th, no exceptions at all, we have closed the case showing that the Senate at that time met at an on the part of the House of Representatives. earlier hour than twelve o'clock. On page 93 Mr. CURTIS. Mr. Chief Justice, the counof the Journal of the Senate for May 10, 1800, sel for the President take no exception to what it is entered: is now proposed by the honorable Managers. " The Senate adjourned to eleven o'clock on Mon- It seems to us quite reasonable that they should day morning." have opportunity to look over the ground and On Monday morning, May 12, 1800, the ascertain whether anything has been omitted, Senate met, and the manner of adjournment is and also if they find that witnesses come here as follows: before the next session, whose testimony will "After the consideration of the executive business, be in the nature of cumulative evidence, we the Senate adjourned to eleven o'clock to-morrow shall take no exception to that. morning. "-Page 94, TUESDAY, MaY 13, 1800. I now desire to submnit, Mr. Chief Justice, "The Senate met in pursuance of said adjourn- to the Senate a motion on behalf of the Presiment at eleven o'clock." dent's counsel that when this court adjourns 247 it adjourn until Thursday next, to allow to upon the motion of the Senator from California the counsel of the President three working as amended by the motion of the Senator from days to enable them to collect, collate, and Maryland, that the Senate adjourn until Thursarrange their proofs so as to present the de- day next, and upon this question no debate is fense to the Senate with as little delay as prac- in order. ticable, and so as to make that consecutive and Mr. Manager BUTLER. That question is proper impression which really belongs to it. not debatable by the Managers? We have been wholly unable to do this during The CHIEF JUSTICE. The Chief Justice the progress of the trial, and before the trial thinks not. was begun we had no time whatever to apply Mr. SUMNER. On that I ask for the yeas to this purpose. We think we can assure the and nays. Senate that it will very little, if at all, protract The yeas and nays were ordered. the trial, because certainly those gentlemen Mr. CONKLING. I rise for information. of the Senate who have been in the habit of I wish to inquire whether the Managers want practicing law are quite aware of the fact that to submit some remarks upon this motion for more time is frequently consumed in the in- delay? troduction of evidence for the want of having The CHIEF JUSTICE. The question is it properly arranged and presented than would upon the motion to adjourn. have been consumed if the proper efforts had Mr. CONKLING. Yes, sir. My purpose been made outside before the trial was begun. is to find out, as influencing my vote, whether We think, therefore, that we can assure the they wish the motion disposed of, to the end Senate that a large part, and perhaps all, of that they may make some remarks, or not. I this time will be saved if this indulgence can presume the Senator from California does not be granted to the President's counsel. intend to cut them off. We do not expectto adduce a large amount of Mr. Manager BUTLER. I had, Mr. Presioral testimony or a great number of witnesses, dent, desired to make a remark or two, and but we have a very considerable amount of understood it was in order. documentary evidence which we have thus far Mr. ANTHONY. I understand that the not been able to collate and arrange, and some motion is not that the Senate shall now adportions which we have reason to suppose journ, but that when the Senate does adjourn exist we have not yet been able to search out it shall adjourn to meet on Thursday. or find. We request, therefore, that this post- Several SENATORS. That is it. ponement may take place. Mr. CONKLING. That is certainly deMr. CONNESS. The rules forbid Senators batable. to make any explanations in the nature of de- The CHIEF JUSTICE. Will the Senator bate. I therefore submit a motion, which is from California be good enough to state his that when the Senate adjourn, or rather that motion? the Senate sitting as a court of impeachment, Mr. CONNESS. If the Chair will allow me shall adjourn until Wednesday next at twelve to state it I will do so. The Chair submitted o'clock, which is the time that, in my judg- the question on the amendment before I was ment, should meet the wants of the counsel for aware of it; else I desired to accept the suggesthe respondent. tion of Senators around me to make it ThursMr. JOHNSON. Mr. Chief Justice, if it is day in place of Wednesday. What I desired, in order, I move to amend the motion made by in other words, was to meet the concurrence the honorable mrember from California by in- of the Senate generally. serting " Thursday" instead of "Wednes- The CHIEF JUSTICE. Will the Senator day." from California allow the Chief Justice to ask Mr. Manager BUTLER. Is that motion if his motion is a motion that the Senate, when debatable by the Managers? it adjourns — The CHIEF JUSTICE. It is not. Mr. CONNESS. That was not the form- of Mr. HQWARD. Mr. President, may I in- the motion. I began to make it in that way, quire what is the question? but subsequently gave it the other form. The CHIEF JUSTICE. The Senator from Mr. CAMERON. Now I desireCalifornia moves that the Senate sitting as a The CHIEF JUSTICE. No debate is in court of impeachment adjourn until Wednes- order on the motion to adjourn. day next. The Senator from Maryland moves Mr. CAMERON. I am not going to debate to amend by substituting "Thursday" for it. I want to ask the gentlemen Managers "Wednesday." Senators, you who are infavor whether they will not be prepared to go on of agreeing to that motion will say " ay;" those with this case on Monday? I can see no reason of the contrary opinion "'no." [The ques- why the other side should not be as well pretion being taken.] The ayes have it. pared. Mr. CAMERON. I call for the yeas and Messrs. Managers BINGHAM and BUTnays. [No, no.] LER. We are ready. Mr. Manager BUTLER. I understood, Mr. The CHIEF JUSTICE. Order. Chief Justice. and I desire to Mr. CAMERON. Mr. President, my quesThe CHIEF JUSTICE. The question recurs tion is-~ 248 The CHIEF JUSTICE. No debate is in of the House, as in the Committee of the Whole order. The Senator from Pennsylvania is out headed by Mr. E. B. WASHBURNE, the chairof order. man of that committee, and accompanied by Mr. CAMERON. I think if you will allow the Speaker and Clerk, entered the Senate me Chamber, and were conducted to the seats proThe CHIEF JUSTICE. No debate is in vided for them. order on a motion to adjourn. The CIIEF JUSTICE. The Secretary will Mr. CAMERON. I am not going to debate I read the minutes of the last day's proceedings. it, your Honor; but I have risen to ask the The Secretary proceeded to read the Journal question whether the Managers will be ready of the proceedings of the Senate, sitting for the to go on with this case on Monday? trial of the impeachment, on Saturday, April Mr. Manager BINGHA.M and other Man- 4, 1868, but was interrupted by agers. We will be. Mr. JOHNSON. Mr. Chief Justice, I move Mr. SUMNER. I wish to ask a question, that the further reading of the Journal be disalso. I wish to know if the honorable Man- pensed with. agers have any views to present to the Senate The CHIEF JUSTICE. If there be no sitting now on the trial of this impeachment objection the further reading of the Journal to aid the Senate in determining this question will be dispensed with. The Chair hears no of time? On that I wish to know the views of objection. the honorable Managers. Gentlemen Managers on the part of the The CHIEF JUSTICE. The Chief Justice House of Representatives, have you any further is of opinion that, pending the question of evidence to introduce? adjournment, no debate is in order from any Mr. Manager BUTLER. We have a single quarter. It is a question exclusively for the witness, I believe. Senate. Senators, you who are in favor of the The CHIEF JUSTICE. The Managers will adjournment of the Senate sitting as a court proceed with their evidence. of impeachment until Thursday next will, as your names are called, answer "yea;" those Mr. H. WooD sworn and examined. of the contrary opinion " nay." The Secre- By Mr. Manager BUTLER: tary will call the roll. Question. Where was your place of residence The question being taken by yeas and nays, before the war? resulted-yeas 37, nays 10; as follows: Answer. Tuscaloosa, Alabama. YEAS-Messrs. Anthony, Bayard, Buckalew, Cat- Question. Did you serve in the Union Army tell, Conness, Corbett, Cragin, Davis, Dixon, Ed- during the war? munds, Ferry, Fowler. Frelinghuysen, Grimes, Hen- Answer. I did. derson, Hendricks,'Howard, Howe, Johnson, Mc- uestion. rom what time to what time Creery, Morrill of Maine, Morrill of Vermont, Nor- Que ton, Nye, Patterson of New Hampshire, Patterson of Answer. From July, 1861, to July, 1865. Tennessee, Ramsey, Ross, Saulsbury. Sherman, Question. Some time in September, 1866, did Sprague. Tipton, Trumbull, Van Winkle, Vickers, you call upon President Johnson, presenting Willey, and Williams-37. NAYS-Messrs. Cameron, Chandler, Cole, Conk- him testimonials for employment in the Govling, Drake, Morgan, Pomeroy, Stewart, Sumner, ernment service? and Thayer-10. Answer. I did NOT VOTING-Messrs. Doolittle, Fessenden, Harlan, Morton, Wade, Wilson, and Yates-7. Question. What time was it in 1866? The CHIEF JIUSTICE. On this question the Answer. The 20th or 21st day of September. yeas are 37 and the nays are 10. So the Senate, Question. How do you fix the time? Answer. Partially from memory, and parsitting as a court of impeachment, stands adjourned until Thursday next at twelve o'clock. tially from the journal of the Ebbitt House. Mr. Manager B UTLER. I should like to Question. How long before that had he regive notice that all the witnesses may be dis- turned from his trip to Chicago, to the tomb charged who have been summoned here on the of Douglas? part of the HIouse of Representatives. Answer. My recollection is that he returned on the 15th or 16th. I awaited his return in this city. THURSDAY, April 9, 1868. Question. Did you present your testimonials The Chief Justice of the United States entered to him? the Senate Chamber at twelve o'clock and took Answer. I did. the chair. Question. Did he examine them? The usual proclamation having been made Answer. Part of them. by the Sergeant-at-Arms, Question. What then took place between you? The Managers of the impeachment on the Mr. STANBERY. What do you propose part of the House of Representatives appeared to prove, Mr. Manager? and took the seats assigned them. Mr. Manager BUTIJER. What took place The counsel for the respondent also ap- between the President and this witness. peared and took their seats. Mr. STANBERY. Has it anything to do The presence of the House of Represent- with this case? atives was next announced, and the members Mr. Manager BUTLER. Yes, sir. 249 Mr. STANBERY. Under what article? Question. Under oath? Mr. Manager BUTLER. As to the intent Answer. Yes, sir. of the President in the several articles. Question. Who first by? Mr. STANBERY. To do what? Answer. By the Managers of the impeachMr. Manager BUTLER. To oppose Con- ment. gress. [To the witness.] Will you go on, sir? Question. Was your testimony taken down? What did he say? Answer. It was. Answer. He said my claims for Government Question. Were you examined or talked to employment were good, or worthy of atten- by any one of them before your examination tion; I will not fix the words. under oath? Question. What next? Answer. I had an informal interview with Answer. He inquired about my political two of them before I was examined. I could sentiments somewhat, noticing that I was not hardly call it an examination. a political man or not a politician. I told him Question. Which two of them, and where? I.was a Union man, a loyal man, and in favor Answer. By Governor BOUTWELL and Genof the Administration; that I had confidence eral BUTLER. in Congress and in the Chief Executive. He Question. When? then asked me if I knew of any differences be- Answer. Monday of this week. tween himself and Congress. I told him I Question. Did you say to Mr. Koppel that did; that I knew some differences on minor since you have been in the city a proposition points. He then said:'; They are not minor was made to you that, in case you would give points." certain testimony it would be for your benQuestion. Go on, sir? efit? Answer. And the " influence" or "patron- Answer. I did not, sir. age "' —I am not sure which-" of these offices shall be in my favor." That was the mean- Resxamined by Mr. Manager BUTLER: ing. Question. Who is Mr. Koppel? Question. Were those the words? Answer. Mr. Koppel is an acquaintance of Question. Were those the words? mine on the avenue-a merchant. Answer. I will not swear that they were the mine on the avenue-a merchant. words. Question. What sortof merchandise,please? dQuestion. "Shallbe in my f avor." What Answer. He is a manufacturer of garmentsQuestion. "IShall be in my favor." What ~did you say to that? a tailor. [Laughter.] Answer. I remarked that under those con- Question. Do you know any sympathy beditions I could not accept an appointment of tween him and the President? any kind, if my influence was to be used for Answer. I have always supposed that Mr. him in contradistinction to Congress, and re- Koppel was a southern man in spirit. He tired. came from Charleston, South Carolina, hereran the blockade. Cross examined by Mr. STANBERY: Question. Do you mean that as an answer Question. Do you know a gentleman in this to my question of sympathy between the Prescity by the name of Koppel? ident and him? Answer. I do, sir. Answer. Yes, sir. Question. Have you talked with him since Question. The counsel for the President has you have been in the city? asked you if you told Mr. Koppel that you had Answer. I have called on him when I first been asked to say things which you could not came in the city; I have seen him frequently. say, or words to that effect. In explanation Question. Did you tell Mr. Koppel yesterday or answer of the question you said there was a morning that all you could say about the Presi- misunderstanding which you explained to Mr. dent was more in his favor than against him? Koppel. Will you have the kindness to tell us Answer. I did not, sir. what that misunderstanding was which you Question. Did you tell Mr. Koppel that when explained to Mr. Koppel? you were brought up to be examined since you Mr. STANBERY. We do not care about arrived in this city there was an attempt to that. make you say things which you would not say? Mr. Manager BUTLER, (to the counsel for Answer. I did not, sir. I might, in explana- the respondent.) You put in a part of the contion of that question, say that there was a mis- versation. I have a right to the whole of it. understanding between the Managers and a Mr. STANBERY. We did not put it in at,gentleman in Boston in regard to an expression all-only a certain declaration. that they supposed I could testify to, but that Mr. Manager BUTLER. A certain declaraI could not. tion out of it, that is a part of the conversation. Question. Have you been examined before Mr. STANBERY. Go on in your own way. this time since you came into this city? Mr. Manager BUTLER, (to the witness.) I Answer. - By whom? will ask, in the first place, did you explain the Question. lave you been examined before, matter to him? bby any one? Answer. I did. Answer. I have, Question. Tell us what the misunderstand 250 ing was which you explained to him in that Mr. EVARTS. That makes no difference. conversation? Mr. Manager BUTLER. Having put in a Answer. I think, sir, a gentleman from Bos- part of Mr. Koppel's conversation, whether ton wrote you that the President asked me if voluntarily or not, I have the right to the whole I would give twenty-five per cent..of the pro- of it. I will explain to the gentlemen that I ceeds of any office for political purposes. I wish to show that the misunderstanding was told you that I did not say so; the gentleman not that the President said the twenty-five per in Boston misunderstood me. The President cent. was to be given, but one of his friends. said nothing of the kind to me. I explained There is where the misunderstanding arose. that to Mr. Koppel, he probably having mis- Do the gentlemen still object? understood it. Mr. STANBERY and Mr. EVARTS. Of Question. Did you explain where the misun- course we object. It has nothing to do with derstanding arose? the case. Answer. I told him that I supposed it must Mr. Manager BUTLER. I will not press it have occurred in a conversation between the further. That is all, Mr. Wood. gentleman in Boston and myself. Question. In regard to whiat? Question. In regard to what? FOSTER BLODGETT sworn and examined. Answer. In regard to the twenty-five percent. By Mr, Manager BUTLER: Question. Where did that arise? Question. Were you an officer of the United Mr. STANBERY. What about all that? States at any time? Mr. Manager BUTLER. I am getting this Answer. Yes, sir. conversation between Mr. Koppel and this man. Question. Where? Mr. STANBERY. Not at all. You are Answer. In Augusta, Georgia. speaking about another transaction. Question. Holding what office? Mr. Manager BUTLER. No; I am asking Answer. Postmaster. you if you explained to Mr. Koppel where the Question. When did you go into the exercise idea came from that you were to give twenty- of the duties of that office? five per cent. Answer. I was appointed on the 25th day of Mr. EVARTS. We object, Mr. Chief Jus- July, 1865. tice. The witness has stated distinctly that Question. Have you your commission or nothing occurred between the President and appointment? himself, and it is certainly quite unimportant Answer. I have. [Producing it.] I took to this court what occurred between this wit- charge on the 16th day of September, 1865. ness and another gentleman in Boston. Question. Did you receive another commisMr. Manager BUTLER. I pray judgment sion? again upon this. The other side seek to put Answer. Yes, sir. in- the conversation between a tailor down in Question. Have you that here? Pennsylvania avenue or somewhere else and Answer. Yes, sir. [Producing it.] this witness. I want the whole of that conver- Mr. Manager BUTLER, (to the counsel sation. I supposed, from the eminence of the for the respondent, handing them the first gentleman who asked the question, that the con- commission.) GCentlemen, here is the appointversation between Mr. Koppel, the tailor, and ment of Mr. Blodgett from the President in the this witness, was put in for some good purpose; recess of the Senate. [To the witness.] Is and, if it was, I want the whole of it. this your other commission? Mr. EVARTS. The fact is not exactly as Answer. Yes, sir. is stated by the learned Manager. In the priv- Question. After you were confirmed by the ilege of cross-examination the counsel for the Senate? President asked this witness distinctly whether Ansver. Yes, sir. he had said so and so to a Mr. Koppel. The Mr. Manager BUTLER. "To have and to witness said that he had not, and then volun- hold for the term of four years from the day,teered a statement that there might have been of the date hereof unless the President of the some misunderstanding between Mr. Koppel United States for the time being shall be and himself upon that subject, or some misun- pleased sooner to revoke, to determine the derstanding somewhere. Our inquiries did not commission." This was on the 27th day of reach or ask for or bring out the misunderstand- July, 1866, issued by the President. ing. But, passing that point, we stand here dis- [The commission was handed to the countinetly to say that everything which relates to sel for the President.] any conversation or interview between the Pres- Question. Were you suspended from office? ident and this witness, whether as understood Answer. Yes, sir. or misunderstood, has been gone through, and Question. Have you a copy of the letter of the present point of inquiry and further testi- suspension? mony is as to the ground of misunderstanding Answer. No, sir; I have not a copy of it. between this witness and some interlocutor in It is down with the Committee on Post Offices. Boston, and we object to its being heard. Question. Among the recordsof the Senate? Mr. Manager BUTLER. Which he explained Answer. Yes, sir. to Mr. Koppel, is the point. Question. When was that? 251 Answer. On the 3d of January, 1868. be put to the trouble of answering it. That Quostion. Have you examined to see whether is the point I want to understand. your suspension and the reasons therefor have The CHIEF JUSTICE. The counsel for been sent to the Senate? the President must know that when the SenAnswer. It has been reported to me by the ate has made an order for furnishing to the chairman of the Post Office Committee that it Managers the certificates which they desire, had not been sent in. and. they are presented, the introduction of Question. Can you learn that it has been them canthen be objected to. At present there sent in? is no question before the court. Answer. I have learned that it has not been Mr. STANBERY. My question is to the sent in. gentleman under what article this case of Mr. Mr. Manager BUTLER. I suppose Sena- Blodgett comes. tors can make this certain from their own The CHIEF JUSTICE. The Managers of records, to which we have not access. the House of Representatives state that the Mr. STANBERY. Of course, we know all evidence on their part, with the exception first about it. indicated, is closed. Gentlemen of counsel Mr. Manager BUTLER. I supposed, sir, for the President, you will proceed with the you did know all about it. [To the witness.] defense. Has any action been taken on your suspension, Mr. CURTIS, of counsel for the respondent, except simply that you were suspended? rose and said: Mr. Chief Justice, I am here Answer. None that I know of.. to speak to the Senate of the United States No cross-examination. sitting in its judicial capacity as a court of Mr. Manager BUTLER. I ask counsel for impeachment, presided over by the Chief Justhe President if they desire to be served with tice of the United States, for the trial of the notice to produce the original of that letter? President of the United States. This state[Handing to the counsel a copy of a letter.] ment sufficiently characterizes what I have to Mr. STANBERY, (having examined the say. Here party spirit, political schemes, fore. papers.) I see no objection to that. We do gone conclusions, outrageous biases can have not want to put you to the necessity of mere no fit operation. The Constitution requires formal proof. Read it. that here should be a trial," and as in that Mr. Manager BIUTLER read as follows: trial the oath which each one of you has taken WAR DEPARTMENT, is to administer " impartial justice according ADJUTANT GENERAL'S OFFICE, to the Constitution and the laws," the only WASHINGTON, Februarv 21,1868. appeal which I can make in behalf of the Pres. SIR: I have the honor to report that I have deliv- ident is an appeal to the conscience and the ered the communication addressed by you to Hon. reason-ofeachjudgewhositsbeforeme. Upon Edwin M. Stanton, removing him from office of Sec- re of each judge who sits before me. Upon retary of the War Department, and also to acknowl- the law and the facts, upon the judicial merits edge the receipt of your letter of this date authoriz- of the case, upon the duties incumbent on that ng and empowering me to act as Secretary of War high officer by virtue of his office, and his ad interim. I accept this appointment with gratitude for the confidence reposed in me, and will endeavor honest endeavor to discharge those duties, the to discharge the duties to the best of my ability. President rests his defense. And I pray each I have the honor to be, your obedient servant, L. THOMAS one of you to listen to me with that patience Adjutant General. which belongs to a judge for his own sake, To his Excellency ANDREW JOHNSON, which I cannot expect to command by any President of the United States. efforts of mine, while I open to you what that Mr. Manager BUTLER. I am instructed, defense is.., Mr. President, by the Managers to give notice The honorable Managers, through their asslo that we will ask of the Senate to allow to be ciate who has addressed you, [Mr. BUTLER,J put in this case proper certificates from the has informed you that this is not a court, and records of the Senate to show that no report that, whatever may be the character of this of the reaspns for the suspension of Mr. Blod- body, it is bound by no law. Upon those subgett has ever been sent to the Senate in con- jects I shall have something hereafter to say. formity with the law. The honorable Manager did not tell you, in The CHIEF JUSTICE. Those can be put terms at least, that here are no articles before in at any time. you, because a statement of that fact would Mr. Manager BUTLER. Yes, sir. We close be in substance to say that here are no honor, here. able Managers before you; inasmuch as the Mr. STANBERY. I will ask the honorable only authority with which the honorable ManManager under what article this case of Mr. agers are clothed by the House of Represent' Blodgett comes? * atives is an authority to present here at your Mr. Manager BUTLER. In the final dis- bar certain articles, and, within their limits cussion I have no doubt the gentlemen who conduct this prosecution; and, therefore, I close the case will answer that question to the shall make no apology, Senators, for asking entire satisfaction of the learned gentleman. your close attention to these articles, one after Mr. STANBERY. I have no doubt of that the other, in manner and form as they are here myself, but the question is whether we are to presented, to ascertain, in the first place,what 252 are the substantial allegations in each of them, Treasury, of War, of the Navy and of the Interior, what is the legal operation and effect of those the Postmaster General, and the Attorney General allegations, and what proof is necessary to be shall hold their offices respectively for and during allegatios, and what proof is ncessry to be the term of the President by whom they may have adduced in order to sustain them; and I shall been appointed, and for one month thereafter, sub-begin with the first, not merely because the ject to removal by and with the advice and consent House of Representatives, in arranging these articles, have placed that first in order, but Here is a section, then, the body of which because the subject-matter of that article is of applies to all civil officers, as well to those then such a character that it forms the foundation in office as to those who should thereafter be' of the first eight articles in the series, and appointed. The body of that section contains enters materiallyintotwo oftheremainingthree. a declaration that every such officer "is," that What, then, is the substance of this first is, if he is now in office, " and shall be," that article? What, as the lawyers say, are the is, if he shall hereafter be appointed to office, gravamenina contained in it? There is a great entitledto hold until a successor is appointed deal of verbiage-I do not mean by that un- and qualified in his place. That is the body necessary verbiage-in the description of the of the section. But out of this body of the substantive matters set down in this article. section it is explicitly declared that there is to Stripped of that verbiage it amounts exactly be excepted a particular class of officers " exto these things: first, that the order set out in pect as herein otherwise provided." There is the article for the removal of Mr. Stanton, if to be excepted out of this general description executed, would be a violation of the tenure- of all civil officers a particular class of offiof-office act; second, that it was a violation cers as to whom something is "otherwise proof the tenure-of-office act; third, that it was vided;" that is, a different rule is to be anan intentional violation of the tenure-of-office nounced for them. act; fourth, that it was a violation of the Con- The Senate will perceive that in the body of stitution of the United States; and fifth, was the section all officers, as well those then holdby the President intended to be so. Or, to ing office as those thereafter to be appointed, draw all this into one sentence which yet may are included. The language is: be intelligible and clear enough, I suppose the "Every person holding any civil office to which he substance of this first article is that the order has been appointed," * * * a "and for the removal of Mr. Stanton was and was every person who shall hereafter be appointed," intended to be a violation of the tenure-of- * "is and shall be entitled &c. office act, and was intended to be a violation It affects the present; it sweeps over all who of the Constitution of the United States. These are in office, and come within the body of the are the allegations which it is necessary for the section; it includes by its terms as well all honorable Managers to make out in proof to those now in office as those who may be heresupport that article. after appointed. But when you come to the Now, there is a question involved here which proviso the first noticeable thing is that this enters deeply, as Ihave already intimated, into language is changed; it is not that "every the first eight articles in this series, and mate- Secretary who now is, and hereafter may be, in rially touches two of the others; and to that office shall be entitled to hold that office" by question I desire in the first place to invite the a certain rule which is here prescribed; but the attention of the court. That question is, whether proviso, while it fixes a rule for the future only, Mr. Stanton's case comes under the tenure-of- makes no declaration of the present right of office act. If it does not, if the true construc- one of this class of officers, and the question tion and effect of the tenure-of-office act when whether any particular Secretary comes within applied to the facts of his case excludes it, then that rule depends on another question, whether it will be found by honorable Senators when his case comes within the description contained they come to examine this and the cther arti- in the proviso. There is no language which cles that a mortal wound has been inflicted expressly brings him within the proviso; there upon them by that decision. I must, there- is no express declaration, as in the body of the fore, ask your attention to the construction and section, that " he is, and hereafter shall be, application of the first section of the tenure-of- entitled" merely because he holds the office office act. It is, as Senators know, but dry of Secretary at the time of the passage of the work; it requires close, careful attention and law. There is nothing to bring him within the reflection; no doubt it will receive them. Al- proviso, I repeat, unless the description which low me, in the first place, to read that section: the proviso contains applies to and includes "That every person holding any official office to his case. Now, let us see if it does. which he has been appointed by and with the advice "That the Secretaries of State, r&c., shall hold their and consent of the Senate, and every person who offices respectivelyfor and during the term of the shall hereafter be appointed to any such office, and President by whom they may have been appointed." shall become duly qualified to act therein, is and shall be entitled to hold such office until a successor The first inquiry which arises on this lanshall have been in like manner appointedan guage is as to the meaning of the words " for qualified, except as herein otherwise provided." and during the term of the President." Mr. and during the term of the President." Mr. Then comes what is "otherwise provided:" Stanton, as appears by the commission which ""Provided, That the Secretaries of State, of the has been put into the case by the honorable 253 Managers, was appointed in January, 1862, assigned to Mr. Lincoln by the Constitution during the first term of President Lincoln. Are was conditionally assigned to him. It was to these words, " during the term of the Presi- last four years if not sooner ended; but if dent," applicable to Mr. Stanton's case? That sooner ended by his death, then the office was depends upon whether an expounder of this devolved on the Vice President, and the term law judicially, who finds set down in it as a part of the Vice President to hold the office then of the descriptive words " during the term of began. the President," has any right to add " and any I submit, then, that upon this language of other term for which he may afterward be the act it is apparent that Mr. Stanton's case elected."' By what authority short of legisla- cannot be considered as within it. This law, tive power can those words be put into the however, as Senators very well know, had a statute so that "during the term of the Presi- purpose; there was a practical object in the dent" shall be held to mean "' and any other view of Congress; and, however clear it might term or terms for which the President may be seem that the language of the law when applied elected?" I respectfully submit no such judi- to Mr. Stanton's case would exclude that case, cial interpretation can be put on the words. however clear that might seem on the mere Then, if you please, take the next step. words of the law, if the purpose of the law "During the term of the President byewhom could be discerned, and that purpose plainly he was appointed." At the time when this required a different interpretation, that differorder was issued for the removal of Mr. Stan- ent interpretation should be given. But, on the ton was he holding " during the term of the other hand, if the purpose in view was one rePresident by whom he was appointed?" The quiring that interpretation to which I have honorable Managers say yes, because, as they been drawing your attention, then it greatly say, Mr. Johnson is merely serving out the resi- strengthens the a/rgument; because, not only due of Mr. Lincoln's -term. But is that so the language oftheact itself, but the practical under the provisions of the Constitution of the object which the legislature had in view in United States? I pray you to allow me to read using that language demands that interpretatwo clauses which are applicable to this ques tion. tion. The first is the first section of the second Now, there can be no dispute concerning article: what that purpose was, as I suppose. Here is " The executive power shall be vested in a Presi- a peculiar class of officers singled out from all dent of the United States of America. He shall hold others and brought within this provision. Why his office during the term of four years, and, together with the Vice President, chosen for the same term, is this? It is because the Constitution has probe elected, as follows." vided that these principal officers in the several There is a declaration that the President and Executive Departments may be called upon the Vice President is each respectively to hold by the President for advice "respecting"his office for the term of four years; but that for that is the language of the Constitutiondoes not stand alone; here is its qualification: "' their several duties"'-not, as I read the Con"In case of the removal of the President from stitution,'that he may call upon the Secretary office, or of his death, resignation, or inability to of War for advice concerning questions arisdischarge the powers and duties of the said office, ing in the Department of War. He may call the same shall devolve on the Vice President." upon him for advice concerning questions which So that although the President, like the Vice are a part of the duty of the President, as President, is elected for a term of four years, well as questions which belong only to the and each is elected for the same term, the Department of War. Allow me to read that President is not to hold his office absolutely clause of the Constitution, and see if this be during four years. The limit of four years is not its true interpretation. The language of not an absolute limit. Death is a limit. A the Constitution is, that" conditional limitation," as the lawyers call it, " He [the President] may require the opinion in is imposed on his tenure of office. And when, writing of the principal officer in each of the Exaccordingsto this second passage which I have eive Departments upon anysubjettrelatingtothe read, the President dies, his term of four years duties of their respective offices." for which he was elected, and during which he As I read it, relating to the duties of the was to hold, provided he should so long live, offices of these principal officers, or relating to terminates, and the office devolves on the Vice the duties of the President himself. At all President. For what period of time? For events, such was the practical interpretation the remainder of the term for which the Vice put upon the Constitution from the beginning President was elected. And there is no more of the Government; and every gentleman who propriety, under these provisions of the Con- listens to me who is familiar, as you all are, stitution of the United States, in calling the with the political history of the country, knows time during which Mr. Johnson holds the office that from an early period of the administration of President after it was devolved upon him a of General Washington his Secretaries were part of Mr. Lincoln's term than there would called upon for advice concerning matters not'be propriety in saying that one sovereign who within their respective Departments, and so the succeeded to another sovereign by death holds practice has continued from that time to this. a part of his predecessor's term. The term This is one thing which distinguishes this class 264 of officers from any other embraced within the more evident allow me to state, what is very body of the law. familiar, no doubt, to Senators, but which I But there is another. The Constitution wish to recall to their minds, the history of this undoubtedly contemplated that there should be proviso, this exception. Executive Departments created, the heads of The bill, as Senators will recollect, originally which were to assist the President in the ad- excluded these officers altogether. It made no ministration of the laws as well as by their attempt, indeed it rejected all attempts, to preadvice. They were to be the hands and the scribe a tenure of office for them, as inapprovoice of the President; and accordingly that priate to the necessities of the Government. has been so practiced from the beginning, and So the' bill went to the House of Representathe legislation of Congress has been framed on tives. It was there amended by putting the thispssumption in the organization of the De- Secretaries on the same footing as all other partments, and emphatically in the act which civil officers appointed with the advice and constituted the Department of War. That consent of the Senate, and, thus amended, provides, as Senators well remember, in so came back to this body. This body disagreed many words, that the Secretary of War is to to the amendment. Thereupon a committee discharge such duties of a general description of conference was appointed, and that comthere given as shall be assigned to him by the mittee, on the part of the House, had for its President, and that he is to perform them under chairman Hon. Mr. ScHENCK, of Ohio, and the President's instructions and directions. on the part of this body Hon. Mr. WILLIAMS, Let me repeat, that the Secretary of War of Oregon, and Hon. Mr. SHERMAN, of Ohio. and the other Secretaries, the Postmaster Gen- The committee of conference came to an agreeeral and the Attorney General, are deemed to ment to alter the bill by striking these Secrebe the assistants of the President in the per- taries out of the body of the bill and inserting formance of his great duty to take care that them in the proviso containing the matter now the laws are faithfully executed; that they under consideration. Of course when this speak for and act for him. Now, do not these report was made to the House of Representatwo views furnish the reasons why this class tives and to this body itwas incumbent on the of officers was excepted out of the law? They committee charged with looking after its intenwere to be the advisers of the President; they tions and estimates of the public necessities in were to be the immediate confidential assist- reference to that conference-it was expected ants of the President, for whom he was to be that they would explain what had been agreed responsible, but in whom he was expected to to, with a view that the body itself, thus underrepose.a great amount of trust and confidence; standing what had been agreed to be done, and therefore it was that this act has connected could proceed to act intelligently on the matter. the tenure of office of these Secretaries to which Now, I wish to read to the Senate the exit applies with the President by whom they were planation given by Hon. Mr. SCHENCK, the appointed. It. says, in the description which chairman of this conference on the part of the the act gives of the future tenure of office of House, when he made his report to the House Secretaries, that a controlling regard is to be concerning this proviso. After the reading of had to the fact that the Secretary whose tenure the report, Mr. SCHENCK said: is to be regulated was appointed by some par~icular President; and during the term of that " I propose to demand the previous question upon t~icular President; arid during the term of that the question of agreeing to the report of the commitPresident he shall continue to hold his office; tee of conference. But before doing So, I will explain but as for Secretaries who are in office, not to the House the condition of the bill and the decisappointed by the President, we have nothing ion of theconference committee upon it. it will b.e ontedb y tePeietwehvnremembered that by the bill as it passed the Senate to say; we leave them as they heretofore have it was provided that the concurrence of the Senate been. I submit to Senators that this is the should be required in all removals from office, except natural, and, having regard to the character of in the case of the heads of Departments. TheHouse amended the bill of the Senate so as to extend this these officers, the necessary conclusion, that requirement to the heads of Departments as well as she tenure of the office of a Secretary here de- to other officers. scribed is a tenure during the terr of service'"The committee of conference have agreed that the scribed is a tenure during the term of service Senate shall accept the amendment of the House. of the President by whom he was appointed; But, inasmuch as this would compel the President to that it was not the intention of Congress to keep around him heads of Departments until the President of the nited Stat end of his term, who would hold over to another term, compel a President of the United States to a compromise was made by which a further amendcontinue in office a Secretary not appointed ment is added to this portion of the bill, so that the by himself. term of office of the heads of Departments shall exWe have, however, fortunately, not only the i! pire with the term of the President who appointed W them, allowing those heads of Departments one means of interpreting this law which I have I month longer, in which, in case of death orotherwise, alluded to, namely, the language of the act, other heads of Departments can be named. This is the evident character and purpose of the act, the whole effect of the proposition reported by the the evident character and purpose of the act, committee of conference; it is, in fact, an acceptance but we have decisive evidence of what was in- by the Senate of the position taken by the House."tended and understood to be the meaning and I Congressional Globe, Thirty-Ninth Congress, second effect of this law in each branch of Congress at the time when it was passed. In order to Then a question was asked, whether it would make this more apparent and its just weight be necessary that the Senate should concur in 255 all other appointments, &c.; in reply to which I read it as the report; for it is that in effectMr. SCHENCK said: the explanation, rather, of -the report of the "That is the case. But their terms of office"- committee of conference appointed by this That is, the Secretaries' terms of office- body to see whether this body could agree with "are limited, as they are not now limited by law, the House of Representatives in the frame of so that they expire with the term of service of the this bill, which committee came back here President who appoints them, and one month after, with a report that a certain alteration had been in case of death or other accident, until others can be made and agreed upon by the committee of substituted for them by the incoming President."-nd agreed upon by the committee of lbid. conference, and that its effect was what is Allow me to repeat that sentence: above stated. And now I ask the Senate, "They expire with the term of service of the Pres- looking at the language of this law, looking at ident who appoints them, and one month after, in its purpose, looking atthe circumstances under case of death or other accident." which it was passed, the meaning thus attached In this body, on the report being made, the to it by each of the bodies which consented to chairman, Hon. Mr. WILLIAMS, made an ex- it, whether it is possible to hold that Mr. Stanplanation. That explanation was in substance ton's case is within the scope of that tenure-ofthe same as that made by Mr. SCHENCK in the office act? I submit it is not possible. House, and thereupon a considerable debate I now return to the allegations in this first sprang up, which was not the case in the article; ana the first allegation, as Senators House, for this explanation of Mr. SCHENCK will remember, is that the issuing of the order was accepted by the House as correct, and un- which is set out in the article was a violation questionably was acted upon by the House as of the tenure-of-office act. It is perfectly clear giving the true sense, meaning, and effect of that that is not true. The tenure-of-office act this bill. In this body, as I have said, a con- in its sixth section enacts "that every removal, siderable debate sprang up. It would take too appointment, or employment, made, had, or much of your time and too much of my strength exercised, contrary to the provisions of this to undertake to read this debate, and there is act," &c., shall be deemed a high misdemeanor. not a great deal of it which I can select so as "' Every removal contrary to the provisions of to present it fairly and intelligibly without this act." In the first place no removal has reading the accompanying parts; but I think taken place. They set out an order. If Mr. the whole of it may fairly be summed up in Stanton had obeyed that order there would this statement: that it was charged by one of have been a removal; but, inasmuch as Mr. the honorable Senators from Wisconsin that Stanton disobeyed that order, there was no it was the intention of those who favored this removal. So it is quite clear that, looking to bill to keep in office Mr. Stanton and certain this sixth section of the act, they have made other Secretaries. That was directly met by out no case of a removal within its terms; and, the honorable Senator from Ohio, one of the therefore, no case of violation of the act by a members of the committee of conference, by removal. But it must not only be a removal, this statement: it must be " contrary to the provisions of this " I do not understand the logic of the Senator from act;" and, therefore, if you could hold the Wisconsin. Hefirstattributes a purposetothe com- order to be in effect a removal, unless Mr. mittee of conference which I say is not true. I say Stanton's case was within this act, unless this that the Senate have not legislated with a view to Stanton's case was within this act, unless this any persons or any President, and therefore he com- act gave Mr. Stanton a tenure of office and promences by asserting what is not true. We do not tected it, of course the removal, even if it had legislate in order to keep in the Secretary of War, been actual instead of attempted merely, would the Secretary of the Navy, or the Secretary of State."-Ibid., p. 1516. not have been " contrary to the provisions of Then a conversation arose between the hon- the act," for the act had nothing to do with it. erable Senator from Ohio and another honor- But this article, as Senators will perceive on able Senator, and the honorable Senator from looking at it, does not allege simply that the Ohio continued thus: order for the removal of Mr. Stanton was a " That the Senate had no such purpose is shown by violation of the tenure-of-office act. The honits vote twie tomake this exception. That this pro- orable House of Representatives have not, by vision does not apply to the present case is shown by this article, attempted to erect a mistake into the fact that its language is so framed as not to apply a crime. I have been arguing to you at conto the present President. The Senator shows that himself, and argues truly that it would not prevent siderable length, no doubt trying your patience the present Presidentfrom removing the Secretary of thereby, the construction of that tenure-ofWar, the Secretary of the Navy, and the Secretary of office law I have a clear idea of what State. And if I supposed that either of these gen-oce law. I have a clear idea of what its tlemen was so wanting in manhood, in honor, as to construction ought to be. Senators, more or hold his place after the politest intimation by the less of them who have listened to me, may have a President of the United States that his services were no longer needed, I certainly, as a Senator, would different view of its construction, but I think consent to his removal at any time, and so would we they will in all candor admit that there is a all."-Ibid., p. 1516. question of construction; there is a question I read this, Senators, not as expressing the what the meaning of this law was; a question opinion of an individual Senator concerning whether it was applicable to Mr. Stanton's the meaning of a law which was under dis- case; a very honest and solid question which cussion and was about to pass into legislation. any man could entertain, and therefore I re 256 peat it is important to observe that the honor- try enable him to call for to assist-him in comable House of Representatives have not, by ing to a correct conclusion. Having done so, this article, endeavored to charge the Presi- are the Senate prepared to say that the concludent with a high misdemeanor because he had sion he reached must have been a willful misbeen honestly mistaken in construing that law. construction-so willful, so wrong, that it can They go further and take the necessary step. justly and properly, and for the purpose of They charge him with intentionally miscon- this prosecution, effectively be termed a high struing it; they say, "Which order was un- misdemeanor? How does the law read? What lawfully issued with intention then and there are its purposes and objects? How was it unto violate said act." So that, in order to derstood here at the time when it was passed? maintain the substance of this article, without How is it possible for this body to convict the which it was not designed by the House of President of the United States of a high misRepresentatives to stand and cannot stand, it demeanor for construing a law as those who is necessary for them to show that the Presi- made it construed it at the time when it was dent willfully misconstrued this law; that hav- made? ing reason to believe and actually believing, I submit to the Senate that thus far no great after the use of due inquiry, that Mr. Stanton's advance has been made toward the conclusion case was within the law, he acted as if it was either that the allegation in this article that not within the law. That is the substance of this order was a violation of the tenure-ofthe charge. office act is true, or that there was an intent on What is the proof in support of that allega- the part of the President thus to violate it. tion offered by the honorable Managers? Sen- And although we have not yet gone over all ators must undoubtedly be familiar with the the allegations in this article, we have met its fact that the office of President of the United "head and front," and what remains will be States, as well as many other executive offices, found to be nothing but incidental and circumaerd to some extentlegislative offices, call upon stantial, and not the principal subject. If Mr. those who hold them for the exercise of judg- Stanton was not within this act, if he held the ment and skill in the construction and appli- office of Secretary for the Department of War at cation of laws. It is true that the strictly judi- the pleasure of President Johnson as he held cial power of the country, technically speaking, it at the pleasure of President Lincoln, if he is vested in the Supreme Court and such infe- was bound by law to obey that order which was rior courts as Congress fro.m time to time have given to him, and quit the place instead of established or may establish. But there is a being sustained by law in resisting that order, I great mass of work to be performed by execu- think the honorable Managers will find it extive officers in the discharge of their duties, tremely difficult to construct out of the broken which is of a judicial character. Take, for fragments of this article anything which will instance, all that is done in the auditing of amount to a high misdemeanor. What are accounts; that is judicial whether it be done they? They are, in the first place, that the by an auditor or a comptroller, or whether it President did violate, and intended to violate, be done by a chancellor; and the work has the the Constitution of the United States by givsame character whether done by one or by the ing this order. Why? They say, as I underother. They must construe and apply the stand it, because the order of removal was laws; they must investigate and ascertain facts; made during the session of the Senate; that they must come to some results compounded for that reason the order was a violation of the of the law and of the facts. Constitution of the United States. Now, this class of duties the President of I desire to be understood on this subject. If the United States has to perform. A case is I can make my own ideas of it plain, I think brought before him, which, in his judgment, nothing is left of this allegation. In the first calls for action; his first inquiry must be, what place, the case, as Senators will observe, which is the law on the subject? He encounters, is now under consideration, is the case of a,among other things, this tenure-of-office law Secretary of War holding during the pleasure in the course of his inquiry. His first duty is of the President by the terms of his commisto construe that law; to see whether it applies sion; holding under the act of 1789, which to the case; to use, of course, in doing so, all created that Department, which, although it those means and appliances which the Consti- does not affect to confer on the President the tution and the laws of the country have put into power to remove the Secretary, does clearly his hands to enable him to come to a correct imply that he has that power by making a prodecision. But after all, he must decide in order vision for what shall happen in case he exereither to act or to refrain from action. cises it. That is the case which is under conThat process the President in this case was sideration, and the question is this: whether obliged to go through, and did go through; and under the law of 1789 and the tenure of office he came to the conclusion that the case of Mr. created by that law, designedly created by Stanton was not within this law. He came to that law, after the great debate of 1789, and that conclusion, not merely by an examination whether under a commission which conforms of this law himself, but by resorting to the ad- to it, holding during the pleasure of the Presvice which the Constitution and laws ofthe coun- ident, the President could remove such a 257 Secretary during the session of the Senate. of Mr. Stanton's removal just as it stands on Why not? Certainly there is nothing in the the decision in 1789 or on the legislation of Constitution of the United States to prohibit Congress following upon that decision, and in it. The Cornstitution has made two distinct accordance with which are the terms of the provisions for filling offices. One is by nom- commission under which Mr. Stanton held ination to the Senate and confirmation by them office, you must come to the conclusion, withand a comtnission by the President upon that out any further evidence on the subject, that confirmation. The other is by commissioning an the Senate had nothing whatever to do with officer when a vacancy happens during a recess the removal of Mr. Stanton, either to advise of the Senate. But the question now before for it or to advise against it; that it came either you is not a question how vacancies shall be under the constitutional power of the Presifilled; that the Constitution has thus provided dent as it had been interpreted in 1789 or it for; it is a question how they may be created came under the grant made by the Legislature and when they may be created-a totally dis- to the President in regard to all those Secretinct question. taries not included within the tenure-of-office Whatever may be thought of the soundness bill. This, however, does not rest simply upon of the conclusion arrived at upon the great this application of the Constitution and of the debate'in 1789 concerning the tenure of office, legislation of Congress. There has been, and or concerning the power of removal from office, we shall bring it before you, a practice by the no one, I suppose, will question that a conclu- Government, going back to a very early day, sion was arrived at; and that conclusion was and coming down to a recent period, for the that the Constitution had lodged with the Pres- President to make removals from office when ident the power of removal from office inde- the case called for them, without regard to pendently of the Senate. This may be a de- the fact whether the Senate was in session or cision proper to be reversed; it may have been not. The instances, of course, would not be now reversed; of that I say nothing at present; numerous. If the Senate was in session the but that it was made, and that the legislation President would send a nomination to the of Congress in 1789 and so on- down during Senate saying, "A B in place of C D, rethe whole period of legislation to 1867 pro- moved;'.' but then there were occasions, not ceeded upon the assumption, express or im- frequent, I agree, but there were occasions, plied, that that decision had been made, nobody as you will see might naturally happen, when; who understands the history of the legislation the President, perhaps, had not had time to; of the country will deny. select a person whom hewould nominate, and! Consider, if you please, what this decision when he could not trust the officer then in was. It was that the Constitution had lodged possession of the office to continue in it, when this power in the President; that he alone was it was necessary for him by a special order to, to exercise it; that the Senate had not and remove him from the office wholly independent could not have any control whatever over it. of any nomination sent in to the Senate. Let If that be so, of what materiality is it whether me bring before your consideration for a mothe Senate is in session or not? If the Sen- ment a very striking case which happenedi ate is not in'session, and the President has recently enough to be within the knowledge of this power, a vacancy is created, and the Con- many ofyou. We were on the eve ofa civil war; stitution has made provision for filling that the War Department was in the hands of a man vacancy by commission until the end of the who was disloyal and unfaithful to his trust;. next session of the Senate. If the Senate is his chief clerk who, on his removal or resig. in session, then the Constitution has made nation, would come into the place, was believed' provision for filling a vacancy which is created to be in the same category with his master. by a nomination to the Senate; and the laws Under those circumstances the President of of the country, as I am presently going to show the United States said to Mr. Floyd, "I must you somewhat in detail, have made provisions have possession of this office;" and Mr. Floyd: for filling it ad interim without any nomina- had too much good sense or good manners or tion, if the President is not prepared to make something else to do anything but resign; and a nomination at the moment when he finds the instantly the President put into the place Genpublic service requires the removal of an officer. erallHolt, the Postmaster General of the United So that if this be a case within the scope of States at the time, without the delay ofan hour. the decision made by Congress in 1789, and It was a time when a delay of twenty-four hours within the scope of the legislation which fol- might have been of vast practical consequence lowed upon that decision, it is a case where, to the country. There are classes of cases either by force of' the Constitution the Presi- arising in all the Departments of that characdent had the power of removal without con- ter followed by that action; and we shall bring suiting the Senate, or else the legislation of before you evidence showing what those cases Congress had given it to him; and either way have been, so that it will appear that so long neither the Constitution nor the legislation of as officers held at the pleasure of the President Congress had made it incumbent on him to and wholly independent of the advice which he consult the Senate on the subject. might receive in regard to their removal from I submit, then, that if you look at this matter the Senate, so long, whenever there was an C. I.-17. 258 occasion, the President used the power, whether ure of duty there never could be a judicial the Senate was in session or not. decision that a law is unconstitutional, inasI have now gone over, Senators, the con- much as it is only by disregarding a law that siderations which seem to me to be applicable any question can be raised judicially under it. to the tenure-of-office bill, and to this allega- I submit to Senators that not only is there tion which is made that tle President know- no such rule of civil or moral duty, but that it ingly violated the Constitution of the United may be and has been a high' and patriotic duty States in the order for the removal of Mr. of a citizen to raise a question whether a law Stanton from office while the Senate was in is within the Constitution of the country. session; and the counsel for the President feel Will any man question the patriotism or the that it is not essential to his vindication from propriety of John Hampden's act when he this charge to go further upon this subject. brought the question whether " ship money" Nevertheless, there is a broader view of this was within the Constitution of England before matter,which is an actual part of the case, and the courts of England? Not only is there no it is due to the President it should be brought such rule incumbent upon private citizens before you, that I now propose to open to your which forbids them to raise such questions, but, consideration. let me repeat, there may be, as there not unfreThe Constitution requires the Pre~ident of quently have been, instances in which the the United States to take care that the laws highest patriotism and the purest civil and be faithfully executed. It also requires of moral duty require it to be done. Let me ask him, as a qualification for his office, to swear any one of you, if you were a trustee for the that he will faithfully execute the laws, and rights of third persons, and those rights of that, to the best of his ability, he will pre- third persons, which they could not defend serve, protect, and defend the Constitution of themselves by reason, perhaps, of sex or age, the United States. I suppose every one -will should be attacked by an unconstitutional la~w, agree that so long as the President of the Uni- should you not deem it to be your sacred duty ted States, in good faith. is endeavoring to to resist it and have the question tried? And take care that the laws be faithfully executed, if a private trustee may be subject to such a and in good faith and to the best of his ability duty, and impelled by it to such action, how is is preserving, protecting, and defending the it possible to maintain that he who is a trustee Constitution of the United States, although he for the people of powers confided to him for may be making mistakes, he is not committing their protection, for their security, for their high crimes or misdemeanors. benefit, may not in that character of trustee In the execution of these duties the Presi- defend what has thus been confided to him? dent found, for reasons which it is not my Do not let me be misunderstood on this province at this time to enter upon, butwhich subject. I am not intending to advance upon will be exhibited to you hereafter, that it was or occupy any extreme ground, because no such impossible to allow Mr. Stanton to continue to extreme ground has been advanced upon or hold the office of one of his advisers, and to be occupied by the President of the United responsible for his conduct in the manner he States. He is to take care that the laws are was required by the Constitution and laws to faithfully executed. When a law has been be responsible, any longer. This was intimated passed through the forms of legislation, either to Mr. Stanton, and did not produce the effect with his assent or without his assent, it is his which, according to the general judgment of duty to see that that law is faithfully executed well-informed men. such intimations usually so long as nothing is required of him but minproduce. Thereupon the President first sus- isterial action. He is not to erect himself into pended Mr. Stanton and reported that to the a judicial court and decide that the law is Senate. Certain proceedings took place which unconstitutional, and that therefore he will not will be adverted to more particularly presently. execute it; for, if that were done, manifestly They resulted in the return of Mr. Stanton to there never could be a judicial decision. He the occupation by him of this office. Then it would not only veto a law, but he would refuse became necessary for the President to con- all action under the law after it had been sider, first, whether this tenure-of-office law passed, and thus prevent any judicial decision applied to the case of Mr. Stanton; secondly, from being made. He asserts no such power. if it did apply to the case of Mr. Stanton, He has no such idea of his duty. His idea of whether the law itself was the law of the land, his duty is that if a law is passed over his veto or was merely inoperative because it exceeded which he believes to be unconstitutional, and thb constitutional power of the Legislature. that law affects the interests of' third persons, I am aware that it is asserted to be the civil those whose interests are affected must take and moral duty of all men to obey those laws care of them, vindicate them, raise questions which have been passed through all the forms concerning them, if they should be so advised. of legislation until they shall have been de- If such a law affects the general and public creed by judicial authority not to be binding; interests of the people the people must take but this is too broad a statement of the civil care at the polls that it is remedied in a constiand moral duty incumbent either upon private tutional way. citizens or public officers. If this is the meas- But, when Senators, a question arises 259 whether a particular law has'cut off a power he should carefiilly consider the question; that confided to him by the people through the he should ascertain that it necessarily arises; Constitution, and he alone can raise that ques- that he should be of opinion that it is necessary tion, and he alone can cause a judicial decision to the public service that it should be decided; to corhe between the two branches of the Gov- that he should take all competent and proper ernment to say which of them is right, and after advice on the subject. When he has done all due deliberation, with the advice of those who this, if he finds that he cannot allow the law to are his proper advisers, he settles down firmly operate in the particular case without abandonupon the opinion that such is the character of ing a power which he believes has been confided the law, it remains to be decided by you to him by the people, it is his solemn conviction whether there is any violation of his duty when that it is his duty to assert the power and obtain he takes the needful steps to raise that ques- a judicial decision thereon. And although he tion and have it peacefully decided. does not perceive, nor do his counsel perceive, Where shall the line be drawn? Suppose a that it is essential to his defense in this case to law should provide that the President of the maintain this part of the argument, nevertheUnited States should not make a treaty with less, if this tribunal should be of that opinion, England or with any other country? It would then before this tribunal, before all the people be a plain infraction of his constitutional of the United States, and before the civilized power, and if an occasion arose when such a world, he asserts the truth of this position. treaty was in his judgment expedient and I am compelled now to ask your attention, necessary it would be his duty to make it; and quite briefly, however, to some considerations the fact that it should be declared to be a high which weighed upon the mind of the Presimisdemeanor if he made it would no more dent and led him to the conclusion that this relieve him from the responsibility of acting was one of the powers of his office which it though the fear of that law than he would be was his duty, in the manner I have indicated, relieved of that responsibility by a bribe not to endeavor to preserve. to act. The question whether the Constitution has Suppose a law that he shall not be Corn- lodged the power of removal with the Presimander-in-Chief in part or in whole-a plain dent alone, with the President and Senate, or case, I will suppose, of an infraction of that left it to Congress to be determined at its will provision of the Constitution which has con- in fixing the tenure of offices, was, as all Senfided to him that command; the Constitution ators know, debated in 1789 with surpassing intending that the head of all the military ability and knowledge of the frame and necespower of the country should be a civil magis- sities of our Government. trate, to the end that the law may always be Now, it is a rule long settled, existing, I supsuperior to arms. Suppose he should resist pose, in all civilized countries, certainly in X statute of that kind in the manner I have every system of law that I have any acquaintspoken of by bringing it to a judicial decis- ance with, that a contemporary exposition of ion? a law made by those who were competent to It may be said these are plain cases of ex- give it a construction is of very great weight; press infractions of the Constitution; but what and that when such contemporary exposition is the difference between a power conferred has been made of a law, and it has been followed Upon the President by the express words of by an actual and practical construction in ac-;he Constitution and a power conferred upon cordance with that contemporary exposition,;he President by a clear and sufficient impli- continued during a long period of time and ration in the Constitution? Where does the applied to great numbers of cases, it is after)ower to make banks come from? Where does ward too late to call in question the correctness -he power come from to limit Congress in as- of such a construction. The rule is laid down,;igning original jurisdiction to the Supreme in the quaint language of Lord Coke, in this Jourt of the United States, one of the cases form:'eferred to bhe other day? Where do a mul- "Great regard ought, in construing a law, to be itude of powers upon which Congress acts paid to the construction which the sages who lived:ome from in the Constitution except by fair about the time or soon after it was made put upon it, because they were best able to judge of the intefimplications? Whence do you derive the tion of the makers at the time when the law was )ower, while you are limiting the tenure of made. Contenmporania expositio est fortissima in iffice, to confer on the Senate the right to pre- lteem." rent removals without their consent? Is that I desire to bring before the Senate in this!xpresslygiven in the Constitution, or is it an I connection, inasmuch as I think the subject mplication which is made from some of its has been frequently misunderstood, the form )rovisions? taken by that debate of 1789 and the result I submit it is impossible to draw any line of which was attained. In order to do so, and at [uty for the President simply because a power the same time to avoid fafiguing your attention s derived from an implication in the Consti- by looking minutely into the debate itself, I ution instead of from an express provision. beg leave to read a passage from Chief Justice )ne thing unquestionably is to be expected of Marshall's Life of Washington, where he has he President on all such occasions, that is, that summed up the whole.'he writer says, on 260 page 162 of the second volume of the Phila- with the tests which are here suggested by the elphia edition: learned commentator, it will be found, in the "After an ardent discussion, which consumed sev- first place, that the precise question was under eral days, the committee divided, and the amendment discussion; secondly, that there was a deep was negatived by a majority of thirty-four to twenty. sense of its importance, for it was seen that the The opinion thus expressed by the House of Repre-sense of its importance, forit was seen that the sentatives did not explicitly convey their sense of decision was not to affect a few cases lying here the Constitution. Indeed, the express grant of and there in the course of the Government, but the power to the President rather implied a right in that it wouldenter deeply into its practical and the Legislature to give or withhold it at their dis- r deeply into its practical and cretion. To obviate any misunderstanding of the daily administration; and in the next place the principle on which the question had been decided determination was, so far as such determination Mr. Benson moved in the House, when the report of could be entertained, thereby to fix a system the Committee of the Whole was taken up, to amend cou ined, thereby to fix a system the second clause in the bill so as clearly to imply for the future; and in the last place the men the power of removal to be solely in the President. who participated in it must e aditted to have He gave notice that if he should succeed in this he been exciedingly well qualified for their worh would move to strike out the words which had been been exceedingly well qualified for their work. thesubject of debate. If those words continued, he There is another rule to be added to this said, the power of removal by'the President might which is also one of very frequent application, hereafter appear to be exercised by virtue of a and it is that a lng-continued practical applilegislative grant only, and consequently be subjected anng-continue to legislative instability; when he was well satisfied cation of a decision of this character by those in his own mind that it was by fair construction to whom the execution of a law is confided is fixed in the Constitution. The motionwas seconded o dcs by Mr. Madison, and both amendments were adopted. of decisive weight. To borrow again from As the bill passed into a law, it has ever been con- Lord Coke on this subject, " Optimus legum sidered as a full expression of the sense of the Legs- interes consuetudo practice the best lature on this important part of the AmericanCon- rpres consuetudo " practice is the best stitution." interpreter of law." Now, what followed this Some allusion has been made to the fact that originaldecision? From 178' down to 1867 every President and every Congress part ithis law was passed in the Senate only by the pate d in and acted under the onstruction giv casting vote of the Vice President; and upon pated in and acted under the construction given that subject I beg leave to refer to the life of in 1789. Not only did the Government so conMr. Adams by his grandson, volume one of duct, but it was a subject sufficiently discussed Mr. Adams by his grandson, volume one of his works, pages 448 to 450. He here gives an mong the people to bring to tion that such a question had existed, had been account, so far as could be ascertained from tio that such a question had existed, had been the papers of President Adams, of what that startbeen raised again from time to time, and yet, debate was, and finally terminates the subject bee n raised again from tim e to time, and people as everybody knows, so far from the people in this way: interfering with this decision, so far from ever "These reasons," that is, the reasons of intehis decision, so far from ever Vice President Adams- expressing in any manner their disapprobation of the practice which had grown up under it, "Were not committed to paper, however, and can not one party nor two parties but all parties therefore never be known. But in their soundness it iscertainthathenever hadtheshadowofadoubt." favored and acted upon this system of GovernI desire leave, also, to refer on this subject to ment. the first volume of Story's Commentaries on EDMUNDS,. (at two o'clock and the Constitution, section four hundred and twenty-five minutes p. m.) Mr. President, if eight, in support of the rule of interpretation agreeable to the honorable counsel, I will which I have stated to the Senate. It will there move that the Senate take a recess for fifteen be found that it is stated by the learned com- minutes. mentator that a contemporaneous construction motion was agreed to. of the Constitution made under certain cir- The Chief Justice resumed the Chair at cumstances, which he describes, is of very fifteen minutes to three o'clock, and called the great weight in determining its meaning. He Senate to order. says: all theMr. MORRILL, of Vermont, (after a pause.) "After all the most unexceptionable source of col- that the Senate do now adjourn-I see lateral interpretation is from the practical exposition that most of the Senators are away-and on of the Government itself in its various departments that motion I ask for the yeas and nays. upon particular questions discussed and settled upon Th and nys were ordered their own single merits. These approach the nearest The yeas and nays were ordered. in their own nature to judicial expositions, and have Mr. CONKLING. What is the motion? I the same general recommendation that belongs to did not hear it. the latter. They are decided upon solemn argument, The CHIEF JUSTICE. The motion is to pro renata, upon a doubt raised, upon a is mnota, upon a deep sense of their importance and difficulty, in the adjourn until to-morrow at twelve o'clock, and face of the nation, with a view to present action in upon that motion the yeas and nays are the midst of jealous interests, and by men capable ordered. of urging or repelling the grounds of argument from their exquisite genius, their comprehensive learn- The question being taken by yeas and nays,.ng, or their deep meditation upon the absorbing resulted-yeas 2, nays 35; as follows: topic. How light, compared with these means of in- YEAS-Messrs. McCreery, and Patterson of Tenstruction, are the private lucubrations of the closet nessee -2 or the retired speculations of ingenious minds, intent NAYS-Messrs. Buckalew, Cattell, Chandler, Cole, on theory or general views, and unused to encounter Conkling, Corbett, Cragin, Davis, Dixon, Doolittle, a practical difficulty at every step 1ayConkling, Corbett, Cragin, Davis, Dixon, Doolittle, a practical difficulty at every step!" Drake, Ferry, Fessenden, Frelinghuysen, Grimes, On comparing the decision made in 1789 Henderson, Hendricks, Howard, Howe, Johnson, 261 Morgan, Morrill of Maine, Morrill of Vermont, read a line or two from Chancellor Kent's Morton, Pomeroy, Ross, Sherman, Stewart, Sumner, Lectures, found in the first volume, page 310, Thayer, Tipton, Van Winkle, Vickers, Willey, and marginal paging. After considering this sub Yates-35. marginal paging. NOT VOTING-Messrs. Anthony Bayard, Cam- ject, and, it should be noted in reference to oron. Conness, Edmunds, Fowler, Harlan, Norton, this very learned and experienced jurist, conNye, Patterson of New Hampshire,, Ramsey, Sauls- er it in an unfavorable light, because bury, Sprague, Trumbull, Wade. Williams, and Wil- sidering it in an unfavorable light, ecause he son-17. himself thought that as an original question it So the Senate refused to adjourn. had better have been settled the other way, that it would have been more logical, more in The CHIE JUSTICE. The counsel for conformity with his views of what the practhe President will proceed with the argument. tical needs of the Government were, tht the ~r. CURTIS. Mr. Chief Justice and Sen- tical needs of the Government were, that the Mr. CURTIS. Mr. Chief Justice and Sen- Senate should participate with the President ators, when the Senate adjourned I was asking the power of p articipate with ss he President its attention to the fact that this practical in- it all up in these words: terpretation was put upon the Constitution in "Thisamounted toalegislativeconstuction of the 1789, and that it had been continued with the Constitution, and it has ever since been acquiesced in concurrence of the legislative and executive and acted upon as of decisive authority in the case. branches of the Government down to 1867, It applies equally to every other officer of the Government appointed by the President and Senate whose affecting so great a variety of interests, em- term of duration is not speciallydeclared. Itissupbracing so many offices, so well known not ported by the weighty reason that the subordinate merely to the members of the Goverment them- officers in the executive department ought to hold at the pleasure of the head of that department, beselves, but to the people of the country, that cause he is invested generally with the executive it was impossible to doubt that it had received authority, and every participation in that authority their sanction as well as the sanction of the by the Senate was an exception to a general principle, and ought to be taken strictly. The President executive and the legislative branches of the is the great responsible officer for the faithful execuGovernment. tion of the law, and the power of removal was incidental to that duty, and might often be requisite to This is a subject which has been heretofore fulfill it." examined and passed upon judicially in very This, I believe, will be found to be a fair numerous cases. I do not speak now, of expression of the opinions of those who have course, of judicial decisions of this particular had occasion to examine this subject in their question which is under consideration, whether closets or as a matter of speculation. the Constitution has lodged the power of re- In this case, however, the President of the moval in the President alone, or in the Presi- United States had to consider not merely the dent and Senate, or has left it to be a part of general question where this power was lodged, the legislative power; but I spealk of the judi- not merely the effect of this decision made in cial exposition of the effect of such a practical 1789, and the practice of the Government construction of the Constitution of the United under it since, but he had to consider a parStates originated in the way in which this was ticular law, the provisions of which were before originated, continued in the way in which this him, and might have an application to the case was continued, and sanctioned in the way in upon which he felt called upon to act; and it which this has been sanctioned. is necessary, in order to do justice to the PresThere was a very early case that arose soon ident in reference to this matter, to see what after the organization of the Government, and the theory of that law is and what its operawhich is reported under the name of Stuart vs. tion is or must be, if any, upon the case which Laird, in 1 Cranch's Reports, 299. It was a he had before him; namely, the case of Mr. question concerning the interpretation of the Stanton. Constitution concerning the power which the During the debate in 1789 there were three Congress had to assign to the judges of the distinct theories held by different persons in Supreme Court circuit duties. From that time the House of Representatives. One was that down to the decision in the case of Cooley vs. the Constitution had lodged the power of reThe Port Wardens of Philadelphia, reported moval with the President alone; another was in 12 Hosvard, 315, a period of more than half that the Constitution had lodged that power a century, there has been a series of decisions with the President, acting with the advice upon the effect of such a contemporaneous and consent of the Senate; the third was that construction of the Constitution, followed by the Constitution had lodged it nowhere, but such a practice in accordance with it; and it had left it to the legislative power, to be acted is now a fixed and settled rule, which, I think, upon in connection with the prescription of the no lawyer will undertake to controvert, that tenure of office. The last of these theories was the effect of such a construction is not merely at that day held by comparatively few persons. to give weight to an argument, but to fix an The first two received not only much the greatinterpretation. And accordingly it will be est number of votes but much the greatest found by looking into the books written by weight of reasoning in the course of that debate; those who were conversant with this subject so much so that when this subject came under that they have so considered and received it. the consideration of the Supreme Court of the I beg leave to refer to the most eminent of all United States, in the case of ex parte Hennan, the commentators on American law, and to collaterally only, Mr. Justice Thompson, who 262 delivered the opinion of the court on that to hold during the pleasure of the President, occasion, says that it has never been doubted by force of this law acquired a right to hold that the Constitution had lodged the power this office against the will of the President either in the President alone or in the Presi- down to April, 1869. Now, there is one thing dent and Senate-certainly an inaccuracy; but which has never been doubted under the Conthen it required a very close scrutiny of the stitution, is incapable of being doubted,'allow debates and a careful examination of the few me to say, and that is, that the President is to individual opinions expressed in that debate, make the choice of officers. Whether having in that direction, to ascertain that it ever had made the choice, and they being inducted into been doubted that, one way or the other, the office, they can be removed by him alone, is Constitution settled the question. another question. But to the President alone Nevertheless, as I understand it-I may be is confided the power of choice. Ill the first mistaken in this-but, as I understand it, it is place, he alone can nominate. When the Senthe theory of this law which the President had ate has advised the nomination, consented to before him, that both these opinions were the nomination, he isnot bound to commission wrong; that the Constitution has not lodged the officer. He has a second opportunity for the power anywhere; that it has left it as an consideration, and acceptance or rejection of incident to the legislative power, which inci- the choice he had originally made. On this dent may be controlled, of course, by the subject allow me to read from the opinion of Legislature itself, according to its own will; Chief Justice Marshall, in the case of Marbury because, as Chief Justice Marshall somewhere vs. Madison, where it is expressed more clearly remarks, (and it is one of those profound re- than I can express it. After enumerating the marks which will be found tohave been carried different clauses of the Constitution which by him into many of his decisions,.) when it bear upon this subject, he says: comes to a question whether a power exists the " These are the clauses of the Constitution and particular mode in which it may be exercised laws of the United States which affect this part of the must be left to the will of the body that po8-.case. They seem to contemplate three distinct operasesses it; and, therefore, if this be a legisla- "1. The nomination. This is the sole act of the tive power, it was very apparent to the Presi- President, and is completely voluntary. dent of the United States, as it had been very "2. The appointment. This is also the act of the President, and is also a voluntary act, though it can apparent to Mr. Madison, as was declared by only be performed by and with the advice and conhim in the course of his correspondence with sent of the Senate. Mr. Coles, which is, no doubt, familiar to Sen- " 3. The commission. To grant a commission to a person appointed might, perhaps, be deemed a duty ators, that if this be a legislative power the enJoined by the Constitution.'He shall,' says that Legislature may lodge it in the Senate, may instrument,'commission all the officers of the United States.' " —1 Cranch, 155. retain it in the whole body of Congress, the two Houses of Congress, or may give it to the He then goes into various considerations to House of Representatives. I repeat, the Pres- show that it is not a duty enjoined by the Conident had to consider this particular law; and stitution; that it is optional with him whether that, as I understand it, is the theory of that he will commission even after an appointment law. I do not undertake to say it-is an un- has been confirmed, and he says: founded theory; I do not undertake to say that "The last act to be done by the President is the signature of the commission. He has then acted on it may not be maintained successfully; but I the advice and consent of the Senate to his own do undertake to say that it is one which was nomination. The time for deliberation has then originally rejected by the ablest minds that had passed. Hehasdecided. His judgment,on theadvice and consent of the Senate concurring with his this subject under consideration in 1789; that nomination, has been made, and the officer is apwhenever the question has been started since pointed."-lbid., 157. it has had, to a recent period, very few advo- The choice, then, is with the President. cates; and that no fair and candid mind can The action of the Senate upon that choice is deny that it is capable of being doubted and an advisory action only at a particular stage disbelieved after examination. It may be the after the nomination, before the appointment' truth, after all; but it is not a truth which or the commission. Now, as I have said beshines with such clear and certain light that a fore, Mr. Stanton was appointed under the man is guilty of a crime because he does not law of 1789, constituting the War Department, see it. and in accordance with that law he was comThe President not only had to consider this missioned to hold during the pleasure of the particular law, but he had to consider its con- President. President Lincoln had said to the stitutional application to this particular case, Senate, "I nominate Mr. Stanton to hold the supposing the case of Mr. Stanton to be, what office of Secretary for the Department of War I have endeavored to argue it was not, within during the pleasure of the President." The its terms. Let us assume, then, that his case Senate had said, " We assent to Mr. Stanton's was within its terms; let us assume that this holding the office of Secretary for the Departproviso, in describing the cases of Secretaries ment of War during the pleasure of the Presidescribed the case of Mr. Stanton; that Mr. dent." What does this tenure-of-office law Stanton, having been appointed by President say, if it operates on the case of Mr. Stanton? Lincoln in January, 1862, and commissioned It says Mr. Stanton shall hold office against 263 the will of the President, contrary to the terms be no collision or disagreement between the several of his commission, contrary to the law under departments of the Government and the Executive, which e was appointed, down to the 4th I lay before the Senate this message, that thile reasons vwhich lhe was appointed, down to the 4th of for my action, as well as the action itself, for the purApril, 1869. For this new, fixed, and ex- pose indicated, may meet your concurrence.'" tended term, where is Mr. Stanton's commis- Thus far are marks of quotation showing the sion? Who has made the appointment? Who communication which the President should has assented to it? It is a legislative cominmis- have obtained from the honorable Manager and sion; it is a legislative appointment; it is as- sent to the Senate in order to make this matter sented to by Congress acting in its legislative exactly right. Then follows this: capacity. The President has had no voice in capacityt. The President has had no voice in "Had the Senate received such a message the Repthe matter. The Senate, as the advisers of resentatives of the people might never have deemed the President, have hlad no voice in the mat- it necessary to impeach the President for such an act ter. If he holds at all, he holds by force of to insure the safety of the country, even if they had legislation, and not by any choicesmade by the denied the accuracy of his legal positions." President, or assented to by the Senate. And So that it seems that it is, after all, not the this was the case, and the only case, which the removal of Mr. Stanton but the manner in President had before him, and on which he which the President communicated the fact of was called to act. that removal to the Senate after it was made. Now, I ask Senators to consider whether, That manner is called here the "' defiant mesfor having formed an opinion that the Consti- sage" of the 21st of February. That is a questution of the United States had lodged this t.ion of taste. I have read the message as you power with the President-an opinion. which all have read it. If you can find anything in he shares with every President who has pre- it but what is decorous and respectful to this ceded him, with every Congress which has pre- body and to all concerned your taste will differ ceded the last; an opinion formed on the from mine. But whether it be a point of mangrounds which I have imperfectly indicated;. ners well or ill taken, one thing seems to be an opinion which, when applied to this par- quite clear: that the President is not imticular case, raises the difficulties which I have peached here because he entertained an opinion indicated here, arising out of the fact that this that this law was unconstitutional; lie is not law does not pursue either of the opinions impeached here because he acted on that opinwhich were originally held in this Govern- ion and removed Mr. Stanton; but he is imment, and have occasionally been started and peached here because the House of Representmaintained by those who are restless under its atives considers that this honorable body was administration; an opinion thus supported by addressed by a " defiant message," when they the practice of the Government from its origin should have been addressed in the terms which down to his own day, is he to be impeached the honorable Manager has dictated. for holding that opinion? If not, if he might I now come, Mr. Chief Justice and Senahonestly and properly form such ani opinion tors, to another topic connected with this matunder the lights which he had, and with the ter of the removal of Mr. Stanton and the aid of the advice which we shall show you he action of the President under this law. The received, then is he to be impeached for acting honorable Managers take the ground, among upon it to the extent of obtaining a judicial others, that whether upon a true construction decision whether the executive department of of this tenure-of-office act Mr. Stanton be the Government was right in its opinion, or the within it, or even if you should believe that legislative department was right in its opinion? the President thought the law unconstituStrangely enough, as it struck me, the honor- tional and had a right, if not trammeled in able Managers themselves say, " No; he is not some way, to try that question, still by his own to be impeached for that." I beg leave to conduct and declarations the President, asthey read a passage from the argument of the honor- phrase it, is estopped. He is not to be perable Manager by whom the prosecution was mitted here to assert the true interpretation of opened: this law; he is not to be permitted to allege "If the President had really desired solely to test that his purpose was to raise a question conthe constitutionality of the law or his legal right to cerning its constitutionality; and the reason is remove Mr. Stanton, instead of his defiant message that he has done and said certain things. All to the Senate of the 21stof February, informing them of us who have read law books know that there of the removal, but notsuggesting this purpose, which is in the omm is thus shown to be an afterthought, he would have is on law a doctrine called rules said, insubstance:'Gentlemenof'theSenate, inorder of estoppel, founded, undoubtedly, on good totest tlie constitutiona lity ofthel ventitled "An act reason, although, as they are called from the regulating the tenure of certain civil offices." which I verily believe to be unconstitutional and void, I time of Lord Coke, or even earlier, down to have issued al ord(r of removal of E. M. Stanton the present day, odious, because they shut out from the office of Secretary of the Department of the truth. evertheless there are circumWar. I felt myself constrained to make this removal lest Mr. Stanton should answer the information in stances when it is proper that the truth should the nature of a quo swtarranto, which I intend the be shut out. What are the circumstances? Attorn ey General shall file at an early day, bysaying They are where a question of private right is that hlie holds the office of Secretary of War by the appointment and authority of Mr. Lincoln, which involved, where on a matter of fact that prihas never been revoked. Anxious that there shall vate right depends, and where one of the 264 parties to the controversy has so conducted restore Mr. Stanton practically to the posseshimself that he ought not in' good conscience. sion of the office he should go to law about it. to be allowed either to assert or deny that mat- That is the complaint: that he did not tell that ter of fact. to the Senate. It may have been a possible But did any one ever hear of an estoppel on omission, though I rather think not. I rather a matter of law? Did any one ever hear that think that that good taste which is so prevalent a party had put himself into such a condition among the Managers, and which they so insist that when he came into a court of justice even upon here, would hardly dictate that the Presito claim a private right, he could not ask the dent should have held out to the Senate somejudge correctly to construe a statute, and insist thing which mightpossibly have been construed on the construction when it was arrived at in into a threat upon that subject. He laid the his favor? Did anybody ever hear, last of all, case before the Senate for their action; and that a man was convicted of crime by reason now, forsooth, they say he was too deferential of an estoppel under any system of law that to this law, both by reason of this conduct of ever prevailed in any civilized State? That his, and also what he did upon otheroccasions the President of the United States should be to which I shall presently advert. impeached and removed from office, not by Senators, there is no inconsistency in the reason of the truth of his case, but because he President's position or conduct in reference to is estopped from telling it. would be a specta- this matter. Suppose this case: a party who cle for gods and men. Undoubtedly it would has a private right in question submits to the have a place in history, which it is not neces- same tribunal in the same proceeding these sary for me to attempt to foreshadow. questions: first, I deny the constitutionality of There is no matter of fact here. They have the law under which the right is claimed themselves put in Mr. Stanton's commission, against me; second, I assert that the true which shows the date of the commission and interpretation of that law will not affect this the terms of the commission; and that is the right which is claimed against me; third, I whole matter of fact which is involved. The insist that, even if it is within the law, I make rest is the construction of the tenure of the a case within the law-is there any inconsisttenure-of-office act and the application of it to ency in that? Is not that done every day, or the case, which they have thus made them- something analogous to it, in courts of justice? selves; and also the construction of the Con- And where was the inconsistency on this occastitution of the United States, and the abstract sion? Suppose the President had summed up public question whether that has lodged the the message which he sent to the Senate in this power of removal with the President alone, or way: " Gentlemen of the Senate, I insist, in with the President and Senate, or left it to the first place, that this law is unconstitutional; Congress. I respectfully submit, therefore, I insist, in the second place, that Mr. Stanton that the ground is untenable that there can be is not within it; I respectfully submit for your an estoppel by any conduct of the President, consideration whether, if it be a constitutional who comes here to assert not a private right, law and Mr. Stanton's case be within it, the facts but a great public right confided to the office which I present to you do not make such a case by the people, in which, if anybody is estopped, that you will not advise me to receive him back the people will be estopped. The President into office." Suppose he had summed up in that never could do or say anything which would way, would there have been any inconsistency put this great public right into that extraor- then? And why is not the substance of that dinary predicament. found in this message? Here it is pointed out But what has he done? What are the facts that the question existed whether the law was upon which they rely, out of which to work unconstitutional; here it is pointed out that this estoppel, as they call it? In the first the question existed whether Mr. Stanton was place, he sent a message to the Senate on the within the law; and then the President goes 12th of December, 1867, in which he informed on to submit for the consideration of the Sen-.the Senate that he had suspended Mr. Stanton ate, whom he had reason to believe, and did by a certain order, a copy of which he gave; believe, thought the law- was constitutional, that he had appointed General Grant to exer- though he had no reason to believe that they cise the duties of the office ad interim by a thought Mr. Stanton was within the law, the certain other order, a copy of which he gave; facts to be acted upon within the law, if the and then he entered into a discussion in which case was there. It seems the President has not he showed the existence of this question, only been thus anxious to avoid a collision with whether Mr. Stanton was within the tenure-of- this law; he has not only on this occasion taken office bill, the existence of the other question, this means to avoid it, but.it seems that he ha's whether this was or was not a constitutional actually in some particulars obeyed the law; law; and then he invoked the action of the he has made changes in the commissions, or Senate. There was nothing misrepresented. rather they have been made in the departments, There was nothing concealed which he was and, as he has signed the commissions, I supbound to state. It is complained of by the pose they must be taken, although his attenhonorable Managers that he did not tell the tion does not appear to have been called to the Senate that if their action should be such as to subject at all, to have been made with his sanc 265 tion, just so far, and because' he sanctions that is, that the change that was made in the Dewhich is done by his Secretaries, if he does partment of the Treasury-" until a successor not interfere actively to prevent it. be appointed and qualified" —has manifestly He has done not merely this, but he has also nothing whatever to do with the subject of rein several cases-four cases, three collectors moval. Whether the power of removal be and one consul, I think they are-sent into vested in the President alone, or vested in the the Senate notice of suspension, notice that he President by and with the advice and consent had acted under this law and suspended these of the Senate, this clause does not touch it. It officers. This objection proceeds upon an en- is just as inconsistent with removal by the tire misapprehension of the position of the President with the consent of the Senate as it President and of the views which he has of his is inconsistent with the removal by the Presown duty. It assumes that because, when the ident alone. In other words, it is the general emergency comes, as it did come in the case tenure of the office which is described, accord-:of Mr. Stanton, when he must act or else ing to which the officer is to continue to hold; abandon a power which he finds in the partic- but he and all other officers hold subject to ular instance it is necessary for him to insist some power of removal vested somewhere, and upon in order to carry on the Government; this change which has been made in the comthat because he holds that opinion he must mission does not declare where it is vested, run a muck against the law, and take every nor has it any influence on the question in possible opportunity to give it a blow, if he whom it is vested. can. He holds no such opinion. I wish to add to this, that there is nothing, So long as it is a question of administrative so far as I see, on this subject of estoppel, duty merely he holds that he is bound to obey growing out of the action of the President, the law. Itis only when the emergency arises, either in sending the message to the Senate when the question is put to him so that he must of the 12th of December, or in the changes in answer it, " Can you carry on this department the commissions, or in his sending to the Senof the Government any longer in this way?" ate notices of suspensions of different officers, "No." "Have you power to carry it on as the which has any bearing whatever upon the public service demands?" "I believe I have." tenure-of-office act as affecting the case of Mr. Then comes the question how he shallact. But Stanton. That is a case that stands by itself. whether a consul is to be suspended or removed, The law may be a constitutional law; it may whetheradefaultingcollectoristobe suspended not only be a law under which the President or removed, does not involve the execution of has acted in this instance, but under which he the great powers of the Government. It may is bound to act, and is willing to act, if you be carried on; he may be of opinion with less please, in every instance; still, if Mr. Stanton advantage; he may be of opinion not in accord- is not within that law, the case remains as it ance with the requirements of the Constitution, was originally presented, and that case is, that, but it may be carried on without serious embar- not being within that law, the first article is rassment or difficulty. Until that question is entirely without foundation. settled he does not find it necessary to make I now, Mr. Chief Justice, have arrived at a it-settled in some way, by some person who point in my argument when, if it be within the has an interest to raise and have it settled. pleasure of the Senate to allow me to suspend I wish to observe, also, (the correctness of it, it will be a boon to me to do so. I am unwhich observation I think the Senate will agree accustomed to speak in so large a room, and with) that these changes which have been it is fatiguing to me. Still, I would not tresmade in the forms of the commissions really pass at all upon the wishes of the Senate if have nothing to do with this subject; for they desire me to proceed further. instance, the change is made in the Depart- Mr. JOHNSON. I move that the court ment of State, " subject to the conditions pre- adjourn until to-morrow at twelve o'clock. scribed by law." That is the tenure on which The motion was agreed to; and the SenI think ald commissions should originally have ate, sitting for the trial of the impeachment, run, and ought to continue to run. It is gen- adjourned. eral enough to embrace all. If it is a condition prescribed by law that the Senate must FRIDAY, April 10, 1868. consent to the removal of the incumbent be- The Chief Justice of the UnitedStates entered fore he is rightfully out of office, it covers that the Senate Chamber at twelve o'clock and took case. If the tenure-of-office bill be not a law the chair. of the land because it is not in accordance with The usual proclamation having been made the Constitution, it covers that case. It covers by the Sergeant-at-Arms, every case necessarily from its terms, for every The Managers of the impeachment on the officer does, and should, and must hold sub- part of the House of Representatives appeared ject to the conditions prescribed by law-not and took the seats assigned them. necessarily a law of Congress, but a law of the The counsel for the respondent also appeared land-the Constitution being supreme in that and took their seats. particular. The presence of the House of RepresentaThere is another observation, also, and that tives was next announced, and the members 266 of the House, as in Committee of the Whole, officer is to give the necessary information of headed by Mr. E. B. WASHBURNE, the chair- the event to his subordinate officers. The seeman of that committee, and accompanied by tion applies in terms to and includes all cases. the Speaker and Clerk, entered the Senate It applies to and includes cases of designation Chamber, and were conducted to the seats pro- on account of sickness or absence or resignavided for them. tion or any cause of vacancy, whether tempoThe CHIEF JUSTICE. The Secretary will rary or permanent, and whether occurring by read the minutes of the last day's proceed- reason of a suspension or of a removal from ings. office. And, therefore, when the President The Secretary read the Journal of yester- says to the Secretary of the Treasury, " I give day's proceedings of the Senate sitting forthe you notice that I have designated General trial of the impeachment. Thomas to perform the duties ad interim of The CHIEF JUSTICE. Senators will please Secretary of War," he makes no allusion, by to give their attention. The counsel for the force of that letter, to the manner in which President will proceed with the argument. that vacancy has occurred or the authority by Mr. CURTIS. MIr. Chief Justice and Sen- which it has been created; and hence, instead ators, among the points which I accidentally of this letter showing, under the President's omitted to notice yesterday, was one which own hand, that he had stated a falsehood, it seems to me of sufficient importance to return, has no reference to the subject-matter of the and for a few moments to ask the attention of power or the occasion of Mr. Stanton's rethe Senate to it. It will best be exhibited by moval. reading from Saturday's proceedings a short Mr. Manager BUTLER. Read the second passage. In the course of those proceedings section, please; the first clause of it. Mr. Manager BUTLER said: Mr. CURTIS. What did the Manager call "It will be seen, therefore, Mr. President and Sen- for? ators, that the President of the United States says in Mr. Manager BUTLER. Read the first his answer that he suspended Mr. Stanton under the clause of the second section of the act, which Constitution, indefinitely and at his pleasure. I pro- as th n o othe a ct wh h pose, now, unless it be objected to, to show that that says that in no other case except when he susis false under his own hand, and I have his letter to pends shall he appoint. that effect, which, if there is no objection, I will Mr. CURTIS. The second section provides read, the signature of which was identified by C. E. Creecy." "That when any officer appointed as aforesaid, Then followed the reading of the letter, excepting judges of the United States courts, shall, Then followeduring a recess of the Senate, be shown by satisfacwhich was this: tory evidence," &c. EXECUTIVE MANSION, WASHINGTON, D. C. August 14, 1867. The President is allowed to suspend such an SIR: In compliance with the requirements of the officer. Now, the President states in his aneighth section of the act of Congress of March 2, swer that he did not act under that section. 1867, entitled "An act regulating the tenure of cer- Mr. Manager BUTLER. That is not readtain civil offices," you are hereby notified that on the 12th instant Hon. Edwin M. Stanton was suspended ing the section. That is not what I desired. from office as Secretary of War and General Ulysses Mr. CURTIS. I am aware that is not readS. Grant authorized and empowed to act as Secre- ing the section, Mr. Manager. Youneed not tary of War ad interim. I am, sir, very respectfully, yours, point that out. It is a very long section, and ANDREW JOHNSON. I do not propose to read it. This is the letter which was to show, under Mr. Manager BUTLER. The first half a the hand of the President, that when he said dozen lines. in his answer he did not suspend Mr. Stanton Mr. CURTIS. This section authorizes the by virtue of the tenure-of-office act that state- President to suspend in cases of crime and ment was a falsehood. Allow me now to read other cases which are described in this section. the eighth section of that act: By force of it the President may suspend an "That whenever the President shall, without the officer. This eighth section applies to all cases advice and consent of the Senate, designate, author- of temporary designations and appointments, ize, or employ any person to perform the duties of whether resulting from suspensions under the any office he shall forthwith notify the Secretary of second section, whether arising fom tempothe Treasury thereof; and it shall be the duty of the Secretary of the Treasury thereupon to communicate rary absence or sickness or death or resignasuch notice to all the proper accounting and disburs- tion; no matter what the cause may be, it for *ilng officers of his Department." any reason there is a temporary designation of The Senate will perceive that this section a person to supply an office ad interim notice has nothing to do with the suspension of an is to be given to the Secretary of the Treasury; officer and no description of what suspensions and therefore I repeat, Senators, that the subare to take place; but the purpose of the sec- ject-matter of this eighth section and the letter tion is that if in any case the President, with- which the President wrote in consequence of out the advice and consent of the Senate, shall, it has no reference to the question under what under any circumstances, designate a third authority he suspended Mr. Stanton. person to perform temporarily the duties of an 1 now ask the attention of the Senate to the office he is to make a report of that designa- second article in the series; and I will begin tion to the Secretary of the Treasury, and that as I began before, by stating what the sub 267 stance of this article is, what allegations it considered competent for the President by a makes, so as to be the subjects of proof, and temporary commission to appoint that same perthen the Senate will be prepared to see how far son to that same office; and that was deemed each one of these allegations is supported by by many Senators, unquestionablybya majority, what is already in the case, and I shall be and I should judge from reading the debates enabled to state what we propose to offer by by a large majority of the Senate, to be an way of proof in respect to each of them. The abuse of power-not an intentional abuse. But substantive allegations of this second article it was a practice which had prevailed under are that the delivery of the letter of authority the Government to a very considerable extent. to General Thomas was without authority of It was not limited to very recent times. It law; that it was an intentional violation of the had been supported by the opinions of differtenure-of-office act; that it was an intentional ent Attorneys General given to different Presiviolation of the Constitution of the United dents. But still it was considered by many States; that the delivery of this order to Gen- Senators to be a departure from the spirit of eral Thomas was made with intent to violate the Constitution, and a substantial derogation both that act and the Constitution of the Uni- from the just power of the Senate in respect to ted States. That is the substance of the sec- nominations for office. That being so. it will ond article. The Senate will at once perceive be found on an examination of this law that the that if the suspension of Mr. Stanton was not first and second sections of the act relate exa violation of the tenure-of-office act in point elusively to removals from office and temporary of fact, or, to state it in other terms, if the suspensions in the recess of the Senate; while case of Mr. Stanton is not within the act, the third section and several of the following then his removal, if he had been removed, sections, to which I shall ask your particular could not be a violation of the act. attention, relate exclusively to this other subIf his case is not within the act at all, if the ject of appointments made to office after the act does not apply to the case of Mr. Stanton, Senate had refused to concur in the nominaof course his removal is not a violation of that tion of the person appointed. Allow me now act. If Mr. Stanton continued to hold under to read from the third section: the commission which he received from Presi- "That the President shall have power to fill all dent Lincoln, and his tenure continued to be vacancies which may happen during the recess of under the act of 1789, and under his only com- the Senate, by reason of death or resignation"mission, which was at the pleasure of the Presi- I pause here to remark that this does not dent, it was no violation of the tenure-of-office include all cases. It does not include any case act for Mr. Johnson to remove, or attempt to of the expiration of a commission. Itincludes remove, Mr. Stanton; and therefore the Senate simply death and resignation, not cases of the will perceive that it is necessary to come back expiration of a commission during the recess again, to recur under this article, as it will be of the Senate. Why these were thus omitted necessary to recur under the whole of the first I do not know; but it is manifest that the law eight articles, to the inquiries, first, whether Mr. does not affect to, and in point of fact does Stanton's case was within the tenure-of-office not, cover all cases which might arise belongact; and secondly, whether it was so clearly ing to this general class to which this section and plainly within that act that it can be at- was designed to refer. tributed to the President as a high misdemeanor The law goes on to saythat he construed it not to include his case. "That the President shall have power to fill all But suppose the case of Mr. Stanton is within vacancies which may happen during the recess of the tenure-of-office act, still the inquiry arises, the Senate, by reason of death or resignation, by granting commissions which sh:ll expire at the end whether what was done in delivering this letter of their next session thereafter. And if no appoint the end of authority to General Thomas was a violation ment, by and with the advice and consent of the of that act; and that renders it necessary that Senate, shall be made to such office so vacantortem. porarily filled as aforesaid during such next session I should ask your careful attention to the gen- of the Senate, such office shall remain in abeyance eral subjects-matter of this act and the partic- without any salary, fees, or emoluments attached ular provisions which are inserted in it in thereto, untilthesameshall befilledbyappointment urproions toach ahe insujects. thereto, by and with the advice and consent of the reference to each of those subjects. Senate; and during such time all the powers and Senators will recollect undoubtedly that this duties belonging to such office shall be exercised by 2law4, as it was iinally passed, differs from the such other officer as may by law exercise such powers bill as it was originally introduced. The law and duties in case of a vacancy in such office." relates to two distinct subjects. One is re- Here all the described vacancies in office moval from office, the other subject is appoint- occurring during the recess of the Senate and ments of a certain character made under cer- the failure to fill those vacancies in accordtain circumstances to fill offices. It seems that ance with the advice of the Senate are treated a practice had grown up under the Government as occasioning an abeyance of such offices. that where a person was nominated to the Sen- That applies, as I have said, to two classes of ate to fill an office, and the Senate either did cases, vacancies happening by reason of death not act on his nomination during their session or resignation. It does not apply to any other or rejected the nomination, after the adjourn- vacancies. ment of the Senate and in the recess it was The next section of this law does not relate 268 to this subject of filling offices, but to the sub- he shall think it necessary, to authorize any person or ject of removals: persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed "That nothing in this act contained shall be con- or such vacancy be filled: Provided, That no one Btrued to extend the term of any office the duration vacancy shall be supplied, in manner aforesaid, for of which is limited by law." a longer term than six months." The fifth section is: This act, it has been suggested, may have "That if any person shall, contrary to the provis- been repealed by the act of February 20, 1863, ions of this act, accept any appointment to or em- which is found in 12 Statutes-at-Large, pages ploymet in an office, or cishalnyl olduch or eercise, or 656. This also is a short act, and I will tresattempt to hold or exercise, any such office or employment, he shall be deemed, and is hereby declared pass on the patience of the Senate by reading it: to be, guilty of a high misdemeanor, and, upon trial "That in case of the death, resignation, absence and conviction thereof, he shall be punished there- from the seat of Government, or sickness of the head for by a fine not exceeding $10,000, or by imprison- of any executive Department of the Government. ment," &c. or of any officer of either of the said Departments whose appointment is not in the head thereof, Any person who shall "contrary to the pro- whose appointment is not in t head thereof whereby they cannot perform the duties of their revisions of this act," accept any appointment. spective offices, it shall be lawful for the President What are the "provisions of this act" in of the United States. in case he shall think it necesrespect to accepting any appointment They sary, to authorize the head of any other executive respect to accepting any appointment? They bDepartment, or other officer in eitherof said Departare found in the third section of the act put- ments whose appointmentisvestedinthePresident, ting certain offices in abeyance under the cir- at his discretion, to perform the duties of the said cumstances which are described in that se- respective offices until a successor be appointed, or cumrstances which are described in that se- euntil such absence or inability by sickness shall tion. If any person does accept an office which cease: Provided, That no one vacancy shall be supis thus put into abeyance, or any employment plied in manner aforesaid for a longer term than six or authority in respect to such office, he comes months." within the penal provisions of the fifth section; These acts, as the Senate will perceive, albut outside of that there is no such thing as though they may be said in some sense to accepting an office contrary to the provisions relate to the same general subject-matter, conof the act, because the provisions of the act, tain very different provisions, and the later law in respect to filling offices, extend no further contains no express repeal of the other. If, than to these cases; and so, in the next see- therefore, the later law operates as a repeal, tion, it is declared: it is only as a repeal by implication. It says " That every removal, appointment, or employ- in terms that " all acts and parts of acts inconment made, had, or exercised contrary to the pro- sistent with this act are hereby repealed." visions of this act, and the making, signing, sealing, That a general principle of law would say if countersigning, or issuing of any commission or let- the statute did not speak those words. The ter of authority for or in respect to any such appoint-did not speak those ords. he ment or employment, shall be deemed, and are addition of those words adds nothing to its rehereby declared to be, high misdemeanors," &c. pealing power. The same inquiry arises under Here, again. the making of a letter of them that would arise if they did not exist, authority, contrary to the provisions of the act, namely, how far is this later law inconsistent can refer only to those cases which the act with the provisions of the earlier law.? itself has described, which the act itself has There are certain rules which I shall not prohibited; and any other cases which are fatigue the Senate by citing cases to prove, outside of such prohibition, as this case mani- because every lawyer will recognize them as. festly is, do not come within its provisions. settled rules upon this subject. The stress of this article, however, does not In the first place there is a rule that repeals seem to me to depend at all upon this question by implication are not favored by the courts. of the construction of this law, but upon a This is, as I understand it, because the courts totally different matter, which I agree should act on the assumption or the principle that be fairly and carefully considered. The im- if the Legislature really intended to repeal the portant allegation of the article is that this law they would have said so; not that they letter of authority was given to General necessarily must say so, because there are reThomas enabling him to perform the duties of peals by implication; but the presumption is Secretary of War ad interim without authority that if the Legislature entertained a clear and of law; that I conceive to be the-main inquiry fixed purpose to repeal a former law they which arises under this article, provided the would be likely at least to have said so; and, ease of Mr. Stanton and his removal are within therefore, the rule is a settled one that repeals the tenure-of-office bill at all. by implication are not favored by the courts. I wish first to bring to the attention of the Another rule is that the repugnancy between Senate the act of 1795, which is found in 1 the two statutes must be clear. It is not enough Statutes-at-Large, page 415. It is a short act that under some circumstances one may posand I will read the whole of it: sibly be repugnant to the other. The repug"That in case of vacancy in the office of Secretary nancy, as the language of the books is, beof State, Secretary of the Treasury, or of the Secre- tween the two must be clear, and if the two tary of the Department of War,.or of any officer of laws can stand together the latter does not either of the said Departments, whose appointment is mpldl realt not in the head thereof, whereby they cannot perform impliedly repeal the former. If Senators have the duties of their said respective offices, it shall be any desire to recur to the authorities on this lawful fbor the President of the United States, in case subject, they will find a sufficient number of 269 them collected in Sedgwick on Statute Law, the President was not, owing to the suddenpage 126. ness of the occurrence, in a condition immeNow, there is no repugnancy whatsoever diately to make a nomination to fill the office, between these two laws that I can perceive. or even to issue a commission to fill the office, The act of 1795 applies to all vacancies, how- if such vacancy occurred in vacation; and ever created. The act of 1863 applies only to therefore it became necessary bylegislation to vacancies, temporary or otherwise, occasioned supply these administrative defects which exby death and resignation; removals from office, isted and were not provided for by the Constiexpiration of commissions, are not included. tution. And accordingly, beginning in 1792, The act of 1795 applies only to vacancies; the there will be found to be a series of acts on this act of 1863 to temporary absences or sickness. subject of filling vacancies by temporary or ad The subject-matter, therefore, of the law is interim authority; not appointments, not filldifferent; there is no inconsistency between ing vacancies in offices by a commission in the them; each may stand together and operate recess of the Senate, nor by a commission upon the cases to which each applies; and signed by the President in consequence of the therefore I submit that, in the strictest view advice and consent of the Senate; but a mode which may ultimately be taken of this subject, of designating a particular person to perform it is not practicable to maintain that the later temporarily the duties of some particular office law here repealed altogether the act of 1795. which otherwise, before the office can be filled But, whether it did or not, I state again what I in accordance with the Constitution, would rehave had so often occasion to repeat before, main unperformed. These acts are one of is it not a fair question, is it a crime to be on May 8, 1792, section 8, (1 Statutes-at-Large, one side of that question and not on the other? p. 281;) Februaryl7, 1795, (1 Statutes-at-Large, Is it a high misdemeanor to believe that a cer- p. 415;) and the last in February 20, 1863, (12 tain view taken of the repeal of this earlier law Statutes-at-Large, p. 656.) by the later one is a sound view? I submit The Senate will observe what particular diffithat that would be altogether too stringent a culty these laws were designed to meet. This rule even for the honorable Managers them- difficulty was the occurrence of some sudden selves to contend for; and theydo not, and the vacancy in office or some sudden inability to House of Representatives does not, contend for perform the duties of an office i; and the intenany such rule. Their article alleges as matter tion of each of these laws was, each being apof fact that there was a willful intention on the plied to some particular class of cases, to make part of the President to issue this letter to provision that notwithstanding there was a General Thomas without authority of law; not vacancy in the office, or notwithstanding there on mistaken judgment, not upon an opinion was a temporary disability in the officer without which, after due consideration, lawyers might a vacancy, still the duties of the office should differ about; but by reason of a willful inten- be temporarily discharged. That was the purtion to act without authority; and that, I sub- pose of these laws. It is entirely evident that mit, from the nature of the case, cannot be these temporary vacancies are just as liable to made out. occur during the session of the Senate as durThe next allegation in this article to which ing the recess of the Senate; that it is just as I desire to invite the attention of the Senate is, I necessary to have a set of legislative provisions that the giving of this letter to General Thomas to enable the President to carry on the public during the session of the Senate was a viola- service in case of these vacancies and inabilition of the Constitution of the United States. ties during the session of the Senate as during That will require your attentive consideration. the recess of Senate; and, accordingly, it will The Constitution, as you are well aware, has be found, by looking into these laws, that they provided f6r two modes of filling offices. The make no distinction between the sessions of one is by temporary commissions during the the Senate and the recesses of the Senate in refrecess of the Senate when the vacancy hap- erencetothesetemporaryauthorities. "Whenpens in the recess; the other is by appoint- ever a vacancy shall occur" is the language of ment with the advice and consent of the Sen- the law —"whenever there shall be a death or ate, followed by a commission from the Presi- a resignation or an absence or a sickness." dent; but it very early became apparent to The law applies when the event occurs that the those who administered the Government that law contemplates as an emergency: and the cases mustoccurto whichneitherof those modes particular time when it occurs is of no consedictated by the Constitution would be applica- quence in itself, and is deemed by the law of ble, but which must be provided for; cases of I no consequence. In accordance with this view, temporary absence of the head of a Depart- Senators, has been the uniform and settled and ment the business of which, especially during frequent practice of the Government from its the session of Congress, must, for the public 1 very earliest date, as I am instructed we shall interest, continue to be administered; cases of prove, not in any one or two or few instances, sickness, cases of resignation or removal, for I but in great numbers ofinstances. That has been the power of removal, at any rate in that day, 1 the practical construction put upon these laws was held to be in the President; cases of from the time when theearliestlaw was passed resignation or removal in reference to which i in 1792, and it has continued down to this day. 270 The honorable Managers themselves read a been speaking, it will be necessary for me to list a few days since of temporary appoint- say but a very few words concerning it. ments during the session- of the Senate of It charges an attempt unlawfully to control heads of Departments, which amounted in the appropriations made by Congress for the number, if I counted them accurately, to up military service, and that is all there is in it ward of thirty; and if you add to these the except what is in the second article. cases of officers below the heads of Depart- Upon that, certainly, at this stage of the ments the number will be found, of course, to case, I do not deem it necess iry to make any be much increased; and, in the course of ex- observations. The Senate will remember the hibiting this evidence, it will be found that, offer of proof on the part of the Managers dealthough the instances are not numerous, for signed, as was stated, to connect the President they are not very likely to occur in practice, of the United States, through his Private Secyet instances have occurred on all fours with retary, with the Treasury, and thus enable him the one which is now before the Senate, where to use unlawfully appropriations made for the there has been a removal or a suspension of an military service. The Senate will recollect officer, sometimes one and sometimes the other, the fate of that offer, and that the evidence and the designation of a person has been made was not received; and therefore it seems to at the same time temporarily to discharge the me quite unnecessary for me to pause to comduties of that office. ment any further upon this eighth article. The Senate will see that in practice such I advance to the third article, and here the thingsmustnaturally occur. Takethecase, for allegations are, that the President appointed instance, of Mr. Floyd, which I alluded to yes- General Thomas; second, that he did this terday. Mr. Floyd went out of office. His chief without the advice and consent of the Senate; clerk was a person believed to be in sympathy third, that he did it when no vacancy had hapwith him and under his control. If the third pened in the recess of the Senate; fourth, that section of the act of 1789 was allowed to op- he did it when there was no vacancy at the erate the control of the office went into the time of the appointment; and fifth, that he hands of that clerk. The Senate was in ses- committed a high misdemeanor by thus intension. The public safety did not permit the War tionally violating the Constitution of the UniDepartment to be left in that predicament for ted States. one hour, if it could be avoided, and President I desire to say a word or two upon each of Buchanan sent down to the Post Office De- these points; and first we deny that he ever partment and brought the Postmaster General appointed General Thomas to an office. An to the War Department, and put it in his charge. appointment can be made to an office only by There was then in this body a sufficient num- the advice and consent of the Senate, and ber of persons to look after that matter; they through a commission signed by the President, felt an interest in it; and consequently they and bearing the great seal of the Government. passed a resolve inquiring of President Bu- That is the only mode in which the appointchanan by what authority he had made an ment can be made. The President, as I have appointment of a person to take charge of the said, may temporarily commission officers when War Department without their consent, without vacancies occur during the recess of the Sena nomination to them, and their adyising and ate. That is not an appointment. It is not so consent to it; to which a message was sent in termed in the Constitution. A clear distincanswer containing the facts on this subject, and tion is drawn between the two. The Presishowing to the Senate of that day the propri- dent also may, under the acts of 1795 and ety, the necessity, and the long-continued prac- 1863, designate persons who shall temporarily tice under which this authority was exercised exercise the authority and perform the duties by him; and giving a schedule running through of a certain office when there is a vacancy; the time of General Jackson and his two im- but that is not an appointment. The office is mediate successors, I think, showing great num- not filled by such a designation. Now, all bers of ad interim appointments of this char- which the President did was to issue a letter acter, and to those, as I have said, we shall of authority to General Thomas, authorizing add a very considerable number of others. him ad interim to perform the duties of SecI submit, then, that there can be no ground retary of War. In no sense was this an apwhatever for the allegation that this ad interim pointment. appointment was a violation of the Constitu- It is said it was made without the advice and tion of the United States. The legislation consent of the Senate. Certainlyit was. How of Congress is a sufficient answer to that can the advice and consent of the Senate be charge. obtained to an ad interim authority, of this I pass, therefore, to the next article which kind under any of these acts of Congress? It I wish to consider, and that is not the next in is not an appointment that is in view. It is to number, but the eighth; and I take it in this supply temporarily a defect in the administraorder because the eighth article, as I have an- tive machinery of the Government. If he had alyzed it, differs from the second only in one gone to the Senate for their advice and consent particular; and therefore, taking that in con- lie must have gone on a nomination made by nection with the second, of which I have just i him of General Thomas to this office, a thing 271he never intended to do, and never made any I advance now, Senators, to a different class attempt to carry into effect. of articles, and they may properly enough, I It is said no vacancy happened in the recess. suppose, be called the conspiracy articles, That I have already considered. Temporary because they rest upon charges of conspiracy appointments are not limited to the temporary between the President and General Thomas. supply ofvacancies happeningin the recessofthe There are four of them, the fourth, fifth, sixth, Senate, as I have alrealy endeavored to show. and seventh in number as they stand. The It is said there was no vacancy at the time fourth and the sixth are framed under the act. the act was done. That is begging the ques- of Jnly 31, 1861, which is found in 12 Statutestion. If Mr. Stanton's case was not within at-Large, page 284. The fifth and seventh are the tenure-of'office act, if; as I have so often framed under no act of Congress. They allege repeated, he held under the act of 1789, and an unlawful conspiracy, but they refer to no law at the pleasure of' the President, the moment by which the acts charged are made unlawful. he received that order which General Thomas The acts charged are called unlawful, but there carried to him there was a vacancy in point is no law referred to and no case made by the artiof law, however he may have refused to per- cles within any law of the United States that is form his duty and prevented a vacancy from known to the President's counsel. I shall occurring in point of fact. But the Senate treat these articles, therefore, the fourth and will perceive these two letters were to be de- sixth together, and the fifth and seventh tolivered to General Thomas at the same time. gether, because I think they belong in that One of them is an order to Mr. Stanton to order. In the first place, let me consider the vacate the office; the other is a direction to fourth and sixth, which charge a conspiracy General Thomas to take possession when Mr. within this act which I have just mentioned. Stanton obeys the order thus given. Now, It is necessary for me to read the substance of may not the President of the United States this law in order that you may see whether it issue a letter of authority in contemplation can have any possible application to this case. that a vacancy is about to occur? Is he bound It was passed on the 31st of July, 1861, as to take a technical view of this subject, and a war measure, and is entitled, " An act to have the order creating the vacancy first sent define and punish certain conspiracies." It and delivered, and then sit down at his table providesand sign the letter of authority afterward? If " That if two or more persons within any State or he expects a vacancy, if he has done an act Territory of the United States shall conspire towhich in his judgment is sufficient to create a gether to overthrow or to put down or to destroy whihihjugnisuentora by force the Government of the United States, or to vacancy, may he not, in contemplation that levy war against the United States, or to oppose by that vacancy is to happen, sign the necessary force the authority of the Government of the United thetemporry authority to carry States; or by force to prevent, hinder, or delay the paper to give the temporary authority to carry execution of any law of the United States; or by on the duties of the office? force to seize, take, or possess any property of the Last of all, it is said he committed a high United States against the will or contrary to the misdemeanor by intentionally violating the authority of the United States; or by force, or intimidation, or threat to prevent any person from Constitution of' the United States when he accepting or holding any offnce or trust or place of gave General Thomas this letter of authority. confidence under the United States." If I have been successful in the argument I These are the descriptions of the offenses. have already addressed to you you will be of The fourth and sixth articles contain allegaopinion that in point of fact there was no vio- tions that the President and General Thomas lation of the Constitution of the United States conspired together by force, intimidation, and by delivering this letter of authority, because threats to prevent Mr. Stanton from continuthe Constitution of the United States makes ing to hold the office of Secretary for the Deno provision on the subject of these temporary partment of War; and also that they conspired authorities, and the law of Congress has made together by force to obtain possession of propprovision equally applicable to the recess of erty belonging to the United States. These the Senaae and to its session. are the two articles which I suppose are deHere, also, I beg leave to remind the Senate signed to be drawn under this act; and these that if Mr. Stanton's case does not fall within are the allegations which are intended to bring the tenure-oft' office act, if the order which the the articles within it. President gave to him to vacate the office was Now, it does seem to me that the attemnpt to a lawfhl order and one which he was bound to wrest this law to any bearing whatsoever upon obey, everything which is contained in this this prosecution is one of the extraordinary.article.:s well as in the preceding articles. things which the case contains. In the first fails. It is impossible, I submit, for the hon- place, so far from having been designed to aporable Managers to construct a case of an ply to the President of the United States or to intention on the part of the President to vio- any act he might do in the course of the execulate the Constitution of the United States out tion of what he believed to be his duty, it does of anything which he did in reference to tie not apply to any man or any thing within the appointment of General Thomas, provided the District of Columbia at all. order to Mr. Stanton was a lawful order and "If two or more persons within any State or TerriMr. Stanton was bound to obey it. tory of the United States." 272 Not within the District of Columbia. This been speaking of; and how and why is there to is a highly penal law, and an indictment found be attributed to General Thomas, as a coconin the very words of this act charging things to spirator, the guilty intent of designing to overhave been in the District of Columbia and throw the laws of his country, when a fair and returned into the proper court of this District, just view of his conduct would leave him enI will undertake to say, would not bear a gen- tirely without reproach? eral demurrer, because there is locality given And when you come, Senators, to the other to those things made penal by this act of Con- coconspirator, the President of the United gress. It is made applicable to certain portions States, is not the case still clearer. Make it of the country, but not made applicable to the a case of private right, if you please; put it as District of Columbia. strongly as possible against the President in But not to dwell upon that technical view order to test the question. One of you has a of the matter, and on which we should not claim to property; it may be a disputed claim; choose to stand, let us see what is this case. it is a claim which he believes may prove, when The President of the United States is of opin- judicially examined, to be sound and good. He ion that Mr. Stanton holds the office of Secre- says to A B, " Go to C D, who is in possestary for the Department of War at his pleasure. sion of that property; I give you this order to He thinks so, first, because he believes the case him to give it up to you; and if he gives it up of Mr. Stanton is not provided for in the take possession." Did anybody ever imagine tenure-of-office act, and no tenure of office is that that was a conspiracy? Does not every secured to him. He thinks so, secondly, be- lawyer know that the moment you introduce cause he believes that it would be judicially into any transaction of this kind the element decided, if the question could be raised, that of a claim of right all criminal elements are a law depriving the President of the power of purged at once; and that this is always true removing such an officer at his pleasure is not between man and man where it is a simple a constitutional law. He is of opinion that in assertion of private right, the parties to which this case he cannot allow this officer to con- are at liberty either to assert them or forego tinue to act as his adviser and as his agent to them, as they please? But this was not such execute the laws if he has lawful power to re- a case; this was a case of public right, of pubmove him; and under these circumstances he lic duty, of public right claimed upon constigives this order to General Thomas. tutional grounds and upon the interpretation I do not view this letter of authority to Gen- of the law which had been given to it by the eral Thomas as a purely military order. The law-makers themselves. How can the Presiiservice which General Thomas was invoked dent of the United States, under such circumfor is a civil service; but, at the same time, stances, be looked upon by anybody, whether Senators will perceive that the person who he may or may not be guilty or not guilty of gave the order is the Commander-in-Chief of other things as a coconspirator under this act? the Army; that the person to whom it was These articles say that the conspiracy between given is the Adjutant General of the Army; the President and General Thomas was to emthat the subject-matter to which the order re- ploy force, threats, intimidation. What they lates is the performance of services essential have proved against the President is that he to carry on the military service; and, there- issued these orders, and that alone. Now, on fore, when such an order was given by the the face of these orders, there is no apology Commander-in-Chief to the Adjutant General for the assertion that it was the design of the respecting a subject of this kind, is it too much President that anybody at any time should use to say that there was invoked that spirit of mili- force, threats, or intimidation. The order is to tary obedience which constitutes the strength Mr. Stanton to deliver up possession. The of the service? Not that it was a purely mil- order to General Thomas is to receive possesitary order; not that General Thomas would sion from Mr. Stanton when he delivers it up. have been subject to a court-martial for dis- No force is assigned to him; no authority is obeying it; but that as a faithful Adjutant given to him to apply for or use any force, General of the Army of the United States, threats, or intimidation. There is not only no interested personally and professionally and express authority, but there is no implication patriotically to have the duties of the office of of any authority to apply for or obtain or use Secretary for the Department of War performed anything but the order which was given him in a temporary vacancy, was it not his duty to to hand to Mr. Stanton; and we shall offer accept the appointment unless'he saw and proof, Senators, which we think cannot fail to knew that it was unlawful to accept it? I do be satisfactory in point of fact, that the Presinot know how, in fact, he personally consid- dent from the first had in view simply and ered it; there has been no proof given on the solely to test this question by the law; that if subject; but I have always assumed-I think this was a conspiracy it was a conspiracy to go Senators will assume-that when the distin- to law, and that was the whole of it. We guished General of the Army of the United shall show you what advice the President reStates, on a previous occasion, accepted a sim- ceived on this subject, what views in concert ilar appointment it was under views of propri- with his advisers he entertained, which, of ety and duty such as those which I have now course, it is not my province now to comment 273 upon; the evidence must first be adduced, then at the time when the act was sent to him for it will be time to consider it. his signature; and there is found set out in his The other two conspiracy articles will require answer on page 32 of the official report of these very little observation from me, because they proceedings what that opinion was; that he contain no new allegations of fact which are considered that this provision interfered with not in the fourth and sixth articles, which I his constitutional right as the Commander-inhave already adverted to; and the only dis- Chief of the Army; and that is what he said tinction between them and the others is that to General Emory. There is not even probthey are not founded upon this conspiracy act able cause to believe thathe said it for any other of 1861; they simply allege an unlawful con- than the natural reason that General Emory spiracy, and leave the matter there. They do had introduced the subject, had asked leave to not allege sufficient facts to bring the case call his attention to it, and evidently expected within the act of 1861. In other words, they iand desired that the President should say somedo not allege force, threats, or intimidation. i thing on the subject; and if he said anything I shall have occasion to remark upon these was he not to tell the truth? That is exactly articles when I come to speak of the tenth ar- what he did say. I mean the truth as he apticle, because these articles, as you perceive, prehended it. It will appear in proof, as I am come within that category which the honor- instructed, that the reason why the President able Manager announced here at an early period sent for General Emory was not that he might of the trial; articles which require no law to endeavor to seduce that, distinguished officer support them; and when I come to speak of from his allegiance to the laws and the Conthe tenth article, as I shall have occasion to stitution of his country, but because he wished discuss this subject, I wish that my remarks, so to obtain information about military movements far as they may be deemed applicable, should which he was informed upon authority which be applied to these fifth and seventh articles he had a right to and was bound to respect which I have thus passed over. might require his personal attention. I shall detain the Senate but a moment upon I pass, then, from this article, as being one the ninth article, which is the one relating to upon which I ought not to detain the Senate, the conversation with General Emory. The and I come to the last one, concerning which meaning of this article, as I read it, is that the I shall have much to say, and that is the tenth President brought General Emory before him- article, which is all of and concerning the self as Commander-in-Chief of the Army for speeches of the President. the purpose of instructing him to disobey the In the front of this inquiry the question prelaw, with an intent to induce General Emory to sents itself: What are impeachable offenses disobey it, and with intent to enable himself under the Constitution of the United States? unlawfully and by the use of military force Upon this question learned dissertations have through General Emory, to prevent Mr. Stan- been written and printed. One of them is ton from continuing to hold office. Now, I annexed to the argument of the honorable submit that, not only does this article fail of Manager who opened the cause for the proseproof in its substance as thus detailed, but cution. Another one on the other side of the that it is disproved by the witness whom they I question, written by one of the honorable Manhave introduced to support it. In the first agers themselves, maybe found annexed tothe place, it appears clearly from General Emory's proceedings in the House of Representatives statement that the President did not bring him upon the occasion of the first attempt to imthere for any purpose connected with this Ipeach the President. And there have been appropriation bill affecting the command of others written and published by learned juriststhe Army, or the orders given to the Army. touching this subject. I do not propose to vex This subject General Emory introduced him- the ear of the Senate with any of the preceself, and when the conversation was broken dents drawn from the MiddleAges. The framers. off it was again recurred to by himself asking of our Constitution were quite as familiar the President's permission to bring it to his at- with them as the learned authors of these tention. Whatsoever was said upon that sub- treatises, and the framers of our Constitution, iect was said not because the President of the as I conceive, have drawn from them the leslnited States had brought the commander of son which I desire the Senate to receive, that the department of Washington before him for these precedents are not fit to govern their that purpose, but because, havingbrought him conduct on this trial. there for another purpose, to which I shall In my apprehension, the teachings, the reallude in a moment, the commanding General quirements, the prohibitions of the Constituchose himself to introduce that subject and tion of the United States prove all that is converse upon it, and obtain the President's necessary to be attended to for the purposes views upon it. of this trial. I propose, therefore, instead of In the next place, having his attention called a search through the precedents which were to the act of Congress and to the order under made in the times of the Plantagenets, the it, the President expressed precisely the same Tudors, and the Stuarts, and which have been opinion to General Emory that he had pre- repeated since, to come nearer home and see viously publicly expressed to Congress itself what provisions of the Constitution of the C. I.-18. 274 United States bear on this question, and whether ecutive in the appointment to offices, and in their they are not sufficient to settle it. If they are Ijudicial character as a court for thetrialof impeachit is quite immaterial what exists elsewhere. ments, as in the business of appointments theExecutire will be the principal agent, the provisions relatMy first position is, that when the Constitu- ing to it will most properly be discussed in the tion speaks of "treason, b ribery, and other examination of that department. Wewilltherefore high crimes and misdemeanors" it refers to, conclude this head with a view of the judicial hight r character of the Senate." and includes only, high criminal offenses against the United States, made so by some law of the And then it is discussed. The nextposition United States existing when the acts com- o which I desire the attention of the Senat plained of were doe and I say that th is, that there is enough written in the Constiplainly to be inferred from each and every pro- tution to prove that this is a court in which a vision of the Constitution on the subject of judicial trial is now being carried on.'The impeachment. \ Senate of the United States shall have the Treason" and "bribery." Nobody will 41sole powerto tryall impeachments." "When doubt that these are here designated hih lthe President is tried the Chief Justice shall crimes and misdemeanors against the United crimies and misdemeanors against the United |preside." The trial of all crimes, except in States, made such by the laws of the United | I case of impeachment, shall be by jury. This, States, awhich the framers of the Constitu- then, is the trial of a crime. You are the tion knew must be passed in the nature of the triers, presided over by the Chief Justice of Governnenth they were about to create, be- i the United States in this particular case, and at that on the express words of the Constitution. cause these are offenses which strike at ther hIgh existence of that Government-" other There is also, according to its express words, crimes and misdemeanors."'.roscitur a nsociis. i to be an acquittal or a conviction on this trial High crimes and misdemeanors; so high that for a crime. " No person shall be convicted Hdswithout the concurrence of two thirds of the they belong in this company with treason and witoembt the concurrpresent." Thrce of two thirds of the a bribery. That is plain on the face of the Con- I meders present." There is also to be a stitution; in the very first step it takes on the subject of impeachment. "High crimes and "'Judgment in cases of impeachment shall not exmisdemeanors" against what law? There can tend further than removal from office and disqualibe no crime, there can be no misdemeanor | fication to hold any office of honor, trust, or profit be.o crime, therec e noiseunder the United States." without a law, written or unwritten, express the or implied. There must be some law; other- Here, then, there is the trial of a crime, a wise there is no crime. My interpretation of! trial by a tribunal designated by the Constituit is that the language "high crimes and mis- tfion in place of court and jury, a conviction. demeanors" means " offenses against the laws if guilt is proved, a judgment on that convicof the United States." Let us see if the Con- i l tion, a punishment inflicted by the judgment for stitution has not said so. I a crime; and this on the express terms of the The first clause of the second section of the Constitution itself. And yet, say the honorsecondl article of the Constitution reads thus: V1 able Managers, there is no court to try the crime " The President of the Unrited States shall I and no law by which the act is to be judged. have the power to grant reprieves and pardons i The honorable Manager interrupted me to say for offenses against the United States, except that he qualified that expression of no law; incases of impeachment." " Offenses against his expression was "no common or statute the United States" would include " cases of law." Well, when you get out of that field impeachment," and they might be pardoned you are in a limbo, a vacuum, so far as law is by the President if they were not excepted. concerned, to the best of my knowledge and Then cases of impeachment are, according to belief. the express declaration of the Constitution I sy, then, that itis impossible not to come itself, cases of offenses against the United to the conclusion that the Constitution of the States. United States has designated impeachable Still, the learned Manager says that this is offenses as offenses against the United States, not a court, and that, whatever may be the that it has provided for the trial of those character of this body, it is bound by no law. offenses, that it has established a tribunal for Very different was the understanding of the the purpose of trying them, that it has directed fathers of the Constitution on this subject. the tribunal in case of conviction to pronounce Mr. Manager BUTLER. Will you state a judgment upon the conviction and inflict a where it was I said it was bound by no law? punishment. All this being provided for, can Mr. STANBERY. " A law unto itself." it be maintained that this is not a court, or Mr. Manager BUTLER. "No common or that it is bound by no law? statute law" was my language. But the argument does not rest mainly. Mr. CURTIS. I desireo to refer to the sixty- I think, upon the provisions of the Constitufourth number of the Federalist, which is found tion concerning impeachment. It is, at any in Dawson's edition, on page 453: rate, vastly strengthened by the direct pro"The remaining powers which the plan of the hibitions of the Constitution. "Congress shall Convention allots to the Senate, in a distinct capa- pass no bill of attainder or expostfacto law." city, are comprised in their participation with the Ex- According to that prohibition of the Constitu 275 tion, if every member of this body sitting in its of Representatives by a majority to vote an legislative capacity and every member of the impeachment and send up certain articles and' other body sitting in its legislative capacity, have two thirds of this body vote in favor of should unite in passing a law to punish an act conviction, and there is an attainder; and it after the act was done, that law would be a is done by the same process and depends on mere nullity. Yet what is claimed by the hon- identically the same principles as a bill of orable Managers in behalf of members of this attainder in the English Parliament. The body? As a Congress you cannot create a law individual wills of the legislators, instead of to punish these acts if no law existed at the the conscientious discharge of the duty of the time they were done; but sitting here as judges, judges, settle the result. not only after the fact but while the case is I submit, then, Senators, that this view of on trial, you may individually, each one of the honorable Managers of the duties and you, create a law by himself to govern the case. powers of this body cannot be maintained. According to this assumption the same Con- But the attempt made by the honorable Manstitution which has made it a bill of rights of agers to obtain a conviction upon this tenth the American citizen, not only as against Con- article is attended with some peculiarities gress but as against the Legislature of every which I think it is the duty of the counsel to State in the Union, that no ex post facto law the President to advert to. So far as regards shall be passed-this same Constitution has the preceding articles, the first eight articles erected you into a body and empowered every are framed upon allegations that the President one of you to say aut inveniam aut faciam broke a law. I suppose the honorable Manviam: if I cannot find a law I will make one. agers do not intend to carry their doctrine so Nay, it has clothed every one of you with im- far as to say that unless you find the President perial power; it has enabled you to say, sic did intentionally break a law those articles are volo, sic jubeo, stat pro ratione voluntas: I supported. As to those articles there is some am a law unto myself, by which law I shall law unquestionably, the very gist of the charge govern this case. And, more than that, when being that he broke a law. You must find that' each one of you before he took his place the law existed; you must construe it and here called God to witness that he would ad- apply it to the case; you must find his crimminister impartial justice in this case accord- inal intent willfully to break the law, before ing to the Constitution and the laws, he meant the articles can be supported. But we come such laws as he might make as he went along. now to this tenth article, which depends upon The Constitution, which had prohibited any- no law at all, but, as I have said, is attended body from making such laws, he swore to ob- with some extraordinary peculiarities. serve; but he also swore to be governed by his The complaint is that the President made own will; his own individual will was the law speeches against Congress. The true statewhich he thus swore to observe; and this spe- ment here would be much more restricted than cial provision of the Constitution that when that; fbr although in'those speeches the Presthe Senate sits in this capacity to try an im- ident used the word " Congress," undoubtedly peachment the Senators shall be on oath means he did not mean the entire constitutional body merely that they shall swear to follow their organized under the Constitution of the Uniown individual wills I I respectfully submit ted States; he meant the dominant majority this view cannot consistently and properly be in Congress. Everybody so understood it; taken of the character of this body or of the everybody must so understand it. But the duties and powers incumbent upon it. complaint is that he made speeches against Look for a moment, if you please, to the those who governed in Congress. Well, who other provision. This same search into the are the grand jury in this case? One of the English precedents, so far from having made parties spoken against. And who are the tryour ancestors who framed and adopted the ers? The other party spoken against. One Constitution in love with them, led them to would think there was some incongruity in put into the Constitution a positive and abso- this; some reason for giving pause before taklute prohibition against any bill of attainder. ing any very great stride in that direction. The What is a bill of attainder? It is a case honorable House of Representatives sends its before the Parliament where the Parliament Managers here to take notice of what? That make the law for the facts they find. Each the House of Representatives has erected itself legislator (for it is in their legislative capa- into a school of manners, selecting from its city they act, not in a judicial one) is, to use ranks those gentlemen whom it deems most the phrase of the honorable Managers, "a law competent by precept and example to teach unto himself;" and according to his discre- decorum of speech; and they desire the judgtion, his views of what is politic or proper ment of this body whether the President has under the circumstances, he frames a law to not been guilty of indecorum, whether he has meet the case and enacts it or votes in its spoken properly, to use the phrase of the honenactment. According to the doctrine now orable Manager. Now, there used to be an advanced bills of attainder are not prohibited old-fashioned notion that although there might by this Constitution; they are only slightly be a difference of taste about oral speeches, modified. It is only necessary for the House and, no doubt, always has been and always 276 will be many such differences, there was one or either House of the saidCongress, orthesaidPres%very important test in reference to them, and ident, or to bring them, or either or any of them the at is hether they are true or false; but it hatred of the good people of the United States, or to stir up sedition within the United States, or to excite seems that in this case that is no test at all. any unlawful combinations therein," &c. The honorable Manager, in opening the case, Section three providesfinding, I suppose, that it was necessary, in "That if any personshall hbe prosecuted under this some manner, to advert to that subject, has act for the writing or publishing any libel aforesaid, done it in terms which I will read to you: it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defense the "The words are not alleged to be either false or truth of the matter contained in the publication defamatory, because it is not within the power of charged as a libel. And the jury who shall try the any man., however high his official position, in effect causeshall have a right to determine the law and the to slander the Congress of the United States, in the fact, under the direction of the court, as in other ordinary sense of that word, so as to call on Con- cases." gress to answer as to the truth of the accusation." Considering the nature of our hovernment, I ore now to read from the fourth volume considering the expeience which we have gonef of Mr. Madison's works, pages 542 and 547, through on this subject, that is a pretty lofty passages which, in my judgment, are as masclaim. Why, if the Senate please, if you go terly as anything Mr. Madison ever wrote, back to the time of the Plantagenets atnd seek upon the relations of the Congress of the Unifor precedents there, you will not find so lofty ted States to the people of the United States a claim as that. I beg leave to read from two;1 contrast with t relations of the Governstatutes, the first being 3 Edward I, ch. 34, and ment of Great Britain to the people of that ment of Great Britain to the people of that the second 2 Richard 11, ch. 1, a short passage. island; and the necessity which the nature of The statute, 3 Edward I, ch. 34, after the pre- our Government lays us under to preserve amble, enacts — freedom of the press and freedom of speech: "That from henceforth none be so hardy to telldifference between the British Govor publish any false news or tales, whereby discord The essential difference between the British Govor occasion of discord or slander may grow between ernment and the American Constitution will place the king and his people, or the great men of the this subject in the learest light. realm; and he that doeth so shall be taken and kept "In the British Government the danger of enin until he hath brought him into court which was croachments on the rights of the people is underthe first author of the tale." stood to be confined to the Executive Magistrate. The Representatives of the people in the Legislature The statute 2 Riclard II, c. 1, s. 5, enacted are only exempt themselves from distrust, but are with some alterations the previous statute. It considered as sufficient guardians of the rights of cornmenced thus-: their constituents against the danger from the Executive. Hence it is a principle that the Parliament is "Of devisors of false news and of horrible and false unlimited in its power, or, in their own language, is lies of prelates, dukes, earls, barons, and other nobles omnipotent. Hence, too, all the ramparts for protectand great men of the realm; and also of the chan- ing the rights of the people-such as their Magna cellor, treasurer, clerk of the privy seal, steward of Charta, their Bill of Rights, &c.-are not reared the king's house, justices of the one bench or of the against the Parliament, but against the royal preother, and of other great officers of the realm." rogative. They are merely legislative precautions Tle reagainst Executive usurpations. Under such a GovThe great men of the realm in the time of ernment as this, an exemption of the press from preRichard II were protected only against " horri- vious restraint, by licensers appointed by the king, ble and false lies," and when we arrive in the is all the freedom that can be secured to it. "In the United States the case is altogether differcourse of our national experience during the ent. The people, not the Government, possess the war with France and the administration of absolute sovereignty. The Legislature, no less than Mr. Adams to that attempt to check, not firee the Executive, is under limitations of power. Encroachments are regarded as possible from the one speech, but free writing, Senators will find that as well as from the other. 1Hence, in the United although it applied only to written libels it States, the great and essential rights of the people contained an express section that the truth are secured against legislative as well as against executive ambition. They are secured, not by laws might be given in evidence. That was a law, paramount to prerogative, but by constitutions paras Senators know, making it penal by written amountto laws. This security of the freedom of the libels to excite the hatred or contempt of the press requires that it should be exempt not onlyfrom iopbe agatnst Congress among other offenses; previous restraint by the Executive, as in Great people against Congress among other offenses; Britain, but from legislative restraint also; and this but the estimate of the elevation of Congress exemption, to be effectual, must be an exemption not above the people was not so high butthat it was only from the previous inspection of licenses, but from the subsequent penalty of laws." thought proper to allow a defense of the truth to be given in evidence. I beg leave to read One other passage on page 547, which has from this sedition act a part of one section an extraordinary application to the subject now and make a reference to another to support before you: the correctness of what I have said. It is found "1. The Constitution supposes that the President, in Statutes-at-Large, page 596: the Congress, and each of its Houses may not discharge their trusts, either from defect of judgment "That if any person shall write, print, utter, or or other causes. Hence they are all made responsipublish, or shall cause or procure to be written, ble to their constituents at the returning periods of printed, uttered, or published, or shall knowingly election; and the President, who is singly intrusted and willingly assist or aid in writing, printing, utter- with very great powers, is, as a further guard, subing, or publishing any false, scandalous, and mali- jected to an intermediate impeachment. cious writing or writings against the Government of "2. Should it happen. as the Constitution supposes the United States, or either House of the Congress it may happen, that either of these branches of the of the United'States, or the President of the United Government may not have duly discharged its trust, States, with intent to defame the said Government, it is natural and proper that, according to the cause 277 and degree of their faults, they should he brought dom of speech, Senators, in consequence of into contempt or disrepute, and incur the hatred of which thousands of men went to the scaffold the people. "3. Whether it has, inany case, happened that the under the Tudors and the Stuarts. That is proceedings of either or all of those branches evince the same freedom of speech which caused such a violation of duty as to justify a contempt, a thousands of heads of men and of women to disrepute, or hatred among the people, can only be determined by a free examination thereof, and a free roll from the guillotine in France. That is communication among the people thereon. the same freedom of speech which has caused "4. Whenever it may have actuallyhappened that in our day more than once "order to reign in proceedings of this sort are chargeable on all or Warsawi' The persons did not speak propeither of the branches of the Government, it is the duty, as well as right, of intelligent and faithful citi- erly in the apprehension of the judges before zens to discuss and promulge them freely, as well to whomtheywere hrought. Isthat the freedom control them by the censorship of the public opin- of speech intended to be secured by our Conion as to promote a remedy according to the rules of of speech intended to be secured by our Conthe Constitution. And it cannot be avoided that stitution? those who are to apply the remedy must feel,in some Mr. Chief Justice and Senators, I have to degree, a contempt or hatred against the transgress- detain you hut a very short time longer, and ing party." detain you but a very short time longer, and that is by a few observations concerning the These observations of Mr. Madison were eleventh article, and they will be very few, for made in respect to the freedom of the pre eeason that the eleventh article, as I unThere were two views entertained at the time derstand it, contains nothing new which needs when the sedition law was passed concerning any notice from me. It appears by the official the power of Congress over this subject. The copy of the articles which is before us, the one view was that when the Constitution spoke printed copy, that this article was adopted at of freedom of the press it referred to the com- a later period than the preceding nine articles, mon-law definition of that freedom. That was and I suppose it has that appearance, that the the view which Mr. Madison was controverting honorable Managers, looking over the work in one of the passages which I have read to they had already performed, perhaps not feelyou. The other view was that the common- ing perfectly satisfied to leave it in the shape in law definition could not be deemed applicable, which it then stood, came to the conclusion to and that the freedom provided for by the Con- add this eleventh article, and they have comstitution, so far as the action of Congress was pounded it out of the materials which they had concerned, was an absolute freedom of the previously worked up into the others. In the press. But no one ever imagined that freedom first place, they said, here are the speeches; of speech, in contradistinction from written we will have something about them, and aclibel, could be restrained by a law of Congress; cordingly they begin by the allegation that for whether you treat the prohibition in the the President at the Executive Mansion, on a Constitution as absolute in itself or whether certain occasion, made a speech, and without you refer to the common law for a definition giving his words, but it is attributed to him of its limits and meaning.the result will be the that he had an intention to declare that this same. Under the common law no man was was not a Congress within the meaning of the ever punished criminally for spoken words. Constitution; all of which is denied in his If he slandered his neighbor and injured him answer, and there is no proof to support it. The he must make good in damages to his neighbor President, by his whole course of conduct, has the injury he had done; but there was no such shown that he could have entertained no such thing at the common law as an indictment for intention as that. He has explained that fully spoken words. So that this prohibition in the in his answer, and I do not think it necessary Constitution against any legislation by Con- to repeat the explanation. gress in restraint of the freedom of speech is Then they come to the old matter of the necessarily an absolute prohibition; and there- removal of Mr. Stanton. They say he made fore this is a case not only where there is no this speech denying the competency of Conlaw made prior to the act to punish the act, gress to legislate, and following up its intent but a cse where Congress is expressly pro- he endeavored to remove Mr. Stanton. I have hibited from making any law to operate even sufficiently discussed that, and I shall not weary on subsequent acts. the patience of the Senate by doing so any What is the law to be? Suppose it is, as the further. honorable Managers seem to think it should Then they say that he made this speech and be, the sense of propriety of each Senator ap- followed up its intent by endeavoring to get pealed to. What is it to be? The only rule possession of the money appropriated for the I have heard-the only rule which can be an- military service of the United States. I have nounced-is that you may require the speaker said all I desire to say upon that. to speak properly. Who are to be the judges Then they say that he made it with the intent whether he speaks properly? In this case the to obstruct what is called the law " for the betSenate of the United States on the presentation ter government of the rebel States,.' passed in of the House of Representatives of the United March, 1867, and in support of that they have States; and that is supposed to be the freedom offered a telegram to him from Governor Par. of speech secured by this absolute prohibition sons and an answer to that telegram from the of the Constitution. That is the same free- P1resident,upon the subject of an amendment of 278 the Constitution, sent in January before the the war, generally? Give us an idea of your March when the law came into existence, and, so service. far as I know, that is the only evidence which Answer. During the administration of the they have offered upon that subject. I leave, War Department by General Cameron I was therefore, with these remarks, that article for on duty as adjutant general in the office. I the consideration of the Senate. accompanied him on his western trip to MisIt must be unnecessary for me to say any- souri and to Kentucky and returned with him. thing concerning the importance of this case, Then, after that, after making that report, he not only now but in the future. It must be left the Department, and Mr. Stanton was apapparent to every one, in any way connected pointed. I remained in the Department some with or concerned in this trial, that this is and time after Mr. Stanton was appointed, several will be the most conspicuous instance which ever months. The first duty he placed me on from has been or can ever be expected to be found the office-at any rate as one of the duties-he of American justice or Ainerican injustice, of sent me down on the James river to make exthat justice which Mr. Burke says is the great changes of prisoners of war under the arrangestanding policy of all civilized States, or of that ment made by General Dix with the rebels. injustice which is sure to be discovered and Mr. Manager BUTLER. To what point is which makes even the wise man mad, and which, this evidence? in the fixed and immutable order of God's Mr. STANBERY. To bring around the providence, is certain to return to plague its reason why there was the interruption in the inventors. Adjutant General's business, and how long it Mr. CONNESS, (at two o'clock and twenty continued and when he returned. It will be minutes p. m.) Mr. President, I move that through in a moment. [To witness.] What the court take a recess for fifteen minutes. was the next service? The motion was agreed to; and the Chief Answer. During the war I was sent once or Justice resumed the chair at twenty-five min- twice-three times, perhaps-to Harrisburg to utes to three o'clock. organize volunteers and to correct some irregTheCHIEF JUSTICE. Senators will please ularities there; not irregularities exactly, but resume their seats and give their attention. in order to put regiments together, skeleton Gentlemen of counsel for the President, you regiments. 1 was sent there and ordered to will please proceed with the defense. bring them together-once at Philadelphia and Mr. STANBERY. We will call General twice at Harrisburg. I was sent to Harrisburg Thomas first. also about the time that Lee was invading Maryland and Pennsylvania; but my principal LORENZO THOMAS sworn and examined. duty was down on the Mississippi river. -By Mr. STANBERY: Question. What was the duty there? Question. General Thomas, will you state Answer. Threefold. The first wastoinspect how long you have been in the service? the armies on the river in that part of the Answer. I went to West Pint in the year country. The second was to look into cotton 1819. I entered the Military Academy in Sep- lands. tember of that year, and was graduated July Mr. Manager BUTLER. Will not that ap1, 1823, and appointed second lieutenant of pear better by the order? the fourth infantry. Ihave been in the Army The WITNESS. I have it. since that date. Mr. STANBERY. The orders are here, Question. What is your present rank in the but it will take a great while to introduce Army? them. Answer. I am adjutant general of the Mr. Manager BUTLER. Very well. Army, with the rank of brigadier general, Mr. STANBERY. I will ask him nothin and major general by brevet. but what he has performed. [To the witness.] Question. When was your brevet conferred? What was the third duty? Answer. I really forget. I would have to Answer. To take charge of the negro popurefer to the Army Register for that. lation and to organize them as troops. Question. Can you recollect the year? Question. Were you the first officer who Answer. Yes, sir; it was after I returned organized negro regiments? from one of my southern trips. Answer. No, sir. Question. During the war? Question. Who was prior to you? Answer. Yes, sir. Answer. I think that General Butler had Question. Toward the close of it? organized some in New Orleans. Some were Answer. Toward the close of it. I was first organized before I took charge. I was sent made a colonel, as adjutant general, on the down on the Mississippi and in the rebellious 7th of March, when Colonel Cooper went States, and I had charge of all of them there. out. Question. What number of regiments were Question: When were you first appointed organized under your care? adjutant general? Answer. I organized upwards of eighty Answer. On the 7th of March, 1861. thousand colored soldiers. The particular Question. On what service were you during number of regiments I do not recollect, because 279 they were numbered some with those in New February. General Grant's note to me in anOrleans and some with those in the East. swer to that, putting me in charge, was dated Question. After that service was performed the next day-the 14th. what was the next special duty you were Question. Who had occupied your office durdetailed on? ing your absence? Answer. I returned to this city after I heard Answer. General E. D. Townsend, Assistof the surrender of Lee. I was then on my ant Adjutant General. way up the river. I came to Washington. The Question. Your assistant? next duty I was placed upon was to make an.Answer. My first assistant with the rank of inspection of the Provost Marshal General's colonel. office throughout the country, first at Wash- Question. Then you neverlost your position ington, and then throughout the loyal States. as adjutant general? I performed that service. Answer. Never. Question. What next? Question. Did you apply to the President to.nswer. My last service was, I was ordered restore you? throughout the United States to examine the Answer. I spoke to the President on two or national cemeteries under a law passed by Con- three occasions, some months ago, stating that gress. That duty I have performed; but my when I got through this particular business I report is not yet in. It is very voluminous. should like to have charge of my office. He Those are the duties that I have performed. knew what my wishes were; but on this occaQuestion. Did those duties fall under your sion I did not mention it to him. proper duties as adjutant general; and in Mr. Manager BUTLER. Stop a moment. what capacity? I wish to object in limine to any conversation Answer. Perfectly so. As adjutant general between this person and the President. I am ex officio inspector of the Army, and these Mr. STANBERY. This is his application duties are germane to it. to the President that I am trying to prove, to Question. This duty of inspection of the be restored to his duty as Adjutant General. cemeteries was the last special duty that you Mr. Manager BUTLER. 1 do not object to have been called upon to perform? that fact; but I do not want this conversation. Answer. Yes, sir. Mr. STANBERY. I do not want any conQuestion. When did you return from having versation now. [To thewitness.] You applied performed that last special duty? once or twice to him before to restore you? Answer. I came to Washington on three Answer. I stated that that was my wish. different occasions. I would come here and Question. On the 13th of February you rethen would go back. ceived the order which you had requested Question. When did you return from this before restoring you to your position? last duty or this last detail upon the national Answer. Yes, sir. It was not'a note tome; cemetery business? it was a note to General Grant. Answer. I do not think I can give the pre- Question. But that note restored you to your cise date; but it was about the close of last position? year. Answer. Yes, sir. Question. Toward the close of the year 1867? Question. When, after that, did you see the Answer. Yes, sir. President, and what did he say to you or did Question. You say you had then completed you say to him between that time and the time this last duty or service? you received your order on the 21st? Answer. I hale visited every State where the Answer. On one occasion I went over to cemeteries were. The only ones I have not take him some resignations — visited are two very small ones near this city. Question. After you had been restored to I left them to the last. your office? Question. You were then ready to make Answer. Yes, sir; some resignations that your report? Mr. Stanton gave me which were on his table. Answer. Yes, sir; I was writing it out and Question. To take over? would have had it ready if it had not been for Answer. Yes, sir. the interruption of this court. It is nearly Question. Was that the first occasion on completed. which the President spoke to you about taking Question. You have not since been detailed possession of -the War Office? upon any other special service except about Mr. Manager BUTLER. Stop a moment. this War Department? I object to that question: it is leading, and so Answer. No, sir; I was engaged in making grossly leading, in my judgment, that it is this report and I continued on that duty until almost intentional. "' Was that the first occaI was placed in charge of the Adjutant Gen- sion he spoke to you "-assuming that he had eral's office. spoken. Question. At what date were you returned Mr. STANBERY. He did speak afterward, to your Adjutant General's office? we know. Answer. The President sent for me and gave Mr. Manager BUTLER. How do we know? me a note to General Grant dated the 13th of Mr. STANBERY. We will come to it in 280 another way. [To the witness.] Do you rec- Answer. He said he was determined to supollect what occurred on the 21st of February? port the Constitution and the laws, and he deAnswer. Yes, sir. I thought your question sired me to do the same. [Laughter.] was anterior to that. Mr. Manager BUTLER. I do not object. Mr. STANBERY. It was. What happened The WITNESS. I told him I would. in the War Office on the morning of the 21st By Mr. STANBERY: of February in regard to closing the office on Question. What further took place or was the succeeding day, the 22d? said? Answer. Toward twelve o'clock I went up Answer. He then directed me to deliverthis myself and asked Mr. Stanton, then Secretary paper addressed to Mr. Stanton to him. of War, if I should close the office the next day, Question. Was thatall? Did you then leave? the 22d of February, and he directed me to do Answer. I told him that I would take an it. I issued such a circular and sent it around officer in my department with me to see that I to the different Departments. delivered it and note what occurred, and I stated Question. Was that an order made by you as that I would take General Williams. adjutant general? Question. Who is General Williams? Answer. Yes, sir; by his order. Answer. One of the assistant adjutants genQuestion. Was that before you had seen the eral in my department on duty there. President that day? Question. You told the President you would Answer. Yes, sir. take him along to witness the transaction? Question. Now, what took place after you Answer. Yes, sir. had issued that order? Question. What did you do then? Answer. Very soon after I had issued it I Answer. I went over to the War Departreceived a note from Colonel Moore, the Pri- ment, went into one of my rooms, and told vate Secretary of the President, that the Presi- General Williams I wished him to go with me; dent wished to see me. I immediately went I did not say for what purpose. I told him I over to the White House, and saw the Presi- wanted him to go with me to the Secretary of dent. He came out of his library with two com- War and note what occurred. munications in his hand. Question. Without telling him what it was Question. He came out with two papers in you intended? his hand? Answer. I did not tell him anything about Answer. Yes, sir. He handed them to Col- it. I then went to the Secretary's room and onel Moore to read. They were read to me. handed him the first paper. Question. Read aloud? Question. When you say the first paper, Answer. Read aloud. One was addressedto which was that? Mr. Stanton, dismissing him from office, and Answer. The paper addressed to him. directing him to turn over the books, papers, Question. What took place then? Did he &c., pertaining to the War Department. The read.it? other was addressed to me, appointing me Sec- Answer. He got up when I came in, and we retary of War ad interim, and stating that Mr. bade good morning to each other, and I handed Stanton had been directed to transfer the office him that paper, and he put it down on the to me. corner of his table and sat down. Presently Question. Was that the first time you saw he got up and opened it and read it, and he those papers. or either of them? then said, " Do you wish me to vacate the Answer. The first time. office at once, or will you give me time to reQuestion. You had no hand whatever in move my private property?" I said, "Act writing those papers or dictating them? your pleasure." -Answer. Nothing whatever. Question. Did he say what time he would Mr. Manager BUTLER. Excuse me; that require? is very leading again. Answer. No, sir; I did not ask him. Ithen Mr. STANBERY. Well. [To the witness.] handed him the paper addressed to me, which What was said by the President at that time to he read, and he asked me to give him a copy. you or by you to the President? Question. What did you say? Mr. Manager BUTLER. Do you prepose Answer. In the meantime General Grant to put in conversations — came in, and I handed itto him. General Grant Mr. STANBERY. I do. asked me if that was for him. I said no; Mr. Manager BUTLER. Between this party merely forhis information. I promised a copy, and the President? and I went down. Mr. STANBERY. Right there, certainly. Question. Down where? To your office? [Handing him the papers.] Answer. Into my own room. Mr. EVARTS. Which they put in evidence. Question. Your own room is below that of the Mr. Manager BUTLER. I will not inter- Secretary; on the first floor? pose the objection here, sir. Answer. Below General Schriver's room; By Mr. STANBERY: the one opposite the Secretary's. Question. What, then, was said between you Question. It is on the lower floor? and the President? Answer. Yes, sir., 281 Question. You went down and made a copy Question. Will you read it, if you please? of the order?. Answer. "War Department, Washington Answer. I had a copy made, which I certi- city, February 21, 1868fied as Secretary of War ad interim. I took Mr. Manager BUTLER. Stop a moment, if that up and handed it to him. He then said, you please. Let us see that paper. "I do not know whether I will obey your [The paper was thereupon handed to the instructions or whether I will resist them." Managers and examined by them.] Nothing more passed of any moment, and I.Mr. Manager BUTLER. We have no obleft. jection. Question. Was General Grant there at the Mr. STANBERY, (to the witness.) Now second interview? read it, if you please, General. Answer. No, sir. The witness read as follows: Question. The Secretary was alone then? WAR DEPARTMENT, Answer. He was alone. His son may have WASHINGTON CITY, ebbruary 21, 1868. been there, because he was generally in the SIR: I am informed that you presume to issue orders as Secretary of War ad interim. Such conduct room. and orders are illegal, and you are hereby commanded Question. Did General Williams go up with to abstain from issuing any orders other than in your you the second time? capacity as Adjutant General of the Army. Your obedient servant, Answer. No, sir. EDWIN M. STANTON, Question. What time of the day was this? secretary of War. Answer. I think it was abdut twelve o'clock Brevet Major General L. THOMAS, Acdiiutant General that I went up to see the Secretary, and this Question. Did you see the President after was just after I came down and wrote the order- that interview? it was toward one o'clock, I suppose. Answer. I did. Question. It was immediately after you had Question. What took place? written the order to close the office? Mr. Manager BUTLER. I object now, Mr. Answer. Yes, I got the note immediately President and Senators, to the conversation after from Colonel Moore. between the President and General Thomas. Question. Was that all that occurred between Up to this time I did not object, as you obyou and the Secretary on that day, the 21st? served, upon reflection, to any orders or direcAnswer. I think it was. [After a pause.] tions which the President gave, or any converNo, no; I was confounding the 22d with the sation had between the President and General 21st. Thomas at the time of issuing the commission. Question. What further? But now the commission has been issued; the Answer. I went into the other room and he demand has been made; ithas been refused; and was there, and I said that I should issue orders a peremptory order given to General Thomas as Secretary of War. He said that I should to mind his own business and keep out of the not; he would countermand them, and he War Office has been put in evidence. Now, turned to General Schriver and also to General I suppose that the President, by talking with Townsend, who were in the room, and directed General Thomas, or General Thomas, by talkthem not to obey any orders coming from me ing with the President, cannot put in his own as Secretary of War. declarations for the purpose of making evik By Mr. Manager BUTLER: dence in favor of himself. The Senate has Question. Do I understand that this was the already ruled by solemn vote, and in conso21st? nance, I believe, with the opinion of the preAnswer. I think it was the 21st. siding officer, that there were such evidence of By Mr. STANBER~: common intent between these two parties as to Question. The 22d or 21st? allow us to put in the acts of each to bear upon Answer. The 21st, I think. What brings it the other; but I challenge any authority that to my mind is, he wrote a note which he handed can be shown anywhere that, in trying a man me prolibiting me from acting on the subject. for an act before any tribunal, whether a judiQuestion. Have you got that note? cial court or any other body of tryers, testiAnswer. I think I gave it to you. I have mony can be given of what the respondent some here; probably it may be among them. said in his own behalf, and especially to his I will look. The note is dated February 21; I servant, and a fortiori to his coconspirator. know that. A conspiracy being alleged, can it be that the Question, (presenting a paper to the wit- President of the United States can call up any ness.) See if that is the order that he then officer of the Army, and, by talking to him gave you? after the act has been done, justify the act Answer. That is it. which has been done? Question. I see the body of it is not in Mr. The act which we complain of was the removal Stanton's handwriting? of Mr. Stanton and the appointment of Mr. Answer. He dictated it to General Town- Thomas. That has been done; that is, if he send. That is his handwriting. A copy was can be removed at all. I understand the argumade of it, and Mr. Stanton signed it, and mentjust presented to us by the learned counsel handed it to me. who is absent, after having delivered his argu. 282 ment, is, that there was no removal at all, and but it is a question of a legal removal, and that no appointment at all. Then, of course, if we are upon; and I now understand the honthere was not, there has not been anything orable Manager to say that that order, accorddone; we might as well stop here. Assuming, ing to his judgment, effected a legal removal, however, the correctness of another part of and it was not necessary for Mr. Stanton's legs his argument, to wit, that the only power of to move him out of office; he was already removal remained in the President or in the out by the order. If Mr. Stanton was out by President and the Senate; assuming that to be the order, the learned Managers are also out true, and therefore that he could not be quite by the order, for then it must be a legal order, right in his idea that the question of removal making a legal removal, not a forcible, illegal depended upon Mr. Stanton's legs in walking ouster. out, because everything had been done but But, says the learned Manager, the transacthat; assuming that that portion of his argu- tion ended in giving the order and receiving ment is the better one we insist that there was the order, and you are to have no testimony of a removal, there was an appointment, and that what was said by the President or General is the act at any rate which is being inquired Thomas except what was said just then, beabout; for whatever the character of that act cause that was the transaction; that was the is there is the end, be it better or worse. res gestce. Does the learned gentleman forget But after that act I mean to say that Mr. his testimony? Does he forget how he atThomas cannot make evidence for himself by tempted to make a case? Does he forget, not going and talking with the President, nor the what took place in the afternoon between the President with Mr. Thomas. Even supposing President and General Thomas that we are that the act was as innocent a thing as a con- now going into, but what took place that night? spiracy to get up a lawsuit, after the conspir- Does he forget what sort of a case he attempts acy had taken place and it had eventuated in to make against the.President, not at the time the act, then they could not put in their decla- when that order was given, nor before it was rations. True, there is not much evidence of given, nor in the afternoon of the 21st, but any such conspiracy, because I should suppose under his conspiracy counts, the Managers that if the President meant to conspire with have undertaken to give in evidence that on anybody to get up a lawsuit he would have the night of the 21st General Thomas declared conspired with his Attorney General and not that he was going to enter the War Office by his Adjutant General. He is a queer person force? with whom to make a conspiracy to get up a That is the matter charged as illegal; and lawsuit. Buteven a thing so innocentas that, the articles say that the conspiracy between after it was done, could not be ameliorated, General Thomas and the President was that defended, altered, or changed by the declara- the order should be executed by the exhibition tions of the parties, one to the other. There- of force, intimidation, and threats, and to fore, in limine, I must object; and I need not prove that what has he got here? The declago any further now than object to any evidence rations of General Thomas, not made under of what the President says, which is not a part oath, as we propose to have them made, but of the thing done, a part of the res gestce, any his mere declarations, when the President was conversation which takes place after the thing absent and could not contradict him —not, as done, after the act of which we complain. now, under oath, and all the conversation when Mr. STANBERY. Mr. Chief Justice, if I the President was present and could contraunderstand the case as the gentleman supposes diet or might admit. The honorable Manager it to be now, the whole case depends upon the has gone into all that to make a case against removal of Mr. Stanton. the President of conspiracy; and not merely Mr. Manager BUTLER. I have not said that, but proves the acts and declarations of any such thing. I do not know what you under- General Thomas on the 22d; and not only stand. that, but as late as the 9th of March, at the * Mr. STANBERY. You say thetransaction presidential levee brings a witness, with the stops with issuing the order for his removal. eyes of all Delaware upon him, [laughter,] Mr. Manager BUTLER. That transaction and proves by that witness, or thinks he has stops. proved, that on that night General Thomas Mr. STANBERY. Does not your conspir- also made a declaration involving the Presiacy stop? Does not your case stop? That is dent in this conspiracy, as a party to a conthe question. spiracy still existing to keep Mr. Stanton out Mr. Manager BUTLER. No. of office. Mr. STANBERY. I agree myself that your Now, how are we to defend against these case stops with that order, because I agree declarations made on the night of the 21st or with what now seems to be the view taken by the 22d, and again as late as the 9th of March? the honorable Manager, that that did in fact Does not the transaction run through all that remove Mr. Stanton per se. If it did, it was time? How is the President to defend himself the law that give it that effect; for there is no if he is allowed to introduce no proof of what question about a removal merely in fact, no he said to General Thomas after the date of question about an actual ouster by force here; the order? May he not call General Thomas? 283 Is General Thomas impeached here as a co- for that act, he can bring his servant, his coconspirator? Is his mouth shut by a prosecu- conspirator, and show what he said to his tion? Not at all. He is free as a witness- servant and his servant to him, in order to his brought here and sworn. Now, what better justification. What thief could not defend testimony can we have to contradict this alleged himself by that, what murderer could not deconspiracy than the testimony of one of the fend himself by that-show what he said, the alleged conspirators; for if General Thomas one to the other, and the other to the one after did not conspire, certainly the President did not the thing has happened, after the act has been conspire. A man cannot conspire by himself. done? And now we contradict by this testimony, and Now, it is said, as though this case was to have a right to contradict by this testimony, be carried on by some little snap-catch of a what was stated on the night of the 21st. Here word, that I said there was a removal, and, is an interview on the afternoon of the 21st. therefore, I must have said it was a legal We want to show that not only at twelve o'clock removal. I say there never was a legal removal on the day when he received the order the of Mr. Stanton. There was an act of removal President gave him no instructions, no orders, so far as the President of the United States and made no agreement to use force; but that could exercise the power, so far as he could do at the subsequent meeting in the afternoon of it, so far as he is criminally responsible for it, that day, when General Thomas returned to so far as he must be held to every intendment report to the President that Mr. Stanton re- of the consequences of it as much as though fused to surrender the office, the-President still Mr. Stanton had gone out in obedience to it M gave no directions and entered into no conspir- because who is the President? He is the Chief acy of force; and that accordingly on the night Executive, and has the Army and the Navy, of the 21st, when General Thomas spoke of and has issued an order to one officer of the his own intentions, he had no authority to speak Army to take possession. for the President; and he did not profess to But, Senators, I am not now insisting that speak for him. the President shall not ask Mr. Thomas, " Sir, It is in this point of view, if the court please, did you conspire?" I am content they shall that it seems to me this is the very best testi- ask him that and I will ask him in return, " Did mony we can give, and the most legal and you conspire with the President; did you do admissible. It is not after the transaction is this, or did you do that?" But my proposition ended; it i~ not after the proof on the other is, that they cannot put in what the President side is ended as to the conspiracy; but it is said to Thomas, or what Thomas said to the long before the time when, according to their President after he had given the order. The proof, the conspiracy ceased. In that point learned counsel says " Why these gentlemen of view,.we claim that it is perfectly legal. Managers have put in what Mr. Thomas said Mr. Manager BUTLER. Mr. President, I all along, and what the Presidentsaid all along." think I must have made myself very illy un- I understand that; so we can. It is the comderstood if what I said has been fairly met or monest thing in all courts of justice where I attempted to be met by the learned counsel. have seen cases tried-and where I have not This is my objection: not that they shall not the books are all one way upon that matterprove by Mr. Thomas that he did not say what it is the commonest thing on earth to put in the we proved that he said to Mr. BURLEIGH; he confession of -a criminal made clear down to will be a bold man to say he did not say it, the time of the trial, down to the hour of the however; not that they shall not prove that trial. Is it not? If hemakes a confessionthe he did not say what he proved we said to Mr. moment the officer is bringing him and putting Karsner, although I should think my learned him into the dock, it may be used against him. friend had had enough of Mr. Karsner; not But who ever heard that it gave the prisoner that they shall not show any fact which is the right to introduce what he said to his assocompetent to be shown; but the proposition I ciate, what he said to his servant, what he said make as alegal proposition, (and it has not to his neighbor, after the act was done, be the been met nor touched by the argument,) is act whatever it may? that it is not competent to show that Mr. It is said you must allow him to put this in Thomas did not say to Mr. BURLEIGH that he because the President cannot defend himself meant to use force, by proving what was said otherwise. He has all the facts to defend himbetween Mr. Thomas and the President; that self with. What I mean to say is that he shall the President cannot put in his declaration; not defend himself by word of mouth. I do and I challenge again a law book to be brought not claim that the conspiracy was made between in before this Senate-common low, parlia- the 21st of February and the 9th of March. I mentary law, constitutional law, statute law, claim that it was made before that time; and or " law unto ourselves" —any law that was I think we shall be able, before we get through, ever heard of in which any such proposition to convince everybody else of it. I claim that was ever held. It never was held, sir. Go we find certain testimony of it between these to your own reading; tell me of the case where two dates. after we show that a man has done an act, Now, understand me. I do not object to which act is complained of, when he is on trial asking Mr. Thomas what he said to Mr. B3UR 284 LEIGH, what he said to Mr. Wilkeson, what he had said, and upon the pledge of the Managers said to Mr. Karsner, what he said to anybody, that they would connect the President with it. where we have put in what he said; but I do And now, in the presence of a court of jusobject to his putting in any more of the Presi- tice and in the Senate of the United States, dent's declarations after the act done. I do the Managers of the House of Representanot want any more such exhibitions as this. tives, speaking " in the name of all the people When a simple order is given by the President of the United States," object when we seek to to his subordinate, a very harmless thing, quite show what did occur between the President in common course, it is given to him with a and General Thomas up to the time of the only flourish of trumpets. "Now, I want you to act and fact they introduced on the 22d by hearsustain the Constitution and laws;" and the say evidence of General Thomas's statements officer says, " I will sustain the Constitution of what he meant to do. They sought to imand the laws." Do we not understand what plicate the President in the intended force to all that was done for? It was a part of the be used by that hearsay testimony upon the defense got up there at the time; a declaration pledge that they would connect the President made to be put in here before you or before with it; and we offer the evidence that we said some court. in the first instance should have been brought Nobody can doubt what that was for. Did here under oath of this agent or actor himself he ever give any other order to Thomas or any to prove what the connection of the President other officer and say: "Now, sir, here is a was. When that hearsay has been let in, seclittle order, and I want you to sustain the ondary evidence, and we undertake to show by Constitution and laws; I am going to sustain the oath of the actor, the agent, the officer, the Constitution and laws, and you must sus- what really occurred between him and the tain the Constitution and laws;" and then President of the United States, they say that solemnly for that officer to say, "I will sus- is of no consequence, that is no part of the tain the Constitution and the laws." Did you res gestae, and that is no part of evidence showever hear of that in any other case? Why ing what the relation between the parties was. was it done in this case? It was done for the Why, Mr. Chief Justice and Senators, if the purpose of blinding whatever court should try learned Managers had objected that General the case, in order that it might be put in as a Thomas was not to be received as a witness justification. "Oh! I did not mean to do because he was a coconspirator, a cocrimanything but sustain the Constitution and the inal, some of the observations of the learned laws, and I said so at the time." That decla-'Manager might have some application; but ration was put in out of the usual and ordinary that is not the aspect, and that is not the claim course, and it is to prevent any more of that in which the matter is presented to your nosort of declarations got up, manufactured by tice. It is that General Thomas beirg a comthis criminal at the time when he was going petent witness to speak the truth here as to into his crime and after the crime was com- whatever is pertinent to this case is not to be mitted, that I make the objection. Under permitted to say what was the agency, what such circumstances to give him the opporta- was the instruction, what was the concomitant nity to manufacture testimony in this way observation of the President of the United never was heard of in any court of justice. States that attended every interview anteceMr. EVARTS. Mr. Chief Justice and Sen- dent to the time which they have put in evidence. ators, if the crime, as it is called, of the Presi- So, too, they have sought to give evidence dent of the United States was complete when of intent, gathered from a witness who overthis written order was handed by him to Gen- heard what General Thomas said, pertinent, eral Thomas and received by General Thomas, as they supposed, on the 9th of March, and why have the Managers occupied your attention that is upon the idea that General Thomas had with other and later proceedings in his behalf of been empowered by the President to say or the removal of Mr. Stanton? The first, the do something that made his statements pertionly act in regard to that removal which the nent to commit the President. Now, if they Managers introduced, was of the 22d of Feb- can show, through General Thomas, by hearruary, and the presentation ofGeneral Thomas, say, what they claim is to implicate the Presiand then with the purpose, as it was said, of dent in intent, running up to the 9th of March, forcibly ejecting Mr. Stanton from the office of we can Drove by General Thomas, up to any Secretary of War. That is the act-that is the date in respect to which they offered evidence, fact-that is the res gestce on which they stand; all that did occur between the President and and it was by the combination of the delegate himself; in order that if there be connection from Dakota invited to attend and take part that may be made accurate and precise, and in that act where the force was sought to be if there be no connection that disconnection brought into this case in the intention of the he made absolute and complete. President of the United States; and then the Mr. Manager BINGHAM. Mr. President evidence connecting the intention of the Presi- and Senators, I desire, to the right underdent of the United States with this act, this standing of this controversy, that the question Ifct, this res gestec of the 22d was drawn from to which my associate Manager objected may the hearsay evidence of what General Thomas be reported by the Secretary. 285 The CHIEF JUSTICE. The counsel will himself, after the fact, by his own declaraplease reduce the question to writing. tions. The question was reduced to writing, and I am amazed at the declaration of counsel read as follows: that the Senate have admitted hearsay in behalf What occurred between the President and your- of the prosecution. Senators upon reflection self at that second interview on the 21st? can assent to no such proposition. The declaMr. Manager BINGHAM. The Senators ration of coconspirators made in the prosecuwill notice that the attempt is now made for tion of the common purposes or common design, the first time in the progress of this trial, and never was held to be hearsay eidence. On I think is made here for the first time in the the contrary, it is primary evidence, and in the presence of any tribunal of justice in this coun- language of one of our own courts, in most try by respectable counsel, to introduce in the instances, it is the only evidence which the defense of an accused criminal his own declar- nature of the case ever admits of. It rests ations made after the fact. Beforethis second upon the simple proposition of the law which interview referred to in the question, the crime addresses itself to the common judgment and charged in the first article, if crime it be, was the common sense of mankind that what one committed and complete. The time has not man does by another he does himself. If the yet come, Senators, for the full discussion of President conspired with Lorenzo Thomas to the question, whether it was a crime for Andrew violate the laws of this country, and by his Johnson, on the 21st day of February, 1868, written letter of authority sent him forth to with intent to violate the act regulating the violate the law, he made him his agent, and tenure of certain civil offices, to issue an order in the language of the law, whatever Lorenzo for the removal, as averred in the first article- Thomas did in the prosecution of that agreenot "removing" as the counsel stated, but ment to do an unlawful act between himself "for the removal of"-the Secretary of War and the President, is evidence not simply from the Department of War not only in con- against himself, but against his principal. travention of the express terms of that act itself, It is the law of this country and of every but in defiance oftheaction of the Senate then other country where the common law is obhad upon the suspension under the same law, served; it is a question no longer open for disby the same President, of the same Secretary, cussion, and I may add that the question that and whereof he had notice. For myself, I is raised here is one that is not open for disstand ready, as the learned counsel has seen cussion, for I venture to say that every textfit to make the challenge in this stage of book that treats of the law of evidence declares the case, to say that if the tenure-of-office act that the declarations of an accused after the be a valid act, the attempt to remove in con- fact are never admissitile upon his own motion. travention of the provisions of that act which All that is said at any one given time when declares a removal to be a misdemeanor, is any part of what is said on that occasion has itself a misdemeanor, not simply at common been admitted for the prosecution, is admislaw, but by the laws of the United States. I sible. But that is not the question before the am not surprised that this utterance was made Senate- at all. This is a subsequent converat this stage of the Vase; for the learned coun- sation between himself and his coconspirator sel who closed his elaborate and exhaustive after his crime was complete, after he had sent argument in the defense had ventured upon the forth his letter of authority to Thomas, after bold declaration here in the presence of the he had issued the order for the removal of Senate, that an attempt to commit a misde- Stanton, after the demand had been made by meanor, made such by the laws of any sover- Thomas for the surrender of the office. On eignty upon the earth, was not itself a crime the evening of the 21st day of February there consummated by the very attempt, and itself a is a conversation between these coconspirators, misdemeanor. confessedly conspirators if your law be valid, I pass that question now; with all respect I upon their own answer before the Senate, in say it ought not to have been referred to in this order to exculpate themselves. I say to Senadiscussion. The only question before the Sen- tors that it is trifling with justice, trifling with ate is whether it is competent for an accused that justice which was this day invoked in your criminal, high or low, official or unofficial, presence, to allow any man to make evidence President or private citizen, after the fact in this manner for himself after the fact. charged against him, to make evidence for him- How easy it was for him to say to Mr. self by his own declarations either to a co- Thomas that night when he found that inquiry conspirator or to anybody else. That is all the was being made in the Capitol touching this point there is involved in this question; and I criminal agreement between them, " Why, Mr. reiterate what was said, doubtless after due re- Thomas, our only object is peacefully and flection, by my associate Manager, that there is quietly to appeal to the courts of justice" not an authority fit to be brought into a court "Why, Mr. Thomas, you must not touch the of justice but denounces the proposition as hair of the head of the Secretary of War;" hearsay and violative of the rules of law. Why ".Why, Mr. Thomas, we both have the projustice itself is impotent if evidence is to be foundest respect for the decision of the Senate made by every criminal violator of the law for this day made, notice of which has been served 286 upon us;" "Why, Mr. Thomas, we both recog- Mr. Manager BUTLER. We withdraw all nize the obligations of the tenure-of-office act;" objection to that conversation. [Laughter.] "'; Why, Mr. Thomas, it is farthest from ourin- Mr. STANBERY. Whether you do or not tention to violate the act at all." Sir, the law it is in. The withdrawal is expostfacto. [To declares that if the order was unlawful, the the witness.] Wasthis before or after you got unlawful intent laid in the averment is proved Stanton's order? by the fact itself, and he can never disprove it Answer. It was after. by his declarations. Why, then, introduce Question. Did you see Stanton again that them here? Why trifle with justice here in afternoon? this way? The rule has been settled in every Answer. I did not. case that has ever been tried in the Senate of Question. Or the President? the United States heretofore, that the general Answer. Not after I left him this time. rules of evidence according to the common Question. What first happened to you the law govern the proceedings. If there is an next morning? exception to be found to that in any of the Answer. The first thing that happened to me rulings of the Senate in trials of this kind next morning was the appearance at my house hitherto, I challenge its production. of the marshal of the District, with an assistThe CHIEF JUSTICE. The Secretary will ant marshal and a constable, and he arrested reed the question once more. me. The Secretary read as follows: Question. What time in the morning was What occurred between the President and your- that? self at that second interview on the 21st. Answer. About eight o'clock, before I had The CHIEF JUSTICE. The question is, my breakfast. The command was to appear is the question just read admissible? forthwith. I asked if he would permit me to Mr. DRAKE. On that I ask for the yeas see the President; I simply wanted to inform and nays. him that I had been arrested. To that he The yeas and nays were ordered; and being kindly assented, though he said he must not taken, resulted-yeas 42, nays 10; as follows: lose sight of me for a moment. I told him YEAS —Messrs. Anthony, Bayard, Buckalew, Cat- certainly I did not wish to be out of his sight. tell, Cole, Conkling, Corbett, Davis, Dixon, Doolittle, He went with me to the President's and went Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, into the room where the President was. I Grimes, Henderson, Hendricks, Howe, Johnson, McCreery, Morgan, Morrill of Maine, Morrill of Ver- stated that I had been arrested, at whose suit mont, Morton, Norton, Patterson of New Hampshire, I did not knowPatterson of Tennessee, Pomeroy, Ross, Sherman, Mr. Manager BTLER. Stop one moment. Sprague, Stewart, Sumner, Tipton, Trumbull, Van Winkle, Vickers, Willey, Williams, Wilson, and Does the presiding officer understand the ruling Yates-42. to go to this, to allow what occurred the next'NAYS-Messrs. Cameron, Chandler, Conness Cra- day tobe broughtin? gin, Drake, IHarlan, Howard, Nye, Ramsey, and T hayer —10. The CHIEF JUSTICE. The Chief Justice NOT VOTING-Messrs. Saulsbury and Wade-2. so understands it. So the Senate determined the question to be Mr. STANBERY. Go on, General. admissible. The WITNESS. He said " Very well, that is The CHIEF JUSTICE. The question will the place I want it in-the courts." He adbe read to the witness. vised me then to go to you, and the marshal The Secretary read the question, as follows: permitted me to go to your quarters at the What occurred between the President and your- hotel. I told you that I had been arrested and self at that second interview on the 21st. asked what I should doThe WITNESS. I stated to the President Mr. Manager BUTLER. Wait a moment. that I had delivered the communication, and Mr. EVARTS. I suppose it is no great that Mr. Stanton gave this answer: " Do you matter about that. wish me to vacate at once or will you give me Mr. STANBERY, (to the Managers.) Is time to take away my private property'?'" and that part of the conspiracy? [Laughter.] that I replied "act your pleasure." I then Mr. Manager BUTLER. I have no doubt said that after delivering the copy of the letter of it. [Laughter.] to him he said: "I do not know whether I will Mr. STANBERY, (to the witness.) Did obey vour instructions or resist them." This I you go to court? mentionedtothe President, andhis answerwas: Answer. I was presented by the marshal to'! Very well; go and take charge of the office Judge Cartter. and perform the duties." Question. What happened there? By Mr. STANBERY: Answer. Judge Cartter —Question. Was that all that passed? Mr. Manager BUTLER. I object. Answer. That is about all that passed at that Mr. STANBERY. Were you held to bail time. or anything of that kind? Question. What time in the afternoon was Answer. I was required to give bail in that? $5,000. Answer. This was immediately after giving Question. And then discharged from custhe second letter to Mr. Stanton. tody? 287 Answer. I was then discharged; but there is' done, and I left the room and went into Genone point that I wish to state if it is admis- eral Schriver's office, sat down and had a chat sible; I do not know whether it is or not. I with him, he being an old friend. Mr. Stanasked him distinctly what that bail meant-.. ton followed me in there, and Governor MoonMr. Manager BU'TLEI.. Stop. IEAD, memberof Congressfrom Pittsburg. He Mr. STAN BERY. Do you mean that you told Governor MOORIoEAD to note the converasked the judge? sation, and I think he took notes at a side The WITNUSS. Yes; I asked the judge what table. He asked me pretty much the same it meant. He said- questions as before. Mr. Manager BUTLER. Stop. Does your Question. State what he did ask? Honor allow that? Answer. Whether I insisted upon acting as Mr. STANBERY. That is another part of Secretary of War and should claim the office. the case, and we will come to that after a I gave a direct answer, " Yes;:' and I think it while. [To the witness.] How long did you was at that time I said I should also require remain there? the mails. I said that on one occasion, and I Answer. I suppose it took altogether per- think then. I do not know whether it is on haps an hour, because friends came in to give the memorandum or not. Then there was the bail. I had nobody with me, not even a some little chat with the Secretary himself. lawver. Question. Between you and the Secretary? Question. After you were admitted to bail, Answer. Between me and the Secretary. did you go again to the War Department that Question. Had these members of Congress day? withdrawn then? Answer. I did. Answer. Yes, sir. Qulestion. That was the 22d? Question. Now, tell us what happened beAnswer. I am speaking of the 22d; but I tween you and the Secretary after they withthink this other matter is important to me. drew. Mr. Manager BUTLER. I will withdraw Answer. I do not recollect what first octhe objection if the witness thinks it important curred; but I said to him,';the next time to him. you have me arrested" —for I had found out Mr. STANBERY. Very well; go on with it was at his suit I was arrested; I had seen the explanation you wished to make. the paper The WITNESS. I asked the judge what it Mr. Manager BUTLER. Stop a moment. meant. He saidit was simply to present myself I propose, Mr. President. to object to the conthere at half past ten the following Wednesday. versation between the Secretary and General I then asked him if it suspended me from any Thomas at a time which we have not put in, of my functions. He said no, it had nothing because we put in only the conversation while to do with them. That is the point I want to the other gentlemen were there. This is somestate. thing that took place after they had withdrawn. By Mr. STANRERY: Mr. STANBERY. What is the difference: Question. When did you next go to the War they did not stay to hear the whole. Department that day? The CHIEF JUSTICE. It appears to have Answer. I wentimmediately from there, first been immediately afterward and part of the stopping at the President's on my way, and same conversation. stating to him thatI had given bail. He made Mr. STANBERY. The same conversation the same answer, " Very well; we want it in the went right on. courts." I then went over to the War Office Mr. Manager BUTLER. Will. General and found the east door locked. This was on Thomas say it was the same conversation? the 22d the office was closed. I asked the The WITNESS. Mr. Stanton turned to me messenger for my key. He'told me that he and got talking in a familiar manner. had not got it; the keys had all been taken Mr. Manager BUTLER. Go on, then, sir. away, Ed my door was locked. I then went The WITNESS. I said " The next time you up to Mr. Stanton's room, the one that he occu- have me arrested, please do not do it before I pies as an office, where he receives. I found get something to eat." I said I had had nrothhim there with some six or eight gentlemen, ing to eat or drink that day. He put his hand some of whom I recognized, and I understood around my neck, as he sometimes does, and afterward that they were all members of Con- ran his hand through my hair, and turned gress. They were all sitting in a semi-ellipsis, around to General Schriver and said, " Schrithe Secretary of War at the apex. I came in ver, you have got a bottle here; bring it out." the door. I stated that I came in to demand [Laughter.] the office. He refused to give it to me, and By Mr. STANBERY: ordered me to my room as Adjutant General. Question. What then took place? Irefusedto obey. I made the demand asecond Answer. Schriver unlocked his case and and a third time. He as often refused and as brought out a small vial, containing, I supoften ordered me to my room. He then said, pose, about a spoonful of whisky, and stated "You may stand there; stand as long as at the same time that he occasionally took a you please." I saw nothing further was to be little for dyspepsia. [Laughter.] Mr. Stan 288 ton took that and poured it into a tumbler and.witness, as brought in testimony here, having divided it equally and we drank it together, been authorized by anything that occurred beQuestion. A tair division? tween the President and himself. Answer. A fair division, because he held up Mr. Manager BUTLER. I do not propose the glasses to the light and saw that they each to argue further. If it is not self-evident to had about the same, and we each drank. [Laugh- everybody, no argument can make it plainer. ter.] Presently a messenger came in with a I simply object to a question, which is this: bottle of whisky, a full bottle; the cork was "What have been the directions of the Presdrawn, and he and I took a drink together. ident down to the 9th of March," after he had " Now," said he, " this, at least, is neutral been impeached? Because, if he can put them -ground." [Laughter.] in down to the 9th of March, he can down to Question. Was that all the force exhibited to-day; and to prove that Mr. Karsner did not that day? say a thing to Mr. Thomas they offer to prove Answer. That was all. that the President did not say a thing to Mr. Question. Have you ever at any time at- Thomas. tempted to exercise any force to get into that Mr. EVARTS. That is notthe point. The office? point is not that we can show affirmatively Answer. At no time. every conversation, but negatively we can show Question. Have you ever had any instruc- up to and including the date concerning which tions or directions from the President to use they have given anything in evidence by which ftrce, intimidation, or threats at any time? they claim to implicate the President, that he Mr. Manager BUTLER. Wait.'At any up to that time had never given any instructime?" That would bring it down to to-day. tions or declarations justifying the use of force. I supposed the ruling did not come down to It is of the 9th'of March they have given to-day. Any time prior to the 21st or 22d of evidencethat this witness then meant presently, February I am content with your inquiring in futuro, to kick Mr. Stanton out; and now we about, but I still must object to putting in what propose to show that up to that conversation was said yesterday.' the President of the United States had never Mr. STANBERY. On the 9th of March given authority or directions of any kind to you say it still continued. use force. Mr. Manager BUTLER. The 9th of March? Mr Manager BUTLER. How does that Mr. STANBERY. Then we will inquire prove that Mr. Thomas did not say so? prior to the 9th of March. Mr. EVARTS. It does not prove it in the' Mr. Manager BUTLER. I have said nothing least. It only proves that he said it without about that. I say the 9th of March is just as authority of the Presidentof the United States, bad as it would be to-day. I object to any time which is the whole point on your point of after the act. He was impeached on the 22d proving that he said it all, of February, and I suppose got up his case Mr. Manager BINGHAM. In other words, after that. Mr. President, I desire to say the proposition Mr. EVARTS. We have a right to nega- now is for the witness to swear to conclusions, tive up to the point at which you have given not to what the President did say, not to what any positive evidence, which is the 9th of the President did do, but to his conclusioi that March. all he said and all he did did not authorize him Mr. Manager BUTLER. We have given no to use force. evidence of what the President has said or the The CHIEF JUSTICE. The counsel for the instructions that came from the President. We President will reduce the question to writing, have given evidence of what Mr. Thomas has if they press it. said, and that is entirely a different thing. You The question being reduced to writing was may ask him if he said so to BMr. Karsner; but read, as follows: if there is anything in any rule of law, if law Did the President. at any time prior to or includ-,is to be held at all, this testimony cannot be ing the 9th of March, authorize or direct you to use put in. force, intimidation, or threats to get possession of AMr. EVARTS. Mr. Chief Justice, the point, the War Office? if anything, by which Mr. Karsner was allowed The CHIEF JUSTICE. The Chief Justice to speak of the interview between General will submit this question to the Senate. SenThomas and himself of the 9th of March was ators, you who are of opinion that the question that General Thomas's statements then made is admissible will say "ay," and those of the miaht be held to be either from somethirg that contrary opinion will say "no."! had been proved on the part of the Managers, The question being put, was decided to be or from something that would be proved on the admissible. part of the Managers, a committal of the Pres- Mr. STANBERY. Answer the question ident. Now, certainly, under the ruling that now, General. has been made, as well as under the necessary The WVITNESS. Read it, if' you please. principles of law and justice, the President is The Secretary read the question, as follows: entitled to negative, through the witness who Did the President at any time prior to or includknows, anything that proceeded froml him, the ing the 9th of March authorize or direct you to use 289 force intimidation, or threats to get possession of he did not, as he says he only stated that he the W~a~r Office? was from New Castle county. I may be misThe WITNESS. He did not. taken; I do not want to do him injustice. He By Mr. STANBERY: said he knew mv father and my brother, and Question. Now please state what conversa- that he had known me forty years before. I tion you had with Mr. BURLEIGH on the night suppose that would have been about the time of the 21st of February? I spoke of; but I have no recollection of it at Answer. He came to my house and asked all. He held on to my hand. I was surprised me in reference to this matter of my being ap- at the man's manner, because he'came up to pointed Secretary of War. I told him I was me as if I had been an intimate relation of his appointed, and I mentioned what occurred for years. between Mr. Stanton and myself, and I think Mr. Manager BUTLER. Stop a moment. it was that which led him to ask me "What I suppose this is a little improperto give his surare you going to do?" Mr. Stanton having prises. Tell us what was done and stated there. said he did not know whether he would obey Mr. STANBERY. Go on, General. my instructions or resist them. There are two The WITNESS. I tried to get away from him, persons I spoke with. To one I said, that if and he then said-he was a Delawarean-" The I found my door locked, or if I found the War eyes 6f all Delaware are upon you, [laughOffice locked, I would break open the door; ter,] and they expect you to stand fast." I and to the other I said I would call upon Gen- said: "'Certainly I shall stand fast,"' and I was eral Grant for force. I have got them mixed about leaving when he seized my hand again up; I do not know which expression I used to and asked me a second time the same quesMr. Wilkeson, but one to him and the other tion, saying he expected me to stand fast. to Dr. BURLEIGH. I made use of both ex- Said I: "Certainly I will stand fast." I was pressions that evening however, one to Mr. smiling all the time. I got away from his Wilkeson and one to Dr. BURLEIGH; I do hand a second time, and he seized it again andi not suppose it makes any difference which. drew me further in the room and asked the Their testimony shows that better than mine. same question. I was a little amused, when I Mr. BURILEIGH asked me what time I was going raised myself up on my toes in this way [standto the War Office. I told him I wouldbe there ing on tiptoes] and said: " Why, don't you see about ten o'clock the next day. This was the I am standing firm?" Then he put this in my night of the 21st I was talking to him. The mouth: "When are you going to kick that: conversation was a short one; he very soon fellow out," or something of that kind. "'Oh,' left me, saying he would call again. I think said I, "we will kick him out by and by." he said he would come up to the War Office Question. Are you certain the "kicking the next morning. out" came from him? Question. Did you ask him to go? Answer. Yes, sir-oh yes. [Laughter.] I Answer. I did not. I think he said he would want to say one thing. I did not intend any come and see the fun, or something of that disrespect to Mr. Stanton at all. On the con kind. trary, he has always treated me with kindness, Question. What was the conversation you and I would do nothing to treat him with dishad with Mr. Karsner on the 9th of March? respect. Answer. I would like to describe that. Question. Had you ever any idea of kicking Question. What do you know of Mr. Kars- Mr. Stanton for any purpose. ner? Answer. No, sir. Answer., I knew nothing about him whatever Question. How came you to use the word until I had seen him then. If I had been asked at all? the question, I should have said I had never Answer. Because it was put in my mouth. seen him, though my attention was once called Question. Did you say it seriously or in a to the fact that I did once see him in the spring jocular way? of 1827, when I happened to be at home with a Answer, (smilingly.) I was very glad to get severe spell of sickness. I did see him on that away; I went out at once. occasion. I suppose there were circumstances brought it to my mind. Cross-examined by MSIr. Manager BUTLER: brought it to my mind. Question. What took place at the Presi- Question. Did I understand you to say that dent's? there had been no unkind feelings between you Answer. It was toward the end of the Pres- and Mr. Stanton ever? ident's reception, and I was walking with Gen- Answer. No. sir; I do not think there-ever eral Todd, and was about going out of the door had been any unkind feeling. when I found that this person rushed forward Question. Or difference of opinion? and seized me by the hand. I looked surprised, Answer. There was a difference of opinions becahse I did not know him. He mentioned his I suppose. name, but I could not recollect it. I understood Question. Did you not believe that he sent him to say that he was from New Castle, my you away from the office of Adjutant General native village. He certainly used both those in order to have General Townsend carry on words; but he says he did not'; it is possible that office? C. 1.-19. 290 Answer. I do not. self that I was the only one who could do the Question. You do not so believe? work, and therefore he sent me. Answer. No, sir. Question. But while you knew the service Question. You have not done anything in you were sent on was so important, and you the Adjutant General's office as the head of were the only man to do it, you did ask Johnthat department for how many years up to the son, and why did you not ask Stanton, to re13th of February last? store you? Answer. I was a short time absent, as I told Answer. I did not suppose he wanted me ill you, on the James river making exchanges the office, though there was no unkindfeeling. with the rebel commissioner; but on my re- Question. Only he did not want you there? turn I always went to my office. The first time, Answer. I do not suppose he did. perhaps, that I was detached was, I think, on Question. It was perfectly kindly, except the 23d day of- I ought to have said I had that he did not want you about? gone three or four times up to Pennsylvania. Answer. I suppose so. I was in the habit Mr. Manager BUTLER. Please answer my of going to his office whenever I was here; I question. You ought to do that. Since what did it many a time, and he has asked me to do time, up to the 13th day of February had you certain things in his office there. done anything in your office as adjutant gen- Mr. Manager BUTLER. You have aneral of the Army, not acting inspector general? swered all. Now, General Thomas, when did Answer. I was in the Adjutant General's you first receive the intimation from the Presoffice-I have got the date here, if you will let ident that you were to be made Secretary of me refer to it — War? Mr. STANBERY. Certainly; refer to your Answer. The President sent for me on the papers. 18th of February. The WITNESS, (producing papers.) These Question. Three days before you got the are my original instructions to go down on the order, was it? Mississippi river. Answer. Yes, sir. Mr. Manager BUTLER. I do not care for Question. Have you ever stated that you had the precise date. Can you not tell me the an intimation that you would be appointed month? Secretary of War earlier than that? Answer. I would rather give you the precise Answer. I must now refer to a paper which date. I have it-the 25th day of March, 1863. I suppose you have. When I was asked before Question. From that time until the 13th of one of the committees when I first got an inti February, 1868, have you ever conducted the mation I supposed they were referring to my business of the Adjutant General's office? going in the Adjutant General's office, but I Answer. The 14th was the date. never had an intimation before the 18th of Question. Up to the 13th will do for me? February that the President had any idea of Answer. No, sir. making me Secretary of War. Question. Have you always been sent upon Question. Now, if you will pay attention to outside inspecting duty? my question, General Thomas, and answer it Answer. Yes. you will oblige me. My question was, whether Question. Had you been recommended by you ever stated to anybody that you got such Mr. Stanton to be retired? an intimation before that time? Answer. That I cannot say. I was recom- Answer. Not to myknowledge, unless it was mended by General Grant to be retired, and before that committee, as I tell you, the two that communication went to Mr. Stanton, and things were mixed up. Mr. Stanton took it to the President, as I under- Question. Did you not swear that before the stood. What he said to the President I do not committee? know. Answer. I afterward made a correction on Question. The President overruled General that paper. Grant's recommendation for your retiracy? Question. Excuse me; I did not ask you Answer. The President did not set me aside. what corrections you made; I asked you what Question. He overruled that recommenda- you swore to? tion, did he not? He did not have you retired Answer. I swore that I had received an intiin pursuance of that recommendation, did he? mation, but I found that it was not so, and I Answer. He did not. had a right to correct my testimony. Question. Did you ever ask Mr. Stanton to Question. You were asked, then, before the restore you to office? committee, not the Managers? Answer. No; I did not. Answer. I am not speaking of the Managers, Question. If there was a kindly feeling with but of the committee. him all the time he was a friend of yours, and Question. You were asked before a commityou would not harm a hair of his head, cer- tee of the House when you received the first tainly not kick him, why did you not ask him? intimation. How early did you swear that to Answer. I knew perfectly well that the ser- be, whether it was by mistake or otherwise? vices, especially this one that I referred to, Answer. The intimation that I received that were very important, and I knew he said him- I would probably be put in the Adjutant Gen 291 eral's office must have been made some two Answer. Because he was my Commander-inweeks before the occurrence, perhaps. Chief. Question. I ask now, and I want you again Question. Why was it necessary to tell him to pay attention to my question- you would obey his orders? Answer. I know your question. Answer. I do not know that there was any Question. How early did you swear that you particular necessity in it.. received an intimation that you would be made Question. Why should you say to him, when Secretary of War? he asked you to be Secretary of War, that you Answer. I should like to divide those two would, and would obey his orders? things. I told you that I corrected my evi- Answer. Certainly, as Secretary of War. dence. Question. Why did you feel it necessary in Question. I am dividing them; now I am your own mind to say that you would obey his getting to what you swore to first; by and by orders? I will come to the correction, perhaps. I have Answer. I do not know that it.was particudivided them. Now answer my question: what larly necessary. did you swear to first before you took advice? Question. Why did you do it? Mr. STANBERY. "Took advice!" Mon- Answer. It was a very natural reply to strous I make. The WITNESS. I swore that I received an Question. Tell me any other time, when you intimation-I think an intimation from Colonel were appointed to an office, that you told the Moore. appointing power you would obey the orders? Question. I did not ask you who you re- Mr. EVARTS. It does not appear he was ceived it from; I asked the time when? appointed at any other time. Answer. I cannot tell the time; I do not Mr. Manager BUTLER. Does it not? [To know it. the witness.] Have you not been appointed Question. What time did you swear it was? adjutant general? Answer. I say I do not know; I suppose Answer. Certainly; I am adjutant general. two or three weeks; I cannot say. Question. At any other time, when you were Question. Did you receive it from Colonel appointed to office, tell me whom you told that Moore, the Military Secretary? you would obey the orders? Answer. Receive what? Answer. I do not know that I told any one. Question. The intimation that you were to The other appointments I got in the ordinary be made Secretary of War? course. Answer. No. Question. Then this was an extraordinary Question. Did you so testify? appointment? Answer. I suppose not, because I tell you Answer. Certainly it was; I never had one the two cases were in my mind. I think I of that kind before. [Laughter.] have answered it distinctly enough. The hon- Question. And so extraordinary that you orable Manager is trying to mix two things, thought it necessary to tell the President bewhen I am trying to separate them. fore you got it that if he would give it to you Question. Now, sir, did you not know or you would obey his orders? believe you were to be made Secretary of War Answer. I did not say any such thing. before you received that order of the 21st of Questions. You did so tell him? February? Answer. I did tell him so. Answer. No, sir. Question. And you thought it was proper so Question. Did you not believe you were? to tell him? Answer. The 18th, I said. Answer. Certainly. Question. Now listen to the question and Question. What orders did you expect to answer it. That will be better. I ask you if receive that you found it necessary to tell him you did not know you were to be made Secre- you would obey them? tary of WBr before you received that order of Answer. I did not know that I was to. expect the 21st-know or believe? to receive any particular order. Answer. " Know " positive, no. Question. Then, before you got the appointQuestion. Did you not believe you were to ment you told him you would obey the order. be? This was on the 18th? Answer. I thought I would be, because it Answer. Yes. had been intimated to me. Question. You got a note from Colonel Question. Intimated to you by the President Moore to go to the President's, you say, on the himself? 21st? Answer. Yes, sir. Answer. Yes, sir. Question. Did you -tell him whether you Question. Were you sent for on the 18th? would be glad to take the office? Answer. Yes. Answer. I told him I would take it; I would Question. Sent for by Colonel Moore? obey his orders. Answer. Yes, sir. Question. What made you tell him that you Question. And you went up there? would obey 1his orders? Answer. Yes. 292 Question. And the'President told you he go to your friend Stanton and tell him that you thought of making you Secretary of War? thought of taking his place? Answer. Yes. Answer. No, sir. Question. And you told him you would be Question. Were you in the War Office? very glad to be made Secretary of War, and Answer. I was there generally every day. would obey his orders?, Question. On the 21st you were sent for again Answer. I did not say I would be very glad. by Colonel Moore, were you not? Question. That you would accept it? Answer. Yes, sir. Answer. The President said that he thought Question. By a note? of making me Secretary of War, but that he Answer. A note. would consider of the matter. Question. He came in person? Question. And you answered to thatthat you Answer. A note. would accept it and obey his orders, did you? Questioh. Have you that note? Answer. The time that I said I would obey Answer. I do not know whether I have or his orders was when I got the appointment. not. I gave one note to the counsel. One I Question. Oh I that was the time? mislaid. Answer. The other was an intimation from Question. Do you think Mr. Stanbery has him. got it? Question. You said. this about obeying his Answer. I think he took one of them. orders at the time you got the appointment? Mr. Manager BUTLER. We will pass that Answer. Yes. while the gentlemen are hunting it up. Question. What did you say on the 18th, Mr. EVARTS. We have none of the 21st. when the President said he thought of making The WITNESS. Then I have mislaid it. you Secretary of War? By Mr. Manager BUTLER: Answer. He did not say positively he was Question. You got a note to go to the Presgoing to make me so. ident's? Question. He said he was considering it? Answer. I got a note to go to the President's. Answer. He said he was considering of it. Question. Did you know for what purpose? Question. What did you say then? Answer. I did not. Answer. I do not recollect that I said any- Question. Did you suspect? thing in particular. Answer. I had no suspicion at all. Question. Anything in general-anything at Question. Did you not have some belief of all? what you were going there for? Answer. I do not know that I did. Answer. I had not. Question. You neither thanked him nor in- Question. And you went over? timated in any form that you would or would Answer. I went over, of course. not take it? Question. You went into the President's Answer. No. room, and he was coming out of the library, Question. Then you want to take it back you say? now? Answer. I went into the council room, and Answer. I do not want to take back anything he came out of the library with Colonel Moore. I have said. Question. Fetching two papers ready written? Question. Do you not? I understood you Answer. Yes, sir. to say that you told him on the 18th you would Question. Now, please state to me exactly, obey his orders? in order, what was first said and what was next Answer. I meant to say on the 21st, when he said by each of you. The President is coming gave me the appointment. out with two papers in his hand; what next? Question. Therefore, you want to take it Answer. I think the first thing he did was to back as to the 18th? hand them to Colonel Moore and tell him to Answer. Certainly. read them. Question. Then you do want to take back Question. Whatnext? Theywereread then? anything? Answer. They were read and handed to me. Mr. EVARTS. He has already corrected Question. What then? it by stating that you misunderstood him. Answer. He said: " I shall uphold the ConMr. Manager BUTLER. If he did, then he stitution and the laws, and I expect you to do stated what was not correct; for I did not mis- the same." I said certainly I would do it, and understand him. I would obey his orders; that is the time I used Mr. EVARTS. He has already made that that expression. correction, but you misunderstood him. Question. Let me see if I have got it exMr. Manager BUTLER. I was competent actly. He came out with the two papers; to hear the correction he made. I am perfectly handed them to Colonel Moore; Colonel Moore competent to hear it without any assistance. read them. He then said: "I am going to [To the witness.] Now, General Thomas, on uphold the Constitution and the laws, and I the 21st again you were sent for? want you to do the same;" and you said, " I Answer. Yes. will, and I will obey your orders?" Question. Between the 18th and 21st did you Answer. I did. 293 Question. Why did you put in you would tion is out, and if you have any objection state obey his orders just then? it. Do not interrupt me. Answer. Isupposeitwasveryinatural, speak- Mr. STANBERY. We object to argument ing to my Commander-in-Chief. now; that is all. Question. What next was said then? MIr. Manager BUTLER, (to the witness.) Answer. HIe told me to go over to Mr. Stan- You had a letter which alleged on its face that ton and deliver the paper addressed to him. your action was illegal, and which convinced Question. Which you did so? you, as you say, with other factsAnswer. I did. Mr. STANBERY. Mr. Chief Justice, we Question. In the manner you have told us? ask that that question be reduced to writing. Answer. Yes, sir. Mr. Manager BUTLER. I shall never be Question. At this first interview before you able to reduce it to writing if you do not stop left the building Mr. Stanton gave you the interrupting me. I will put the question now letter which you have put in here, did he? once more. [To the witness. ] You had a letter Answer. After I delivered him the second from Mr. Stanton which, together with other one, the one to me, dated the 21st instant. facts that had happened, convinced you that Question. Before you left the building he Stanton meant not to give up the office. Now, gave you that paper? sir, with that letter in your pocket, why did you Answer. Yes, sir; that was when he was not report it to your chief? sitting in Schriver's room. Answer. I did not suppose it was necessary. Question. Then you knew that he did not I reported the conversation that I had said I mean to give up the office? would give orders, and he said he would counterAnswer. I did. mand them and that he gave those orders to Question. You so understood fully? both General Schriver and General TownAnswer. Certainly. send. Question. You went back and reported that Question. Then did you tell the President to the President, did you? that Mr. Stanton had given orders to Schriver Answer. Yes, sir. and Townsend not to obey you? Question. Did you report to him that Stan Answer. I think I did. ton did not mean to give up that office? Question. Have you any doubt about that in Answer. I reported to him exactly what your own mind? Stanton had said. Answer. I do not think I have any doubt of Question. Did he ask you what you thought that. about it, whether he was going to give it up or Question. After that I understand you to say, not? he said, "Very well, go on and take possession Answer. He did not. of the office?" Question. Did you tell him what you thought Answer. He did so. about it? Question. Was anything more said? Answer. I did not. Answer. I think not at that time. Question. You reported facts to him. You Question. You went away? reported the same facts that had made an im- Answer. Yes, sir. pression on your mind that Stanton was not Question. About what time in the day was going to give up the office? this on the 21st? Mr. EVARTS. You are assuming what Answer. I closed the office about twelve facts he stated. You are assuming that he o'clock. I suppose I was absent at the Presistated something. dent's a short time for it took but a short time. Mr. Manager BUTLER. I beg pardon. I I imagine it was about one o'clock. assume nothing. [To the witness.] I ask Question. You mean you closed the office as did you report the same facts to the President Adjutant General, by your order as Adjutant which had made the impression on you mind General about twelve o'clock? that Stanton did not mean to give up the office?. Answer. Yes, sir; by order of the Secretary Answer. I reported these facts-his conver- of War, at twelve o'clock. sation with me. Question. After that you went to the PresiQuestion. Did you show him the letter? dent and got your own. order as Secretary of Answer. I did not. War? Question. Did you not tell him about the Answer. Yes, sir. letter? Question. And after that you came down to Answer. I did not. Mr. Stanton and had a conversation with him, Question. Why not? got a letter, and went back to the President's? Answer. I did not suppose that it was ne- Answer. Yes, sir. cessary. Question. What time in the afternoon was Question. Here was a letter ordering you it when you went back to the President's? to- Answer. I think I can call it to mind in this Mr. STANBERY. We object toyour argu- way: the time was noted when I had this coning it with the witness. Ask your question. versation that Hon. Mr. MOORHEAD took down; Mr. Manager BUTLER. Wait till the ques- I think it was ten minutes past 294 Mr. Manager BUTLER. That was the next Question. Did you not:tll him at Willard's day. that you meant to use force to get into that The WITNESS. Oh You are speaking of office? the 21st? Answer. Either at my office or Willard's, Question. Was MOORIEAD there on the 21st? one of the two. Answer. No, sir. Question. You have already said you told it Question. I am speaking of the 21st? to him at your office? Answer. I went down and had the copy Answer. I do not think I told it to him more made, and as soon as the clerk made it I cer- than once. tified it, and then I took it up, and then went Question. Suppose that he testifies that you to the President's. told it at Willard's to him; was that brag Question. What time in the day was it? then't That is all I desire. Answer. It would have been the same-yes. Answer. I suppose it must have been be- Question. You saw BURLEIGH that evening? tween one and two o'clock, perhaps nearer Answer. At my own house. two than one. Question. Did you tell him that you meant Question. Did you see the President again to use force? that day? Answer. I think the expression I used to Answer. Not after I paid this visit. him was that if I found my doors locked I would Question. Then after he told you to go and break them open. take possession of the office ynu did not see Question. Did he not put the question to you the President? Was it Mr. Wilkeson or Mr. in this form substantially:' "What will you do BURLEIGH that you first told about taking pos- if Stanton will not go out;" and did you not session of the office? answer, " We will put him out?" Answer. Wilkeson. Answer. I dare say I did. Question. Where was that? Question. Do you not know'you did? Answer. I think it was in my own office Answer. I dare say I did; I am not certain. first. Question. Did he not then say, " But suppose Question. About how long after you left the the doors are barred;" and did you not then President's? say, "I will batter them down," or "We will Answer. I am not certain whether it was batter them down?" before or after, as Wilkeson came there to Answer. Yes, sir. see me. Question. Was that brag? Question. You do not know whether it was Answer. No, sir. At that time I felt as if before or after that? I would open the doors if they were locked Answer. I do not recollect whether it was against me. before I went over to the President's or after. Question. Then you had got over bragging I think it was before, however. at that time, had you? Question. You told Mr. Wilkeson, he tells Answer. I suppose so. us, that you meant to call on General Grant Question. Do you not know whether you had for a military force to take possession of the or not? office? Answer. When I had this conversation with Answer. Yes. Mr. BURLEIGH I felt precisely as I said to Question. Did you mean that when you told him. it, or was it merely rhodomontade? Question. At that time you really meant to Answer. I suppose I did not mean it, for it go in and break down the door? never entered my head to use force. Answer. If it was locked, yes. Question. You did not mean it? Question. And really meant to use force acAnswer. No, sir. cording as you said you would? You meant Question. It was mere boast, brag? what you said, did you not? Answer. Oh, yes. Answer. I meant what I said. Question. How was that? Speak as loud as Question. Do you mean to say that Mr. you did when you began. BURLEIGH has not properly put before the SenAnswer. I suppose so, ate what you did say? Question. Very well, then. You saw Wil- Answer. I do not pretend to say so. He keson that evening again, did you not, at Wil- would recollect the conversation better than I. lard's Hotel? Question. And whatever you said to him you Answer. I think I saw him there for a few meant in good, solemn earnest? moments. Answer. I suppose so. Question. Did you again tell him you meant Question. No rhodomontade there? You to use force to get into the office? had got over playfulness with Wilkeson about Answer. That I do not recollect. I stated writing to Grant entirely, had you not? it to him once I know. Answer. Yes; because I had got home and Question. Can you not tell whether you had time to think the-matter over. bragged to him again that evening? Question. And having got over the playful Answer. I did not brag to him. part of it, and thinking the matter over, you 295 had come to the conclusion to use force; and Answer. I went there, I say, to take charge lhaving come to that conclusion, why did you of two little girls. That was all. not? Question. And to throw off care, as we all Answer. Because I reflected that it would have a right to do? not answer. Answer. No, sir; I did not go with any such Question. Why not answer? purpose. I had promised them some days Answer. It would produce difficulty, and I before. did not want to bring it on. Question. You went with them? Question. What kind of difficulty? Answer. I went with them to take charge of Answer. I supposed bloodshed. them. I went in my present dress. [The uniQuestion. And what else? form of a major general.] Answer. Nothing else.. Question. And when you came home you Question. Then by difficulty you mean blood- went to bed immediately? shed, do you say? Answer. I did. Answer. If I had used force I suppose I Question. How early in the morning-how would have been resisted with force, and blood long had you been up before this marshal came? might have been shed. That is my answer. Answer. I generally rise about seven, unless Question. Whattime did you leave BURLEIGH when I go to market. I get up earlier then. or did BURLEIGH leave you? Question. How early did you get up this Answer. It was after night when he came; morning, having been out a little late the night the visit was a very short one. before? Question. About what time did he leave? Answer. I got up at seven o'clock; that is Answer. I do not recollect exactly; eight my usual hour. or nine o'clock, I suppose. Question. Did the marshal come immediQuestion. Immediately after he left did you ately? go to a masquerade ball? Answer. The marshal came there about eight Answer. Yes, sir. o'clock. Question. How late did you stay? Question. Before you could get any breakAnswer. I stayed until about the time of- fast? I suppose it was toward midnight. Answer. Before I had my breakfast. Question. After? Question. Did you consult anybody on this Answer. I cannot be positive of that. About question between the time of getting up and midnight, I presume. the time the marshal came? Question. How soon was it after BURLEIGH Answer. I did not. left before you left for the ball? Question. Now, sir, before this the last you Answer. I think it was about nine o'clock or said to anybody on this question was that you along about half past nine or somewhere there. told BURLEIGH in solemn earnest you were It was after BURLEIGH left. going to use force, and then, almost immeQuestion. Did you see anybody but your own diately, you went to a ball; from the ball you family between the time BURLEIGH left and the came home and went to bed; got up, and saw time you started for the ball? nobody until the marshal came. When did Answer. Yes. you change your mind from this- solemn deQuestion. Who? termination to use force,' although it might Answer. A little girl living next door, who bring on bloodshed? was going with my daughter to the masquerade Answer. I changed it after I had made use ball. of this to BURLEIGH, undoubtedly. Question. A young lady? Question. I know you did after. When? Answer. Yes, sir. Answer. I suppose very soon. Question. You did not discuss this matter Question. I did not ask you what your supwith her, I take it? position is. I asked you when you changed Answe?. I did not. your mind. Question. Did you discuss it with anybody Answer. I do not know. after you left BURLEIGH or BURLEIGH left you Question. When do you first remember hayuntil you got to the ball? ing changed your mind? Answer. I did not. I saw no person to dis- Answer. I do not know. cuss it with. Question. What is the first remembrance Question. And you did not discuss it at the that you have of a different purpose? ball? Answer. I do not know. You are asking Answer. I did not. now as to a point of time. Question. And a masquerade ball-I do not Question. No; I am asking no point of know, but I put it interrogatively-is not a time. You have now a different purpose in good place for contemplation of high ministe- your mind, have you not, from what you told rial official duties, is it? BURLEIGH? Answer. No; it is not. Answer. I have. Question. You did not contemplate your offi- Question. You must have obtained that purcial duties there, did you? pose some time. When did you change the 296 purpose? The first time you remember you did come to that conclusion from any act of had a different purpose? memory of yours? Answer. I certainly changed it before I was Answer. Not the particular moment. arrested, and that'was at eight o'clock on the Mr. MORRILL, of Maine. If the parties morning of the 22d. are willing to pause here, as it is now five Question. How do you fix that so certainly? o'clock — Answer. Because on the 22d I had determined Several SENATORS. Get through with this not to do so. witness. Question. What time on the 22d? Mr. MORRILL, of Maine. I'vould move Answer. Before I was arrested, undoubt- an adjournment, not otherwise. edly. Mr. Manager BUTLER. We shall be wholly Question. Why "undoubtedly?" under the direction of the Senate. We have Answer. I may have thought it over in bed no objection on our part. before I got up. The CHIEF JUSTICE. The Senator from Question. Will you swear that you did, and Maine movesthat you changed your purpose then? Mr. MORRILL, of Maine. I do not make Answer. I cannot tell the precise moment the motion unless it suits the convenience of when I changed my purpose. parties. Question. Did you not tell Mr. BURLEIGH that Mr. Manager BUTLER. I will go on. [To the reason why you did not carry out your the witness.] Now, then, General Thomas, purpose was the cause of your arrest? when you came to the solemn conclusion to Answer. I did not. use force after solemnly thinking of the matter, Question. Did you tell him anything to that did you believe in your own mind you were effect? carrying out the President's orders? Answer. No. Answer. No; quite the reverse. Question. Had you any conversation on that Question. Then when you came to that consubject with him? elusion you believed you were going to do it Answer. 1 did not see Dr. BURLEIGH after against his orders, did you? that, I do not think. Answer. Not in accordance with them, cerQuestion. He testified that within a week of tainly. the time he was on the stand you told him that Question. Then, although you had told him the reason why you did not carry out the the day before that you would obey his orders, purpose which you had told him you would of you came to a determination to do quite the using force, was that you were arrested? reverse, did you? Answer. He must have misunderstood me Mr. STANBERY. He has not said that. then, because the arrest had nothing to do Mr. Manager BUTLER. I am asking him with it.. if he did. Question. And you did not tell him that? The WITNESS. Repeat that question. Answer. I think not. By Mr. Manager BUTLER: Question. Do you know not? Question. You say that you came to the solAnswer. I will not say I know not; but I am emn determination to use force, and you meant pretty certain I did not. to do it, quite in reverse of the President's Question. What mrakes you certain you did orders? not tell him so? Answer. I said no such thing. Answer. Because I had made up my mind Question. Hear the question. The day benot to use force at all. fore when you received your appointment you Question. Were you not asked by the board told him you would obey his orders? of Managers, on the 13th of March, after hav- Answer. I did. ing heard BURLEIGH' S testimony read, whether Question. The first act that you came to a it was not true, and did you not say it was all solemn conclusion about was that you protrue? posed to act the very reverse of his orders? Answer. Yes, sir; I did. I said that both Answer. I did not say that was in reverse of his and Wilkeson's was true, because what his orders.. I said that was my idea; if I was they testified to I said I had no doubt was the resisted I could resist in turn. fact. Question. Did you mean to do that act in Question. Now, why do you say BURLEIGH'S obedience to the President's orders or against testimony is not true when he says that you them? told him that the arrest was the cause of your Answer. Not in obedience to the President's change? orders. for he gave me no orders. Answer. That I do not think I told him. Question. You mean to say that you had Question. And the only reason you have for come to a solemn resolution on your own rethinking you did not tell him is that you think sponsibility to initiate bloodshed? you must have come to the conclusion before Answer. I said that I would, if I found the you were arrested? doors locked, break them down, and I afterAnswer. I did; certainly. ward said that when I came to think of the Question. But you cannot tell us when you matter I found that a difficulty might occur, 297 and 1 would not be the means of bringing and take possession of the office, without about bloodshed. That is what I say. stating how I was to do it. Question. Did you think you were justified Question. And how many times over did in doing what you came to the conclusion to he keep telling you that, as you reported to do by the President's order? him? Answer. I would have been justified as my Answer. I think I had three interviews with own act. Mr. Stanton. Question. Did you believe you were so justi- Question. One Friday? flied by the President's order? Answer. One Saturday, one Monday, andone Answer. No; not by the President's order- Tuesday; I think four. Saturday' was the by the appointment which he gave me, yes. time I made the demand. Question. The appointment he gave you? Question. Each time when you made the Answer. I had a right then to go and take demand on Mr. Stanton he refused? possession of that office. Answer. Yes, sir. Q Question. By force? Question. Each time you reported it to the Answer. In any way 1 pleased. President? Question. Atyourpleasure, byforce. Now, Answer. Yes, sir. did you everask the President what you should Question. During all the time you were cerdo? tain he would not give up except by force? Answer. I did not. Answer. I was certain he would not give Question. Did you not ever suggest to him up; he was going to keep it. that Stanton would resist? Question. And, thinking it important to reAnswer. I reported to him from day to day port each time his refusal, you never asked the that every time I asked him he refused. President how you should get possession of Question. Anything but the refusal? the office? Answer. The refusal was the only thing. Answer. I never did. Question. Did you ever suggest to him that Question. Nor never suggested to him that Stanton would resist? you could not get it except by force? Answer. Resist by force? Answer. I suggested to him that the true Question. Yes, sir. plan would be, in order to get possession of the Answer. No; I said he refused. papers, to call upon General GrantQuestion. Did you not understand in your Question. Leave the papers-the office I am own mind that he would so resist? talking about? Answer. I did not know what means he Answer. The papers are the thing. Yoq would take. cannot carry on an office unless you have what Question. I did not ask what you knew. is inside of it. Did you not in your own mind believe he Question. I did not ask how you can carry would resist? on an office. I ask if you ever reported tohim Answer. Yes. anything more than Mr. Stanton's refusal? Question. Had you any doubt of it? Answer. I never did. Answer. I had not. Question. You never asked how you were Question. Did you not know that, if you got to get possession of the building? in at all, you must get in by force? Answer. No. Answer. Yes. Question. Now, let me come to the matter Question. Did you ever report to the Presi- of papers. Did you afterward hit upon a dent, your superior, that you came to the con- scheme by which you might get possession of clusion that you could not get in, if you got in the papers without getting possession of the at all, except by force? building? Answer. I said no such thing to him. Answer. Yes, sir. Question. Why did you not report to him the Question. And that was by getting an order conclu,4on you came to? of General Grant? Answer. I did not think it necessary at all. Answer. YesQuestion. You reported to him every time Mr. EVARTS. He has not stated what it Stanton refused? was. Answer. Yes. By Mr. Manager BUTLER: Question. But you did not think it necessary Question. Did you write such an order? to report to him that you could not get the Answer. I wrote the draft of a letter; yes, office without resistance? and gave it to the President. Answer. No. Question. Did you sign it? Question. And you never asked his advice Answer. I signed it. what you should do? Question. And left it with the Prestdent for Answer. No. hisQuestion. Nor for his command? Answer. For his consideration. Answer. No. Question. When was that? Question. Nor orders in any way? Answer. The letter is dated the 10th of Answer. No. He merely told me to go on March. 298 Question. That was the morning after you Question. Have you been recognized as Sectold Karsner you were going to kick him out? retary of War ad interim? Answer. That was the morning after. Answer. I have been. Question. And you carried that letter? Question. Continually? Answer. I had spoken to the President be- Answer. Continually. tbre about that matter. Question. By the President and the other Question. You did not think any bloodshed members of the Cabinet? would come of that letter? Answer. Yes, sir. Answer. None at all. Question. Down to the present hour? Question. And the letter was to be issued as Answer. Down to the present hour. your order? Question. All your action as Secretary of Answer. Yes. War ad interim has been confined, has it not, Question. And before you issued that order, to attending Cabinet meetings? took that away to get hold of the mails or Answer. It has. I have given no order papers, you thought it necessary to consult the whatever. President? Question. Have you given any advice to the Answer. I gave that to him for his consid- President? You being one of his constitueration. tional advisers, have you given him advice as Question. You did think it necessary to to the duties of his office, or the duties of consult the President, did you not? yours? Answer. I had consulted him before. Answer. The ordinary conversation that Question. Either before or after, you thought takes place at meetings of that kind. I do not it necessary? know that I gave him any particular advice. Answer. It was merely carrying out that Question. Did he ever call you in? consultation. Answer. He has asked me if I had any busiQuestion. When you thought of getting pos- ness to lay before him several times. session of the mails and papers through an Question. You never had any? order as Secretary of War you thought it ne- Answer. I never had any except the case of cessary to consult the President; but you did the note I proposed sending to General Grant. not think any bloodshed would come from Question. I want to inquire a little further that, did you? about that. He did not agree to send that Answer. No, I did not; it was a peaceable notice, did he? mode. Answer. When I first spoke to him about it Question. When you were about taking a I told him what the mode of getting possession peaceable mode in issuing your order you con- of the papers was, to write a note to General sulted him? When you had come to the con- Grant to issue an order calling upon the heads elusion to run the risk of bloodshed you did of bureaus, as they were military men, to send not consult him? Is that so? to me communications designed either for the Answer. I did not consult him. President or the Secretary of War. That was Question. Did the President ever give at any one mode. of these times any other answer than " Go on, Question. What was the other mode you and get possession?" suggested? Answer. No; not in reference to the office. Answer. The other mode would be to require Question. Did he ever chide you in any way the mails to be delivered from the. city post for any means that you were employing? office. Answer. Never. Question. And he told you to draw the order? Question. Did he ever find fault that you Answer. No; he did not. were doing it differently from what you ought Question. But you did? to do? Answer. I did it of myself, after having this Answer. No. talk? Question. Did he ever remark to you in Question. Did he agree to that suggestion any way about declarations of force until after of yours? these impeachment proceedings began? Answer. He said he would take it and put Answer. No. it on his own desk. He would think about it. Question. They were published and noto- Question. When was that? rious, were they not? Have you acted as Sec Answer. On the 10th. retary of War ad interim since? Question. Has it been lyingthere ever since Answer. I have given no order whatever. as far as you know? Question. That may not be all the action of Answer. It has been. a Secretary of War ad interim. Have you Question. He has been considering ever aoted at Secretary of War ad interim ~ since on that subject? Answer. I have, in other respects. Answer. I do not know what he has been Question. What other respects? doing. Answer. I have attended the councils. Question. Has he ever spoken to you or you Question. Cabinet meetings, you mean? to him about that order since? Answer. Cabinet meetings. Answer. Yes. 299 Question. When? Answer. No. Answer. I may have mentioned it one day Question. And that he had not appointed at the council, and he said we had better let you. the matter rest until after the impeachment. Answer. No. I think that was it. Question. Nor none of the Cabinet, his conQuestion. Until after the impeachment trial stitutional advisers say, "You are not apwas over? So it is resting there awaiting this pointed, General; you are only here by suffertrial, as you understand? ance?" None of them ever said that, did Answer. Yes, sir. they? Question. Not to be brought up till then? Answer. None of them ever said that to me. Answer. I so understand. Question. Tellus, if you can, what you meant Question. With the exception of that, attend- when you told the President you were going to ing those meetings has been your entire busi- uphold the Constitution and the laws? ness as Secretary ad interim? Answer. Why, to be governed by the ConAnswer. Yes, sir. stitution and the laws made in pursuance Question. Now, has he ever asked you to thereof, of course. know where the troops were about Wash- Question. You were going to be governed by ington? the Constitution and the laws made in pursuAnswer. He never did. ance thereof. Did you include in that the Question. Or whether there had been any tenure-of-office bill? changes of troops? Answer. Yes, sir; so far as it applied to me. Answer. He never did. Question. You were going to uphold the Question. You tell us you attended a mas- Constitution and that particular law; you had querade ball that night. Did you keep the that in your mind at the time, had you not? President advised of where you were? Answer. Not particularly in my mind at the *Answer. I did not. time. Question. Did you tell Colonel Moore where Question. You did not make any exception you were? of that? Answer. I did not. Answer. No; I made no exception; you Question. Did you tell him where you were have got my language. going? Question. Has not the President given you Answer. I think not-no. directions about other things than taking posQuestion. You are pretty sure about that? session of the War Office? Answer. He might have known I was going Answer. He has told me on several occato the masquerade ball. I had procured tickets sions what he wanted. He wanted to get some for my children some days before. nominations sent up here. They were on the Question. Did the President in any of these Secretary's table, on Mr. Stanton's table. interviews with you, his Cabinet counselor, Question. And he could not get them? his constitutional adviser, ever suggest to you Answer. He did not get them. that he had not removed Mr. Stantoi? Question. Well, he could not? Answer. Never. He always said that Mr. Answer. I do not say that. Stanton was out of office; he took that ground Question. What did he tell you, whether he at once? could or could not get them? Question. Were you not somewhat surprised Answer. I do not know whether he could or when you heard Mr. Curtis say here yesterday could not. I could not get them. that he was not removed? Question. And he could not as far as you Answer. I do not know anything about that. know? Question. Did he ever tell you that you were Answer. I do not know that he could not. not appointed? Question. And he complained to you? Answer. No. Answer. He did not complain to me, but he Questioft. Have you not always known you said that cases were lying over, and some of were appointed? them military cases, that ought to be disposed Answer. Yes. of. I mentioned it to Mr. Stanton twice that Question. Has he not over and over again the President wanted those nominations and told you you were appointed? he said he would see to it. This was while I Answer. No; not over and over again, was acting as Adjutant General, not as Secrem Question. But two or three times? tary of War. Answer. I do not know that it has come up By Mr. STANBERY: at all. He may have done it two or three Question. Did he send them to the Presitimes. dent? Question. He never suggested to you from Answer. He did not, to my knowledg*e. the day he gave you that paper, when he was By Mti. Manager BUTLER: going to support the Constitution and the laws, Question. Now, at any other of these times, down to to-day, he never intimated to you that when he has given you directions, has he ever you were not appointed regularly as Secretary told you he was going to uphold the Constituof War, did he? tion and the laws? 300 Answer. No; I think not. Answer. I did not object to any word. I Question. Did he ever tell you he was going objected to his manner. to uphold the Constitution and the laws? Question. How could you see his manner on Answer. That is the only time that conver- paper? sation occurred between us. Answer. You asked him to get up and show Question. Can you give any reason why both it. of you should come to the conclusion that the Question. Then, after you got there, when Constitution and the laws wanted upholding that was read over to you, did you say, " I did about that time? not say'kicking;' Karsner said'kicking' to Answer. No. me.' Did you say that? Question. What had happened to the Con- Answer. No; I did not. stitution and the laws, or was about to hap- Question. Then did you not say, when asked pen, that required you both to uphold them? for any explanation, that it was playful; was Answer. 1 do not know that anything was not that the only explanation you gave? about to happen. Answer. I said it was playful on my part. Question. Well, what had happened? Question. Was not that the only explanation Answer. Nothing had happened. you gave before the Managers? Question. Why did lie so solemnly tell you Answer. I do not recollect; I suppose it was, there, upon this occasion, that lie was going to though. uphold the Constitution and laws, and why did Question. Was not Mr. Karsner then called you say, " I will uphold the Constitution and up and asked whether it appeared playful to laws?" him? Answer. Why, it was the most natural thing Answer. Yes; he was. in the world.. He made the remark to me. Question. And did not he testify to you that Question. Now, about Mr. Karsner, and I it was not playful at all, but that you seemed will not trouble you much further. Were you to be very earnest? examined before the Mainagers about Mr. Answer. Yes; he did. Karsner's testimony? Question. And did he not illustrate your Answer. It was read to me there. earnestness by the way you brought yourself Question. As taken down from his lips? down? Answer. I suppose so. Answer. That is one point where I say he Question. Was it not substantially almost was mistaken. He applied that to the time I exactly as he gave it here? said we would kick him out. He applied it to Answer. I do not know how he gave it here that, which was not the case. It was the third exactly. time he asked me to stand firm; then I straightQuestion. Did not you hear him? ened myself up in that way. Answer. There was one point in it I did not Question. And you think he applied it to the agree to. time you were to kick him out? Question. Did you hear him give it here? Answer. Yes, sir. Answer. Partially. I could not hear all Question. Did you object then that you yourwhere I was sitting. self did not use the words " Kick him out?" Question. As it was read over to you there, Answer. No; I did not. I said it was in were you not asked in Karsner's presence if answer to a question from him. I have had there wasanything that he said that was not true? time to think that matter over after I was called Answer. That question was asked me and I up there, and I have gone over the whole in answered yes. my own mind after I got home. Question. What did you say it was he said Question. That was the 13th of March you that was not true? were asked before us, was it not? Answer. [ think he testified here- Mr. EVARTS. Allow me to ask if you will Question. No; there? allow us to have a copy of the testimony to Answer. I do not know there. I am speak- which you are now referring —Mr. Karsner's ing now of a portion of the testimony here. testimony before the Managers. Question. You told me you did not hear here, Mr. Manager BUTLER. With great pleasand therefore I confine my question to what ure. I gave it to Mr. Stanbery when Mr. occurred before the Managers. Keep your Karsner was here. mind, if you can, to the time when you were Mr. SHERMAN. I was about to make a before the Managers. Did you not sit down motion to adjourn. before the Managers and there have Mr. Kars- Mr. ManagerBUTLER. Iam aboutthrough. ner's testimony read over to you in his pres- I will be through in a minute. [To the witence? ness.] Upon your reinstatement in office as Answer. It was read over, but not at my adjutant general did you address the clerks? instance at all. It was read to me, and I was Answer. I did malke a short address to each asked if it was correct, and I said "Yes." section of them. I sent for the officers in Question. You were asked if it were correct charge and told them I would like to see the and you said " Yes." Did you object that any clerks. single word was not correct? Question. Was that within three days of the 301 time you were appointed Secretary of War ad voice of the Manager is entirely inaudible interim? here. Answcr. It was between the time I was re- Mr. Manager BINGHAM. "'The Managers instated as adjutant general and the time I move the Senate to so amend rule twenty-one was appointed Secretary of War; I do not as to allow such of the AManagers as desire to be recollect what particular day. heard, andalso such of the counsel for the PresiMr. Manager BUTLER, (to the counsel for dent as desire to be heard, to speak on the final the respondent.) The witness is yours, gentle- argument, subject to the provision of the rule men. that the final argument shall be opened and Mr. STANBERY. We will ask some ques- closed by the Managers on the part of'the tions. House." Mr. HENDERSON. Mr. President, I move The CHIEF JUSTICE. Senators, it is that the Senate sitting as a court do now ad- moved by the Managers on the part of the journ. House of Representatives, that the twenty-first The motion was agreed to; and the Sen- rule be so modified as to allow as many on the ate sitting for the trial of the impeachment part of the Managers and as many on the part adjourned. of the counsel for the President to be heard as may see fit to address the Senate in the final SATURDAY, April 11, 1868. Mr. POMEROY. Mr. President as that is Mr. POMEROY. Mr. President, as that is The Chief Justice of the United States en- in the nature of a resolution, under our gentered the Senate Chamber at twelve o'clock- eral rule it should lie over one day for considand five minutes p. m., and took the chair. eration. The usual proclamation having been made The CHIEF JUSTICE. The Chief Justice by the Sergeant-at-Arms,' was about to observe that the proposition reThe Managers of the impeachment on the quired some answer on the part of the Senate, part of the House of Representatives appeared and that it would be proper for some Senator and took the seats assigned them. to make a motion in respect to it. The counsel for the respondent also ap- Mr. BUCKALEW. I move that the resopeared and took their seats. lution be laid over for consideration until The presence of the House of Representa- to-morrow. tives was next announced, and the members The CHIEF JUSTICE. It goes over, of of the House, as in Committee of the Whole, course, if there be objection. headed by Mr. E. B. WASHBURNE, the chair- Mr. EDMUNDS. I would inquire of the man of that committee, and accompanied by Chair whether the twenty-first rule does not the Speaker and Clerk, entered the Senate now provide by its terms that this privilege Chamber and were conducted to the seats pro- may be extended to the Managers and the vided for them. counsel if the Senate so order; and I would The CHIEF JUSTICE. The Secretary will therefore inquire whether any amendment of read the minutes of the last day's proceedings. the rule be necessary if the Senate should The Secretary read the Journal of yester- desire to extend that privilege? day's proceedings of the Senate sitting for the The CHIEF JUSTICE. Certainly not.. It trial of the impeachment. is competent for any Senator to move such an The CHIEF JUSTICE. Gentlemen of order; but the Chair has yet heard no motion counsel for the President, you will proceed to that effect. with your evidence. Mr. FRELINGHUYSEN. Mr. President, Mr. Manager BINGHAM. Mr. President, I make the motion that the order be adopted. before the counsel for the accused proceed, It of course is not necessary that it should lie I desire to say that the Managers wish to move over, as it is provided for in the rule that this the Senate for such change of rule twenty-one order may be adopted. of the proceedings in this trial as will allow the Mr. POMEROY. I have no objection to Managers and the counsel for the President to taking the vote now, if it is desired. I do not be heard on the final argument, subject to the care to have it lie over to another day.. provision of the rule as it stands that the argu- The CHIEF JUSTICE. The Senator from ment shall be opened and closed by the Man- New Jersey will please reduce his order to agers on the part of the House. writing. Mr. SHERMAN. I should like to have the Mr. SHERMAN. If it is in order, I will proposition repeated. I could not hear it dis- move that the twenty-first rule be relaxed so tinctly. as to allow three persons on each side to speak The CHIEF JUSTICE. The honorable under the rule, instead of two. Manager will please reduce his proposition to The' CHIEF JUSTICE. That motion will writing. be in order as an amendment to the order proSir. Manager BINGHAM. I will. [After posed by the Senator from New Jersey. writing the proposition.] Mr. President, I Mr. SHERMAN. I withdraw it for the presdesire to read the motion as reduced to writing, ent to allow the vote to be taken on that. Mr. CONKLING. I beg to state that the The order proposed by Mr. FRELINGHUYSEN 302 having been reduced to writing and sent to the for the office. The Secretary came in and deskl- handed me the original, and my impression is The CHIEF JUSTICE. The Secretary will that I noted on that original its receipt. It was read the order proposed by the Senator from then handed to General Townsend, who made New Jersey. the copy that I read here, and handed it to me. The Secretary read as follows: ~ I had it not until after the demand on the 22d Ordered, That as many of the Managers and of the of February. counsel for the respondent be permitted to speak on By Mr. STANBERY: the final argument as shall choose to do so. Question. Then, when you saw the President The CHIEF JUSTICE. That order will be on the afternoon of the 21st you had not yet considered now unless objected to. received that letter from Mr. Stanton? Mr. HOWARD. Mr. President, I hope that Answer. I had not. order will be laid over until the next day's Question. You then stood upon the interview session. which you referred to? The CHIEF JUSTICE. If objected to, it Answer. I did. The next correction I want will lie over. to make is that I am made to say here that the Mr. HOWARD. I object. President told me "to take possession of the Mr. TRUMBULL. An objection does not office." His expression was " take charge of carry it over, does it? the office." The CHIEF JUSTICE. The Chair thinks Question. Are you certain that that was his it does. expression? Mr. TRUMBULL. It does not change the Answer. Positive. I was asked if I could rule. The rule provides for this very thing give the date of my brevet commission. I do being done, if the Senate choose to allow it. not know whether it is important or not, but I Mr. CONKLING. Mr. President, may I have it here. inquire under what rule of the Senate thus Question. What is the date? organized it is that this motion lies over upon Answer. The brevet of major general 13th of the objection of a single Senator? March, 1865. The CHIEF JUSTICE. The Chief Justice Question. Upon whose recommendation was in conducting the business of the court adopts that? Who first suggested it? for his general guidance the rules of the Senate Answer. Mr. Stanton gave it to me. sitting in legislative session as far as they are Question. Did you ask him for it or did he applicable. That is the ground of his decision. volunteer it? Mr. CONKLING. The reason for my in- Mr. Manager BUTLER. That is not in the quiry was this: the very rule we are discuss- nature of correction or of explanation. ing provides that a certain thing shall happen Mr. STANBERY. He could not get it yes" unless otherwise ordered;" and I supposed terday. It was an omitted fact, and he passed that a motion otherwise to order was always it until he could get his commission. in order. Mr. Manager BUTLER. Very good. The CHIEF JUSTICE. It is competent By Mr. STANBERY: for the Senatorfrom New York to appeal from Question. How was it-asked for or volunthe decision of the Chief Justice. tarily tendered? Mr. CONKLING. Oh, no, sir; I merely Answer. He had more than once said he made the point by way of suggestion to the intended to give it to me, and on this occasion, Chair. when I came from some important duty, I said Mr. JOHNSON. Mr. Chief Justice, I ap- that the time had arrived when I ought to have peal to the honorable member from Michigan this commission. He said "certainly," and to withdraw-. gave it to me at once. I do not think he ever The CHIEF JUSTICE. No debate is in intended to withhold it. order. There is another point I want to state. When Mr. JOHNSON. I am not about to debate I was before the committee, or the honorable it, sir. If they are to have an opportunity of Managers, General BUTLER asked the clerk, I addressing the Senate they ought at once to think it was, for the testimony of Dr. BURLEIGH. know it on both sides. He said he had it not, that it was at his home. The CHIEF JUSTICE. Gentlemen of I do not know whether I said or he said, "It counsel for the President, you will please to makes no difference." He asked me a numproceed with the defense. ber of questions in reference to that. I asLORENZO THOMAs-examination continued. sented to them all. I never heard that testiMr. STANBERY. General Thomas wishes mony read. to make some explanatory statements. Question. You never heard Dr. BURLEIGH'S The WITINESS. I wish to correct my testi- testimony read? mony yesterday in one or two particulars. I Answer. No, sir; nor do I recollect the parread a letter signed by Mr. Stanton addressed ticular questions, except that they were asked to me on the 21st of February. The date mis- me and I assented. I said that Dr. BURLEIGH, led me; I did not receive a copy of that letter no doubt, would recollect the conversation betuntil the next day after I had made the demand I ter than I. 303 By Mr. Manager BUTLER: Question. I want to ask you another quesQuestion. General Thomas, how many times tion on another subject which was omitted yesterday did you answer that the President yesterday? told you each time to " take possession of the Answer. Certainly. office?" Question. After you and Karsner were sumAnswer. I have not read over my testimony moned here as witnesses, did you go and quarparticularly. I do not know how many times. rel with him? Question. Was that untrue each time you Answer. I had some words with him in the said it? room here adjoining. Answer. If I said so it was. "' Take charge" Question. Did you call him a liar and a perwere the words of the President. jurer? Question. Have you any memorandum by Answer. I did. which you can correct that expression? If Question. Youcalledhimaliarandperjurer, so, produce it. did you? Answer. I have no memorandum with me Answer. I think I did both; I certainly did here; I do not know that I have any. call him a liar. Question. Have you looked at one since you Question. And a perjurer? were on the stand? Answer. I think it is probable I did; but Answer. I have not. the "liar," I know.. Question. How can you tell better to-day Question. You knew that he and you both than you could yesterday? were in the witness-room waiting to be called'. Answer. Because I read that evidence as Answer. I was here. recorded. Question. And you knew he was here for Question. You gave it yesterday yourself? that purpose? Answer. I did. Answer. I presume I did; yes. Question. And you could know better what Question. And while he was there you unit was by reading it than when you testified dertook to talk with him about his testimony? to it? Answer. I stated to him in the two instances; Answer. Yes, sir. I will give them to you — Question. And you are sure the word was Question. Just answer my question, sir; I' charge " each time? have not asked you what you said. I only Answer. " Take charge of." ask you this question, whether you undertook Question. And then the three times when to talk with him about his testimony? you reported to him that Stanton would not Answer. I do not know who introduced the go out, refused to go out, each time he said, conversation. It was certainly not I, I do not "Take charge of the office?" think, for he was there some time before I Answer. He did. spoke to him. Question. Was your attention called at the Question. Did you speak first or he? time he said that to the difference between Answer. That I do not recollect. taking " charge" of the office and taking " pos- Question. Now, then, did you tell him that session" of it? he was a liar and a perjurer at that time? Answer. My attention was not called to it. Answer. I did tell him he was a liar, and I Question. How, then. do you so carefully may have said he was a perjurer. make that distinction now in your mind? Question. Did you offer violence to him? Answer. Because I know that that was his Answer. I did not. expression. I have thought the matter over. Question. Did you speak violently to him? Question. You have always known that that Answer. I did not, except in that way. was his expression, have you not? Question. Were you then in full uniform Answer. Yes. as now? Question. And you have thought the matter Answer. As I am now. over? Question. There is another question I want Answer. Yes. to ask you which was omitted. Do you still Question. Well, then, how could you make intend to take charge or possession of the office such a mistake yesterday? of Secretary of War? Answer. I think the words were put into my Answer. I do..mouth; I do not recollect distinctly. Question. Have you said to any person within Question. The same as Karsner put in about a few days, "We'll have that fellow," meanthe "kicking out?" ing Stanton, " out, if it sinks the ship?" Answer. Yes. Answer. Never. Question. And you are rather in the habit, Question. Did you say so to Mr. Johnson? are you, when words are put into your mouth, Answer. I did not. of using them? Question. Anything to that effect? Answer. I am not always in the habit. Answer. Not that I have any recollection of. Question. Why was yesterday an exception? Question. Do you know whether you did or Answer. I do not know why it was an ex- not? ception. Answer. What Mr. Johnson do you mean? 304 Question. Mr. B. B. Johnson. Answer. I did not mean to use any violence Answer. There was a Mr. Johnson came 1p against Mr. Stanton to get him out of office. see me at my house in reference to another Question. What did you mean by the expresmatter, and we may have had some conversa- sion " We'll have him out if it sinks the ship?" tion about this. Answer. I have said I do not know that I Question. When was it that that Mr. John- used that expression. son came to your house to see you about Question. You have told me also that Mr. another matter? Johnson can tell better. I am assuming now Answer. That I hardly recollect. you did say it? Question. About how long ago? Mr. EVARTS. That you have no right to Answer. I am trying to recollect now. He do. Mr. Johnson has not said so yet. came to me about the business- Mr. Manager BUTLER. This witness does Question. Never mind what his business was. not say that he did not say so. When was it? Mr. EVARTS. That is. another matter. Answer. But I want to call it to mind. I You have not proved it yet. have a right to do that, I think. The WITNESS. I cannot say. He was there Question. But not to state it? on official business in reference to an officer Answer. I took no note of the time, and I dismissed from the Army. can hardly tell. It was recently, not very long Question. Official business? ago. Answer. I mean business connected with an Question. Within two or three days? officer dismissed from the Army. Answer. No, sir; before that time. Question. Then you were joking on this subQuestion. Within a week? ject? Answer. I think it is more than a week. Answer. Certainly. Question. Let me give you the date-on Fri- Question. Did you ever see Mr. Johnson day, a week ago yesterday? before? Answer. I cannot give the date. I do not Answer. I have no recollection. It is possiknow it. ble I may have seen him. Question. Was it longer than that? Question. Have you seen him since? Answer. Well, I did not charge my memory Answer. I have not to my knowledge. with it. Itwas a familiar conversation we had. Question. Now, here was a stranger who Question. Were you joking thetn? called on you on official business, business Answer. Certainly. pertaining to your office? Question. Oh, joking? Answer. No, sir. Answer. Yes. Question. Official business about getting a Question. Did you, jokingly or otherwise, man reinstated who had been dismissed? say these words: "and we'll have Stanton Answer. Yes. out of there if we have to sink the ship?" Question. Very good. lHe called upon you Answer. I have no recollection of making on business connected with the Army? use of that expression. Answer. That had nothing to do with my Question. Did you make use of one equiva- office. lent to that in substance? Question. Now, did you go to joking with Answer. I have no recollection of it. him, a total stranger, in this way? Question. Have you such a recollection of Answer. I knew him as the lawyer employed what you say as to know whether you did or by Colonel Belger to get him reinstated, and not? Colonel Belger sent him to me. Now you Answer. I have not. I would rather he have got it. wvoi ltest fy himsel; iel kmows ietbetter than I. Question. Was he a stranger to you? I cannot recollect all the conversation I had. Answer. I think he was. Question. Do you deny that you said so? Question. Now, then, being a stranger, havAnswer. I cannot deny it, because I do not ing that fixed, will you answer did you go to know that I did. joking with this stranger on such a subject? Question. You say you would rather he would Answer. Certainly. We had quite a familiar testify; and I will try to oblige you in that re- talk when he was there. He sat with me for spect; but if you did say so, was it true or some time. merely more brag? Question. And that is the only explanation Answer. You may call it as you please; you can give of that expression? brag, if you say so. Answer. That is sufficient, 1 think. Question. I do not want to put words into Question. Whether it is sufficient or not your mouth; what do you call it? somebody else will judge; is it the only one Answer. I do not call it "brag." you can give? Question. What was it? Answer. It is the only one I do give. Answer. It was a mere conversation, what- Question. And it is the only one you can ever it may have been. give? Question. Did you mean what you said, or Answer. Yes. did you say what you did not mean? Question. A single word now upon another 305 subject: did anybody talk with you about your Question. Did you have more than one paper testimony since you left the stand? given you? Answer. Since I left the stand? Answer. That was handed to me, and then Question. Yes; since yesterday? it was handed to General Townsend, who made Answer. Well, I suppose I have talked with a copy, and the Secretary gave me the copy a dozen persons. which I read here. The other paper I have Question. Such as whom? not seen. Answer. Several persons met me and said Question. And that was the 22d? they were very glad to hear my testimony. We Answer. On the 22d, dated the 21st. did not enter into any particulars about it. I Question. Prepared, then, the day before? have been met to-day jocularly about taking Answer. I suppose so. It has the date of an equal drink with the Secretary of War by the day before. two or three persons. I have talked in my own Question. Then do you mean to take all family about it. back that was said in the room of Mr. Schriver Question. Has anybody talked to you about about your not going on with the office or their these points, or have you talked to anybody not obeying you on the afternoon of the 21st? about these points where you have changed Answer. Oh, yes; it was the 22d, because your testimony? General Townsend was not there on the 21st. Answer. I came here this morning and Question. Then on the 21st there was nothing saw the Managers, and told them wherein I said about his not obeying you? wanted - Answer. 1 think not. Mr. Manager BUTLER. The Managers! Question. Nothing said to Schriver about You do not mean that quite? not obeying you? Mr. EVARTS. The counsel for the Presi- Answer. I think not. dent. Question. Then there was nothing said about The WITNESS. I saw the counsel for the Pres- not obeying you on the 21st at all? ident, and told them I wished to make correc- Answer. 1 think not. tions. Question. And you never reported to the By Mr. Manager BUTLER: President that Stanton would not obey you on Question. You did not mean the Managers; the 21st? you meant the counsel? Answer. I reported to the President the two Answer. I meant the counsel; these gen- conversations I had with him. tlemen sitting here, [pointing to the counsel Question. What were the two? The one in: for the President.] Schriver's room seems to have gone out. What Question. That you had a perfect right to were the two? do. Had you talked with anybody before that Mr. EVARTS. There were two besides about these points? that, Mr. BUTLER. Answer. Yes. Mr. Manager BUTLER. The witness will Question. Whom? tell me. Answer. General Townsend this morning. Mr. EVARTS. But you said it was not so. Question. The Assistant Adjutant Gen- Mr. Manager BUTLER. I did not. I said eral? that one seemed to have gone out. Answer. Yes. Mr. EVARTS. One of the conversations. Question. Anybody else? That was not one of the two. Answer. About these points? Mr. Manager BUTLER, I do not know that. Question. Exactly. The WITNESS. General Schriver did not hear Answer. No. either of these conversations. Question. Are you sure? Question. Then on the 21st there was no Answer. I have said no. I am sure. such conversation that you testified to? Question. Now, sir, did you not receive a Answer. Not in reference to that letter-no. letter from Mr. Stanton, whether a copy or Question. Was there any conversation at all not, on the 21st of February? as to General Townsend's not obeying you, or Answer. I did not. General Schriver's not obeying you, on the -Question. You said that he gave you the 21st? original, and the date is noted. Have you seen Answer. None. that original? Question. Then what you told us yesterday, Answer. Since? that you reported that to the President and got Question. Yes. his answer to that, all that was not so, was it? Answer. I have not. Answer. All that was not so. Question. The date was noted on that ori- Question. Now, upon another matter. When ginal. When was that original given you? you were examined before the committee —Answer. The one I read here on the 22d? Answer. Which committee? Question. I did not ask you, " the one you Question. The-committee — read here" —the original; when was that given Answer. I have been examined twice. I only you? want to know. Answer. On the 22d Question. The committee of the House, not C. I.-20. __3064 the Managers. You were asked this question: Answer. Yes, sir.':Did you make any report lo the President on Question. That committee you mean, and Friday of what had transpired," and did you the committee was full? not answer in these words: " Yes, sir; I saw Answer. I do not know whether Mr. STEVENS the President and told him of what had oc- was there. He was there a portion of the curred." He said, "Well, go along and time. I do not know whether he was there at administer the Department." When I stated this particular time. what had occurred with Mr. Stanton, he said Question. And you tell the Senate now on to me, " You must just take possession of the your oath that you requested the committee to Department and carry on the business." Did give you time to answer the questions, aind you so swear before the committee? they refused you? The witness not replying- Answer. I requested that it might be deferred Question. Let me give you the words again? until the next morning, when I could have an A.nswer. Ithoughtyou werewaitingforsome- opportunity to go over in my own mind those body else. I say, as I said before, the words things. It was not granted. There was no were: "'Take charge "- refusal given, but 1 was still pressed with Question. That is not the question. questions. Answer. What is the question? Then there is another matter I want to speak Question. The question is this: in answer to about-when I came to correct that testimony. a question which 1 will read again to show you There are two things there that are confounded that the words were not put in your mouth, in in reference to dates; the first part of it, the these words, " Did you make any report to the date of my appointment as Adjutant General PIresident on Friday of what had transpired," and that of my appointmentas Secretary of War did you not answer in these words,';Yes, sir; ad interim-I supposed they were asking me in I saw the President, and told him of what had reference to the former, and that is the reason occurred." He said, " Well, go along and ad- those two questions got mixed up. Then when minister the Department." And did you not I went there to correct my testimony I wished proceed to state, "When I stated what had to do it. I read it over and found that some occurred with Mr. Stanton, he said'You must of it was not in English, and I thoughlt there just take possession of the Department and was something taken down, and I believe there carry on the business.'" Now, sir, did you was, that I did not say. They would not perswear that? That is the only thing I asked mit me to correct the manuscript, but I put you. something at the bottom just in a hasty way. Answer. If that is there I suppose I swore I suppose it is on that paper, [pointing to a to it. I want to make one statement, though. manuscript in the hand of Mr. Manager BUTQuestion. Was it true? LER.] I do not know. Answer. No; the word used was the other. Question. I will come to that. Now, then, Mr. Manager BUTLER. That is all. have you got through with your statement? The WITNESS. I wish to make one state- Answer. I have. ment in reference to that very thing. I think Question. Very well, then, you will answer I ought to do it. I was called there hastily. me a few questions. Did you not come and There were a good many events that had tran- ask to see your testimony as it was taken down spired. I requested on two occasions that by that committee? committee to let me wait and consider, and Answer. I went to the clerk and saw him. they refused, would not let me do it, pressed Question. Did he give you the report which me with questions all the time. I hold in my hand? By Mir. Manager BUTLER: Answer. He was not in; and I came the Question. How was that? next day, the second day, and he handed it to Answer. When I was called before that com- me; and twice he went, I think, to some memnmittee on the evening of- ber of the committee, I do not know who. 1 Mr. Manager B'UTLER. February 26. said I wished to correct it; I wanted to make The WITNESS. On the evening of the day it at least decent English in some respects; of my trial. I went there after getting through but I was informed that I could not correct with that trial. I on two occasions requested the manuscript, that I might —them to postpone the examination until next Question. He reported to you that you might morning, or until I could go over the matter. make any corrections in writing? That was not allowed me. Answer. Yes, sir. Question. Did you make any such request? Question. Then, did you read the whole testiAnswer. I did twice. mony over? Question. Of whom did you make it? Answer. I think I did; I am not certain Answer. To those who were there. about that. Question. Who was there? Question. Do you not know you did? Answier. I think the committee was pretty Answer. No; I do not know that I did. full. Question. What were you there'for? Question. The committee on preparing the Answcer. I came there to correct the first articles of impeachment were there? part of it particularly, inld that was the reason 307 I went there. I took it for granted that the of your testimony as given yesterday, as you rest was correct.. gave it originally, on the examination as to the Question. You did not want to correct any first interview with the President, which I will other portion of it? now read to you and see whether it is correctly Answer. No. reported: Question. And the first part of it only re- "Que8tion. What occurred between the President ferred to the mistake in the time about your and yourself at the second interview on the 21st of being made Adjutant General or being made February? "WITNESS. I stated to the President that I had Secretary of War? delivered the communication, and that he gave this Answer. It had reference to the notification answer. given me more particularly? " Mr. STANBERY. What answer?'WITNESS. The answer,'Do you wish me to vaQuestion. By the President? cate at once, or will you give me time to take away Answer. I had stated the notification - my private property,' and that I answered,'at your Question. The notification by the President pleasure.' I then stated that, after delivering the copy of the letter to him, he said,'I do not know to be Secretary of War or Adjutant General whether I will obey your instructions or resist that was mixed? them."' Answer. That was mixed. The WITNESS. I said " act your pleasure." Question. That was what you wanted to cor- Mr. STANBERY. Now, the point of your rect? answer I'wish to bring to your attention is this: Answer. I stated that I received that notifi- y This I mentioned to the President. His answer cation from Colonel Moore. Colonel Moore was,'Very well; go on and take charge of the office did give me the notification that I would prob- and perform the duty.' ably be put back as Adjutant General, but he Did you say that? did not as Secretary of War. Answer. I said that. Question. That was what you wished to cor- Question. It was in the cross-examination rect? that this " possession " came out, was it not? Answer. That was the principal correction I Answer. Yes, sir. wished to make. By Mr. Manager BUTLER: Question. And you did not want to correct Question. Then you mean to say that in ananything else? swer to Mr. Stanbery you put it all right yes. Answer. If there was anything wrong, Idid. terday, and in the answer to me you got it all My corrections are there, whatever they may wrong? be. I suppose that is the paper. Answer. In reference to your examination. Question. You then went over your testi- Mr. STANBERY. We will see how your mony, did you not, and corrected such portions.examination was by and by. We shall want as you pleased? General Thomas as to what took place on the Answer. Oh, I had full privilege to do that, trial after we put in the record. of course. Mr. Manager BUTLER. Call him in at any Question. And wrote out here portions of time; we shall always be glad to see him. two sheets which are in your handwriting, are [Laughter.] they not, of corrections? [Showingthepages General THOMAS. Thank you, sir. to the witness.] WILLIAM T. SHERMAN sworn and examined. Answer. Yes, sir, I corrected in my own By Mr. STANBERY: handwriting. Qzcestion. General Sherman, were you in Question. And signed it "L. Thomas, Ad- Washington last winter? jutant General?" Answer. I was. Answer. Yes, sir. There are not two sheets, Question. What time did you arrive here?,however. There is one sheet and a little more. Answer. About the 4th of December last. Question. I said portions of two sheets. Question. How long did you remain here? Now, sir, having read over your testimony and Answer. Two months. attempted ~o correct it, did you correct any- Question. Till the 4th of February, or about thing in this portion in which you are reported that time? as saying that the President ordered you to go Answer. Until about the 3d or 4th of Febforward and take possession and administer the ruary. office? Question. On what business had you come? Answer. I do not think I made any such Answer. I came as a member of the Indian correction as that. peace commission by adjournment. Question. You have sworn that that was not Question. Any other business at that time? true. Why did you not correct it? Answer. At that time no other business. Answer. I have said so because I know his Subsequently, by order, I was assigned to a' expression. board of officers organized under the laws of Question. Why did you not correct it before? Congress to submit articles of war and reguAnswer. Well, I have thought the matter lations for the Army. over. Question. At what date was that assignBy Mr. STANBERY: ment? Question. General Thomas, I find a report Answer. I could procure the order, which 308 would be perfect evidence of its date; but I.Mr. Manager BUTLER. I beg your pardon; must now state that it was within ten days of. put it in writing. ~ my arrival here; about ten days. Mr. STANBERY. I will lay E foundation Question. About ten days after your arrival first. [To the witness.] At what time were here? those interviews? Have youa memorandum? Answer. About the middle of December that The WITNESS, (consulting his memoranda.) order was issued. The interview with General Grant and the Question. Then you had a double duty? President, do you refer to? Answer. I had a double duty for a few days. Mr. STANBERY. No; any interview. I Question. During that time, from the 4th will ask you a question that will relieve you, of December until the 3d or 4th of February, perhaps. Had you interviews with the Presihad you several interviews with the President? dent before Mr. Stanton came back to the office, Answer. I had. while General Grant was yet in it? Qutestion. Did you see him alone, when there The WITNESS. Yes, sir; of a social nature was no person present but the President and entirely, before that time. yourself? Question. Had you interviews with him after Answer. Yes, sir. that? Question. Did you see him also inrcompany Answer. I had. with General Grant? Question. How long after that; after Mr. Answer. I saw him in company with GeA- Stanton came back? eral Grant once, and I think twice. Answer. The day following, I think. Question. Had you' several interviews with Question. Were you and the President alone him in relation to the case of Mr. Stanton? at that interview the day after? Answer. I had. Answer. General Grant was also present? Mr. Manager BINGHAM. Mr. President, Question. What did that interview relate to? we desire, without delaying the Senate, to re- Answer. The removalspectfully submit our objections here again, Mr. Manager BUTLER. Stop a moment. without desiringto argue it. We believe it our Do not get it in indirectly. Meet the question duty, as the, representatives of the House, to man fashion, please. object Mr. STANBERY. What did it relate to? Mr. STANBERY. Object to what? Mr. Manager BUTLER. That gives the subMr. Manager BINGHAM. That the decla- stance of it. I object. Meet the question. rations of the President touching any matter Mr. STANBERY, (to the witness.) Did it involved in this issue, not made at the time relate to the occupation of the War Depart-' when we have called them out ourselves, are ment by Mr. Stanton? not competent evidence, and desire to submit The WITNESS. It did. the point, if such is the pleasure of the Senate, Question. Now, what was it? to the ruling of the presiding officer. Mr. Manager BUTLER. Stop a moment. Mr. STANBERY. Allow me to come to We object. We ask that it be put in writing. some qhestion that we can get started upon. By Mr. STANBERY: This is introductory. Question. What conversation passed between Mr. Manager BINGHAM. I understand it so. you and the President? Mr. STANBERY. You will soon see what Mr. Manager BUTLER. Excuse me. I our object is with General Sherman. There asked to have the question in writing. Shall I will be no mistake about it whenwe come to it. have it? I have three times attempted, and Mr. Manager BINGHAM. I understand each time failed. the object is to call out conversations with the The CHIEF JUSTICE. The counsel will President. please reduce the question to writing. The CHIEF JUSTICE. At present no such The question, having been reduced to writquestion has been asked. ing, was handed to and read by the Secretary, Mr. STANBERY. Now we will come to as follows: the point very quick. [To the witness.] Gen- In that interview what conversation took placebeeral, while you were here, did the President tween the Presidentand you in regard to the removal ask you if you would take charge of the office of Mr. Stanton? of the Department of War in case of the re- Mr. Manager BUTLER. To that we object. moval of Mr. Stanton? I suppose we can agree on the day. That must Mr. Manager BUTLER. I object to the have been the 14th of January last. On the question, and ask that it be reduced to writing. 13th Mr. Stanton was reinstated; and the 14th, The CHIEF JUSTICE. The counsel will if it was the day after, would be the date. reduce the question to writing. Mr. STANBERY, (to the witness.) Can Mr. STANBERY. Do you object because you give us the day of that conversation, Genit is leading or because of the substance of it? eral? Mr. Manager BUTLER. I object to it for The WITNESS. Yes, sir. [Consulting a memevery reason. orandum.] Accordingto a memorandum which Mr. STANBERY. Then I will put it in a I hold Mr. Stanton reentered on the possession form -- of his office of Secretary of War on Tuesday,. 309 the 13th. Monday was the 12th, Tuesday the Mr. STANBERY. Mr. Chief Justice and 13th. The conversation occurred on Wednes- Senators, the testimony which we expect to day, the 14th of January. elicit from General Sherman I look upon as The CHIEF JUSTICE. The Chief Justice vital upon the question of intent, as testimony thinks the question admissible within the prin- we are entitled to have upon legal grounds ciple of the decision made by the Senate relating perfectly well settled and perfectly unanswerto a conversation between General Thomas and able. I can say now in argument, I presume, the President; but he will put the question to whatIexpecttoprove. "if," saysthehonorable the Senate, if any Senator desires it. Manager, " any declarations you choose to call Mr. CONNESS. On that I ask for a vote out are admissible, you may make them as and for the yeas and nays. strong as you please-imagine any that you The yeas'and nays were ordered. please-and still no declaration of the PresiMr. Manager.BUTLER. We should like dent made on that 14th of January can be to hear the grounds on which the offer is made admitted here!"' stated. Now, first of all, what is the issue here? Mr. STANBERY. The Managers ask meto Let the Managers speak for themselves. I state the grounds upon which we expect this first read from the honorable Manager who testimony -- opened this case, at page 94 of his argument. Mr. Manager BUTLER. No, sir. Mr. Manager BUTLER. You read from Mr. STANBERY. What, then? page 94 of the record, not of.the argument. Mr. ManagerBUTLER. Iaskyou simplyfor Mr. STANBERY. The Manager said: the ground on which you put it-not the testi- "Having shown that the President willfully viomony; the grounds on which you can put in any lated an act of Congress, without justification, both possible declaration, not the declaration itself. i the removal of Stanton and the appointment of Thomas, for the purpose of obtaining wrongfully the.Mr. STANBERY. This ground: we ex- possession of the War Office by force, if need be, and pect to prove by General Sherman certainly by threats and intimidations, for the purMr. Manager BUTLER. I object, sir. I pose of controlling its appropriations through its ad interisz chief, who shall say that Andrew Johnson is have not asked that. not guilty of the high crime and misdemeanors Mr. STANBERY. Is it not admissible, to charged against him in the first eight articles?" say what we expect to prove? Again, on page 109, speaking of the orders Mr. Manager BUTLER. No, sir; that is of removal: to get before the court, Mr. Chief Justice "These and his concurrent acts show conclusively Mr. STANBERY. " Get before the court i" that his attempt to get the control of the military Mr. Mlanager BUTLER. Get before the force of the Government, by the seizing of the I)Decourt or the Senate-that I should tfall into bad partment of War, was done in pursuance of his general design, if it were possible, to overthrow the habits sometimes is not wonderful, [laughter] Congress of the United States; and he now claims by -it is to get before the Senate the testimony his answer the right to control at his own will, for by statements of the counsel. The question the execution of this very design, every officer of the by statements of the counsel. The question Army, Navy, civil, and diplomatic service of the wholly and solely is whether the declarations United States." of the President can be given in evidence. Again, on page 99: What those declarations are, in my judgment, "Failing in his attempt to get full possession of it would be improper to state and unprofes- the office through the Senate, he had determined, as sional to state, because that is begging the he admits, to remove Stanton at all hazards, and whole question and attempting to get them endeavored to prevail on the General to aid him in so doing. He declines. For that the respondent before the Senate and the country by the re- quarrels with him, denounces him in the newspapers, cital of the counsel. That never is permitted. and accuses him of bad faith and untruthfulness. The sole question is, whatever the declarations Thereupon, asserting his prerogatives as CommanderThe solqestoniswhtevrin-Chief, he creates anew military departmentof the are, if any possible declaration can be compe- Atlantic. He attempts to bribe Lieutenant General tent at that time. If the declaration asked for Sherman to take command of it by promotion to the rank of general by brevet, trusting that his military can be competent you may assume that any services would compel the Senate to confirm him. possible Vonversation can be competent, and "If' the respondent can get a general by brevet then we will assume that this appointed, he can then by simple order put him on Mr. SITANBERY. Exactly; then youcorme duty according to his brevet rank and thus have a Mr. STANBERY. Exactly;then youcome general of the Army in command at Washington, to the point. through whom he can transmit his orders and coinMr. Manager BUTLER. That this can be, ply with the act which he did not dare transgress, as he had approved it, and get rid of the hated General and therefore there is no occasion to state Grant. Shermanspurned the bribe. Therespondent, what it is. not discouraged, appointed Major General George Mr. STANBERY. Take it in that way, any H. Thomas to the same brevet rank, but Thomas declined. possible declaration can be evidence. Do you "What stimulatedthe ardorof thePresidentjust at propose to argue this? that time, almost three years after the war closed, Mr. Manager BUTLER. We do not want but just after the Senate had reinstated Stanton, to reward military service by the appointment of geneto argue it. rals by brevet? Why did his zeal of promotion take Mr. STANBERY. We do. that form and no other? There were many'other Mr. Manager BUTLER. If the Senate will meritorious officers of lower rank desirous of promotion. The purpose is evidentto every thinking mind. vote that it is competent we cannot alter it by He had determined to set aside Grant, with whom he argument. had quarreled, either by force or fraud, either in 310 conformity with or in spite of the act of Congress, ment of qThomas ad interim, in order that he and and control the military power of the country. On Cooper might recognize his warrants." the 21st of February-for all these events cluster nearly about the same point of time-he appoints That is what they put in. They have got Lorenzo Thomas Secretary of War and orders Stan- that testimony for that purpose, as they say, ton.out of the office. Stanton refuses to go; Thomas to show the intent of the President, began, is about the streets declaring that he will put him out t sow the n tent of the re st, began, by force,'kick him out.'" they say, as early as the 12th of August, 1867, But, still more closely to the point, we will progressed in by the appointment of Cooper come to the testimony of intent, on page 251. in the fall of 1867, going all through the subThis is upon the introduction of the case of sequent time until it "culminated" on the Mr. Cooper. To show the intent of the Presi- 21st of February by at last finding the proper dent, the learned Managers have gone back to tool to do this work in the War Office. He the fall of 1867, and begin their proof with an was looking, according to the argument, for a intention commenced in the fall, carried along, proper tool-for a servant-for one who would says the honorable Manager, to the very date do his bidding, and, forsooth, after a search, of the 21st of February, of the appointment of he found the very man in what the Manager Thomas. Mostof the proof, he says, "clusters has called "a disgraced officer." about that time," but it begins, he says, in the Now, Mr. Chief Justice and Senators, and fall; and he calls Chandler to prove what? especially those of you who are lawyers, what That Cooper was inducted into office by the case are they attempting to make against the President, being his own Private Secretayor President? Not simply that he did certain the purpose of carrying out what? His inten- acts that would make him criminal, but that tion to get his own man first into the War he did these acts malafide, with an unlawful Office to control the requisitions there, and intent and criminal purpose. They do not then to get his own man.in-to the Treasury- D- prove that purpose, or attempt to prove it, by partment to meet those requisitions and to pay any positive testimony; but they say, " we them, and thereby control the purse as well as prove certain facts from which we rai a pr the sword of the nation. sumption that that was the purpose." It is " The only question"- upon proof, founded on presumption, and such proof is admissible, that the gentlemen rest says the learned Maiager-i the essential part of their case; that is to say, "is, is this competent, if we can show it was one of the criminal intent. They prove certain acts the ways and means? The difficultythat restsn the that may be criminal or stand indifferent, acminds of my learned friends on the other side is that they cluster everything about the 21st of February, cording to the intent of the party. Then they 1868. They seem to forget that the act of the 21st of prove certain other acts and declarations which, February, 1868, was only the culmination of a purpose as they say, raise the presumption that the formed long before, as in the President's answer he sets forth, to wit: as early as the 12th of August, thing done, the order given, the appointment 1867." * * e * * *.* * * * made, was made with that criminal intent laid, "To carry it out there are various things to do. and they say, e not only show tht crimHe must get control of the War Office: but what good an tey say, we not only show that crm does that do if he cannot get somebody who shall be inal intent then, but," they say, " it was his servant, his slave, dependent on his breath, to conceived months before," and that all the answer the requisitions of his pseudo officer whom machiery was put n motion, and that the he may appoint; and therefore he began when? machinery was put in motion, and that the Stanton was suspended, and as early as the 12th of President, from the 12th of August, 1867, was December he had got to put that suspension and the pursuing that intent, looking for tools, agents reasons for it before the Senate, and heknew it would t thatntent, and it did not culm not live there one moment after it got fairly considered. Now he begins. What is the first thing he nate until the 21st of February, 1868, although does?'To get somebody in the Treasury Depart- the gentleman says most of the facts happened ment that will mind me precisely as Thomas will. if to cluster about that period, but not all of I can get him in the War Department.' That is the first thing; and thereupon, without any vacancy, he them. must make an appointment. The difficulty that we This being so, Senators, what is the rule to find is that we are obliged to argue our case step by rebut this presumpton of intention When step upon a single point of evidence. It is one of re s presu mption of the infelicities always of putting in a case that sharp, a prosecution is allowed to raise the presumpkeen, ingenious counsel can insist at all steps on im- tion of guilt from the intent of the accused, paling you upon a point of evidence; and therefore rovig circumstances which raised that prehave got to proceed a little further. by p "Now, our evidence, if you allow it to come in is, sumption against him, may he not rebut it by first, that he made this appointment' that this fail- roof of other circumstances which show that ing, he sent it to the Senate, and Cooper was re- e could not have had such a c jected., Still determined to have Cooper in he appointed him ad interim, precisely as this ac interim Was anything ever plainer than that? Thomas was appointed, without law and against Why, consider what a latitude one charged right. We put it as a part of the whole machinery by which to get hold, to get, if he could, his hand into with crime is allowed under such circumthe Treasury of the United States. although Mr. stances. Take the case of a man charged with Chandler has just stated there was no way to get it passing counterfeit money. You must prove except by arequisition through the War Departmen his intent; yu must prove his sciener; you and at the same moment, to show that this was part his intent; you must prove his scienter; you of the sameillegal means,we showyou that although must prove circumstances from which a preMr. McCulloch, the Secretary of the Treasury, must sumption arises; did he know the bill was have known that Thomas was appointed, yetthe President took pains-we have put in the paper-to serve. You may prove that he had been on Mr. McCulloch an attested copy of the appoint- told so; prove that he had seen other money 311 of the same kind, and raise the intent in that transactions with him before; did your ever hear way. Even when you make such proof against him state what his plan of reform was? him arising from presumptions, how may he of Yes, I have; he always stated it to be the Duke him arising from resumtions, how may he of Richmond's plan, universal suffrage and annual rebut that presumption of intent from circum- Parliaments. stances proved against him? In the first place, " Was that said to you publicly, or in the privacy of confidence? by the most general of all presumptions, proof "It was said publicly. And he sold me some Obpies of good character generally. That he is al- of the Duke of Richmond's letter. lowed to do to rebut a presumption-the most "Mr.~ Attorney General. I really must objectto this sort of examination. general of all presumptions, not that he did "soMr. Erkine. Then I will not defend this question. what was right in that transaction, not that he I am persuaded your lordships will not refuse to the did certain things or made certain declara- unfortunate man at the bar that evidence which has been received for every prisoner, under similar cirtions about the same time which explained cumstances, from the earliest times of our history that the intent was honest, but going beyond to the present moment. I am sorry to consume the that through the whole field of presumptions, time of the court, but if I am called upon I will repeatto your lordships, verbatim,from the StateTrials, fbr it is all open to him, he may rebut the pre- various questions, upon similar occasions, put by difsumption arising from proof of express facts fcrent prisoners, by consent of all the judges, all the by the proof of general good character, rais- attorney generals and solicitor generals, and counsel for the Crown. I only wish to know whether the ing the presumption that he is not a man who question is objected to or not. would have such an intent. Mr. Attorney General. It is. Mr. Manager BUTLER. We do not object ir.'rskine. I will proceed, and I have much more pleasure in doing it from the manner in which to that proof. the attorney general conducted himself recently, beMr. STANBERY. You do not I cause the moment that it was stated as a proceeding Mr. Manager BUTLER. Put in his good which, we thought, might be serviceable to the prisoner, and consistent with the rules of evidence, he character. instantly acceded to its production; therefore, indeMr. STANBERY. Such a general thing as pendent of satisfying your lordships, if I can satisfy that! And yet you object to this? my learned friend that we are in the regular course, at or /oTr nM ATo s,I am persuaded he would be sorry himself that this Mr. Manager BUTLER. Put in his good prisoner should be deprived of the advantage which character, and we will take issue on that. all others have enjoyed." Mr. STANBERY. Now, what evidence is Then this great advocate proceeds to give a defendant entitled to who is charged with the cases from the State Trials upon the point crime where it is necessary to make out an that I ama now considering-the declarations intent against him where the intent is not posi- of a prisoner as evidenceof his intent, whether tively proved by his own declarations, but it were unlawful or lawful, in the matter as to where the intent to be gathered by proof of which he is charged. other facts, which may be guilty or indifferent I read from page 1068: according to the intent. What proof is allowed "Now, what is the present case? The prisoner is against him to raise this presumption of intent? charged with the overt acts, which I need not repeat, Proof of those facts from which the mind itself because we are so well acquainted with the nature infers a guilty intention. But while the pros- of them." ecution may make such a case against him by We are charged with overt acts in issuing such testimony, may he not rebut the case by this order. exactly the same sort of testimony? If it is a "But he is not charged with the commission of declaration that they rely upon as made by him those acts as substantive acts, but he is charged with declaration that they rely upon having in his mind the wicked and detestable purat one time, may he not meet it by declarations pose of aimihg at the destruction of the king, to put made about the same time with regard to the down and bring the king to death, and that in the same transaction? Undoubtedly. They can- fulfillment of that most detestable imagination he. did the specific acts charged upon the record." not be too remote; I admit that; but if they are about the time, if they are connected with As w e charged here with intent, not to the transaction, if they do not appear to have put down the king, but to put down Congress, been matmufactured, theti the declarations of the and our detestable acts are to put a tool in the defendant from which.the inference of inno- War Department to control the requisitions, cence would be presumed are, under reason- and another tool in the Treasury Department able limitations, just as admissible as the dec- to get hold of the money. larations of the defendant from which the pros- Mr. Erskine continues: ecution has attempted to deduce the inference "That is to say, that he agreed to- assemble a conf criminal purpose. Now let us loo at the vention to be held which was not held-that he conof criminal purpose. Now let us look at the spired to hold it, for the purpose of subverting the authorities on this point. In the trial of rule and authority of the country, and not that alone, Hardy, reported in State Trials, volume twenty- but that he consented to hold such convention, which four, page 1065, PMr. Erskine, who defended convention, in his mind, was to accomplish the parpose of the subversion of the Government, and that Hardy, called a Mr. Daniel Stuart as a witness. he did agree to assemble that convention for the purThe case is so fully in point that I will read pose of that subversion in fulfillment, not that the other is the consequence of it. but in fulfillment of from it pretty largely: the detestable purpose of compassing the king's "Mr. Erskine. I call back this gentleman only death. for the purpose of asking him one question, which " Here, then, the intention of the mind is the qucsI could not with propriety ask him before; you tion which the jury have to try; and I think I may stated, in your former examination, your personal appeal to what passed in the court on Saturday. that acquaintance with the prisoner at the bar, and your I did not seek to Jay down other rules of evidence 312 than those that have been most recently stated, and evidence of conversation; my Lord Russell declared those that have been determined in ancient times." it so; therefore it is not that you are to raise a probNow he comes to the cases: ability upon the subject by the general nature of a man's character, or what you think of him; but it "The counsel for Lord George Gordon were the shall be allowed to witnesses to say what the person present Lord Kenyon, lord chief justice of the king's trying has expressed, because it raises an intrinsic bench, and myself. who have now the honor to improbability of his being guilty of the crime imspeak to the court; and I was permitted to ask the puted to him. Doctor Burnet says:'He always exRev. Erasmus Middleton (thefirst witness, and there- pressed himself against all risings; and when he fore his examination fell to me as junior in the case) spoke of some people that would provoke to it he these questions-I should tell your lordships, to make espressed himself so determined against that matter it more intelligible, that the great object was to see I think no man could do more."' what intention Lord George Gordon had, which could be collected only from what passed before-' Did you, Now, what we expect to prove is, that, so far at any of these numerous meetings of this Protestant from there being any intent on the part of the Association, which you attended from the time Lord President to select a tool George Gordon became president of that society,' President to select a tool to take possession (which was two years before,)'tillthe29thof May"'- of that War Office, he asked first the General That was the "culmination" of Lord George of the Army, Grant, and when he failed him, Gordon's conduct: who next? The next most honored soldier "'till the 29th of May;' did you ever hear Lord that we have, Sherman. He was a tool! It George Gordon, in his public speeches in thatassocia- was the President's purpose, they say, to put tion, make use of any expressions which showed any a tool there! That was his intent, to fnd a disloyal or unconstitutional intentions in him?" man who could take a bribe, by bevet perhaps, "Not in the least," says the witness;* " the man who could take a bribe, by brevet perhaps, " Not in the least," says the witness; " the and having found such a man as that, put him reverse. Now, contiiiues Erskine:7 and, having found such a man astliat, put him very reverse." Now, continues Erskine: 1 6very reverse." I6 w, continues Ers~ine: there! They say he did find such a man in "Now., compare this with the question I am going Thomas, " a disgraced officer." Well, if that to ask; a cunning, artful man might stand up in a his intent in the fall; if with that intent Protestant association, and hold forth great profes- s his intent in the fall; if with that intent sions when he meant the contrary; but no man who he put, Cooper in the Treasury, it must have repose confide tnce in the bosom of aof his friend, building been with that intent he would put Sherman in himselfiupon the honor and honesty of his friend, when he tells him what his object is, will deceive the War Office. Before he thought of Thomas him. Good Godl if I were to ask people, did not at all, before he thought of any subordinate, Mr. Hardy, in the Corresponding Society, say that he too one of the most honored officers of the the Duke of Richmond's plan was his object, he might say it there, for the purpose of its afterwards being land, and said to him:' Come now, take this given in evidence, thathe had publicly avowed that; office; you are fit to be my tool-take this if that may be asked, how is it possible to oppose the office, lot to carry it on as you carried on this other? The examination then goes on:'Did all his speeches, delivered as president, meet with your great war, not to remain a trusted and honorapprobation; and did it appear toyou that hisviews able man, but to become my subordinate and were the same ai those of the whole associated my tool ill the gentleman sy that the body?''Quite so.''Did you ever hear Lord George Gordon make use of any expressions as if he meant President at that time had an intent to seize to repeal this bill by force of arms?'' Not in the upon the requisitions of that Department, to least.''Were the meetings open?' and so on." get a man there who would send an improper Again: requisition over to the Treasury, as he got a " The next case I shall state is that of my Lord man in the Treasury, as they say, to honor an Russell, who was indicted for compassing the king's death, and the overt act was consulting to raise improper requisition-that the President had rebellion and to seize the king's guards. In his put him there to drive Congress out of these defense he called many persons of quality to speak Halls, and that lie intended to put Sherman to his affection toward the Government, and his de- the testation of risings against it-I will pause here a there to become his tool? Would the gentleminute. Why, a man might have a great deal of man dare to say that? Would the President, in affection to the Government in the year 1780 and the first place, have dared to make such a propmight change upon the subject, but yet the criminal law of England looks out industriously to see how osition to such a man as General Sherman? it can interfere in favor of liberty and life, not try- Gentlemen of the Senate, if you are to raise ing how it can shut out the light, but how it can let apresumption that the President intended to it shine in; even that question, which I do not think one ofthestrictest, was suffered to be let in, because carry out an unlawful purpose by appointing Dr. Burnet had had a long acquaintance with Lord Cooper, that he intended to carry out the same Russell, and Lord Russell might not have conceived awful purpose by appointing Thomas, how the purpose of rebellion till a short time before; but I shall ask as to the time when they say this man's does it happen that you do not give him the mind was full of this conspiracy"- benefit of the presumption arising from his As we do here-the time of this intent; no attempt to get such a man as General Sherother time- man, that could not be made a tool of? And "but I shall ask, as to the time when they say this yet this is all to be shut out from the defense man's mind was full of conspiracy, so horrible in its of the President I nature, what were the sentiments which he was pouring into the bosom of his friend as the object of In the cases that I have put, the case, for all these societies? instance, of Lord George Gordon, who was "'Doctor Burnet,' (says Lord Russell,)'if you indicted for a treasonable speech made on a please to give some account of my conversation?' Doctor Burnet says:'I have had the honor to be certain day-I forget the date-before a cerknown to my Lord Russell several years, and he hath tain association, he was allowed to go into declared himself with much confidence to me, and he proof running through a period of two years always, upon all occasions, expressed himself against before that in meetigs of that same associaall risings.' Now, this is not character to say that before that in meetings of that same associaLord Russell was a quiet, peaceable man; no, this is I tion, that, instead of' encouraging risings or in 313 surrections, he had set his face' against them. my mind that I have not got, as he seems to All that was admitted, although it was begun have the very good faculty of putting intents two years prior to the declaration for which into every man's mind. We expect to show he was indicted, and, indeed, more than two that the President not only asked General years before, certainly not clustering about the Sherman to take this position, but told him same time, not during the time when they say then distinctly what his purpose was, and that the intent arose, but long prior to that time, was to put that office in such a situation as to when in fact his intent may have been honest; drive Mr. Stanton into the courts of law. for in two years a man may change his intent. Mr. Manager BUTLER. This is wholly They might have said at that time, " You have unprofessional and improper. gone too far back; the question is as to your Mr. STANBERY. I will judge of that. intent at the time of the transaction, as to your Erskine in this argument introduces a great intent at the time when we have given evidence many cases, which it would take too long to against you." Lord George Gordon went back read; but finally the question which he put two years behind that. We stop within the was allowed to be put and was answered; and time which they have fixed themselves. We I understand the decision in Hardy's case has do not ask to give any testimony as to the gone into the text-books as law. But it was President's intent before the acts which they not necessary to have Hardy's case. I will ask have brought forward to raise a presumption any lawyer who has ever tried a case where the of guilt against him. question was the intention, and where the case They began in the fall of 1867 with the ap- made against his client was of facts from which pointment of Cooper, as they say. This is in' a presumption of intention was pretended to be the subsequent winter, when Sherman is here, raised by the prosecution, may he not show right in the middle of this transaction. The contemporaneous acts, acts covering the same President, as they say, had this intent all time as those used against him, declarations along before the act had culminated; that is, within the same time with those used against had ended, had reached its consummation — him; may he not be allowed to resort to these to all that time, they say, the bad intent was in rebut the criminal intention, and to show that the President's mind, and they use every cir- his intention was fair, honest, and legal? Uncumstance they can against him to raise the doubtedly such is the law; and it is upon this presumption that he intended to carry it out. ground that we ask the introduction of the tesNow, we want to show his acts and his decla- timony of General Sherman. rations during that time to dissipate this idea Mr. Manager BUTLER. Mr. President, that the President had any unlawful intent, to Senators, I was quite willing to put this case show that he was not seeking after a tool, but to the judgment of both lawyers and laymen seeking for an honest, honorable, high-minded of the Senate without a word of argument; soldier-to do what? That which was unlaw- and I only speak now to "the lawyers," beful? No; but to do that which the President cause the learned counsel for the President thought belonged to him. We will show you emphasizes that word as though he expected that he asked General Sherman if he would some peculiar advantage from speaking to the take that office upon the removal of Mr. Stan- lawyers of the Senate. All the rules of eviton, and then said to General Sherman — dence are founded upon the good sense of manMr. Manager BUTLER. That is not allow- kind, as experience in the courts of law has able. shown what is most likely or unlikely to elicit Mr. STANBERY. What! that I cannot truth, and they address themselves just as well state what we are going to prove? I insist on to the layman as they do to the lawyer. There it as a right. is no gentleman in the Senate, nay, there is no Mr. Manager BUTLER. I insist that it is gentleman anywhere, that cannot understand never done in any court. this question of evidence; and if the plain Mr. STANBERY. If the Senate choose to rules of fair judgment and fair examination stop meaI will stop; but I hope I shall be are applied to it, as I doubt not they will be, allowed to state what I expect to prove. I have there can be no difficulty in the matter. been too long at the bar not to know that I I agree that I labor, not under any weight have that right. The gentleman may answer of the argument that has just been put formy argument, but I hope he will not stop it. ward against me, but labor under the weight Mr. Manager BUTLER. If you look at the of the opinion of the presiding officer, who, book you hold in your hand you will find that deciding without argument, has told the SenErskine stopped the Attorney General in pre- ate that in his opinion this came within the cisely the same case from which you have previous ruling, which I suppose to be the rulquoted, and said, "You must not read a ing of yesterday. If it did I should not for a letter. " moment have troubled the Senate, because I Mr. STANBERY. "Must not read a let- have long since learned, however they may be ter 1" I am not reading a letter; I am stating against me, to bow to the decisions of the triwhat I expect to prove, and the gentleman bunal before which I am. takes me up. He does not understand where But this is entirely another and a different he is or where I am. He puts an intent into case. In order to understand it let us see 314 what is the exact question. The exact question Mr. Manager BUTLER. I do not under, is "In that interview," to wit, on the 14th of stand the gentleman. January, " what conversations took place be- Mr. EVARTS. He said exactly the contween the President and you in regard to the trary. removal of Mr. Stanton?" "What conversa- Mr. Manager BUTLER. -Ee said that he tion;" it does not ask for acts now; pray, gen- had made up his mind to use force to the tlemen, keep the distinction. " What conver- shedding of blood. sation took place between you?" is the question, Mr. EVARTS. No; to break a door; but and upon that the Senate will vote. when he thought of shedding blood he retracted Now, how is this attempted to be supported? his opinion. I agree that the first part of the argument Mr. Manager BUTLER. And heremained made by the learned Attorney General was the of that mind until the next morning. very bdst one he ever made in his life, because Mr. EVARTS. No; he did not say that. it consisted mostly in reading what I had said. Mr. Manager BUTLER. What he found at [Laughter.] He put' the question, and I have the masquerade ball or elsewhere to change a right to say so, I trust, without any immodesty, his mind he has not told us; nor can he tell because he adopted all I said as his own, which us when he changed his mind. Ain I not right? is one of the highest compliments I ever had But I pass from that; I am only calling the paid to me. I thought it was a good argu- attention of the Senate to the distinction bemnent, Senators, when I made it to you; I hoped tween the two. it would convince you that it was right; but it Now, then, how is this attempted to be supfailed. If it can be any better now in the ported? The learned gentleman from Ohio mouth of the Attorney General I desire to says what? He says "in a counterfeiter's case see the result. I was arguing about putting we have to prove the scienter." Yes, true; in the President's act in appointing Mr. and how? By showing the passage of other Cooper. I tried in every way I could to get counterfeit bills? Yes; but, gentlemen, did you it before you; I tried to show you that you ever hear, in a case of counterfeiting, the counought to permit me to do so; but by an almost terfeiter prove that he did not know the bill solid vote you said I should not. I said, " I was bad by proving that at some other time he can prove the intent." My argument failed passed a good bill? Is not that the proposito convince you. Will.it do any better when tion? We try the counterfeit bill, which we read by the musical voice of my friend from have nailed to the counter, of the 21st of FebOhio? I think not. Of courseyou will allow rusry; and, in order to prove that he did not me to have so much self-gratulation as still to issue it, he wants to show that he passed a good say that I think it ought to have convinced bill on the 14th of January. It does not take you. I only bow to the fact that it did not. a lawyer to understand that. That is the But the point was there that I was attempt- proposition. ing to prove, not a declaration of Mr. John- We prove that a counterfeiter passed a bad son, but his act in putting in Cooper; here bill: I am following the illustration of my they ask for conversations. We failed; the learned opponent. Having proved that he Senate decided that We could not put in any act passed a' bad bill, -what is the evidence he proexcept such as was charged in the articles. poses? That at some other time he told someWe do not charge in the articles an attempt to body else, a good man, that he would not pass bribe, or use as a tool, the gentleman who is bad money, to give it the strongest form; and on the stand, for whom we all have so high a you are asked to vote it on that reason. I respect. I do not think that we havie that ap- take the illustration. Is there any authority preciation of him. Whatever appreciation the brought for that? No. President mighthave, we never had that. What What is the next ground? The next is that do we charge? We charge that he used the it is in order to show Andrew Johnson's good man whom we saw on the stand here before as character. If they will put that in testimony ~a tool, and judge ye on your consciences whether I will open the door widely. We shall have he is not on his appearance here a fit instru- no objection whenever they offer that. I will ment. Judge ye! Judgeyel You have seen take all that is said of him by all good and him —a weak, vacillating, vain old man, just loyal men, whether for probity, patriotism, ot fit to be pampered by a little pride to do things any other matter that they choose to put in which no man and no patriot would dare do. issue. But how do they propose to prove good Why, let me call your attention for a moment character? By showing what he said to a gento him. On this stand here yesterday he was tleman. Did you ever hear of good character,' going on to say that his conversation was play- lawyers of the Senate; laymen of the Senate, ful to Karsner, playful to Wilkeson; but when did you ever hear a good character proved in he saw that that was not so, that that did not that way? A man's characteris in issue. Does put him in a dignified position, he swung back he call up one of his neighbors and ask what to the truth and told us he meant to have force the man told him about his character? No; to the shedding of blood. the general speech of people in the commaMr. EVARTS. He said exactly the con- nity, what was publicly known and said of him, trary. is the point, and upon that went Hardy's ease 315 NoW, then, lawyers of the Senate, I have is an illustration of the difficulty of reading never seen before cited in the course of an from the arguments of counsel, whether they argument on the law the speeches of counsel. are made here by me or made by Lord Erskire I thought it was not within the common usage inregardto Gordon'strial. We are on one side of the profession. Am I not right, lawyers when we are arguing our cause, and we ate apt of the Senate; and yet page after page of to get our minds somewhat biased. What was the argument of Mr. Erskine, who was going Lord George Gordon's case? Lord George forward in every way that he could to save the Gordon was accused of treason in leading a mob life of his client, has been cited here to the of Protestants againstthe House of Parliament; Senate to govern them as a precedent. A and there, in order to show his intention, there more unprofessional act I never knew. were allowed to be put in evidence against him Mr. STANBERY. Mr. Chief Justice, I the cries of the mob made publicly and orally must ask the gentleman to cease these state- as part of the res gestte. To meet that; what ments of "unprofessional" matter. I read was the defense? The defenge was the insan-I wish the gentleman to attend to what I say ity of Lord George Gordon, and upon that denow-I read only so much of the argument of fense, and upon the whole case they went intb Erskine as showed the application of the cases the widest possible range. Let the gentlemen which I read from Erskine's speech. That on the other side come in and prove-which is was all. the best defense they have got-that Andrew Mr. Manager BUTLER. I attended with Johnson is insane, and we shall then go into care to what was said; I had the book in my all his conversations to see whether he talked hand and followed the gentleman; the argu- or acted like a sane man, on which idea in that ment of the counsel only was read; and now, case the defense went into Lord George Gorto show the application of that particular case, don's acts and sayings, but in no other way. let me ask what the question there was. The Then, what is the next thing that is said about question was, what were the public declara- this? They then go into Lord William Rustions of Mr. Hardy? He was accused of sell's case. Lord Russell's case was one of having made a speech and made a series of those so eloquently denounced by the gentl-espeeches which were held to be treasonable. man who opened for the President yesterday as Then the question was, what was fhis charac- one of those cases occurring under the Plan: ter as a loyal man, and upon that the discus- tagenets and Tudors which he would not appeal sion arose from which citations have been to for authority. They do drink at our fountmade; and when the discussion finally termi- ain sometimes. They have got back now to nated, gentlemen of the Senate, what was the those cases which they would lay aside yester. question? I read from page 1096 of the day. They have come back to them to-day; twenty-fourth volume of the State Trials: but what was there? The whole question was, " Did you before the time of this convention being what was Lord William Russell's character for held, which is imputed to Mr. Hardy, ever hear from loyalty. The questionasked the witness was, -him what his objects were-whether he has at a11 what was his character for loyalty, to which the mixed himself in that business? " I have very often conversed with him, as I men- reply was "Good. Then he was asked Ho tioned before, about his plan of reform; he always long have you known him?" and he replied "' adhered to the Duke of Richmond's plan, and said have known him some time." Then came the that will bethe plan that will be adopted in the end. I disagreed with him about that, and that oceasioned question "Did you ever hear him express himit more particularly to be marked in my memory; self against the king and against the Governwe disputed about it. and he always obstinately ment?"to which the answer was "No;" and adhered to it, and stated that to be the object of the nt?" to which the answe r was i' No;" and society, and his whole object. then followed the question "Did you ever hear "Was this said in the confidence of private regard him express himself in favo of insurretion " or in public company, where it might be said osten-and the answer was "No." That is precisely tatiously? " I was never in public company with him r he and as every lawyer here has heard the question another person were with me one night, and I have of character inquired into. The question is had long and frequent conversations with him upon "What is the character of such a man for the subject. "From all that you have seen of him, what is his truth? " The witness says "Good." That is character for sincerity and truth? not putting in hearsay. That is to get a nega"I have every reason to believe him to be a very tive. In that case they were not asking for sincere, simple, honest man. " Mr. Attowrey General. If this had been stated at what Lord Russell said, but they were offering first to be the question meant to be asked, I do not to prove that he did not say anything that was see what possible objection I could have to it." treasonable, not what he did say; and that i*6 And if they will ask General Sherman or upon the question of his good character. anybody else what is Andrew Johnson's char- Let me call your attention to the other point acter for sincerity and truth I will not object, upon which this is pressed, and that seems to I assure you. That was the whole question be the strong point of the case, because my about which the dispute arose in Hardy's case; friend said as he opened it'this is very vital," and the Attorney General finally said "if I hoping, I suppose, that by possibility he might had known that was what you are after I never in some way be able to fright you from yo'ut should have objected." propriety. If it is a very vital matter you will Whatwas Lord George Gordon's ease? This pardon me for arguing it at some length. 316 Mr. STANBERY. Will the learned Man- what will appear to you and the country, is ager allow me one moment? In regard to Mr. that he was seeking for somebody by whom he Hardy's case, he has fallen into an error in might get Mr. Slanton out; some gentleman reading the question, which was not the one at of the Army. First he tried Grant; then he allIwasupon. He readasto generalcharacter. wanted to get General Sherman in, so that Mr. Manager BUTLER. To that I say I when General Sherman, not wanting the cares have fallen into no such error. of office upon him for a moment, ready to get Mr. STANBERY. One moment, if you rid of them at any time, should resign and please. leave, so as to get rid of it, as he doubtless Mr. Manager BUTLER. No; I cannot would, he could then put in somebody else. allow you to interpolate for the purpose of He went along; he began with Grant, and he stating that I did not cite correctly. went down through Grant and down through Mr.' STANBERY. One moment for a cor- Sherman and George H. Thomas, and down, rection. down, until he struck Lorenzo Thomas, and Mr. Manager BUTLER. I cannot spare a then he found the man who could be put in. moment, sir. Now, the gentlemen propose to offer to prove Mr. STANBERY. I wish to show only that that he did not find a tool in General Sherthe very question was put and answered under man, in order to satisfy the Senate that he the decision of the court in that case. did not find one in Thomas I Do these two Mr. Manager BUTLER. Allow me to say things hold together? Does one belong to the that I read the only question that was put and other? Because he did not find a tool, a directly after it was allowed to be put proper man to be made an ad interim SecreMr. STANBERY. I shall have to leave it tary, and to sit in his Cabinet as an ad inteto my associate. rim Secretary, in General Sherman, does that Mr. Manager BUTLER. Certainly. If you prove that therefore he did not find a proper will turn to the case you will find it, sir. I be- man in Thomas? gan with " Mr. Daniel Stuart examined by Mr. But, then, look at the vehicle of proof. What Erskine," and I read from there to where the is the vehicle of proof? They do not propose attorney general said, " If this had been stated to prove it by his acts. When they are offered at first to be the question meant to be asked, I I shall be willing to let them go in. Let them do not see what possible objection I could have offer any act of the President about that time, to it." I read from where the court decided either prior or since, and I shall not object, down to where the question was put and an- although the Senate ruled out an act in Cooper' s swered, and to what the attorney general said case. But how do they propose to prove it? about it. Therefore I made no mistake. I am " What conversations took place between the not in the habit of reading a portion and leav- President and you?" I agree, gentlemen of ing out a portion of a man's speech, and then the Senate-I repeat it even after the criticommenting upon it.. cisms that have been made-that you are a law Now, Senators, what is the other point; and unto yourselves. You have a right to receive it is the only one I feel any trouble about? or reject any testimony. All the common law That is that some gentlemen may think that can do for you is, that being the accumulation this question comes within the decision of of the experience of thousands of years of trial, yesterday. Yesterday we objected to the it may afford some guide to you; but you can President's declaration after we said the override it. You have no right, however, to conspiracy had culminated. It was claimed override the principles of justice and equity, that they had a right to put in what he said and to allow the case of the people of the Uniwhen Thomas reported back to him, and the ted States to be prejudiced by the conversaSenate decided that it should be put in; but tions of the criminal they present at your bar, now they propose to go a month prior to that made in his own defense before the acts done, time and they propose to go over a space of which the people complain of. That I may, I time where we offered evidence to prove the trust, without offense say; because there is a President's bad intent, and the Senate of the law that must govern us at any and all times, United States ruled it out. I allude to Cooper's and the single question is-I did not mean to case. We offered to prove that in December trouble the Senate with it before, and never he put Cooper in, and what Cooper was doing will again on this question of conversationin order to show the President's bad intent; what limit is there? If this is allowable you and the Senate of the United States, upon the may put in his conversations with everybody; offer of the Representatives of the people of you may put in his conversations with newsthe United States, ruled that out; and now the paper reporters-and he is very free with those gentlemen propose to go on and show what if we are to believe the newspapers. If he has the President said to General Sherman. a right to converse with General Sherman about One argument which I used to appeal to this case and put that in, I do not see why he prejudice is that I stated that the President has not a right to converse with Mack, and was seeking for tools. I said so; but, at the John, and Joe, and J. B., and J. B. S., and same time, I said that he. never found one in T. R. S., and X. L. W., or whoever he may General Sherman. What I mean to say, and talk with, and put all that in. 317 I take it there is no law which makes a con- Let them state the process, if they can, by versation with General Sherman any more which Mr. Stanton was to be reinstated in competent than a conversation with any other office. I think they will find it as difficult to man. And where are you going to stop in this show to the Senate such a process as they will trial? Go on thus and they will get the forty, to show that where a general law applies to the sixty, the ninety, the one hundred days- the States and Territories of the United States more than the forty they first asked, by simply it does not apply to the District of Columbia. calling everybody with whom the President has It will be as difficult and fully as troublesome had conversation; for I believe I may say with- to show the one as the other. out offense that he is understood to be a great Now, the simple question comes back to us, conversationalist, and on this principle they and it is the only one on which you are to rule, may introduce proof of all that he has said to Are the conversations of the President with everybody else about that time about the case; General Sherman evidence? If the conversaand if we may believe report, we are to have tions with him are evidence, is not every conreporters and everybody else with whom the versation that the President has had at any time President has engaged in conversation. with anybody evidence in this case? Where is Allow me to say one thing further. Gentle- the distinction? men of the Senate, I said in your hearing to Mr. EVARTS. Mr. Chief Justice and Senthe learned counsel that I did not think it right ators, some incidental questions, partly of profor him to state what he expected to prove; fessional propriety, have arisen and been disand in order to prevent his stating it I said he cussed at some length by the learned Manager. might imagine any possible conversation. I Let me read from page 165 of the record of objected to it, because he thereby gets before this trial on the question of stating what is the court, befire the court and jury, before the intended to be proved. court and the country, a supposition that he We objected to certain testimony, and then could prove that thing. That is what it is done this occurred: for; it, is an argument to the prejudice; and I "Mr. Manager BUTLER. The objectis to show the thought it then unprofessional, and I state that intent and purpose with which General Thomas went in that very book which he held in his hand in to the War Department on the morning of the 22d of Hardy's case the attorney general of England February; that he went with the intent and purpose arsashatry general ofEngof taking possession by force; that he alleged that offered to read a letter found in Hardy's pos- intent and purpose; that in consequence of that allesession and he began to read it. Erskine ob- gation Mr. BURLEIGH invited General MOORHEAD jected, and said " You must not read it until it and went up to the War Office. The conversation which I expect to prove is this: after the President is allowed to go in evidence." Said lie,' I want of the United States had appointed General Thomas the court to understand what is in the letter. and given him directions to take the War Office, and It cannot be read for that purpose. Argue after he had made a quiet visit there on the 21st, on the evening of the 21st he told Mr. BURLEIGH that the from its situation, argue from where it was next day he was going to take possession by force. found, argue from who signed it, what its per- Mr. BURLEIGH said to himtinency or relevancy is; but you cannot read Mr. STANBERY. No matter about that. We object to that testimony. the letter and put it in before the court and jury "Mr. Manager BUTLER. You do not know what until after it is ruled to be in evidence. " The you object to if you do not hear what I offer. gentlemanin his practice —I charge it upon him Mr. Manager BUTLER. Read on: "'We here-has seen hundreds of times a court stop object to it," and I stopped. counsel and say, " Hand it to me; hand the Mr. EVARTS. I have read what I have paper up to me; you must not read it until after read, sir. it is ruled upon." I objected all that I could, Mr. Manager BUTLER. But stopped a but an aggregate body like this of course could little short. not stop him if he chose to go on. Now, what Mr. EVARTS. I have read what I have was said after he had argued it? He said he read. Now, sir, we come to the impropriety wanted to show that the President had tried to of my learned associate's having drawn attenget this officer of the Army to take the War tion to the pertinency of what appeared in Department, so that he could get Stanton out. argument and in the citation of authorities That is what we charge, that he would take upon the trial of Hardy, and whether that anybody, do anything, toget Stanton out. That question was pertinent to this or not. Now, I is the very thing we charge. Hewouldbeglad understand the question which was there disto get General Sherman to aid him. He would cussed related exactly to the introduction of have been glad to get General Grant. Failing conversations between the accused and the in him he tries General Sherman. Failing in witness produced to prove them, antecedent to him he tries Major General George H. Thomas, the period of the alleged treason; and it all the hero of Nashville. He failing, he is willing resulted in this, on page 1096 of 24 State Trials: then even to take Lorenzo Thomas to get Stan-y put the ton out. Whatfor? The late Attorney General exactly as you propose. I confess I wished by inhas said the purpose was to drive Stanton into terposing to avoid all discussion, because I consider the courts. The President knew, or his counsel what we are doing, and whom we have at that bar, knewth n cou o ge Pientkor th course and in that box, who are suffering by every moknew, that Stanton could not go into the courts ment's unnecessary delay in such a case as this. to get back again. There is no proper process. "Mr. Erskine. I am sure the jury will excuse it; I 318 meant to set myself right at this bar; this is a very to matter bearing upon this question, and I beg public place.' Mr. Daniel Stuart e xamined by Mr. Erskine." the attention of Senators to this: Mr. anieh tua exmine by "It may be said that the President removed Mr. The question was put exactly as he pro- Stanton for the very purpose of testing the constituposed: tionality of this law before the courts, and the question is asked, Will you condemn him as for a crime " Did you before the time of this conversation being for so doing? If this plea were a true one it ought held, which is imputed to Mr. Hardy, everhear from not to avail: but it is a subterfuge. We shall show him what his objects were-whether he has at all you that he has taken no step to submit the question mixed himself in that business? to any court, although more than a year has elapsed "I have very often conversed with him." since the passage of the act." And then he goes on to state the conversa- Then, at page 108, we are told: tions. " Upon the first reading of the articles of impeachNow, Mr. Chief Justice and Senators, I come ment the question might have arisen in the mind of to the merits of this question of evidence. This some Senator, Why are these acts of the President a very eculr case. Whenever evidence only presented by the House when history informs is a ver peculiar case. Whenever evidence us that others equally dangerous to the liberties of is sought to be made applicable to it, it is a the people, if not more soand others of equal usurpcrime of the narrowest dimensions and of the ation of powers, if not greater, are passed by in must puny proportions; it exists for its com-'"To such possible inquiry we reply: that the acts pletion and for its guilt, for its enormity and set out in the first eight articles are but the culmifor its claim to punishment, upon the delivery nation of a series of wrongs, malfeasances, and usurpations committed by the respondent, and therefore of a written paper by the President to General need to be examined in the ed i tligt of his precedent Thomas, to be communicated to the Secretary and concomitant acts to grasp their scope and deof War; and that offense, in those naked pro- sign." portions, if contrary to a valid law and if done And then common fame and Current history with intent which makes it criminal under that are referred to, and confirmed by a citation of law, the Congress in the enactment which cases two hundred and forty years old from makes it indictable has permitted to be pun- the British reports, to show that they are good ished by a fine of six cents and no more I That ground for you to proceed upon in your veris the naked dimension of the mere technical diet. Bringing, then, this to a head, the honstatutory offense, and that is included within orable Manager says: the mere act of the delivery of a paper unat- "Who does not know that from the hour he began tended by any grave public considerations of these his usurpations of power he everywhere deguilt and of consequence that should attend it nounced Congress, the legality and constitutionality of its action, and defied its legitimate powers, and, tobringitinto judgment here. When we come for that purpose, announced his intentions and carto evidence, I say thus puny are the propor- ried out his purpose, as far as hewas able, of removtions of the offense and thus limited the range ing every true man from office who sustained the tins of the offense and thus limited the range Congress of the United States? And it is to carry to which the defendant is permitted to call out this plan of action that he claims the unlimited witnesses. But when we come to the magnifi- power of removal, for the illegal exercise of which cence of the accusation, as found on page 75, he stand before you this day." italicised by the Managers, we will see what These are the pretensions and these the it is: dimensions of public inculpation of the Chief "We define, therefore, an impeachable high crime Magistrate of this nation which are of such or misdemeanor to be one in its natureor consequences grave import. From their intent and design, subversive of some fundamental or essentialprinciple of from their involving the public interests and government or highly prejudicial to the public interest, of the Government, and this may consist of a violation of the Constitution, the unamental principles of the Government, of law, of an official oath, or of duty, by an act commit- they are worthy of this greattribunal's attention, ted or omitted, or, without violating a positive law, by and of a judgment that deposes him from his the abuse of discretionary powers from improper motives, ar or any improper Jvpurps or me- office and calls upon the people,for a reblectires, orfor any improper purpose." tion. All the eleven articles are upon trial, Without any violation of law, an act maybe and if this evidence be pertinent under any done in abuse of discretionary authority with em it is pertinent and admissible now improper motives or for an improper purpose; And now I should like to look first to the quesand thus the widest possible range is opened tion of the point of time as bearing upon the to this inquiry on the part of the accusation, to admissibility of this evidence. Under the bring within the range of guilt the President eleventh article the speech of the 18th of Auof the United Stktes. But further, the claim gust, 1866, is alleged as laying the foundation is that it is a mistake, on the whole, to think of the illegal purposes that culminated in 1868 that it is a question of guilt or of innocence, to poit the cr that i ade the.ut in the hrase of the learned Managers, to point the criminality, that is what made the but, in the phrase of the learned Managers, subject of accusation in that article. Proof, Is it not rather morpein the nature of an in- then, of the speeches of 1866 is made evidence quest of office;" and then, on page 77: under this article eleven, that imputes not "We suggest, therefore,.that we are in the pres- criminality in making the speech, but in the once of the Senate of the United States, convened action afterward pointed by the purpose of as a constitutional tribunal, to inquire into and determine whether Andrew Johnson, because of mal- the speech. So, too, a telegram to Governor versation in office, is longer fit to retain the office of Parsons, in January, 1867, is supposed to be President of the United States." evidence as bearing upon the guilt completed At page 97 we come a little more definitely in the year 1868. 319 So, too, the interview between Wood, the when the presumptions and innuendoes are office-seeker, and the President of the United alieged which I have treated of, that he shall States, in September, 1866, is supposed to bear not be permitted, in the presence of this great in evidence upon the question of intent in the council sitting upon his case and doing justice consummation of the crime alleged to have to him as an individual, but more, sitting in been completed in 1868. I apprehend, there- this case and doing justice in respect to his fore, that on the question of time this inter- office of President of the United States, doing view between General Sherman and the Presi- justice to the great public questions proposed dent of the United States, in the very matter to be affected by your judgment-whether the of the public transaction of the President of chosen head of the nation shall be deposed, the United States changing the head of the from authority by the action of this court comnk War Department, which was actually cornm- posed of a branch of the Congress, and the pleted in February, 1868, is near enough to people resorted to again through the mode of point intent and to show honest purpose, if election for a new Chief Magistrate. I apprethese transactions, thus in evidence, are near hend that this learned court of lawyers and layenough to bear upon the same attributed men will not permit this "fast and 1dose" crimes. game of limited crime for purposes of proof There remains, then, only this consideration, and unlimited crime for purposes of accusation whether it is open to the imputation that it is that they will not permit this enlargement and a mere proof of declarations of the President contraction, phrases sometimes replaced by a concerning what his motives and objects were more definite and shorter Saxon description. in reference to his subsequent act in the re- Mr. SPRAGUE, (at twenty minutes before tuoval of Stanton. It certainly is not limited three o'clock.) I move that the Senate take a to that force'or effect. Whenever evidence recess for fifteen minutes. of that mere character is offered that question The motion was agreed to; and the Chief will arise to be disposed of; but as a part of Justice resumed the chair at five minutes to the public action and conduct of the President three o'clock. of the United States in reference to this very The CHIEF JUSTICE. Senators will please office, and his duty and purpose in dealing to give their attention. The counsel for the with it, and on the very point, too, as to President will proceed. [Afterapause.] Do whether that object was to fill it by unwar- the counsel for the President desire to be heard rantable characters tending to a perversion or further? betrayal of the public trust, we propose to Mr. CURTIS. No, Mr. Chief Justice. show his consultations with the Lieutenant Mr. Manager WILSON. Mr. President, I General of the armies of the United States to shall claim the attention of the Senate but for induce him to take the place. a few minutes. My principal purpose is toget On the other question of whether his efforts before the minds of Senators the truth in the are to create by violence a civil war or blood- Hardy case as it fell from the lips of the chief shed, or even a breach of the peace, in the re- justice, when he passed upon the question moval of the Secretary of War, we show that which had been propounded by Mr. Erskine in this same consultation it was his desire that and objected to by the attorney general. The the Lieutenant General should take the place ruling is in these words: in order that by that means the opportunity. M might be given to decide the differences be-' Lord Chief Justice Eyre. Mr. E3rskine, I do not ight be given to decide the differences be- know whether you can be content to acquiescein the tween the Executive and Congress as to the opinion that we are inclined to form upon the subconstitutional powers of the former by the ject, inwhichwegoacertain waywithyou. Nothcourts of law. If the conduct of the resi- ing is so clear as that all declarations which apply to courts of law. If the conduct of the Presi- facts, and even apply to the particular case that is dent in relation to matters that are made the charged, though the intent should make a part of subject of inculpation, and of inculpation that charge, are evidence against a prisoner and througn motives attributed through designs are not evidence for him, because the presumption th gh motives attibuted through designs upon which declarations are evidence is, that no man supposed.to be proved, cannot be made the would declare anything against himself unless it subject of' evidence, if his public action, if his were true; but every man, if he was in a difficulty, public conduct, if the efforts and the means or in the view to any difficulty, would make declapublic conduct, fteesandthemrations for himself. Those declarations, if offered as that he used in the selection of agents are evidence, would be offered, therefore, upon no not to be received to rebut the intentions or ground which entitled them to credit. That is the presumptions that are sought to be raised general rule. But if the question be —as I really think it is in this case, which is'my reason now for against him, well, indeed, was my learned asso- interposing-if the question be, what was the politiciate justified in saying that this is a vital ques- cal speculative opinion which this man entertained touching a reform of Parliament, I believe we all tion. Vital in the interests ofjustice, I mean, think that opinion may very well be learned and rather than vital to any important considera- discovered by the conversations which he has held at tions of the cause. Vital undoubtedly on the any time, or in any place. "JMr. Erslcine. Just so, that is my question; only merest principles of qommon justice, that that I may not get into another debate, I beg your when the Chief Magistrate of the nation is lordship will hear me a few words. brought under' inculpation from a series of "' Lord Chief Justice Eyre. I think I have already anticipated a misapprehension of what I am now charges of this complexion and of this com- stating, by saying that if the declaration was meant prehension, and when the motives areassigned, to apply to a disavowal of the particular charge made 320 against this man that declaration could not be re- counsel on the part of the President to Genceived: as, for instance, if he had said to some friend eral Sherman? It is this: of his, When I planned this convention I did not mean to use this convention to destroy the king and "In that interview what conversation took place his Government, but I did mean to get, by means of between the President and you.in regard to the rethis convention, the Duke of Richmond's plan of moval of Mr. Stanton?" reform-that would fall within the rule I first laid Now, I contend that that calls for just such fown; that would be a declaration, which being for declarations on the part of the President as him, he could not be admitted to make, though the declarations on the part of the President as law will allow a gontrary declaration to have been fall within the rule laid down by the chief given in evidence. Now, if you take it so, I believe justice in the Hardy case, and, therefore, must there is no difficulty." be excluded. If this conversation can be adAnd upon that ruling the question was mitted, where are we to stop? Who may not changed as read by my associate Manager, and be put upon the witness-stand and asked for correctly read by him, and all that followed conversations had between him and the Presithis ruling of the chief justice and the sub- dent, and at any time since the President ensequent discussion was read by my associate tcred upon the duties of the presidential office, Manager. The lord chief justice further said: to show the general intent and drift of his mind "You may put the question exactly as you pro- and conduct during the whole period of his pose." official existence? And if this be competent That is after discussion had occurred subse- and may be introduced, may it not be followed quent to the ruling of the chief justice to by an attempt here to introduce conversations which I have referred, and in which a change occurring between the President, his Cabinet, in the character of the original question was and General Grant, by way of inducing this disclosed. Senate, under pretense of merely defending "I confess I wished by interposing to avoid all the respondent. to try a question of veracity discussion, because I consider what we are doing, between the General of the Army and the and whom we have at that bar, and in that box, who are suffering by every moment's unnecessary delay President of the United States? The interin such a cause as this. view out of which that question sprung oc"Mr. Erskine. I am sure the jurywill excuse it; I curred bout the same time that this one did; meant to set myself right at this bar; this is a very curred about the same time that this one did; public place." and I suppose the next offer will be to put in Then follows the question- the conversation between the President, his "Mr. Daniel Stuart examined by Mr. Erslkine. several Secretaries, Cabinet officers, and the " Did you before the time of this convention being General of the Army, in order that the preheld, which is imputed to Mr. Hardy, ever hear from ponderance of testimony (considered numeriimx what his objects were, whether he has at all cally, at least,) submitted here in this trial may mixed himself in that business? " I have very often conversed with him, as I men- weigh down the General of the Army, he being tioned before, about his plan of reform; he always no party concerned in this proceeding. Such adhered to the Duke of Richmond's plan." an offer may meet us at the next step, because And which declaration- it was a conversation which transpired about Mr. FESSENDEN. Is that the answer? that time. Mr. Manager WILSON. That is the answer. Mr. Manager BUTLER. Only the day before. And which declaration came within the excep- Mr. Manager WILSON. Yes; only the day tion to the rule laid down by the chief justice. before. We certainly must insist upon the The final question was then put: well known and long established rule of evi"From all that you have seen of him, what is his dence being applied to this particular objeccharacter for sincerity and truth? tion, for the purpose of ending now and for"I have every reason to believe him to be a verys sincere, simple, honest man." ever, so far as this case is concerned, these To which the attorney general said: attempts to put in evidence the declarations of "If this had been stated at first to the question the President, made, it may be, for the purpose meant to be asked I do not see what possible objec- of meeting an impeachment by such weapons tion I could have to it." of defense. Mr. FESSENDEN. Does not that remark It is offered to be proved now, as the counapply to both questions? sel inform us, that the President told General Mr. Manager WILSON. That remark ap- Sherman that he desired him to accept an applies to the last question. The remark was pointment of Secretary for the Department of made after the last question was put; but, as War to the end that Mr. Stanton might be I understand it, the two questions are substan- driven to the courts of law for the purpose of tially the same, and are connected, and the testing his title to that office; and, inasmuch remark of the attorney general applied to both, as the counsel have referred to the opening as the first was but the basis, the inducement argument of my associate Manager, and seem to the last. to delight in reading therefrom, let me read a Mr. FESSENDEN. They were put con- brief paragraph or two from that opening apsecutively? plying to this pretended purpose of the PresiMr. Manager BUTLER. Nothing between. dent of driving the Secretary of War to the One was inducement to the other. courts to test his title. On that occasion the Mr. Manager WILSON. Now, what is the Manager said: question which has been propounded by the "The President knew, or ought to have known, 321 his official adviser, who now appears as his counsel, let this objection rest upon the authority procould and did tell him, doubtless, that he alone, as duced by the learned counsel for the PresiAttorney General, could file an information in the d nature of a quo iwarranto to- determine this question dent, for under it, and by force of it the tesof the validity of the law. timony now offered must be excluded. "Mr. Stanton, if ejected from office, was without The CHIEF JUSTICE. Senators, the Chief remedy, because a series of decisions has settled the law to be that an ejected officer cannot reinstate Justice has expressed the opinion that the queshim'self either by quo warranto, mandamus, or other tion now proposed is admissible within the appropriate remedy in the courts." vote of the Senate of yesterday. Hie will state The counsel refrain from noticing this answer briefly the grounds of that opinion. Tl'he questo the President's assertion so often made that tion yesterday had reference to a conversation he was only endeavoring to manufacture a law- between the President and General Thomas suit and get a case into the courts: and I am led after the note addressed to Mr. Stanton was to believe that the purpose was not the harm- written and delivered, and the Senate held it less one of getting the Lieutenant General of admissible. The questionto-day has reference the Army into the position of Secretary of War, to a conversation relating to the samne subjectby way of enabling the respondent to secure a matter, between the Prsesident and General judicial decision of the contested question to Sherman, which occurred before the note of which the President and Secretary Stanton removalwaswritten and delivered. Bothques. were parties, but for the purpose of getting tions were asked for the purpose of proving the possession, as we have charged, of that Depart- intent of the President in the attempt to rement for his, the respondent's, own purposes, move Mr. Stanton. The Chief Justice thinks and putting Mr. Stanton in a position where that proof of a conversation shortly before a he could not get into court and secure a judg- transaction is better evidence of the intent of ment upon his title to that office-not, I beg an actorin itthanproofofaconversationshortly counsel to remember, not that we charge that after the transaction. The Secretary will call the President believed or expected that he the roll. could make a tool of General Sherman; but Mr. DRAKE. Will the Chief Justice be so that le might oust Mr. Stanton from the actual kind as to state the question submitted to the possession of his office bygetting General Sher- Senate and about to be voted on? man to accept it, and thus putting Stanton in a The CHIEF JUSTICE. The Secretary will position where he could not have his claim to read the question. the office tested; and further expecting and The. Secretary read as follows: believing, doubtless, that General Sherman.. believing, doubtless, that General Sherman. Question. In that interviewvwhat conversation took would not long desire to occupy the position; place between the President and you in regard to and when he might ask to be relieved from the the removal of Mr. Stanton? thankless position, to escape from the never- The CHIEF JUSTICE. Upon this quesending political contests of this city, then the tion the yeas and nays have been demanded, Adjutant General of the Army, or some other and have been ordered. Senators, you who, person equally pliant, could be put into the are of opinion that the question is admssible placevacated by GeneralSSherman. The Pres- will, as your names are called, answer yea; ident did not succeed in that effort. General those of the contrary, nay. Sherman declined the position tendered, and, The question being taken by yeas and nays, as has been said, the respondent wandered on resulted-yeas 23, nays 28; as follows: down with his offer of place and power until YEAS-Messrs. Anthony, Bayard, Buckalew, Cole,. he came to Adjutant General Thomas. Then W Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, he found the person who was willing to under- H Iendricks, Johnson, McCreery, Morgan, Norton, e f sing o -Patterson of Tennessee, Ross, Sprague, Sumner,. take this work, who was willing to use force, Trumbull, Yan Winkle, Vickers, and Willey —23. as he declared, to get possession of that office, NAYS —Messrs. Cameron, Cattell, Chandler, Conkand obey the orders of the IPresident; ard noow, ling, Conness, Corbett, Cragin, Drake, Edmunds, ryand obey the orders of the President; and ow, Frelinghuysen, Harlan, Henderson, Howard, with that proof of the President's criminal acts Morrill of Maine, Morrill of Vermont, Morton, Nye, and inten s in and before the Senate, it is Patterson of New Hampshire, Pomeroy, Ramsey, proposed Ey his counsel to make oapparent his Sherman, Stewart, Thayer, Tipton, Williams, Wilinnocence and effectuate his defense by giving NOT VOTING-Messrs. Howe, Saulsbury, and in evidence his own declarations at a tirLe not Wade-3. embraced in any of the former rulings of the So the question was ruled to be inadmissible. Senate. If a case can be defended in this way, Mr. STANBERY, (to the witness.) Genno civil officer of' the United States can ever eral Sherman, in any of the conversations of be convicted on impeachment; and if the same the President while you were here, what was rule should apply in the courts of justice, no said about the department of the Atlantic? criminal will ever be convicted for any offense Mr. Manager BUTLER. Stay a moment. therein. If the officer or the criminal may I submit that that falls within the ruling just make his own defense byhis own declarations, made. They cannot put in these declarations. he will always have one which will meet his The CHIEF JUSTICE. The counsel will case and work his acquittal. reduce his question to writing. I do not desire longer to detain the Senate Mr. STANBERY. I will vary the quesby prolonging this discussion. I am willing to tion. C. I.-21. 322 The question was reduced to writing and sent The Secretary read it, as follows: to the desk. What do you know about the creation of the deThe CHIEFJUSTICE. The Secretary will partment of the Atlantic? read the question: Mr. Manager BUTLER. I suppose a deThe Secretary read it, as follows: partment can only be created by an order. What do you know about the creation of the de- The CHIEF JUSTICE. Does the honorpartment of the Atlantic? able Manager object to the question as put'? Mr. Manager BUTLER. We have noobjec- Mr. Manager BUTLER. I object to the tion to what General Sherman knows about the question altogether; but, if it is to be put at creation of the department of the Atlantic, all, I want it expressly, carefully guarded, not provided he speaks of knowledge and not from to put in any declarations or any information the declarations of the President. All orders, learned from the President. papers, his own knowledge, if he has any, if The CHIEF JUSTICE. The Chief Jusit does not come from declarations, we do not tice will submit the question to the Senate, object to. Although we do not see how this is whether the question shall be put. in issue, if the presiding officer will instruct the The question being put, it was determined witness, as in the other case, to separate knowl- in the negative. So the Senate ruled the edge from hearsay, we shall make no objection. question was inadmissible. I have no doubt the general knows the dis- Mr. STANBERY, (to the witness.) I will tinction himself. I desire to ask do these gen- ask you this question, General Sherman: did tlemen ask for the President's declarations the President make any application to you under this? respecting the acceptance of the duties of SecThe CHIEF JUSTICE. Dothe counselfor retary of War ad interim? Did he make a the President ask for the President's declara- proposition to you-not a declaration —but did tions? he make an offer to you? Mr. STANBERY. I may misunderstandthe Mr. Manager BUTLER. Have you the honorable Managers, but I understood them to question in writing? claim that the President created the depart- Mr. STANBERY. Yes, sir, [handing it to ment of the Atlantic as a part of his unlawful Mr. Manager BUTLER.] Now, we propose to intent by military force to oust Congress, or prove an act, not a declaration. something of that kind. Do I understand the Mr. Manager BUTLER. I am instructed, gentleman to abandon all claim in regard to Mr. President, to object to this, because an the department of the Atlantic? application cannot be made without being either Mr. Manager BUTLER. I am not on the in writing or in conversation, and then either stand, Mr. President. When I am I will an- would be the written or oral declaration of the swer questions to the best of my ability. The President, and it is entirely immaterial to this presiding officer asked the learned counsel a issue. question. If the presiding officer does not Mr. EVARTS. Mr. Chief Justice andSenwant an answer, that is another matter. The ators, the ground. as we understand it, upon question put was, do you ask for the Presi- which the offer, in the form and to the extent dent's declarations, and thereupon the counsel in which our question which was overruled undertakes to quiz me. sought to put it, was overruled, was because it The CHIEF JUSTICE. The counsel for proposed to put in evidence declarations of the the President will be good enough to state President as if statements of what he was to whether in this question they include state- do or what he had done. We offer this present ments made by the President. evidence as executive action of the President Mr. STANBERY. Not merely that; what at the time and in the direct form of a proposed we expect to prove is in what manner the de- devolution of office then presently upon Genpartment of the Atlantic was created; who eral Sherman. defined the bounds of the department of the Mr. Manager BUTLER. To that we simply Atlantic; what was the purpose for which the say this is not the way to prove executive department was arranged. action. Anything done by the Executive we iht CMIE1uF JUnTICI, 1 this conmmra- do not QbjWt t, AppligatilQaa Ua in a tion subsequent to the time of the removal or closet cannot be put in, whether in the form attempted removal? of declarations or otherwise. Mr. STANBERY. I do not know whether Mr. STANBERY. Of course, Mr. Chief it was subsequent. It was about the time- Justice and Senators, if we offer to prove the Mr. EVARTS. Prior. actual appointment of General Sherman to be Mr. STANBERY.- Prior to the time, I Secretary of War ad interim, we must produce believe. the paper, the executive order. That iu not The CEIEFJUSTICE. The Chief'Justice what we are about to offer now, for the proffer will submit the question to the Senate. was not accepted. What we offer now is, not Mr. Manager BUTLER. I do not see that a declaration, but an act; a thing proposed by there is any question. I stated- the President to General Sherman, unconThe CHIEF JUSTICE. The Secretary nected, if you please, with any declaration of will read the question. any intention. Let the act speak for itself. 323 Mr. Manager BUTLER. Verbal or written? Question. Mr. Stanton was then in office, Mr. STANBERY. Verbal. Would it have was he? been any better if it had been in writing by a Answer. Mr. Stanton was then in office as note? Is it a question under the statute of now. frauds that you must have it in writing, a thing Question. Was any one else present? that can only be made in writing, and is not Answer. I think not, sir. Mr. Moore may good when made by parol? Whatwe are upon have been called in to show some papers, but now we have not discussed at all. It is an act; I think was not present when the President a thing proposed; an office tendered to a party, made me this tender. To both of them-shall unaccompanied by any declaration at all. I go on? " General Sherman, will you take the position Mr. STANBERY. There is no objection. of Secretary of War ad interim?" Is not Answer. To both of them I replied in writthat an act? Is that a declaration merely of ing. My answer to the first is dated on the intention? Is not that the offer of the office? 27th of January; my answer to the second is We claim that it is; and we say, therefore, it dated on the 31st of January. does not come within the question of declara- Question. Did you receive any communications atall. He is notdeclaringanything about tion in writing from the President on that it; he is not saying what his intention is; but subject? he is doing an act. "Will you take this office, Answer. I did not. General? I offer it to you." That is the Question. What was the date of your first question. Let us have that act in, and then letter'? let it speak for itself, whether it makes for us Answer. The 27th. or makes against us. Question.- Is that the letter to the President Mr. Manager BUTLER. I propose only to or to General Grant? claim my right to close the discussion just to Answer. According to my notes, the letter call the attention of the Senate to this. Sup- to the President; and I think my notes are pose he did offer it, what does that prove? correct, for I took them from my record-book Suppose he did not offer it, what does that this morning. The second letter I know to be prove? If you mean to deal fairly with the dated the 31st, also taken from the same recSenate, and not get in a conversation under ord-book. the guise of putting in an act, what does it Question. Now, referring to the time when prove? It would rather prove in our favor the offer was first made to you by the Presithat he was trying to get General Sherman to dent, did anything further take place between take this office in order to get out Stanton. you in reference to that matter. Besides the And if it was the mere act I should not object tender by him and the acceptance or nonperhaps. The difficulty is, while it is not acceptance by you, what took place concomiwithin the statute of frauds, I think it is within tant with that act? everything but the statute. I think it is an Mr. Manager BUTLER. I suppose you attempt under the guise of an act to get in a mean to except the answer? conversation. Mr. STANBERY. I ask in reference to The CHIEFJUSTICE. The Secretarywill that very thing as concomitant with the act. read the. question. Mr. Manager BUTLER. We object, for the The Secretary read as follows: very plain reason that this is now getting in the Did the President make any application to you conversations again. respecting your acceptance of the duties of Secretary Mr. STANBERY. You have got the act. of War ad interim? Mr. Manager BUTLER. Ah, yes, Senators; The CHIEF JUSTICE. The Chief Justice I call your attention to the manner in which will put the question to the Senate. this case is tried. I warned you that if you The question being put was determined in let in the act they would attempt to get in the the affirmative. So the Senate decided the declaration under it. That was the opening question to be admissible. wedge. Now, they say they have got in the By Mr. S-rANBERY. act and they are going for the declaration, to Question. Answer the question, if you please, see if by chance they cannot get around your General Sherman? ruling. The WITNESS, (to the Secretary.) Will you Mr. EVARTS. What is your proposition read it again, sir? now to the Senators? The Secretary read the question, as fol- Mr. Manager BUTLER. My proposition is, lows: objecting to this evidence, that the evidence is Did the President make any application to you incompetent and is based upon first getting in respecting your acceptanceof the duties of Secretary an act which proved nothing and looked to be of War ad interim? immaterial, so that it was quite liberal for SenAnswer. ThePresidenttenderedmetheoffice ators to vote it in, but that liberality is taken of Secretary of War ad interim on two occa- advantage of to endeavor to get by the ruling sions; the first was on the afternoon of Janu- of the Senate and put in declarations which ary 25 and the second on Thursday, the 30th the Senate has ruled out. of January. Mr. EVARTS. The tender of the War 324 Office by the Chief Executive of the United will submit the question to the Senate as it is States to a general in the position of General proposed. Sherman is an executive act, and as such has Mr. DRAKE. On that question I ask for been admitted in evidence by this court. Like the yeas and nays. every other act thus admitted in evidence as The yeas and nays were ordered. an act, it is competent to attend it by whatever Mr. ANTHONY. Let the question be read. was expressed from one to the other in the The Secretary again read the question. course of that act to the termination of it. And The question being taken by yeas and nays, on that proposition the learned Manager shakes resulted-yeas 23, nays 29; as follows: his finger of warning at the Senators of the YEAS-Messrs.Anthony, B3ayard, Buekalew, Cole, United States against the malpractices of the Davis, Dixon, Doolittle, Fessenden. Fowler, Grimes, counsel for the President. Now, Senators, if Hendricks, Johnson, McCreery, Morgan, Norton, there be anything clear, anything plain in the Patterson of Tennessee, Ross, Sprague, Sunner, Trumbull, Van Winkle, Vickers, and Willey —23. law of evidence, without which truth is shut NAYS-Messrs. Cameron,Cattell, Chandler, Conkout, the form and features of the fact permittd ling, Conness, Corbett, Cragin, Drake, Edmnunds, to be proved excluded, it is this rule that the Ferry, Frelinghuysen, Harlan, HIenderson, Howard, Howe, Morrill of Maine. Morrill of Vermont, Morspoken act is a part of the attending qualifying ton, Nye, Patterson of New Hampshire, Pomeroy trait and character of the act itself. Ramsey, Sherman, Stewart, Thayer, Tipton,Williams, Mr. Manager BUTLER1. To that I answer, Wilson, and Yates-29.. Manager BULER. To that I answer, NOT VOTING-Messrs. Saulsbury and Wade-2. Senators, that here was an immaterial actmark, an act wholly immaterial. The only inadmiSo the Senate decided the question to beible. qualification that could be put in would be the inadmissible. answer, perhaps, of General Sherman; that is By Mr. STANBERY: not offered; but the offer is to put in an incom- uestion. Now, the second interview, Genpetent conversation as explaining an immate- eral Sherman; when did you say that was? rial act. What is the proposition put forward Answer. The second interview, wherein he here? It is that the Executive can make offers offered me that appointment, was on the 30th of office to any man in the country, general or of January. other, and then put in the fact that he made Question. In that interview did he again the offer of the office, and, as illustrative of make an offer to you to be Secretary of War that fact, put in everything he said about it. ad interim? That is the proposition. I did not use the word Answer. Very distinctly, sir. "( malpractice" about that proposition; hut it Question. At that interview was anything is a most remarkable proposition. He makes said in explanation of that offer? an act himself, insists upon putting it inl, and Mr. Manager BINGHAM and Mr. Manager BUJTLER. W"1e oi'ect. then says, "I have got in the act; now you MBU TLER. m ie obect. must let me explain it." He could have saved Mr. EVARTS.'The same ruling, of course. himself the explanation by keeping the act Mr. STANBERY. I only want it to e out. But that is the proposition; and I un-ruled out, if you object to it. Let us have the dertake-no; it is not worthy of words or as- ruling ulpon it. severation. A criminal on trial uts ill his Mr. Manager BUTLER. I would ask the act, presses it in, and then says, " I have got presiding officer whether that does not exactly the act in; now I must show what I said about fall within the ruling just made? it in order to explain that act." It argues Mr. EVARTS. We understandthat itdoes, itself. MIr. BUTLER, and have so stated to the Chair. The CHIEF JUSTICE. The counsel will 5We have asked our question, and we take the reduce their question to writing. ruling of the court against it. The counsel for the respondent reduced the By Mr. STANBERY: question to writing and presented it to Mr. Question. In these conversations did the Manager BUTLER. President state to you that his object was to take the question before the courts? Mr., Manager BUTLER, having read the Mr. iManager BINGHAM and Mr. Manager question, passed it up to the Secretary's desk, BUTLER. Stop a moment. We object to saying: I assume that it asks for conversations. that. The CHEIEF JUSTICE. The Secretary will The CHIEF JUSTICE. The counsel will read the question. please reduce their question to writing. The Secretary read the question, as follows: Mr. Manager BUTLER. I suppose they do Msr. Manager BUT LER. I supp osethdy do At the first interview at which the tender of the not proposeduties of the Secretary of War ad interim was made to you by the President did anything furtherpass Mr. STANBERY. We have a right to between you and the President in reference to the offer it. tender or your acceptance of it? Mr. Manager BINGHAM. We have a right Mr. Manager BUTLER. The President will to object to it. ask the counsel whether they expect, under Mr. STANBERY. That we understand that, to put in the declarations of the Presi- perfectly. We may state what we propose to dent or the conversations of the President? prove. The CHIEF JUSTICE. The Chief Justice Mr. Manager BUTLER. But then, Mr. 325 President, the courts sometimes say, after Mr. Manager BUTLER. I object, Mr. Presthey have ruled a question, that it is not within ident, to the question, both as leading in form, the proprieties of the trial to offer the same outrageously so, and incompetent under the thing over and over again. It is sometimes previous rulings. done in a court for the purpose of taking a The CHIEF JUSTICE. The Secretary will bill of exceptions, or a writ of error on the read the question. rulings. If the counsel say that that is the The Secretary read the question as reduced purpose here, we shall not object, because to writing, as follows: they ought to preserve their rights in all forms. In either of these conversations did the President But supposing this to be the court of last saytoyouthat hisobjectinappointingyou wasthat resort, it court at all, there can be no proper he might thus get the question of Mr. Stanton's right Aresort ifourt al, there and benor thropigtemsels to the office before the Supreme Court? occasion over and overfor throwing themselves against the rulings. The CHIEF JUSTICE. Senators, you who Mr. S'TANBERY. I do not understand that are of opinion that the question just read — the ruling was upon this specific question. It Mr. HOWARD. I ask for the yeas and was the general question, what was said, that nays on that question. was ruled out those times. I want to make thewere ordered. specific question now to indicate what we desire The CHIEF JUSTICE. Senators, you who to prove. I now put the specific question are of opinion that the question just read is whether in any of those interviews the Presi- admissible will, as your names are called, andent said what was his intention in regard to swer yea. Those of the contrary opinion making the question at law? I have not put will answer nay. The Secretary will call that question before. the roll. Mr. Manager BUTLER. And, Mr. Presi- Mr. Manager BUTLER. Let the question dent, my remarks were in reply to the distinct be again read. admission of the counsel that the question The CHIEF JUSTICE. The Secretary will came within the ruling and that he expected read the question again. it to be ruled out, but still intended to make The Secretary read as follows: the offer. In either of these conversations did the President Mr. EVARTS. That was the previous say to you that his object in appointing youwas that question. he might thus get the question of Mr. Stanton's right Mr. Manager BUTLER. Oh, no; this last to the office before the Supreme Court? onr. tanager MU11I1. Oh, no; tis last Mr. DOOLITTLE..Mr. Chief Justice, I nMr. EVARtTS. No; you are mistaken do not know that I understood the ground of about it. Besides, Mr. Chief Justice and objection of the Managers. Senators, although there. is no review by any Mr. Manager BUTLER. As outrageously court of your determinations of interlocutory ading and utterly incompetent and entirely or of final questions, yet, as the learned Man- against the ruling of the Senate. agers knows it is entirely competent to bring to The CHIEF JUSTICE. The Secretary will the notice of the court that is to pass upon the call the roll. question in the final judgment the evidence The Secretary proceeded with and conthat is supposed to be admissible, in order cluded the calling of the roll. that it may be, as it is always if' properly Mr. JOHNSON, (who had not voted.) I originated, a matter of argument, that the ask for the reading of the question. I did not case is to be disposed of on the ground as if hear it distinctly, and that was the reason I it were admitted; and that we have a right to declined to vote. do, and not be limited to abstractions in the determination of' these questions. read the question. The CHI1EF JUSTICE. The counsel for The Secretary read as follows: the President will please reduce their question In either of these conversations did the President -to writing! say to youMr. EVARTS. And the difference we make Mr. JOHNSON. That will do, sir. I vote between this specific question and the general in the negative. question which has been excluded, and in re- Mr. DAVIS, (who had first voted in the gard to which we do not propose to trouble the affirmative.) Mr. Chief Justice, the question Senate further, is, that when a general conver- is leading. I vote in the negative. sation cannot be admitted, if the objection be The result was announced-yeas 7, nays 44; applicable, and it has been successfully made as follows: here, then to exclude a conclusion on a definite YEAS-Messrs. Anthony, Bayard, Fowler, Mcpoint the specific question may be put. Creery, Patterson of Tennessee, Ross, and Vickers-7. The CHIEF JUSTICE. The counsel will NAYS —Messrs. Buckalew, Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, reduce their question to writing. Davis, Dixon, Doolittle, Drake, Edmunds, Ferry, The question being reduced to writing, it was Fessenden, Frelinghuysen, Grimes, Harlan, Henderhanded by the counsel for the respondent to son, IHendricks, Howard, howe, Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Morton, NorMr. Manager BUTLER, and after inspection, ton, Nye, Patterson of New Hampshire, Pomeroy, handed by him to the Secretary. Ramsey, Sherman, Sprague, Stewart, Thayer, Tipton, 326 Trumbull, Van Winkle, Willey, Williams, Wilson, should hold itself not to be played with in this and Yates-44. way. If you choose to sit here and. have the NOT VOTING-Messrs. Saulsbury. Sumner, and Wade —3. a 2 yeas and nays called, I can sit here as long as So the question was decided to be inadmis- anybody. Mr. STANBERY. Mr. Chief Justice, this Mrsible. STANBERY. Mr. Chief Justice and is quite too serious a business that we are enSenators, this question undoubtedly has been gaged in, and the responsibility is too great, overruled upon matter of form at least. I now the issues are too important, to descend to the propose to change the form of it. I do not sort of controversy that would be introduced wantto be thrown out upon a mere technicality. here. The gentleman says I am an old lawyer, wantto be thrown out upon a mere technicality. long at the bar. I hope I never have disgraced I therefore change it. the position. I hope I am not in the habit of Mr. Manager BUTLER. Let me usee it. making factious opposition before any court, Mr. STANBERY handed the question as high or low, especially not before this body, written by him to Mr. Manager BUTLER. which has treated us with so much courtesy. Mr. Manager BUTLER. Mr. President and But the learned Manager intimates here that Senators, the question as presented to me is: Ss: I have deliberately put a leading question, reWas anything said at that conversation by the sorting to the low tactics of an Old Bailey President as to any purpose of getting the questionf an Old Bailey of Mr. Stanton's right to the office beforethe courts? court, for the purpose of getting time and makNow, Mr. President and Senators, this is the ing factious opposition. I scorn any such last question precisely, without the leading imputation. part of it, I so understand. Now, then, Iun- Leading questions! Undoubtedly the prederstand it to be a very well settled rule of vious question was leading; but was it intendtrials that where a counsel deliberately puts a ed to be leading, intended to draw General question leading in form, and has it passed Sherman out to say something that otherwise upon, he cannot afterward withdraw the lead- wouldnotbe said? The learned Manager says ing part and put the same question without it. Oh no, it was not intended, so far as General Sometimes this rule has been relaxed in favor Sherman is concerned, to be a leading question; of very young counsel, [laughter,] who did but so far as the counsel is concerned the purnot know what a leading question was, but not pose was to put it in that.form that the counsel otherwise. I have seen very young men make might have another opportunity of putting itin mistakes by accident, and I have known the a legal form, thus insinuating that deliberately courts to let them up and say, " We will not that question was manufactured in a leading hold the rule, if you made an accident." form, knowing that it would be rejected on Mr. President, I call your and the Senate's account of form, for the purpose of getting ten attention to the fact that I three times over or fifteen minutes oftime in order to put it in a objected to the last question as being optrage- proper form I ously leading, and I did it so that there should Leadingquestions i Will the honorable Manbe no mistake; yet the counsel for the Presi- ager please to read over the record of this case dent went on and insisted not only on not and see hundreds of leading questions put by withdrawing it, but on putting the Senate to him again and again. We got tired of objectthe delay of having the yeas and nays taken. ing to them. I must be permitted to disclaim If I had not called their attention to it I agree any such intention as this. that perhaps the rule might not be enforced; This is a matter of great importance to us. but I called their attention to it. They are We deem it to be so. The interests of our client five gentlemen of the oldest men in the profes- are in our hands, to defend him the best way sion, to whom this rule waswell known. They we can. We wish it to appear what we desire chose to submit to the Senate a tentative ques- to prove and what we are anxious to prove. tion, and now they propose to try that over We do not want to make any more argument again, keeping you voting on forms of ques- upon it. We submit it to the judgment of the tions until your patience is wearied out. That Senate. We put the question as to the matter is what they may do. which we seek to prove, that it may appear I had the honor to say to the Senate a little what it is that we seek to prove, to use every while ago that all the rules of evidence are effort in our power, not factiously but honorfojunded upon good sense, and this rule is ably, properly, not to argue again and again founded on good sense. It would do no harm the same point, but simply to have the opporin the case of this witness; but the rule is founded tunity of having our questions put before the on this proposition: that counsel shall not put a Senate and decided. leading question to a witness, and thus instruct The CHIEF JUSTICE. The Secretary will him what they want him to say, and then have read the question. it overruled and withdraw it, and put the same The Secretary read as follows: question in substance, because you could al- Was anything said at that conversation by the ways instruct a witness in that way. Of course, President asto any purpose of getting the question that was not meant here, because I assume it of Mr. Stanton's right to the office before the courts? would do no harm in any form, and the coun- Mr. EVARTS. We desire to alter the first sel would not do it; but I think the Senate phrase by striking out the words " at thatcon 327 versation," and inserting " at either of these Ross. Sherman, Sprague, Sumner, Trumbull, Van interviews," so as to cover the same ground as Winkle, Vickers, and Willey-25. NAYS —Messrs. Cameron, Cattell, Chandler, Cole, ~~~~~~~~before. ~Conkling, Conness, Corbett, Cragin, Drake, Edmunds. The CHIEF JUSTICE. The question will Ferry, Frelinghuysen, Harlan, Howard, Howe, Morbe so modified. The Secretary will read the gan, Morrill of Vermont, Nye. Patterson of New mcluestio lodified. ~Hampshire, Pomeroy, Ramsey, Stewart. Thayer, Tipquestion as modified. ton, Williams. Wilson, and Yates-27. The Secretary read as follows: NOT VOTING-Messrs. Saulsbury and Wade-2. Was anything said at either of those interviews by So the question proposed by Mr. HENDERthe President as to any purpose of getting the ques- SON was decided to be inadmissible. tion of Mr. Stanton's right to the office before the M a hfast l. courts? Mr. TRUMBULL, (at half-past fouro'clock.) The CHIEF JUSTICE put the question on I move that the Senate, sitting as a court of imeachment, adjourn until Monday at twelve, the admissibility of this question; and it was impcment, adjourn until Monday at tle o'clock. determined in the negative. deterined n th negaiveMr. STEWART, Mr. SUMNER, and Mlr. Mr. HENDERSON. I desire to ask a Mr. STEWART, Mr. SUMNER, and Mr. question of the witness, and I send it to the THAYER called for the yeas and nays, and desk in writing. they were ordered; and being taken, resultedThe CHIEF JUSTICE. The Secretary yeas 25, nays 27; asfollows: will read the question proposed bythe Senator YEAS-Messrs. Bayard, Buckalew, Cameron. Cattell, Corbett, Davis, Dixon, Doolittle, Fessenden, from Missouri. Fowler, Frelinghuysen, Grimes, Henderson, HendThe Secretary read as follows: ricks, Howe, Johnson, McCreery, Morton, Norton, Patterson of Tennessee, Ramsey, Sprague, Trumbull, Did the President, in tendering you the appoint- Van Winkle, and Vickers-25. Van Winkle. and Vickers —25. ment of Secretary of War ad interim, express the NAYS-Messrs. Anthony, Chandler, Cole, Conkling, object or purpose of so doing? Conness, Cragin, Drake, Edmunds, Ferry, Harlan, Mr. Manager BINGHAM. Mr. President, Howard, Morgan, Morrill of Maine, Morrill of Verwe must object to tht question, as being within mont, Nye, Patterson of New Hampshire, Pomeroy. Ross, Sherman, Stewart, Sumner, Thayer, Tipton, the ruling already settled by the court, and Willey, Williams, Wilson, and Yates-27. submit it to the Senate. It is both leading NOT VOTING-Messrs. Saulsbury and Wade-2. and incompetent. So the Senate refused to adjourn. The CHIEF JUSTICE. The Chief Jus- Mr. Manager BUTLER, (to the counsel for tice will submit the question to the Senate. the respondent.) Have you anything further Senators, you who t.re of the opinion that the with this witness, gentlemen? question proposed by the Senator from Mis- Mr. STANBERY. I propose to put a quessouri — tion, which I will send to the Managers. Messrs. DOOLITTLE and THAYER called The question was sent in writing to Mr. for the yeas and nays; and they were ordered. Manager BUTLER. Mr. DRAKE. I ask for the reading of the Mr. Manager BUTLER. The question proquestion again. posed is: The Secretary again read the question pro- At either of those interviews was anything said in pounded by Mr. HENDERSON. reference to the use of threats, intimidation, or force Mr. DOOLTT LE. Mr. Chief Justice, to get possession of the War Office, orthe contrary? Mr. DOOLITTLE. Mr. Chief Justice, I have risen for the purpose of moving that the We object for the reason that it is leading, Senate go into consultation on this important and the substance of it has been voted upon question; but, as I see that there may not be at least three times. time to-night to go into consultation, I move Mr. EVARTS. Do you sayit is leading? that the court adjourn until Monday at twelve Mr. STANBERY. I donotunderstand that o'clock. ["No!" "Nol" itisleading. The CHIEF JUSTICE. The question is Mr. Manager BUTLER. We do not care on the motion of the Senator from Wisconsin, much about the "leading" point. that the Senate, sitting as a court of impeach- Mr. EVARTS. You do not object to it as ment, aiourn until Monday at twelve o'clock. leading?. The motion was not agreed to. Mr. Manager BUTLER. No, sir. The CHIEF JUSTICE. The question re- The CHIEF JUSTICE. The question will curs on the admissibility of the question pro- be read by the Secretary. posed by the Senator from Missouri, [Mr. The Secretary read as follows: HENDERSON.] Senators, you who are of opin- At either of these interviews was anything said in ion that the question is admissible and should reference to the use of threats, intimidation, orforce to get possession of the War Office, or the contrary? be put to the witness will, as your names are called, answer yea; those of the contrary The CHIEF JUSTICE put the question on calleill answer nay; Tho e rSecretary will the admissibility of the question; and it was o, pinion wil anwrny h ertr ildetermined in the negative. call the roll. The question being taken byyeas and nays, After a pauseThe CHIEF JUSTICE. Have the counsel for the President any further questions? YEAS-Messrs. Anthony, Bayard, Buckalew, Da- Mr. STANBERY. We are considering, vis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill Mr. Chief Justice, whether there is any other of Maine, Morton, Norton, Patterson of Tennessee, question we have to put to General Sherman. 328 Mr. ANTHONY, (at four o'clock and thirty- Mr. HO1WE. I move that the Senate, sitting seven minutes p. m.) I move that the Senate, 1 as a court. adjourn. sitting as a court of impeachment, do now The motion was agreed to; and the Senate, adjourn. sitting for the trial of the impeachment, adMr. Manager B UTLER. Let us finish with journed until Monday next at twelve o'clock. this witness. The CHIEF JUSTICE put the question on MONDAY, April 13, 1868. the motion to adjourn, and declared that it appeared to be agreed to. The Chief Justice of the United States entered Mr. DRAKE called for the yeas and nays; the Senate Chainber at twelve o'clock and five and they were ordered. minutes p. m., and took the chair. Mr. CONKLING. I beg to inquire whether The usual proclamation having been made the Managers mean to cross-examine this wit- by the Sergeant-at-Arms, ness. The Managers of the impeachment on the Mr. Manager BUTLEPR. Not at all, if we part of the House of Representatives appeared can only get the other side through with him. and tookl the seats assigned them. Mr. CONKLING. I thought they were The counsel for the respondent also apthrough with him. peared and took their seats. Mr. Manager BUTLER. No; they willnot The presence of the House of Representfinish with him. atives was next alnounced, and the members The CHIEF JUSTICE. The Secretary will of the House, as in Committee of the Whole, call the roll, headed by Mr. E. B. WASHBURNE, the chairThe Secretary called the name of MTr. AN- man of that committee, and accompanied by THONY, and he responded. the Speaker and Clerk, entered the Senate Mr. THAYER. Mr. President, I rise for Chamber, and were conducted to the seats proinformation. I desire vided fCor them. The CHIEF JUSTICE. The roll is being The CHIEF JUSTICE. The Journal of called, and no debate is in order. the last day's proceedings will be read by the Mr. THAYER. I desire to inquire what we Secretary. are voting on? The Secretary proceeded to read the Journal The CHIEF JUSTICE. On a motion to of the proceedings of the Senate sitting for the adjourn. trial of the impeachment on Saturday last; Mr. THAYER. I did not hear what the but was interrupted at fifteen minutes past counsel for the defense said in regard —- twelve o'clock. The CHIEF JUSTICE. Debate is not in Mr. STEWART. I move that the further order. The Secretary will proceed with the reading of the Journal be dispensed with. call. The CHIEF JUSTICE. If there be no obThe Secretary concluded the call of the roll, jection, the further reading of the Journal will and the result was announced —yeas 20, nays be dispensed with. The Chair hears no objec32; as follows: tion. Before the counsel for the President YEaSsfollows Anthony BayardBnekalewDavisproceed, the Chief Justice will state that on YEASI Iessrs Anthonyd,tovler dBuclimes, visen- Saturday last the Senator from New Jersey Dixon, Doolittle, Edmunds, Fowler, Grimes, ttenderson, Hendricks, Howe, Johnson, McCreery, Mor- [Mr. FRELINGHUYSEN] had submitted a motion ton, Norton, Patterson ot'l'ennessee, Trumbull, Van for an order to remove the limit fixed by Winkle, and Vlckers-2O. Rule 21 as to the number who may participate NAYS-Messrs. Ctameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake. Ferry, in the final argument of the cause. That order Fessenden, Frelinghuysen, lIarlain, Howard, Morgan, is before the Senate unless objected to. Morrill of Maine, Morrill of Vermont, Nye, Pat- Mr.SUMNER. Mr.President, I send to terson of New Hampshire, Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tip- the Chair an amendment to that order to come ton, Willey. Williams, Wilson, and Yates-32. in at the end: NOT VOTING-Messrs. Saulsbury and Wade-2. Provided, That the trial shall proceed without any So the Senate refused to adjourn. further delay or postponement on this account. Mr. STANBERY. Mr. Chief Justice, I The CHIEF JUSTICE. The order which will state to the Managers and to the Senate is proposed by the Senator from New Jersey that under these rulings we are not now pre- will be read. pared to say that we have any further ques- The SECRETARY. The order isas follows: tions to put to General Sherman; but it is a Ordered, That as many of the Managers and of the matter of so much importance that we desire counsel for the Presitent be permitted to speak on to be allowed to recall General Sherman on the final argument as shall choose to do so. Monday if we deem it proper further to ex- It is proposed to amend the order by adding amine him. the following proviso: Mr. Manager BUTLER. We are very de- Provided, That the trial shall proceed without any sirous that the examination -of this witness further delay or postponement on this account. should be closed, if possible Mr. FRBELINGHUYSEN. I accept the Mr. Manager BINGHAM. Oh, no; we amendment of the Senator froml Massachuhave no objection. setts. 329 The CHIEF JUSTICE. The question will t interests of the State would allow them to-give be on the order as modified. to the prosecution in this case. In that event Mr. Manager WILLIAMS. Mr. President, the time allowed could have been divided and with your leave, and yours, gentlemen of the apportioned among the Managers, and that Senate, before taking the vote on this question, would have been in conformity with the terms and in default of any remarks in support of the of the rule in regard to interlocutory motions motion submitted by the honorable Managers where an hour has been assigned to each side, on the part of the House, I feel constrained to and the privilege left to members of saying by ask your indulgence for a word or two, not so whom the several questions may be discussed. much in the way of argument or remonstrance If the rule had been modified in this way the as for the purpose of inviting your attention to Managers, as I have observed, would have been the precedents in cases of this sort. relieved, because they could then have disIt has pleased the Senate to adopt a rule tributed the several parts among themselves. limiting the discussion upon the final argument It struck me, however-and I rose merely of this case to two counsel on each side; and for the purpose of calling your attention to this I may say is in conformity with the rule the precedents-that the rule was an unusual which I believe prevails almost universally in one. It did not meet the approbation of the ordinary cases in the trial of all civil actions, Managers in the first instance; and when, as and in the trial of indictments in the criminal they did, under a sort of compulsion imposed courts, even though those cases may be of very upon them, distribute the parts in this drama, small magnitude, and concern the public at if I may be allowed to call it so, they.directed large to none, or but a very trifling extent. I their chairman to make this application. It has am not here to contest the right of this tribu- been postponed; it is now made, and is now nal sitting as a court, or of any other judicial before you. They thought the rule was unusual. tribunal, to impose such reasonable limitations I think they all shared in that opinion. I have upon the freedom of speech as the interests of taken very little time myself to look into the justice may require, or as may be necessary to precedents; but since the motion has been facilitate its proper administration. I admit made I have thought it was my duty so to do, that time is legitimate consideration; but in and I desire to state now to this honorable the text of Magna Charta, comes, I think, after Senate what is the resultin omdinary cases; and justice: we will not sell, we will not deny, we this, I think, will not be considered one of that will not delay right or justice." description. It struck me, however, that the effect of this There have been but five cases within our rule was to create a cbondition of things which history of impeachments before the Senate of was calculated, in some degree, to embarrass the United States. The first of them was the the gentlemen who have been sent here to con- case of Blount, which was tried, I think, in the duct this case on the part of the HIouse and the year 1798. That was the impeachment of a people. The House, acting upon its discretion Senator; it went off upon a collateral question, and upon a full consciousness of the import- which was as to the fact whether a member of ance of this case, has devolved this responsi- the Senate was an officer impeachable under ble task upon seven of its members. In this the Constitution. The next case was the case particular, although the case is one without a of Judge Pickering, of New Hampshire. The precedent, they certainly have not deviated charge there was drunkenness. The defense from the ordinary rule. I know no cases in put in-if there can be said to have been a dewhich the number has been less than five. fense put in regularly, where the respondent There are many, I think, where it has amounted did not appear by counsel-was insanity. That to as much as eleven. The effect, however, of question was tried in advance; it was ruled this rule will then be to exclude from the de- against him; and thereupon, upon the motion bate upon this question-I mean the final of the members of' the House, at the special debate, and I take that to be really and sub- instance and upon the special order of the stantially the onlyimportantone-at least four House itself, to whom, I believe, the question of the Managers appointed by the House. was then referred, the case was submitted withIf time were a matter of importance-and I out argument, and a judgment rendered against am now willing to admit that it is, as the House the defendant. concedes in its proceedings here, in the arti- The third case was that of Justice Chase. cles which it has presented, and in the whole There the number of managers was seven. conduct. of its Managers, as exhibited before They were all heard except one, and yet the you-it would have seemed to me, that while a number of arguments made was equal to the reasonable limitation would be proper it would, number of managers, because the default of perhaps, have relieved us to some extent and that one, if it was a defaults was supplied by enabled all the Managers to perform what two speeches from Mr. Randolph, the chairthey might conceive to be their duties as im- man, who opened the case and closed it. posed upon them by the House of Represent- The next case was that of Judge Peck. atives, if this honorable body had undertaken There the number of managers was five. They to say how much time, or, in other words, how all participated in the argument. many hours, the public convenience and the In none of these cases does there seem to 330 have been-I may be mistaken, and stand sub- interests involved. Senators, I feel myself the ject to correction if I am wrong-any ques- difficulty of realizing its magnitude. I know tion as to the right of the House to be heard, how hard it is for us, even, who are the actors in if it desired, through all its managers. If there this great drama, to rise to the height of this was any discussion then, or any rule adopted on great argument. Why, whatis the case? That the subject at that or any other time, members of a judge of the Supreme Court or of the disof the Senate who have participated in the trict court of the United States? That of a framing of these rules must be of course aware custom-house officer? No. It is the case of of it, and will be able to make the answer in the Chief Magistrate of a great people, of an their votes. There, however, as I have already empire reaching from ocean to ocean, and comremarked, the course was the same as in the prehending within its circumference forty milcase of Justice Chase. lions of free, intelligent, thinking people, who The last case was the case of Judge Hum- are looking upon your doings and waiting in phreys. That took place at the commence- breathless suspense for your verdict. That is ment of the war. Then there was no appear- the case now before you; and if, in the case of ance, and of course no defense, and a sort a judge of the Supreme Court-and from my of judgment was taken by default, something, habitual respect for that tribunal, I would not perhaps, in the nature of a judgment of out- be understood to speak disparagingly of the lawry. position-or if in the case of a judge of the It seems, then, that in the only two cases district court, it was thought improper to imthat have been contested in this country before pose any limitations, where the number of this Senate, the rule has been that all the managers was the same as now, what shall be managers appointed by the House should be said of the application in a case like this of a allowed to participate in the discussion. rule which prevails, as I have already remarked, How is it elsewhere? I have not chosen to in all the courts, even in the most indifferent go beyond the waters to look into the prece- causes? It can only be accounted for in one dents; but there is one case in British history way: either that the case was of small consewhich is familiar to all of us, which is asso- quence, or that it was so plain that the judges ciated, I may say, with the school-boy recol- required no professional research and no argulection of every man in this nation, of every man, ment to aid them. indeed, who is familiar with our language, a And now I desire only to say in conclusion, case made memorable. I suppose, mainly, not in order that I may not be misunderstood, that by the peculiar interest which it involved, but in the remarks which I have made I have not by the fact that it was illustrated by the splendid been moved by any consideratiols that were genius of some of the greatest men that Eng- personal to myself. I have lived long enough land has ever produced. It was not because to outlive the time when the ambition to be Warren Hastings was the Governor General of heard is felt by men; I have lived too long, at Bengal-that was a small matter, held, Ibelieve, all events, to think it worth while to press an by the grace of the British East India Com- argument upon an unwilling judge, whatever pany —but because such men as Edmund Burke may be the reasons by which he may be inand Richard Brinsley Sheridan were among the fluenced, whether he may regard the case as managers. It was such men as those who made too clear a one, or whether he may consider the case an epoch in parliamentary history. it as so unimportant as not to be entitled to a It may be said, however, that there was an- reasonable amount of time. I do not know, other reason for it, and that was its long dura- if you relax this rule, whether I shall be pertion. It continued, I believe, for as long a sonallyable to take advantage of it or not. That period as seven years. I beg Senatorsto under- will depend upon my strength; that will depend stand that I do not quote it as an authority on again upon the feeling that I may have as to the that point; but I think it will be remembered necessity of anything additional to what may by all of them that the labor of argumentation be said by others. I felt it, however, to be my,was distributed among all the managers, the duty to enter my protest —and I do it most articles being numerous, complicated, and elab- respectfully-against what may be drawn into a orate, though I suppose that the fact of all the precedent hereafter. If in a case like this the managers participating had nothing to do pos- argument may be limited to two, how will it be sibly with the prolongation of the time. when another supreme judge isarraigned before And now, in view of these precedents, I another Senate for high crimes and misdemeanwould desire to ask how does the present case ors? I take it for granted that, measuring things compare with them? Is it an ordinary one? by their comparative proportions, another SenWhy, it dwarfs them all into absolute nothing- ate would feel authorized to reduce the number ness. There is nothing in the world's history of counsel to one; and if it came to a district that compares with this. It makes an epoch in judge or a custom-house officer I do not know history, and therefore I may well say that you whether they might not feel authorized to deny are making history to-day. And therefore, too, that privilege altogether. I hink it is, that upon questions of this sort you Mr. Manager STEVENS. Mr. Chief Jusshould so rule as to show to posterity that you tice, I have but a word to say, and that is of do properly appreciate the magnitude of the very little importance. I do not expect to be 331 able, if allowed, to say many words upon this The amendment of the Senator from Ohio subject. There is one single article which I am [Mr. SHERMAN] is to add: somewhere held responsible for for introducing, But the additional time allowed by this order to and a single article only, which I wish to argue each side shall not exceed three hours. at a very brief length; but I desire that my colleagues should have full opportunity to ex- Mr. Manager BOUT WELL. Mr. President ercise such liberty as they deem proper in the and Senators, I am very unwilling myself to argument. make any remarks upon this resolution, because I am so situated, upon the judgment of the I have no objection myself-I do not speak Iam so situated, upon the judgment of the I haver my colleagues-if the Senate choose to Managers, that it is a delicate matter for me to limit our time, to their doing so, and fixing it do so; and had it not been for the qualification limit our time, to their doing so, and fixing it made by the honorable Senator from New at what they think reasonable, what one gen- Jersey I should have said nothing. But if the tleman here would occupy, for I find they oc- Seliate will consider that in the case of Judge cupythree days sometimes lere. Iam willing Peck, after the testimony was submitted to the to allow the Senate to fix the time and let the Managers, those who are not already expected Senate, it was first summed up by two manto speak in conclusion, to divide that time agers on the part of the House; that then the among themselves. owever, sir, this is a counsel for the respondent argued the cause mere suggestion. of the respondent by two of their number, and m on. that then thre case was closed foa the House of I merely wish to say that I trust some further time will be given, as there are two or three Representatives by two arguments made by the managers; if the Senate will consider that in subjects on which for a short time, perhaps an the trial of Judge Chase the argument on tha hour or three quarters of an hour, some of us the trial of Judge Chase the argument on the may be anxious to give the reasons why we part of the House of Representatives and of were so pertinacious in the House in insisting the people of the United States was closed by weresupon their tinaiodustionafr the House i d three managers after the testimony had been eiintroduction after the House had submitted and the arguments in favor of the reportedleaving them out. I confess I feel in respondent had been closed; i f the that awkward position that I owe it to myself respondent had been closed; if they rill corand to the country to give the reasons why I that in the tial of Judge Prescott, in and to the country to give the reasons why I Massachusetts, (which I venture to say in this insisted with what is called obstinacy in intro- M assachusetts, (which I venture to say n this ducing one of the articles; but I am willing presence was one of the most ably conducted toeconfined to any length of time which the trials in the history of impeachments, either in to be confined to any length of time which the Senate may deem proper. What I have to say this country or in Great Britain, on the part of Senate may deem proper. What I have to say I can say very briefly. Indeed, I cannot say it the managers sustained by Chief Justice Shaw at any great length if I would. I merely make sd o the part of the respondent by Mr. Web this suggestion, and beg the pardon of the ster,) that two arguments were made by the this suggestion, and beg the pardon of the managers of the House of Representatives on Senate for having obtruded thus long upon their the part of the House and on the part of tn the part of the House and on the part of the time when they ought to proceed. The CHIEF JUSTICE. Do the counsel for people of that Commonwealth after the case of the respondent had been closed both upon the the President desire to submit any remarks to the respondent had beei closed both upon t ~~~~the Senate? ~evidence and upon the argument, I think.it the Senate? needs no further illustration to satisfy this tri. Mr. SHERMAN. Mr. President, I submit bunal that the cause of the people, the cause an amendment, which I desire to be added to of th at the of the people, the case the order as it stands. of the House of Representatives, if this case the order as it stands. should be opened to full debate on the part of will be read by the Clerk. the five gentlemen who represent the respondEMr. F"RELING~H~UYSEN. Mr. President, ent here, ought not to be left to the close of a before the amendment of the Senator from sngle individual. Ohio is submitted, I desire, if I am at liberty, Mr. JOHNSON. Mr. Chief Justice, I ask to modify the resolution somewhat by adding for the reading of the order as moved by the a further Proviso that only one counsel on the mover, and as proposed to be modified by the part of the Managers shall be heard in the member from Ohio. close. It was not the purpose of the resolution The Secretary read the order as modified to change the rule, excepting as to the num- by Mr. FRELINGHIUYSEN, and the amendment ber who should speak. of Mr. SHERMAN. The CHIEF JUSTICE. The Secretary will Mr. STANBERY. Mr. Chief Justice and read the order as modified by the Senator from Senators, we hope this extension of time will New Jersey. not be an injury to us in disguise. We have The SECRETARY. The order, as modified by neither asked it nor objected to it; it comes the mover, now reads: from the opposite side to have more counsel Ordered, That as many of the Managers and of the than are already assigned by the rules which counsel for the President be permitted to speak on have been adopted. We make no objection; the final argument as shall choose to do so: Provided, no objection if all seven of my learned friends That the trial shall proceed without any further delay argue this case or postponement on this account: And provided fur- argue this c as I nderstand theamend ther, That only one Manager shall be beard in the ment offered by the Senator from Ohio, it is close. that in the final argument, as to which as yet 332 there is no limitation of time, but only of the be difficulty in discriminating between those number of counsel, the provision as to the who are limited by time and those who are addition of counsel shall be amended by a pro- not. viso that the additional time shall not be more The CHIEF JUSTICE. The Senator from than three hours. The time already is indefi- Ohio withdraws his amendment'. The quesnite. I'herulefixesonlytheiurnberofcounsel, tion recurs on the order proposed by the Sennot the time that they shall occupy. As yet ator from New Jersey, as modified by him. the Senate have not said that in the final Mr. Manager BUTLER. I do not rise, sir, summing up, or indeed in the opening which to debate this question, but simply to ask the we have had, counsel shall be limited as to time. counsel for the President, while they do not I do not know in what position we should be ask for this, whether they desire it? I should if this amendment of the Senator from Ohio is like.to know whether they desire this exten-adopted. Three hours in addition to what? sion? They may think that they would not Three hours in addition to a time that is made ask it, but the question is whether they would indefinite by the rule! I cannot understand wish it, because if they do not.wish it it would it. I only call the attention of the Senate to make a very decided impression on my mind it that there may be no misunderstanding here- as to whether it should be granted. I want to after; and as to that matter of a limit as to say here, however, Mr. President, that I speak time, I hope we may say that not one of us has without prejudice to anybody, because, from any idea of lengthening out time for any pur- the very kind attention I have received from pose of delay. I think the Senate can have the Senate in the opening argument, which, enough confidence in us to know that when we unfortunately, fell upon mq, I do not, in any are through we will stop; that we will only event, under any relaxation of the rule, protake as much time as in this great case we may pose to trespass a single moment in the closdeem to be necessary. I know if we go beyond ing argument upon the attention of the Senate, that we shall lose the attention of the court. but to leave it to the very much better arguNot an instant do we mean to speak after we mentation of my associates. Therefore I speak have concluded what is material to us in the wholly without any wish upon my own part case. If we attempt to take time beyond that except that such argumentation may be had for something out of the case we shall very soon as shall convince the country that the case see, Senators, in the expression of your faces, has been fully stated on the one side and the that you are not listening to us with attention. other. For one I can say, and I think I can speak Mr. SUMNER. Mr. President, I should for my learned associates, that we shall not like to have the resolution reported. take a moment more than we consider neces- The CHIEF JUSTICE. The Secretary sary; every moment necessary for the case, not will read the resolution again. a moment unnecessarily in our best judgment The Secretary read as follows: as to how we are to present the case. 1 know Ordered, That as many of the Managers and of the it is the custom of courts to limit the time of counsel for the President be permitted to speak on the final argument as shall choose to do so: Provided, counsel —they must do i —intThat the trial shall proceed without any further dcbusiness. It is done in the Supreme Court of lay or postponement on this account: And provided the United States; but when there is an ira- further, That only one Manager shall be heard in the portant case even before that court which limits close. each argument of counsel to two hours gen- Mr. SUMNER. Mr. President, I move to erally, whenever the court is asked in an im- strike out the last proviso and insert the subportant case to'enlarge the time, they do it and stitute which I send to the Chair. give four hours. On one occasion Ihad myself The CHIEF JUSTICE. The Secretary two entire days for an argument in that court; will read the amendment proposed by the but that case, important as it was, has no sort Senator from Massachusetts. of comparison with the case now before you. The SECRETARY. It is proposed to strike Counsel, when they are limited to an exact out the last proviso in the following words: time, are embarrassed by it. It is a rule that And providedfurther, That only one Manager shall keeps our attention continually on the clock be heard in the close. and not on the case; we are afraid to begin and And in lieu thereof to insert: follow up an argument for fear we shall exhaust And provided, That according to the practice in too much time on that and will be caught by cases of impeachment the several Managers who the punctual hour before we come to other im- speak shall close. portant matters. Now, I hope it is not neces- Mr. CONKLING. I beg to ask an answer sary to suggest that counsel are not here to use from the counsel for the President to the ques unnecessary time, who have a reputation to tion propounded by Mr. Manager BUTLEa. sustain before the world and before this Senate. Mr. EVARTS. I was rising, Mr. Chief I beg them not to decide this question upon any Justice and Senators, to say a word in referidea that we have abused the liberty which is ence to this question when the Senator from or may be accorded to us. Massachusetts sent up an amendment to the Mr. SHERMAN. Mr. President, I will Clerk. Itwill not be in the power of the counwithdraw my amendment, as I see there will sel for the President, if the rule shall now be 333 enlarged, to contribute the aid of. more than twenty years, and who sent a request by teletwo additional advocates in behalf of the Pres- graph that he would come and see him before ident. The rule was early adopted and known he died. I make this explanation, as, under to us, and the arrangement of the number of no ordinary circumstances would he have been counsel was accommodated to the rule. Be- absent from the service of the Senate even for yond that we have nothing to say. If the rule a single day, under these circumstances. shall be enlarged, all of us will with pleasure The result was announced-yeas 38, nays take advantage of the liberality of the Senate. 10; as follows: In regard, however, to the arrangement of YEAS —Messrs. Buckalew, Cameron, Cattell, six against four as would then be the odds Chandler, Cole, Conkling, Conness, Corbett, Cragin, which we should need to meet, we naturally Drake, Edmunds, Ferry, Fessenden, Harlan, Henderson, Hendricks, Howard, Howe, Johnson, Morgan, might feel some interest, particularly if it is a Morrill of Maine, Morrill of Vermont, Morton, Norproposition to be entertained by the court that ton, Patterson of New Hampshire, Pomeroy, Ramsey, all of our opponents should speak after we had Ross, Sherman, Stewart, Sumner, Thayer, Tipton, VanWinkle,Vickers,Williafns,Wilson, andYates-38. got through and we should hear nobody to NAYS-Messrs. Anthony, Davis, Dixon, Doolittle, reply to before we made our arguments. The Fowler, Grimes, McCreery, Patterson of Tennessee, last speech hitherto has been made in behalf Trumbull, and Willey-10. NOT VOTING —Messrs. Bayard, Frelinghuysen, of the President; but if there is any value in Nye, Salsbury, Sprague, and Wade —6.ingysen, debate whatever, it is that when it begins and So the order, with the pending amendment, is of controversy between two sides each as was laid on the table. fairly as may be should have an opportunity to The CHIEF JUSTICE. Gentlemen of know and reply to the argument of the other. counsel for the President, you will proceed Now, the present rule, very properly as it with the defense. seems to us, and wholly in accordance with the custom in all matters of forensic debate, WILLIAM T. SHERMAN'S examination conthus disposes of the matter by requiring that tinnued. the Managers shall open by one of their num- By Mr. STANBERY: ber, and the two counsel for the President Question. After the restoration of Mr. Stanallowed to speak and make their reply, and ton to the War Office upon the vote of the then the second Manager appearing in that Senate, did you form an opinion as to whether behalf to close. So, too, if the number should the good of the service required another man be enlarged, it would seem, especially if there in that office than Mr. Stanton? should be the disparity of six against four, an Mr. Manager BUTLER. Stay a moment. equal and equally just arrangement should be We object. Will you reduce the question to made in the distribution of the arguments of writing? the Managers and of the counsel. Beyond that, The CHIEF JUSTICE. The counsel for we have nothing to say. the President will please reduce the question The CHIEF JUSTICE. Senators, the ques- to writing. tion is on the amendment proposed by the Sen- Mr. STANBERY. I am perfectly willing ator from Massachusetts. to do so, though I can hardly be called to do AMr. WILLIAMS. Mr. President, I move to so at the request of the learned Manager. I lay the order and the amendment upon the table, made a similar request to him more than once, with a view of having a test vote as to whether and it was never complied with. the original rule shall or shall not be changed. The CHIEF JUSTICE. The rule requires Mr. DRAKE. I raise a question of order, that it be done. Mr. President, that iri this Senate, sitting for Mr. Manager BUTLER. I. beg a thousand the trial of an- impeachment, there is no au- pardons. Whenever it was intimated by the thority for moving to lay any proposition on Chief Justice it was done. It is not a matter the table. We must come to a direct vote, I of kindness; it is a matter of rule. think, one way or the other. Mr. STANBERY. Mr. Chief Justice, my Mr. HOWARD. Debate is out of order. impression was that that rule applied to a The CHIEF JUSTICE. The Chief Justice question put by a Senator, not to the questions cannot undertake to limit the Senate in respect of counsel. Otherwise we should never get to its mode of disposing of a question; and as through. It is a question put by a Senator the Senator from Oregon [Mr. WILIAMS] an- that must be in writing. I may be mistaken, nounced his purpose to test the sense of the however. Senate.in regard to whether they will alter the The CHIEF JUSTICE. The Secretary will rule at all the Chief Justice conceives his mo- read the rule. tion to be in order. The Secretary read Rule 15, as follows: Mr. WILLIAMS. I ask for the yeas and "XV. All motions made by the parties or their nays on the motion. counsel shall be addressed to the presiding officer and if he or any Senator shall require it, they shall The yeas and nays were ordered, and taken. be committed to writing and read at the Secretary's Mr. ANTHONY. My colleague [Mr. table." SPRAGUE] has been called away by a summons The CHIEF JUSTICE. The counsel will to attend the bedside of a friend with whom please reduce their question to writing. he has held the most intimate relations for The question was reduced to writing. 334 The CHIEF JUSTICE. The Secretary will testimony has been offered and has been inread the question proposed by th-e counsel for sisted upon. That is, it has been to show with the President. what intent did the President remove Mr, The Secretary read as follows: Stanton. They say the intent was against the Question. After the restoration of Mr. Stanton to public good, in the way of usurpation, to get office did you form an opinion whether the good of possession of that War Office and drive out a the service required a Secretary of War other than meritorious officer, and put a tool, or as they say Mr. Stanton; and if so, did you communicate that in one of their statements a slave, in his place. opinion to the President? n one of their statements a slave. in his place, opinion to the President? Upon that question of conduct, Senators, Mr. Manager BINGHAM. Mr. President what now do we propose to offer to you? That and Senators, we desire to state very briefly to the second officer of the Army-and we do not the Senate the ground upon which we object propose to stop with him-that this high officer to this question. It is that matters of opinion of the Army, seeing the complication and diffiare never admissible in judicial proceedings, culty in which that office was, by the restorabut in certain exceptional cases, cases inolv- tion of Mr. Stanton to it, formed the opinion ing professional skill, &c.; it is not necessary himself that for the good of the service Mr. that I should enumerate them. It is not to be Stanton ought to go out and some one else supposed for a moment that there is a member take the place. Who could be a better judge of the Senate who can entertain the opinion of the good of the service than the distinguished that a question of the kind now presented is officer who is now about to speak? competent under any possible circumstances But the gentlemen say what are his opinions in any tribunal of justice. It must occur to more than another man's opinions, if they are Senators that the ordinary tests of truth cannot merely given as abstract opinions? We do not be applied to it at all; and in saying that, my intend to use them as abstract opinions. The remark has no relation at all to the truthful- gentlemen did not read the whole question. It ness or veracity of the witness. There is noth- is not merely what opinion had you, General ing upon which the Senate could pronounce Sherman; but having formed that opinion, did any judgment whatever. Are they to decide you communicate it to the President, that the a question upon the opinions of forty or forty Food of the service required Mr. Stanton to thousand men what might be for the good of leave that Department; and that in your judgthe service? The question involved here is a ment, acting for the good of the service, some violation of the laws of the land. It is a ques- other man ought to be there. tion of fact that is to be dealt with by witnesses; This is no declaration of the President we and it is a question of law and fact that is to be are upon now. This is a communication made dealt with by the Senate. to him to regulate his conduct, to justify him, Now, this matter of opinion may just as indeed to call upon him to look to the good of well be extended one step further, if it is to be the service, and to be rid, if possible, in some allowed at all. After giving his opinion of way of that unpleasant complication. Any what might be requisite to the public service, one can see there was a complication there that the next thing in order would be the witness's must in some way or other be got rid of; for opinion as to the obligations of the law, the look at what the Managers have put in evirestrictions of the law, the prohibitions of the dence I It appears by Mr. Stanton's own law. We cannot suppose that the Senate will statement that from the 12th of August, 1867, entertain such a question for a moment. It Mr. Stanton has never seen the President, has must occur to the Senate that by adopting such never entered the Executive Mansion, has a rule as this it is impossible to see the limit never sat at that board where the President's of the inquiry or the end of the investigation. legal advisers, the heads of Departments, are If it be competent for this witness to deliver this bound to be under the Constitution. opinion, it is equally competent for forty thou- Will they say that the relations between him sand other men in this country to deliver their and the President had got to that pitch that opinions to the Senate; and then, when is the Mr. Stanton was unwilling to go there lest he inquiry to end? We object to it as utterly might not be admitted? He never made that incompetent. attempt; but that is not all: Mr. Stanton says Mr. STANBERY. Mr. Chief Justice and deliberately on the 4th of March in his comSenators, if ever there was a case involving a munication to the House of Representatives, question of intention, a question of conduct, when he sent the correspondence between the a question as to acts which might be criminal or President and General Grant,'"I have not only might be indifferent according to the intent of not seen the President, but I have had no offithe party who committed them, this is one of cial communication with the President since that class. It is upon that question of intent the 12th of August, 1867." How is the Army (which the gentlemen know is vital to their to get along with that sort of thing? How is case, which they know as well as we know they the service to be benefited in that way? Cermust make out by some proof or other) that tainly it is for the benefit of the service that a great deal of their testimony has been offered, the President should have there some one with whether successfully or not I leave the Senate whom he can advise as to what is to be done.to determine; but with that view much of their in regard to the Army. 335 But what has the Secretary of War become? ish this witness, so that only the usual rule of One of two things is inevitable: he is running recalling would be enforced, that the struggle the War Department without any advice or would be renewed again in some form to-day consultation with the President or he is doing to get in the declarations of the President or nothing. Ought that to be the position of a declarations to the President; and now the Seqretary of War? The President could not proposition is to ask General Sherman whether get out of that difficulty. He might have got he did not form an opinion that it was necesout of it, perhaps, by humbling himself before sary that Mr. Stanton should be removed. Mr. Stanton, by sending him a note of apology Mr. STANBERY. I did not say "remove." that he had ever suspended him. By humbling Mr. Manager BUTLERt (to the Secretary.) himself to his subordinate it might have been Allow me to have the question. I believe I am that Mr. Stanton would have forgiven him. correct. [Obtaining the question.] Whatis it? Would you ask him to do that, Senators? Whether the good of the service required a Sece Now, when you are looking to motives, retary of War other than Mr. Stanton, and if so did when you consider the provocations that the you not communicate that opinion to the President. President has had, when beyond that you see Of course there could not be any other Sece the necessities of the public service placed in retary of War but Mr. Stanton, unless Mr. that situation that no longer can there be any Stanton resigned or was removed. It would communication between the Secretary of War be a good deal more to the purpose to ask him and the President, is it fit that the public whether he communicated that opinion to Mr. service should be carried on in that way, just Stanton, if it may be put in at all, because Mr. to enable the Secretary of War to hold on to Stanton could have resigned. his office and become a mere locum tenens8? Mr. EVARTS. We will follow it up with Then, when you are considering the conduct, that. the intentions, and the matter that is in the Mr. Manager BUTLER. Quousque tandem mind of the President to get rid of Stanton- abutere nostra patientia? I am not able to say undoubtedly he had that matter in his mind- to what extent you will go in offers; but I am when you find that he has been advised, not very glad we are told that is to be done and only as we propose to prove, by General Sher- these tentative experiments are to go on, for man himself, that the good of the service what purpose, Senators, you will judge; cerrequired that that difficulty should be ended, tainly for no legal purpose. Now, itis said that but that General Sherman, as I shall under- it is necessary to put this in, and the argument take to prove, communicated also the opinion is pressed that was used on Saturday, " We of General Grant to the very same point, and must show that, or we cannot defend the Preswhen, as I tell you, we shall follow it up by ident." Well, if you cannot defend the Presthe agreement of these two distinguished gen- ident without another breach of the law for his erals to go to Mr. Stanton and to tell him breach of the law, I do not see any necessity that, for the good of the service, he ought to for his being defended. You are breaking the resign, as he had intimated when the Presi- law to defend him, because you are putting in dent first suspended him that he would resign, testimony thathas no relevancy, no pertinency, the Senate being here to take care that the no competency under the law. After you have President get no improper man there-now, let this come in, Senators, if you can do so, when you are trying the President for his in will you allow me to ask General Sherman tentions, whether he acted in good faith or bad whether he did not come to an equally firm faith, Senators, will you shut out from him the opinion that it was for the good of the service, advice that he received from these two dis- or for the good of the country, that Johnson tinguished officers, and will you allow the should be removed? The learned Attorney Managers still to say that he acted. without General says that he came to the opinion that advice, that he acted for the very purpose of this complication, as he called it, should be removing a faithful officer and getting in his broken up. I think most of us came to that place sowpe tool or slave of his? When it was conclusion-but how? GeneralSherman might said to him that there should be a change for think it was by removing Mr. Stanton;. Genthe benefit of the service, can you not extend eral Grant might think it was by removing to him so much charity as to believe that he Johnson. The House of Representatives have would be impressed by the opinions of these thought that the complication could be broken two distinguished generals? They say they up by the removal of Johnson. Are you going did not intend to make themselves parties to to put in General Sherman's opinion to counthe controversy, but they aw, as things stood terbalance the weight of the opinion of the there, that either the President must go out or House of Representatives? Mr. Stanton. That was the character of it. Again, will the next question be put to GenIt is with this view that we offer this testi- eral Shermnn whether if he thought it was betmony, and I trust this is not to be ruled out. ter to remove Stanton and put'in Thomas, that Mr. Manager BUTLER. Mr. President, would be a good change for the good of the Senators, I foresaw if we did not remain long service; or shall we be allowed on another artienough in session, which the late hour of the cle to show that General Sherman did not think night on Saturday warned us not to do, to fin- it was.a good plan to put in Thomas, and so 336 convict the President of a wrong intent, be- illustrates this question in another view; because General Sherman thought Thomas was a cause suppose it is for the good of the service bad man, anid, therefore, the President is guilty and it is demonstrated that it is best for the if he put him in? Because General Sherman good of the service that Mr. Stanton should be thought that Mr. Stanton was a bad man, there- put cut, does thatjustify the President in breakfore it was for the good of the service to put ing the law of the land to get him out? Does Stanton out, and therefore the Presidentis inno- that aid his intent? Shall you do evil that good cent in putting him out-that seems to be the may come? Can you do that under any state proposition. Can we go into this region of opin- of circumstances? The question is not whether ion? Ispeakwhollywithoutreferencetothe wit- it was best to have Mr. Stanton out. Upon ness. Iam nowspeakingwhollyuponthegeneral that question Senators may be divided in opinprinciple of opinions of men. That will send ion. There may be many men, for aught I us into another region of inquiry which we do know or aught I care, there may be Senators not want to go into. If this testiniony comes who think that it would be best to have Stanin, we shall then have to ask General Sherman ton out; but that is not the question at all. what were your relations with Mr. Stanton? Admit it, the question is, is it best to break Have you had a quarrel with him? Did you the law of the land by the chief executive offinot think it would be better for the service if cer in order to get him out? Is it best to strain you could get rid of your enemy? Was not the Constitution and the laws in order to get that the thing? Was there not an unfortunate him out? However much he may desire to do difficulty between you? If you allow this it the fact that the Secretary is a bad officer opinion to go in, you cannot prevent our going does not give'the President a right to do an into the various considerations which would illegal thing to get him out? See where you make this opinion of little value. It is that are coming, Senators. It is this, that it is a kind of inquiry into which I have no desire to jastification for the President or any other enter, and I pray this Senate not to enter for executive officer to break the law of the land the good of the country and for the integrity of if he can show that he did what he thought was the law. That is the next question we shall a good thing by doing it. lave to ask, what were the grounds of your I am aware that the executive office, if I go opinion? to history, has been carried on a little upon Again, we shall have to go further. We that idea. Let me illustrate: you Senators and shall have to call as many men on the other the House of Representativesagreeingtogether side as we can. If General Sherman is put in as the Congress of the United States passed here as an expert, we shall have to call Gen- a law that no man should hold office in the eral Sheridan and General Thomas-I mean southern States that could not take the oath George H. Thomas always —and General of loyalty; and I am aware that the President Meade, and other men of equal experience, of the United States-he ought to have been imto say whether upon the whole they did not peached for it-boldly put men into office who think it was for the best to keep Mr. Stanton could not take that oath in the South, and paid in, and whether they communicated their opin- them their salaries, and justified it before the ions to.the President and to Mr. Stanton. But Senate and the House of Representatives on I think nothing can more clearly demonstrate the ground that he thought he was doing the the fact that this cannot be evidence. If it is best for the service to do it-a breach of the put on the ground that he is an expert as an law which, if the House and the country had Army officer, then we have Army officers, if had time to follow him in the innumerable not quite as expert, yet as much experts in the things he has done, would and ought to have eye of the law as he is, and the struggle will been presented as ground for impeachment. be here on which side would be the most of It is one of his crimes. And now he comes them. here and before the Senate of the United There is another purpose on which this is States, says, " Well, I got advice that such a put in. It is said it is put in to show that the man was not a good officer, and, therefore, I President had not a wrong intent. There has broke the law to put him out, and that is my been a great deal said here about intent which, excuse." Is it an excuse? I think, deserves a word of comment, as though But one other thing to which I wish to call the intent has got to be proved by somebody your attention, because you have heard it here that the President told he had a wrong intent. over and over again, is this: it is said that Mr. That seems to be the proposition as put for- Stanton has not had a seat in that board, that ward, that you have to bring some direct proof, Cabinet council, since the 12th of August last. some man who heard the President say he had Whose fault was that? He attended every a bad intent, or something equivalent to that. meeting up to within a week of the 12th The question before you is, did Mr. Johnson of August. He did his duty up to within a break the law of the land when he removed week of the 12th of August. He was notified Mr. Stanton? If he did break the law of the that suspension was coming. He was then land when he removed Mr. Stanton, what then? suspended until the 13th of January; and Then the law supplies the intent, and says that when he came back into the office it was not no man can do wrong intending right.. That for the President to humble himself, but it was 337........:: _..._- L___ _ ~~.:.-....-:.':.............. for him to notify him as the head of a De- way, is not by the law a Cabinet officer in the partment to come and take his seat if he so sense in which it is said a head of a Departdesired; but that notice. never came. It was ment is-if they have a right to put in the not for him to thrust himself upon the Presi- opinion of one head of a Department they dent, but it was for him to go when he under- have a right to put in another; if a permanent, stood his presence would be agreeable. then a temporary Cabinet officer; if a tempoBut that is put forward here as though this rary head of a Department, then an ad interim Government could not go on without a Cab- one. I find no dereliction of duty on the part int -board; and the learned counsel has just of Mr. Stanton in this; nothing showing that told us that it is a constitutional board. Upon the War Department could not go oi. Let that I want to take issue, once for all, Sen- them show that the President has ever done ators, it is an unconstitutional board. There according to the ('onstitution, asked Mr. Stanis not one word in the Constitution about a ton any opinion in writing as to the duties of Cabinet or a board. Jeremy Bentham said, his Department, or that he has ever sent an years ago, that a board was always a shield, order to him which he disobeyed; and that and there has been an attempt in some of the will be pertinent, that will show a reason; but later Presidents to get these boards around I pray the Senate not to let us go into the them to shield them in their acts as a board. region of opinion. The Constitution says that the principal officers I have taken this much time, Senators, beof the Departments may be called upon in their cause I think we save time by taking it, if we respective offices, in regard to their duties, to come to the right decision to-day to keep out give opinions in writingto the President; and this range of opinion. This case is to be tried the earlier Presidents called upon their Cab- by your opinion; not upon your opinion as to inet officers for opinions in writing.. I have whether Stanton is a good or a bad officer, but on my table here an opinion that Thomas Jef- upon the opinion that, whether good or bad, the ferson gave to Washington, about his right to President broke the law in removing him, and appoint embassadors, in writing. They are must take the consequences of that breach of not to be a board, not to sit down and consult, the law. It is said here that he broke it in not to have Cabinet councils. That is an as- order to get into court. I agree that if his sumption of executive power that has grown counsel are correct he is in court, and in a up little by little from the cabinets of the Old court where he will have the full benefit of World. These heads of Departments were having the law settled forever. given to the President as aids, and not as a Mr. EVAnTS rose. shield; and he now will attempt to shield Mr.. CONKLING. Before the counsel prohimself, perhaps, under their advice and under ceeds I beg to submit a question, which I send their action. It is not mere form. The opin- to the desk in writing. ion in writing was required by the Constitu- The CHIEF JUSTICE. The question protion-why? Because the framers of the Con- pounded by the Senator from New York will stitution well knew that there were Cabinet be read. councils, and from the initials of a Cabinet The Secretary read as follows: council in England came that celebrated word Question. Do the counsel for the respondent offer cabal," which has been the synonym of all at this point to show by the witness that he advised the President to remove Mr. Stanton in the manner that was vile in political combination from that adopted by the President, or merely that he advised day to this; and knowing that, it would seem the Presidentto nominate for the action of the Senate almost with prescience that they required not some person other than Mr. Stanton? that there should be verbal consultations semi- Mr. STANBERY. We do not propose weekly by which things might be arranged either. We propose simply to show that he and by which a secret conclave might be held, gave his opinion that for the good of the serbut that there should be what? That there vice somebody else ought to be there. should be written opinions asked and given, so Mr. Manager BUTLER. Without regard to that they night be known of all men; so that the mode? the President could not say, " Why, I got this Mr. STANBERY. We do not propose to advice from my Cabinet counselor," unless he show that he advised him about the mode of showed it in writing, and so that the Cabinet removal; but we propose to show this opinion counselor should not say that he failed to give communicated to the President. this advice, because the President might show Mr. EVARTS. Mr. Chief Justice and Senait in writing. Think of this Cabinet and what tors, I do not propose, upon this question ofeviit has got to be I Picture to yourselves, Sen- dence, to discuss the constitutional relations of ators, President Johnson and Lorenzo Thomas the President of the United States to his Cabinet, in Cabinet consultation to shield the President I nor to anticipate in the least the consideration If Lorenzo Thomas was rightly appointed, then of the merits of this case, as they shall finally of course he can go into Cabinet consultation. be the subject of discussion. If the accusations If they have a right to put in consultation one against the President of the United States upon Cabinet officer they have a right to put in an- which he is on trial here, and judgment upon other. If they have a right to put in the whichmustresultinhisdepositionfromhisgreat opinion of the Attorney General, who, by the I office and a call upon the people of the United C. I.-22. 338 States to choose his successor, turn wholly proper for him to prove that, furnished with upon the mere question of whether the Presi- those opinions and supported by those opindent has been guilty of a formal violation of ions, (whether, in fact, which is yet to be dea statute law, which might subject him to a six termined, he adopted a mode that was unjuscents' fine or a ten days' imprisonment, if he tifiable or not; and whether you shall Adjudge were indicted for it-if that is the measure and the mode to be criminal or not, is Wot now the strength (as, when it comes to question important,) he acted in such a manner that of evidence, is constantly urged upon you) of the motives and the objects which he had in this accusation, I think that the honorable view were of the public service, and for the Manager who so eloquently and warmly pressed public service, and based upon the intelligent upon you the consideration that Warren Has- and responsible opinion and advice of those tings's trial was nothing to this was a little out in whom the service and the community genof place. If they will make it just a.s it would erally had, and upon the best foundations, the be if the President had been indicted under most abiding confidence. the civil-tenure act, when he could have been Now, Senators, reflect; you are taking part found guilty or innocent under the circum- in a solemn transaction which is to effect, in stances of the act, and then the punishment your unfavorable judgment, a removal of the could have been made appropriate to the cir- Chief Magistrate of the nation for some offense cumstandes of its actual formal technical in- that he has committed against the public welfraction, we could understand that trial; and fare with bad motives and for an improper purthat is open to the House of Representatives pose; and we offer to show you that upon conor to any informer at any time. On the con- sultations and deliberations and advice from trary, through hours and pages of eloquence, those wholly unconnected with any matters of the mere act and fact of the removal of Mr. personal controversy and any matters of politiStanton is made the circumstance or corpus cal controversy, and occupying solely the posidelicti upon which, in respect of its motives, tion of duty and responsibility in the military its purposes, its tendencies, its results, the service of the country, he acted and desired' high crime," in the constitutional sense of to accomplish this change. We cannot prove that term, which would call for a removal everything in a breath; nor is it a criticism on from office of the Chief Magistrate by reason testimony justly to exclude it, that it does not of some grave public interest being injured, is in itself prove all; but if it shall be followed, as made the topic of argument and of proof. it will be, by evidence of equal authority and Now, Mr. Chief Justice and Senators, you weight and by efforts of the President, or aucannot fail to see that General Sherman is not thority to make efforts given by the President called here as an expert to give an opinion to secure a change in the control of this office whether Mr. Stanton is a good Secretary of which the military service of the country thus War or not. He is not called here as an expert demanded, we shall have shown you by an to assist your judgment in determining whether absolute negative that this intention, this moor no it was for the public interest that Mr. tive, this public injury, so vehemently, so proStanton should be removed, in the sense of fusely imputed in the course of the arguments, determining whether this form of removal was so definitely charged in the articles, had no legal or not. He is introduced here as the foundation whatever. second in command over the armies of the Mr. Manager BINGHAM. Mr. President United States, and to show an opinion on his and Senators, after the very pertinent quespart, as a military man and in that position, tion that was propounded by one of the Senathat the military service required for its proper tors to the counsel for the President had been conduct that a Secretary should take the place put, nothing more would have been said by the of Mr. Stanton whose relations to that service Managers but for the argument that has since and to the Commander-in-Chief were not such been interposed. The suggestion made by as those of Mr. Stanton were, that that opinion the honorable Senator shows the utter incomwas communicated to the President. We shall petency and absurdity of the proposition that enlarge the area by showing that it was shared is presented here now: that was whether you in by other competent military authority. proposed to ask of the witness that he formed And, now, if a President of the United the opinion and expressed it to the Executive States, when brought under trial before a court that he ought to remove the Secretary of War of impeachment upon impeachment, is not at in the mode and manner that he did remove liberty in his defense to show that the acts him or attempt to remove him. Is there any which are brought in question as against the one here bold enough to say that if he had public interest anrd with bad motives, and to formed the opinion against the legality of the obstruct laws, and to disturb the public peace, proceeding and had so expressed himself to acts wantonly done, recklessly done, violently the President it would be competent for us to done, were proper and necessary in the judg- introduce any such matter here as a mere matment of those most competent to think, most ter of opinion to prove intent or to prove any. competent to advise, most responsible to the thing else against the President. country in every sense for their opinions and But, apart from that, the reason chiefly why their advice, what can he show? Is it not I rose to reply to the utterances of the gentle 339 man who has just taken his seat is this: he commit the unlawful act. As I intimated beintimates here the extraordinary opinion for fore, that being the rule of evidence as to the himself that the trial in a court of justice of a intent, which was very adroitly suggested as beggar arrested in your streets for a crime the reason for asking this extraordinary quespunishable with six cents of fine or, perchance, tion, this kind of testimony could be of no five hours' imprisonment, is subject to a very avail uhless, indeed, we were to have the different rule of evidence and of administrative opinion of the Lieutenant General as to the justicefrom thatwhich prevails and applieswhen legality of the act. you come to prosecute the Chief Magistrate of I remarked before-and upon that remark I the nation. The American people will enter- stand-that the question of the legality of the tain no opinions of that sort; nor will their President's conduct is not to be settled oy the Senators. We have the same rule of justice opinions of any witness called at this bar; it is and the same rule of evidence for the trial of to be settled by the judgment of this Senate; the President of the United States and for the and it is to be settled by the judgment of the trial of the most defenseless and the weakest of Senate to the exclusion of every other tribunal all our citizens. on the earth, for it is so written in your ConMr. EVARTS. Will the honorable Manager stitution. Intents are not to be proved in any allow me to say that the only illustration I used conceivable form or shape by the opinions of was of an indictment against the Chief Magis- any number of witnesses about the legality of trate of the Union on trial before a police court? an act. The law and the judges of the law Mr. Manager BINGHAM. I supposed my- will determine whether the act was unlawful; self that when the gentleman made use of the and opinions, though ever so often formed remark he intended certainly to have the Sen- and expressed by a third person, cannot make ate understand that there was a different rule an unlawful act a legal or a lawful act, and of evidence and of administrative justice in cannot get rid of the intention which the law the prosecution of an indictment in a court says necessarily follows the commission of an where the penalty might be six cents from unlawful act. that which applied in the prosecution of the Well. say the gentlemen again, the President President before the Senate. was taking the advice of honored and honorMr. EVARTS. When the issues are differ- able gentlemen in the public service. The ent the evidence will be different. It does not Constitution, as the Senate well know, indidepend on the dignity of the defendant. cates who shall be the President's advisers in Mr. Manager BINGHAM. It is very diffi- such a case as this of the removal of the head cult to see how the gentleman can escape from of a Department. That Constitution expressly the position which he has assumed here before declares that he may appoint, and thereby the Senate by making the remark that he sup- necessarily remove, the present incumbent by posed the President to be prosecuted. It is a and with the advice and consent of the Senate. very grave question in this country whether the The tenure-of-office act, following the ConstiPresident can be prosecuted in the courts of tution, provided further that he may for suffithe United States for an indictable offense cient reasons to him appearing suspend the before he is impeached. It has been incorpo- incumbent and take the advice of the Senate, rated in your Constitution that after he has laying the facts before the Senate, with the been impeached and removed he may be in- evidence upon which he acted, whether the dieted and prosecuted for the crime. I do not, suspension should be made absolute. The however, stop to argue that question now. I President did take the advice of the Senate.; do not care who is prosecuted upon an indict- he did suspend this officer whose removal he ment, whether the President or a beggar, the undertakes to prove now by individual opinsame rule of evidence applies to each. I do ions the public service requires. He sent nonot care who is impeached, whether it be the tice of that suspension to the Senate. The President of the United States or the lowest Senate, as his constitutional adviser, acted civil officr in the service of the United States upon it. They gave him notice that they before the Senate, the same rule of evidence advised him not to attempt any further interobtains, and the common-law maxim applies ference with the Secretary for the Department that where an offense is charged which is un- of War. They gave him notice that under the lawful in itself, and it is proved to have been law he could not go a step further. He therecommitted, (as alleged in. every one of these upon falls back upon his assumed right, and articles, and established, I say, by the proof as undertakes to defy the Constitution, to defy to all of them,) the law itself declares that the the tenure-of-office act, to defy the Senate, intent was criminal, and it is for the accused and to remove the Secretary of War, and to show justification. That is the language of appoint another in his place without the adthe books. I so read it in the volume lying vice and consent of anybody except such as he before me, the third of Greenleaf. chose to call into his councils; and now he I do not stop to delay the Senate by reading undertakes to justify by having them swear to the words further than I have recited them, their opinions. We protest against it in the that where the act is unlawful the intent is name of the Constitution; we protest against established by the proof of the fact that he did it in the name of the laws enacted in pursuance 340 of the Constitution; and we protest against it The CHIEFJUSTICE. The only mode in in the name of that great people whom we this which an objection to the question can be day represent, and whose rights have been out- decided properly is to rule the question admisrageously betrayed, and are now being auda- sible or inadmissible; and that is for the Senciously defied before this tribunal. ate. The question of the Senator from MaryThe CHIEF JUSTICE. The Secretary will land has been proposed unquestionably in good read the question. faith, and it addresses itself to the witness in The Secretary read as follows: the first instance, and it is for the Senate to Question. After the restoration of Mr. Stanton to determine whether it shall be answered by the office did you form an opinion whether the good of witness or not. Senators, the question is the service required a Secretary of War other than whether the question propounded by the SenaMr. Stanton; and if so, did you communicate that opinion to the President? tor from Maryland is admissible. The CHIEF JUSTICE. The Chief Justice Mr. HOWE. Mr. President, I should like will submit the question to the Senate. to have the question read again. I did not Mr. CONNESS called forthe yeas and nays, understand it. and they were ordered; and being taken, re- The CHIEF JUSTICE. The Secretary will sulted-yeas 15, nays 35; as follows: read the question propounded to the witness by the Senator from Maryland. YEAS - Messrs. Anthony, Bayard, Buckalew, by the Senator from Maryland. Dixon, Doolittle, Fowler, Grimes, Hendricks, John- The Secretary read as follows: son, McCreery, Patterson of Tennessee, Ross, Trum- Queestion. Did you at any time, and when, before bull, Van Winkle, and Vickers-15. the President gave the order for the removal of Mr. NAYS-Messrs. Cameron, Cattell, Chandler, Cole, Stanton as Secretary of War, advise the President to Conkling, Conness, Corbett, Cragin Davis, Drake, appoint some other person than Mr. Stanton? Edmunds, Ferry, Fessenden, Frelinghuysen, Harlan, Mr. DRAKE. On that question I ask for Henderson, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Nye, the yeas and nays. Patterson of New Hampshire, Pomeroy, Ramsey, The yeas and nays were ordered; and being Sherman, Stewart. Thayer, Tipton, Willey, Williams, taken, resulted-yeas 18, nays 82; as folWilson, and Yates-35. NOT VOTING-Messrs. Saulsbury, Sprague, Sum- lows: ner, and Wade-4. YEAS - Messrs, Anthony, Bayard, Buckalew, So the question was decided to be inadmis- Dixon, Doolittle, Edmunds, Fessenden, Fowler. sible. Grimes, Henderson, Hendricks, Johnson, McCreery, sible. Patterson of Tennessee, Ross, Trumbull, Van WinMr. JOHNSON. Mr. President, I send to kle, and Vickers-18. the Chair a question. NAYS-Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Davis, Drake, The CHIEFJUSTICE. TheSecretary will Ferry, Frelinghuysen, Harlan. Howard, Howe, Morread the question proposed by the Senator gan, Morrill of Maine, Morrill of Vermont, Morton, from 1Maryland. Norton, Nye, Patterson of New Hampshire, PomeThro rcay r a f roy, Ramsey, Sherman, Stewart, Thayer, Tipton, The'-Secretary read as follo w s: Willey, Williams, Wilson, and Yates-32. Did you at any time, and when, before the Presi- NOT VOTING-Messrs. Saulsbury, Sprague, Sumdent gave the order for the removal of Mr. Stanton ner, and Wade-4. as Secretary of War, advise the President to appoint So the Senate decided the question to be some other person in the place of Mr. Stanton? inadmissible. Mr. Manager BUTLER. To that we have Mr. STANBERY. We have nothing furthe honor to object as being leading in form, ther to ask of General Sherman. and not only in form bad, but being covered Mr. Manager BINGHAM. We have nothby the vote just taken. ing to ask of General Sherman. Mr. EVARTS. I suggest, Mr. ChiefJus- The CHIEF JUSTICE. The Chief Justice tice, that the objection of a question being desires to ask whether the counsel for the leading in form cannot be made when it is put President will require General Sherman again by a member of the court. I have never un- at all? derstood that such an objection could be made. To this question no response wasmale; but It imputes to the court the idea of putting Mr. Stanbery and Mr. Manager BUTLER each words into the witness's mouth to lead him. engaged in conversation with the witness. Mr. Manager BUTLER. I do not know, Mr. COLE, (at two o'clock and fifteen minMr. President utes p. m.) I move that the Senate take a Mr. DAVIS. Mr. Chief Justice, I suggest recess for fifteen minutes. whether the Managers or the counsel for the The motion was agreed to; and the Chief defense can interpose any objection to a ques- Justice resumed the chair at half past two tion made by a member of the court? o'clock, and called the Senate to order. The CHIEF JUSTICE. The Chief Justice The CHIEF JUSTICE. Gentlemen counsel thinks that any objection to the putting of a for the President, please proceed -with your question by a member of the court must come evidence. from the court itself. Mr. Manager BUTLER. Whenever that R. J. MEIGS sworn and examined. question arises, the Managers wish to be heard By Mr. STANBERY: upon it. Question. What office do you hold? Mr. DRAKE. I object to the putting of the Answer. I am clerk of the supreme eourt question. of the District of Columbia. 341 Question. Were you clerk of that court in davit and warrant-in evidence. Before coming Februaryv last? to them, I should like to ask a question or two Answer. Yes. of the witness. I suppose that is our right. Question. Have you with you tihe affidavit Mr. STANBERY. About the papers or and warrant under which Lorenzo Thomas was what? arrested? Mr. Manager BUTLER. About the thing Answer. I have. [Producing some papers.] you have been examining in regard to. Question. Are these the original papers? Mr. EVARTS. That is all we have been Answer. The original papers. examining about. Question. Did you affix the sealof the court Mr. Manager BUTLER. Iproposeto examto the warrant? ine about the proof you have already put in. Answer. I did. Mr. STANBERY. We are through with the Question. On what day? witness as soon aswe get the papers. You can Answer. On the 22d of February last. take him now and cross-examine him. Question. At what hour of the day? Mr. Manager BUTLER. Very well. Answer. It was between two and three o'clock in the morning of that day Cross-examined by Mr. Manager BUTLER: in the morning of that da y? Question. At what place? Question. You say you affixed the seal about Answer. At the clerk's office, where the seal two o'clock in the morning of the 22d of Febis. ruary? Question:. Did you sit up in that office all Answer. Between two and three o'clock in night? the morning. A.nzswer. No, sir. Question. Were you called upon to get up. Question. Who brought that warrant to you? and go to the office to do that? Answer. I do not know the gentleman who Answer. I was. brought it; he said he was a member of Con- Question. In cases where great crimes have. gress, Mr. PILE, of Missouri. been committed, and it is necessary to stop the Question. He announced himself as Mr. further progress of crime, you have been acPILE, of Missouri? customed to do that, I suppose? Answer. Yes, sir. Answer. I do not know of any case where Question. He then brought that warrant to that was necessary to prevent a crime. I have you at your house at that hour in the morning? done the same thing in habeas corpus cases, Answer. Yes, sir. and in one replevin case I remember. Question. And you went then to the clerk's Question. Where it is a matter of conseoffice? quence you do these things when called upon? Answer. I went to the clerk's office and Answer. Certainly. affixed the seal and attested it. Question. It is nothing unusual foryou to do Question. To whom did you deliver the war- it in such cases? rant? Answer. It cannot be said to be unusual. I Answer. To Mr. PILE, if that was the gen- would do it at any time. tleman. I did not know him, and do not know By Mr. STANBERY: him now. Question. Have you often been called upon Question. The marshal was not there at that in the course of your experience at night? time? Answer. Only three times, and this is one Answer. No, sir. of them. Mr. Maiager BUTLER. May I ask to what Question. Do you know what became ofthis article this applies? extreme case? What was done with this Mr. STANBERY. What articleI It does criminal? not apply to any article. It applies very con- Answer. I was not present at the examingelusively to some of your proof, and it applies tion. very much te our answer, as you will find when Mr. STANBERY, (to the Managers,) Are we are a little further along in the case. [To you through with the papers? the witness. ] Have you the warrant here? Mr. Manager BUTLER. I am through with Answer. Yes, sir, I have. the papers. Question. Did he bring the affidavit upon Mr. STANBERY. Very well. which the warrant was founded, or did you get Mr. Manager BUTLER. I have the honor that afterward? to object, Mr. President, to the warrant and Answer. I believe all the papers he gave me. affidavit of Mr. Stanton being received as eviI think so; but I am not sure of it. I cannot dence in this cause. I do not think Mlr. Stanr recollect. ton can make testimony against the President Mr. STANBERY. We propose to read these by any affidavit that he can put in, or for him papers, gentlemen,. [handing the warrant and by any proceedings between him and Lorenzo affidavit to the Managers.] Thomas. I do not think the warrant is rele, Mr. Manager BUTLER, (having examined vant to this case in any form. The fact that the papers.) I understand, Mr. President, Thomas was arrested has gone in, and that is that the counsel forthe President offer the a all. To put in the affidavit upon which he 342 was arrested certainly is putting.in res inter proof by General Thomas that before he went alios. It is not a proceeding between Thomas to the court upon this arrest he saw the Presiand the President; but this is between Thomas dent and told him of his arrest, and the Presiand Stanton, and in no view is it either perti- dent immediately replied I" that is as it should nent or relevant to this case or competent in be;" or "that is as we wish it to be, the quesany form, so far as I am instructed. tion in the court." Now, I propose to show Mr. EVARTS. Mr. Chief Justice and Sen- that this is the question that was in the courts, ators, the arrest of General Thomas was brought to wit: the question of the criminality of a perinto testimony by the Managers and they ar- son accused and this civil-tenure bill. And I gued, I believe in their opening, before they had then propose to sustain the answer of the proved it, that that was what prevented General President, and also the sincerity and substance Thomas using force to take possession of the of this his statement already in evidence, by War Office. We now propose to show what showingthat this proceeding, having been comthat arrest was in form and substance by the menced as it was by Mr. Stanton against Genauthentic documents of it, which are the war- eral Thomas, was immediately taken hold of rant and the affidavit on which it was based. as the speediest and most rapid mode, through The affidavit, of course, does not prove the a habeas corpus, in which the President or the facts stated in it; but the proof of the affidavit Attorney General, or General Thomas acting shows the fact upon which, as a judicial found- in that behalf, would be the actor, in order to ation, the warrant proceeded. We then pro- bring at once before this court, the supreme pose to follow the opening thus laid, of this court of the District, the question of the validproceeding, by showing how it took place and ity of his arrest and confinement under an act how efforts were made on behalf of General claimed to be unconstitutional, with an immeThomas by habeas corpus to raise the question diate opportunity of appeal to the Supreme for the determination of the Supreme Courtof Court of the United States then in session, the United States in regard to this act. from which at once there could have been obMr. Manager BUTLER. I understand, Mr. tained a determination of the point. President, that if this affidavit goes in at all, Mr. Manager BUTLER. And whenever it is then evidence of all that it states, if the that is proposed to be shown I propose to show gentlemen have a right to put it in. that Mr. Thomas was discharged on the motion Mr. EVARTS. I said otherwise; but you of his own counsel from arrest by the judge. can have your own conclusion. We do not Mr. EVARTS. Very well; that is afteradmit it to be so. ward; we will see about that; we will prove Mr. Manager BUTLER. That is my con- our case: you can prove yours. clusion, and that is what we should claim; and Mr. Manager BUTLER. Admit this and I think nothing more clearly shows that it can- the Senate will be traveling into the question not be evidence than that fact. This was not of the various facts taking place in another an attempt of the President to get this matter court; and I have not yet heard any of the before the court; it was an attempt of Mr. learned counsel say that this did not come Stanton to protect himself from violence which within the rule of res inter alios acta-things had been threatened in two instances before. done between others than parties to the record. This was late at night. Mr. Stanton, we can Mr. EVARTS. I did not think it neceseasily judge from the evidence, was informed sary. that rnigh of theohreits ma dzto Bs xws,, Sbeh Mv. Man'sgge BUTLER. Thut may he ae. threats made to Wilkeson, and the threats very good answer; but, whether it ia necessary made at Willard's Hotel, and being informed or not, is it not so? Is there a lawyer anyof them he did not know at what hour this man where who does not understand that, and who might bring his masqueraders upon him, and does not know that the proceedings between thereupon he took care to protect himself at two other persons after a crime is committed, the earliest possible hour. never yet were offered in evidence to show that But how that can relieve the President from a crime was not committed. crime, how that shows that he did or did not It is said that the President was glad to get commit the act complained of, because Stan- this matter before a court. Did he see that ton arrested Thomas or Thomas arrested Stan- affidavit? No. Did he know what was in it? ton, is more than I can conceive. Suppose No. All he knew was that his man was carStanton had not arrested Thomas, would it ried into court on some process which the man show that the President is not guilty here? Sup- himself, Thomas, did not even know what it pose he did arrest him, does it show that he is was. He was simply arrested. Mr. Thomas guilty here? Is it not merely, in the language himself did not see the affidavit at that time, of the law, well known to every lawyer in the did not know anything of the matter except Senate, res inter alios acta-things done be- that he was taken by the marshal. He had tween other parties than the parties to this never seen the paper on the evidence here; he record. We only adverted to the arrest in did not even know for what he was arrested. putting in Thomas's declaration to show what All he knew was that he was arrested for someeffect it had on his mind. thing or other; whether it was for being at the Mr. EVARTS. It has already been put in masquerade ball the night before, masted, or 343 what it was he could not tell; he does not pre- Mr. Manager BUTLER. Where in evidence? tend to have told here in evidence; but when Mr. STA'NBERY. Among other things in he said to the President, "they have arrested a place that I need not refer to now, the speech me"-for which of his virtues or for which of of the honorable Manager who opened the his crimes nobody knew-he did not, he does case. not say that he ever saw any paper in any Mr. Manager BUTLER. If you will take form; but he simply went to the President and my speech as evidence I am very glad. That told him "I am arrested." And what, then, is the best evidence. did the President say? "That is where I Mr. STANBERY. Not, except as a last want you to be, in court." I should have resort, for anything. The gentleman has rethought he wanted him anywhere else except peated that this is all pretense of asking to get in the War Office; and that is all the testimony into the courtsthat it is a subterfuge, an aftershows so far. thought, a mere scheme on the part of the Now, they propose to put in Mr. Stanton's President to avoid the consequences of an act affidavit. It is exceedinglygood reading, gen- done with another intention than that. Again, tlemen of the Senate, and sets forth the case what sort of a case have the Managers atwith great luminousness. It shows the terror tempted to make against the President upon and alarm of the good citizens of the District his intentions with regard to the occupation of of Columbia when at night men who are known the War Office by Thomas? They have sought to be men of constancy and steadfastness, men to prove that the intentions of the President representing important districts in Congress, were not to get it bylaw but to get it by intimfelt it was their duty to call upon the chief idation, threats, and force; they have gone justice of the supreme court of this District into this themselves to show the intent of the to interpose, felt that it was their duty to call President, and how? They have given the up the venerable clerk of that court in the dead declqrations of Thomas as to his purpose of of night to get a warrant, and felt that it was using;threats, intimidation, or force, and claim their duty to take immediate means to prevent that those declarations bind the President, and the consummation of this crime: It shows the you, Senators, have admitted them against the terror and alarm which the unauthorized, ille- President. The mere declarations of Thomas gal, and criminal acts of this respondent had as to his intention to enter the office by force thrown this city into at that hour. Undoubt- and intimidation are to be considered the decedly all that is in the affidavit; undoubtedly all larations of the President, and as evidence of that can be shown; and then, thank God, we his intent. Oh I say the gentlemen, that thing have before the Senate and the people of was stopped by this prosecution; the prompt America this appeal to the laws by Mr. Stan- arrest of General Thomas next morning was ton, which this criminal respondent never the only thing that defeated the accomplishundertook, either before or since, although ment of the purpose that was in the mind of furnished with all the panoply of legal attack the President and in the mind of General and defense in the Attorney General. He Thomas. never brought his quo warranto; he never Mr. Manager BUTLER. I did not say so. brought any process; he never took any step Thomas said so. of himself, nor had he for a year. Mr. STANBERY. Thomas said so The All that will appear doubtless, and we should Senate will bear me witness who said so, who be glad to have it in, provided it did not open called that a subterfuge, and who called that us into regions of unexplored and uncertain, a pretense! We wish to show what was this diffuse and improper evidence, opening entirely proceeding got up at midnight, as the learned new issues. If you are ready to go into it I Manager says, in view of a great crime just am; but I say it does not belong to this case. committed or about to be committed; got up I think we can make quite as much out of it under the most pressing necessity, with a as they can, but it is no portion of this case. judge, as we will show, summoned from his It is not tie act of the President; it has noth- bed at an early hour on that winter morning, ing to do with the President; the President the 22d of February, at two o'clock-a judge never saw these papers upon any evidence here; brought from the bench, such was the urgent and what Mr. Thomas did, and what Mr. Stan- and pressing necessity, either pretended or ton did, they themselves must stand by. real, on the part of Mr. Stanton to avoid the Mr. STANBERY. I believe Qurhour hasnot use of force and intimidation to remove him expired, and Iwish upon this matter to address, from that office. We shall show that having Mr. Chief Justice, a few words to the Senate. had him arrested, held to bail in $5,000, the Senators, there are two grounds upon which time of the trial or further hearing of this we ask the admission of this testimony. First great criminal having been fixed for the next of all, there are already in evidence the decla- Wednesday, all this being done on the prior rations of the President that he made this re- Saturday, when he got there on that day it moval to bring the question of that law to the turned out thus: "Why we have got no crimconsideration of the courts. That is already inal at all; General Thomas is just as good a in evidence, and as to that the Managers say it citizen as we have in this community." Genis all pretense, all a subterfuge. eral Thomas's counsel say o the court,." iHe 344 is surrendered; he is in custody; and we do Mr. Stanton gave him something to drink; and that forthepurposeofmovingahabeascorpus." he says that from that hour, if he had not As soon as that purpose was announced, all before, he has never had an idea' of force. at once this great criminal and this great crim- What, then, was the use of holding him? inal act immediately disappear, and the judge Now, I wish to call the attention of the Sensays, ".This is all nothing at all that we have ate to another statement of fact, and that is, had against you, General Thomas; we do not that they did not hold him to keep the peace. even want to ask you to give bail; on the con- Why, the next morning he was told that he trary, I dismiss you." And the counsel for was not held to keep the peace. He said that Mr. Stanton, who were there on that morning, here to the Senate upon his oath, and he inand who had seen this great criminal punished, sisted upon putting it in; I objected, but he or, at any rate, put under bonds for good be- said it was necessary for him to make that point, havior, expressly consent to what? Not merely and then I yielded that he might do it. He that he shall be put at large under bonds; not said to the Senate that the judge told him, merely that he shall give bonds for his good "'This does not interfere in any way with your behavior, but that he shall be absolutely dis- duties as Secretary of War." charged and go free, just as if there was no Butthere is still another thing. This unconprosecution at all; not bound over to the next stitutional law has been on the statute-book term of the court, but totally discharged, and, since a year ago last March. The learned as we shall show you, discharged for the very Attorney General of the United States stands purpose of preventing what was then in prep- before me. Where is the writ of quo warranto aration, the presentation of a habeas corpus, which it was his duty to file? that the case might be got immediately to the Mr. STANBERY. I will show it to youright Supreme Court of the United States, then in away, as soon as I get through this testimony. session, the only ready way in which the ques- Mr. Manager BUTLER. Then it will be tion could be brought before the courts: and the first exhibition that has ever been made to decided for any purpose of any value. Sen- any court in the United States of it, if it is ators, is that, too, to be excluded? I trust not. shown to me. - I suppose it has been prepared Mr. Manager BUTLER. I did not mean to since as part of this defense. Where is the trouble the Senate again; but one or two state- quo warranto filed in any court, Judge Cartments of fact have been made to which, I ter's court, or anybody else's court? Where think, I must call your attention. First, it is is the proceeding taken? He-I put it to him said that Mr. Thomas was discharged wholly. as a lawyer, dare he deny it?-he is the only That depended upon the chief justice of that man in the United States that could file a court. if you are going to try him by impeach- quo warranto, and he knows it. He is the ment, wait until after we get through with this only man who could initiate this proceeding, case. Onetrialatatimeissufficient. Ishetobe and he knows it. And yet it was not done; tried because he did not do his duty under the and still he comes here and talks about putting circumstances? Neither Mr. Stanton, nor your in the quarrels between Mr. Stanton and Mr. Honor, nor anybody else has any right to judge Thomas over this matter. They are res inter of the act of that court until he is here to de- alios, Isayagain-things done between othersfend himself, which the chief justice of the and they have nothing more to do with this supreme court of the District of Columbia is case, and hardly as much as the fact which the amply able to do. President with his excellent taste, and the Then there is another point which I wish to excellent taste of his counsel, drew out here take-into consideration. It is said that Thomas against my objection, that Mr. Stanton when had become a good citizen. I have not agreed this man Thomas claimed that he was fainting to that. I do not believe anybody else has; for want of his breakfast and his drink, gave but he himself testifies that the fight was all him a drink. out of him the next morning after this process, The CHIEF JUSTICE. The counsel will and they put in then that he agreed to remain please reduce their question to writing. neutral. Then there was no occasion to hold Mr. STANBERY. It is the affidavit, if the him any longer. He took a drink to seal the court please, that we offer in evidence. neutrality. Do they not remember the testi- The CHIEF JUSTICE. What does the mony that on the next morning after this he affidavit relate to? and Stanton took a drink and agreed to remain Mr. STANBERY. It is that upon which neutral, and they held up the glasses and said, the warrant was issued-'the affidavit by Mr. "This is neutral ground now?" What was the Stanton, and the warrant for the arrest of use of holding him any further? Thomas founded on that affidavit. We offer Mr. STANBERY. That is, he took a drink the two papers. with the great criminal! Mr. EVARTS. To be followed by the other Mr. Manager BUTLER. He took a drink proof which we have stated. with the President's tool; that is all. Th e Che CHIEF JUSTICE. The Chief Justice thing was settled. The poor old man came thinks the affidavit upon which the arrest was and complained that he had not had anything made is competent testimony, as it relates to to eat or drink, and in tender mercy to him a transaction upon which Mr. Thomas has 345 already been examined, and as it may be ma- Howe, Morgan, Nye, Ramsey, Stewart, Thayer, Tip. terial to show the purpose of the President to ton, and Wilson-17. resort to a court of law. He will be happy to NOT VOTING.-Messrs. Saulsbury, Sprague, and put the question to the Senate if any member So the Senate decided that the offer of desires it. (No Senator being heard to speak.) counsel should be admitted Read the affidavit. counsel should be admitted. Read the affidavit. Mr. Manager BUTLER. Does your Honor Mr. EVARTS. I will read the papers. The understand that the affidavit is admitted? affidavit is: The CHIEF JUSTICE. Yes, sir. To Hon. DAVID K. CARTTER, Chief Justice of the A4.Mr. Manager BUTLER. I heard one Sen- preme Court for the District of Columbiaa: ator ask for the question to be put. Comes Edwin M. Stanton, of the city of Washingator ask for the question to be put. *ton, in the said District, and upon oath says that on The CHIEF JUSTICE. Does any Senator the 21st day of February, A. D. 1868, he, the said ask the question to be put? Edwin M. Stanton, duly held the office of Secretary Mr. CONNESS. I asked that the question forthe Department of War, under and according to the Constitution and laws of the United States; that be put, and I now ask for the yeas and nays he had, prior to said 21st day of February, A. D. 1868, upon it. been duly nominated and appointed to the said offic6 The yeas and nays were ordered. of Secretary of War by the President of the United States, and that his said nomination had been subMr. HOWARD. I wish the question might mitted in due form of law to the Senate of the Unibe read. We do not fully understand it. ted States, and his said nomination had been duly The CHIEF JUSTICE. The Chair will state assented to and confirmed by and with the adviceof the Senate; and he, the said Edwin M. Stanton, had that the counsel for the President propose to duly accepted said office, and taken out and subput in the affidavit upon which the arrest of scribed all the oaths required by law, upon his inGeneral Thomas was made on the morning, I duction into said office, andwas in the actual possession of said office and performing the duties thereof think, of the 22d of February. on said 21st day of February, A. D. 1868, and he had Mr. JOHNSON. It is impossible to decide never resigned said office, or been legally dismissed without knowing what the paper is. therefrom, and he claims that he does now legally without knowing what the paper is. thold saidoffice, and is entitled to allthe rights, privThe CHIEF JUSTICE. Will the counsel ileges, and powers thereof. state what they propose to prove in writing? And the said Edwin M. Stanton on oath further, Mr.EVARTS Iiledhstates that on said 21st day of February, 1868, in the Mr. EVAR'TS. I will read the affidavit. city of Washington aforesaid, Andrew Johnson, PresMr. Manager BUTLER. We object to that. ident of the United States, made and issued an order Then it is in. in writing under his hand, with intent and purpose The CHIEF JUSTICE. Ojcinsae of removing him, the said Edwin M. Stanton, from The CHIEF JUSTICE. Objection is made the said office of Secretary for the Department of War, to reading the affidavit. If the counsel will and authorizing and empowering Lorenzo Thomas, State what they propose to prove in writing it Adjutant General of the Army of the United States, will be whaetter opose to prove in writing it to act as Secretary of War adinterim, and directing will be better. him, the said Thomas, to immediately enter uponthe Mr. STANBERY. We propose to offer discharge of the duties pertaining to thatoffice. And an affidavit made by Mr. Stanton on the night your afflant further states that the said pretended ofthe or onngohe of rder of removal of him from the saidoffice of Seeof the 21st or morning of the 22d of Feb- retary of War is wholly illegal and void and contrary ruary. to the express provisions-of an act duly passed by the The CHIEF JUSTICE. You will state it Congress of the United States on the 2d day of March A. D. 1867, entitled "An act regulating the tenure of in writing. certain civil offices." And your affiant on oath furThe proposition having been reduced to ther states that the said Lorenzo Thomas did, on said writing, 21st day of February, A. D. 1868, in said city of WashThe CHIEF JUSTICE. The Secretary will ington, accept the said pretended appointment as Secretary of War ad interim, and on the same day read the proposition of the counsel for the left with your affiant a copy of the said pretended President. order of the President removing your affiant as Secretary of War, and appointing the said Lorenzo Thomas The Secretary read as follows: Secretary of War ad interim, certified by the said We offer a warrant of arrest of General Thomas, Lorenzo Thomas under his own hand as Secretary of dated February 22, 1868, and the affidavit on which War ad interimn. And on the same 21st day of: Febthe warrant issued. ruary, A. D. 1868, in the city of Washington aforesaid, the said Lorenzo Thomas delivered to your The (HIEF JUSTICE. Senators, you who affiant the said pretended order of Andrew Johnson, are of opinion that the evidence proposed to with intent to cause your affiant to deliver to him, be offered by the counsel for the President is the said Thomas, all the records, books, papers, and other public property now in his (the affiant's) cusadmissible, will, as your names are called, tody and charge as Secretary of War. And your answer yea; those of the contrary opinion, affiant further states on oath, andthat he is informed nay. The Secretary will call the roll. and believes that the said Thomashas, in said city of nay..he Secretary will c a. l the r ol l. Washington and District aforesaid, exercised and The question being taken by yeas and nays, attempted to exercise the duties of Secretaryof War, resulte -_-yeas 34, nays 17; as follows: and to issue orders as such, and your affiant is also informed and believes that the said Lorenzo Thomas YEAS.-Messrs. Anthony, Bayard, Buckalew, Cat- gives out and threatens that he will forcibly remove tell, Cole, Corbett, Cragin, Davis, Dixon, Doolittle, your complainant from the building and apartments Fessenden, Fowler, Frelinghuysen, Grimes, Hen- of the Secretary of War in the War Department, and derson, Hendricks, Johnson, McCreery, Morrill of forcibly take the possession and control thereofunder Maine, Morrill of Vermont. Morton, Norton, Pat- his said pretended appointment by the President of terson of New Hampshire, Patterson of Tennessee, ~ the United States as Secretary of War ad interim. Pomeroy, Ross, Sherman, Sumner, Trumbull, Van And your affliant alleges that the appointment Winkle. Vickers, Willey, Williams, and Yates-34. under which the said Thomas claims to act, and to NAYS.-Messrs. Cameron Chandler, Conkling, hold and perform the duties of Secretary of War, is Conness, Drake, Edmunds, Ferry, Harlan, HIoward, wholly unauthorized and- illegal, and that the said 346 Thomas, by accepting such appointment, and there- order that it may appear how the defendant is under exercising and attempting to exercise the discharged, or what becomes of him. duties of Secretary of War, has violated theprovis- Questio. Well has this defendant been ions of the fifth section of the act above referred to Question. Well, has this defendant bee and thereby has been guilty of a high misdemeanor, discharged? and subjected himself to the pains and penalties pre- Mr. Manager BUTLER. Stay a moment. scribed in said fifth section against any person cor- That will appear bythe record. iaitting such offense. That will appear by the record. Whereupon your affiant prays that a warrant may The WITNESS. Yes; that will appear by be issued against Lorenzo Thomas, and that he may the record. be thereupon arrested and brought before your Honor and thereupon that he may be dealt with as the law By Mr. STANBERY: and justice in such case appertains. Question. Have you a record of the discharge EDWIN M. STANTON. also? Sworn and subscribed before me this 21st day of Answer. The docket shows that. February, A. D. 1868. D. K. CARTTER, Chief Justice. Question. Is that the docket of the judge or Sworn to and subscribed before me by Edwin M. the docket of the court? Stanton at the city of Washington. in the District of Columbia, this 22d day of February, 1868. Answer. The docket of the court. D. K. CARTTER, Chief Justice. Question. Does the judge return the case The warrant is dated the 22d of February, into court? 1868. Answer. The recognizance of course is reMr. STANBERY. First the 21st and then turned into court. the 22d. It is dated before twelve o'clock, Question. I am not speaking of the recogniand then after twelve o'clock. zance; I am speaking of this case? Mr. EVARTS. It is sworn to twice, once Answer. The recognizance was taken upon on the 21st and once onthe 22d. The warrant that case, and was returned into court, and is as follows: was entered upon the docket of the court. United States of America, District of Columbia, s88.- Question. You make no record of these To David S. Gooding, United States marshal for the papers? District of Columbia: I, David K. Cartter, Chief Jus- Answer. No; no record of those papers. tice of the supreme court of the District of Colum- They are filed, and constitute a part of the bia, hereby command you to arrest Lorenzo Thoms They are filed, and onstitute a part of the of said District forthwith, and that you have the said record of the case at court. Lorenzo Thomas before me at the chambers of the Question. Have you got your docket with said supreme court in the city of Washington, forthwith, to answer to the charge of a high misde-you? meanor in this, that on the 21st day of February, Answer. No, sir. The subpoena did not 1868, in the District of Columbia. he did unlawfully require it to be brought, and of course it was accept the appointment of the office of Secretary of ot brought War ad interim, and did then and there unlawfully not rougt. hold and exercise and attempt to hold and exercise Mr. STANBERY, (to the Managers.) We the said office contrary to the provisions of the act will have the docket if you require it, gentleentitled "An act regulating the tenure of certain Doyou want that formal matter? civil offices," passed March 2, 1867, and hereof fail en. Do you want that f ormal matter not but make due return. Mr. Manager BUTLER. A little more than Given under my hand and seal of said court this that. 22d day of February, 18. Mr. STANBERY. Do you want us to proLa. S.] D. K. CARTTER, Chief Justice of the Supreme Court of the District of duceColumbia. Mr. Manager BUTLER. I do not want Attest: R. J. MEIGS. Clerk. anything, except I shall object to any incomThe marshal's return is as follows: petent testimony. WASHINGTON CITY, D. C., February 22, 1868. Mr. STANBERY. You can take this witThe within writ came to hand at seven o'clock a. ness. m., and was served by me on the said Lorenzo Mr. Manager BUTLER. That is all, Mr. Thomas at eight o'clock a. m., and Inow return this Meigs. writ and bring him before Chief Justice Cartter at Mr. STANBERY. Mr. Meigs, will you nine o'clock a. m. of to-day. DAVID S. GOODING, bring this docket that contains this entry? United States Mareshal, D. C. Answer. Yes, sir. By Mr. STANBERY: Mr. Manager BUTLER, (to the witness.) Question. Mr. Meigs, I perceive this is a A single word. Will you not extend the recjudge's warrant at chambers? ord as far as you can, and bring us a certified Answer. Yes, sir. copy of this case as it will appear after being Question. Are you in the habit of keeping extended? any record further than filing the papers, or Mr. STANBERY. Call Mr. Clephane. did you make any record further than filing Mr. JOHNSON, (sending a question to the the papers of that proceeding? desk.) Mr. Chief Justice, I desire to put a qnesAnswer. When the recognizance was exe- tion to General Sherman. He is in the room, cuted, that was put upon the docket of the I believe. court. You will see that the warrants are The CHIEFJUSTICE. The Secretary will marked with a number. read the question. To whom does the SenQuestion. The recognizance of bail? ator from Maryland address it? Answer. As soon as that is done the cases Mr. JOHNSON. General Sherman. He are all put upon the docket of the court in is in the court, I understand. 347 WILLIAM T. SHERMAN recalled. The CHIEF JUSTICE. The Chief Justice The Secretary read the question of Mr. thinks it is entirely competent for the Senate JOHNSON, as follows: to recall any witness. When the President tendered to you the office of Mr. Manager BUTLER. I have not ob. Secretary of War ad interim on the 27th of January, jected to the Senate recalling a witness. 1868 and on the 31st of the same month and year, The CHIEF JUSTICE. The Senate has did e, at the very time of making such tender, state de to you what his purpose in so doing was? decided that the question shall be put to the Mr. Manager BINGHAM. We object to witness. That amounts to a recalling of him, the question as being within the ruling of the and the Chief Justice is of opinion that the Senate, and incompetent. witness is bound to answer the questions. Senate, and incompetent. D The CHIEF JUSTICE. The Chief Justice oes any Senator object? Mr. Manager BUTLER. We understand will submit that question to the Senate. will submit that. question to the Senate. that the only question he has been recalled for Mr. DRAKE. Upon that question I ask has been answered. for the yeas and nays. for the yeas and nays were ordereMr. EVARTS. We have asked another The yeas and nays were ordered. The CHIEFJUSTICE. Senators, you who question. are of opinion that the question proposed thought my qu estion included that-if the Pres b thes honorable Senator from. Maryland i.thought my question included that-if the Presby the honorable Senator from Maryland is ident did, what did he state that his purpose admissible, will, as your names are called, was? answer yea; those of a contrary opinion, Mr Manager BINGHAM To that we obIr. JOHNSON. Before the roll is called ject; and we ask the Senate to consider that Iaar. JOHNSON. Before t he roll is called the last clause suggested now by the honorable I ask that the question be read again. Senator from Maryland, "' And what did the The Secretary again read the question. President say," is the very question which the The question being taken by yeas and nays, Senate this day did solemnly decide adversely resulted-yeas 26, nays 22; as follows: to its being put, and it so decided on Saturday; YEAS-Messrs. Anthony Bayard, Buckalew, Cole, in short, the last clause now put to the witness Davis, Dixon, Doolittle, lessenden, Fowler, Fre- by the honorable Senator from Maryland is, linghuysen, Grimes, Henderson, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Morton, What did the President say? making the PresNorton, Patterson of Tennessee, Ross, Sherman, ident's declarations evidence for himself when Sumner, Trumbull, Van Winkle, Vickers, and they are not called out by the Government. It Willey-26. NAYS-Messrs. Cattell, Chandler, Conkling, Con- was suggested by my associate in argument on ness, Corbett, Cragin, Drake, Edmunds, Ferry, Har- Saturday that if that method were pursued in lan, Howard, Howe, Morgan, Nye, Pomeroy, ham- the administration of justice, and the declarasey, Stewart, Thayer, Tipton, Williams, Wilson, and the administration of justie, a nd the decara Yates-22. tions of the accused were made evidence for, NOT VOTING-Messrs. Cameron, Hendricks, Pat- himself at his pleasure, the administration of terson of New Hampshire, Saulsbury, Sprague, and justice would be impossible in any court. Wade-6. The CIEF JUSTICE. On this question Mr. DAVIS. I rise to a question of order. The CHIEF JUSTICE. On this question The CHIEF JUSTICE. The Senator from the yeas are 26 and the nays 22. So the ques- Kentucky. tion is admitted and will be put to the witness. Mr DAVIS It is thatoneofthe Managers heS ywill read the question again. Mr. DAVIS. It is that one of the Managers The Secretary will read the question again. has no right to object toa question propounded The Secretary read the question to the wit- by a menber of the court. ness, as follows: Mr. Manager BUTLER. We might as well When the President tendered to you the office of meet that question now. Secretary of War ad interim on the 27th of January, 1868 and on the 31st of the same month and year, Mr. Manager BINGHAM. I desire to say did he, at the very time of making such tender, state on that subject, if I may be allowed to do so, to you what his purpose in so doing was? without trespassingThe WITNESS. He stated to me that his The CHIEF JUSTICE. The honorable purpose —- Manager will wait one moment. When a memMr. Manager BUTLER. Stay a moment. ber of the court propounds a question it seems The question, Mr. Chief Justice, was whether to the Chief Justice that it is clearly within the he did state, not what he stated. We want to competency of the Managers to object to the object to what he stated. question being put and state the grounds for Mr. EVARTS. Answer yes or no, General. that objection, as a legal question. It is not Answer. Yes. competent for the Managers to object to a memThe CHIEF JUSTICE. The witness an- ber of the court asking a question; but after swers that he did. the question is asked, it seems to the Chief By Mr. STANBERY: Justice, that it is clearly competent for the Question. What purpose did he state? Managers to state their objections to the quesMr. Manager BINGHAM. Tothatwe object. tions being answered. Mr. Manager BUTLER. The counsel had Mr. CONNESS. Iaskthatthe question now dismissed this witness, and he is not to be put be reduced to writing. brought back, on a question of the court, for The CHIEF JUSTICE. The Clerk has it the purpose of counsel opening the case-again. reduced to writing. It will be read. 348 The Secretary read it, as follows: competent to determine upon the effect of any If he did, state what he said his purpose was? evidence which may be submitted to them; Mr. C ONNESS. Do I understand that to be and the Chief Justice thought thatthe rule which a part of, or an addition made to the other the Senate adopted for itself was founded on question? this fact; and in accordance with that rule, by Mr. JOHNSON. Part of the same q which he determined the question submitted ont The CHIEF JUSTICE. It must be re-teSaturday, he now determines this question in The CHIEF JUSTICE. It must be regarded at present as an independent question. the same way. Mr. DRAKE. I ask for avoteof the Senate Mr. CONNESS. And therefore I ask that the independent question be reduced to writing. upon the question. It has nothing to do with the other. The CHIEF JUSTICE. The Secretary will The CHIEF JUSTICE. The Chief Justice read the question. understands the question which has just been asMr. Manager BUTLER. I only want to read by the Clerk to be the question. ask a single question. The Chief Justice understands this, as does the board'of Managers% Mr. CONNESS. Then I call for its reading this, as does the board of Managers again. CONNESS. Then I call for its reading as I understand, to be precisely the same quesagainThe CHIEF JUSTICE, (to the Secretary.) tion that was ruled upon on last Saturday evendthe qCHIEF JUSTICE, (to the Secretary. ing, when the Chief Justice ruled. Read the question. rMr. Manager BINGHAM. And this mornThe Secretary read as follows: ing too If he did, state what he said his purpose was? The CHIEF JUSTICE. The Chief Justice Mr. CONNESS. " Did" what? does not say that. What he does say is, that it Mr. DRAKE. I would inquire for informa- is a question of the same general import, to tion, Mr. President, whether, in order to test show the intent of the President during these the introduction of that question, it is neces- transactions. The Secretary will read the quessary that a Senator should object to its being tion again. put? Mr. JOHNSON. I ask that both questions Mr. EDMUNDS. No; the Chief Justice be read, the first and the second, taken in conhas decided that it is not. nection with each other. The witness has anMr. DRAKE. Very well. swered the first. The CHIEF JUSTICE. The Chief Justice The CHIEF JUSTICE. The Secretary will has said that it does not seem to him compe- read the original question, and then he will tent for the Managers or the counsel to object read the present question before the Senate. to a question being put by a Senator; but The SECRETARY. The first question was: after it has been put, the question whether it When the President tendered to you the office shall be answered must necessarily depend of Secretary of War ad interinm on the 27th of Januupon the judgment of the court, and either ary, 1868, and on the 31st of the same. month and the counsel for the President or the honorable year, did he, at the very time of making such tenare qouitel aorte l r esibert to addhonor a ble der, state to you what his purpose in so doing was.? Managers are quite at liberty to address any observations they see fit to the court upon that The witness having answered this, the que:point. point. tion now is: Several SENATORs. That is right. If he did, state what he said his purpose was-? Mr. JOHNSON. Certainly; I do not doubt The CHIEF JUSTICE. Senators, you who that. are of opinion that the question just read, "if Mr. Manager BINGHAM. Upon that state- he did, state what he said his purpose was," ment I may be pardoned for saying our only is admissible, and should be put to the witpurpose is to object to the answer being taken ness, will, as your names are called, answer by the Senate to the question, and not to ob- yea; those of a contrary opinion, nay. The ject to the right of the honorable gentleman Secretary will call the roll. from Maryland to offer his question. Mr. HOWE. Before I vote upon the adMr. JOHNSON. I so understand. missibility of this answer, I wish, if there is Mr. Manager BINGHAM. And that is the any regular mode of doing so, to ascertain the question that is before the Senate. The ques- state of the record upon another point; and tion that we raise before the Senate is, that it that is, whether the fact that this office was is incompetent for the accused to make his own tendered to the witness on the stand was a foet declarations evidence for himself. put in by the defense or by the prosecution. The CHIEF JUSTICE. The Chief Justice My own recollection is not very distinct about bas already said upon a former occasion that it, and I am not sure that I am right. he thinks that, for the purpose of proving the The CHIEF JUSTICE. The Chief Justice intent, this question is admissible; and he must remind the Senator that no debate is in thinks, also, that, it comes within the rule order unless. there be a motion to retire for which has been adopted by the Senate as a conference. guide for its own action. This is not an ordinary Mr. EVARTS. I may be permitted, as councourt, but it is a court composed largely of law- sel, to state that it was put in by the defense. yers and, gentlemen of great experience in the Mr. Manager BINGHAM. It was put in by business transactions- of life, and they are quite the defense. 349 Mr. EVARTS. I have so stated. interim for that office; that he had the right Mr. Manager BINGHAM. I wish it to be under the law; he claimed to have the right, understood distinctly. and his purpose was to have the office adminMr. HOWE. The Chief Justice will allow istered in the interest of the Army and of the me to remark that putting a question to ascer- country; and he offered me the office in that tain the state of the record was entering into view. He did not state to me then that his debate by no manner of means. purpose was to bring it to the courts -directly; The CHIEF JUSTICE. It maybe, however. but for the purpose of having the office adminMr. HOWE. It may not be. istered properly in the interest of the Army The CHIEF JUSTICE. The Secretary will and of the whole country. call the roll. Mr. STANBERY. On both occasions, The question being taken by yeas and nays, General, or the other occasion? resulted-yeas 26, nays 25; as follows: The WITNESS. I asked him why lawyers YEAS-Messrs. Anthony, Bayard, Buckalew, Cole, could not make a case; that I did not wish to Corbett, Davis, Dixon, Doolittle. Fessenden, Fow- be brought as an officer of the Army into any ler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morton, Norton, Patterson of controversy. Tennessee, Ross, Sherman, Sumner, Trumbull, Van Mr. CONKLING. Will you not repeat that Winkle, Vickers, and Willey-26. last answer, General? NAYS-Messrs. Cameron, Cattell, Chandler, Conk-. I asked him why lawyers ling, Conness, Cragin, Drake, Edmunds, Ferry, Har- The WITS ESS. I asked him why lawyers lan, Howard, Howe, Morgan, Morrill of Maine, Mor- could not make a case, and not bring me, or rill of Vermont, Nye, Patterson of New Hampshire, an officer, into the controversy. His answer Pomeroy, Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, and Yates-25. was that it was found impossible, or a case NOT VOTING.-Messrs. Saulsbury, Sprague, and could not be made up; but, said he, "' If we Wade-3. can bring the case to the courts it would not So the question propounded by Mr. JOHN- stand half an hour." I think that is all that SON was held to be admissible. he stated to me then. The WITNESS. May I take the question in By Mr. STANBERY: my hand? [The question was handed to the Question. On either occasion? witness and examined by him.] The first Mr. JOHNSON. That is my question. question was as to " both occasions." [The The WITNESS. The conversation was very previous question was handed to the witness long and covered a great deal of ground —and examined by him.] Mr. Manager BUTLER. I object to this Mr. EVARTS. It covers both occasions. examination being renewed by the counsel f: r The WITNESS. The conversations were long the President. and covered a great deal of ground; but I will Mr. STANBERY. There were two occaendeavor to be as precise to the point as pos- sions. Has the witness got through both? That sible. The President stated to me that the is the question. relations which had grown up between the Mr. Manager BUTLER. Whatever maybe Secretary of War, Mr. Stanton, and him- the pretense under which it is to be renewed, self- I hold that, according to the due order of trials, Mr. Manager BUTLER. Stay a moment. it ought not to be allowed. Let us see how it I must again interpose, Mr. President. The is to be done, Mr. President. The counsel question is simply what the President stated his dismissed this witness and he was gone, and he purpose was, and not to put in his whole is brought back at the request of one of the declarations. judges, and that judgeMr. JOHNSON. That is all that is asked. Mr. STANBERY. I must interrupt the This is preliminary to that. learned Manager to say that we did not dismiss Mr. CURTIS. That is all he is going to him. On the contrary, both sides asked to answer. retain him, the learned Manager saying at the Mr. Manager BUTLER. I pray that that time that he wanted to give him a private exmay be submitted to the Senate, whether they amination. will have the whole of the long conversation, Mr. Manager BUTLER. To that I must which is nothing to the purpose. interpose a denial. I have asked for no private Mr. Manager BINGHAM. His purpose in examination. I say the counsel dismissed him offering General Sherman a commission. from the stand, dismissed him as a witness in Mr. Manager BUTLER. Yes, sir. this case from the stand. Then he is called Mr. JOHNSON. That is it. back by one of the judges. In any court that The WITNESS. I intended to be very pre- anybody ever practiced in before, or in any cise and very short; but it appeared to me tribunal, when that is done and a question is necessary to state what I began to state, that put by a judge, that never yet opened the case the President told me that the relations be- to have the witness examined by the counsel tween himself and Mr. Stanton, and between who had dismissed him. Mr. Stanton and the other members of the Mr. JOHNSON. I ask for the reading of Cabinet, were such that he could not execute the question. I think I asked him to answer the office which he filled as President of the as to both of the occasions when the office was United States without making provision ad tendered to him. 350 The CHIEF JUSTICE. The Secretary will twenty-eight gentlemen of the Senate decided read the question proposed by the Senator from that it could not be put. That was exactly the Maryland. same question as this, asking for the same conThe SECRETARY. The witness having an- versation at the same time. Then certain other swered "yes" to the previous question, the proceedings were had, and after those were question is, " State what he said his purpose had the counsel waited some considerable time was?" at the table in consultation, and then got up The CHIEF JUSTICE. Nothing is more and asked leave to recall this witness this mornusual in courts of justice than to recall wit- ing for the purpose of putting questions. The nesses for further examination, especially at Senate gave that leave and adjourned. This the instance of one of the members of the court. morning they recalled the witness and put such It is very often done at the instance of counsel. questions as they pleased, and we spent as It is, however, a matter wholly within the discre- many hours, as you remember, in doing that. tion of the court; and if any Senator desires On Saturday they had got through with him, it the Chief Justice will be happy to put it to except that they wanted a little time to conthe court, whether the witness shall be further sider whether they would recall him; they did examined. If not recall him this morning, and after getting Mr. WILLIAMS. I ask for the opinion of through with him the witness was sent away. the court on that subject, whether the counsel Then he was again recalled to enable one of can renew the examination of this witness and the judges to put a question, to satisfy his go beyond the question propounded by a mem- mind. Of course, he was not acting as counher of the court. sel for the President in so doing; that could The CHIEF JUSTICE. The counsel will not be supposed possible. He wanted to please reduce the question they propose to put satisfy his mind. to writing. Mr. JOHNSON. What does the honorable The question having been reduced to writing Manager mean? vas sent to the Secretary's desk, and read as Mr. Manager BUTLER. I mean precisely follows: what I say, that it cannot be supposed possibly Have you answered as to both occasions? that he was acting as counsel for the President. The CHIEF JUSTICE. The question is Mr. JOHNSON. Mr. Chief Justice, if the objected to, and the decision of question honorable Manager means to impute that in oothe question anything I have done in this trial I have been will determine whether the counsel can put any anything as counsel, or in this trial of have been further questions to the witness. acting as counsel, or in the spirit of counsel, Mr. E VARTS. We may be heard upon that, he does not know the man of whom he speaks. Ir. EVsARTS. We maybe heard uponthat, Iam here to dischargea duty; and that I proI suppose. The CHIEF JUSTICE. Certainly. pose to do legally. And permit me to say to Mr. EVARTS. The question, Senators, the honorable Manager that I know what the whether a witness may be urecalledisa quen s- law is as well as he does, and it is not my purwhether a witness may be recalled is a question of the practice of courts. It is a practice pose in any way to depart from it. almost universal, unless there is a suspicion of that my lanage m ay no t be misunderstood, bad faith, to permit it to be done, and it is that it is not to be supposed that he was acting always in the discretion of the court. In special circumstances, where collusion is sus- question and satisfied his mind of somethis pected between the witness and counsel for question and satisfied his mind of something wrong purposes adverse to the administration of justice, a strict rule may be laid down. wanted to know, how can it be that that opens Whatever rule this courtin the future shall lay the case to allow the President's counsel to go into a new examination of the witness? How down as peremptory, if it be that neither party do they know, if he is not acting as counsel shall recall a witness that has been once dis- the in, a s counsel missed from the stand, of course will be oblig- standing between them, which I do not chargeatory upon us; but we are not aware that h ow can the President's counsel know thar anything has occurred in the progress of this h ow c an the President's counsel know tha trial to intimate to counsel that any such rule his mind is not satisfied? He recalled the had been adopted, or would be applied by this witness for the purpose of satisfying his own courthad been adopted, or would b. aied bythismind, and only for that reason. I agree it is Mrt. Manager BUTLER. Mr. President on common to recall witnesses for something that Mr. Manager BUTLER. Mr. President, on Saturday this took place: this question was has been overlooked or forgotten; but I appeal asked: to the presiding officer that while-and I never have said otherwise-a member of the court "In that interview"- who wants to satisfy himself by putting some That is, when the offer was made- question may recall a witness for that purpose, "what conversation took place between the Pres- it never is understood that that having been ident and you in regard to the removal of Mr. Stan- done the case was opened to the counsel on ton?" either side to go on and put other questions. That question was offered to be put, and The court is allowed to put the question, beafter argument, and upon a solemn ruling, cause it is supposed that the judge wants to 351 satisfy his mind on a particular point. After The CHIEF JUSTICE. The Secretarywill the judge has satisfied his mind on that partic- again read both the questions, -so that the ular point then there is to be an end, and it is Senate may understand precisely what is not to open the case anew. I trust I have before it. answered the honorable Senator from Mary- The SECRETARY. The first question was as land that I meant no imputation. I was putting follows: it right the other way. ~ When the President tendered to you the office of Mr. JOHNSON. I am satisfied, Mr. Chief Secretary of War ad interim on the 27th of January Justice; and I only rise to say that I did not 1868, and onthe 3stof the same month and year, dstate to he, at the very time of making such tender, state to know that the counsel proposed to ask any you what his purpose in so doing was? question, and I agree with the honorable Man- The witness having answered "yes," the ager that they have no right to do any such next question was: thing. State what he said his purpose was. Mr. EVARTS. Mr. Chief Justice, one mo- The question now is: ment will, I think, show that- The question now is: Mr. Manager BINGHAM. Will the gen- e sweredastobothoccaions tleman from New York yield to me a single Mr. JOHNSON. That is not.my question. moment, without pretending to interrupt him? Mr. STANBERY. That is mine; and I Mr. President, I desire, on behalf of the Man- want to say one word as to that. Notwithagers, here, so that there may be no possible standing the honorable Senator from Maryland misunderstanding about it, to disclaim, once has put this question, he has put it about our for all, that it was either intended by my asso- client and our case. They belong to us. He ciate, who has taken his seat, or is intended by has put it so that a new door is opened that was the Managers, at any time, or in any way to closed to us before, and the court has gone into question the right and the entire propriety of that new evidence that was a sealed book to us, any Senator recalling any witness and putting about which we could neither examine nor any question to him that he sees fit. We im- cross-examine. That which was closed to us pute no improper motives to any Senator for by the decision of the court on Saturday is now doing so; and we wish it distinctly understood opened by the question of the Senator to-day. that it is fuirthest from our purpose. But we Now, I understand the doctrine contended for recognize his perfect right to do so and the to be that we must take that answer, for entire propriety of it. better or worse; to a question we did not put. Mr. EVARTS. A moment's consideration, I Now, Senators, if in that answer the matter think, will satisfy the Senate, Mr. Chief Jus- had been condemnatory of the President; if tice, that the question is not precisely of our the Senator had got as an answer that the right to recall the witness, but the question of President told the witiess expressly that he right,.if it be important to be discussed-and intended to violate any law; that he was acting it may be in some future applications of the in bad faith; that he meant to use force, I am rule-is, that when the court have introduced, told the doctrine here now is, "inasmuch as by their right of questioning, new matter of it was brought out by a Senator, not by yourevidence that had previously been excluded, selves, although it is fatal testimony to your then the counsel upon either side are not obliged client, you cannot cross-examine him orie word to leave that portion of the evidence incom- about it." It is not testimony of our asking. plete or without cross-examination; for some Suppose it had been brought out by the Manpiece of evidence might be drawn out that, as agers, could we not cross-examine. Suppose it stood, nakedly, it would be prejudicial to it is brought out by a Senator, does that make one side or the other, prejudicial to the side it any more sacred against the pursuit of truth whose witness was recalled, if you please; and and the sacred right of cross-examination? certainly it would be competent, in the ordi- Does the doctrine of estoppel come here, that nary rules of examination, that the counsel wherever any question is answered upon the should ie permitted to place the whole of the interrogatory of a Senator you must take that fact and the truth-within the proper rules of answer, without any opportunity to contradict evidence, of course-before the court. the witness or to cross-examine the witness; Mr. WILLIAMS. If I-may be allowed to that that sacred right cannot be exercised: state, I do not, of course, object, under the that we are estopped not by our own act, not decision made by the Senate, to a full answer by testimony we have called out, but we are to the question propounded by the Senator estopped by the act of another, and shut out from Maryland; but my objection is made from the pursuit of truth, because a Senator upon the ground that the Senate has repeat- has put the question and the answer to that edly decided that the conversations of the question is condemnatory of our client? I say President were not admissible in evidence, the moment that dooris opened and new testiand the witness having answered the question mony introduced in the cause we have a right of the Senator from Maryland, it is not com- to cross-examine the witness; a right to expetent for the counsel for the President to pro- plain it if we can, to contradict it if we can, ceed to examine him upon that point, because to impeach the very witness who testifies to it it is contrary to the decision already made. if we can. Every weapon that a defendant 352 has in pursuit of truth as to testimony against who now appears as his attorney in the trial him is put into our hands the moment such a and defense of this case, to sue out a writ of question is put and such a question is answered. quo warranto. That is the law which we unMr. Manager BINGHAM. Mr. President, dertake to say is settled in this case, notwithI think Senators cannot fail to have observed standing his statement to the witness whom the most extraordinary remarks that have just they have called here. It is settled in the case fallen from the lips of the honorable counsel of Wallace vs. Anderson, as the Senate will for the President. It is perfectly apparent to recollect, reported in 5 Wheaton, page 291. intelligent men, whether on the floor of the The opinion of the court, from which no dissent Senate or in these galleries, that they have was expressed by any member of the bench, attempted, through this witness, to obtain the was delivered by Chief Justice Marshall, and mere naked declaration of the accused to rebut I will read the opinion: the legal presumption of his guilt arising from "Mr. Chief Justice Marshall delivered the opinion his having done an unlawful act. of the court, that a writ of quo darranto could not be am not surprised at the feeling with which maintained except at the instance of the GovernI am not surprised at the feeling with which ment; and as this writ was issued by a private indithe honorable gentleman has just discussed vidual, without the authority of the Government, it this question. IfI heard aright the testimony could not be sustained, whatever might be the right which fell from the lips of the witness, the f the prosecutor or of the person claiming to exercise the office in question. The information must, Lieutenant General, it was testimony that ut- therefore, be dismissed." terly disappointed and confounded the coun- That power was not employed by the Exsel for the accused. What was it? Nothing ecutive through the Attorney General. Let was said, said the witness, in the first conver- him answer in some other way than by these sation about an appeal to the courts, and declarations, sought to be reached through a finally this was said, that it was impossible to cross-examination of their own witness, why mnake up a case by which to appeal to the he did not follow up his illegal order for the courts. These declarations of the President, removal of Stanton and for the appointment standing in that form, are not satisfactory to of Lorenzo Thomas as Secretary of War ad the counsel. They are brought out, to be sure, interim by illegally suing out his writ of quo upon the question of the honorable gentleman warranto and trying the question in the courts. from Maryland; but they are not satisfactory But, gentlemen Senators, there is something to the counsel; and now he tells the Senate more than thatin this case —and I desire merely that he has the right to cross-examine. To to refer to it in passing-that the question which cross-examine whom, sir? To cross-examine the gentlemen raise here in argument now is, in his own witness. To cross-examine him for substance and in fact, whether, having violated what purpose? "In search of the truth I " the Constitution and laws of the United States, Well, he is in pursuit of the truth under diffi- in the manner shown by the testimony here, culties. The witness has already sworn to beyond question, they cannot at last strip the matter of fact that shows the naked, bald fal- people of the power which they retained to sity of the defense interposed here by the Pres- themselves by impeachment-to hold such ident in his answer, that his only purpose in malefactors to answer before the Senate of violating the law was to test the validity of the United States, to the exclusion of the inthe law in the courts. Why did not he test terposition of every other tribunal of justice the validity of the law in the courts? It will upon God's footstool. What has this question not do to say to the Senate of the United States to do with the final decision of the case before that he has accounted for it in telling this wit- the Senate? I say if your Supreme Court sat ness that the case could not be made up. The to-day in judgment upon this question it has learned counsel who has just taken his seat is no power and can have none over this Sentoo familiar with the law of this country, too ate. The question belofgs to the Senate, in familiar with the absolute adjudication of this the language of the Constitution, exclusively. very case in the Supreme Court, to venture to The words are that "the Senate shall have indorse for a moment this utterance of his cli- the sole power to try all impeachments." ent made to the Lieutenant General that it was The sole or onlypower to try impeachments impossible to make up a case. incliudes the power to try and determine every I stand here and assert what the learned question of law and fact arising in a case of imcounsel knows right well, that all that was need- peachment. It is in vain that the decision of the ful to make up a case was for the President of Supreme Court or of the circuit court or of the the United States to do just what he did do in district court or of any court outside of this is the first instance, to issue an order directing invoked for the decision of any question arising Mr. Stanton to surrender the office of Secretary in this trial between the people and their guilty for the Department of War to "Lorenzo President. We protest, then, against a speech Thomas, whom he had that day appointed that has been made here in this matter. We Secretary of War ad interim," and to sur- protest, also, against the attempt here to crossrender all the records of the office to him, to examine their own witness and get rid of the surrender the property of the office to him, and matter already stated so truthfully and so fairly upon the refusal of the Secretary of War to obey by the witness, which clearly makes against his command through his Attorney General, their client and strips him of every feather, 353 and leaves him naked for the avenging hand of of the United States, and by virtue of the powjustice to reach him without let or hinder- ers vested in him by that Constitution? He ance. cannot play "fast and loose" in this way in Mr. EVARTS. Mr. Chief Justice and Sen- the presence of the Senate and the people of ators, I shall enter into no discussions irrele- this country. vant to this matter; but we cannot consent to Why did he not issue out his writ of quo have matters so misrepresented. My learned warranto in August when he had his appointassociate, arguing upon a hypothetical case as ment of Secretary ad interim, casting your to the injustice of the rule sought to be laid statute aside, going into courts, forestalling the down when it should happen that the evidence power of the people to try him by impeachwas injurious to a party, that he should be re- ment for this violation of law, for this unlawstricted from cross-examination undertook, by ful act, which by the law of every country way of argument, to influence the opinion of where the common law obtains, carries the the Senate. It had not the remotest applica- criminal intent with it on its face, and which tion, and, as must have been apparent to every he cannot talk from the record by any false intelligent observer, was not connected in the statement, nor swear from the record in any least with the actual evidence given. The evi- shape or form by any mere declarations of his dence given, if it is agreeable to the Managers, own. is extremely satisfactory to us presenting the One word more, and I have done with this very point of the inquiry of the Lieutenant matter. They got in evidence of what he told General to the President why the lawyers could Thomas, and now they want to contradict that not make up a case without bringing in an ad evidence. After the refusal of the office to interim appointment. The answer of the Presi- him by Stanton, after Stanton refused to obey dent was that it could not be done, but when on Thomas's orders, after he had ordered Thomas the effect of an ad interim appointment the mat- to go to his own place, and Thomas refused to ter was brought up, the -case would not stand obey his orders and declared himself Secretary half an hour, agreeing with Mr. Manager BUT- and his purpose to control the office, to take L0R in his hypothetical case in the note that he possession of the records, and seize upon its wrote for the President to send to the Senate: mails, you have had offered here by this defense "I felt myself constrained to make this re- the declarations of the accused to Thomas when moval lest. Mr. Stanton should answer the he went back and reported to him this refusal information in the nature of a qito warranto, "Go on, take possession of the office " not which I intend the Attorney General shall file "I am going to appeal to the courts," not " Go at an early day, by saying that he holds the to the'Attorney General for a writ of quo waroffice of Secretary of War by the appointment ranto;" there was no intimation of that sort and authority of Mr. Lincoln which has never then; but that declaration of the accused to been revoked." Lorenzo Thomas an the night of the 21st of Mr. Manager BINGHAM. Mr. President, February after he had committed this crime I desire, in response to the gentleman's re- against the laws and Constitution of his counmarks, very briefly to state to the Senate that try is to be'got rid of here to-day by his decinstead of bettering his client's case he has laration at another time, that they are seeking made it worse by his attempt to explain this after now, to the Lieutenant General. declaration of the President to the witness We are not trying the President here for that it was impossible to make up a case without having offered the Lieutenant General an apan adinterimappointment. I agree and stated pointment of Secretary ad interim, or an absomyself in the remarks which I made before, lute appointment either. We are trying the that it was necessary that he should issue his President here for issuing an order, in violation order of removal as he did issue it, and that it of law, for the removal of Mr. Stanton and was necessary he should issue his order of another letter of authority, in violation of thie appointment to Lorenzo Thomas or somebody law, directing Lorenzo Thomas to take pos. else as Secretary of War ad interim, as he did session of the War Department, its records, issue it; but now how does the case stand? and its property, and to discharge the func. Had he not made an ad interim appointment tions of the office of Secretary of War ad six months before this conversation with the interim, in utter contempt of the Constitution, Lieutenant General? Had he not made an ad of his own oath of office, of the statutes of the interim appointment in August, 1867, of Gene- United States, and of the solemn decision of ral Grant? Ah I says the gentleman, he only the Senate. And these gentlemen come here suspended Mr. Stanton then under the tenure- to get rid of thi4 matter in this way by crossoftoffice act, and therefore the question could examining, tousetheirown word, their own witnot very well be raised. I have no doubt that ness, because, after failing to get anything from will be the answer of the counsel; it is all the him themselves, and the Senate having sucanswer they can make; but gentlemen Sena- ceeded in getting words from him that do not tors, how does such an answer stand with the suit their purpose, they seek to get rid of the corrupt answer put in here by the President whole matter by a further examination. that he did not make that suspension under the Mr. DAVIS. Mr. Chief Justice, I ask for tenure-of-office act but under the Constitution information if the question propounded by the C. I. —23. 354 honorable Senator from Maryland has been The WITNESS. I should like to hear my fully answered? answer as far as it had gone. The CHIEF JUSTICE. The Senator from Mr. JOHNSON. I move that the reporter Kentucky will reduce his question to writing. read the answer. Mr. DAVIS. I do not propose The CHIEF JUSTICE. That will be done. The CHIEF JUSTICE. The rule requires Mr. J. J. MURPHY, one of the reporters that the question shall be reduced to writing. for the Globe, read the previous answer Mr. DAVIS. I do not propound any ques- of the witness from the short-hand notes, as tion to the witness at all. I merely make the follows: suggestion to the Chief Justice whether the " I intended to be very precise andvery short; but question, as drafted by the honorable Senator it appeared to me necessary to state what I began to from Maryland, has been fiully answered by the state, that the President told me that the relations between himself and Mr. Stanton, and between Mr. witness or not? Stanton and the other members of the Cabinet, were The CHIEF JUSTICE. It is impossible such that he could not execute the office which he for the Chief Justice to reply to that question. filled as President of the United States without makfor the hief Justice to reply to that question. ing provision ad interim for that office; that he had The witness only can reply. the right under the law; he claimed to have the The WITNES-S. Where is my answer? right; and his purpose was to have the office adminMr. TRUMBULL. I ask is there not a isered in the interest of the Army and of the country; and he offered me the office in that view. He question pending? did not state to me then that his purpose was to bring Mr. DAVIS. I ask that the question be read. it to the courts directly; but for the purpose of havThe CHIEF JUSTICE. The Chief Jus- ing the office administered properly in the interest The CHIEF JUSTICE. The Chief Jus- of the Army and of the whole country. tice will explain the position of the matter to "Mr. STANBERY. On both occasions, General, or the Senate. The Senator from Maryland de- the other occasion? sired that the following question should be put The WITNESS. I asked him why lawyers could d hat te f not make a case; that I did not wish to be brought to the witness, (General Sherman:) " When as an officer of the Army into any controversy." the President tendered to you the office of Sec- "Mr. CONKLING. Will you not repeat that last retary of War ad interim onl the 27th of Janu- answer, General?" "The WITNESS. I asked him why lawyers could ary, 1868, and on the 31st of the same month not make a case, and not bring me, or an officer, into and year, did he, at the very time of making the controversy? His answer was, that it was found state to you what his purpose i impossible, or a case could not be made up;'but,' such tender, state to you what his purpose in said he,'if we can bring the case to the courts, it so doing was?" To that question the witness would not stand half an hour.' I think that is all replied, "he. did" or "yes." That answer that he stated -to me then." having been given, the Senator from Mary- Mr. DRAKE. Now read the pending quesland propounded the further question, "The tion. witness having answered yes, will he state The SECRETARY. The question is: " Have what he said his purpose was?" The witness you answered as to both occasions." having made an answer to that question either The WITNESS. The question first asked me partial or full, the Chief Justice is unable to seemed to restrict me so close to the purpose decide which, the counsel for the President that I endeavored to confine myself to that propose this question: " Have you answered point alone. On the first day or the first interas to both occasions?" That is the same view in which the President offered me the question which the Senator from Kentucky appointment ad interim he confined himself iiow proposes to the Chief Justice, and which to very general terms, and I gave him no defihe is unable to answer. The Senator from nite answer. The second interview, which Oregon [Mr. WILLIAMS] objects to the ques- was on the afternoon of the 30th, not the 31st, tion proposed by the counsel for the President was the interview during which he made the upon the ground that General Sherman having points which I have testified to. In speaking been recalled at the instance of a Senator, and he referred to the constitutionality of the bill having been examined by him, he cannot be known as the civil tenure-of-office bill, I think, examined by counsel for the President. The or the tenure of civil-office bill; and it was the Chief Justice thinks that that is a matter en- constitutionality of that bill which he seemed tirely within the discretion of the Senate, but desirous of having tested, and which, he said, that it is usual, under such circumstances, to if it could be brought before the Supreme allow counsel to proceed with their inquiries Court properly, would not stand half an hour. relating to the same subject-matter. We also spoke of force. I first stated that Mr. WILLIAMS. Mr. President, I with- if Mr. Stanton would simply retire, although draw my objection to this question. When the it was against my interest, against my desire, question was orally put I understood it to be against my personal wishes, and against my another and different question. I am willing official wishes, I might be willing to undertake a full answer shall be given to the question to administer the office ad interim. Then he propounded by the Senator from Maryland, but supposed that the point was yielded; and I object to new questions. made this point, " Suppose Mr. Stanton do not The CHIEF JUSTICE. The Secretary will yield?" -He answered, "Oh! he will make read the question, and the witness will answer. no objection; you present the order, and he The SECRETARY. The question is, " have you will retire." I expressed my doubt and he re-,answered as to both occasions?"' marked, " I know him better than you do; he is cowardly." I then begged to be excused The CHIEF JUSTICE. Do the honorable from giving him an answer to give the subject Managers object to the question being anmore reflection, and I gave him my final an- swered? swer in writing. I think that letter, if you Mr. Manager BINGHAM and Mr. Manager insist upon knowing my views, should come BUTLER. We do. into evidence, and not parol testimony taken The CHIEF JUSTICE. The Chief Justice up; but my reasons for declining the office will put the question to the Senate whether the were mostly personal in their nature. question proposed by the Senator from MisMr. JOHNSON. Mr. Chief Justice, with souri is admissible and should be put to the the permission of the Senate I desire to correct witness. a mistake of fact. I thought General Sher- The question being put, was determined in man said the 31st, but it is the 30th of Janu- the negative. ary, and therefore I desire to have that correc- So the question propounded by Mr. HENDERtion made in my written question. SON was decided to be inadmissible. The CHIEF JUSTICE. If there be no ob- Mr. STANBERY. If no other questions jection that correction will be made. The 30th are sought to be put to General Sherman, I will be substituted for the 31st in the record of believe we are through with him. the question of the Senator from Maryland. The CHIEF JUSTICE. Do the honorable Mr. HENDERSON. I desire to ask the Managers desire to put any questions? witness a question which I send to the Chair in Mr. Manager BUTLER. I did not' know writing. that the counsel for the President had anything The CHIEF JUSTICE. The Secretary will to do with this examination. read the question of the Senator from Missouri. Mr. STANBERY. I have said we are The Secretary read as follows: through. We do not propose to argue that Did the President, on either of the occasions al- point. luded to, express to you a fixed resolution ordeterm- The CHIEF JUSTICE. Gentlemen, Genination to remove Stanton from his office? ition to remove Stanton from his office? eral Sherman desires to know if you are through The WITNESS. If by removal is meant are- with him on both sides? moval by force, he never conveyed to my mind Mr. Manager BINGHAM. We may desire such an impression; but he did most unmis- to recall the Lieutenant General to-morrow. takably say that he could have no more inter- The WITNESS. I have a summons to appear course with him in the relation of President before your committee to-morrow. and Secretary of War. Mr. EVARTS. We must insist, Mr. Chief Mr. HOWARD. I wish to put a question Justice, that the cross-examination must be to the witness. I send it to the Chair. finished before the witness is allowed to leave The CHIEF JUSTICE. The Secretary will the stand. read the question proposed by the Senator Mr. Manager BINGHAM. We do not profrom Michigan. fromThe Secretary read as follows: pose to make any cross-examination at presThe Secretary read as follows: ent. You say the President spoke of force. What did Mr. EVARTS. No cross-examination " at he say about force? present!" We insist that the cross-examinaThe WITNESS. I inquired, "Suppose Mr. tion must be made now if it is to be made Stanton do not yield, what then shall be at all. done?" " Oh," said he, "there is no neces- The CHIEF JUSTICE. Undoubtedly that sity of considering that questioni upon the ig the rule. presentation of an order he will simply go Mr. Manager BINGHAM. Wesubmit that away," or retire." the gentlemen themselves on Saturday made Mr. HOWARD. Is that afull answer to the an appeal for leave to recall the witness; and question? for myself, and as I understood it to be for my: The WITNESS. I think it is, sir. associate Managers, I made no objection. It Mr. HE]4DERSON. Mr. President, I de- is for the Senate to determine whether we sire to submit another question. I send it to shall recall him to-morrow. the desk. Mr. EVARTS. We have no desire to be The CHIEF JUSTICE. The Secretary will strict about these rules, but we desire that read the question proposed by the Senator they shall be equally strict on both sides. from Missouri. The CHIEF JUSTICE. Undoubtedly the The Secretary read as follows: general rule is that if the Managers desire to Did you give any opinion or advice to the Presi- cross-examine they must cross-examine belent on either of those occasions in regard to the fore dismissing the witness; but that will be a legality or propriety of an ad interim appointment; Ind if so, what advice did you give, or what opinion question fgr the Senate when General Sherman lid you express to him? is recalled. Mr. Manager BINGHAM. Mr. President, Mr. Manager BUTLER. This witness has we must object to that. not been called now by the counsel, and thereMr. Manager BUTLER. It has been over- fore we do not cross-examine at present about ruled once to-day. I suppose the Senate means the matter inquired of by the court. The to adhere to some rule. court's questions are all very well; we can 356 not interfere with those; we do not propose to "Recognizance for his appearance on the 26th do so. We will take our own course in our instant, February 22, 1868. "Discharged by Chief Justice Cartter, on the moown way. tion of the defendant's counsel, February 26, 1868." Mr. EVARTS. Very well. Mr STANBERY. That is all Mr. Manager BUTLER. And let you know Mr. STANBERY. That is all. The CHIEF JUSTICE. Do the honorable what it is when we get ready Managers desire to cross-examine this witness? R. J. MEIGS recalled. Mr. Manager BUTLER. We have nothing By Mr. STANBERY: to ask of this witness, sir. Question. Have you the docket of the Mr. JOHNSON. I move that the court supreme court of the District with you now? adjourn. Answer. I have. Mr. STEWART. On that motion I call for Question. Will you read the docket entries the yeas and nays. in the case of the United States vs. Lorenzo The CHIEF JUSTICE. The Senator from Thomas? Maryland moves that the Senate, sitting as a Mr. Manager BUTLER. Is that evidence? court of impeachment, adjourn until to-morI have no belief that the docket entry of a row at twelve o'clock. On this question the court, until the record is made up, is anything yeas and nays are asked for. more than a minute from which the record The yeas and nays were not ordered, one may be extended. I directed that the record fifth of the Senators present not sustaining the should be extended in this case for the use of call. the Senate. The question being put on the motion to Mr. STANBERY. It isnota case in which adjourn, there were, on a division-ayes 24 any record was made, as the witness has noes 18; and the Senate, sitting for the trial already told us; but it was a proceeding be- of the impeachment, adjourned until to-morfore a judge at chambers, and the only entry row at twelve o'clock. on the books is the entry on the docket. The CHIEF JUSTICE. The witness will TUESDAY, April 14, 1868. proceed, unless the question be objected to. TheChiefJusticeoftheUnitedStatesentered Mr. Manager BUTILER. I have objected. the Senate Chamber at twelve o'clock and five Mr. Manager BINGHAM. We must object minutes p. m, and took the chlir. to the evidence as incompetent. The usual proclamation having been made The CHIEF JUSTICE. The counsel for bthe Sergeant-at-Arms, the President will please state in writing what The Managers of the impeachment on the they propose to prove, part of the House of Representatives appeared The offer of the counsel for the President and took the seats assigned them. was reduced in writing in the form of a ques- The counsel for the respondent, with the extion to the witness, as follows: ception of Mr. Stanbery, also appeared and Have you got the docket entries as to the dispo- took their seats. sition of the case of the United States vs. Lorenzo The presence of the House of RepresentaThomas, and if so will you produce and read them? tives was next announced, and the members The CHIEF JUSTICE. The Chief Justice of the House, as in Committee of the Whole, thinks that this is a part of the same transac- headedby Mr. E. B. WASHBURNE, the chairman tion, and is competent evidence; but he will of that committee, and accompanied by the put the question to the Senate if any Senator Speaker and Clerk, entered the Senate Chamdesires it. [After a pause.] The witness will ber, and were conducted to the seats provided answer the question. for them. The WITNESS. The examining magistrate or The CHIEF JUSTICE. The Secretary will the judge took the recognizance of General read the Journal. Thomas for his appearance on a subsequent Mr. STEWART. I move that the reading day, and when that recognizance was taken it of the Journal be dispensed with. was put on the docket of the court, because The CHIEF JUSTICE. If there be no there might be a scire facias upon it on one objection the reading of the Journal will be supposition, and there might be an indictment. dispensed with. The Chair hears no objection. Therefore it was put upon the docket of the Mr. SUMNER. I send to the Chair an order. court. The CHIEF JUSTICE. The-Secretary will Mr. STANBERY. Read the docket en- read the order. tries. The Secretary read as follows: The WITNESS. The case is numbered 5711. Ordered, In answerto the motion of the Managers, that, under the rule limiting the argument to two on "TRIE UNITED STATES Os. LORENZO THOMAS: a side unless otherwise ordered, such other Managers "Warrant for his arrest issued by Hon. Chief Jus- and counsel as choose may print and file arguments tice Cartter, on the oath of E. M. Stanton, to answer at any time before the argument of the closing Manthe charge of high misdemeanor, in that he did un- ager. lawfully accept the appointment of the office of Sec- The CHIEF JUSTICE. If there be no retary of War ad-interim, February 22, 1868.,"Warrant served by the marshal February 22, objection the order will be considered now. 1868.. Mr. CONNESS. I object, Mr. President. 357 The CHIEF JUSTICE. Objection is made.~ confinement of his physician and to inform us The order will lie over for one day. of his situation. Mr. SUMNER. I beg leave most respect- Mr. DRAKE. Mr. President, I would ask fully to inquire under what rule such an objec- a question of the counsel for the defense. tion can be made. The CHIEF JUSTICE. The Secretary will The CHIEF JttSTICE. The Chief Jus- read the question proposed bythe Senator from tice stated on Saturday that in conducting the Missouri. business ofthe court he applied, as far as they The Secretary read the question, as follows: were applicable, the general rules of the Sen- Cannot the day be occupied by counsel for the reate. This has been done upon several occa- spondent in giving in documentary evidence? sions, and when objection has been made orders Mr. EVARTS. It cannot, as we understand have been laid over to the next day for con- the situation of the proofs and our duty in resideration. gard to them. Mr. SUMNER. Of course it is not for me Mr. HOWE. Mr. President, I move that to argue the question; but I beg to remind the the Senate, sitting as a court of impeachment. Chair of the rule under which this order is adjourn until to-morrow at twelve o'clock. moved. The motion was agreed to. The CHIEF JUSTICE. It will lie over. The CmtIEn was agreed to. Gentlemen of counsel for the President, you as a court of impeachment, stands adjourne will plense proceed with the defense. as a court of impeachment, stands adjourned will please proceed with the defense. until to-morrow at twelve o'clock. Mr. EVARTS. Mr. Chief Justice and Senators, it is our misfortune to be obliged to state to the court that since the adjournment yester- WEDNESDAY, April 15, 1868. day, and not coming to our knowledge until The Chief Justice of the United States took just before we came into court this morning, the'chair. our associate, Mr. Stanbery, is prevented by The usual proclamation having been made illness, which confines him, wholly from attend- by the Sergeant-at-Arms, ing upon the court to-day. I have seen him, The Managers of the impeachment on the and have learned the opinion of his physician part of the House of Representatives and the that he will undoubtedly, in expectation, be counsel for the respondent, except Mr. Stanable to resume his dutywithin forty-eight hours, bery, appeared, and took the seats assigned and there may be some hope that he will be able them respectively. to do so by to-morrow. In the suddenness of The members of the House of Representthis knowledge to us, and in the actual arrange- atives, as in Committee of the Whole, prement in reference to the proofs, it would be ceded by Mr. WASHBURNE, chairman of that very difficult forus, and almost impossible with committee, and accompanied by the Speaker any proper attention to the justice of the case, and Clerk, appeared and were conducted to the to proceed to-day; and we suppose that an in- seats provided for them. dulgence, at least for the day, would lessen the The CHIEF JUSTICE. The Secretary will chance of longer procrastination. The gentle- read the Journal of yesterday's proceedings. men of the Senate and the Chief Justice will The Secretary read the Journal of yesterbe so good as to bear in mind that much of the day's proceedings of the Senate sitting for matter to be produced in evidence is within the trial of the impeachment. the personal knowledge of our associate, Mr. The CHIEF JUSTICE. The first business Stanbery, and not within our own, and we have in order is the consideration of the order subto say that the conduct of the proofs has been mitted by the Senator from Massachuetts [Mr. accorded to him. SUMNER] yesterday. It is, of course, not pleasant for us, and not Mr. SUMNER. I should like to have it pleasant for Mr. Stanbery especially, thqt such reported. an occasion as this should arise for the intro- The CHIEFJUSTICE. The Secretary will duction of personal considerations; but in our read the order. best judgment we can only present it to the The Secretary read as follows: court in the aspect that I have named, and sub- Ordered, In answer to the motion of the Managers, mit it to their discretion whether the facility that. under the rule limiting the argument to two on and the indulgence that may be needed on our a side, " unless otherwise ordered," such other Managers and counsel as choose may print and file argupart should be limited to this day or whether ments at any time before the argument of the closing it should extend over the two days that we Manager. suppose would assure the restoration of Mr. The CHIEF JUSTICE. The question is Stanbery to health. I saw Mr. Stanbery last on agreeing to the order. evening, and, although he had been a little Mr. EDMUNDS. I move to amend the affected by a cold which he had contracted, I order so that it will read, " May print and file supposed him to be, as he supposed himself to arguments at any time before the argument of be, in a condition of health that would permit the opening Manager shall be concluded," in him to go on as usual; and it was only as we order that the counsel for the defense may were preparing to come to c6urt this morning have an opportunity to see what arguments that he himself was; obliged to submit tobthe they are to reply to. 358 Mr. SUMNER. I have no objections to and then we are obliged to commence our oral that. argument. Mr. JOHNSON. 1 ask for the reading of Mr. NELSON. Mr. Chief Justice and Senthe order as proposed to be amended. ators, I desire to say on this motion that it was The CHIEF JUSTICE. The Secretary will agreed between the counsel for the President read the order. that the three of our numbe~r who have hitherto The SECRETARY. The order submitted reads managed the case should take upon themselves as follows: ~ the continuous management and the argument Ordered, In answer to the motion of the Managers, of the case before the Senate. In consequence that, under the rule limiting the argument to two on oftheimputation made by the Managers, that we a side, unless otherwise ordered, such other Man- desired unnecessarily to consume the time of the agers and counsel as choose may print and file arguments at any time before the argument of the closing Senate, those of us who, under this arrangeManager. ment, had not intended to argue the cause did It is proposed to strike out the words ".ar- not intend, either by ourselves or through ument of the closing Manager" and insert others, to make any application to the Senate argument of the opening Manager shall be for an enlargement of the rule; but, inasmuch concluded." as that application has been made in behalf Mr. EVARTS. Mr. Chief Justice, may we of the Managers, I desire to say to the Senate be allowed to make a suggestion in reference that if we are permitted to argue the cause I to this order? think it would be more fair to the two counsel The'CHIEF JUSTICE. Certainly. who did not expect to argue the case to permit Mr. EVARTS. The amendment offered us to make an extemporaneous argument beand accepted places, I suppose, the proper re- fore the Senate. We have not made any prepstriction upon the arguments to be furnished aration whatever in view of written arguments. in print on the part of the Managers. That We suppose, though we do not know how the puts the matter in proper shape, I suppose, as fact is, that the Managers on the part of the regards the printed briefs that may be put in House, who have had this subject before them on the part of the Managers; that is to say, for a much longer period than we have had, that they shall be filed before we make our re- are much more familiar with this subject and ply. On our part, however, it would be proper are better prepared with written addresses than that we should have the liberty of filing the we are, so that if the rule is to be extended I briefs at any time before the closing Manager respectfully ask the Senate to allow us to admakes his final reply, as a part of our new dress the Senate in such mode, either oral or briefs may be in reply to the new briefs that written, as we may desire. I beg leave to say are put in on the part of the prosecution. to the Senate that while I do not, speaking for Mr. Manager BINGHAM. Mr. President myself, expect to be able to interest the Senate and Senators, I desire to say, in regard to the as much as the learned gentlemen to whom the remark which has just been made by the hon- management of the cause has been hitherto orable gentleman on behalf of the accused, that confided on the part of the President, yet, as it would seem, if the order be entered as he I reside in the President's own State, as I have suggests, that additional arguments made by practiced my profession in his town, the town counsel on behalf of the President need not be of his domicile, for the last thirty years, and filed until the close of the arguments on behalf as he saw proper to ask my services in his beof the accused made orally to the Senate, the half, and as I fully concur with him in the repliant on behalf of the Congress of the United leading measures of his Administration I deStates and of the people would have no oppor- bire, if I am heard at all, to be heard in the tunity to see those arguments not delivered, and mode which I have suggested, therefore could not reply to them. I would Mr. CONNESS. I offer the following as a suggest that the order as it stands is right. It substitute for the order now pending. gives the counsel for the President the oppor- The CHIEF JUSTICE. The Secretary will tunity to review what may be filed before they read the substitute proposed by the Senator argue, and it gives the counsel for the people from California. the opportunity to review before he argues The Secretary read it, as follows: whatever may be filed here on behalf of the Strike out all after the word "' ordered" and insert: President. That the twenty-first rule be so amended as to allow Mr. EVARTS. Undoubtedly there are in- as many of the Managers and of the counselfor the President to speak on the final argument as shall conveniences in this enlargement of the rule, choose to do so: Provided. That not more than four however applied; but there seems to be an days on each side shall be allowedd but the Managers equality in requiring each side to furnish its shallmake the opening and the closing argument. arguments in time to have replying counsel Mr. DRAKE. On that question I ask for answer them; and the same rule upon my sug- the yeas and nays. gestion would be applied to us that by this The yeas and nays were ordered. present amendment is applied to the Managers Mr. Manager BOUTWELL. I should like for the impeachment, for they are not required to have the substitute read once more. to file their additional briefs except at the very The CHIEF JUSTICE. The Secretary will moment that they close their oral argument, read the proposed substitute. 359 The Secretary again read it. So the order and substitute were indefinitely The CHIEF JUSTICE. Does the honor- postponed. able Manager desire to address the Senate? Mr. FERRY. I now submit an order on Mr. Manager BOUTWELL. No, sir. which I desire action. The CHIEF JUSTICE. Thequestion ison The CHIEF JUSTICE. The Secretary will the substitute proposed by the Senator from read the order proposed by the Senator from California. Connecticut. The qu.estion being taken by yeas and nays, The Secretary read as follows: resulted-yeas 19, nays 27; as follows: Ordered, That the twelfth rule be so modified as that the hour of the day at which the Senate shall Doolittle, FowlerHarlaon, Henderson, Hendricks, sit upon the trialnow pending shall be, unless otherDoolittle, Fowler, Harlan, Henderson, Hendricks, wise ordered, at eleven o'clock forenoon; and that McCreery, Patterson ofTennessee, Ramsey. Sherman, there shall be a recess of thirty minutes each day Stewart, Trumbull, Van Winkle, WilleyWilson, and commencing at two o'clock p. m. Yates —19. NAYS-Messrs.Anthony, Buckalew,CattellChand The CHIEF JUSTICE. This order is for ler, Cole, Conkling, Davis, Drake, Edmunds, Ferry, Frelinghuysen, Howard, Howe, Johnson, Morgan, present consideration unless objected to. Morrill of Maine, Morrill of Vermont, Morton,Patter- The CHIEF JUSTICE put the question, and son of New Hampshire, Pomeroy, Ross, Saulsbury, declared that the noes appeared to have it. Sumner, Thayer, Tipton, Vickers, and Williams-27. NOT VOTING-Messrs. Bayard, Corbett, Fessen- Mr. THAYER, Mr. DRAKE, and others den, Grimes, Norton, Nye, Sprague, and Wade-8. called for the yeas and nays, and they were So the substitute was rejected. ordered; and being taken, resulted-yeas 24, Mr. DOOLITTLE. Mr. Chief Justice, I nays 26; as follows: prefer altogether oral arguments to these printed YEAS-Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin Drake, Ferry, ones, and I submit the following as a substi- Frelinghuysen, Harlan, Howard, Howe, Morgan, tute, understanding that there are six Man- Morrill of Maine, Morrill of Vermont, Ramsey, agers on the part of the House and four counsel Sherman, Stewart, Sumner, Thayer, Williams, and for the respondent. [" Order!" "Order I"] I NAYS-Messrs. Anthony, Bayard, Buckalew, Dahave drawn an order which- [" Order I" vis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, "Order I" ]( Grimes, Henderson, Hendricks, Johnson, McCreery Morton, Patterson of New Hampshire, Patterson of The CHIEF JUSTICE. Order! There Tennessee, Pomeroy, Ross, Saulsbury, Tipton, Trumcan be no debate. bull, Van Winkle, Vickers, Willey, and Yates-26. Mr. DOOLITTLE. Which I ask to have NOT VOTING-Messrs. Norton, Nye, Sprague, and ~~~~~~~~read. ~Wade-4. read. The CHIEF JUSTICE. The Secretary will So the order was rejected. read the amendment proposed by the Senator The CHIEF JUSTICE. Gentlemen of counfrom Wisconsin. sel for the President, please proceed with the The Secretary read as follows: defense. Strike out all after the word "ordered" and in- Mr. EVARTS. Mr. Chief Justice andSensert: ators, although I am not able to announce, as That upon the final argument two Managers of the I should be very glad to do, that our associate, House open, two counsel for the respondent reply; that two other Managers rejoin, to be followed by Mr. Stanbery, had, according to his hopes, been two other counsel for the respondent; and they, in able to come out to day, yet I am happy to say turn, to be followed by two other Managers of the that he is quite convalescent, and cannot be House, who shall conclude the argument. long interrupted from giving the proper attenMr. DRAKE. I move the indefinite post- tion to the proper conduct of the case. Under ponement of the whole proposition, together these circumstances, and from a desire to do with the substitute. whatever we may properly do in advancing the The CHIEF JUSTICE. The Senator from trial of the cause, we propose, with the perMissouri moves the indefinite postponement of mission of the court, to proceed to-day in the order and the proposed substitute. putting in the documentary evidence, which Mr. SUIMNER. Let us have the yeas and will take a very considerable time, and probnays on that. ably we shall not wish to be called upon to The yeas and nays were ordered; and being proceed with any oral testimony until to-mortaken, resulted-yeas 34, nays. 15; as fol- row, when we shall be happy to do so. lows: Mr. CURTIS. Mr. Chief Justice, we desire YEAS —Messrs. Anthony, Bukalew, Chandler, to bring before the Senate the nomination sent Cole, Conkling. Conness, Corbett, Davis, Dixon, by the President of the United States to the Drake, Edmunds, Ferry, Fessenden, Grimes, Harlan, Senate on the 21st of February, as I am inHenderson, Hendricks, Howard, Howe, Johnson, structed, ofHon. Thomas Ewing forthe oice Morgan, Morrill of Maine, Morrill of Vermont, Mor- structed, of Hon. Thomas Ewing for the office ton, Patterson of New Hampshire, Pomeroy, Ross, of Secretary for the Department of War. We Saulsbury, Sherman, Stewart, Thayer, Tipton, Wil- wish the executive clerk to be instructed to liams, and Yates —34. NAYS-Messrs. Cameron, Cattell, Cragin, Doo- produce that, in order that we may put it in evilittle, Fowler, Frelinghuysen, McCreery, Patterson dence. of Tennessee, Ramsey, Sumner, Trumbull, Van Mr. CONKLING. Mr. President, I beg to Winkle, Vickers, Willey, and Wilson-15. say that counsel is entirely inaudible here. NOT VOTIN(G-Messrs. Bayard, Norton, Nye, that counsel is entirely inaudible here. Sprague, and Wade —5. Mr. CURTIS, My request, Senators, was 360 that the executive clerk might be instructed to Mr. Manager BUTLER. The mere vehicle bring in and exhibit here in evidence the nom- of proof;, Mr. President, will not be objected ination sent by the President of the United to; but the proof itself will be, for a very plain States under the date of the 21st of February reason. It was after the President was imlast, as I am instructed, the nomination of peached by the House, and, of course, it is his Hon. Thomas Ewing for the place of Secretary declaration attempted to be put in'. A declarafor the Department of War. tion by him, after he was impeached, whether The CHIEF JUSTICE. The Chief Justice made to the Senate or anybody else, it seems is informed by the Secretary that the injunction to us, cannot be evidence. of secrecy has not been removed from this The exact order of time, if it may not be in proceeding. It will be necessary that it should the mind of Senators, was this: oin the 21st be removed. of February a resolution was offered to the Mr. JOHNSON. Does that apply to a House of Representatives looking to the imnomination? peachment of the President, bringing it before Mr. EDMUNDS. I ask unanimous consent the House; on the 22d it was acted upon and to say, if I am permitted, on that point- actually voted. Impeachment was actually The CHIEF JUSTICE. If there be no voted on the 22d. Then intervened Sunday, objection, the Senator can proceed by unani- the 23d. Any message sent on the 24th, theremous consent. fore, must have been known to the President Mr. EDMUNDS. I desire to say that under to have been after the impeachment. the new rules the fact of a nomination being Mr. CURTIS. It will be remembered that made, it is provided, shall not be a secret cornm- the honorable Managers put in evidence in the munication, and hence I think there can be course of their proceedings a resolve passed by no impropriety in ordering the production of the Senate to which this message is a response; the paper. so that the question is whether the honorable TMr. CURTIS. Iwassoinstructed on inquiry, Managers can put ill evidence a resolve of the and supposed no motion to remove the injunc- Senate transmitted to the President of the tion of secrecy was necessary. United States in reference to the removal of Mr. SHERMAN. Mr. Chief Justice, if a Mr. Stanton, and the Senate will refuse to remotion is necessary, I will move that the execu- ceive the reply which the President made to tive clerk be sworn as a witness in the case. that resolve. That is the question which is Mr. EDMUNDS. With the consent of the now before the court. Chief Justice I will read the fortieth rule, Mr. Manager BUTLER. I have only to say, recently adopted: Mr. President, that that is an argument to the "All information or remarks concerning the char- prejudice, and not to the law. Suppose he acter or qualifications of any person nominated by offers his answer here to-day, is that to be rethe President to office shall be kept asecret. But ed as eviden the fact that a nomination has been made shall not ceiv ce? This message is said to be regarded as a secret." be the answer to the resolve of the Senate. I The CHIEF JUSTICE. The executive pray you to remember that our learned friends clerk will be sworn. insist that the rules of law should govern. Will they dare to say to the Senate that they ever D. W. C. CLARKE sworn and examined. heard of a case where, after indictment of the By Mr. CURTIS: criminal; the respondent was allowed to put in Question. Will you state what documentyou evidence his statement of his defense? If so, have before you? when is that right to cease? We put in the - Answer. 1 have the original nomination by resolve because it was a part of the transaction the President of Thomas Ewing, sen., to be ofremoving Mr. Stanton, made before the imI Secretary for the Department of War. peachment was determined upon. We cannot Quest~ion. Will you please to read it? put in his declarations down to to-day. That Answer. The witness read as follows; is a familiar rule of law. They cannot. I only To the Senate of the United States: ask the Senate to consider of it &s a precedent I nominate Thomas Ewing, sen., of Ohio, to be hereafter, as well as being a great wrong upon Secretary for the Department of War. the people, that after they indict, if you use that ANDREW JOHNSON. word, after they impeach an officer, then he WASHINGTON, D. C., Feb ruary 22,1868. can send in a message which shall be taken as Question. On what day was that actually evidence for him. received by you? Mr. EVARTS. Mr. Chief Justice and SenAnswer. On the 22d of February. ators, the learned Manager asks whether we Mr. CURTIS. Now, I desire to put in evi- dare do something. We have not been in the dence, Mr. Chief Justice, a copy of the message habit of considering the measure for the conof the President of the United States to the duct of forensic disputations to be a question Senate of the United States, which bears date of daring. We are not in the habit of applying on the 24th of February, 1868. I have the such epithets to opponents, nor hitherto of reprinted copy, which is the authorized copy. I ceiving them from them. The measure of duty suppose it will not be objected that we have of counsel to the law and the facts is the measnot obtained it from the proper source? ure we shall strive to obey, and not the measure 361 of daring, if for no other reason for this: that into his Cabinet consultation, and Lorenzo on the rule of law and fact and evidence we Thomas was recognized after that by him as might, perhaps, expect sometimes a superior- the Secretary ad interim, and after that Lorenzo ity, but on the measure of daring, never. Thomas was breathing out his own designs to Now, this question arises thus: isthelearned take possession of the office by force. It was Manager entirely right in saying that the im- in order to show that the President of the peachment was voted on the 22d? Th6 22d United States was determined to disobey the was Saturday, and, unless I am mistaken, the law of the land, that it was known to himvote was not taken until Monday. the Senate served it upon him for the purpose Mr. Manager BUTLER. I was entirely of having him know it, and did not leave it to right-on Saturday. The vote was taken on the slow channels of communication in print, the 22d of February. but served a certified copy on him to stay his Mr. EVARTS. That is, that articles should hand, and he refused to stay his hand. be brought in. The articles, however, were Now, can it be that a prepared argument not voted until the 24th. after that, and after he was impeached by the Mr. Manager BUTLER. The articles could House of Representatives, can be put in evinot be prepared until some time afterward. dence? One ounce of action on his part in Mr. EVARTS. I am merely stating a fact, obedience to the law and the resolution of the notcomplaining. They werefound soon enough. Senate would have been agreat deal better than Now, it is said that because the vote that im- pages of argument; but there was none. The peachment should proceed was taken on the gentlemen will not use the word "dare," for 22d that impairs the credit or the admissibility they would dare do all that good lawyers would of the piece of evidence that is laid before the dare do in favor of their client, but I will say Senate. My learned associate has distinctly the gentlemen have not shown a single legal told the situation of the matter. Perhaps both position upon which this can stand. of these transactions were public at the time, The CHIEF JUSTICE. The counsel for or were made public soon afterward. This the President will please put in writing what message, the injunction of secrecy in respect they propose to prove. to which has been removed, might be within Mr. Manager BUTLER. We have sent the the range of recourse on the one side or the Clerk to look at the House Journal to correct other for argument, and for the knowledge of us if we are wrong. the court. But our learned opponents have Mr. EVARTS. It will delay the question, put in the language of the resolution of the then, somewhat. Senate. Exactly what bearing that has as Mr. Manager BUTLER. The report of the part of the res gestce of the removal of Mr. committee was made on the 22d. All of us Stanton which had taken place so far as the were of opinion that the resolution was passed criminality of the President was concerned on the 22d. We think we are right; but we before this resolution was passed by the Sen- will make that certain. ate it was not easy to see. It was, however, After the lapse of a few minutesreceived as proper evidence. The one reason Mr. Manager BUTLER. We find, Mr. that we did not consider it objectionable was President, on examination, the state of the that we supposed, as a matter of course and record is this: that on the 21st of February of right, that this message, which is an answer a resolution was proposed for impeachment and to that resolution, upon the introduction of referred to a committee; on the 22d the comthe topic by the resolution being offered in mittee reported, and that was debated through evidence, would be admissible in itself. We the 22d and into Monday, the 24th, and the submit, therefore, that on every principle, both actual vote was taken on Monday, the 24th. of law and of discretion, if it may be so said, Mr. EVARTS. Late in the afternoon-five in regard to the completeness of the record o'clock in the afternoon; so that I was right in upon the point, this message of the President the fact. Is there any further objection made should be allowed to be read and given in now? evidence. Mr. Manager BUTLER. Certainly. Mr. Manager BUTLER. I simply desire to Mr. Manager BINGHAM. I desire to state call the attention of the Senate to the fact that the reasons why we insist upon this objection. whether it is a matter of daring or professional The House of Representatives, as appears by knowledge, neither of the counsel has stated the Journal which has now been furnished us, any possible precedent. I desire also to call on the 22d of February, through its committee, the attention of the Senate to the fact, so that reported " that AndrewJohnson be impeached the counsel may never be in doubt hereafter, of high crimes and misdemeanors." The diswhat was the legal effect of the resolution of cussion proceeded on that day. On the day the Senate in our minds, that we put in that preceding, however, the 21st of February, it resolution to show that, notwithstanding'the appeared that the Senate of the United States, resolution of the Senate served on the Presi- as is already in evidence from the Journal o dent at eleven o'clock at night on the night of the Senate itself, proceeded to consider anthe 21st, he still went on and treated this other message of the President of the United Lorenzo Thomas as -Secretary, and took him States, in which he had reported to the Senate 362 that he had removed from the Department of man living, either within the Senate or out of War Edwin M. Stanton, then Secretary of War, the Senate, that he chose to put his decby the previous action of the Senate. The laration in his own defense in writing? The: Senate having refused to concur in the suspen- law makes no such distinctions. I undertake sion, refused to acquiesce in the reasons as- to assert it here, regardless of any attempt to signed by the President under the tenure-of- contradict my statement, that there is no law office act. Having given the President notice that enables any accused criminal, after the thereof, the President thereupon proceeds, after fact, to make declarations, either orally or in this notice, to remove him and to appoint a writing, either by message to the Senate or a Secretary of War ad interim, in direct contra- speech to a mob, to acquit himself or to affect vention of the express words of the act itself in any manner his criminality before the triand of the action of the Senate. On that day, bunals of justice, or to make evidence which the21st of February, the Senate, it seems, con- shall be admitted under any form of law upon sidered the action of the President in this mat- his own motion to justify his own criminal ter of removal and in this matter of appoint- conduct. ment of the head of a Department in direct I do not hesitate to say that every authorcontravention of the prohibitions of existing ity which the gentlemen can bring into court law and of the action of the Senate under it and regulating the rule of evidence in procedures the notice which it had served on the President. of this sort is directly against the proposition, On that night, as the record also shows, the and for the simple reason that it is a written 21stofFebruary, 1868, the Senate of the United declaration made by the accused voluntarily, States passed a resolution reciting the action after the fact, in his own behalf. I read for the of the President in the premises, to wit, his information of the Senate the testimony touchremoval of the Secretary of War, his appoint- ing this fact of the service of the notice of the ment of a Secretary ad interim, and declaring action had by the Senate upon the conduct of by solemn resolve that under the Constitution the President whereof he stands acccused beand laws of the United States the President fore the Senate. It is as follows. On page had no power to make the removal or to make 109 of the trial Mr. McDonald testified: the appointment. That was the action of the "An attested copy of the foregoing resolution was Senate, which has been given in evidence here delivered by me into the hands of the President of in support of the prosecution. It was all con- the United States at his office in the Executive Mancluded, as the Senate will notice from what I sion atten o'clock p.m. on the 21st of Febrcary, 1868." have said, on the 21st and 22d of February, On the 24th of February, three days after1868. My impression is that the notice was ward, he volunteers a written declaration served on the night of the 21st, but, that I may which he now proposes to make evidence in his not make a mistake in this rmatter, I say it was own behalfbefbre this tribunal of justice. Of not served later than the 22d day of February. course it is evidence for no purpose whatever, Now, what takes place? Here is a present- except for the purpose of exculpating him from ment made on the 21st or 22d day of February, the criminal accusation preferred against him. 1868, against this President before.the grand It is for no other purpose. inquest of the nation, and he seeks to put in a Senators Will bear with me while I make:a declaration made after presentment made, further remark. The proposition is to introwhich is certainly tantamount to a warrant for duce his whole message, not simply what he his arrest, for from that moment he was within says for himself, not simply the arguments that the power of the people. Although he fled to he chooses to present in the form of a written the remotest ends of the earth he could never declaration, in vindication of his criminal constop for a moment the progress of this inquiry duct, in violation of the clearest and plainest to final judgment, although personal process provisions of law, and in dire t defiance of the never reached him. It is so provided in the action of the Senate' and of the notice it had text of your Constitution. It is to be challenged served on him on the night of the 21st of Febby no man. ruary but the Senate will bear with me when After these proceedings had been thus insti- I say, what they do know, that this message tuated, two days after the fact of the action of reports the declarations of third persons, and the Senate and three days after the fact of his of course the Senate are asked to accept these, commission of the crime, he enters upon the too, as evidence in the trial of the accused at task of; justifying himself before the nation their bar. fbr a violation of its laws, for a violation of He reports in this message the declarations its Constitution, for a violation of his oath of of third persons whom he has pleased to call office. for his defiance of the Senate, for his his "constitutional advisers." We states their defiance of the people, by sending a message opinions. Without giving their language he to the Senate of the United States on the 24th gives the conclusions, and those conclusions day of February, 1868. What is it, Senators? areto be drawn before the Senate as matter of Is it any more than a volunteer declaration of evidence. I beg leave to say here, in the presthe criminal, after the fact, in his own be- ence of the Senate, that there is no colorable half? Does it alter the case in law? Does it excuse for the President or for his counsel alter the case in the reasoneor.udgment of any coming before the Senate to stay to tohe 363 whether it be communicated in his written of this argument of the learned Managers, but message or otherwise, that he has any right to of every other argument upon the evidence attempt to shelter himself for a violation of the that I have had the honor of hearing from laws of the country under the opinions of any them, I should like to know what application member of. his Cabinet. The Constitution or relevancy the resolution passed by the Sennever vested his Cabinet counselors with any ate on the 21st of February, after the act of such authority, as it never vested the Presi- the President had been completed, and after dent with authority to suspend the laws or to that act had been communicated to the Seaviolate the laws or to disregard the laws or to ate, has onl the issue of whether that act was make appointments in direct contravention of right or wrong? And if the fact that it is an exthe laws, and in defiance of the final action of pression of opinion relieves the testimony from the Senate acting in express obedience to the the possibility of admission, what was this but requirement of the law. an expression of the opinion of the Senate of Mr. Manager BUTLER, (after examining the United States in the form of a resolution the message.) You are right. He reports the regarding a past act of the President? There opinion of his Cabinet. could be, then, no single principle of the law of Mr. Manager BINGHAM. I was aware that evidence upon which this fact put in proof in I was right. There is no colorable excuse for behalf of the Managers could be admitted, exthis proceeding. I say it with all respect to cept as a communication from this branch of the learned counsel, and I challenge now the the Government to the President of the United production of authority from any respectable. States of its opinion concerning the legality of court that ever allowed any man, high or low, his action; and in the same line and in immeofficial or unofficial, to introduce his own dec- diate reply the President communicates to the larations, written or unwritten, made after the Senate of the United States, openly and in a fact, in his defense. That is the point I take proper message, his opinions concerning the here. Ibegthepardon of theSenateforhaving legality of the act. What would be thought detained them so long in the statement of a of the Government that, in a criminal prosecuproposition so simple, and the law of which is tion, by way of inculpating a prisoner, should so clearly settled running through centuries. give in evidence what a magistrate or a sheriff I submit the question to them. had said to him concerning the crime imputed, Mr. EVARTS. Mr. Chief Justice and Sen- and then shut the mouth of the prisoner as to ators- what he had said then and there in reply? Mr. Manager BUTLER. Do we ever have Why, the only possibility, the only argument the close here? for affecting the prisoner with criminality for Mr. EVARTS. I dare say you have; but I what had been said to him. was that, unreplied also have the opportunity to speak. No ques- to, it might be construed into admission or subtion arises of my irregularity, I take it. mission; and to say that the prisoner, when Mr. Manager BINGHAM. No, no. told " You stole that watch," could not give Mr. EVARTS. Mr. Chief Justice and Sen- in evidence his reply, "It was my own watch, ators, the only apology that the learned Man- and I toojit because it was mine," is precisely ager has made for the course of his remarks is the same proposition that is being applied here the consumption of your time, and yet he has by the learned Managers to this communicanot hesitated to say, and again to repeat, that tion back and forth between the Senate and there is not a color of justification for the the President. attempt of the President of the United States Mr. Manager BUTLER. A single word, to defend himself or for the efforts that his Mr. President, uponthatproposition. I think counsel make. if any sheriff should say to a thief, " Sir, whose Mr. Manager BINGHAM. Will the gentle- watch is that?" and the thief could not make man allow me to correct him? I do not think a reply until four days afterward, after he was the gentleman intends to misrepresent me here. indicted, a written statement, then, as to whose Mr. EYARTS. I do not misrepresent you. watch it was, and putting in what his neighbors Mr. Manager BINGHAM. I did not say, said about it, would never be received. I take then, if the gentleman pleases, that there was the illustration; it is a good one, an excellent no colorable excuse for the President to at- illustration. A sheriff says to a prisoner, tempt to defend himself or for his counsel to "Where did you get that watch?" Four days defend him. I did not say that. afterward-after he has been in jail, after the Mr. EVARTS. It all comes to the same indictment is being found against him, and thing. Everything that is attempted upon our while the court is in session, he sends an anview or line of the subject in controversy, un- swer to the sheriff and says that answer must less it conforms to the preliminary view that be given in evidence, and not only that, but he the learned Managers choose to throw down, puts in that answer what everybody else said, is regarded as outside of the color of law or what four or five men said to him, as is the of right on the part of the President or his case in this message. He is not content with counsel, and so it is repeatedly charged. putting in his own answer, but he puts in the Now, if the crime was completed on: the 21st view of the Cabinet. Now, we object. If they of February, which is not only the whole basis wfill fetch the Cabinet here and let us cro$p. 364 examine them and find out what they meant written, and on their own motion introduce it when they gave him any advice, and how they in the courts of justice. came to give it to him, and under what cir- I have another word or two to say in the light cumstances they gave it to him, we shall have of what has dropped from the lips of the couna different reply to make to that. But at pres- sel. He has evaded most skillfully the point I ent we do not want them to put in (to carry took occasion to make in the hearing of the Senout the parallel) what, after he got into jail ate, that here is an attempt to introduce not only and consulted with thd prisoners in the same the written declarations of the accused in his room, he says was his answer, and what the own behalf after the fact, but the declarations prisoners who were with him said about it. of third persons, not under oath, and their Mr. EVARTS. Mr. Chief Justice and Sen- conclusions reported in this message of the ators, every case is to be regarded according 24th of February, 1868. I venture to say that to its circumstances, and you willjudge whether a proposition of the extent of this never was a communication from you to the President of made before in any tribunal of justice in the the United States, communicated to him on United States where any man stood accused the 22d of February — of crime, not simply to give his own declaraMr. Manager BUTLER. The 21st. tions, but to report the declarations of third Mr. EVARTS. I understood you to say that persons in his own behalf and throw them beyou could not say that. fore the Senate as testimony. Mr. Manager BUTLER. Ten o'clock at One other remark. The gentleman seems night on the 21st..to think that the President had a right to send Mr. EVARTS. You got at it then. You a message to the Senate of the United States did not have it before. which should operate as evidence. I concede Mr. Manager BINGHAM. I read it. that the President of the United States has the Mr. EVARTS. Ten o'clock at night on the right under the Constitution to communicate 21st the communication was sent to him. The from time to time to the two Houses of ConSenate was not in session on the 22d, as I am gress such matters as he thinks pertain to the informed, more than an hour, it being a holi- public interest; and if he thinks that is of the day, and this message sent in on Monday, Sun- public interest he may do so; but I deny that day intervening, is not an answer according to there is any colorable excuse (I repeat those the ordinary course of prompt and candid treaty words here) for intimating that the President between the Senate and President concerning of the United States, charged with the commisa matter in difference, or an answer to impu- sion of crime on the 21st of February, 1868, and tation communicated to him. As for the simile proved guilty, I undertake to say, by his written of the President being in prison, we have confession, tothesatisfactionofeveryintelligent removed that by showing that he was not and unprejudiced mind in and out of the Senate impeached until five o'clock in the afternoon in this country, could proceed to manufacture of Monday the 24th; and as to the simile that a defense three days after the fact in the form the Cabinet were his fellow-prisoners in the of a message. That is the point I make on the same cell, the answer is that them have not gentleman here. He says "What importance, been impeached at all. But we do not pursue then, do you attach to the action of the Senate." these trivial illustrations. The matter is within We attach precisely this importance to it: that the intelligence of the court, and must be dis- the law of the land enjoined upon the Presiposed of by it. dent of the United States the duty to notify the Mr. Manager BINGHAM. Mr. President Senate of -the suspension of this officer and and Senators, I desire to say, once for all, to the reasons therefor, and the evidence upon the Senate that I have said no word, and in- which he made the suspension. The law of tend to say no word, during the progress of the land enjoined upon the Senate the duty to this trial, that justifies the assertion of counsel act upon the report of the President so made, for the President that I deny his right to make together with his reasons and the evidence a defense either in person or by his counsel. which he adduced, and come to a decision. In What I insist upon here, and ask the Senate to pursuance of the requirement of the second act upon, is that he shall make a defense pre- section of the tenure-of-office act the Senate cisely as unofficial citizens of the United States of the United States, by an almost unanimous make defenses, according to the law of the decision, came to the conclusion that the realand and not otherwise; that he shall not after sons furnished by the President and the evithe commission of crime manufacture evidence dence adduced by him for the suspension of in his own behalf, either oral or written, by his the Secretary of War were insufficient, and in own declaration, and incorporate in it, too, the accordance with that law the Senate non-condeclarations of third persons and throw it upon curred in the suspension. The law expressly the court as testimony. It has never been provides that if they concur they shall notify allowed in any respectable court in this country the President. The law, by every intendment, upon any occasion. When men stood upon provides that if they non-concur they shall trial for their lives they never were permitted notify the Secretary of War that he may, in after the fact to manufacture- testimony by obedience to the express requirement of the their own declarations, either written or un- act, forthwith resume the functions of the 365 office from which hehas been suspended. They itself; and therefore he must regard the mesdid give him that notice. Why should they sage which was sent to the Senate on the 24th not notify the Executive that he may know with of February as a vindication of the President's whom to communicate, and not be longer act addressed by him to the Senate; and it communicating with the Secretary of War does not appear to the Chief Justice to come ad interim, General Grant, who had been within any of the rules which have been applied appointed, in accordance with the provisions to the introduction of evidence upon this trial. of the act, Secretary of War ad interim in He will, however, take' pleasure in submitting August, 18677 the question to the Senate if any Senator desires The gentleman, I trust, is answered as to the it. [After a pause.] If no Senator desires that importance and propriety of introducing this the question be submitted to the Senate, the evidence; but there was further reasan for it, Chief Justice rules the evidence to be inadto leave the President without excuse before missible. the Senate and before the people for persisting Mr. CURTIS. Mr. Chief Justice, we wish in his unlawful attempt, in violation of the law to put in evidence a table which has been comof the land, to execute the duties of the office piled in the office of the Attorney General, of the Secretary of War through another person which will be found to be, I believe, a conthan Edwin M. Stanton. It was his business to venience in the progress of the trial in the exsubmit to the final decision of that arbiter con- amination of the documentary evidence which stituted by the tenure-of-office actto decide the will be put in. question whether the suspension should become Mr. DRAKE. Mr. President, we cannot absolute or whether it should be rejected..heer the honorable counsel. But here is a man defying the action of the Mr. CURTIS. I will endeavor to make Senate, defying the express letter of the law, myself heard. that the Secretary of War, in whose suspen- The CHIEF JUSTICE. If Senators will sion they had refused to concur, should forth- observe the rules of the Senate, and the genwith resume the functions of that office, pro- tlemen who are in the Chamber and the persons ceeding with his conspiracy with Thomas to in the galleries will abstain from conversation, remove him and to confer the functions of this it will be much easier to hear the counsel. office upon another, regardless of the action Mr. CURTIS. I will read the headings of of the Senate, regardless of the law regulating thistable, so that the nature of its contents may the tenure of civil offices, regardless of the be perceived. It excludes all military and Constitution, regardless of his oath, regard- naval officers, all judges of the constitutional less of the rights of the American people; and judiciary of the United -States, all judges of' he winds up the farce and the defiant guilt of the Court of Claims, all officers whose appointwhich he stands convicted by act before the ment is vested in the President alone, the heads Senate with his written declaration, which is of Departments, or the courts of law, and all of no higher authority than his oral declara- public ministers, consuls, and other agents of tion, made three days after the fact, and asks foreign intercourse. They are excluded, and the Senate to receive it as evidence. with these exceptions "the following is an The CHIEF JUSTICE. There is, perhaps, approximate list of all other executive and Senators, no branch of the law in which it is territorial offices of the United States now and more difficult to lay down precise rules than heretofore established by statutory designation, that which relates to evidence of the intent with their respective statutory tenures." with which an act is done. In the present case Then follows the list of officers the table conit appears that the Senate, on the 21st of tains. In the first place the date of the act of February, passed a resolution, which I will Congress by which the office was created, the take the liberty of reading: volume and page of the Statutes-at-Large, and " Whereas the Senate have received and considered next comes the name or title of the office. The the communication of the President stating that he fourth column shows whether the tenure of the has removed Edwin M. Stanton, Secretary of War, office was for a definite term. Then there is anand had Resignated the Adjutant General of the other column showing whether it was for a term Army to act as Secretary of War ad interim: There- other column showing whetherit was for a term fore, definite " unless sooner removed," the first col"Re8olved by the Senate of the United States, That umn being for a definite term without any qualunder the Constitution and laws of the United States the President has no power to remove the Secretary ification whatever, the second column being for of War, and to designate any other officer to perform a term definite unless sooner removed, the third the duties of the office ad interim." column for a term indefinite and not expressly That resolution was adopted on the 21st of during pleasure, and the fourth for a term inFebruary, and was served, as the evidence before definite, but expressly "during pleasure." you shows, on the evening of the same day. Mr. Manager BUTLER. Before you put The message which is now proposed to be in- that in we wish to object. troduced was sent to the Senate on the' 24th Mr. CURTIS. One moment. The names day of February. It does not appear to the of the offices are given, and then there are Chief Justice that the resolution of the Senate carried out in these columns what tenure becalled for an answer, or that there was any call longs to each of them. Of course this is net upon the President to answer from the Senate offered as strictly evidence, but it has been 366 compiled as a table which it will be found very before me, will examine this and say that from convenient to refer to in argument, but which their examination it is correct, and they make it would be necessary to consult and turn over it a part of their argument, I am content; but a great number of statutes of the United States until that is done I object to its going in eviin order to make use of or arrive' at these re- dence. Until that is done I object, and, as sults. Here they are all brought under the eye, my associate says, we shall object then. It is and we desire to have the table printed so that not evidence in any form. it may be used in argument by counsel on all Mr. EVARTS. Mr. Chief Justice and Sensides. ators, there is but a word to be said on this Mr. Manager BUTLER. I observe, Mr. subject. It imparts into the case no primary President and Senators, that there is one im- evidence. It can be verified by oath as being portant column missing in this table, if it is correctly or honestly made up, if that is reto have any effect on anybody's mind, and quired. We upon our professional credit prethat is a column showing whether the Senate sent it as in our belief a correct statement in a was or was not in session at the time any one tabular form of the distribution of the statuof these officers was removed. tory provisions concerning the tenure of office Mr. CURTIS. It has nothing to do, allow that are in force under the Government of the me to say, Mr. Manager, with removals at all. United States. It is the tenure of office merely. It has no bear- Mr. Manager BUTLER. Allow me, without ing on any question of removal. It merely gives interrupting the gentleman, here to ask whether the statute tenures of these different offices; he has examined it so as to know of his own and there are no facts here stated; everything knowledge that it is so, because that will make is derived from the statutes. All that is in the a great difference to my mind. table is derived from the statutes of the United Mr. EVARTS. So presenting it, the quesStates. tion is, whether you will receive it as the proper Mr. Manager BUTLER. The difficulty that and necessary tabular introduction to the docwe find is that this is proposed to be made a umentary evidence concerning these different portion of the evidence. It maybeprinted and classes of offices in respect to the conduct of appended to the argument of either gentleman the Government in filling or in vacating the or sent as argument to the table of any Sena- places. We did not expect an objection to be tor-precisely as (if I may use it as an illus- made, least of all upon so vague a notion as tration) I sent my brief-as an abstract from Mr. Binckley's political character, which we the laws; but to offer it inrevidence and to have are not prepared to defend, and he is not presit printed except in that way is what we object ent to defend himself. We submit it to the to. The reason for the objection must be ob- Senate. They can treat it, if you please, as a vious. Who has any surety that this is correct? presentation by us now presently of the distriThe commissions are not kept by the Attorney bution of the offices of the United States acGeneral. They are in the Department of cording to statute, in order to introduce our State. practical and actual legal testimony appropriate Mr. EVARTS. This has nothingto do with to each class. It is submitted to the discretion commissions. of the Senate. Mr. Manager BUTLER. Then this is a mere Mr. Manager BOUTWELL. Mr. Presiabstract of the laws? dent and Senators, this paper, upon examMr. EVARTS. Thatiswhatwe havestated ination, does not show that any person was exactly. ever appointed to office or was removed from Mr. Manager BUTLER. Put it, then, in office. tour argument. Why should your abstract of Mr. EVARTS. So we have stated, over and the laws be put in evidence any more than any- over again, that it comes out of the statutes body else's? The difference is this: if either bodily. of my friends on the other side under their Mr. Manager BOUTWELL. Then I am hand and upon their examination put in their utterly unable to see how it can be regarded asbrief an abstract of law I should believe that testimony upon any issue that is before this the law was exactly as it purports to be ab- tribunal. stracted. But they do not claim that they have Mr. TRUMBULL. Mr. President, I move examined this table-that this is their work. that the paper be printed as a part of the proIt is done in the Attorney General's office. ceedings of the Senate. Now I have not so much confidence in every- Mr. EVARTS. That is all we desire. body in the Attorney General's office that I The CHIEF JUSTICE. It will be necesam willing to take his abstract of laws and have sarilyprinted, having been offered bythe counsel it put in these solemn proceedings. If Mr. for the President. The Chair will put the quesBinckley, for instance, the Assistant Attorney tion, however. You who are of opinion that General, should prepare any paper of this sort, the paper be printed will say "ay;" those of I should look it over a great while before I contrary opinion will say I" no." should give it great weight, and, I think, the The motion was agreed to. country would from their knowledge. If Mr. The table thus ordered to be printed is as $tanbery, if either of the learned gentlemen follows: xCimsve;? o all )JiiayadNvlOfficers;whse lt 1 Judgqes of the constitutional Judiciary qf- the, United States; all Judges of the Court of Glaims; al Qfflcer whose apointment is vestedin the President alone;- the Heads of Departments or th cutof la;an Il public Ministers, Consuls, and other agents of foreign intercourse; the followin isnapoiate list of all other Executive and Territorial Officers of the United States now and heretofore, by statutory designation, with their respective statutory tenure, namely: Statutes- -0~ ~ at-Large. D the offictcreatn'Rears Date of act creating ~~~~~~Name or Title of Office. Rmrs the office CS'Cas oa 0,., Oi,. 00 September 2, 1789... 1 65 Secretary of the Treasury........................ - do. - March 3, 1857.......11 220 Assistant Secretary of the Treasury............... do.; - March 14, 1864.......13 26 Additional Assistant Secretary of the Treasury....... - do. - September 2, 1789.... 1 65 Comptroller....................................do. - September 2, 1789.... 1 65 Auditor....................................... do. - September 2, 1789.... 1 65 Treasurer..................................... - do. - August 6. 1846....... 9 59 Assistant Treasurers..-.......................... do. - -4 March 3, 1863.......12 7 61 Assistant Treasurers............................ - do. - September 2, 1789.... 1 65 Register of Treasury............................ - do. - February 20, 1863....12) 6561 Assistant Register.............................. - do. - March 14, 1864.......13 281 May 8. 1792......... 1 280 Commissioner of the Revenue..................... do. - This office was discontinued by act of April 6.1802; rebstablished by act of July 24. 1813; and finally abolished by do. - ~act of December 23, 1817. February 23, 1795.... 1 419 Purveyor of Public Supplies..................... o Abolished by act of March 28, 1812. April 25, 1812....... 2 716 Commissioner of General Land Office............... - do. - March 3, 1817....... 3 366 Second Auditor.................................. - do. -. Marc h 3, 1817....... 3 366 Third Auditor.................-................ - do. - March 3, 1817....... 3 366 Fourth Auditor................................. - do. - March 3, 1817....... 3 366 Fifth Auditor...................................- do. - July 2, 1836......... 5 80 Sixth Auditor............................... -.. - do. - March 3, 1817....... 3 366 Second Comptroller.............................. - do. - May 29. 1830........ 4 414 Solicitor of the Treasury...........................- do. - March 3, 1849....... 9 395 Commissioner of Customs............................ - - do. - June 3. 1864........13 99 Comp~troller of Currency................. I - do. do - July 1, 1862.........12 432 Commaissioner~of Internal Revenue.........-. o M arch 3, 1863.......12 725 Deputy Commissioner of Internal Revenue..........do. - July 31, 1789........ 1 291 fNaval officer................................I..... do.' and March 2, 1799....... 1 627 ~Collector of customs.............................. - do. [By act of May 15, 1820, 3 Statutes, March 2, 1799....... 1 627 Surveyor of customs........................... - do. I582, these offices are limited to a term March 3, 1809....... 2 536 Navy a gent...................................do. - of four years, and the incumbents are May 10, 1800........ 2 75 Receiv'er of public. moneys for lands.................do. j 1declared to he removable therefrom may 10, 1800........ 2 73 Register of Land Office..........................do. Iat pleasure. September 24, 1789.... I 1 92 District attorneys.............................. - do. STATEMENr-continued. ~~~~~~~. "_~ Q.' Statutes-, at-Large.' fI Date of act creating Name or Title of Office. zi 0 Remarks. the office. W Rer 0 c3Oi 0h O." ra _. ~ ~~~ ~ ~~~~~ I... I 0 ~,September 24,1789....1 7Msa 87.Marshals.. do. _ _ Removable at pleasure. September 24,1789 1 93 Attorney General.......................................................... do. March 1, 1823............3 735 Appraisers (for certain ports)...................................... - do.. May 28. 1830.............. 409 Additional appraiser (for New York)............. do.. March 3, 1851............9 629 General appraiser.......................................................... - do. March 3, 1863............ 12 276 Cas hier of internal revenue...................................... - do. July 1, 1862 1..12............ 433 Assessors of internal revenue. - do. July 1. 1862..............12 433 Collectors of internal revenue...... - do. _ April 2, 17929........ 1 246 Director of Mint................................ - do.. a dT e s rro M it.................................. o January 18, 1837.............d. 133 January 18, 1837 5........5. 133 Assayer of Mint... - do. _. January 18,1837 5......5. 133 Melter and refiner of Mint. - do. -. January 18, 1837................... 133 Chief coiner of Mint..... - do. - January 18,1837........ 5 133 Engraver of Mint........... do. - March 2, 1799.. 1 700 Captain revenue cutter..................................... _ do. - March 2,1799............ 1 700 Lieutenants revenue cutter. _ - do. - March 3,1845 5........5 794 Engineers revenue cutter............................................... do. - July 16,1798........1 696 Directors of marine hospitals.................... - do. July 27,1789.............. 29 Secretary of State...... do. March 3,1853.......... 10 212 Assistant Secretary of State...... do. _ July 4,184.............. 13 386 Commissioner of immigration....................................... do. July 4 1864. 13 386 Superintendent of immigration......... - do. July 11, 1862.. 12 531 Judges and arbitrators under treaty of April 7.,1862......- do. August 7, 1789 1...........1 53 Governor of Northwest Territory.................................. - do. August 7,1789........... 1 53 Secretary of Northwest Territory................................. - do. _ August 7, 1789.............1 53 Judges of Northwest Territory................................. Tenure "during good behavior." March 26,1804.. 2 283) Governor of Territory of Orleans and Territory of and Louisiana.................................... do. AugLouisiana........... o................................... do. March 3, 1805.......... 2 331 Judges of Territory o1 Orleans and Territory. of Louisiana...........d....................................do. o. March 3, 1805.. 2 331 District attorney of Territory of Orleans and Territory of Louisiana............................................................. - do. March 3,1805............ 2 331 Marshal of Territory of Orleans and Territory of Louisiana...............................................................- do. April 7, 1798............. 1 550 Officers for Territory of Mississippi- - do. May 7, 180 0 2.. 2 59 O............ fficers for Territory of Indiana................................... - do. January 11. 1805.2...-. 2. 309 Officers for Territory of Michigan............................... - do. February:3, 1809.... 2 i514 Officers for Territory of Illinois......................do. - June 4, 1812......... 2 744 Governor of Territory of Missouri.................. - Ido. - Juno 4,1812......... 2 744 Secretary of Territory of Missouri...........- do. - - June 4, 1812......... 2 746 Judges of Territory of Missouri.................... - do. - - March 2, 181.9....... 3 494 Governor of Arkansas Territory................... - do. - - March 2, 1819....... 3 494 Secretary of Arkansas Tcrritory................... - do. - Marchl 2, 1819....... 3 405 Judges of Arkansas Territory..................... - do. - - i~March 3, 1817. 3 372 Governor of Alabama Territory................... do. - ~ arch 3, 18,17I....... 3 372 Secretary of Alabama Territory................... - - do. - March 30, 1822....... 3 655 Governor of Florida Territory..................... - do. - March 30, 1822....... 3 655 Secretary of Florida Territory..................... - do. - M arch 30, 1822....... 3 656 Judges of Florida Territory......................do. - - March 30, 18212....... 3 656 District attorneys of Florida Territory.............. - - do. - March 30, 1822....... 3 656 Marshals of Florida Territory.................... - - do. - Marc h 3, 1825....... 4 126 Keepers of archives of Florida Territory............ - - do. - Act vests appointment in the PresiApril 20, 1836....... 5 11 Governor of Wisconsin Territory................... - do. - dent alone. April 20. 1836....... S 11' Secretary of Wisconsin Territory.................. - do. - April 20, 1836....... 5 13 Chief justice and associate judges.....................- Tenure "during good behavior." April 20, 1836....... 5 14 Attorney and marshal.......................... - do. - September 9, 1850.... 9 447 Governor of Territory of New Mexico............... - do. - September 9. 1850.... 9 448 Secretary of Territory of New Mexico.............. - do. - September 9, 1850... 9 449 Chief justine and associate justices.................do. - - September 9,1850... 9 450 Attorney for Territory of New Mexico.............. - do. - September 9, 1850... 9 450 Marshal for Territory of New Mexico............... - do. - September 9, 1850.... 9 453 Governor of Utah Territory...................... - do. - September 9, 1850.... 9 453 Secretary of Utah Territory...................... - do. - September 9, 1850.... 9 455 Chief and asosciate justices.......................do. - - September 9, 1850.... 9 456 Attorney and marshal........................... - do. - -~j June'12, 1838........ 5 236 Governor of Iowa Territory...................... - do. - June 12, 1838........ 5 236 Secretary of Iowa, Territory....................... - do. - June 12, 1838........ 5 237 Chief and associate justices.......................do. - - June 12, 1838........ 5 238 Attorney and mnarshial........................... - do. - August 14, 1848...... 9 324 Governor of Oregon Territory..................... - do. - August 14, 1848...... 9 324 Secretary of Oregon Territory.................. - do. - August 14, 1848...... 9 326 Chief and associatejustices..................... do. - - August 14, 1848...... 9 327 Attorney and marshal........................... - do. - March 3, 1849....... 9 404 Governor of Minnesota Territory.................. - do. - March 3. 1849....... 9 404 Secretary of Minnesota Territory.................. - do. - March 3, 1849....... 9 406 Chief and associate justices.......................do. - - March 3, 1849....... 9 406 Attorney and marshal............................do. - March 2, 1853.......10 173 Governor of Washington Territory..................do. - March 2, 1853.......10 173 Secretary of Washington Territory..................do. - March 2, 1853.......10 175 Chief and associate justices.......................do. - - March 2, 1853.......10 176 Attorney and marshal.........do. - May 30, 1854........10 278 Governor of Nebraska Territory~................... - do. - May 30, 1854........10 278 Secretary of Nebraska Territory................... - do. - May 30, 1854........10 280 Chief and associate justices...... do. - - Miry 30, 1854........10 281 Attorney for Nebraska Territory..:.......... - do. - - May 30, 1854........10 281 Marshal for Nebraska Territory.:::: - do. - - Ma~y30, 1854........10 284 Governor of Kansas Territory.............. - do. - - May 30, 1854........10 284 Secretary of Kansas Territory.............- do. - - May 30, 1854........10 286 Chief and associate justices........................ do. - - May 30, 1854........10 287 Attorney and marshal........................... - do. - February 24, 1863....12 66.5 Governor of Arizona Territory.................... - do. - Fbruary 24; 1863....12 665 Secretary of Arizona Territory.................... - do. - February 24, 1863....12 665 Judges for Arizona Territory......................do. - - February 24, 1863....12 665 Attorney and marshal............................do. - STATEMENT-Con'tinued. Q 4-. co 4- -.:Z 0 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~~C ~~~~~~~~~~~~~~~~ d.C Faeo atebray t4ing 2 6 Sreyrg Neale of Arizleona Tfierritory..Redorks. Febuar 28o 16f1f72 Gvenfeoord Tertoy. - d -. - M rarch 24,1861....12 240 Secrvetarygnea of Dakot na Territory....-.......... do. - Merarch 28, 1861....12 2741 Chief and associate justices........................do. - - Merarch 28, 1861....12 242 Attorney and marshal............................- do. - M arch 2, 1861.......12 210 Governor of Neadoa Territory..................... - do. - M arch 2, 1861.......12 210 Secretary of Neadoa Territory..................... - do. - - A March 2, 1861........12 2412 Chief and associate justices........................do. - - March 2, 1861.......12 213 Attorney and marshal...........................- do. - March 3, 1863....... 12 8109 Governor of Nedaho Territory.................... - do. - March 3, 1863.......12 8109 Secretary of Nevdah Territory.................... - do. - - Adutlscesrqaiid March 3.1863.......12 811 Chief and associate justices..........I............ do. - - March 3. 1863.......12 812 Attorney and marshal..........................- do. - - Adutlsccsosqaiid Mayc 26, 1864.......13 869 Governor of Mdaontn Territory...................... - do. - - Adutlsccsosqaiid Mayc 26, 1864.......13 869 Secretary of Mdaontn Territory...................... - do. An-nilsceso uaiid Mayc 26,1864.......13 881 Chief and associate justices........................do. - - May 26,1864........13 89 Atovrney ofo Montana Territory................... - do. An-ni scesr-qaiid May 26, 1864........13 89 Marshal for Montana Territory.................... - do. - May 18, 1796........ 1 464 Surveyor general................................ - do. - March 3, 1803....... 2 233 Surveyor of land south of Tennessee...........-..... do. - April 29, 1816....... 3 325 Surveyor for, Territories of Illinois and Missouri.....do. - March 3, 1823....... 3 755 Surveyor for Territory of Florida....................do. - March 3, 1831....... 4 492 Surveyor general for Louisiana.....................do. - June 12, 1838........ 5 243 Surveyor for Territory of Wisconsin...................do. - September 27, 1850.. 9 496 Surveyor general for Territory of Oregon...............do. - March 3, 1851....... 9 617 and ~.Surveyor general for California..................... - do. - March 3, 1853.......10 244) July 17, 1854........10 306 Surveyor general for Washington Territory........... - do. - July 22, 1854........10 308 Surveyor general for New Mexico................... - -'do. July 22, 1854........10 30(9 Surveyor general for Itansas and Nebraska........... - - do. February 21, 1855....10 611 Surveyor General for U~tah Territory................. - - do. February 28, 1861....12 176 Surveyor General for Colorado Territory............ - - do. - March 2, 1861........12 214 Surveyor-General fbr Nevada Territory.............. - - do. - March 2, 1861........ 12 244 Surveyor General for Dakota Territory............... - - do. - March....1817..:'75 1 Surveyor for North Mississippi Territory............do.. May 26, 1864........13 89 Surveyor General for Montana Territory.........do....July 4, 1836......... 5 117 Commissioner of Patents...........................do. M arch 2. 1861.......12 246 Examiner-in-chief of patents......................- do. - July 9, 1832......... 4 564 Commissioner of Indian Affairs................... - - do. - April 16, 1818....... 3 428 Superintendent of Indian trade................... - - do. April 16, 1818....... 3 428 Indian agents.................................... - - do. - March 3, 1819........3 514 Indian agent................................... - - do. - Marc h 3, 1819....... 3 519 Indian agent.................................. - - do. - May 6, 1822.3 -683 Superintendent of Indian Affairs....................do. - June 30, 1834........ 4 735 Superintendent of Indian Affairs....................do. - Jun e 30, 1834........ 4 735 Indian agents....................................do. - March 3, 1837....... 5 163 Indian agents....................................do. - June 5, 1850......... 9 -437 Superintendent of Indian Affairs..-................do. - Juno 5, 1850......... 9 437 Indian agents....................................do. - February 27, 1851.... 9 586' Superintendent of Indian Affairs.................. do. - - February 27, 1851.... 9 586-7 Indian agents............................. do. - - - M arc h 3, 1852.......10 3 Superintendent of Indian Affairs................ - - do. - March 3, 1855.......10 700 Indian agents.................................. do. - do. - August 18, 1856......11 81 Indian agents.................................. do. - - See act February 27, 1851. March 3, 1857.......11 185 Superintendent of Indian Affairs.................. - - do. - June 2,5, 1860........12 113 Indian agents.................................. do. - - do. See act February 27. 1851. February 8, 1861.....12 13`0 Superintendent of Indian Affairs.................. - - do. - February 8, 1861.....12 130 Indian agents.................................. - - do. - July 1, 1862. 12 489 Indian agents.................................. - - do. - April 8, 1864........ 13 39 Superintendent of Indian Affairs.................. - - do. - April 8, 1864....... 13 40 Indian agents.................................. - do. - March 2, 1833....... 46(22 Commissioner of Pensions' March 3,1835....... 4 779 Commis~sioner of Pensions[ March 3, 1837....... 5 187 Commissioner of Pensions March 4, 1840....... 5 369 Commissioner of Pensions....................... - - do. January 20, 1843.... 5 597 Commissioner of Pensions January 11, 1846.... 9 3 Commissioner of PensionsJ Jan uary 19, 1849. 9 341 Commissioner of Pensions April 29, 1816....... 3 324 Commissioner of Public Buildings.................. - do. - Abolished, actAugust 26, 1852......10 30 Superintendent of Public Printing................. do. - - - May 15, 1862........12 387 Commitssioner of Agriculture...................... - - do. - September 22, 1789.. 1 70 Postmaster General August 4, 1790....... 1 178 Postmaster General March 3, 1791....... 1 218 Postmaster GeneralI February 20, 1792.... 1 234 Postmaster General..............................do. - May 8, 1794..... 1 357 Postmaster General April 30, 1810. 2..... 593 Postmaster General M arch 3, 1825....... 4 102 Postmaster Generaldo July 2, 1836......... 87 Deputy Postmasters.........do..................... Marci 3, 1853.......10 255 Assistant Postmaster Generals......................- do. - April 300, 1798....... 1 553 Secretary of the Navy............................- do. - July 31, 1861........12 282 Assistant Secretary of the Navy....................- do. - July 5, 1862.........12 510 Chiefs of Bureaus in Navy Department............. do. - - August 7, 1789....... 1 49 Secretary of War............................... - - do. - May 8, 1792......... 1 280 Accountant of War Department.................... - d-o - Abolished by act of March 3, 1817. February 24, 1855....10 612 Solicitor Court of Claims.......................... - do. - August 6, 1856.......11 30 Assistant solicitor Court of Cldims....................- - For four years, "unless sooner removed by the President." March 3, 1863.......12 766 Solicitor Court of Claims............d;............do. - M arch 3, 1863.......12 766 Assistant solicitor Court of Claims...................d. d. - " Shall hereafter be appointed," &c. March 3, 1863.......12 766 Deputy solicitor Court of Claims..................)o STATEMENT-Continued. Statutes- o,n Date of act creating' the office. _ ____Name or Title of Office. Rears ~~~,;~~~$M o July 4, 1836......... 5 109 Principal clerk public lands....................... - do. - July 4, 1836......... 5 109 Principal clerk of private land claims.........-......do. - July 4, 1836......... 5 110 Principal clerk of Surveys.........................do. - July 4, 1836......... 5 111 Recorder of General Land Office..-..................do. - July 4, 1836......... 5 7111 Solicitor of same..-............................ - do. - Abolished by act ofJuly 4, 1836......... 5 111 Secretary to sign Land Patents.................... - - do. - March 3, 1849....... 9 395 Secretary of the Interior......................... - - do. - March 14, 1862......... 12 369 Assistant Secretary of the Interior................. - - do. - February 20, 1863....12 656 Solicitor of War Department...................... - - do. - Abolished by act ofMarch 2, 1865.......13 468 Solicitor of' Navy Department..................... do. - - - March 3, 1865.......13 508 Commissioner Freedmen's Bureau.................. - - do. - March. 3, 1865.......13 508 Assistant Commissioners of Freedmen's Bureau....... - - do. - March 3,1835....... 4 7741 February 13, 1837.... 5 147 July 3, 1852.........10 11 Superintendents, treasurers, and other officers of April 21, 1862.......12 382 branch mints................................- - do. - March 3, 1863.......12 770 July 4, 1864.........13 382 March 2, 1867.......14 434 Commissioner of Education....................... - - do. - August 3, 1861.......12 287 Assistant Secretary of War....................... - - do. - February 20, 1865...13 431 Second Assistant Secretary of War................. do. - - - June 27, 1866........14 74 Commissioners to revise statutes................... do. - - - April 16, 1862.......12 376 Commissioners Emancipation, District of Columbia... do. - - February 19, 1864....13 12 Warden of jail, District of Columbia............... do. - - - May 20, 1862........12 403 Commissioners to codify laws, District of Columbia... do. - - - February 27, 1801.... 2 1071 JsieofpaefrDsrcofClm ad. - - - May 17, 1848........ 9 229f. utcso ec o ititofClmi......... o February 27, 1801.... 2 107 Register of wills, District of Columbia.............. - do. - February 14, 1863....12 651 Register of deeds, District of Columbia..-.......... - do. - Treaty June 5, 1854.. 10 1090 Commissioner (reciprocity treaty).................. - do. - August 11, 1856......11 42 Commissioner, chief astronomer and surveyor to carry into effect treaty of June 15. 1846............. - do. - June 27,1864........13 195 Commissioner (Hudson Bay and Puget Sound)..-..... - do. - February 20, 1861....12 145 Commissioners under treaties with Colombia, &c...... - do. - June 30, 1864.......13 323j March 3, 1851....... 9 631 Commissioner California Land Claims............... - do. - - 373 Mr. CURTIS. Mr. Chief Justice, we now The Hon. Samuel Dexter, esq., of Massachsetts, desire to put in evidence rather in a more to be Secretary of the Department of War, n the place of the Hon. John Marshall, nominated for proas been doneh he retofore, motion to the office of State. although the substantial facts have been brought Whereupon, believe, by the honorable Resolved, That they do advise and consent to the appointments agreeably to the nominations respectManagers themselves, the proceedings which ively. took place at the te of the removal of Mr. Attest: SAMUEL A. OTIS, Secretary. Pickering by Mr. Adams, accompanied by a The CHIEFJUSTICE. The executive clerk certificate that the letters to and from various of the Senate desires to correct a Statement persons between the 29th of June, 1799, and madein respect to the nomination of Mr. Ewing. the 1st of May, 1802, have been for many years Mr. Clarke will make the correction. missing from the files of the Department of D.. C. CLARKE recalled. State. The correspondence itself; therefore, The WITNESS. I stated in my examination cannot be produced from the originals, or from he INa Me copies of the originals, but no doubt they are that the nomination of Mr. cretlters were read thSenate on the 22d of February. I did dayyth thonaletManagweresfromavolumeof so in consequence of a memorandum which I Mr.b Aas wnork Theyare thesame letters.o found at the bottom of my sheet. I find, by The letrs areo There; they are not in the investigation since, that I made that memoDheeptment; butty are;printed infrom the act that it was brought toe Dand mwere re r the volume the other day. the Senate Chamber on the 22d of February wr. Meanaro t uLER. Wait a mtoment. by Mr. Moore, but the Senate was not in sesWe are not certain about this. [After an ex- sion, and he returned with it th ete amination of the documents offered in evi-Mansion. He brough t itu it n o dence.] Do I understand the counsel for the message and the message President to say that these papers show any- relation to the removal of Mr. Stanton on the thing different from what was shown by the 24th, and it was then submitted to the Senate. By Mr. CURTIS: Mr.aC I N.I Question. I wanted thao see if I correctly underMar waIS. Nbefore th at bte stand you. I understand your stenatemen, but nowe the mathe fal dowcuments to be put in. to be that Colonel Moore ought it and deMr.te MaaerfoBULER. The only difficulty livered it to you on the 22d, but the Senate had ULER. The only difficulty journed? I find is this: that you do not put in all; you Adjourned? do not put in what was done on the 12th of Ans er.i no, seivr. He brouh ituponth May as well as the 13th of May, 1800. Qu esdidonot delivrouh itt e Mr. CURTIS. We put in what there is here. Qeto.H ruh t Mr. EVARTS. You have already put in Answer. He brought it on the 22d, but the the other. Senate was not in session, and he took it back Mr. Manager BUTLER. Very good. to the Executive Mansion. Mir. CURTIS. We offer these documents Question. And on the 24th he returned, and from the Department of State. then it was forma~lly brought in? Mr. Manager BUTLER. Very well. Answer. That is it. The documents thus offered in evidence are By Mr. Manager BUTLER: as follows: Question. How do you know that he brought UNITED STATES OF AMERICA, it here; of your own knowledge? Department of StateAnswer. Only by the information of Colonel Departmnt of otate:Moore. To all to whom these presents shalt come, greeting: usin hnalyuhv entligu I certify that the document hereunto annexed is, a QusinThnalyuavbentlngs true copy, carefully examined and compared with is what Colonel Moore told you? the original resolution of the Senate, dated 13th May, Answer. Yes, sir; that is, all in regard to the 1800, and filed in this Department, confirming John nomination. Marshall of Virginia, to he Secretary of State, and Samuel Ilexter, of Massachusetts, to be Secretary of Mr. Manager BUTLER. Very well, sir; the Department of War. w ontwn n oeo ooe or' In testimony whereof I, William H. Seward, Scc- wedonformtio want aymoreouolnlMor.,retary of State of the United States, have here-inomtnfrmyu unto subscribed my name and caused the seal of the Mr. CURTIS. We will call Colonel Moore. Department of State to be affixed. Done at the city of Washington this 5th day of WILLIAm G. MOORE recalled. [a. s.] March, A. D. 1868, and of the independence By Mr. CURTIS: of the United States of America the ninety- Qruestion, (handing to the witness the messecond. WILLIAM H. SEWARD. sage nominating Thomas Ewing, sen., as SecUNITD SATE OF MERCA, retary of W~ar.) What is the document you IN SENATE, May 13. 1800. hl nyu ad The Senate proceeded to consider the message of AnwrThnoiaontteSntef the President of theUnitedStates of the 12th instant, Thomas Ewing. sen., of Ohio,, to be Secretary and the nominations, contained therein, of for the Department of War. The Hon. John Marshall, escj., of Virginia, to be Question. Did you receive that from the Secretary of State, in the place of the Helm. TimothyPrsdnofteUidSae? Pickering, esq., removed.PrsdnofteUidSae? 374 ~~Answer. I did. ~Answer. He asked me upon what date I had Question. On what day? delivered the message. I told him the 24th. Answer. On the 22d day of February, 1868. Mr. CURTIS. I how offerin evidence, Mr. Question. About what hour in the day? Chief Justice, a document which I desire to Answer. I think it was after twelve o'clock. be read by the Clerk. Question. And before what hour? Mr. Manager BUTLER. Allow me to see Answer. And before one. it before it is read. Question. Between twelve and one? Mr. CURTIS. Certainly. Answer. Between twelve and one. [The document was handed to Mr. Manager Quetion. What did you do with it? BUTLER and examined by him.] Answer. By the direction of the President Mr. Manager BUTLER. We have no oI brought it to the Capitol to present it to the jection. ~~~~Senate. ~The CHIEF JUSTICE. The Secretary will Question. About what time did you arrive read the document. ~~~~~~here ~? ~The Secretary read as follows: Answer. I cannot state definitely, but I pre- UNITED STATES or AMERTCA Department of State: smabuaqurr past one. To all to whom these presentshall come, retin: Question. Was the Senate then in session, or I certify that the document hreunto annexed is a true copy, carefully examined and compared withthe Answer.d Itrhd, afteravroriginal record of this Department, authorizing a fter a very brief session, "John Nelson, Attorney General, to discharge the ~~~~~adjourned.~~ ~duties of Secretary of State ad interim until a Question. What did you do with the docu- cessor to A. P. Upshur shall be appointed," and that id you do with this appointment was made during the session of the m ent, in consequence? Senate. Answer. I returned with it to the Executive I further certify that the confirmation by the Senate of John C. Calhoun to succeed Mr. Nelson is a Mvist to the House of Repre- true copy of the original filed in this Department. ~~~~~~~~~~~sentativestimony whereof I, William. Seward SeQuestion. Were you apprised before you retary of State of the United States, have hereunto. appre br y. subscribed my name and caused the seal of the Dereached the Capitol that the Senate had ad- partment of State to be affixed. ~journed?,Done at the city of Washington the 6th day of Answer. I was not. [.. ] April, A. D. 1868, and of the independence of E, the United States of mrt h iey Question. What did you do with the docu- second. WIIA t net ~~..1sment subsequently? 1''.. A Answer. I returned with it to the Executive The Hon. John Nelson, Attorney' General of the United States, will discharge the duties of Secretary Mansion, after having visited the House of of State ad interim until a successor to the Hon. A. Representatives. P. Upshur shall be appointed. Question. Was anything more done with the The Department of'State will be put into mourning for the death of the Hon. Abel P. Upshur, late Seedocument by you, and if so, when, and what retary of State; and all foreign envoys and minisdid you do? tars of the United States, and other officers connected Answer. I was directed by the President on with the Department of State, whether at home or abroad, will wear the usual badges in token of grief Monday, the 24th day of February, 1868, to and respect for his memory, during the period of return and deliver it to the Senate. thirty days from the time of receiving this order. Question. What did you do in consequence? February 29, 1844. JOHN TYLER. Answer. I obeyed the order. IN-SENATE OF THlE UNITED STATES, March 6, 1844. Cross-examined by Mr. Manager BUTLER: R esolved, That the Senate advise and consent to Question. Was that open and as it is now, the appointment of John C. Calhoun, of South Caroor in a sealed envelope, when you took it? lina, to be Secretary of State in place of Abel P. UpAnswer. In a saled envelope.shur. deceased, agreeably to thc nomination..Answe. In seald envlope.Attest: ASBURY DICKINS. Qstestion. Did you put it in yourself? Secretary. Answer. I did not. Mr. CURTIS. I now offer in evidence Question. Did you see it put in? another document, which I also wish to be Answer. I did not. read by the Clerk after it has been inspected. Question. How do you know what was in [The document was handed to the Managers. ] the envelope? Mr. Manager BUTLER. We have no ohAnswer. It was, I believe, the only message jection to this. I brought that day; I gave it to the clerk, who The CHIEF JUSTICE. The Secretary will sealed it and handed it to me. read the document. Question. And then did you unseal it again The Secretary read as follows: at all; or did you examine it to see what was UNITED STATES OF AMAERICA, in it until you left it here on the 24th? -Department of State: Answer. I did not, to my recollection. To all to schom these presents shall come, greeting: Quesion.Did ou sow i to nyboy hee tI certify that the document hereunto annexed is a Quesion.Didyou howit t anyodyheretra copy, carefully examined and compared with in the House on that day? thp original record of this Department, authorizing Answer. No, sir; it was sealed. Winfield Scott to act as Secretary of War ad interim, Question. ave you soken thisduring the vacancy occasioned by the resignation of Quesion Hav yo spoen hismorning George W. Crawford, and that this appointment was with Mr. Clarke here upon this subject? made during the session of the Senate. 375 I further certify that the confirmation by the Sen- time this acting appointment was made whether ate of Charles M. Conrad as Secretary of W'ar tosuc-he had resigned or ran away, or what? ceed General Scott is a true copyof the original filed Mr. CURTIS. I am n in this Department. Mr. CURTIS. I am not informr.CUTI.ana' In testimony whereof I, William t H. Seward, Sec- not speak either from the record or from recolretary of State of the United States, have hereunto lection. There was acommissionsentupwhich subscribed my nam and caused the seal of the Dc-has not yet been read. partment of State to be affixed. Done at the city of Washington this 6th day of The Secretary read as follows: r April, A. D. 1868, and of the independence of theUsilted tates of America the ninety- UNITED STATES OF AMFRICAt of Ste WILLIAM HI. SEWARiD.ea ~~second. WILLIAM -~T. SEWARD. To lt whom these psresents shll co, greeting I certify that the document hereunto annexed is a I hereby appoint Major General Winfield Scott to true copy, carefully examined and compared with act as Secretary of War ad interims during the va- the original record in this Department. cancy occasioned by the resignation of the lIon. In testimony whereof I, William I Seward, Se~~George W. Crawford. ~retary of State of the United States, have hereunto MILLARD FILLMORE. subscribed my name and caused the seal of the DJ~~~~~~uly 23, 1850. ~partment of State to be affixed. Done at the city of Washington this 6thday of [Extract.] April A. I)., 1868, and of the independence of IN EXE4XCUTIVE SESSION, [L. s.] the United States of America the ninety-seSENATE OF THE UNITED STATES, ond. WM.. SEWARD. August 15, 1850. ABRAHAM LINCOLN Resolved, That the Senate advise and consent to PesIdentof the Unit the appointment of the following named persons T esa the n ts get agreeably to their nominations respectively:o all shallsee the se re.* * * * * * * *.Know ye, that reposing special trust and confidence s. C, of t S o in the patriotism, integrity, and abilities of Caleb bCrearys Cofa, or te State o Louisiana, to B. Smith, of Indiana, I have nominated, and by and AttSecest o ASBURY DICKwith the advice and conseit of the Senate do apA:A SBURY DICKINS, p)oint, him to be Secretary of the Interior of the Secretary. United States, and do authorie and empower him Mr. CURTIS. I now offer in evidence three to execute and fulfill the duties of that office according to law. And to have and to hold the said office papers all of which relate to the same tranls- with all the powers, privileges, and emoluments action. I have put them in arr envelope, so thereunto of right appertaining unto him the said that they may be kept together. Caleb B. Smith, during the pleasure of the President Tepp ehanded to the Managers of the United States tfor the time being. anded to the Managers In testimony whereof I have caused these letters and examined by them.] to be made patent and the seal of the United States Mr. Manager BUTLER, (selectingone of the to be hereunto affixed. Given under my hand, at the city of Washington, papers.) We object to this memorandum. We the 5th day of March, in the year of our Lord do not object to the otiler papers. The memo- [a. s.] 1861, and of the isidependence of the United raudum of Mr. Browning is not any better than States of America the eighty-fifth. anybody else's memorandum. ABRAHLAM LINCOLN. anybody else's memorandum. By the President: Mr. CURTIS. It merely states a fact wvhich WILLIA1 HI. SEWiARD, Secretary of State. appears by a comparison of the date of the MrCUTS Ino ofeinvdnca commission with the date of the ad inter-im document which relate-s to the removal from appointment. It is immaterial, office of the collector and appraiser of mnerMr. Manager BUTLER. Very good. We chandise at tile city of Philadelphia, and also have no objection to thle other papers. a copy of the commissions issued to their -sacThe CHIEF JUSTICE. The Secretary will cessors. read the documents. [The documents were handed to the ManMr. C URTIS. We offer those which are not agers and examined by them.] objected to. Mr. Manager BUTLER. Our objection to The Secretary read the documents.,as follows: this, Mr. President, is that this is not an. act DEPARTMENT'OF THE INTERIOR, of any Presideut or any person having authorWASHINGTON, D. C., April 7, 1868. itv to discharge officers. What is offe~red is a I, 0. H. Browning, Secretary of the Interior, do lteofneMC, itc on, cigSce hereby certfy that the annexed paper is a true copy t fromi the rcords of this Department. try of the Treasury, directed to the appraiser In testimony whereof I have hereunto subscribed in Philadelphia, in which he recites a fact. [a ]my name and caused the seal of the Depart- That is what is offered in evidesice-the act of ment to be affixed the day and year above MeinokYugacngSrtryfth written.MclnokYugacigSceayfth 0. HI. BROWNING, Treasury-which he writes to the collector of Secretary of the Interior, customs at Philadelphia, asking him to hand [Copy.] ~~~a letter to Richard Coe, Esq., saying that lie EXEc TIEpANSON is directed to say that he does not want his WASHINGTON, Jansuary-10, 1861. services any longer. I do not see how it bears I herehy appoint Moses Kelley to be acting Secre- on this issue. The fact that somebody was tary of the Interior until other arranrements ean be commissioned we do not object to; but we do mnade in the premises. JAMES BUCHANAN. object to this letter of acting Assistant SecreMr. Manager BUTLER. May I ask the tary McClintock Young. counsel if they have amiy record there of what Mr. CURTIS. Do'you want evidence of became of the Secretary of the Interior at the the flact'that he was acting Secretary? 376 Mr. Manager BUTLER. No, sir; I have The Secretary read as follows: that fact among these commissions of my own. UNITED STATES OFAERIKA, Mr. CURTIS. The documents are certified TREASURY DEPARTMENTApri71868. regularly by the Secretary of the rTreasury as Pursuant to the act of Congress of the 22d of Febcomin from the records of that Department. ruary, 1849, I hereby certify that th annexed ar The documents themselves consist of two let- true and correct copies from thc records of this DeTeeselves consist of two let- partment of the eommissions issued to Richard Coe ters signed by MClintock Young, who it is and Charles Francis Breuil, as appraisers of meradmitted was the acting Secretary of the Treas- chandise for the port of Philadelphia, in the State the time when he signed these letters. o Pcnnsylsvania,. ury at ~ ~ ~~9In witness whereof I have hereunto set my hand We offer them in evidence to show acts of re- and caused the seal of the Treasury Departmoval of these Treasury officers, the appraiser [L. S.] ment to be affixed on the day and year first above written. HMCLOH and the collector in Philadelphia, by the act aSoveowritten. c teCL ~, acting ~~~~~~~~~~ Secretary of theTrar. of MeClintock Young, acting Secretary of the Mr. CURTIS. It is only necessary to give Treasury, who says that he proceeds "by the t d T is ident."~~~~the dates of' those commi ~~~~~~n r rdir.readction of them at large. MB LER. The difficulty we ren t The SECRETArtY. The commission of Richfind is not removed. It is an attempt by ard Coe is dated the 25th day of June, 1841; McCntock Young, acting Secretary of the the commission of Charles Francis Breuil is Treasury, to remove an officer by reciting that ated the 30th day of Agust, 1842. he is'directedytheresidentso to do. If this r. CURTIS. Now read the letters. is evidence, we have to go on and try the ques- The Seetary read as follows: Clin~~~~~Tokontdti She Secretary read as tz tion of the rinht of McClintock Young to do this en appraiser is one of the TREASURY DEPARTMENT, August 17,1842. ro eers athat a S of the SIR: I am directed by the President to inform you, the "in r o s tt that your services as appraiser of merchandise for Treasury may remove, or the President may the port of Philadelphia are no longer required. remove without the advice and consent of the I am, very respectfully, &c. Senate; we have to go into a new series of in- MCLINTOCK YOUNG, vestigations. Itisnot an act of the President; RICHARD COE Acting Seco, it is not a act of the head of a Department; Appraiser of Merchandise, Philadelphia. and it is remarkable as the only case that can be found of the kind so far as we know; and if TREASURY DEPARTMENT, Agst7,1842. it was evidence at all, it would rather prove the in: I have to request that you will deliver the inclosed letter to Richard Coe, Esq., appraiser at rule by being the exception. Philadelphia. Mr. CURTIS. I understand it to he admlit- m,&. MeCLINTOCK YOUNG, ted that N cClintock Young was the acting Ooleo fte Acting Secretary of the Treasury. Secretary of the Treasury. fnsors hiaephia. Mir. Manager BUTLER. Yes, sir; I have Mir. CURTIS. I now offer in evidence his appointment, documents from the Navy Department. Mr. URTS. tae tis at o hi, tere [The documents were handed to the Manfore, as if it had been done by a Secretary of, agersfoexmntn. the Treasury. Mr. STEWART, (at two o'clock and fifteen Mr. Manag,,er BUTLER. Yes, sir. minutes p. in.) I move that the Senate take Mr. CURTIS. He says that he proceeds by a recess for fifteen minutes. theorder ofthePresident, andltake ittobewell Mr. SUMNER. I move an amendment to settled judicially and practically that where that, that business be'resumed forthwith after ever the head of a Department says he acts by the expiration of fifteen minutes. the order of the President hie is presumed to ThCHEJU IE. hehifusc, tell the truth, and it requires no evidence to before putting the question on that amendment, show that he acts by the order of the President. begs leave to remind Senators how extremely No such evidence is ever preserved, no record difficult it is to resume the business of-the Seais ever made of the direction which the Presi- ate unless the Senators are present. The Chief dent gives to one of the heads of Departments, Justice will put the question on the amendas I understand, to proceed in a transaction of ment. this kind. But when a head of a Department The amendment was rejected. says ",by order of the President I say so -and The CHIEF JUSTICE. The question now so" all courts and all bodies presume that he is on the motion of the Senator from Nevada. tells the truth. The motion was agreed to. The CHIEF JUSTICE. The Chief Justice The CHIEF JUSTICE resumed the chair thinks that this evidence is admissible. The at the expiration of fifteen minutes, but there act of a Secretary of the Treasury is the act of ciot being many Senators present business was the President unless the contrary be shown. not resumed till two o'clock and forty-five He will put the question to the Senate, how- minutes p. mn.,-when the Chief Justice said: ever, if any Senator desires it. [After a pause.] Senators will please give their attention. The evidence is admitted. Do you desire to Counsel for the President will proceed with have it read? the defense. Mr. CURTIS. If you please, your Honor. Mr. Manager BUTLER. Atthe adjournment 377 Iwas about objecting to the papers offered from Then Johnston was lost on the voyage, and the Navy Department. The ground of my objec- on the 29th of April, 1841, another man wa tion is this: the certificate appended does not appointed; but the whole value, I say, is gone certify them to be copies of records from the because they have not given us the record Navy Department, but simply certifies " that they have only given us memoranda, and it is the annexed is a true statement from the rec- so stated, "memoranda of records." Who lords of this Department " signed by " Edgar has any commission to make memorandafrom T. Welles, chief clerk," and then there is an the records for evidence before the Senate? attestation tat he is chief clerk. Then the And then in the certificate the word "copies beading of the paper is "memoranda," so is stricken out, and the words are written in: that the paper is not an official copy of the " A true statement of the records "-a staterecord, but is a statement made up by the ment such as Mr. Edgar T. Welles chooses to chief clerk of the Navy Department of certain make, or such as anybody else chooses to make. matters which he has either been asked or I never heard before that anbody had a right voluteered to do; and the difficulty about it to come and certify memoranda of records, and is that it is informal, and they leave out here put it in as evidence. That is one paper. many of the things which are necessary to Then the next paper, although it purports to ascertain what bearing this has on the case. contain true copies of records from the office, For instance, Thomas Eastin, Navy agent at consists of nothing but letters about the apPensacola, it is stated, was, on the 19th of pointment and removal of officers, Navy agents December, 1840, dismissed by direction of the again; but being so removed and appointed President for failing to render his accounts only a portion of the correspondence is given and PurserSo-and-So was ordered to take his us. When the nominations were sent in is not place. It does not appear what then was given us. Ido not mean to sa that myfriends done, whether the Senate was in session and on the other side chose to leave anything out; whether the President sent at the same mo- but whoever prepared this for them has chosen ment an appointment to the Senate. All that to leave out the material facts whether the appears is that on the 29th of April, 1841, the Senate was in session, or whether other names President appointed Jackson Morton, Navy were sent in. Now, the question is if you are agent at Pensacola. He might have sent in going to take excerpts from the records. Jackson Morton's name at the very moment I want to call the attention of the Senate that he dismissed this man. Non constat; it still further to the fact that all the officers who does not appear at all. are covered by these papers they have offered I only put this as an. illustration. These are are appointed under the act of May 15, 1820, not copies of records, but they are certified to for four years. That act provided that: be a statement made up from the records by "~All district attorneys, collectors of the customs, somebody not under oath, and who has no naval officers and surveyors of the customs, Navy right to make statements, and they are wholly agents, receivers of public moneys for lands, regisillusry. ccasonaly thee ar memrand ters of the land offices, paymasters in the Army, the apothecary general, the assistant apothecaries genin pencil upon these papers made by other eral, and the commissary general of purchases, to be persons. appointed under the laws of the United States, shall Mr. CURTIS.. We can apply India-rubber be appointed for the term of four years, but shall he there, and that would remove that objection. removable from office at pleasure." Mr. Manager BUTLER. Yes, sir. The So that their very tenure of office settles it difficulty is not so much what is stated here as that they are removable " at pleasure," so enwhat is left out. Everything is left out that is acted by the law which creates them; and now of value to the understanding of this case. the gentlemen are going to show that under Here are mnemoranda made up from the records that, in some particular instances, officers were that A B was removed, but the circumstances removed at pleasure, but not to show how they under which he was removed, who was nomin- were removed, the manner of their removal, ated in ~is place, and when that person was and tbei. to attempt to show that by memonomninated do not appear. It only appears that randa made by Edgar T. Welles, certified by,somebody was appointed at Pensacola. Gideon. Welles to be chief clerk. Is that evi*Mr. JOHNSON. Are the dates given, Mr. deuce? Manager? Mr. CURTIS. I understand the substance Mr. Manager BUTLER. The dates are of the objections made to these documents to given in this way: it is stated that on thme 19th be two. The first is that these are only memof December, 1840, a person is removed, and oranda from the records and not copies, not then on the 5th of January one Johnston was full and formal copies from the records. It is informed that he had been appointed. He said that it is not proper to adduce in evidence must have been nominated and gone through such statements of the results shown by thethe Senate and been confirmed in the mean- records; that instead of giving a table containtime. Non constat but that he was nominated ing the name of the officer, the office which he at this very moment; and if he was nominated held, the day when removed, and the person at the very moment the other man was re- by whose order he was removed there should moved, the value of it is gone as a precedent. -be an extended copy of the entire act and all 378 the papers relating to it. Well, in the first of proof to ask the Senate to direct its proper place, I wish the Senate to call to mind that officer to make a certificate from its records of the only document of this character relating the beginning and end of each session of the to removals from office which has been put in Senate from the origin of the Government by the honorable Managers is a document from down to the present time. That is what we the Department of State, which containis ex- shall call for at the proper time, and that will actly this memorandum of facts: supply that part of the difficulty which the "ScheduleB. gentleman suggests. The other part of the "List of appointments of heads of Departments difficulty which he suggests is, that it does not made by the President at any time during the ses- appear that the President did not fill up these sion of the Senate: "Timothy Pickering, Postmaster General, June 1, removals by immediate nominations when they 1794. were made during the session of the Senate. Samuel L. Southard, Acting Secretary of the It does not appear either way. If he desires Treasury, January 26. 1829." T ry, January 2, 19." to argue that the President did fill them up by And so on. That is, it is a list extracted out immediate nominations, he will find the nominof the records in the Department of the Sec- ations and put them in undoubtedly. The retary of State containing the names of the records of the Navy Department, from which officers, the offices they held, the date when this statement comes, can furnish no informathey were removed, and the authority by which tion on that subject, and therefore it is not they were removed. defective in that particular. Mr. JOHNSON. How is it certified? Mr. Manager BUTLER. The counsel for Mr. CURTIS. It is simply certified by the the President, I think, judge well, that when Secretary of State himself. they can find that we have taken any particuMr. Manager BUTLER. In what language? lar course that must be the right course and Mr. CURTIS. This is a copy which I hold the one they ought to follow. We certainly in my hand, and I am not prepared to say how accept that as being the very best exposition it is certified; but it is in evidence, and can be of the law so far as wb are concerned. But the seen. I think it will be found to be simply a difficulty is this: we offer testimony sometimes letter from the Secretary of State saying that that is not objected to; and I asked my learned there were found on the records of his Depart- friends, I think, in the case referred to, whether ment these facts, not any formal certificate of they objected to that evidence, and they made extracts from the records. Ift; however, the no objection. If they had, I might have been Senate should think that it is absolutely neces- more formal; but that does not meet the diffisary, or, under the circumstances of this case, culty quite. The difficulty I find is that they proper to require these certified copies of the go to the wrong sources of evidence. Evidence entire acts, instead of taking the names, dates, of the removal and appointment of officers and and other particulars from the records in the the affixing of the seal to commissions is to form which we have thought most convenient, be sought for only in the State Department. and which certainly takes up less time and No officer who is removed or appointed by and space than the other would, we must apply for with the advice and consent of the Senate, who and obtain them. If there is a technical diffi- holds his commission under that tenure, can culty of that sort it is one which we must be appointed or can be removed without all remove. the circumstances appearing in the State DeMr. JOHNSON. Will the counsel state partment; and there is the place they should what the act of Congress is which makes these go for this evidence. If they would go to the certificates evidence? State Department, they would get it all; they Mr. CURTIS. There are several acts of would find out when he was appointed, when Congress; but in regard to the Navy Depart- he was removed, when his successor was apment, if I recollect aright, it is in effect that pointed, when he was nominated, and everycopies of the records and extracts from the thing precisely as they have in the case of Mr. records may be certified. I think that is the Pickering. law. Mr. CURTIS. Doesthehonorable Manager The substantial objection which the learned understand that under the laws of the United Manager undertook to state was that this paper States all these officers must be commissioned which we now offer would'be illusory, and the by the Secretary of State, and that the facts reason is, because, although it shows the name appear in his Department, including the officers of the officer, the office he held, the fact of his under the Interior, the Treasury, the War, and removal, and the date of the removal, it does the Navy Departments? not show whether the Senate was then in Mr. Manager BUTLER. With the single session, and it does not show what the Presi- exception of the Treasury, I do. dent did in connection with or in consequence Mr. CURTIS. I do not. of that removal in the'form of a nomination to Mr. Manager BUTLER. I do so understand the Senate. How can the records of the De- it, and it will so appear, I think. But at any partment of the Navy show those facts? They rate when the gentleman takes these commisappear here on your records, and we propose sions he will find that the commissions all when we have closed the offer of this species emanate with the seal of the United States and 379. the signature of the Secretary of State upon I have not seen any statute which gives any them. The testimony that he offers is not the right to certify extracts of records. If these commissions of these officers; and to show that were extracts of entire records they would do; that is the fact I only appeal to his own papers but these are memoranda; that is, the gloss, here. Instead of sending us the commissions the interpretation, the collation, the diegesis of these officers, what is the evidence of the of the clerk of that Department of the recappointment? ords. NAVY DEPARTMENT, March 24,1838. The CHIEF JUSTICE. The Chief Justice SIR: The President of the United States, by and will sumit the question to the Senate. with the advice and consent of the Senate, having The Chief Justice put the question, and deappointed you Navy agent for four years from the dclared that the noes appeared to have it. 22d of March, 1838, I have the pleasure to inclose Mr. SHERMAN. I call for the yeas and herewith your commission, dated the 24th of March,r. ERMAN. call for the yeas and 1838. nays. I think proof of this kind ought not to I am, respectfully, yours, M. DICKERSON. be kept out on a technical ground. LEONARD JARVIS, esq., ~avy Agent, Boston. Mr. HENDRICKS. I wish to inquire whether The evidence that they give us of the ap- the objection on the part of the Managers repointment is a letter of the Secretary, reciting quires that the entire documents relating to the the fact of the commission. If they had gone subject in the Departments shall be produced; to the State Department they would have found whether the objection goes upon that proposithe record of the commission. Why I com- tion? plain of it, and that is all the reason I complain The CHIEF JUSTICE. The rule requires of it, is that again it is illusory. If it was a that a question asked by a Senator shall be mere matter of form I would not care about reduced to writing. it. If my friend will tell me that they willput Mr. HENDRICKS. The question I asked in the exact dates when these parties were was for information of the Managers themnominated I shall have no objection; but they selves, whether the objection goes upon the place either upon the Senate or upon me the ground that the documents are not certified in burden of going to the records and looking up full? these dates and looking up the evidence to The CHIEF JUSTICE. If there be no obcontrol their evidence. That is to say, the jection, the Senator from Indiana can put his Senate allow them to put in memoranda of question. Otherwise, the rule requires that it part of a transaction, and put upon the Man- shall be in writing. agers of the House of Representatives the Mr. Manager BUTLER. I did not underburden of going and looking up the rest of it. stand the question. I say it is not right to do so; that where they The CHIEF JUSTICE. The Senator from put in the transaction they ought to put in the Indiana will repeat his question. whole record of the transaction, and then we Mr. HENDRICKS. The question which I can all see exactly what the transaction was. wished answered by the Managers was whether Mr. President, I have so much respect for it be required, in the progress of this trial, my learned friends that whenever they state a that the records shall be given in full so far as matter of law as they stated it to the learned they relate to any particular question? Senator from Maryland, that extracts from Mr. Manager BUTLER. That is what we records might be certified, I am almost afraid desire, or, otherwise, it sets us to looking up to object; but I beg leave to read from Bright- the same record. ly's Digest, the seventeenth section, on page Mr. CONKLING. I wish to put a question 267, although it is a very bad practice to read to the counsel for the respondent, which I am ~~~~from digests: ~reducing to writing, and will have prepared in a single moment. All books, papers, documents, and records in the a single moment. War, Navy, Treasury, and Post Office Departments, The CIEF JUSTICE. The counsel will and the Attorney General's office, may be copied and please reduce their proposition to writing. certified unler seal in the same manner as those in Mr. CONKLING. I beg the counsel for the State Department may now by law be, and with the respondent to answer the question which the same force and effect, and the said Attorney Geanswer the question which eral shall cause a seal to be made and provided for I serfi to the Chair. his office, with such device as the President of the The CHIEF JUSTICE. The Secretary will United States shall approve." read the question proposed by the Senator Mr. JOHNSON. What is the date of that from New York. act? The Secretary read as follows: Mr. Manager BUTLER. That act is dated Do the counsel for the respondent rely upon any February 22, 1849. statute other than that referred to? Mr. JOHNSON. Thank you, sir. Mr. CURTI Mr. Manager BUTLER. And that act refers is any other statue beantaware that there isany other statute bearing on it. By exto the act of September 15. 1789, which pro- tracts from the records-of course I do not vides: - mean that any officer was authorized to state "That all copiet of Stterds autndetipated undeo the what he believed the substance of a record to of the Department of State, authenticated under the seal of thesaid Department, shall be evidence equally be-I meant that he might extract out of the as the original record or paper." record a particular document. 380 Mr. CONKLING. Provided it was a copy the schedule that was put in evidence by the ~so far as it went. Managers. Mr. CURTIS. Provided it was a copy so Mr. JOHNSON. What is the schedule? ~far as it went. Mr. EVARTS. Of heads of Departments. In that same connectlon, perhaps, I ought Mr. Manager BUTLER said: to state, Mr. Chief Justice and Senators, that "It is accompanied with a letter simply describing we do not offer these documents as copies of the list, which I will read, as mere inducement. the recods relating to the cases which are ":Mr. CURTIS. We have no objection. nMr. Manager BUTLER. I will read it: n edithdouents themselves. They "!DEPARTMENT OF STATE. are documents, as I stated at the beginning, "WASHINGTONMrch 26 1868. of a similr character to that which the Man- "SIR: In reply to the note which you addressed to agers put in, containing the substance of each me on the 23d instant, in behalf of the House of Representatives in thematter of the.impeaehment of the case, the name, the date, the office, the fact President, I have the honor to submit herewith two of removal. It is true as the honorable Man- schedules, A and B. agerhas said that, when hie offered that he t"Schedule A presents astatementofallremovalsof wheagfere tethe heads of Departments made by the President of asked us if we objected. We said no; for we the United States during the session of the Senate knew it would take, perhaps, weeks to make so far asthesame can be ascertainedfromtherecords out all those records in full. of this Department. i~~n ~ihll ~."Schedule B contains a statement of all appointMr. EDMUNDS. With permission, I should ments of heads of Departments at any time made by like to make an oral inquiry, to save time, of the President without the advice and consent of the Senate, and whilethe Senatewas in sessionso far as the same appears upon the records of the Department The CHIEF JUSTICE. If there be no ob- of State. jection the Senator from Vermontwill put his "I have the honor to be, very respectfully, your inquiry without reducing it to writing, obedient servant, WILLIAM H. SEWARD. Mr. DMUDS.ing it to writing. "Hon. JOHN A. BINGHAM, hairan." I desire to know whether this is offered as touching any question or final Then follows the icst, twldha ou e conclusion of fact, or whether it is offered cns of which wolft merely as giving us a history of practice under consierable length of ti the statutes with a view to the law? The CHIEF JUSTICE. TheSecretarywill Mr. CURTIS. Entirely for the last pur- read the question proposed by the Senator from ~~~~~~~pose. ~Michigan. Mr. Manager BUTLER. After the state- The Secretary read as follows: ment of counsel, that this does not go to any Do the counsel regard these memoranda as legal issue of fact, but only of practice under the evidence of the practice of the Government, and are law, we have no, objection'to it.theofrdasuc The CHIEF JUSTICE. The objection on Mr. CURTIS. The documents I offer are the part of the Managers is withdrawn. if not full copies of any record. They are, th-erethere be no objection on the part of the Sea- fore, not strictly and technically legal evidence ate the evidence will be admitted. for any purpose. They are extracts of facts Mr. CURTIS. I wish there should be no from those records. Allowine, by way of ill'usmisaprehnsio. Ths doumen g:es to tration, to read one, so that the Senate may see matters of fact; but those matters of fact arethnaueotedcmn: mattes ofpractce uder te la, whih I up- Navy Agency at New York. postedrws whpactithe Snentr mhelant.hih ofp 1864, Junef20. Isaac henderson was, by direction posed ws whatthe Sentor ment. ofthe President, removed from the office of Navy Mr. EDMUNDS. That is what I under- agent at New York, and instructed to transfer to Paystood. master John D. Gibson, of United States Navy, all Mr. Manager BUTLER. Then, if it is proof the public funds and other property in his charge." of matter of fact, we object that it is not proper We do not offer that as technically legal evievidence. dence of the fact that is there stated; but Mr. CURTIS. Very well. having in view simply to prove, not the case of The CHIEF JUSTICE. Gentlemen of coun- Mr. Henderson, with its merit's and the causes sel for the President, have you reduced your of his removal, &c., all of which would approposition to writing? - e pear on the records, but the practice of the Mr. CURTIS. Yes, sir. Government under the laws of the United The CHIEF JUSTICE. The Secretary will States; instead of taking from the records the read the proposition. entire documents necessary to exhibit his whole Mr. HOWARD. I desire to ask a question case, we have taken the only fact which is of of the learned counsel for the accused. any importance in reference to this inquiry. The CHIEF JUSTICE. The Secretary will If the Senate consider that they must adhere to read the question proposed by the Senator the technical rule of evidence, we must go to from Michigan. the records and have the records copied in full, Mr. EVARTS. Before that question is read, and of course, for the same reason, read in full. perhaps it may be of service that I should ask Mr. Manager BOUTWELL. The' honorattention to what I have turned to in the record, able counsel for the respondent must see that and that is the letter of the Secretary of State if they do not prove a case they do not prove which, at page 351 of the record, introduced any practice. The first thing to be done in 381 order to prove a practice is to prove one or a view to meet that thaV we introduce this more cases going to show what the practice is. practice of the Government. It is with a view But the vital objection to this testimony which to show that when the President had the right is now offered is, if my examination of it is to remove, it mattered not whether the Senate thorough and accurate, that it relates to a class was in session or not, that right might be exerof officers who are and were; at the time the cised, and that if that right should be exertransactions spoken of in this memoranda oc- cised, it mattered not whether the Senate was curred, under a special provision of law by in session or not, he might make an ad interim which they were created, which takes them appointment. If the learned Managers will entirely out of the line of precedents for the concede all those grounds to us, if they will purpose of this trial. That is the vital objec- agree that the sole question here is whether tion to the introduction of this testimony. As Mr. Stanton's tenure of office was fixed by that I have read the papers hastily, they all relate act, and if it was not fixed by that act, that the to Navy agents and officers who were created President might remove him during the session by a statute of the year 1820, and in that of the Senate, and might lawfully make an ad statute a tenure of office was established for interim appointment during the session of the the officers so created-four years, remova- Senate, then we do not desire to put in this ble at pleasure; and it is not necessary for me evidence. to go into any statement here of the reasons Mr. SHERMAN. I should like to ask the which likely controlled the Congress of the honorable Managers a simple question. United States in 1820, which led them to make The CHIEF JUSTICE. If no objection be that provision. But having made that provis- interposed, the Senator from Ohio will put his ion, created these officers, removable at pleas- question without reducing it to writing. ure, a practice shown by facts, few or many, Mr. SHERMAN. It is whether the papers does not tend in any degree to enlighten this now offered in evidence contain.the date of tribunal upon the issues on which they are now appointment and the character of the office? called to pass, because these officers were cre- Mr. EVARTS. That is a question which ated by a special statute, had a specialtenure, you put to us. and by that tenure were made removable at Mr. JOHNSON, (to Mr. SHERMAN.) You the pleasure of the President; and in various said " Managers." cases undoubtedly the President of the United Mr. SHERMAN. I beg pardon. States, acting in conformity to that statute, Mr. Manager BUTLER. And to that we has removed those officers. Unless the coun- say that they only contain the date of the resel for the respondent are prepared to say that moval, but do not give us the date of the nomin this file of papers which they now submit ination, which may have been weeks and there is evidence to show that a practice has months before the date of appointment, as prevailed relating to officers not enumerated in nobody knows better than the Senate. That is the statute of 1820, then I say it is but a waste the trouble about it. of the time of this tribunal, knowing what Mr. CURTIS. These documents are the those papers contain, and knowing what the records of the Navy Department. Allow me statute is, to permit the introduction of any to read once more, to give you an illustration testimony showing a practice which, if prevail- of what they contain: ing and admitted, does not enlighten us at all "Navy Agency at Newe York. upon the matters in issue here. " 1864. June 20. Isaac Henderson was, by direction Mr. CURTIS-. This objection, Mr. Chief of the President, removed from the office of Navy Justice andSeatrsasreerna gent at New York, and instructed to transfer to Justice and Senators, has reference to the merits Paymaster John D. Gibson, United States Navy, all of this case and to the weight and effect which the public funds and other property in his charge." the evidence is to have, if it be admitted. We That is the character of the document. may have been under an entire misapprehen- Mr. JOHNSON. Does it give the date? sion as to the views of thehonorable Managers Mr. CURTIS. It gives the date of the who are %onducting this prosecution respecting removal. those merits; but unless we have been under The CHIEF JUSTICE. The counsel for such a misapprehension we have supposed they the President propose to offer in evidence two meant to attempt to maintain that even if Mr. documents from the Navy Department, exhibStanton at the time when he was removed held iting the practice which has existed in that at the pleasure of the President, even if he Department in respect to removals from office. was not within the tenure-of-office act, still, To the introduction of this evidence the honinasmuch as the Senate was in session, it was orable Managers object. The Chief Justice not competent for the President to remove him; thinks that the evidence is competent in suband, secondly, that although Mr. Stanton might stance, but that the question of form is entirely have been removed by the President, not being subject to the discretion of the Senate, and of within the tenure-of-office act, his place could the Senate alone. The whole question, therenot be even temporarily supplied by an order fore, is submitted to the Senate. Senators, you to General Thomas, because the Senate was who are of opinion that this evidence should be in session, and there could be, therefore, no received will, as your names are called, answer ad interim appointment made. It is with yea; those of the contrary opinion, nay. 382 The question being then taken by yeas and N. Todd, acting Navy agent at Boston the amount nays, resulted-yeas 6, nays 15; as follows: of public fundsremainingin his hands as Navy agent. Daniel D. Brodhead, having, in a letter dated BosYEAS-Messrs. Anthony, Bayard, Buckalew, Cole, ton, February 28, 1838, tendered his resignation as Conklin, Corbett, Davis, Dixon, Doolittle, Ednmunds, Navy agent, it was acknowledged and accepted by Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, the Department, March 5, 1838. Henderson, Hendricks, Howe, Johnson, McCreery, March 24, 1838. Leonard Jarvis was informed of Morrill of Maine, Morrill of Vermont, Morton, Pat- his having been appointe4d by the President, by and terson of New Hampshire, Patterson of Tennessee, with the advice and consent of the Senate, Navy Ross, Saulsbry, Sherman, Stewart, Sumner, Trum- agent for the portof Boston from March 22,1838, and bull, Van Winkle, Vickers, Willey, Wilson, and John N. Todd was instructed to pay over to him ~~~~~~Yates-36. ~the amount of public funds in his hands as acting NAYS-Messrs. Cameron, Cattell, Chandler, Con- Navy agent. ness, Cragin, Drake, Harlan. Howard, Morgan, Nye, NavyAgency at New York. Pomeroy amsey, Thayer, Tipton, and Williams -1 5. 20 1864 Isaac Henderson was, by atdirection ssrs. Norton, Sprague, and June 20, 1864. Isaac Hend WdT VOTING-Messrs.NortonSpa, a of the President, removed from the office of Navy agent at New York, and insto paySo the evidence was admitted. master John D. Gibson, United States Navy, all the Mr. CURTIS. Unless the honorable Man- public funds and other property in his charge. agers desire those documents to be read at Navy Agencyat Phildelphia. length we do not insist upon it on our part. December 26,1864. James S. Chambers was removed from the office df Navy agent at Philadelphia, and B LER. We do not desire it. instructed to transfer to paymaster A. E. Watson, Mr. CURTIS. Very well; but I suppose United States Navy, all the public funds and other they will be printed. ["Certainly."] property in his charge. The documents thus offered in evidence are UNITED STATEs NAvy DEPARTMENT, as follows: April 9, 1868. I hereby certify that the annexed are true copies TES NAVY DEPART MENT, 1868 from the records of the Department. April 9, 1868. EGRT ELS I hereby certify that the annexed are true state- E R Lle mets from the records of this Department, EDGAR T. WELLES, Chief Clerk. Be it known that Edgar T. Welles, whose name is signed to the above certificate, is now, and was at the time of so signing, chief clerk in the Navy DBe it known that Edgar T. Welles, whose name is partment, and that full faith and credit ar due to signed to the above certificate, is now and was at the all his official attestations as such. time of so signing, chief clerk in the Navy Depart- In testimony whereof, I have hereunto subscribed met, and that full faith and credit are due to all my name, and caused the seal of the Navy his official attestationsas such. Department of the United States to be affixed, In testimony whereof, I have hereunto subscribed at the city of Washington, this 9th day o my name and caused the seal of the Navy [L. S April, in the year of Lord 1868, and of the Department of the United States to be affixed independence of theUnited States, the ninety[.S atthe city of Washington, this 9th day of scn.G. WELLES, April, in the ycar of our Lord 1868, and of the Secretary of the Navy. independence of the United States the ninetysecond. G. WELLES, NAVY DEPARTMENT. December 19, 1840. Secretary of the Navy, SIR: The painful duty devolves upon.me of informning~ you that having failed to render and settle Navy Agency at Pensacola. your accounts as reqired by law and the frequent Thomas Eastin, Navy agent at Pensacola, was on calls of the Department, the President has directed 19th December, 1840, dismissed by direction of the that you be dismissed the service of the United President. States. On the same day Purser Dudley Walker, United You will, therefore, upon the receipt of this camnStates Navy, was instructed until otherwise directed munication, consider your functions as Navy agent to act as Navy agent in addition to his duties as at Pensacola to have ceased. purser of the yard and station. Until the arrival of your successor, Purser Dudley January5,1841. GeorgeJohnston was informed that Walker has been directed to act hs Navy agent, to'ho had been appointed, by and with the advice and whomyouwvill turnover the funds, hooks, and papers consent of the Senate, Navy agent at Pensacola from belonging to the agency at Pensacola. December 28, 1840. I am, respectfully, &c., J. EK. PAULDING. Johnston, it appears, was lost on the passage to THOMAS EASTIN, esq., late Navy Agent, Pensacola. Pensacola.. April 29, 1841. The President appointed Jackson NAVY DEPARTMENT, December, 19, 1840. Morton Navy agent at Pensacola. SIR: I have directed $9,881 to be remitted to you, Navy Agency at Boston. being the amount of your requisition of the 1st NoFebruary 1, 1838. Purser John N. Todd, United vember. States Navy, was directed tq assume the duties of You will, until otherwise directed, act as Navy Navy agent for the port of Boston and continue in agent at Pensacola, in addition to your duties as the performance ther~eof until further orders from purser of the yard and station. the Department. A further remittance of $5,000 will he made to you February 1, 18,38. D. D. Brodhead,, Navy agent, for the use of the United States steamer Warren. Boston, was informed that his requisition for $10,006 I am, respectfully, &c., J. K. PAULDING.. had been received and the amount remitted to John Purser, DUDLEY WAL KE R, N. Todd, purser of the Boston station, who had Care Commodore A. J. Dallas, ZNavy-yard, Pensacola. be-en directed to discharge the duties of Navy agentNvYDPRMTJnay,18. until further orders. NV EATET aur,81 The Department alluded to reported embaraes- SIR: The President of the United States, by and ments of his private affairs, and as the legal] term 6f with the advice and consent of the Senate, having his appointment would shortly expire, stated that appointed you Navy agent for the port of Pensacola, it felt compelled, under the circumstances -of the West Florida, for four years, from the 28th Decemcase, to suggest to him the propriety of tendering her, 1840, I have the pleasure to inclose herewith your at this time his resignation as Navy agent. commission, dated the 5th of January, 1.841. March 3, 1838. Daniel D. Brodhead, late Navy I am, respectfully, &e., J. K. PAULDING. agent at Boston, was requested to pay over to John GEORGE JOHNSTON, esq., Navy Agesmt, Washington. 383 NAVY DEPARTMIENT, April 29, 1841. NAVY DEPARTMENT, March 3,I1838. SIR: The President of the United States having SIR: I request that you will pay over to John N. appointed you Navy agent for the portof Pensacola, Todd, acting Navy agent at Boston, the amount of West FloridaI have the pleasure to inclose herewith public funds remaining in your hands as Navy agent, ~your commission,.~ ~for which his receipt will be to you a sufficient I inclose to you also a blank bond, which you voucher. will execute with at least two sureties, in the sum When I last saw you you assured me that I she d of $30,000, to be approved bythe United States judge hear from you in twenty-four hours. or district attorney for the district in which you I regret very much being left in the condition I am reside, and return to this Department as soon as asto the Navy agent at Boston. ~~~~~~~practicable. ~I am, very respectfully, your obedient servant. I am, respectfully, &c, GEORGE E. BADGER M. DICKERSON. JACKSON MORToN, esq., Navy Agent, Pensacola. DANIEL D. BRODHEAD, late Navy Agent, Boston. NVDEPARTMENTNAVY DEPARTMENT, JuMarch 51, 18381841., f the United States, by and SIR: Your letter of the 28th ultimo, resigning your with The avicadcnsent of theUt Senate, having office of Navy agent for the port of Boston, has been ainhtheadviy Nav aent for the port of Pensacola, received, and your resignation is accepted. appontedyou avyagen forthe ortof Pnsacla, I am, very respectfully, youroein evn Florida, from the 29th of April, 1841, I have thepleas- I am, very respectfully, you diesr re to inclose herewith your commission. D. D. RODHEAD, esq., late Ne So. I am, respectfully, & GEORGE E. BADGER. JACKSON MoRTo, esq., Navy Agent, Pensacola. NAVY DEPARTMNT, March 24, 1838. NAVY- DPRMNOtSIR: Leonard Jarvis, Esq., of Boston, has been DEPARTMENT, October 2, 1841. appointed Navy agent for that port in place of D.D. SIR: Jackson Morton, Esq., Navy agent for Pensa- Brodhead, resigned. You will therefore pay over to cola, has apprised the Department of his intention Mr. Jarvis the amountof public money in your hands to proceed immediately to that place to enter on the as acting Navy agent, and his receipt will be to you ~discharge of his duties. ~a proper voucher in the settlement of your accounts. Upon his arrival you will transfer to him all the So much of your requisition of the 13th instant as moneys and Property belonging to the agency, and has been approved will be remitted to the new ent take his receipt for the same, which will be a suffi- with as little delay as practicable. ent voucher in the settlement of your accounts in I am, very respectfully, your obedient servant, the office of the Fourth Auditor. M. DICKERSON. I am, respectfully, &., J. D. SIMMS JOHN N. TODD, esq., Acting Navy Aget, Boston Acting Secretary of the 1Vavy. PurserD. WALKER, Acting Navy Agent, Pensacola. NAVY DEPARTMENT, March 24; 1838. NAVY - D ~- Si~SRa: YOU having been appointed Navy agent for N DPARTMENT, February 1, 1838. the port of Boston, I have this day authored to be SIR: Your requisitionfor $10,000 has been received. remitted to you $53,614 51, under various heads of apand the amount remitted to John N. Todd, purser of propriations, being the amount of the requisitions of the Boston station, who has been directed to dis- the acting Navy agent of the 13th instant, so far as charge the duties of Navy agent until further orders. the same were approved. The Department regrets that the reported embar- The acting Navy agent, Purser John N. Todd, las rassment of your private affairs, and the condition of been instructed to pay over to you the public money the banks in Boston, particularly that in which you in his hands as agent. have kept. your public accounts, renders this course Instructions with regard to your duties as Navy necessary. agent will be transmitted to you by the Fourth AudAs the legal term of your appointmentwill shortly itor of the Treasury. expire, the Department feels compelled, under the I am, very respectfully, your obedient servant, circumstances of the case, to suggest to you the pro- M. DICKERSON. priety of tendering at thils time your resignation as LEONARD JARVIs, esq., Navy Agent, Boston. Navy agent. I am, very respectfully, your obedient servant,, NAVY DEPARTMENT, March 24, 1838. D. D. BRODHEAD, esq., Navy M.nt DICKERSON SIR: The President of the United States, by and Agent, Boston.with the advice and consent of the Senate, having appointed you Navy agent for four years from the NAVY DEPARTMENT, February 1, 1838. 22d of March, 1838, I have the pleasure to inclose SIR: I have thi~ day authorized to* be remitted to herewith your commission, dated the 24th of March. you $10,000 under pay and Sub.- 1838. This remittance is made to you with a view to your IJam, respectfully, yours, M. DICKERSON.' assumption of the duties of Navy agent for the port LEONARD JARVIS, Esq., Navy Agent, Boston. of Boston, in addition to your present duty, which you will do on receipt of this, and continue in the NAVY DEPARTMENT, Juise 20, 18134; performance thereof until further orders from the SR ydrcino h rsdn fteUie Dep artment. SR ydrcino h rsdn fteUie I am, respectfully, your obedient servant, States, you are hereby removed from the office of M. DICKE~RSON. Navy agent at New York, and you will immediately JOHN N. TODDn, transfer to Paymaster John D. Gibson, paymaster Purser, United States Navy-yard, Boston. United States Navy, all the public funds and other - ~~~~~~~proper.ty in your charge. BosTON, February 28, 1838. Very respectfully, GIDEON WELLES, S:Soetime since I received a letter from you Is~ EDROEq, Secretary of the Navy. SIR: Some ~ ~ ~ ~ ~ ISA HNERON sqNavy Agent, Nesw York. stating that Purser Todd was charged with the duties of Navy agent in my piAte, and giving the reasonsNAYDERTNTJue2184 of the Department therefor, Withou4 concurring in NV.DPRMNJn 0 84 the opinions of the Depsartment, but solely to relieve SIR: You are hereby relieved from the inspection it and the Government from any supposed responsi- of provisions and clothing at the Brooklyn ifavybility or embarrassment in relation to my position, I yard, and will at once assume the duties usually qphave the honor to tenderyou myresignation as Navy pertaining to the office of Navy agent atthe city of agent for this port, believing that you as well as all New York. others having official business with me can bear tes- Mr. Henderson has been instructed to turn over to timony that I have faithfully and satisfactorily per- you the public funds and other property in his posformed all my duties as a public officer, session, for which you will receipt to him. You will I have the honor to be, with great respect, your not permit him to remove from the office any of the obedient servant, DANIEL D. B'RODHEAD. books, papers, or vouchers, until the further order of Hon. M. DICKERSON, the Department,' but you will allow him to place in Secretary of the Navy, Washington,.D. 0. the office an agent (should he desire to do so) to pro 384 tect his interests and see that the books and papers Your office will be kept open at least during the necessary to the settlement of his accounts are not ordinary banking hours in Philadelia. used in a manner to destroy their value as vouchers. Very respectfully, GIDEON WELLES, You will e careful to do nothing to affect in any Secretary of the Navy. way the liability of Mr. Henderson or his sureties to Paymaster A. E. WATSON, ~~~~~the Government. ~UnitedSates Navy, P The chief of the Bureau of Provisions and Clothing will explain to you in person the views of the Mr. CURTIS. There is one other docuVeryartespectfu GIDEON WELLES ment from the Navy Department which I sup eSecretulrD oN f the Navy pose is not distinguishable from those that have Paymaster JOHN D. GIBSON just been admitted. It purports to be a list of United States Navy, Brooklyn, New York. all civil officers of that Department appointed for four years under the statute of May 15, 1820 NAvy DEPARTMENT, December 26,1864. and removable from office at pleasure, who SIR: By direction of the President of the United were removed as indicated, their terms of office States you are hereby removed from the office of the not having expired. Then comes a list giving Navy agent at Philadelphia, and you will immedi- t ately transfer to Paymaster A. E. Watson, United te name of the officer, t States Navy, althe public funds and other property appointment, the date of his removal, and by ~in your charge. ~whom removed, in a tabular form. Very respectfully, GIDEON WELLES, Mr. JOHNSON. Does it give the date of Secretary of the Navy.r. OS. Do JAME S. CHAMBERS, Esq., Navy Agent, Philadelphia. the appointment of his successor? Mr. CURTIS. No; there is nothing said about his successor. It is merely the act of N RTMENT,.December 26, 1864. l oflr SIR: Mr. James S. Chambers, Navy agent, Phila- removal of the officer. delphia. has been instructed to turn over to you the [The document was presented to the Man public funds and other Government property in his agers and examined by them.] possession, for which you will receiptto him, and you Mr. Manager BUTLER. We onl want to will t once assume the duties usually appertaining r to the office of Navy agent. You will not permit call the attention of the Senate to the fact that Mr. Chambers to remove from the office any of the it does not contain a very material thing which ooks, papers, or vouchers until the further order our schedule contains, of the Department, but you will allow him to place our schedule contains, in the office an agent (should he desire to do so) to whether the Senate was or was not in session. protect his interests and see that the books and Mr. CURTIS. We shall get that in another papers necessary to the settlement of his accounts fo are not used in a manner to destroy their value as orm. Vuchers. You will be careful to do nothing to affect Mr. Manager BUTLER. Nor who was nom in any way the liability of Mr. Chambers or his sure- inated in the place. ties to the Government.a th place. Should Mr. Chambers reserve aportion of th efunds The CHIEF JUSTICE. The evidence is in his possession to meet outstanding checks, the admitted unless there be some objection. Assistant Treasurer ha-, been requested not to honor The document is (with the same attestation them unless indorsed by you as correct. You will from the Navy Department as the two preceding see that they have been given for actual Government dues. ones) as follows: Civil Officers Appointed f-or Four Yeasrs under the Statute of May 15, 1820, and " Removable from Office at Pleasure" who were removed as indicated, their terms of office not having expired. NAVY AGENTS. Names. Date of original Term. Date of removal. By whom reappointment. moved..-R. Swartout......................17 October, 1818.... - 18 MArch, 1827......The President. Amos Binney.....................Not known........ - 6 May, 1826.......The President. James Beatty....................17 May, 1810....... - 3 March, 1829......The President. Miles King......................27 March, 1816..... - 4 March, 1829......The President. J. M. Sherburne.............e....25 June, 1828.......4 years... 1 July, 1829.......The President. N. Amory.......................31 October, 1827.....4 years... 11 July, 1829.......The President. George Harrison..................21 November, 1799.. - 3 March, 1833......The President. John Laighton...................27 April, 1830.......4 years... 29 April, 1841.......The President. John Tho~mas....................11 October, 1833.... - 31 August, 1841.....The President. H. C. Wetmore...................18 March, 1841.4.... years... 1 July, 1844.......The President. I. V. Browne.....................20 September, 1841-4 years... 1 April, 1845.......The President. S. McClellan.....................31 August, 1841.....4 years... 8 April, 1845.......The President. William B. Scott..................8 October. 1848.....4 years... 5 June, 189 The President. Joseph Hale.....................19 June, 1846.......4 years... 27 June, 1849.......The President. S. W. Smith......................8 July, 1846.......4 years... 27 June, 1849.......The President Walker Anderson.................3 July, 1848.......4 years... 24 September, 18M9 The President: George Layall....................13 March, 1849.. 4 years... 1 Novembbr, 1850.. The President. 0. H. Ladd......................28 June, 1852....:: 4 years... 5 Aprils 1853.......The President. William Hindman................28 June, 1852.......4 years..'5 April, 1853.......The President. B. D. Wright.....................10 August, 1850.....4 years... 12 April, 1853.......The President. E. O'. Perrin......................28 August, 1850.....4 years... 28 May, 1853........ he President. William Flinn...................1 April, 1858......4 years... 10 April, 1861.......The President. N. F. Ammidown. 8 ~~~~~~February, 1859....4 years... 12 April, 1861.......The President. H. G. S. Key.....................27 February, 1860.. 4 years... 16 April, 1861.......The President. H. F. Wardell....................20 May, 1858.......4 years... 18 April, 1861.......The President. William Badger..................20 May, 1858.......4 years... 1 May, 1861.......The President. William F. Russell................27 June, 1860.......4 years... 6 May, 1861.......The President. A. E. Smith......................16 December, 1857.. 4 years... 2 May, 1861.......The President. Isaac Henderson..................19 July, 1861.......4 years... 20 June, 1864.......The President. J. S. Chambers...................119 July, 1861.......4 years... 26 December, 1864.. The President. 385 [Mr. Curtis sent a large mass of documents instance, Asbury Dickens is ppointed to act to the Managers to be examined.] as Secretary of the Treasury, when the SecThe CHIEF JUSTICE. Will the counsel retary shall be absent," looking to the future, state wat e proposes to offer? expecting that he would be absent on such a dy. r. CURTS. These are documents from Then there are three other cases, one a case in th Department of State showing the removal President Monroe's time, where he appointed of officers not only during the session of the an acting Secretary, reciting the act of 1792. Sate but during the recess, and covering all There is one in John Quincy Adams's time, recases of vacancy, the purpose of the evidence citing the act of 1792. There is one in Genebeing to how the practice of the Government ral Jackson's time, reciting that the appointcoextensive with the necessity that arises out ment was under the act of 1792. These are the of the different cases-death, resignation, sick- only three in all this list that recite the act ness, absence, removal. It differs from the under which they are made. All the others schedule which has been put in by the learned are temporary, are in cases of death or temManagers, which covered certain heads of porary absences from the seat of Government Departments only, because that applies only coming within the exact terms ofthe law of to removals during the session of the Senate. 1792 or 1795. It includes that, but it includes a great deal I have stated what these cases are. Now, ~~~~more matter. ~the simple question is-I am not going to argue Mr. Manager BUTLER. I have prepared it-will the Senate permit a series of acts, done for myse the same list. In order that the under the law, and exactly in conformity with Senate may see exactly what the character is, the law of 1792 and 1795, reciting, where they and may judge then how far this may be com- recited any law, the act of 1792, to be intropetent, I call the attention of the Senate to duced as evidence upon the trial of a case for one, the first one that opens-not by any man- an act which is in violation of the act of March ner the first in order, but the first one that 2, 1867, and in violation of the act of February ~~~~~happens: ~20, 1863. Does it throw any light-that is to I hereby appoint C. A. Harris to perform the du- say, is there such a practice of the Government ties of acting Secretary of War during the temporary shown by this as throws any light upon the absence of the Secretary for the Department of War. ANDREW JACKSON. question now in hearing? M ayr 27,DREW 1836.SON. try, it goes to the Senate, that here are a large Now I7 wl t oer to the next page: lot of appointments. True; but these appointments are in conformity with the law, reciting I hereby authorize and appoint Aaron 0. Dayton, the law when they recite any law at all, and chief clerk of the Department of State, to discharge the duties of Secretary of State during the temporary always reciting the exact circumstances to absence of that officer from the seat of Government. which the law applies. Now, are these to go M. VAN BUREN. in for the purpose of justifying what is admitMr. Manager BINGHIAM. What is the date? ted in the answer to be a breach of the law, if Mr. Manager BUTLER. June 28, 1837. the law is constitutional.? Again: Mr. CURTIS. I do not wish to reply, Mr. I authorize J. L. Martin, chief clerk of the De- Chief Justice. I take it for granted that the partment of State, to perform the duties of Secretary Senate will not settle any question as to the of State during the absence of that officer from the merits of this case under the acts of Congress seat of Government. MARTIN.VAN BUREN. when we are putting in evidence. Thatis ate Octber16,1840 Agin: The CHIEF JUSTICE. The Chief Justice Thatis dted ctobr 16 184. Agin: thinks that the evidence is admissible withia I appoint J ohn 11oyle, chief clerk of the Navy' the decisions already made. Of the value Department, acting Secretary of the Navy, to per- whnamteheSaewiljd. form, during the absence of the Secretary of the of it hnamttd h eat iljde Navy, the duties of Secretary of the Navy Depart- If any Senator desires the question to be put meat. ANDREW JACKSON. to the Senate the Chief Justice will be happyr WASHINGTON CITY, JUly 5. 1534. to put it. [After a pause.] The evidence is There are but two ex~ceptions in all these admitted. cases to the form I have given, in various mnodes' Mr. CURTIS. We do not desire to have of- expression. these documents read. They are very volumMr. CURTIS. I suppose it is not a question inous and will take time, and it is quite unnev.now that is to be the effect of the evidence; cessary to read them, we think, or have, them. b~ut do you object to it? read. Mr. Mlanager BUTLER. We object to it for The documents thus offered in evidence are any purpose. It is handed to me as a mass, attested by the Secretary of State in the usual and I want to state what it is, and then I will form to be copied from the record~ of his tell you what I object to; I cannot do so be- Department, and contain the letters of authorfore. I have now given youall the forms with ity, designation, or appointment in the followtwo single exceptions. The first exception is ing cases: that frequently the lamiguage of the letter of~ap- On the 23d of November, 181.9, Christopher pointmeut, like the one I have read, has been Vanderventer, chief clerk of the War Departgiven to cover possible. contingencies. For meat, was authorized by President Monroe, C. I. -25. 386 under the act of May 8, 1792, to perform the Department, to act as Secretary of the Navy duties of Secretary of War during the illness during the absence from the seat of Govern of John C. Calhoun, Secretary for that De- ment of Levi Woodbury, the Secretary. ~~~~~~partment. ~On the 18th of June, 1831, President JackOn the 7th of March, 1825, President J. Q. son authorized Philip G. Randolph, chief Adams appointed Samuel L. Southard, Secre- clerk in the War Office, to discharge the duties tary of the Navy, to perform the duties of of that office until a successor to Major Eaton Secretary of War, that office having become should be appointed. vacant, until the vacancy should be filled. On the 21st of June, 1831, President JackOn the 26th of January, 1829, President J. son appointed Asbury Dickins, chief clerk Adams appointed Samuel L. Southard, of the Treasury Department, to perform the Secretary of the Navy, under the authority duties required by law of the Secretar of the conferred by the act of May 8, 1792, to per- Treasury until the arrival of Mr. MLane, apform the duties of Secretary of the Treasury pointed successor to Mr. Ingham. untilasucessorshould be appointed to Richard On the 20th of July, 1831, President Jack Rush, Secretary of the Treasury, he being un- son appointed Roger B. Taney, Attorney able to perform his duties by severe illness, or General, to take charge of the Department of until the inability should cease. War "on the 21st instant, and execute the On the 4th of March, 1829, President Jack- duties thereof until the arrival of Governr son appointed James A. Hamilton to take Cass." charge of the Department of State until Gov- On the 10th of August, 1831, PresidentJackernor Van Buren should arrive in the city. son authorized John Boyle, chief clerk of the On the 24th of April, 1829, President Jack- Navy Department, to act as Secretary of the son appointed Asbury Dickins Secretary of Navy in the absence of the Secretary, Levi the Treasury until the return of Mr. Ingham Woodbury, from the seat of Government. -~~~to the city.'~~On the 10th of August, 1831, President JackOn the 7th of July, 1829, President Jackson son appointed Daniel Brent, chief clerk of the appointed William B. Lewis acting Secretary Department of State, to act as Secretary of of War during the absence of the Secretary. State during the absence of the Secretary from On the 8th of July, 1829, President Jackson the seat of Government. appointed Richard I. Bradford to take charge On the 12th of September, 1831, President of the Navy Department and perform the Jackson authorized Roger B. Taney, Attorney duties thereof in the absence of the Secretary General, to act as Secretary of War during the of the Navy, absence from the seat of Government of GovOn the 19th of August, 1829, President ernor Cass. Jackson appointed William B. Lewis, Acting On the 13th of September, 1831, President Secretary of War during the absence of the Jackson appointed Louis McLane, Secretary Secretary of War. of the Treasury, to take charge of the War DeOn the 7th of November, 1829, President partment during the absence of Governor Cass, Jackson appointed J. G. Randolph to perform Secretary, and Roger B. Taney, acting Secrethe duties of Secretary of War until the return of tary.,the Secretary, John HI. Eaton, he being absent. On thel18th of October, 1831, PresidentJackOn the 12th of June, 1830, President Jack- son authorized Asbury Dickins, chief clerk of son authorized Philip G. Randolph to act as the Treasury Department, to perform the duties'Secretary of War while John H. Eaton, the of Secretary of the Treasury during the absence Secretary, should he absent. of the Secretary. On the 8th of March, 1831, President Jack- On the 18th of October, 1831, President son authorized Philip G. Randolph to act as Jackson authoriz ed Levi Woodhury, Secretary Secretary of War during the confinement of of the Navy, to take charge of the Department the Secretary by sickness. of War and perform the duties of Secretary of On the 19th of March, 1831, President Jack- War during the absence of the Secretary of son authorized John B oyle, chief clerk of the War. Navy Department, to act as Secretary of the On the 17th of March, 1832, President JackNavy during the necessary absence of Mr. son authorized Asbury Dickins, chief clerk of Branch, the Secretary, from the duties of the the rureasury Department, to take charge of Department. that Department and perform the duties of On the 12th of May, 1831, Preeident Jack- Secretary of the Treasury during the indisposon authorized John Boyle to take charge of sition of Mr. McLane. the office of Secretary of the Navy and perform On the 8th of June, 1832, President Jackson its duttes until a successor to Mr. John Branch, authorized John Robb, chief clerk of the War the Sleeretary, who had notified the President Department, to perform the duties of Secrethat he should leave the city "Ithis day," could tary of War during the absence of the Secretary. be appointed, and arrive and take charge of On the 16th of July, 1832, President Jackson the office. appointed John Robb, chief clerk of the War On the 16th of June, 1831, President Jackson Department, to act as Secretary of War during authorized John Boyle,- chief clerk of the Navy -the absence of the Secretary. 37,On the 21st of July1833, President Jackson On the 10th of August, 183, President Jackappointed Daniel Bent, chief clerk of the De- son authorized Asbury Dickins, "should the partment of State, to exercise the duties and Secretary of State be sick or absent from the perform the functions of Secretary of State seat of Government before my return to Washin he event of the absence from the seat of ington," to perform the duties during such Government o the Secretary during the pres- sickness or absence. ent summer orapproaching autumn, and dur- On the 28th of September, 1833, President ing the continuance of such absence." Jackson appointed John Robb acting SecreOn the 23d of July, 1832, President Jackson tary of War in the absence of the Secretary. appointed John Boyle to discharge the duties On the 11th of November, 1833, President of Secretary of the Navy "in the absence of Jackson authorized Asbury Dickins, chief clerk the Secretary at any time between this date of the Department of State, to perform the and the 1st of October next." duties of Secretary of State during the absence On the 18th of Jly, 1833, President Jackson of the Secretary from the seat of Government. authorized Asbury Dickins, chief clerk of the On the 25th of June, 1834, President JackTreasury Department, to perform the duties son authorized McClintock Young to take of Secretary of the Treasury in case of the charge of the Department of the Treasury until absence from the seat.of Government or sick- a successor to Mr. Taney, resigned, should be ness of the Secretary. appointed. On the 8th of November, 1832, President On the 5th of July, 1834, President Jackson Jackson authorized Asbury Dickins, chief appointed John Boyle, chief clerk of the Navy clerk of the Treasury Department, during the Department, to be acting Secretary of the absence of the Secretary of the Treasury, to Navy during the absence of the Secretary. perform the duties of that office. On the 8th of July, 1834, President Jackson On the 12th of November, 1832, President authorized Asbury Dickins, chief clerkof the Jackson authorized John Robb, chief clerk Department of State, to perform the duties of of the War Department, to act as Secretary Secretary of State in case of the death, absence of War during the absence of the Secretary. from the seat of Government, or sickness of On the 6th of May, 1833, President Jackson the Secretary of State " durigmyabsence." appointed Asbury Dickins, chief clerk of the On- -, President Jackson authorized Treasury Department, to perform the duties John Forsyth to discharge the duties of Secreof Secretary of the Treasury in the absence tary of War during the absence of the Secreof that officer from the seat of Government. tary. On the 6th of May, 1833, President Jackson On the -,President Jackson anappointed John Robb acting Secretary of War thorized M. Dickerson to discharge the duties during the absence of the Secretary. of Secretary of War during the absence of the On the 13th of May, 1833, President Jack- Secretary. son authorized Louis McLane, Secretary of On the 8th of May, 1834, President Jackson the Treasury, to perform the duties and func- appointed Mahlon Dickerson acting Secretary tions of Secretary of State during the absenc e of War during the absence of the Secretary. of Edward Livingston from the seat of Gov- On the 1 1th of October, 1834, President ermient. Jackson appointed Asbury Dickins, chief clerk On the 29th of May,.1833, President Jack- of the Department of State, to act as Secretary son authorized Asbury Dickins, chief clerk of State during the absence of that officer from of the Treasury Department, to perform the the seat of Government. duties of Secretary of the Treasury for and On the 19th of January, 1835, President during the absence of that officer from the seat Jackson authorized Mahlon Dickerson, Secreof Government. tary of the Navy, to perform the duties of On Whe 5th of June, 1833, President Jackson Secretary -of War during the illness of that authorized Daniel Brent, chief clerk in the officer. Department of State, to act as Secretary of On the 2d of May, 1835, President Jackson State duril~g the absence of the Secretary from authorized Asbury Dickins to, perform the the seat of Government. duties of Secretary of State during the absence On the 6th of June, 1833, President Jackson of Mr. Forsyth from the seat of Government. ap~pointed John Robb to be acting S-ecretary On the 7th of May, 1835, President Jackson of War during the absence of the Secretary. appointed John Bo yle, chief clerk of the Navy On the 5th of June, 1833, President Jackson Department, to act as -Secretary of the Navy appointed John Boyle to be acting Secretary during the absence of Mr.!Dickerson from the of the Navy " during the absence at any time seat of Government. within the present year of the honorable Levi On the 18th of May, 1835, President Jack-Woodbury." son appointed Carey A. Harris to act as SeeOn the 13th of June, 1833, President Jackson retary of War during the absence of the Secappointed Daniel Brent to perform the duties retary. of Secretary of State if the Secretary should On the 6th of July, 1835, President Jackson. "be at any time- indisposed -or absent from the appointed Asbury Dickins to act as Secr~tary seat of Government." of State during the absence of Mr. Forsyth. 388 On the 1st of July, 1835, President Jackson On the 20th of October, 1837, President Van designated McClintock Young to perform the Buren authorized McClintock Young to disduties of Secretary of the Treasury " at any charge the duties of Secretary of the Treasury periods of absence by the present Secretary "whenever that officer may be absent from the during the ensuing months." seat of Government." 1On the 31st of August, 1835, President Jack- On the 27th of October, 1837President Van son authorized Asbury Dickins to act as See- Buren authorized John Boyle, chief clerk of retary of State during the absence of Mr. For- the Navy Department, to act as Secretary syth from the seat of Government. of the Navy during the absence of the SecOn the 28th of September, 1835, President retary. kJackson authorized Asbury Dickins to act as On the 21st of July, 1838, President Van Secretary of State during the absence of Mr. Buren authorized John Boyle, chief clerk of t of Government. the Navy Department, t Forsyth from the seat of Government. th ayDprmn, t act as Secretary On the 20th of October, 1835, President of the Navy during the absence of the SecJackson empowered McClintock Young to per- retary. form the duties of Secretary of State "while On the 1st of July, 1838, President Van the present Secretary is absent from the city Buren authorized McC. Young to act as See~of Washington."~ ~retary of the Treasury during the' absence of On the 23d of October, 1835, C. A. Harris the Secretary, and in case of the illness or was appointed by President Jackson to act as absence of Mr. Young, Samuel MKean to Secretary of War during the temporary ab- perform the duties. sence the Secretary. On the 21st of July, 1838, President Van On April 29, 1836, C. A. Harris was ap- Buren authorized Aaron Vail, chief clerk of pointed by President Jackson to act as Secre- the Department of State, to discharge the fuctary of War during the temporary absence of tions of Secretary of State in the event of ~~~the Secretary. ~the absence of the Secretary from the seat of iOn the 27th of May, 1836, President Jackson Government. authorized C. A. Harris to act as Secretary of On the 6th of October, 1838, President Van War during the temporary absence of the Buren authorized John Boyle, chief clerk of ~~~~Secretary. ~the Navy Department, to act as Secretary of On the 7th of July, 1836, President Jackson the Navy during the absence of the Secretary. empowered Asbury Dickins, chief clerk of the On the 24th of April, 1839, President Van Department of State, to act as Secretary of Buren authorized McClintock Young to perState "Iin case of the death, absence from the form the duties of Secretary of the Treasury seat of Government, or inability of the Secre- during the absence of the Secretary. tary during my absence from the seat of Gov- On the 8th of June, 1839, President Van ermient." Buren authorized Aaron Vail, chief clerk of the On the 9th of July, 18336, President Jackson State Department, to act as Secretary of State appointed John Boyle, chief clerk of the Navy during the absence of the Secretary from the Department, to discharge the duties of Secre- seat of Government. tary of the Navy during the absence of Mahlon On the 15th of June, 18309, President Van Dickerson, Secretary, from the seat of Gov- Buren authorized McClintock Young to act as ermient. Secretary "Iin the event of the sickness or abOn the 18th of July, 1836, President Jackson sence of Levi Woodbury between this date authorized C. A. Harris to act as Secretary of and the 10t-h of October next." War during the temporary absence of that On the 28th of August, 1840, President.Van officer from the seat of Government. Buren authorized J. L. Martin, chief clerk of On the 8th of September, 1836, Pi-esident the'Department of State, to perform the duties Jackson authorized C. A. Harris to~act as Sec- of Secretary of State during the absence of retary of War during the temporary absence that officer from the seat of Government. of that officer from the seat of Government. On the 16th of October, 1840, President Van On the 5th of October, 1836, President Jack- Buren authorized J. L. Martin, chief clerk of son authorized C. A. Harris to act as Secre- the Department of State to perform the duties tary of War during the temporary absence of of Secretary of State during the absence of that officer from the seat of Government. that officer from the seat of Government. On the 25th of October, 1836, PresidentJack- On the 3d of March, 1841, President Van son authorized Benjamin F. Butler, Attorney Buren appointed McClintock Young, chief General, to act as Secretary of War, that office clerk of the Treasury Department, to perform having become vacant, until the vacancy should temporarily the duties of Secretary of the be filled. Treasury until a successor to Mr. Woodbury, On the 28th of June, 1837, President Van resigned, should be sworn into office according Buren authorized Aaron 0. Dayton, chief to law. clerk of the Department of State, to discharge On the 19th of March, 1841, President ilarthe duties of Secretary of State during the rison appointed John D. Simms acting Secre-.temporary absence of that officer from the seat tary of the Navy during the absence of the ofGovernment. Secretary from the seat of Government. 389 On the 27th of April, 1841, President Tyler On the 17th of August, 1843, President Tyler Appointed Daniel FletcherWebster, chief clerk appointed William S. Derrick acting Secre of the Department of State, to perform the tary of State during the absence f A. P. Upduties of Secretary of State in the absence of shur from the seat of Government. that officer from the seat of Government. On the 28th of August, 1843, President O the 13th of September, 1841, President Tyler (John C. Spencer, Scretary of the Tyler appointed McClintock Young to perform Treasury, "intending to be absent from the the duties of Secretary of the Treasury until a seat of Government on and after the 29th insuccessor to Mr. Ewing, late Secretary, should stant for two weeks") appointed McClintock be appointed, qualified, and enter upon the dis- Young to act as Secretary of the Treasury charge of the duties of head of the Treasury "during such period, should the Secretary be ~~~~~Department. ~so long absent.'' On the 20th of October, 1841, President On the 29th of February, 1844, President Tyler appointed William S. Derrick to perform Tyler appointed John Nelson, Attorney Genthe duties of acting Secretary of State during eral, Secretary of State ad interim until a Suthe absence of Daniel Fletcher Webster, "now cessor to Mr. Upshur should be appointed. performing those duties," from the seat of On the 2d of May, 1844, President Tyler ~~~Government. ~appointed McClintock Young to perform the On the 30th of October, 1841, President duties of Secretary of the Treasury until a sucTyler appointed Melintock Young acting Sec- cessor to J. C. Spencer should be appointed retary of the Treasury. and qualified. On the 14th of December, 1842, President On the 28th of September, 1844, President Tyler appointed McClintock Young to perform Tyler appointed Richard K. Crall acting Secthe duties of Secretary of the Treasury during retary of State during the absence of John C. the absence of Hon. Walter Forward from the Calhoun from the seat of Government. ~city of Washington. On the 2d of April, 1845, President Polk O the 30th of June, 1842, President Tyler appointed John Y. Mason, Attorney General, nted McClintock Young to perform the to be Secretary of State ad interim during the utie of Secretary of the Treasury during the temporary absence of James Buchanan, Seabsence of on. Walter Forward from the city retary of that Department, from the seat of ~~of Washington. ~Government. On the 20th of July, 1842, President Tyler On the 4th of August, 1845 President Polk appointed McClintock Young to perform the appointed John Y. Mason, Attorney General, duties of Secretary of the Treasury during the to be acting Secretary of State during the ternsickness of Hon. Walter Forward. porary absence of Mr. Buchanan from the seat On the 1st of November, 1842,' President of Government. Tyler appointed McClintock Young to perform On the 31st of March, 1846, President Polk the duties of Secretary of the Treasury during appointed Nicholas P. Trist to be acting Seethe absence of lion. Walter Forward from the retary of State during the absence of Mr. city of Washington. Buchanan from the seat of Government. On the 1st of March, 1843, President Tyler On the 2d of September, 1846, President appointed McClintock Young to act as Secre- Polk appointed Nicholas P. Trist to be acting tary of the Treasury until a successor to Mr. Secretary of State during the absence of Mr. theoiscarge sofl hisa duties. ad ter upon Buchanan from the seat of Government. the discharge f his duties.On the 7th of October, 1846, PeietPl On the 7th of June, 1842, President Tyler appointed McClintock Young to perform the appointed McClintock Young to perform the duties of Secretary of the Treasury during the duties of Secretary of the Treasury "1during absence from the city of Robert J. Walker, the absence of the Secretary after the 8th in- Secretary of the Treasury. stant." Onl the 4th of March, 1847, President Polk On the 49th of May, 1843, President Tyler appointed Nicholas P. Trist acting Secretary appointed Hugh S. Legar6 to act as Secretary of State during the absence of Mr. Buchanan of State until a successor to Mr. Webster, late from the seat of Government.I Secretary of State, should be appointed, quali- On the 31st of March, 1847, President Polk fled, and enter on the discharge of the duties. appointed Nicholas P. Trist acting Secretary On the 8th of June, 1843, President' Tyler ofState during the absence of Mr. Buchanan appointed William S. Derrick to perform the from the seat of Government. duties of Secretary of State during the absence On the 4th of August, 1847, President Polk of Mr. Legar6, acting Secretary. appointed William S. Derrick to be acting SecOn the 24th of June, 1843, President Tyler retary of State during the absence of Mr. Buappointed Abel P. Upshur Secretary of State chanan from the seat of Government. ad interim until a successor should be ap- On the 22d of June, 1847, President Polk pointed, appointed John Y. Mason, Secretary of the On the 31st of May, 1843, President Tvler Navy, to be acting Secretary of State during appointed Samuel Hume Porter acting Secre- the absence of Mr. Buchanan, "1to take effect tary of War during the absence of the Secretary. the 28th instant."' 390 On the 21t of July, 1847, President Polk more appointed Major General Winfield Scott appointed MClintock Young to perform the Secretary of War ad interim during the vacancy duties of Secretary of the Treasury during the occasioned by the resignation of George W. absence from the seat of Government of Rob- Crawford. ert J. Walker, he intending to be absent after On the 4th of October, 1850, President Fill~the 22d instant.'.' more appointed William S. Derrick, chief clerk On the 15th of October, 1847, Presidgnt of the State Department, to be acting Secretary Polk appointed McClintock Young to perform of State during the temporary absence of Mr. the duties appertaining to the office of Secre- Webster from the seat of Government. tary of the Treasury during the absence of On the 23d of December, 1850, President ~~Robert J. Walker. ~Fillmore appointed William S. Derrick, chief On the 9th of December, 1847, President clerk of the State Department, to be acting Polk appointed McClintock Young to perform Secretary of State, during the temporary abthe duties appertaining to the office of Secre- sence of Mr. Webster from the seat of Governtary of the Treasury during the sickness of ment. ~Robert J. Walker. ~On the let of March, 1851, President Fill On the 10th of April, 1848, President Polk more appointed William L. Hodge to be acting appointed John Appleton, chief clerk of the Secretary of the Treasury ad interim during State Department, to be acting Secretary of the illness of the Secretary. State during the absence of the Secretary from On the 31st of March, 1851, President Fillthe seat of Government. more appointed William S. Derrick, chief clerk On the 26th of May, 1848, President Polk of the Department of State, to be acting Secreointed Archibald Campbell, chief clerk of tary of State during the absence of Mr. WebteWar Department, to be acting Secretary of ster. War during the temporary absence of the Sec- On the 10th of May, 1851, President Fillretary from the seat of Government. more appointed William S. Derrick, chief clerk On the 17th of August, 1848, President Polk of the Department of State, to be acting Secreappointed McClintock Young to act as Secre- tary of State during the absence of Mr. Webtary of the Treasury during the temporary ster. absence of Secretary Walker from the seat of On the 18th of May, 1851, President Fill ~~~Government. ~more appointed C. M. Conrad, Secretary of On the 2d of September, 1848, President War, to be acting Secretary of the Navy ad Polk appointed Isaac Toucey Attorney Gen- I interim during the absence of the Secretary. eral, to act as Secretary of State during the On the 16th of June, 1851, President Filltemporary absence of the Secretary. more appointed William L. Hodge, Assistant On the 2d of September, 1848, President Secretary, to act as Secretary of the Treasury Polk appointed John Y. Mason, Secretary of during the absence of the Secretary. the Navy, to act as Secretary of W~ar during On the 20th of June, 1851, President Fillthe temporary absence of the Secretary. more appointed William S. Derrick, chief On the 20th of November, 1848, President clerk of the Department of State, to be acting Polk appointed Isaac Toucey acting Secretary Secretary. of State during the temporary ab-.of State during the temporary absence of Mr. sence of Mr. Webster. Buchanan from the seat of Government. On the 11th of July, 1851., President Fill*On the 6th of March, 1849, President Taylor more appointed Charles M. Conrad, Secretary appointed McClintock Young to act as Secre- of War, to act as Secretary of the Navy during tary of the Trea-sury'until a successor to Mr. I the temporar absence of Mr. Graham from Walker should be duly appointed, the seat Of Governmnent.,On the 8th of March, 1849, President Taylor On the 14th of July, 1851, President Fillappointed Reverdy Johnson, Attorney General, more appointed William S. Derrick, chief to act as Secretary of War during the tempo- clerk of the Department of State to be -acting rary absence of the'Secreta~ry -from the seat of Secretary of State during the absence of Mr. rGovernment. Webster. On the 1st of October, 1849, President Taylor On the 4th of August, 1851, President Fillapponte WiliamS. Derrick, chief clerk of more appointed W. A. Graham, Secretary of the Dpartent f State, to act as Secretary of the Navy, to be acting Secretary of War durStat inthe bsece of the Secretary. ing the temporary absence of Mr. Conrad. On the 8th of October, 1849, President Tay- On the 4th of August, 1851, President Fillbrappointed John D. McPherson acting Sec- more appointed William L. Hodge to act as retary of War during the temporary absence -Secretary of the Treasury during the absence of Mr. Crawford "for the ensuing ten days." of the Secretary. On the 20th of June, 1850, President Taylor On the 3d of August, 1851, President Fillappointed John McGinnis, chief clerk of the more appointed W. A. Graham, Secretary of Treasury Department, to act as Secretary of the the Navy, to be, acting Secretary of the InTreasury during the absence of the Secretary tenior during the absence of Secretary A. HI. -from Washington. H1. Stuart from the city. On the 23d of July, 1850, President Fill- On the 13th of September, 1851, President 391 Fillmore appointed William A. Graham, See- retary of War during the absence of Secretar retary of the Navy, to act as Secretary of War Conrad. during the absence of that Secretary. On the 27th of August, 1852, President FillOn the 13th of September, 1851, President more appointed William L. odge acting Fillmore appointed William L. Hodge acting Secretary of the Treasury in the absence of Secretary of the Treasury during the absence Secretary Corwin. ~ Cof the Secretary. On the 2d of September, 1852, resident On the 22d of September, 1851, President Fillmore appointed Charles M. Conrad, SecreFillmore appointed Major General Winfield tary of War, to be acting Secretary of State Scott acting Secretary of War during the tern- in the absence of Mr. Webster. porary absence of the Secretary. Oil the 4th of October, 1852, President FillOn the 25th of September, 1851, President more appointed William L. odge to be actFillmore appointed John J. Crittenden, Attor- ing Secretary of the Treasury, Mr. Secretary ney General, to perform the duties of Secre- Corwin being unable by sickness to perform tary of State until the return to the seat of Gov- the duties of the office. ement of Daniel Webster, Secretary of State. On the 28th of October, 1852, President On the 26th of November, 18-51, President Fillmore appointed William L. Hoge acting Fillmore appointed William L. Hodge to act as Secretary of the Treasury in the asence of Secretary of the Treasury until the return of Mr. Corwin. ~Secretary Corwin.,On the 31st of December, 1852, President On the 20th of February, 1852, President Fillmore appointed William L. odge to act Fillmore appointed William S. Derrick, chief as Secretaryof theTreasuryduringthesickness clerk of the Department of State, acting Sec- of Mr. Corwin. retary of State in the absence of Mr. Web- On the 15th of January, 1853, President ~~~~~~~ster. ~Fillmore appointed William L. Hodge to act On the 21st of February, 1852, President as Secretary of the Treasury during the sickFillmore appointed William L. Hodge to be ness of Mr. Corwin. acting Secretary of the Treasury in the ab- On the 3d of March, 1853, President Fillsence of Secretary Corwin. more appointed William L. Hodge to act as On the 1st of March, 1852, President Fill- Secretary of the Treasury in the absence of more appointed William L. Hodge acting Sec- Mr. Corwin. ~reta~ry of the Treasurin the absence of Sec- Mr. CURTIS. I now offer documents from retary Corwin..y the Department of the Postmaster General. On the 19th of March, 1852, President Fill. They are all in one envelope, (sending- some more appointed William Hunter acting See- papers in an envelope to the Managers.) retary of State in the absence of Mr. Web- The CHIEF JUSTICE. The counsel will ster. state~ the nature of the documents. On the 26th of April, 1852, President Fill- Mr. CURTIS. They are documents. which more appointed William L: Hodge acting See- show the removals of postmasters during the retary of the Treasury during the indisposition session of the Senate and ad interim appointof Secretary Corwin. ments to fill the places. I believe they are all On the 2d of November, 185w, President of that character, though I am not quite sure. Fillmore appointed Charles M. Conrad, Secre- Some of them I know are. tary of War, to act as Secretary of the Navy Mr. Manager BUTLER. They are exactly of during the absence of that Secretary. the same kind that the Senate has just admitted. On the 1st of May, 1852, President Fillmore Mr. CURTIS. I should like to have those appointed William Hunter to act as Secretary read. They are short. of State in the absence of Mr. Webster. - The CHIEF JUSTICE. The Secretary will On the 19th of May, 1852, President Fill, read the documents. more appointed William A. Graham, Secretary The Secretary read as follows: of the Navy, to act as Secretary of War in the I hereby appoint St. John B. L. Skinner to be actabsence of Mr. Conrad. ing First Assistant Postmaster General ad interim in On the 214th of May, 1852, President Fill- place of Horatio King. now actikg Postmiaster General under the law. JAMES BUCHANAN. more appointed William L. Hodge to act as WASHINGTON, February 8, 1861. Secretary of the Treasury in t~he absence of Secretary Corwin. POST OFFicE DEPARTMENT. On the 10th of June, 1852, President Fill- WASHINGTON, D. C., April 7. 1888. more ppoited illim L. odgeto at as I, Alexander W. Randall, Postmaster General of the United States of America. certify that the foreSecretary of the Treasury in the absence of going is a true copy of the original order on file in Secretary Corwin. this Department, together with extracts from the On the 6th of July, 1852, President Fillmore records in said case. chief lerk f the In testimony whereof I have hereunto set my hand appointed William Hunter, che lr fte and caused the seal of the Post Office DepartDeatetof State, to act as Secretary of [a. i ent to be affixed at the General Post Office Department ~~~~~~~~~in the city of Washington the day andy ear State in the absence of Mr. Webster. above written. On the 19th of August, 1852, President Fill- ALEX. W. RANDALL. more appointed John P. Kennedy acting See- JPostmaster General. 392 NEW ORLEANS POST OFFICE, I find with this message, Senators, is, that it ORLEANS PARISH, LOUISIANA, June 29,1860. is the message of Mr. Buchanan, and cannot Samuel F. Marks, Postmaster: Let this office be be put in evidence any mn t placed temporarily in the hands of a special agent of the Department, to be appointed by the Postmas- tion of anybody else. We should like to have ter General, in place of Samuel F. Marks, removed. Mr. Buchanan brought here under oath, and tJAMES BUCHANAN. to cross-examine him as to this. There are a Hon. OS*F HOL, Potmaster General. great many questions I should like to ask him June 29, 1860. about his state of mind at this time; whethr Instructions sent to D. P. Blair, special agent, to he had that clearness of perception just then take possession of the office and remove Deutzel, of his duties which would make his messages ~~~~~~~~ch ~ofhsdief clerk.i oul D. P. Blair held the office from 9th July to Sep- evidence. But there is a still further objec~~~tember 4, 1860. ~tion, and that is, that most of the message is composed of the stateme Delcation of the late Po8tmaster of New York c t t.. y-Sixth Congress, First Sea- Black-Jeremiah S. B (Ex. Doe. No. 91, Thirty-SxhCogesFrt Se- Black"-Jeremiah S. Black-who refused to on, House of Representatives.) have anything to do wit Letter of Postmaster General Holt, transmittn haveranthing t do wit this case anhw GenrftlH~it~tseao te th [Laughter. ] And I do not report in reply to resolution of the House of the 5th ~June, 1860..~~ 9meats of those gentlemen, however respectOrder of the President. able, are to be taken here as evidence. They WASHINGTON, May 10, 1860. may be referred to as public documentsper New York Post Office, New York county, New haps, but I do not think they can be put in as York State-Isaac V. Fowler, Postmaster; $75,000 evidence. How do we know how correctly Mr. bond. Let this office be placed temporarily in the hands Blackmade up this list oru of a special agent of the Post Office Department, to going to put in his statements of what wa be appointed by the Postmaster General, in place of done, and put it upon us or yourselves to IsaacV. Fwlerremoed. JAMES BUCHANAN, examine to see whether they are not all illuHon. JOSEPH OLT, Postmaster General. sory and calculated to mislead?. do not care H. ST. GEORGE OFFUTT, Special Agent. to argue it any further. See printed report for further proceedings. Mr. JOHNSON. What is it offered for? January 21,1861. Mr. CURTIS.. I only wish the Senate to Milwaukee Post Office, Wisconsin, Milwaukee understand the purpose with which we offer couty-Mitchell Steever, postmaster, (failed to pay this, and that will be, as view it, argument draft.) eog.W fe tfrteproeo'hw Let this office be placed temporarilyinthe hands enough. We offer it for of a'special agent of the Post Office Department, to ing the practice of the Government. This is be appointed by the Post Office Department. an act done by the head of the Government in JAMES BUCHANAN. cneto ihteSnt fteUie January 25, 1861. cneto ihteSnt fteUie D. M. Bull, special ag-ent, took charge 6th Feb- States. We offer to show that act as a part of ruary, 1861, and subsequently handed over the snade the practice of the Government. to W. A. Bryant, special agent, who remained in Mr. Manager BUTLER. The practice of charge ilp to 31st March, 1861. the Government!I I object, once for all, to I hereby appoint St. John B. L. Skinner, now act- the practice of this Government being shown lug First Assistant Postmaster General, to be acting by the acts of James Buchanan and Jeremiah Postmaster General ad interins in place of Hon,. Black. Pf you choose to take it, I have no Montgomery Blair, now temporarily absent. ABRAHAM LINCOLN. objection. WASHINGTON, Septembes- 22, 1862. The CHIEF JUSTICE. The Chief Justice [Each of these documents is attested by Post- will submit the question to the Senate. Senamaster General Randall according to the form tors, you who are of opinion that the evidenc~e before given.] just offered shall be received will please say. Mr. CURTIS. I now offer in evidence, ay; those of the contrary opinion, no. [Put. reading from the published Executive Docu- ting the question.] Thle ayes appear to have ments of the Senate, volume four, second ses- it-the ayes have it. The evidence is admitted. sion, Thirty-Sixth Congress, page one, a mes- Mr. CURTIS, The message is short, and I'sage of President Buchanan to the Senate in desire it to be read. respect to the office of Secretary for the De- The Secretary read as follows: partinent of War, and the manner in which he Message from the President of the United States in had filled that office in place of Mr. Floyd, and answer tt, a resolution of the Senate respecting the accompanying that message is a'list ofthe names vacancy in the office of Secretary of War.'of those persons, as shown by the records of the To the Senate of the United States: Deparmentof Stte, ho ha disharge the In compliance with the resolution of the Seniate, ofe offiers of Sttheh Cabinetbyappoint-e passed on the 10th instant, requesting me to inform deties ofofcr fteCbntb pon-that body, if not incompatible with the public inmerit inade-in the recess, and those confirmed terest., "whether John B. Floyd, whose appointment by the Senate, as well as those acting ad as Secretary of War was confirmed by the Senate on th t fMarch, 1857, still continues to hold said interim, or simply acting. This list is pri nted office, and if not, when and how said office became as an appendix to the message, and was sent vacant; and further to inform thle Senate how and into he Snate.I wih tht mesage o beby whosn the duties of said office are now discharged; into he Snate.I wih tht mesage o beand if an appointment of an acting or provisional read. Secretary oIf War has beesi made, how, whies, and'by Mr. Manager BUTLER. The difficulty that what authority it was so made, and why the fact of 393 said appointment has not beentommunicated to the lieved that the c mpensation provided bylawfor the Senate," I have to infrm the Senate that John B. officer regularly commissioned was paid to thepers Floyd, the late Secretary of the War Department, who discharged the duties ad interim. To give the resigned that office on the29th day of December last, Senate a more detailed and satisfactory viewof the and that on the 1st day of January instant Joseph subject I send the accompanying tabular statement t was authorized by me to perform the duties of certified by the Secretary of State, in which the inthe said office until a successor should be appointed stances are all set forth in which provisional, as well or the vacancy filled. Under this authority the as permanent, appointmentsweremadetothehighest duties of the War Department have been performed executive offices from 1829 nearly tothe present time, by Mr. olt from the day last mentioned to the with their respective dates. ~~~~~~present time. ~It mustbeallowedthat these precedents, so numerThe power to carry on the business of the Govern- ous and so long continued, are entitled to great rement by means of a provisional appointment when spect, since we can scarcely supposethat the wise and a vacancy occurs is expressly given by the act of eminent men by whom they were made could have February 13, 1795, which enacts "that in case of va-been mistaken on a point which was brought to their cancy in the office of Secretary of State, Secretary of attention so often. Still less can it be supposed that the Treasury, or ofthe Secretary ofthe Department of any of them willfully violated the law or the ConstiWar, or any officer of either of the said Departments, tution. whose appontmentinotinthe headthereof,whereby The lawfulness of the practice rests upon the exithey cannot perform the duties oftheir said respective gencies of the public service, which require that the offices, it shall be lawful for the President of the movements of the Government shall not be arrested United States, in case he shall think it necessary, to by an accidentalvacancyin one of the Departments; authorize any person or persons, at his discretion, to upon an act of Congress expressly and plainly giving perform the duties of the said respective offices until and regulating the power; and upon long and unina successor be appointed or such vacancy be filled: terrupted usage of the Executive, which has never Provided, That no one vacancy shall be supplied, been challenged as illegal by Congress. in manner aforesaid for a longer period than six This answers the inquiry of the Senate so far as it ~~~~~~~months." ~~is necessary to show " how and by whom the duties It is manifest that if the power which this law of said office are now discharged." Nor is it necesgives had been withheld the public interest would saryto explain furtherthanhavedone " how, when, rious detriment. Vacancies and by what authority" the provisionalappointment mae curntly anye te n the most d imortant offices has been made. But the resolution makes the addiwh cch cannt by immediately amnd peortanentlfilles tional inquiry "whythe fact of said appointmenthas winh acannober sat eisfa tory th andppoifanting pow ler.d not been communicated to the Senate." wnaswisneto makesfaptrovisonwheapichwoul poenrbete to take it for granted that the Senate did not mean Preswiden to mavoi a trotav usesion whc ofl enbu ete t call for the reasons upon which I acted in perthesidnterval anod equoall wispesion tof lim it essin forming an executive duty, -nor to demand an account tive diseretion asnt pevently any serouso abuste ofeit. of the motives which governed me in an act which thise discrwhonat the framersofth act ofiou1795e dfidan the law and the Constitution left to my own discreneisit her the policysnor the costttiona val5 idit ofd tion. It is sufficient, therefore, for that part of the netheir lawhasolc been quescntttioned lfr vsity- iveyears resolution to say that a provisional or temporary theila practiceeof maksiongdfo suchtappintyents, appointment like that in question is not required by whether i acation or during tuhe sepsiontofCn-s law to be communicated to the Senate, and th atthere gresshas ben avcatonstnl for weduring th every AdCo- is no instance on record where such communication ministration from the earliest period of the Govern- evrWASHbeNGTN made.r JAMEBUCANAN ment, and its perfect lawfulness has never, to my WsiNOJeie'1518. knowledge, been questioned or denied. With out going back further than the year 1829, and without taking U1ITED STATES OFi AMERICA, into the calculation any hut the chief officers of the Dpartment of State: several Departments, it will be found that provisional To all to whom these presents shell come, greeting: appointments to fill vacancies were made to the num- I certify that the document hereunto annexed conher of one hundred and seventy-nine, from the com- talus a correct list, duly examined and compared mencement of General Jackson's administration to with the record in this Department, of those persons the close of General Pierce's. This number would who have been commissioned by the President of probably be greatly increased if all the cases which the United States as heads of Departments, during occurred in the subordinate offices and bureaus were the recess of the Senate, as confirmed by that body, added to the count. Some of them were made while as acting ed interim or merely acting, from March 4, the Senate was in session; some which were made in 1829, to December 20, 1860, both inclusive. vacation were continued in force long after the Senate In testimony whereof I, J. S. Black, Secretary of assembled. Sometimes the temporary officer was the State of the United States, have hereunto subscribed commissioned head of another Department, some- my name and caused the seal of the Department of times a subordinate in the same Department. Some- State to be affixed. times the affairs of the Navy Department have been Done at the city of Washington, this 15th day of directed ad interim by a commodore, and those of the r January, A. D. 1861, and of the independ.War llepartment by a general. In most, if not all, L,' ence of the United State-~ of America the of the cases which occurred previous to 1852 it is be- eighty-fifth. J. S. BLACK. A list of the names of those persons, as shorwn by the records of the Department of State, who discharged the duties of officers of the Cabinet, whether by appointment made in recess and those confirmed by the Senate, as well as those acting ad interim or simply acting. Names. Office. Date of appointment. Character of appointment. Under President Jackson. James A. Hamilton................... Secretary of State....................................................March 4,1829....................................... Acting. Martin Van Buren.................... Secretary of State.................................................... March 6, 1829................... Regular. Samuel D. Ingham...................................................... S ec ret ary of the Treasury........................................ March 6, 1829.................................... Regular. John Macpherson Berrien.......................................... Attorney General...................................................... March 9, 1829...................................... Regular. John Branch...............................................................Secretary of the Navy............................................. March 9, 1829....................................... Regular. William T. Barry........................................................ Postmaster General..................................................March 9,1829......... Regular. John 11. Eaton............................................................ Secretary of War...................................................... March 9, 1829....................................... Regular. Asbur Dickins........................................................... Secretary of the Treasury................ April 24, 1829................... Acting. William B. Lewis........................................................ Secretary of War...................................................... July 7, 1829.......................................... Acting. Richard H. Bradford.................................................. Secretary of the Navy............................................. July 8,1829.......................................... Acting. William B. Lewis........................................................ Secretary of War...................................................... August 19, 1829.................................... Acting. J. G. Randolph............................................................ Secretary of War......................................................November 7, 1829................................ Acting. Philip G. Randolph..................................................Secretary of War...................................................... June 12, 1830........................................ Acting. J. G. Randolph.. Secretary of Walr.............................March 8. 1831.. Acting. John oyleJ. G. Randolph........................................................... Secretary of War...................................................... March 8. 1831....................................... Acting. John Boyle.................................................................. Secretary of the N avy............................................. M arch 19,1831...................................... Acting. John Boyle.......... S ecret ar y of the Navy............................................. May 12, 1831......................................... Acting. Edward Livingston............... -..................... Se r t yof ta e.................................................... M ay 24, 1831......................................... Regular. d E dward Livingston........................................... S ecret ar y of State....May 24,1831 Regular. Levi Wo o dbury....................................................... Secretary of the Navy......... May 23,1831........................................ Retular. Philip G. Randolph.................................................... Secretary of War.................June 18, 1831..Ad interim. Asbury Dickins.................................. Secretary of the Treasury............................... June 21, 1831.. Ad interim. Roger B. Taney..Attorney General................................................. July 20, 1831........................................ Regular. ewis Cass..............................................................Secretary of War.... August 1, 1831..Regular. Roger B. Taney............................................................Seretary ofWar....................July 20, 1831........................................ Acting. Louis McLane..........................................Secretary of the Treasury................................... August 8, 1831............ Regular. John Boyle.......................................................... ecretary of the Navy.........................................August 10,11 Acting. Daniel Brent.......................................... Secretary of State.................................................... August 10, 1831.................... Acting. Roger B. Taney...........................................................Secretary of War......................................................September 12, 1831......... Acting. Louis ML ane............................................................ Secretary of War........................................September 13, 1831................... Acting. Asbury Dickins............................................................. October 18,1831.................................... g Levi Woodh ury......................................Secr eta-ry of War....Octoher...............18,1831.. Acting.1...................Acig LAsury Diekins................. n:'.:'Secretary of the Trea sury....March 17, 183..................Acting. John.Roh l Secretary of War. n8................... A, 1832........................ Acting. John Robb h..................... Secretary of War........ July 16, 1832............ Acting. Johnie R Bren................................................................. Secretary of State..................................................... Julys 16, 1832..................:.................... Acting. Daniel Brent........................................................... Secretary of State.................................................. July 21. 1832....................... Acting. John Boyle...................................................................S ecret ar y of the Navy................ July 23,1832........................ Acting. Ashury Dickins.,.Secretary of the Treasury...Jully 18,1832..Acting. Asbury Dickins................................. Secretary of the Treasury........................................ o er 8, 1832.................................... Acting. * John R ohb............ Secretary of War.........................................N............ovember 12. 183... Acting. John Asbury Dickinsle................................. Secretary of the Treasury........................................ Ma rch 28, 1832....................... Acting. John Robb..................................................................Secretary of War...................................... Novmy 6, 1 83 2............................... Acting. Ashnury Dickins............................................................... Secretary of the Trea.............................. Ma..........y 62, 1 833......................... Acting. John Roble.................................................................. Secretary of Wh avy......................................... Muly 63,1833......................................... Acting. Louis Me~~~~~~ane.. Secretary of State..~~~~~~~~~'...' May 13, 1833.Acting. Asbury Dickins............................................................ Secretary of the Treasury.....183.................................... Jl 813.. Atn. Louis M cLane............................................................. Secretary of State....................................................... M ay 13 1833......................................... Acting. Asbury Dickins........................................................... S ec ret ary of the Treasury...................................... May 29, 1833......................................... Acting. Louis McLane............................................................, Secretary of State............................................... May 29, 1833....................................... Regular. WilialJliat e.....J......uaeceery Secretaryry.......of...th.....T...ea...ury?9,13May....29...1 8 33.....Reg....lar.uar Daniel Brent...Scrtr o tte.Jae5 13.Acting. John Robb........... Secretary of War............................. June 6, 1833....... Acting. John Boyle.............. Secretary of the Navy.........................June 5. 1833....... Acting. Daniel Brent.... Secretary of State.............................June 13, 1833.. Acting. Asbury Diek..ns.... Secretary of State...........................August 10. 1W:. Acting. Roger B. Taney...............i............... Secretary of the Treasury...................... September 23, 1833................. Regular. John Robb................................... Secretary of War.............................Sentember 28,1833................. Acting. PeterV Dnil.V......Daniel................ AttorneyAtone GnealGeneral...............October...... ctb222,1833...........Regular..... Reulr Benjamin F. Butler.............................Attorney General............................ November 15, 1833.................. Regular.. MeClintock Young............................. Secretary of the Treasury...................... June 25, 1834...................... Ad interim. Levi Woodbury................................ Secretary of the Treasury.......................June 27, 1834...................... Regular. Mahlonu Dickerson............................. Secretary of the Navy... June 30. 1834...................... Regular. John Boyle.................................... Secretary of the Navy-::::::::.......... July 5, 1834....................... Acting. Asbury Dickins................................ Secretary of State...................... July 8, 1834....................... Acting. Benjamin F. Butler............................. Secretary of War............................. No date......................... Acting. John Forsyth.............................:.... Secretary of War..............................No date......................... Acting. Mahlon Dickerson............................. Secretar3r of War.............................October 8. 1834.................... Acting. Asbury ikis...Dicki......s.........Secretary....... ec ofryofState..........October........11......1834tbe.. Acting.:: ctng Mahoh Diko son.Di....kerson............Secretary... S ofar o WrWar........January.......19......1835..anar. Acting... ng Amos Kendall................................. Postmaster General.......................... May 1, 1835....................... Regular. Asbury ckn.......Dickins.................. Secretaryrtay f tae....of.....State............. May... ay22,35...1835.........Acting..... Atig John Boyle................................... Secretary of the Navy...................... May 7, 1835....................... Acting. Carey C. Harris................................ Secretary of War.......................... May 18, 1835....................... Acting: Asbury Dickins................................ Secretary of State............................ July 6, 1835....................... Acting. McClintock Young............................. Secretary of the Treasury..................... July 1, 1835....................... Acting. Asbury Dickins............................... Secretary of State............................ August 31, 1835.................... Acting. -A-sbury Dickins............................... Secretary of State...................... September 28, 1835................ Acting. Mc~~lintock Young.... Secretary of the Treasury... October 20, 1835.. Acting.-, Acting McaryC.itc on Hri............................. Secretary of Wh rar.y................... October 23, 1835.........Acting....... Carey.Hari...C.....Harris................ Secretaryerear o Wr..of....W..............April...... c 29. 3,1851836.........Acting.... Atig Carey C. Harris................................ Secretary of War............................ May 27, 1836....................... Acting. Asbury Dickins................................ Secretary of State........................... July 7, 1836....................... Acting. John Boyle................................... Secretary of the Navy........................ July 9, 1836....................... Acting. C. A. Harris.................................. Secretary of War.......................... July 18,1836....................... Acting. C.A.HarA......Harris...............Secretary...... Scrtayof a..War..........September......... Setm 8,, 81836.........Acting.... Atig B. F. Butler........................ Secretary of War.............................October 25, 1836.................... Ad interim. B. F. Butler........................ Secretary of War.............................March 3, 1837..................... Regular. Under President Van Buren. Joel. oist.R......Po.......set.......Secre..... tarrtfyf y r..of.....War...........March...... arh7. 1837..........Regular...... Reulr A. 0. Dayton.................................Secretary of State............................June 28,1837..................... Acting. Mceinoclintock......Young.....Secretary f he resof..the....Treasury...........October0 137..20.....1837.....Acting. ctng John Boyle......................Secretary of the Navy......................... October 23, 1837................... Acting. James K. Paulding............................Secretary of the Navy........................ June 25, 1838..................... Regular. Felix Grundy.................................Attorney General...........................July 5, 1838..................... Regular. Johnoye.....Boyle.......Secretary.................ofereay theheNvy..Navy.............July...... 21,1,188.1838........Acting..... Atig McClintock Young............................Secretary of the Treasuty...................... July 10, 1838..................... Acting. Aaron Vail..................................Secretary of State.............................July 21, 1838..................... Acting. McClintock Young...................... Secretary of the Trauy....., April 24, 1839..................... Acting. Vail.Secretary...........................ofertayoState...........P...k......June........J 8e,,189.1839.........Acting...... Atig'clnokYoung............................Secretary of the Tra y,-....... June 15.1839..................... Acting: STATEMENT-Continued. Names. Office. Date of appointment. Characterof appointment. Under Presidents Harrison and Tyler. Henry D. Gilpin.......................................................... Attorney General..................................................... January 11, 1840.................................. Regular. JoHenr D. Giles............................................................ Postmaster General................................................. MJanuary 1 1, 1840......................................... Regular. J. L. Martin............................................................... Secretary of State..................................................r. August 26, 1840.................................... Acting.. John M. Martin.............................................................s.. Secretary of State neral................................................. May.. October 19,1840.................................... Acting. J. L. Martin..Secretary of State.- August 26. 1840..Acting. J. L. Martin.. Secretary of State October 16, 1840.. Acting. McClintock Young...................................................... Secretary of the Treasury...................................... March 2,1841...................................... Ad interim. J. L. Martin....................................................Secretary of State................................................... March 2, 1841..................................... Acting. Thomas Ewing............................................................ Secretary of the Treasury....................................... March 5, ].8 41...................................... Regular. Daniel Webster............, Secretary of State................................................... March 5,1841....................................... Regular. John Bell.............Secretary of War.March 5.1841.Regular. John Bell.................................................................... Secretary of War.................................................... March 5, 1841........................................ legular. George E. Badger........................................................ Secretary of the Navy............................................. March 5,1841....................................... Regular. John J. Crittenden..................................................... Attorney General.....................................................March 5,1841....................................... Regular. Francis Granger......................................................... Postmaster General March 6,1841....................................... Regular. John D. Simms........................................................... Secretary of the Navy............................................. March 9,1841....................................... Acting. Daniel F. Webster...................................................... Secretary of State................................................... April 27, 1841....................................... Acting. McClintock Young...................................................... Secretary of the Treasury....................................... September 13, 1841.............................. Ad interim. Walter Forward......................................................... Secretary of the Treasury....................................... September 13, 1841.....................R......... egular. A. P. Upshur............................................................... Secretary of the Navy............................................. September 13, 1841.............................. Regular. Charles A. Wickliffe.................................................. Postmaster General................................................. September 13,1841............................. Regular.C Hugh S. Legare.......................................................... Attorney General..................................................... September 13,.: 41............................. Regular. John McLean.............................................................Secretary of War..................................................... September 13, 1841............................. Regular. C John C. Spencer......................................................... Secretary of War..................................................... October 12, 1841................................... Regular, William S. Derrick..................................................... Secretary of St a te......October 20, 1841.................................. Acting. McClintock Young...................................................... Secretary of the Treasury....................................... October 30, 1841................................... Acting. McClintock Young...................................................... Secretary of the Treasury....................................... May 14, 1842......................................... Acting. McClintock Young...................................................... Secretary of the Treasury....................................... June 30, 1842....................................... Acting. McClintock Young...................................................... Secretary of the Treasury...................................... July 20, 1842......................................... Acting. McClintock Young...................................................... Secretary of the Treasury....................................... November 1, 1842..........................Acting. McClintock Young......................................................Secretary of the Treasury....................................... March 1, 1843....... Ad interim. John C. Spencer......................................................... Secretary of the Treasury....................................... March 3, 1843...................................... Regular. James Madison Porter................................................ Secretary of War.....................................................March 8, 1843....................................... Regular. MeClintock Young........ Secretary of the Treasury..........June 8, 1843.Acting. McClintock Young.Leare...................................................... Secretary of State Treasury....................................... MayJune 8, 1843......................................... Actd ing.ter. HughWillia S. Legare.......................................................... Secretary of State................................................... May 9,1843.......................................... Ad interin. William S. UpshuDerrick..................................................... Secretary of State................................................... June 24,1843.......................................... Actd interim. Samuel R~ume Porter.Secretary of War.May 31, 1843.Acting. Williambel P. Upshur........................................................... Secretary of State................................................... June 24,1843...................................... Ad nterim. SamuJohn Nel ume Porter.................................................. Secretary of War..................................................... MJuly 31, 1843......................................... Acting. William. UpshuDerrick..................................................... Secretary of State................................................... August 17, 1843.................................... Acting. DavidJohn Nelson.............................................................. Attorn ey General..................................................:.. July 24 1 843.......................................... Regular. A. P. Upshur.............................................................. Secretary of State................................I................... July 24, 1843......................................... Regular. MClDavid Henshntockaw.......................................................... Secretary of the Treasury...................August............................July 28, 1843......................................... Regular. McClintock Young...................................................... Secretary of the Treasury....................................... August 28, 1843.................................... Acting. John Nelson............................................................... Secretary of State................................................... February 29 1844............................. Ad interim. Thomas W. Gilmer.Secretary of the Navy................................ Tho as. Glme........................................ Secretary-of the Navy........................................... February 1 844................................. Regular. William Wilkins......................................................... Secretary of War...................................................... February 15,1844................................. Regular. John Y. Mason........................................................... Secretary of the Navy............................................. March 14, 1844...................................... Regular. John C. Calhoun......................................................... Secretary of State.................................................... March 6, 1844....................................... Regular. McClintock Young........................................................ Secretary of the Treasury............................... May 2, 1844.......................................... Ad interim. George M. Bibb........................................................... Secretary of the Treasury......................................... June 15,1844........................................ Regular. Under President Polk. James Buchanan........................................................Secretary of State....................................................March 6,1845....................................... Regular. Robert J. Walker.................................................. Secretary of the Treasury....................................... March 6, 1845....................... Regular. William L. Marcy.................................................. Secretary of War..................................................... March 6, 1845...................................... Regular. Cave Johnson.............................o..............................Postmaster General..................... March 6,1845...................................... Regular. John Y. Mason...........................................................Attorney General March 6, 1845..................................... Regular. George Bancroft.......................................................... Secretary of the Navy. March 10,1845................................... Regular. John Y. Mason............................................................ Secretary of State..................................................... April 2, 1845............................. Acting. John Y. Mason........................................................... Secretary of State.................................................... August 4, 1845...................................... Acting. N. P. Trist.................................................................. Secretary of State.................................................... March 31, 1846............................. Acting. N. P. Trist.................................................................. Secretary of State............................................... September 2,1846................................. Acting. John Y. Mason........................................................... Secretary of the Navy....................... September 9,1846................................. Regular. McClintock Young...................................................... Secretary of the Treasury........................................ October 7,1846................................ Acting. Nathan Clifford........................................................... Attorney General..................................................... October 17, 1846................................... Regular. N. P. Trist................................................................ Secretary of State.................................................... March 11, 1847..................................... Acting. N. P. Trist.................................................................. Secretary of State.................................................... March 31, 1847.................................... Acting. John Y. Mason........................................................... Secretary of State.................................................... June 28, 1847....................................... Acting. McClintock Young...................................................... Secretary of the T reasury........................................ July 21, 1847....................................... Acting. William S. Derrick...................................................... Secretary of State.................................................... August 4, 1847..................................... Acting. McClintock Young...................................................... Secretary of the Treasury........................................ October 15, 1847.............................Acting. McClintock Young...................................................... Secretary of the Treasury........................................ December 9, 1847............................. Acting. John Appleton............................................................ Secretary of State.................................................... April 10, 1848....................................... Acting. Archibald Campbell, Jr.............................................. Secretary of War............. May 26, 1848......................................... Acting. Isaac Toucey.....:.......................................................... Attorney General................................................... June 21,1848........................................ R~egular. Isaac Toucey....:Attorney General................June 21,1848........Regular. Isaac Toucey.............................................................. Secretary of State............................................ September 2,1848............................. Acting. John Y. Mason........................................................... Secretary of War.................... September 2, 1848................................ Isaac Toucey............................................................... Secretary of State................... November 20,1848............................... Acting, C Under Presidents Taylor and Fillmore. McClintock Young...................................................... Secretary of the Treasury.................................... March 6,1849.................. Ad interim. John M. Clayton......................................................... Secretary of State................................................ Regular. William M. Meredith.................aSecretary of the Treasury....................March 8, 1849.. Regular. William M. Meredith................................................. Secretary of the Treasury........................................ March 8, 1849....................................... Regular. George W. Crawford................................................... Secretary of War...................................................... March 8, 1849....................................... Regular. William B. Preston.................................................... Secretary of the Navy............................................. March 8,1849....................................... Regular. James Collamer..........................................................Postmaster General.................................................. March 8, 1849....................................... Regular. Reverdy Johnson........................................................Attorney General.................................................... March 8,1849....................... Regular. Thomas Ewing............................................................Secretary of the Interior.......................................... March 8, 1849...................................... Regular. Reverdy Johnson..Secretary. o S ecretary of War...................................................... M arch 8. 1849.......................... Acting. William S. Derrick..................................................... Secretary of State.................................................... October 1, 1849......... Acting. John D. McPherson................................................... Secretary of War...................................................... October 8, 1849............................. Acting. John McGinnis.......................................................... Secretary of the Treasury........................................ June 20,1850.................................. Acting. Winfield Scott.............................................................Secretary of War...................................................... July 23, 1850................................ Ad interim. Nathan P. Hall...........................................................Postmaster General July 23,1850 Regular. Thomas Corwin........................................................... Secretary of the Treasury........................................ July 23, 1850.............................. Regular. Daniel Webster............................... Secretary of State..................................................... July 22, 1850....................................... Regular. W. A. Graham............................................................Secretary of the Navy............................................. July 22, 1850......................................... Regular. John J. Crittenden...................................................... Attorney General....................................................July 22, 1850......................................... Regular. Charles M. Conrad...................................................... August 15, 1850............................. Regular. Alexander 1.. Stuart.............................................Secretary of the Interior.......................................... September 12,1850............................. Reglar. W. S. Derrick..............................................................Secretary of State.................................................... October 4,1850............................. Acting. Allen A. Hall...............................................................Secretary of the Treasury........................................ October 7,1850..................................... Acting. W. S. Derrick............................................................. Secretary of State.................................................... December 6, 1850................................. Acting. W. L. lodge...............................................................Secretary of the Treasury........................................ March 11, 1851..................................... Acting. W. S. Derrick..............................................................Secretary of State..................................................... March 31, 1851..................................... Acting. W. S. Derrick...............................,............................. Secretary of State.................................................... May 10,1851......................................... Acting. STATEMENT-Continued, Names. Office. Date of appointment. Character of appointment. C. M. Conrad............................................................... Secre tar y o f the Navy........................................... May 15, 1 85 1......................................... Acting. W. L. Hodg............................................................... Secretary of the Treasury........................................June 16, 1851....................................... Acting. W. S. Derrick.............................................................. Secretary of State.................................................. June 20,1851....................................... Acting C. M. Conrad............................................................... Secretary of the Navy............................................. July 11, 1851........................................ Acting. WV. S. Derrick.............................................................. Secretary of State..................................................... July 14, 1851......................................... Acting. W. A. Graham............................................................Secretary of War...................................................... August 4, 1851...................................... Acting. W. L. Hodge............................................................... Secretary of the Treasury................................. August 4, 1851...................................... Acting. W. A. Graham............................................................ Secretary of the Interior.......................................... August 4, 1851...................................... Acting. W. A. Graham............................................................ Secretary of War..................................................... September 13,1851............................... Acting. W. L. I-odge............................................................... Secretary of the Treasury........................................ September 13, 1851............................... Acting. Winfield Scott............................................................ Secretary of War................................................. 13September 22, 1851............................... Acting. Winfield Scottecret..........Seer........................................... 2 J. J. Crittenden........... Secretary of State.............................................. September 25, 1851............................... Acting W. L. Hodge............................................................... Secretary of the Treasury....................................... November 26, 1851.............................. Acting. W. S. Derrick.............................................................. Secretary of State...................................................February 20, 1852................................. Acting. W. L. -lodge.............................................................. Secretary of the Treasury....................................... February 21, 1852................................. Acting. W. L. Hlodge............................................................... Secretary of the Treasury..... March 1, 1852....................................... Acting. William Hunter......................................................... Secretary of State................................................... March 19,1852...................................... Acting. William L. Hodge...................................................... Secretary of the Treasury....................................... April 26,1852....................................... Acting. C. M. Conrad.............................................................. Secretary of the Navy............................................. November 2,1850................................. Acting. Williaam Iunter......................................................... Secretary of State................................................... May 1,1852.......................................... Acting. C. M. Conrad.............................................................. S ecret ar y of the Navy............................................. May 19, 1852......................................... Acting. William L. Hodge...................................................... Secretary of the Treasury....................................... May 24, 1852......................................... Acting. William L. lIodge...................................................... Secretary of the Treasury....................................... June 10, 1852........................................ Acting William lIunte r......................................................... Secretary of State..... July 6, 1852.......................................... Acting. John P. Kennedy................... Secretary of the Navy.................................... July 22, 1852.....Regular. John P. Kennedy........................................................ Secretary of War1....................... August,1852...........Acting. W. L. Hodge.......................................... Secretary of the Treasury.................................. August 27, 1852....... Acting. Samuel D. Hubbard................................................... Postmaster General.............................................. August 31,1852................................... Regular. C. M. Conrad.............................................................. Secretary of State....................................... September 2, 1852................................. Acting. W. L. Hodge................................................... Secretary of the Treasury....................................... October 4,1852.................................... g W. L. I-onrad............................................................... Secretary of State.................................................. September 28,1852................................... Acting. W. L. lodge......................................................... Secretary of the Treasury o ber,1852..................................... 28,1Acting. EdW. L. Hodge............................................................... Secretary of State Treasury..................................... November 6,1852................................ Regular. Ew.ar H d-Eve..tt.......................................................... Secretary of State.................................................. JZnuambry 6, 1853.................................. Actigua. W. L. Hoge............................................................... S ecretary o f th e Treasury....................................... December 31 85................................ Acting. W. L. Hodge............................................................... Secretary of the Treasury....................................... January 15, 1853.................................. Acting. William Hunter........... Secretary of State..................... March 3 1853 Ac interim W. L. Hodge........ Secretary of the Treasury.:....................., March 3, 1853....................... Acting. Under President Pierce. W. L. Marcy............................................................... Secretary of State....................g ar.................... James Guthrie............................................................Secretary of the Treasury................. Marc 7, 853..Regular Robert McClelland.................................,Secretary of the Interior................March 7,1853...................1853................... Regular.. Jefferson Davis...........................................................Secretary of War....................................... March 7,1853....................................... Regular. J. C. Dobbin............................................................... Secretary of the Navy...................March 775. 15 Regular. James Campbell.........................................................Postmaster General......................................... March 71853.................................... Regular. Caleb Cushingai............General.....Mrh7a.......................................... ar 7 W........... Regular. P. G. Washington............ Secretary of the Treasury............................ July 11, 1853..Acting. P. G. Washingo........................................................... Secretary of the Trasuy........................................... Julyrch 1853.......i...........................-..... Actigua. J. C. Dobbin................................................................ Secretary of War................................................... July 11, 1853........................................ Acting. A. D. Mann..........................y o e..................................... ecretary of State... July 29 53......................................... Acting. P. G. Washington................................................ Secretary of the Treasury............................. September 23. 1853.............................. Acting. A. D. Mann................................................................ September 28,1853.............................. Acting. P. G. Washington........................................................Secretary of the Treasury...................................... April 12, 1854..................................... Acting. William Hunter......................................................... Secretary of State.............................. August 21, 1854............................... Acting. Archibald Campbell...................................................Secretary of War..................................................... August 29, 1854.................................... Acting. P. G Washington.......................................................Secretary of the Treasury.......................................October 5. 1854.Acting. Archibald Campbell.................................................. Secretary of War..................................................... October 30. 1854.................................. Acting. P. G. Washington........................................................ Serr ta ry o f the T reasur y....................................... May 5, 1855.......................................... Acting. Samuel Cooper........................................................... Secretary of War............................... May 26, 1855.................... Acting. William Hunter.........................................................Secretary of State................................................... July 21, 1855...Acting. P. G. Washington........................................................Secretary of the Treasury...................................... August 6, 1855...................................... Acting. Archibald Campbell................................................... Secretary of War..................................................... October 9,1855.............................. Acting. Archibald Campbell...................................................Secretary of War..................................................... January 19,1857................................... Acting. Samuel Cooper........................................................... Secretary of War............. March 3,1857....................................... Acting. Under President Buchanan. Lewis Cass.................................................................. Secretary of State...................................................March 6,1857....................................... Regular. Howell Cobb.............................................................. Secretary of the Treasury...................................... March 6, 1857....................................... Regular. Jacob Th ompson........................................................ S ecreta ry of the Interior......................................... March 6, 1857................................ Regular. John B. Floyd............................................................ Secretary of WarMarch................................... Isaac Toucey.................................................................... f heNay............. M rh0 87................................ Marc 6,15..... Regular. Isaac Troucey............... Secretary of the Navy............................................. March 6,1857................... Regular. Aaron V. Brown......................................................... Postmaster General................................................. March 6 1857....................................... Regular. J. S. Black.................................................................. Attorney General................................................... March,1857.................................... Regular. Phi lip Clayton............................................................ Secretary of the Treasury....................................... April 23, 1857....................................... Acting. John Appleton........................................................... Secretary of State...................................................June 1, 1857.......................................... Acting. Philip Clayton............................................................ Secretary of the Treasury....................................... June 28, 1858........................................ Acting. Philip Clayton............................................................ Secretary of the Treasury.........July 13, 1858......................................... Acting. John Appleton........................................................... Secretary of State................................................... August 20, 1858.................................... Acting. Joseph IHolt............................................................... Postmaster General................................................. March 14, 1859..................................... Regular. i Philip Clayton............................................................ Secretary of the Treasury....................................... April 26, 1859....................................... Acting. William R. Drinkard.................................................. Secretary of War.....................................................July 5, 1859.......................................... Acting.' Philip Clayton............................................................Secretary of the Treasury....................................... July 26, 1859........................ Acting. Philip Clayton............................................................Secretary of the Treasury....................................... Auust 0,1859.................................... Acting. Philip Clayton............................................................Secretary of the Treasury....................................... May 30. 1860......................................... Acting. William H. Trescott............... Secretary of State...................................................June 26,1860........................................ Acting. Philip Clayton............... Secretary of the Treasury....................................... July 27,1860...................... Acting. Philip Clayton....................................................... Secretary of the Treasury. O ctob er. 1860............................. Acting. Philip Clayton............................................................ Secreta ry of the Treasury....................................... October, 1860.......Acting. Philip Clayton............................................................ Secretary of the TreasuryN ovem ber 26, 1860....................................... o ber 2, 1860....Acting. Pisaac Clayto....................................................... Secretary of the Treasury.......................................] December 26, 1860'........................... Adtinteim Isaac Touce..Secretary of the Treasury.December 10, 1860.............................. Ad interim, Philip F. Thomas.................................................. Secretary of the Treasury....................................... D ecem ber 12, 1860................................ Regular. W. Hunter.................................................................. Secretary of State................................................... December 13, 1860.............................. Acting. J. S. Black..................................................................Secretary of State................................................... December 13, 1860.............................. Regular. Edwin M. Stanton...................................................... Attorney General.....................................................December 20 1860............................... Regular. ]~~~~~~~~~~~~~ 400 Mr. CURTIS. I now desire to move for an The Secretary read as follows: order on the proper officer of the Senate to Cbnsidering the character of this proceeding, that furnish, so that we may put into the case, a itis a trial of impeachment before the Senate of statement of the dates of the beginning nd the United States, and not a proceeding by indictment in an inferior court; end of each session of the Senate, including, Considering thatI~enators are, from beinning to of course, its executive sessions as well as its end, judges of law as well as fact, and that they are judges from whom there is n pel leislative from the origin of the Government usideirog thhoat the tea l 6 1 ~~~~~~~~~~~~Considering that the'reasons for the exclusion of down to the present time. That will enable us, evidence on an ordinary trial wher th judge reby comparing those dates with these facts which sponds to the law and the jury to the fact are not we put into the case, to see what was done applicable to such a proceeding; se, to see what was done Consideringsthat,aaccording within and what was done without the session which is the guide in all such cases, there is on trials ~~of the Senate~. of impeachment a certain latitude of inquiryand The CHIEF JUSTICE. The Chief Justice a freedom from technicality; CE. The Chief Justice And considering, finally, that already in the course is of opinion that that is an application which of this trial there have been differences of opinion as can only be addressed to the Senate in leisla- to the admissibility of evidence; Therefore. in order to remove all such differences sete court desire it he will and to hasten the dispatch of business, it is deemed vacate the chair in order that the President advisable that all evidence offered on either side not pro tempore may take it. trivial or obviously irrelevant in nature shall be received Without objection, it being understood that tha wehae would state, Mr. Chief the same when admitted shall be ope to question Jusiet ae now concluded our doc- and comparison at the bar in order to determine its umentary evidence as at present advised; we competency and value, and shall be carefully sifted may possibly desire hereafter to offer some and weighed bySenators inthe final judgment. additional evidence of this character, but as Mr. CONNESS. Mr. President, I move to weowunderstand it we shall not. lay that paper on the table, and on that motion Mr. JOHNSON. Mr. Chief Justice, I move I ask for the yeas and nays. that the Senate, sitting as a court of impeach-' The yeas and nays were ordered; and being met, adjourn until to-morrow at twelve taken, resulted-yeas 33, nays 11; as follows: o'07~~~~clock. ~YEAS-Messrs. Buckalew,Cameron,CttelChandThe motion was agreed to; and the Sen- ler, Cole, Conkling, ConneA, Corbett, Cragin, Davis, ate sitting for the trial of the impeachment Dixon, Doolittle, Drake, Edmunds, Ferry, Fessenden, Frelinghuysen, Harlan, Howard, Howe, John~~~~~~~adjourned,.~~ _son, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsey, THURSDAY, April 16, 1868. Saulsbury, Stewart, Thayer, Tipton, Williams, and Yafes-33. The*pChief Justice of the United States took NAYS-Messrs. Anthony, Fowler, Grimes. Morton, the chair. ~~~~~~~~Patterson of Tennessee, Sherman, Sumner, Van Winthe chair' ~~~~~~~~kle, Vickers, Willey, and Wilson-il. The usual proclamation having been made NOT VOTING-Messrs. Bayard, HendersonIHendby the Sergeant-at-Arms, ricks, MeCreery, Norton, Nyc, Ross, Sprague, TrumThe Managers of the impeachment on the bull, and Wade-10. part of the House of Representatives and the So the proposition was laid upon the table. counsel for the respondent, except Mr. Stan-.The CHIEF JUSTICE. Gentlemen of bery, appeared and took the seats assigned themn counsel for the President, you will please prorespectively. ceed with the defense. The members of the House of Represeata- Mr. EVARTS. Mr. Chief Justice and Sentives, as in Committee of the Whole, pre- ators, I am not able to announce the recovery ceded by Mr. E. B. WASHBURNE, chairman of of Mr. Stanbery, butlI think had not the weather that committee, and accompaiiied by the been so entirely unfavorable he would have Speaker and'Clerk, appeared and were con- been able to be out, perhaps, to-day. lHe is, ducted to the seats provided for them. however, convalescent, but, nevertheless, the The CHIEF JIJTICE. The Secretary will situation of his health and proper care for his read the Journal of yesterday's proceedings. complete recovery prevents us from having The Secretary proceeded to read the Jour- much opportunity of consultation with him nal, but was interrupted by during the intervals of the sessions of this court. Mr. SHERMAN. I move that the reading We shall desire to-day to proceed with such of the Journal be dispensed with, evidence as we think properly we can produce The CHIEF JUSTICE. -If there be no ob- in his absence, and may occupy the session of jection the reading of the Journal will be dis- the court with that evidence during the usual pensed with. There being no objection, it is hours of its sitting. We shall not desire to so ordered. protract, however, the examinations with any Mr. SUMNER. Mr. President, I send to such object -or view, and if befdre the close of the Chair a declaration of opinion to be adopted the ordinary - period of the session we should by the Senate as an answer to the constantly come to that portion of the testimony in which recurring questions on the admissibility of we regard Mr. Stanbery's presence as indistestimony. pensable we shall submit that to the discretion The CHIEF JUSTICE. The Secretary will of the court. read the paper submitted by the Senator from Mr. CURTIS. Mr. Chief Justice, I desire Massachusetts. to offer in evidence two documents received 401 this mornig from the Department of State of On.the 30th of October, 1854 President a character, I believe, entirely similar to some Pierce appointed Archibald Campbell, chief of those which were received yesterday. They clerk of the War Department, to be acting Lare in continuation chronologically of what was Secretary of War during the temporary absence put in yesterday, and merely complete the series. of the Secretary. MrManagerBUTLER. Underthe decision On the 3d of May, 1855, President Pierce of yesterday we do not object. We understand appointed Peter G. Washington to discharge them to e the same thing. You do not desire the duties of Secretary of the Treasury during them read, Isuppose. the absence of Secretary Guthrie from WashMr. CURTIS. No, I do not desire them ington. ~~~~~Saread. w hyreOn the 26th of May, 1855, President Pierce Mr. JOHNSON. State what they are. pointed Col hey are a continuation of ap nel Saml States Army, acting Secretary of War, during the documents put in yesterday, so as to bring tte Ar ac Secre the evidence of the practice down torary a mobsene oftG seat of Government. recent period, O sea east.o uy 8 rsdn ire The documents thus offered in evidence are On the 21st of July, 1, Psint ere attested by the Secretary of State in the usual appointed William Hunte form to be copied from the records of his De- of State, to perform the duties of Secretary of partment and contain the letters of authority, State, Mr. Marcy being absent from the seat designation, or appointment in the following of Government. ~~~~~~~~cases: ~On the 6th of August, 1855, PresidentPierce On the 11th of July, 1853, President Pierce appointed Peter G. Washington to discharge Vappointed Peter G. Washington to take charge the duties of Secretary of the Treasury during of the Treasury Department "during the ex- the absence of Secretary Guthrie from Washpected absence of the Secretary of the Treasury ington. from the seat of Government." On the 9th of October, 1856, President On the 11th of July, 1853, President Pierce Pierce appointed A. Campbell, acting Secreappointed James C. Dobbin to be acting Sec- tary of War, during the temporary absence of retary of War in the absence of Jefferson the Secretary. ~~~~~~Davis. ~On the 19th of January, 1857, President On the 29th of July, 1853, President Pierce Pierce appointed Archibald Campbell, acting appointed A. Dudley Mann, Assistant Secre- Secretary of War, during the temporary abtary of State, to be acting Secretary of State sence of the Secretary. during th e temporary absence of Secretary W. O h do ac,15,PeietPec L. Marcy from the seat of Government. apOinte d Coloe Samue157 CoPreridjutantrc On the 23d of September, 18539, President Gepontera Coofntel Sarmy, l t oobctnecretary, Pierce appointed Peter G. Washington to dis- ofneWar.fteAmy ob cin ertr charige the dutiesc of Secretary ofuthre Treaur On the 23d of April, 1857, President Budurig te asene o Seretry uthie rom chanan appointed Phili Clayton to discharge ~the seat of Government. i On te 28h ofSeptmbe, 183, Presientthe duties of Secretary of the Treasury during., On he 8thof eptmbr, 853 Prsidntthe absence from Washington of Secretary Pierce appointed A. Dudley Mann, Assistant Cobb. Secretary of State, to be acting Secretary of Onte1toJu,187PrsdtRState during the temporary absence of Mr. chanan appointed John Appleton to be acting Marcy from the seat of Government.SertroftaedinthabncofeOn. the 12th of April, 185-4, President Pierce Seretary Casfofmttdrn the aseenc of Soen ec-. appointed Peter G. Washington to discharge reOyCasfo the s8 u eat of5 Government.Bcaa the duties of Secretary of the Treasury during apointhed 28hip Juneo 1858 pefresdeth Buchana the tempoa'ary absence of Secretary Guthrie apoinScrtedo Phili Cleayton touprform the dutiesc from Washington.ofSceayothTrauydrnteabne On the 21 st of August, 1854, President Pierce o ertr obfd ahntn,appointed William Hunter to perform the dusties On the 13th of July, 1858, President Baof Secretary of State during the absence of Mr. chianan appointed Philip Clayton to discharge Marcy from the seat of Government. the duties of Secretary of the Treasury during On he 9thofAugst,155,PesientPiecethe absence from Washington of Secretary appointed Archibald Campbell to be acting Cobb. Secretary of' War during the absence of the On the 20th of August, 1858, President Bu. Secretary from the seat of Government. chanan appointed John Appleton, Assistant On the 5th of October, 1854, President Pierce Secretary of State, to discharge the duties of appoi nted Peter G. Washington to discharge Secretary of State during the absence of Seethe duties of Secretary of the Treasury durin retary Cass from Washington. the absence of Secretary Guthrie from Wash- On the 26th of April 1859, President Baington. chanan appointed Philip Clayton to act as C. I. -26. 402 Secretary of the Treasury during the tempo- On the 8th of August, 1861, President Linrary absence of the Secretary of the Treasury. coin appointed George Harrington to discharge On the 5th of July, 1859, President Bu- the duties of Secretary of the Treasury during chanan appointed William K. Drinkard to be the temporary absence from Washington of acting Secretary of War during the absence Salmon P. Chase. of the Secretary from his office. On the 27th of August, 1861, President LinOn the 26th July, 1859, President Buchanan coln appointed Frederick W. Seward, Assistant appointed Philip Clayton to act as Secretary Secretary of State, to be acting Secretary of of the Treasury during the temporary absence State during the temporary absence from the of Secretary Cobb from Washington, " from seat of Government of William H. Seward. and after the 1st of August." On the 3d of September, 1861, President On the 30th of August, 1859, President Bu-Lincoln appointed- George Harrington to act chanan appointed Philip Clayton to act as Sec- as Secretary of the Treasury during the absence chanan~ ~ ~ ~ ~ ~~ ~o apoite P.ii Chaseo from WasShinton retary of the Treasury during the absence of of S. P. Chase from Washington. Secretary Cobb from Washington. On the 26th of September, 1861, President On the 30th August, 1859, President Bu- Lincoln appointed William L. Hodge to be chanan appointed Philip Clayton to act as Sec- acting Secretary of the Treasury during the retary of the Treasury during the absence from absence of the Secretary, " commencing from Washington of Secretary Cobb. the 27th instant." On the 30th May, 1860, President Buchanan On the 2d of November, 1861, President appointed Philip Clayton to act as Secretary of Lincoln appointed George Harrington to disthe Treasury during the absence from Wash- charge the duties of Secretary of the Treasury ington of Secretary Cobb. during the absence of Salmon P. Chase from On the 26th June, 1860, President Buchanan Washington. appointed William H. Trescott to discharge the On the 4th of November, 1861, President duties of Secretary of State during the absence Lincoln appointed FrederickW. Seward, Assistof the Secretary of State from Washington. ant Secretary of State, to be acting Secretary On the 27th July, 1860, President Buchanan of State during the temporary absence of William 1[. Seward from the seat of Government. appointed Philip Clayton to discharge the liam. Seward from the seat of Government. duties of Secretary of the Treasury during the On the 13th of November, 1861, President absence of Secretary Cobb from Washington. Lincoln appointed George Harrington to disOn the 6th October, 1860, President B- charge the duties of Secretary of the Treasury n a the Philip Claytonr to0 discharge -during the absence of S. P. Chase from Washchanan appointed Philip Clayton to dischatrgeint. the duties of Secreta ofofthe Treasury during the ington. absthe duties of Secretary Cobb from Washington. On the 18th of December, 1861, President absence of Secretary Cobb from Washington. Lincoln appointed George Harrington to disOn the 22d of October, 1860, President Bu- charge the duties of Secretary of the Treasury chanan appointed Philip Clayton to discharge during the absence of S. P. Chase from Washthe duties of Secretary of the Treasury dur- ington. ing the absence of Secretary Cobb from Washin ton. On the 4th of January, 1862, President Linington.9~~~~. ~~ coln, " pursuant to the act of Congress in such On the 26th of November, 1860, President case made and provided," the Secretary of Buchanan appointed Philip Clayton to dis- State being absent from the seat of Governcharge the duties of Secretary of the Treasury ment, appointed Frederick W. Seward, Assistduring the sickness of Secretary Cobb. ant Secretary, to be Secretary of State. On the 13th of December, 1860, President On the 28th of January, 1862, the Secretary Buchanan appointed William Hunter, chief of State being absent from the seat of Governclerk of the Department of State, to act as ment, President Lincoln, "pursuant to the Secretary of State until an appointee should be authority in such case provided," authorized regularly commissioned. Assistant Secretary F. W. Seward to act as On the 10th of December, 1860, President Secretary of State. Buchanan, by virtue of the act of Congress Qn the 6th of February, 1862, the Secretary approved February 13, 1795, authorized Isaac of State being absent from the seat of GovernToucey, Secretary of the Navy, to perform the ment, President Lincoln, "pursuant to the, duties of Secretary of the Treasury, "now authority in such case provided," authorized vacant by the resignation of Howell Cobb," Assistant Secretary F. W. Seward to act as until a successor should be appointed and the Secretary of State. vacancy filled. On the 9th of April, 1862, the Secretary of On the 2d of August, 1861, President Lin- State being absent from the seat of Governcoln appointed Thomas A. Scott to act as Sec- ment, President Lincoln, "pursuant to the retary of War during the temporary absence authority in such case provided," authorized of Secretary Cameron from the seat of Gov- Assistant Secretary F. W. Seward to act as ernment. Secretary of State. 403 On the 11th of April, 1862, President Lin- tary of the Treasury during the absence of the con appointed George Harrington to discharge Secretary, Salmon P. Chase. the duties of Secretary of the Treasury during On the 15th of August, 1863, President Linthe absence of Salmon P. Chase from Wash- coin, the Secretary of State being absent, ~~~~~ington. ~authorized Frederick W. Seward, Assistant On the 5th of May, 1862, President Lincoln Secretary, to act as Secretary of State. appointed George Harrington to discharge the On the 10th of October, 1863, President Linduties of Secretary of the Treasury during the coln appointed Lucius E. Chittenden to disabsence of Salmon P Chase from Washington. charge the duties of Secretary of the Treasury On the 14t of May, 1862, the Secretary of during the absence of Salmon P. Chase, SecState being absent from the seat of Govern- retary. ment, President Lincoln authorized William On the 2d of November, 186, President Hunter, chief clerk of the Department of State, Lincoln, the Secretary of State being absent, to perform the duties of Secretary until his authorized Frederick W. Seward, Assistant ~~~~~~~return. ~Secretary, to act as Secretary of State. On the 19th of May, 1862, President Lincoln On the 23d of December, 1863, President appointed George Harrington to discharge the Lincoln, tie Secretary of state being absent, duptioes of Secretary of the Treasury during the authorized Frederick W. Seward, Assistant absence of Salmon P. Chase from Washington. Secretary, to act as Secretary of State. On the 11th of June, 1862, President Lincoln ~~~~kW SeadAausitn On thorized Frederick W. Seward, Assistant n the 11th of Apr, e ent ~~~~~~tod etedteofcon, te Secretary of State, to discharge the duties of the rer Sta Asnt thSecretary of State, teScaroSa authorized Frederick W S being absent from the seat of Government. Secretary, to act as Secretary of Ste. On the 30th of June, 1862, President Lincoln On the 14th of April, 1864, President Linauthorized Frederick W. Seward, Assistant co appointed George Secretary of State, to discharge the duties of charge the duties of Secretary othe Treasury Sa during the absence of the Secretary of StateSalmon P. ~~~~~~~~~~~~~Secretary, tof Sate the SecretrofSaeCs. being absent from the seat of Government. C hase. On the 27th of August, 1862, President Lin- coln the 27th of April, rint icoln authorized Frederick W. Seward, Assistant coIn appointed George arro t ds Secretary of State, to discharge the duties of rg the e of Secretary o a Secretary of State, the Secretary of State drnte a being absent from the seat of Government. Che. On the 8th of January, 1863, President Lin- apointhed7t Gofg Jurrnet1864, PrsdenthaLincoln cola appointed George Harrington to discharge potinedo GeorgetHarrington Toesr duiscage the teduties of Secretary of the Treasury during absienc of Secretary ofteSra sury duringathe the asenceof Seretar Salmn P.Chase. the absence of the Secretary, Salmon P. Chase. On the 13th of March, 1863, President Lin- On the 80th of June,'1864, President Lincoln appointed George Harrington to discharge cola authorized George Harrington, Assistant the duties of Secretary of the Treasury during Secretary of the Treasury, to perform all and the absence of the Secretary, Salmon P. Chase. singular the duties of Secretary of the Treasury On te 18h ofApri, 163, resient in-until a successor to Mr. Chase, resigned, should be commissioned, or until further order. cola appointed George Harrington to discharge the utie of ecrtaryof te Teasuy duing On the 11th of July, 1864, President Lincoln the abtisec of teSecretaryo h Sralmon P.uChase appointed George Harrington to discharge the bsece f th SeretrySalmn P Chse.the duties of Secretary of the Treasury during On the 27th of April, 1863, President Lin- the absence of William P. Fessenden, Secrecoln, the Secretary of State being absent, ap- tary. pited William Hunter, chief clerk of the On the 80th of July, 1864, President Lirii Dprtment of State, to perform the duties of cona teGoreHrigntods Secretary of State until the return of the Sec- ol ppoine GoreHrigo tods retary. ~~~~~~~~charge the duties of Secretary of the Treasury re tary. o a, 83 reiet icl during the absence of Secretary Fessenden. Opn the 21stofg May,1863, Peinto Linolnth On the 29th of August, 1864, President Linappoine GereHrigo opromtecola authorized Frederick W. Seward, Assistduies of Secretary of the Treasury during the ant Secretary of State, to discharge the duties absence of the Secretary, Salmon P. Chase. of Secretary'of State during the absence of On the 25th of May, 1863, Prdsident Lincoln, the Secretary, W. H. Seward. the Secretaryif State being absent, authorized On the 26th of September, 1864, President Frederick W. Seward, Assistant Secretary, to Lincoln authorized Frederick W. Seward, discharge the duties of Secretary of State. Assistant Secretary of State, to discharge the On the 27th of July, 1863, President Lincoln duties of Secretary of State during the absence appointed George Harrington to act as Secre- of the Secretary, W. H. Seward. 404 On the 17th of October, 1864, President Lin- charge the duties of Secretar of the Treasury con appointed George Harrington to act as during the absence of Secretary McCulloch. Secretary of the Treasury during the absence On the 30th of December 1865, President of Secretary Fessenden. Johnson authorized William Hunter to disOn the 4th of November, 1864, President charge the duties of Secretary of State, the Lincoln authorized William Hunter, chief clerk Secretary being absent. of the Department of State, to act as Secretary On the 15th of May, 1866, President Johnof State until the return of the Secretary, he son authorized F. W. Seward, Assistant Secre~~~~being absent. ~tary of State, to discharge the duties of Secre-. On the 4th of January, 1865, President Lin- tary of State, the Secretary being absent. col authorized Frederick W. Seward, Assist- On the 4th of August, 1866, President Johnant Secretary of State, to act as Secretary of son appointed William E. Chandler to dis State "during the present temporary absence charge the duties of Secretar of the Treasof William H. Seward." ury during the temporary absence of Secretary On the 1st of February, 1865, President Lin- McCulloch. con authorized Frederick W. Seward, Assist- On the 10th of August, 1866, President ant Secretary of State, to discharge the duties Johnson authorized Henry Stanbery, Attorney of Secretary of State during the absence of General, to discharge the duties of Secretary ~William H. Seward. ~of State during the absence of that Secretary.. On the 4th of March, 1865, President Lincoln On the 18th of September, 1866, President authorized George Harrington, Assistant Sec- Johnson authorized Frederick W. Seward, retary of the Treasury, to perform the duties Assistant Secretary of State, to discharge the of Secretary of the Treasury until a successor duties of Secretary of State during the illness to Mr. Fesenden should be commissioned and of William H. Seward. qualified or until further order. On the 5th of October, 1866, President JohnOn the 10th of April, 1865, President Lincoln son authorized Frederick W. Seward, Assistauthorized Frederick W. Seward, Assistant Sec- ant Secretary of State, to discharge the duties retary of State, to discharge the duties of Secre- of Secretary of State during the illness of tary of State during the illness of William H. William H. Seward. ~~~~~Seward. ~On the 29th of October, 1866, President On the 15th of April, 1865, President John- Johnson authorized William Hunter, Second son appointed William Hunter to perform the' Assistant Secretary of State, to discharge the duties of Secretary of State until otherwise duties of Secretary of State during the abordered,. Secretary Seward being sick. sence of William H. Seward. I On the 26th of July, 1865, President John- On the 5th of November, 1866, President son appointed William Hunter to be acting Johnson authorized William E. Chandler to Secretary of State in the absence of William perform the duties of S ecretary of the Treasury H. Seward. during the temporary absence of Secretary On the 15th of August, 1865, President John- McCulloch. sonautoried illam untr t dichage he On the 20th of December, 1866, President do utiesoferietilary of untter in consequence ofe Johnson authorized William E. Chandler to dthe ase of th Secretary fromSate theco seatnc of prform the duties of Secretary of the Treasury Government. during the temporary absence of Secretary On he 9thof eptmbr, 865 PrsidntMcCulloch. JOhsn app2thointeped beiliamE PhrderAsiset- On the 23d of April, 1867, President Johnaonto Scearypofnthed Trelasuy to phnderfor Asithe son authorized Frederick W. Seward, Assistdutiso Secretary of the Treasuryit duringm the ant Secretary of State, to act as Secretary of abtisec of Secretary Mcth Teauryloch nth State during the absence of William H. Seward. absenceof Secrtary Mculloch.On the 1st of June, 18671, President JohnOn the 4th of October, 1865, President John- son authorized F. W. Seward, Assistant Seeson authorized William Hunter, chief clerk of retary of State, to act as Secretary Iof State the Department of State, to discharge the duties during the absence of Secretary W. H. Seward. of Secretary of State until the return of the On the 203d of July, 1867, President JohnSecretary he bein absent.son authorized William Hunter, Second AsOn the 6th of November, 1865, President sistant Secretary of State, to discharge the Johnson appointed William E. Chandler to dis- duties of Secretary of State during the absence charge the duties of Secretary of the Treasury of William H. Seward. during the absence of Secretary McCulloch. On the 16th of September, 1867, President On the 20th of December, 1865, President Johnson auth~rized John F. Hartley to disJohnson appointed William E. Chandler to dis- charge the duties of Secretary of the Treasury charge the duties of Secretary of the Treasury during the temporary absence of Secretary during the absence of Secretary MeCulloch. McCulloch. * On the 20th of December, 1865, President On the 9th of October, 1867, President John. Johnson appointed William E. Chandler to dis- son authorized Frederick W. Seward, Assist 405 ant Secretary of State, to discharge the duties STATEMENT-Continued. of Secretary of State during the absence of the Secretary, W. H. Seward, from the seat of Congress Session Began Ended. Government. 20the........... 2d.......... Dec. 1, 1828..... March 3. 1829 On the 13th of November, 1867, President 21st............ 1st......... Dec. 7,1829..... May 31, 1830. Johnson appointed John F. Hartley to dis- 21st............ 2d...... Dec. 6,1830..... March 3,1831. 22d............. 1st..... Dec. 5,1831..... July 16, 1832. charge the duties of Secretary of the Treasury 22d.............. 2d.......... De. 3,1832.... charge 22d. 20. Dcc. 3, 1832.... ~~~~~~~~March 2, 1833. during the absence of Secretary McCulloch "at 23d.............. 1st De. 2,1833..... June 30, 1834. any time in the month of November, 1867." 23d.............. 2d.......... De. 1, 1834..... March 3,1835. 24th........ st......... Dec. 7, 1835..... July 4, 1836. On the 11th of March, 1868, PresidentJohn- 24th............ 2d.......... Dec. 5,1836..... March 3, 1837. son appointed F. W. Seward, Assistant Secre- 25th............ 1st......... Sept. 4 1837.... Oct. 16,1837. the dutiesof Secre-25th...... 20..... Dec. 4,'1837....July 9, 1838. tary of State, to discharge the duties of Secre- 25th...h........... 2d.......... Dec.,183..... - 2th........ 3....... De. 3188...M arch 3, 1839.1 tary of State during the absence from the seat 26th............ 1st......... Dec. 2,1839..... July 21, 1840. of Government of Secretary W. H. Seward. 26th............ 2d.......... De, 1840..... March 3, 1841. 27th............ 1st......... May 31.1841... Sept.13,1841. *Mr. CURTIS. I will now put in evidence, 27th............ 2d.......... De. 6,1841..... Aug. 31, 1842. so that it may be printed in connection with 27th............ 3d.......... Dec. 5, 1842..... March 3, 1843. this documentary evidence, statements fur- 28th............ 1st......Dec. 4,1843..... June 11,1844. 28th........... 2d.......Dec. 2,1844..... March 3, 1845. nished by the Secretary of the Senate under 29th............ 1st Dec. 1,1845. Aug. 10,1846. the okder of the Senate, one showing the 29th............2d.......... Dec. 7,1846..... March 3,1847. beginning and ending of each legislative ses- 30th.......... 2d.......... Dec. 4,1848.....,184. beginning 30th.. j20. Dec.4,1848.March 3, 1849. sion of Congress from 1789 to 1868; and the 31st............ 1st......... c. 3,1849..... Sept. 30,1850. other being a statement of the beginning and 31st............ 2d.......... Dec. 2. 1850..... March 3, 1851 32d......... 1 st......... Dec. 1, 1851..... Aug. 31,1852.] ending of each special session of the Senate 32d..............De. 2d......, 185.. 3,185. ending of 320. 20. Dec. 6, 1852.~~~~~~~~~~March 3, 1853.l from 1789 to 1868. 33d.............. 1st.......... 5, 33d.......... 2...Dec. 4,1854.... March'3, 1855./ Mr. Manager BUTLER. We have no ob- 330.............., 18h 3..,18 55. ~jection. 34th............Dcc.......e. 3, 1855..Aug. 18, 1856.] jection..... e.3 34th........... 2d.......... Aug. 21, 1856... Aug. 30, 1856. The CHIEF JUSTICE. The evidence is 34th........... 3d.......... Dec. 1, 1856..... March 3,1857. received. 35th............ 1st......... De. 7,1857..... June 14,1858. The documents are as follows: 35th. 2.......... Dec. 6, 1858...... March 3, 1859. 36th............ 1st......... Dec. 5,1859 June 25, 1860. Statement of the beginning and ending of each Legis- 36th............ 2d.......... Dcc. 3,1860..... March 2 1861. lative Session of Congress, from 1789 to 1868. 37th............ Ist.........July 4,1861..... Aug. 6, 1861. 37th............ 2d.......... De. 2,1861..... July 17,1862. Congress. Session. Began. Ended. 37th............ 3d....... De. 1,1862..... March 31863. ________ _ __38th............ 1st....... 1 s Dec. 7, 1863..... July 4,1864.] 1st. 1st. March 4, 1789.. Sept. 29, 1789. 38th............ 2d.......... Dec. 5, 1864..... March 3, 1865. 1st............ st......... March 4, 1789.. Septug. 29, 17890. 39th............ 1st......... Dec. 4, 1865. July 25, 1866..... 1st............ 2d.......... / Jan. 4, 17T90.....( Aug. 12, 1790. 39th............l 2d..........( Dec.3,16... 39th............ 20........ Dcc. 3, 1866. March 2, 1867. 1st............ 3d......... Dec. 6, 1790.... March 3, 1791. 40th............March 4, 1867.. Dec. 2, 1867. 2d.............. 1st......... Oct. 24, 1791.... May 8, 1792. 40th............Dec. 2, 1867 - 2 d.............. 2d.......... 0Nov. 5,1792.... March 2, 1793... 3d.. 1......... st......... Dec. 2, 1793..... June 9, 1794. 3d............ 2d......... Nov. 3, 1794.... March 3, 1795. OFFICE SECRETARY OF THE SENATE, 4th............ Ist........ Dec. 7, 1795... June 1, 1796. April 6, 1868. 4th............ 2d......... Dec. 5, 1796..... March 3, 1797. I certify that the foregoing statement is correct as 5th............ 1st........ May 15,1797... July 10, 1797. appears by the records of the Senate. 5th............ 2d.......... Nov. 13,1797... July 16, 1798. J. W. FORNEY, Secretary. 5th............ 3d.......... Dec. 3,1798..... March 3, 1799. 6th............ 1st........ Dec.2,1799. Ma 14, 1800. - 6th............ 2d......... Nov. 17, 1800... March 3, 1801. Statement of the Beginning and Ending of each Special 7th............ 1st........ Dec. 7,1801..... May 3, 1802. Session of the Senate from 1789 to 1868. 7th............ 2d.......... Dec. 6, 1802..... March 3, 1803. Begun. Ended. 8th............ 1st........ Oct. 17,1803. March 27,1804. M 8th............ 2d......... Nov. 5, 1804..... March 3, 1805. March 4, 1797................................. March 4, 1797. 9th............ 1st........ Dec. 2, 1805..... April 21, 1806. March 4, 1801................................. March 5, 1801. 9th............ 2d......... Dec. 1, 1806..... March 3,1807. March 4, 1809................................. March 7,1809. 10th............ 1st........ Oct. 26,1807..... April 25,1808. March 4,1817................................. March 6, 1817. 10th............ 2d......... Nov. 7, 1808..... March 3, 1809. March 4, 1825................................. March 9, 1825. 11th...........;1st....... May 22, 1809... June 28,1809. March 4,1829................................. March 17, 1829. 11th............ 2d......... Nov. 27, 1809... May 1, 1810 March 4, 1837.March 10, 1837. 11th............ 3d.......... Dec. 3, 1810..... March 3, 1811. March 4, 1841................................. March 15, 1841. 12th............ 1st........ Nov. 4,1811..... July 6, 1812. March 4.1845................................. March 20, 1845. 12th........... 2d......... Nov. 2,1812.... March 3 1813. March 5, 1849................................ March 23, 1849. 13th............ 1st........ May 24, 1813.... Aug. 2, 18 March 4, 1851................................. March 13, 1851..13th............ 2d.......... Dec. 6, 1813..... April 18,1814. March 4, 1853................................. April 11. 1853, 13th............ 3d.......... Sept. 19,1814... March 3, 1815. March 4,1857................................. March 14, 1857. 14th........... 1st......... Dec. 4, 1815..... April 30,1816. June 15, 1858................................. June 16,1858. 14th............ 20.......... J Dec. 2, 1816..... March 3, 1817. March 4, 1859................................. March 10,1859. 15th............ i s......... Dec. 1, 1817..... April 20, 1818. June 26,1860................................. June 28, 1860. 15th............ Nov......... Dec. 16, 1818... March 3, 1819. March 4, 1861.;............................... March 28,1861. 16th............ Dec......... Nov. 6, 1819.... May 15, 1820. March 4,1863................................. March 14, 1863. 16th........... N o.......... 63, 1820... March 3, 1821. March 4, 1865................................. March 11, 1865. 17th........... D e2......... Nc. 3, 1821... May 8, 1822. April 1, 1867................................. April 20, 1867. 17th........... Dec. 2, 1822..... March 3, 1823. OFFICE SECRETARY OF THE SENATE, 18th........... 1st.........Dec. 1, 1823..... May 27, 1824. April 16, 1868. 18th............ 2d.......... Dec. 6, 1824..... March 3, 1825. I certify that the foregoing statement is correct as 19th............ 1st......... Dee. 5,1825..... May 22. 1826. ersify the regof themente. 19th...... 2d.......... Dec. 4,1826..... March 3, 1827. appears by the records of the Senate. 20th............ I1st. Dec. 3, 1827...... May 26, 1828. J. W. FORNEY, Secretary. 406 Mr. CURTIS. The Sergeant-at-Arms will under what circumstances -you were employed now please call Walter S. Cox. in that matter? Mr. Manager BUTLER. Stop one moment. Iorn and examned. object. The questionis,whenandbywhom, ~~By Mr. CURTIS: ~and under what circumstances this gentleman Question. State what is your residence and was employed? If he was employed by the what is your profession? President that is worse than the other, in my Answer. I reside in Georgetown, in this Dis- judgment, as a legal proposition. I desire that trict. I am a lawyer by profession. the question be put in writing that we may Question. How long have you been in the have a ruling upon it; or, to save time, if the practice of the law? learned counsel will put in exactly what he Answer. Some twenty years, I think. proposes to prove by this witness we can meet Question. In this city? the whole of it. Answer. Yes, sir. The CHIEF JUSTICE. The Chief Justice Question. In what courts? sees no objection to the question as an introAnswer. In the courts of this District and, ductory question, but will submit it to the Senmost of the time, in the Supreme Court of the ate if it is desired. [After a pause, to the wit~~United States. ~ness.] You can answer the question. Question. Were you connected profession- Answer. On Saturday, the 22d of February, ally with the matter of General Thomas before a messenger called at myhouse with a carriage the criminal court of this District or before a and stated that Mr.. Seward desired to see me ~magistrate ~? immediately~Answer. I was. Mr. Manager BUTLER. I object to the Question. When and under what circum- declarations of any person there. stances did your connection with that matter The CHIEF JUSTICE, (to the witness.) ~~~~~begi5~n? ~You need not state anything that Mr. Seward nswer. On Saturday, the 22d of Febru- said to you. ~~~~ary-~ ~ ~The WITNESS. Nothing was said by Mr. Mr. Manager BUTLER. Stop a moment, Seward. The messenger stated further that please. If I heard the question correctly, the he was directed to take me immediately to the inquiry put to the witness was, when and under President's House. I accompanied him to the what circumstances did your connection with President's House and found the President and the case of Thomas before the Supreme Court, General Thomas there alone. or the chief justice of the District, commence? By Mr. CURTIS: Mr. CURTIS. That was the question in Question. At what hour or about what hour? substance. Answer. At about five o'clock in the afterMr. Manager BUTLER. To that we must noon. After I was seated the President object. It is impossible to see how the employ- stated-~ meat of Mr. Cox to defend Mr. Thomas can Mr. Manager BUTLER. Stop a moment. have anything to do with this cnse. It stands I object to the statement of the Prsi dent at in this way: we put in that Mr. Thomas said five o'clock in the afternoon. [Laughter.] that if it had not been for the arrest he should The CHIEF JUSTICE. Will the counsel have taken the War Office by force as he had for the President state the object of this tes-.threatened. The defense then produced the timony? warrant and affidavit and the record of his Mr. CURTIS rose. acquittal. I do not propose to argue it; but Mr. Manager BUTLER. We desire -that I ask the attention of the Senate to the ques- that may be put in writing, Mr. Chief Justice. tion whether the employment of Mr. Cox by The CHIEF JUSTICE. The offer to prove Mr. Thomas as counsel, the circumstances will be put in writing if any Senator requires it. under which he was employed, and the dec- Mr. EDMUNDS. I ask that the offer to laration of Mr. Thomas to his counsel, can be prove may be put in writing, that we may all put in evidence under any rule, even the one understand precisely what the question is. which the Senate has just voted should not be The CHIEF JUSTICE. The counsel will the governing rule of this body-the exception please put what they propose to prove in to evidence as too trivial-if it were not legally writing. incompetent? Th fe a eue o writing and sent to Mr. CURTIS. I understand the objection the desk. to be that we cannot show that General Thomas The CHIEF JUSTICE. The Secretary will employed Mr. Cox as his counsel; that we can- read the proposition. not show declarations made by Mr. Thomas to TeSceayra sflos Mr. Cx as is cunsel We d notpropoe to We offer to prove that Mr. Cox was employed _proprove either of those facts. If the gentleman fessionally by the President. in the presence of Genwill wait long enough to see what we do pro- eral Thomas, to take such legal proceedings in the pose to prove, he will see that that objection case that had been commenced against General P ~~~~~~~~~~~~~Thomas as would be effectual to raise judicially th~e is not applicable. [To the witness.] Will question of Mr. Stanton's legal right to continue to you now state, sir, when, and by whom, arnd hold the oftice of Secretary for the Department qf 407 War against the authority of the President, and also cannot be contradicted by parol or other evi in reference to obtaining a writ of quo warranto for dence) that GenerallThomaswasdismissedupon the same purpose: and we shall expect to follow up dene) that GeneralThom this proof by evidence of what was done by the wit- the motion of his counsel. Upon the motion of ness in pursuance of the above employment. his counsel the case was dismissed. Therefore Mr. EDMUNDS. Mr. President, I should we object, in the first place, that this declaration like to ask an oral question, if there be no of the President to his lawyer after the fact and ~~~~objection.~ ~ ~after he was in process of being impeached for IThe CHIEF JUSTICE. If there be no that fact, shall not be put in evidence in view of objection the Senator from Vermont will ask the circumstances. We object, then, that what ~~~his question.~~ -was done in court shall not be proved except by Mr. EDMUNDS. I wish to ask at what the record, which I believe there is no lawyer date this interview is alleged to have taken in the Senate, and no layman either, will ever ~~~~~place ~? ~believe for a moment can be allowed. Then Mr. CURTIS. The i2d of February. we object further on this matter that this whole Mr. Manager BUTLER. This testimony is proceeding was between other parties in the liable to two objections, if not more, but two court. There is no evidence from the record sufficient, Mr. President and Sehators. The so far as it has been put in here, (and the whol first is that after the act done, and after the record is put in,) that the President went into matter was in course of impeachment, was in that court and asked to have that case carried proceeding before the House, and after Mr. on, that he showed his hand, or that lie made tanton d, to protect himself, made an affi- himself apparent. He does not appear upon. davit that he expected to be turned out of his the record. He does not appear as employing offie by force, the President sent, as is pro- counsel. It looks as though it was the case posed to be proved, for Mr. Cox, the witness, of General Thomas, and the court dealt with and gave him certain directions. It is alleged it as the case of General Thomas. that those directions were that he should pre- If the President had gone and asked that pare a quo warranto. I had supposed that the case might be decided as a great constitusuch a quo warranto was to be filed by the tional question, non constat but that the court Attorney General, if at all, but that that pro- would have decided it; but they did not do sl. cess had substantially gone out of use, and an All that appears on the record is that this geninformation in the nature of a writ of quo war- tleman or some other appeared as counsel for ranto would have been the proper proceeding, General Thomas; and the question was one and that information must be exhibited by the whether General Thomas should be held under Attorney General. bonds or whether, under the circumstances, he Now, then, let us see just here how the case was likely to appear and answer further when stands. The President had told General Sher- the grand jury sat, it being then found that man that the reason why he did not apply to there was no danger from his personal~action lawyers, and why he took Army officers into by violence. this trouble, was that it was impossible to make Mr. EVARTS. Mr. Chief Justice and Senup a case. One of the Senators asked him to ators, I will first notice some of the suggestions repeat that answer, and he repeated it. The made by the learned and honorable Manager President said to him, III am told by the law- that seem to us not to have any particular bearyers that it is impossible to make up a case."I ing upon the question of evidence now submitAfter he had been told that, and after he had ted to you, but which may be noticed. been convinced of that, he still went on to He says that the Attorney General alone can make the removal, and he undertakes to show to institute a quo warranto. The Attorney Genyou here that he made the removal to make up eral has by law no official function in any court a case which he himself declared was impossi- except the Supreme Court of the United States, ble to be made up. It is apparent that no case and a quo warrno proceeding would need to would by possibility have got into court except be commenced in the court of the District. A for the Declarations and the threats of this offi- quo warranto proceeding, as has heretofore cer Thomas to turn by force Stanton out of been contended on the part of the Managers, the War Office. That having been done, he and in regard to which no dispute has arisen, sends for a very proper counsel, as I have no can only be made, it is supposed by them, on doubt the Senate will be quite convinced be- the part of the Government, and not on the fore we get through. He sends for a very proper part of the officer who has been detruded from counsel for Mr. Thomas, and having got him office. That is one thing; but the question there he undertakes then to make up a case for whether that action of the Government can be the Senate, before which he was to be brought taken in any court only by the Attorney Genby impeachment. Now they say they expect eral is quite7 a different matter, and it might to prove that the President wanted a case made appear that if this adhesion of the Attorney up to go to the courts, and that in pursuance General, or his approval that the proceeding of that Mr. Cox so acted. should be taken by the professional advisers Mr. Cox cannot be allowed to testify to that employed to that end, was necessary, we should for another reason. They themselves have put be able to produce that proof. in the record (which imports absolute verity and Now, it is said that after the President told 408 General Sherman that it was impossible to record between the United States and General make up a case it is now impossible for us to Thomas in that criminal complaint, but the show that he did attempt to make up a case. state of facts as regards the action and purThis is, I suppose, a new application of the pose of the President of the United States in doctrine of estoppel. It is impossible for us attempting to produce before the tribunals of to see any other appropriateness in it. But the country for solemn judicial determination the fact is simply this: that when, in advance the matter in controversy, as the record of the of the official action of the President to or criminal charge made and dismissed does not towards the removal of Mr. Stanton, and when contain the name and action of the President General Sherman was asked to receive from of the United States, in this behalf we cannot the Chief Executive the authority to discharge show what did occur and what was the action the duties of this office ad interim, and where of the President. General Sherman was revolving in his own The learned Manager says it does not apmind his duty as a citizen and as a friend and pear by the record that the President made servant of the Government and sought to in- this his controversy and attempted these obquire why this matter which the President jects and pursued this purpose. Certainly it desired to test and to have his presence in the does not; anid if any lawyer can see how and controversy to enable him to test it could not why and in what possible method of applicabe tested by the lawyers alone, without bring- tion in the record of a prosecution of General ing in a deposit of the ad interim authority in Thomas by the United States for an infraction.any officer, the President replied that it was criminally of the civil tenure-oroffice bill the impossible to make up a case except by such action of the President should appear we might, executive action as should lay the basis for perhaps, be precludedby some of these suggesjudicialinterferenceand determination. Then, tionsandarguments;butstillthematterwouldbe in advance, the President did not anticipate wholly aside from the real point of inquiry here. the necessity of being driven to this judicial Now, Mr. Chief Justice anld Senators, we controversy, because, in the alternative of are not to be judged by the measure of the General Sherman's accepting this trust thus proof that we are able to offer through this reposed in him, the President expected the witness, as regards the effect and value of the retirement of Mr. Stanton, and thus by that entire evidence bearing upon this point as it acquiescence no need would arise for further shall be drawn from this witness and from controversy in court or elsewhere. That is the other witnesses and from other forms of testicondition of the proof as it now stands before mony. We stand here definitely, and so as not the Senate, or as we upon it shall contend that to be misunderstood on this proposition, that it now stands in the judgment of the Senate, in when the alternative, not expected by the regard to what occurred between the President President, of the resistance of Mr. Stanton to and General Sherman. this form of resignation or retirement deWe have already seen in proof that General mnanded or removal claimed, whatever you Thomas received from the President on the choose to call it, was presented, so that he was 21st of February this designation to take charge obliged to find resources in the law, which he of the office from Mr. Stanton if he retired, had contemplated as a thing greatly to be deand his report to the President in the first sired but impossible without the antecedent instance of what was regarded as an equiva- proceedings upon which a proper footing could lent to an acquiescence by Mr. Stanton in this be gained in the courts, he then did, with such demand of the office and its surrender to the promptness and such decision and such clear charge of General Thomas. It has then been and unequivocal purpose as will be indicated shown in evidence that General Thomas was in the evidence, assume immediately that serarrested on the morning of the 22d, and that vice and that duty; and it will appear that the before he went into court he communicated opportunity thus presented to him for a more that fact to the President and received the Pres- rapid determination than a quo warranto or an ident'sresponse that that was as they wished it information in the nature of a quo warranto should be, to have the matter in court. would permit being seized, it was prevented by Now, we propose to show that on the after- the action of Mr. Stanton, the prosecutor, and noon of the same day, the matter then being of the court upon the movements of the prosein court, (and which the President had said cution to get the case out of court as frivowas according to his desire, always supposing lous and unimportant in its proceeding against that there was not a retirement which rendered General Thomas, and becomingformidable and further controversy and trouble unnecessary to offensive when it gave an opportunity for the the parties and the country,) the President did President of the United States by habeas corpus take it up as his controversy between the Con- to get a prompt decision of the Supreme Court stitution and the law, to be determined by the of the United States; and then to show that, highest judicial tribunal of the country by the this opportunity being thus evaded, the Presimost rapid method that the law and competent dent proceeded as he might with instructions advisers as to the law should permit. And we that the only other recourse ofjudicialdetermare met by the novelty of objection that when ination by an information in the nature of the matter to be proved is not the state of the quo warranto was resorted to. 409 Mr. Manager BUTLER. Mr. President, I after the fact, to attempt, if possible, to get am very glad for an opportunity afforded me up a defense by calling this counsel in. by the remarks of the learned counsel for the It is asked what lawyer could suppose that President to deal a moment with the doctrine it would appear of record that the President of es toppel. I premise that an argument has of the United States was engaged in this conbeen founded to the prejudice of my cause by troversy? Fair dealing, honesty of purpose, a us of remarks which I made, to which I want uprightness of action, frankness of official poto call the attention of the Senate, as bearing sition, would have made it apparent. The upon what is the doctrine of estoppel which is President of the United States, if he employed put forward here now by the counsel who has counsel for Mr. Thomas in this case, should justsatdown. Iwillnotbe long. Iprayyou, have sent his counsel into court, and they Senators, to remember that I have never re-'should have there said, Mr. Chief Justice, ferred to this argument, although it has been a we are here appearing at the instance of the sort of vade mecu with the counsel of the President of the United States for the purpose defense ever since it was delivered. When I of trying a great constitutional question which was discussing the obloquy thrown upon Mr. he has endeavored to raise here, and for that Stanton about his deserting his office I said purpose we want to get a decision of the Su~~~these words: ~preme Court of the United States." If then To desert it now, therefore, would be to imitate the chief justice of this D the treachery of his accidentalChief. But whatever hear that case, there might be some ground may be th construction of the'tenure-of-civil-office for the harsh word " evasion" which the counact' by others, or as regards others, Andrew Johnson, theuded uresponden it. sel has applied to him, for "He permitted Mr. Stanton to exercise the duties was evaded. By whom? It must have been of his office in spite of it, if that office were affected by the chief justice of this District, for he alone by it. He suspended him under its provision; he reported that suspension to the Senate with his reasons made the decision. He says that Mr. Stanton therefor in accordance with its provisions; and the had this case so conducted as to evade this Senate, acting under it, declined to concur with him, decision. The record of the court shows tha whereby Mr. Stanton was reinstated. In the well- this man Thomas was discharged on the moknown language of the law, is not the respondent this man Thomas was d estopped yhis solemn official acts from denying the tion of his counsel. If they had not moved legality andonstitutionalproprietyofMr. Stanton's that he be discharged I venture to say he ~position ~?" ~would not have been discharged; certainly That is all I said. I never said, nor intended there is no evidence that he would have been, to say, nor do the words honestly bear ou t and it is not to be supposed that he would have any man in assuming that I said that the Pres- been. Now they have put in the fact that he ident was estopped from trying his case before was discharged at the motion of his own counthe Senate of the United States and showing sel, and they come back to us and tell usthe unconstitutionality of the law, as was ar- what? That they want to show through Mr. gued in the opening and as has been more Cox that the chief justice evaded this point, than once referred to since. I said that, as for nobody else made that decision. If you between him and Mr. Stanton, Mr. Stanton's allow Mr. Cox to come in and say what the position was such that he was estopped from President told- him, if you can put in his decdenying the legal propriety of that position or larations made to Mr. Cox, then I suppose we the constitutional propriety of it; and there- shall next have his declarations made to Mr. upon it was argued that I claimed on behalf of Merrick and Mr. Aiken, and all that class of the Managers of the House of Representatives counsel whom the President brings about him;, that the President was estopped from trying and having got them in, we shall have to bring his case or denying the constitutionality of the before you the chief justice to give his account law here; and we have had a learned argu- of the matter, and we shall have to get up a ment, starting from Coke and brought down- side-bar issue here to try whethervthe proceedward, to show that the doctrine of estoppel ings in the supreme court of this District were did not qpply to the law. Who ever thought'regular or otherwise. It is-I will not say deit did? Ithink there is only one point where signedly-but artistically contrived for the purthe doctrine of estoppel should apply, Sen- pose of leading us away from the issue. We ators, in this case, and that is that counsel are to go to some other issue and some other should be estopped from misrepresenting the point, and I never have heard in any court argument of their opponents and then making'such a proposition. an argument to the prejudice of them. That A single word, now, about this matter of quo is an application of the doctrine of estoppel warranto. A reasonable degree of frankness that I want carried out through this trial, on this question, I think, as it is a very plain I have not said that the President was- one to lawyers, would not harm anybody. I estopped from showing that he attempted to undertake to say that every lawyer knows that pt this man forward as his counsel by his dee- an information in the nature of a quo wcdrranto laration to General Thomas. I have only said cannot be prosecuted, except in the name of that the fact that he spoke to Sherman and the Attorney General, for any public office; said to him, "1It is impossible to make up a and if aiiy case can be found and shown in this case," shows that he should not be allowed, country where it has been prosecuted differ 410 ently I will beg my friend's pardon, and that read the question proposed by the Senator from is a thing I should not like to do upon this Connecticut. ~~~~~~question. ~The Secretary read it, as follows: Do they say that this quo warranto, whether Do the counsel for the President propose to contra-,by Cox or by Stanber has ever been presented diet or vary the statement of the docket entries proto anycourtNo; notaallHasanyb duced by them to the effect that General Thomas taN not at all. Has anybody was discharged by Chief Justice Cartter on the moever heard of that writ of quo warranto until it tion of the defendant's counsel? ecoes a necessity for this defense? Ay, Mr. CURTIS. Mr. Chief Justice, I will reland until I put it into that opening speech, spond to the question of the Senator that the which has taught my friends so much, if I may counsel do not expect or desire to contradict take their continua reference to it? Up to anything which appears on the docket entries. that time had we ever heard of a quo warranto The evidence which we offer of the employ from any source? Has it ever been said here ment by the President of this professional until since that,time? Never, never. I will gentleman for the purposes indicated is ennot object to any writ of quo warranto, or in- tirely consistent with everything that appears formation in the nature of a quo warranto, filed on the docket. This is evidence, not of dec in any court from a justice of the peace up to larations, as the Senators must perceive, but the Supreme Court of the United States, if they of acts, because it is well settled, as all lawwill show it was filed before the 21st day of yers know, that there may be verbal acts as ebruary, or prepared, or that it has been filed well as other bodily acts, and a verbal act is until this man was impeached. But I as much capable of proof as a physical act of want that to come from the record and not from a different quality or character. Now, an emthe memory of Mr. Cox. ployment for a particular purpose of an agent, You may say, Senators, that I am taking whether professional or otherwise, is an act, too much time upon this matter; but it is really and may always be proved valeat quantum by aiding you, because if you open this sort of the only evidence of which it is susceptible, declaration from the President he can keep namely, what was said by the party in order to the trial going from now until next July, ay, create that employment, and that is what we and from next July until the following March, desire to prove on this occasion. precisely as his defenders in the House of Rep- The dismissal of General Thomas, which has lresentatives threatened they would if we car- been referred to, and which appears on the ed on this impeachment. "Forewarned, docket, was entirely subsequent to all these forearmed," Senators. His defenders in the proceedings, and we shall show that that motion House of Representatives when we were argu- was made and that dismissal took place after ing this matter-it has gone into history-said, it had become certain in the mind of Mr. Cox "Yumay impeach hi m, but if you do we will and his associate counsel that it was of no use wlake you take all the forms, and his official further to follow or endeavor to follow these life will be ended before you can get through proceedings.' the forms of impeachment; we will protract As to the argument, or rather the remarks, it till next March." That was the threat, and which have been addresseil by the honorable then, in pursuance of that threat, although your Manager to the Senate, I have nothing to say, summons required him to file his answer on It does not seem to me, however pertinent the -day of appearance, as every other summons they may be, that they require any reply. did, he came into this Senate and asked for Mr. Manager WILSON. Mr. President, I forty days. He got ten. He then first asked beg the indulgence of the Senate for a moment, for delay, so that forty-three days have been and I must ask the members of this body to expended since he ought to have filed his an- pass upon what we regard to be the real quesswer by the order, and thirty-three since he tion involved in the objection which has been actuall.jy filed~ it, and of those but six on the interposed to the testimony now offered by part of the Managers have been expended in the counsel from the respondent. the trial, and but a part of six have b~een ex- On the 21st day of February, 1868, the Presipended on the trial by the counsel for the dent of the United States issued nn order redefense; and the rest, twenty-odd working moving Edwin M. Stanton from the office of days, with the whole country pausing while the Secretary for the Department of War. On this is going on, with murders going on through that same day he issued a letter of authority to the southern country in every State unrebuked; Lorenzo Thomas directing him to take charge tw~enty odd days have been used up in lenity of the Department of War and to discharge the to him and his counsel, and now we are asked duties of the office of Secretary of War ad into gointo entirely aside-bar issue. It is neither terim. The articles, based upon a violation relevant, in my judgment, nor competent under -of the tenure-of-office act, are founded upon any legal rule, and if it were here it could have these two acts, of the President on the 21st day no effect. of February. The counsel for the respondent Mr. FERRY. Mr. President, I desire to now propose to break the force of those acts put a question to the counsel for the President, and that violation of the law by showing that s end it tQ the Chair. on the 22d day of February, after the fact, the T.44 CHRIEF JUSTICE. The Secretary will President employed an attorney to raise in the 411 courts he question of the constitutionality of proper place on this point, and to show that the tenure-ofoffice act. our intent was no violence, no interruption of Now, I submit to this honorable body that no the public service, no seizure of the military act, no declaration of the President made after appropriations, nothing but the purpose by the fact can be introduced for the purpose of this movement either to procure Mr. Stanton's explaining the intent with which he acted. And retirement, as was desired, or to have the upon this question of intent let me direct your necessary footing for judicial proceedings. If minds to this consideration: the issuing of the this evidence is excluded, then, when you come orders referred to constitute the body of the to the summing up of this cause, ou must crime with which the President stands charged. take the crime of the dimensions and of-the Did he purposely and willfully issue an order completeness that is here avowed, and I shall to remove the Secretary of War? Did he pur- be entitled before this court and before this posely and willfully issue an order appointing country to treat this accusation as if the article Lorenzo Thomas Secretary of War ad interim? had read that he issued that order for Mr. if he did thus issue the orders the law raises Stanton's retirement, and that direction to the presumption of guilty intent, and no act General Thomas to take charge ad interim, done by the President after these orders were with the intent and purpose of raising a case issued can be introduced for the purpose of for the decision of the Supreme Court of the rebutting that intent. The orders themselves United States between the Constitution and were in violation of the terms of the tenure- the act of Congress; and if such an article had ofoffice act. Being in violation of that act, been produced by the House of Representatives they constitute an offense under and by virtue and submitted to the Senate it would have of its provisions, and the offense thus being been a laughing stock of the whole country. established must stand upon the intent which The gentlemen shall not make their argucontrolled the action of the President at the ments and escape from them at the same time that he issued the orders. If, after this breath. I offer this evidence to prove that the subject was introduced into the House of Rep- whole purpose and intent of the President of resentatives, the President became alarmed at the United States in his action in reference to the state of affairs, and concluded that it was the occupancy of the office of Secretary of best to attempt by some means to secure a War had this extent and n6 more: to obtain a decision of the court upon the question of the peaceable delivery of that trust from one holdconstitutionality or unconstitutionality of the ing it at pleasure to the Chief Executive, or in tenure-of-office act, it cannot avail him in this the absence of that peaceable retirement, to case. WNe a-re' inqiring as to the intent which have a case for the, decision of the Supreme controlled and directed the action of the Presi- Court of the United States; and if the evidence dent at the time the act was done; and if we is excluded you must treat every one of these succeed in establishing that intent, either by articles as if the intent were limited to an open proof or by presumption of law, no subsequent averment in the articles themselves that the act can interfere with it or remove from him intent of the President was such as I propose the responsibility which the law places upon to prove it. him because of the act done. Mr. Manager BUTLER. I desire, Mr. Chief Mr. EVARTS. Mr. Chief Justice and Sen- Justice, simply to read an authority to settle ators, we have here t he oft-repeated argument the question as to a quo warranto. I read that the crime against the act of Congress was from.5 Wheaton's Reports, page 2,91, theae~ complete by the papers drawn and delivered of Wallace vs. Anderson: by the President; that the law presumes that "ro ote~rutCuto ho those papers were made with the intent that "This was an information for a quo warsranto, appears on their face, which, it is alleged, is a brought to try the title of the defendant to the office violation of that act; and as that would be of principal surveyor of the Virginia military bounty lands north of the river Ohio, and between the river4 enough in an indictment against the President Scioto and Little Miami. The defendant had been of the Uvited States to affect him with a pun. appointed to the, office by the State of Virginia, and ishment, in the discretion of the judge, of Six cntinued to exercise its duties until the year 1818, during all which time his official act's were recogcents fine, so by peremptory necessity it be- nized by the United States. In that year he was recomes in this court a complete and perfect moved by the Governor and council of Virginia, and crime under the Constitution, which must re- the plaintiff appointed in his place, The writ wfW brought, by consent of parties, to try the title to the quire his removal from office, and that any- office, waiving all questions of form and of jurisdficthings, beyond t~he intent that the papers should tion." * *** *** accomplish what they tend to accomplish is not - Mr. Chief Justice Marshall delivered the opin~the sbjectof iquiryhere.Well it i theion of the court, that a writ of quo icsi-ao could the ubjet ofinqury hre. ellit i thenot be maintained except at the instance of the Govsubject of imputation in the articles; it is the ermient; and as this writ was issued by a private sub'ect of the imputation in the arguments; it individual, without the authority of the Governmhe right of the prosecutor or of the person claiming gravity to this trial, that there was a purpose to exercise the office in question. Thie information of injury to the public interest and to the pub- muist therefore be dismissed. lic safety in this proceeding.' Judgment reversed." Now, we seek to put this prosecution in its Mr. CURTI&. I wish toremark, Mr. Chief 412 Justice, in reference to that authority, that it he thinks are admissible in evidence. The is undoubtedly he law in this District and, so Senate has already, upon a former occasion, defar as I know, in all the States. and certainly cided by a solemn vote that evidence of the declais the law in England, that there can be no writ rations by the President to General Thomas of quo warrano, or information in the nature and by General Thomas to the President of such a writ, except in behalf of the public. after this order was sent to Mr. Stanton, were But what officer is to represent the public, in admissible in evidence. It has also admitted whose name the information is to be filed, of evidence of the same effect, on the 22d, ofcourse depends upon the particular statutes fered by the honorable Managers. t seems applicable to the case. These statutes, as to me that the evidence now offered comes lawyers know, differ in the different States. within the principle of those decisions; and, Under the laws of the United States all proceed- as the Chief Justice has already had occasion ings in behalf of the United States, in the cir- to say, he thinks that the principle of those cuit and distrit'courts, are taken by the district decisions is right, and that they are decisions attorneys in their own names; all proceedings which are proper to be made by the Senate sitting in behalf of the United States in the Supreme in its high capacity as a court of impeachment, Court are taken by the Attorney General in and composed, as it is, of lawyers and gentlehis name. In all cases of these public pro- men thoroughly acquainted with the business ceedings they are in the name and in behalf transactions of life and entirely competent to of the United States. What particular officer judge of the weight of any evidence which shall represent the United States depends on may be submitted. He therefore holds the the court where the proceeding is had. Now, evidence to be admissible, but will submit the in reference to Mr. Cox, we expect to show question to the Senate, if desired. an application by Mr. Cox to the district Mr. DRAKE. I ask a vote upon the ques attorneyto obtain his signature to the proper tion, sir, by yeas and nays. information and the obtaining of that signature. The yeas and nays were ordered; and being The CHIEF JUSTICE. Senators, thecoun- taken, resulted-yeas 29, nays 21; as folel for the President offer to prove that the lows: witness, Mr. Cox, was employed profession- YEAS-Messrs. Anthony, Bayard, Buckalew, Corally by the Presidet in the presence of Gen- bett, Davis, Dixon, Doolittle, Fessenden, Fowler, Freeral Thomas to take such legal proceedings in linghuysen, Grimes, Hendricks, Howe, Johnson, MCreery, Morrill of Maine, Morton, Norton, Patterson the case that had been commenced against of New Hampshire, Patterson of Tennessee, Ross, General Thomas as would be effectual to raise Sanulsbury, Sherman, Sprague, Sumner, Trumbull, judicially the question of Mr. Stanton's legal Va'Winkle, Viekers, and Willey-29. NAYS-Messrs. Cameron, Cattell, Chandler, Conkright to continue to hold the office of Secre- liug, Cragin, Drake, Edmunds, Ferry, Harlan, Howtary for the Department of War against the ard, Morgan, Morrill of Vermont, Nye, Pomeroy, authority of the President, and also in refer- Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, and Yates-21. ence to obtaining a writ of quo warranto for NOT VOTING-Messrs. Cole, Conness, Henderson, the same purpose, and they state that they ex- and Wade-4. pect to follow up this proof by evidence of So the Senate decided the evidence offered what was done by the witness in pursuance of by the counsel for. the President to be admisthe above employment. The first article of sible. impeachment, which may, perhaps, for this Mr. CURTIS, (to the. witness.) Will you purpose, be taken as a sample of the rest re- now answer what occurred between the Presilating to the same subject, after charging that dent, General Thomas, and yourself'on that "Andrew Johnson, President.of the United occasion? States," in violation of the Constitution and Answer. In referring to the appointment of laws, issued the order which has been so General Thomas as Secretary of War ad infrequently read for the removal of Mr. Stanton, terim the President stated that Mr. Stanton proceeds: had refused to surrender possession of the "Which order was unlawfully issued with intent Department to General Thomas, and that he then and there to violate the act entitled'An act desired the necessary legal proceedings to be inregulating the tenure of certain civil offices,"'1 &c. stituted without delay to test General Thomas's The article charges,'first, that the act was right to the office and to put him in possession. done unlawfully, and then it charges that it I inquired if the Attorney General was to act in was done with intent to accomplish a certain the matter, and whether I should consult with result. That intent the President denies, and him. Ile stated that the Attorney General had it is to establish that denial by proof that the been very much-occupied in the Supreme Court Chief Justice understands this evidence now and had not hadj time to lo'ok into the authorito be offered. It is evidence of an attempt to ties, but that he would be glad if I would conemploy counsel by the President in the pres- fer with him. I promised to do so, and stated ence of General Thomas. It is the evidence that I would examine the subject immediately, So' far of a fact; and it may be evidence also and soon after took leave. -of declarations connected with that fact. This question. When you left did you leave the fact and these declarations, which the Chief President and General Thomas there? Justice understands to be in the nature of facts, Answer. 1 did. 413 Question. About what time in the day was The CHIEF JUSTICE, (to the witness.) it that you left? State your conclusions. Answer. I do not suppose I was there more The WITNESS. I determined then to proceed than twenty minutes. I left home about five in the first instance in the case of General o'clock, I think, in a carriage. I was admitted Thomas. I had a brief interview with the immediately. Attorney General on Monday morning. Question. State now anything which you did By Mr. CURTIS: subsequently in consequence of this employ- Question. To proceed'how? ment? Answer. To proceed before the examining Mr. Manager BUTLER. Does the presiding judge in that case (as I was about to explain) officer rule that anything that Mr. Cox did if the case was in proper condition for it, by afterward tbnds to show the President's in- applying to the Supreme Court of the United tent? States for a writ of habeas corpus, so that the The CItEF JUSTICE. The Chief Justice Supreme Court, upon the return of the writ, considers it within the principle of the ruling could examine and see whether ofthe Senate. Mr Manager BUTLER. These are not acts The WITNESS. After reflecting upon the sub- that are now being given, Mr. President.. They ject, supposing that the President's desire was are thoughts and conclusions and reasonings to have the questions in controversy of this party, what he would do if something Mr. Manager BUTLER. I take it the wit- else happened. I object. ness's suppositions are not to go in, are they, The CHIEF JUSTICE. The Chief Justice Mr. President? supposes that the counsel employed by the The CHIEF JUSTICE, (to the witness.) President may state what course he pursued, State what was done? and why he pursued it. Mr. CURTIS. In view of which he was Mr. Manager BUTLER. You think he can acting. put in his own determinations and reasonings? Mr. Manager BUTLER. I never heard of The CHIEF JUSTICE. In reference to any man's supposition being put in before. that matter, yes. The WITNESS. I came to the conclusion Mr. Manager BUTLER. I would like the that judgment of the Senate upon that. Mr. Manager BUTLER. Now, your "con- The CHIEF JUSTICE. The counsel will clusions!" The witness is asked what did he please put the question they address to the witdo, not what his conclusions were. ness in writing, if any Senator desires the judgMr. CURTIS.'That is an act for a lawyer, ment of the Senate; if not, the witness will a pretty important act for a lawyer, to come to proceed. a conclusion. Mr. THAYER. I ask Mr. Manager BUTLER. It may or may Mr. HOWARD. I ask that the question not be. may be reduced to writing, so that we may unThe WITNESS. I am stating what course I derstand it. determined to pursue. The CHIEF JUSTICE. The counsel will Mr. Manager BUTLER. What the witness reduce their question to writing:. did is the only thing inquired about, and I wish The question propounded to the witness by him kept to that. the counsel for the respondent was read, as Mr. CURTIS. One thing was that he came follows: to a conclusion. I want to know what that State what conclusions you arrived at as to the was. proper course to be taken to accomplish the instrucMr. Manager BUTLER. I object to the tiongivenyou bythePresident. conclusion, and should like to have the ruling Mr. Manager BUTLER. That is not what of the presiding officer upon that. I objected to, Mr. President, and asked to have The WITNESS. On Monday a ruling upon. Conclusions I did not object Mr. Manager BUTLER. I wish to have to. I objected to his putting in his thoughts that settle~l. and his reasonings by which he came to his The CHIEF JUSTICE. The ChiefJustice conclusions. What hedid was one thing, what has no doubt that the witness may state his con- he thought, and what he determined, and what clusions; but he will put the question to the he wished, and what he hoped depend so much Senate if desired. [After a pause, to the wit- on the state of his mind, whether he was loyally ness.] Go on. or disloyally disposed to the Government, that The WITNESS. The proceeding by quo war- I do not think it competent. ranto being a very tedious one, which could The CHIEF JUSTICE. The Chief Justice not be brought to a conclusion within even a will direct the witness to confine himself to the year, and General Thomas having been arrested conclusions to which he came and the steps for a violation of the tenure-of-office act, I which he took. thought the best mode of proceeding was in The WITNESS. Having come to the conthe first instance elusion, then, that the most expeditious way of Mr. Manager BUTLER. I object now to raising the questions in controversy before the his thoughts. Stop somewhere.. Supreme Court was to apply for a writ of 414 habeas corpus in case General Thomas's case rightly or wrongly, I only desire that he should was in proper shape for that, I had a brief have counsel here to defend him. I never interview with the Attorney General on Moo- before heard the proceeding of a court or a day morning, and this course met with his ap- magistrate sitting in a case undertaken to be proval. I then proceeded to act in conjunction proved in a tribunal where he was not on trial with the counsel whom General Thomas had by the declarations of the counsel of the crimiengaged to act in his defense in the first nal who got beaten, or who succeeded, either. ~~~instance. ~The CHIEF JUSTICE. The Chief Justice ~By Mr. C~UaRTIS~: will submit the question to the Senate. CounQuestion. Who was that? sel will please reduce the question to writing. Answer. Mr. Merrick, of Washington. In The question having been reduced to writing order, however, to procure a writ of habeas was read by the Secretary, as follows: corpus from the Supreme Court of the United What did you do toward getting out a writ of States it was necessary that the commitment habeas corpus under the employment of the Presishould be made by a court, and not by a judge dent? at chambers or a justice of the peace, whereas Mr. Manager BUTLER. That is not the General Thomas had been arrested and par- question we have been debating at all. I wish tially examined before one of the justices of the proprieties of the place would allow me to the supreme court of the District of Columbia characterize that as I think it ought to be; but at chambers, and had been held to appear for that was not the question we were debating. I further examination on Wednesday the 26th made an objection, Mr. President, that the of February. On Wednesday the 26th the witness should not state what took place in criminal court was opened, if I recollect court, and now they put a general question aright, the chief justice presiding, and he an- which evades that. nounced that he would then proceed to the Mr. EVARTS. Our general question is examination of the case against General intended to draw out what took place in court. ~~~~Thomas. ~Mr. Manager BUTLER. Then we object. Mr. Manager BUTLER. I hate the honor Mr. EVARTS. Very well; that we under'to object now, Mr. President, to any proceed- stand. We do not wish to be characterized ings of any description in court being proved about it, though. other than by the record of the court. The CHIEF JUSTICE. Senators, you who Mr. CURTIS. I ask the witness to state are of opinion that the question is admissiwhat he did in court. It may have resulted blein a record, or it may not have resulted in a Mr. GRIMES called for the yeas and nays; record. Until we know what he did we can- and they were ordered. not tell whether it would result in a record or Mr. HOWE. I wish to have the question. not. We do not know that it ever got into a reported again. court where there could be a record. It may The Secretary read the question, as follows: have been an ineffectual attempt to get it into What did you do toward getting out a writ of a court where there could be a record. liebce8 corpus under the employment of the PresiMr. Manager BUTLER. Now, I call the dent? attention of you, Mr. President and the Sen- Mr. Manager BUTLER. I wish that the ators, to the ingenuousness of that speech. statement of counsel may be added to that, The witness has exactly testified that the court "Ithis being intended to ask what the witness had opened and was going on to say what was did in court."' done in court, what Chief Justice Cartter an- Mr. EVARTS. It covers what he did everynounced in court, in the criminal court. where, which includes " in court."' Mr. CURTIS. If -the honorable Manager Mr. Manager BUTLER. That is another will give way for a moment, I say-I intended change. to be so understood before-that here was the Mr. EVARTS. No change whatever. The chief justice of the District sitting in a magis- question has been read three times. It is terial capacity; he also, as Mr. Cox has said, intended to call out what the witness did was there holding the criminal court. Now, toward getting out a writ of habeas corpus we desire to prove that there was an effort made and it covers what he did in court, which was by Mr. Cox to get this case transferred from the very place to do it. the chief Justice in his capacity of a magis- Mr. CURTIS. If any change or addition is trate into and before the criminal court, and we to be made to the question we do not wish to wish to show what Mr. Cox did, in order to have any equivocation about the word " court," obtain that, because that may have adouble meaning. What Mr. Manager BUTLER. Now, then, I again was done or attempted to be done was before say that we have found that we have got into the magistrate; we meant by that in the court. court and the record has been produced here. Mr. Manager BUTLER. A judge or magisThe witness himself has said that Chief Justice trate sitting judicially, which is the court for all Cartter announced that he was going to open purposes. the court. Now, if the Senate want to try Mr. CURTIS. " Sitting judicially," but not Chief Justice Cartter, and whether he has done as a court.. 415 The CHIF JUSTICE. The Secretary will eral Thomas could not put himself into us read the question once more. tody, and they did not desire that he should The Secretary read as follows: be detained in custody. The chief judge What did you do toward getting out a writ of also declared that he would not restrain Genhabeas corpu under the employment of the Presi-eral Thomas of his liberty and would not hold ~~~~~~~~dent? ~him or allow him to be held in custody. SupThe Secretary proceeded to call the roll. posing that he must either be committed or Mr. SHERMAN. Mr. Chief Justice, I de- finally discharged, we then claimed that he be sire to state that my friend from Missouri [Mr. discharged, not supposing that the counsel on HENDERSON] is sick and unable to attend in the other side would consent to it, and uphis place in the Senate to-day. He wished me posing that would bring about his commitment, to make that announcement. and that we should then have an opportunity The call of the roll having been concluded, of getting a habeas corpus. They made no the result was announced-yeas 27, nays 23; objection, however, to his final discharge, and ~~~~as follows: ~accordingly the chief justice did discharge YEAS-Messrs.Anthony, Bayard, Buckalew, Davis, him. Immediately after that I went, in comDiXO, Doolittle, Fessenden, Fowler. Frelinghuysen, Grimes, Hendricks, Johnson, McCreery, Morrill of panywith the counselwho ~Maine~I, Morgan, Norton, Patterson of New Hamp- Mr. Merrick, to the President's House, and shire, Patterson of Tennessee, Ross, Saulsbury, Sher- reported our proceedings and the result to the man, Sprague, Sumner, Trumbull, Van Winkle, President. He then urged us to proceed Vikers, and Willey-27. e then urge NAYS-Messrs.Cameron, Cattell, Chandler, Conk- Mr. Manager BUTLER. Stay a moment. ling, Conness, Cragin, Drake, Edmunds, Ferry, Har- Shall we have anotherinterview with the Pres lan, Howard, Howe, Morgan, Morrill of Vermont, t put in, Mr President? Nye, Pomeroy, Ramsey, Stewart, Thayer, Tipton, idn Williams, Wilson, and Yates-23. The CHIEF JUSTICE (to the witness.) NOT VOTING-Messrs. Cole, Corbett, Henderson, What date was this? ~~~and Wade-4. ~The WITNESS. On the 26th, immediately So the Senate decided the question to be after the proceeding before the udge. ~~admissible. ~Mr. CURTIS. We proposeto show that, Mr. CURTIS, (to the witness.) State now, having made his report to the President of the Mr. Cox, what you did in order to obtain a failure of this attempt, he then receied from writ of habeas corpus, pursuant to the instruction the President other instructions upon this subof the President? ject to follow up the attempt in another way. Answer. When the chief justice announced Mr. Manager BINGHAM. Do I underthat he would proceed as an examining judge stand-I ask for information of the counselto investigate the case of General Thomas, and that this interview with the President was on not as holding court, our first application to the 26th~~ him was to adjourn the investigation into the The WITNESS. It was. criminal court then in session, in order to have Mr. Manager BINGHAM. Two days after the action of that court. After some little dis- he was impeached by the House of Representacussion this request was refused. Our next tives? effort was to- have General Thomas committed Mr. CURTIS. Yes. to prison, in order that we might apply to that Mr. Manager BINGHAM. Two days after court for a habeas cos'pus, and upon his being he was presented here? remanded by that court, if that should be done, Mr. CURTIS. Yes. we might follow up the application by one to Mr. Manager BINGHAM. And you arethe Supreme Court of the United States; but asking for the President's declarations after the counsel who represented the Government, he was arraigned here for this crime to prove Messrs. Carpenter and Riddle, applied to the his innocence? We ask the vote of the Senate judge then for a postponement of the exam- on it. ination-~ Mr. CURTIS. We do not ask for declaraMr. Ma{ager BUTLER. Stop a moment. tions, Mr. Manager; we ask for acts. Does this also include what was done by the Mr. Manager BINGHAM. Acts consisting other people there? in words two days after his arraignment at this The CHIEF JUSTICE. It is an account bar. We ask the vote of the Senate on the of the general transaction, as the Chief Justice question. conceives, and comes within the rule. The Mr. YATES. Mr. President, I ask for the witness will proceed. vote of the Senate on this question. The WITNESS. The chief justice having The CHIEF JUSTICE. The Chief Justice indicated an intention to postpone the exam- thinks this evidence incompetent. The declar'ination, we directed General Thomas to de- ations of partiescline giving any bail for further appearance ana Mr. E.VARTS. Mr. Chief Justice, will you to surrender himself into custody, and an- allow us to say a word? nounce to the judge that he was in custody, The CHIEF JUSTICE. Certainly. and then presented to the criminal court an Mr. EVARTS. If it is to turn on that application for a writ of habeas corpus. The point, which has not been discussed in immecounsel on the other side objected that Gen-, dite reference to this question, we desire to 416 be heard. The offer which the Chief Justice The question having been redud to writing and Senators will remember was read, and was read by the Secretary, as follows: pon which the vote of the Senate was taken After you had reported to the Presidentthe result for admission, included the efforts to have a of yourefforts to obtain a writ of habeas corpus, did habeas corpus proceeding taken, and also the you do any act in pursuance of the original instrucding taken, and also the tions you had received from the President on Saturefforts to have a quo warranto. The reasons day, to test the right of Mr. Stanton to continue in way and theimat which, and the circum-the office; and if so, state what the acts were? stances under which the habeas corpus effort The CHIEF JUSTICE. The Chief Justice was made, and its termination, have beengiven. thinks that this question isinadissable within Thereupon the efforts were attempted at the the last vote of the Senate; but will put the quo warranto. It is in reference to that that question to the Senate if any Senator desires it. the President gave these instructions. We Mr. DOOLITTLE. Mr. Chief Justice, I suppose it is covered by the ruling already should like to have that question put to the ~~~~~~~~made. ~Senate; I think it a different oe Mr. Manager BUTLER. A single word, The CHIEF JUSTICE. No debate is alir. The witness has informed the court that lowable. Does the Senator desire the vote of it was not done before because such a proceed- the Senate on the question ng could not be brought to a decision under a Mr. DOOLITTLE. Yes, sir. year. The President was going to be impeached The CHIEF JUSTICE. The question will in the course of ten or fifteen days, and so he be read again. started a proceeding, if we are to believe this The Secretary read the last question put by offerwhich was to have a conclusion a year the counsel for the respondent. ~hence! Mr. SHERMAN. Now, I should like to The CHIEF JUSTICE. The Chief Justice have the fifth article read. ay have misapprehended the intention of the The CHIEF JUSTICE. The article of the Senate; but he understands their ruling to be impeachment, the reading of which is called in substance this: that acts in respect to the for by the Senator from Ohio, will be read. attempt and intention of the President to ob- The Secretary read article five, as follows: ta a legal decision, commencing on the 22d "Thatsaid Andrew Johnson President of the Uniof February, may be pursued to the legitimate ted States, unmindful of the high duties of his office termination of that particular transaction; and, and of his oath of office, on the 21st day of February, e has ruled that Mr. Cox, in the year of our Lord 1868, and on divers other days sthaerefore, and times in said year, before the 2d day of March, the witness, may go on and testify until that in the year of our Lord 1868, at Washington, in the particular transact-ion came to a close. Now, District of Columbia, did unlawfully conspire with the fferis t proe coverstion wit the one Lorenzo Thomas, and with other persons to the the ffe is o pove onvrsatonswiththeHouse of Representatives unknown, to prevent and President after the termination of that effort hinder the execution of an act entitled'An act reguin the supreme cou'rt of the District of*Colum. lating the tenure of certain civil offices,' passed bia.The hiefJusice oes iotthin tha isMarch 2, 1867, and in pursuance. of said conspiracy bia. he Cief ustie dos no thik tht isdid unlawfully attempt to prevent Edwin M. Stanton, within the intent of the previous ruling; but he then and there being Secrctary for the Department will submit thequestion to the Senate. Senators, of War, duly appointed and commissioned under the laws of the United States from holding said office, you who are 6f the opinion that this testimony whereby the said Andrew Johnson, President of the should be received will please say "a "thoeUnited States, did then and there commit and was of the contrary opinion, no." [Putting the guilty Of a high misdemeanor in office." question.] The question is determined in the The CHIEF JUSTICE. The Chief Justice negative. The evidence is not received, will inquire of the counsel for the President Mr. CURTIS, (to the witness.) Mr. Cox, whether they understand the question to be after you had reported to the Presideiit in the applicable to that article? manner you have already stated. did you take Mr. EVARTS. We certainly do. any further step, did you do any furth~er act in The CHIEF JUSTICE. Is it asked with a reference to raising the question of the consti- view to obtain evidence bearing upon that tutionality of the tenure-of-office act? article of the impeachment? Mr. Manager BUTLER. Wait. If what Mr. EVARTS. Yes, any article whiatever the President did himself, after he was im- that indicates as part of his intent or within peached, after the 26th of February, cannot be any time alleged to be with an unlawful purpose; given in evidence, I do not see that what his we propose to show the lawful. and peaceful counsel did for him may be. That is only one purpose. step further. Mr. HOWE. Mr. President, if proper I Mr. EVARTS. We may at least be allowed should like to have the first question addressed to put the question, Mr. Chief Justice. to the witness on the stand read again. M.Manager BUTLER. The question was The CHIEF JUSTICE. The question upon put and I objected to it. which the ruling has just ta~ken place? Mr. EVA1{TS. It has not been reduced to Mr. HOWE. No, the offer to prove. I writing, should like to have that read again. The CHIEF JUSTICE. The counsel for The CHIEF JUSTICE. The offer which the President will reduce their question to was made by the counsel, and which the Seawriting, ate admitted, will lke read by the Secretary. 417 The Secretary read as follows: terson of Tennessee, Ross. Saulsbury, Sherman We offer to prove that Mr. Cox was employed pro- Sprague, Sumner, Trumbull, Van Winkle, Vickers, fessionally by the President in the presence of Gen- and Willey-27. eral Thomas, to take such legal proceedings in the NAYS-Messrs. Cameron, Cattell, Chandler, Conkl commence against eneral ling, Conness, Cragin, Drake, Edmunds, Ferry, Frecas tht hd ben ommenced against General lnhyeHraHwrMraMrilo effectual to raise judicially the Vr n, H ro, ar question of Mr. Stanton's legal right to continue to Tirmon, Nyc, Pomeroy, Ram tew, hold the office of Secretary for the Department of ipton, Williams, Wilson, ant War against the authority of the President, and also NOT VOTING-Messrs. Col in reference to obtaining a'writ of quo warranto for and Wade-4. the same purpose, and we shall expect to follow up So the question was decided to be admissible. this proof by evidence of what was done by the wit- Mr. CURTIS, (to the witness.) Now you ness in pursuance of the above employment. r. U, (to the may state it, Mr. Cox. TheCHIEFJUSTICE. The discussion and The WiTESS. Onthe trf Justice in respect to that The W O th s. 1 1I forget which, I prepared'q rueion oa ie erence to the firsget which, I prepared an information i the nature of a quo warranto. I think a deNothing had been said nnaueOaqowra of the impeachment. Nothing had been said lay of one day occurred in the effort t procure about the fifth article in the discussion, so far certified copies of General Thomas's commisas the Chief Justice recollects. The question sion as Secretary of War ad interim and of the >. no... ~sion as Secretary of War4a is now asked with reference to the fifth article order to Mr. Stanton. I then applied to the and the intent alleged in that article to con-ore to taton spire. The Chief Justice thinks it is admissi- nastreot attorney to sagn the nd in t with that view underthernature of a quo warranto, ader the ruling upon the,. blrwt thatr vewill, under, the r u onth do so without instructions or a request from however, put the question President or the Attor the President or the AttoreGnra. Ti Senator desires it. to the Senate if any Senator desires it. fact was communicated to the Attorney GenMr. CONNESS. The vote of the Senate is eral.and the papers were seo The CHIEFJUSTICE. The Senator from gave it as our opinion to him that it would not The CHEF JUSICE. The Senator from Om be~ California asks for the vote of the Senate. beSenators, you who are of the opinion that the Mr. Manager BUTLER. to W obe question is admissible, and shall be put to the to the opinion given by thes t m the witnesswillsayayAttorney General as tendin ident's motives or. intent. HwAr lled for the yeas and nays;do not insist upon it if Mr. JOHNSON. I ask for the reading of the other side object. [To the witness.] You the fifth article. I was not in when it was can now. proceed to state anything that was read. ~~~~~~~~~~done after this time. read. ~~~~~~~~~The WITNESs.- Nothing was done after this The Secretary read the fifth article, as fol- time by me. The papers were returned to me lows:reety "That said Andrew Johnson, President of therenty United States, unmindful of the high duties of his Mr. CURTIS, (to the Managers.) The witoffice, and of his oath of office, on the 21st day of ness is now yours, gentlemen, for cross-exam., February, in the year of our Lord 1868. and on divers ination. other days and times in said year, before the 2d day of March, in the year of our Lord 1868, at Washington, Mr. CONNESS. I move that the Senate-_ in the District of Columbia, did unlawfully conspire take a recess for fifteen minutes. with one Lorenzo Thomas, and with other persons to The motion was agreed to; and at the expithe House of Representatives unknown, to prevent and hinder thie execution of an act entitled'An act ration of the recess the Chief Justice resumed regulating the tenure of certain civil offices,' passed the chair and called the Senate to order. March 2, 1867; and in pursuance of said conspiracy did unlawfully attempt to prevent Edwin M. Stanton, WALTER S. Cox cross-examined. then and there being Secretary for the Department of War, duly appointed and commissioned under the By Mr. Manager BUTLER: laws of the United States, from holding said office, Question. You stated that you had beea., whereby the said Andrew Johnson, President of the prciiglaw her nWsigo oetet United States, did then and there commit, and was patcn r nWsigo oetet guilty of a high misdemeanor in office." years? The CHIEF JUSTICE. The Secretary will Answero. Yes, sir.h tme now read the question proposed to be put to Qusesto. Hereallths tme the witness. Answero. Walwanys. hrconesscae The Secretary read as follows: Queti on.bth Wa esidanytheoneascae After you had reported to the President the result withwyou by th Prside nott ykolde of your efforts to obtain a writ of habeas corpus, did AnwrNosi;otomykwlde you do any other act in pursuance of the original Question. Were you counsel in that case -for instructions you had received from the President on the President or for General Thomas? Saturday to test the right of Mr. Stanton to continue Answer. I considered myself counsel four the in the office; and, if so, state what the acts were? President. The question being taken by yeas and nays, Question. Did you'so announce yourself to resulted-yeas 27, nays 23; as follows: Chief Justice Cartter? YEAS-Messrs.Anthony, Bayard, Buckalew, Davis, Answer. I did not. Dixon, Doolittle, Fessenden. Fowler, Grimes, Hendricks, Howe, Johnson, MeCreery, Morrill of Maine, Question. Then you appeared before him as MO 9on, Norton, Patterson of New Hampshire, Pat- counsel for Thomas? C. IL-2t 418 Answer. did in that proceeding..did you not speak to the posecutor's counsel Question. And he did not understand in.any and ask to have it put in train for that lway, so far as you know, that you were desir- Answer. Because I did not think they would ing to do anything there on behalf of the Pres- consent to it. We did not desire to let them ~~~~~~ident ~? ~know our object at the time. Answer I had mentioned the fact to Judge Question. Then, as I understand you, you Cartter privately, out of court, that I had been concealed your object from them? sent for and directed to take charge of or insti- Answer. We rather' did, I think. ~tute proceedings. ~Question. Then they acted as they did act, Question. As counsel for the President? whether rightly or wrongly, under that concealAnswer. Yes, sir that I had been sent for ment, did they? ~by the President. Answer. They seemed to divine the object Question. Butdid youtell him that you were before we got through and to endeavor to coming into his court as counsel for the Pres- defeat it. ~~~~~~~ident? * Question. And they only seemed to divine it Answer. I did not. I do not know whether, from the course they took. That is the only when I tol d him, I had then determined to pro- reason they had for seeming to divine it? ~ceed in that.~ way. ~Answer. Yes, sir. Question. In any of the discussions or your Question. You say you prepared the papers action before the court did you inform either for an information in the nature of a quo warthe court or the counsel on the other side that ranto. you desired to have the case put in train so Answer. Yes, sir. that you could get decision of the Supreme Question. On what day was that? Court of the United States? Answer. That was either on Wednesday, the Athink I didswer. 26th, or the next day. Question. Had either the court or the coun- Question. The 26th or 27th of February? sel any means of knowing that that was your Answer. Yes, sir; I think it was the 27th. purpose or the President's purpose, so far as Question. That was after the President was you were concerned? impeached? Answer. In no other way than from our Answer. Yes, sir. application for the habeas corpus upon our Question. DidyouseethePresidentbetwee announcement of GeneralThomas's surrender the time that you reported to him and the time into custody, so far as I am advised.. when you prepared this paper? Question. Nothing only what they, might Answer. Idid not. I have never seen him infer? since. Answer. Precisely. Question. You prepared that paper and carQuestion. They might infer that? ried it to the Attorney General, did you not? Answer. I had no conversation with them Answer. First, to the district attorney, or before the result. rather, I spoke to him without presenting the, Question. I am not speaking now of conver- paper. sations with counsel outside of the court, but Question. You spoke to him and he said he I am speaking of proceedings in court? must have some order from the Attorney GenAnswer. Precisely so. eral or the Pres'ident before he could act? Question. And so far as the, proceedings in Answer. Yes, sir. court were concerned-and I ask for nothing. Question. And then you went to the Attorelse-there was no intimation, direct or in- ney General? direct, that there was any wish on the part of Answer. I did not go in person; I sent the the President or the Attorney General to make papers. a case to test the constitutionality or the pro- Question. Did you send a note. with them? priety of any law? Answer. I do not remember. Answer. There was none that I remember in Question. You simply sent the papers? the presence of the judge on the bench acting Answer. I sent a message, either written or At that time-no other than private informa- verbal; I do not know. which. tion. IQuestion. By whom? Question. Your private information to the Answer. I think by Mr. Merrick, or Mr. judge I have not asked for. Was there any in Bradley; I cannot now say which. court to the counsel who appeared on the other Question. What Bradley? side? Answer. Joseph H. Answer. None. Question. The elder or younger? Question. Then, so far as you know, the Answer. The elder. counsel on the other side could, only treat this Question. Was he concerned in the matter? as a question of the rights of personal liberty Answer. He appeared in.court with us merely of Mr. Thomas? [No answer.] Well, sir, it as an adviser, as a friend of General Thomas. being your desire to have that question tested, Question. Joseph H. Bradley appeared in, Bnd as. you, appearing for the Government, the courts of the District? could do so by consent of the prosecutor, why Answer.' He did not appear in his character' 419 as attorney of the court. He appeared' in per- ing, been presented to any judge of any court? son, not in the character of an attorney. Answer. They have not. Question. He appeared in person, but did Question. Up to the hofr that we are speaknot appear as an attorney? ing have you been directed either by the AttorAnswer. Yes, sir. ney General or the President to present that Question. Did he say anything? application to any judge of any court? Answer. Nothing to the court or to the Answer. The papers came to me with a direcjudge. tion that Mr. Merrick and miyself should use Question. Is this Mr. Bradley the same man our discretion. who was disbarred? Question. They came with a written message? Answer. The same. Answer. No; a verbal one, through Mr. Question. Sothat he could not appear. Now, Merrick to me, or rather it was communicated since you sent those papers to the Attorney to him, and by him to me. General, have you ever received them back? Question. But Mr. Merrick, if I understand Answer. I have. you, was not associated with you in this proQuestion. When? ceeding as counsel for the President, because Answer. A few days ago. I asked you if the President had any other Question. By "a few daysago" when do you counsel? mean? Since you have been summoned as a' Answer. He was not, as I understood it; he witness? was counsel for General Thomas. Answer. I think not-just before, I believe. Question. Was this a movement on the part Question. Just before? of General Thomas? Answer. I believe so. The WITNESS. Which movement? Question. Preparatory to your being sum- Mr. Manager BUTLER. This movement moned as a witness? for an information in the nature of a quo Answer. Not that I am aware of. warranto? Question. After or before this case was Answer. It was not. It would be on the opened; before or after the trial began? part of the United States on his relation. Answer. After. Question. On the relation of General Question. How long after. Thomas? Answer. I cannot say. I think it was four Answer. Yes, sir. or five days ago, as near as I can come to it. Question. Now, sir, have you received in Question. Had you any communicationwith writing, or verbally to yourself, any directions, the Attorney General about them between the either from the President or the Attorney Gentime you sent them and the time when you eral, to file those papers? received them; I do not ask what the commu- Answer. No positive directions. nication was; I only ask the fact whether you Question. Any positive or unpositive from had any communication? him to you? Answer. None in person. Answer. Not immediately. Question. Had you any in writing?' Question. I do not mean through Mr. MerAnswer. No, sir. rick? Question. Then you had none in any way, Answer. The only communication I received if you had none either in person or in writing? was through him. Answer. Yes, sir; through Mr. Merrick, to Question. Now, sir, if you please, state from whom it was more convenient to see him than whom did Mr. Merrick bring you a direction it was to me. or communication? Question. So you can only know by what Answer. From the Attorney General. Mr. Merrick said? Question. Who? Use names, if you please. Answer. That is all. Answer. The Attorney General, Mr. Stan' Question. Of that I will not ask you; you bery. say the papers were returned to you. Where Question. Five days ago I Mr. Stanbery are they now? resigned as Attorney General, we have heard, Answer. I have them in my pocket. some fortnight ago or more. How could it Question. Were they not returned to you for come to you from the Attorney General five the purpose of your having them when you days ago? should be called as a witness? Do you not so Answer. I mean Mr. Stanbeky. understand it?, Question. You have neverreceived any direcAnswer. No, sir; they came with a message? tion, even through Mr. Merrick, from the AttorQuestion. How soon before you were sum- ney General, but some sort of direction from moned? the President's counsel, through Mr. Merrick? Answer. Not more than a day or two, I think. Answer. All I received wasQuestion. On the same day? Question. Excuseme; just hearmyquestion? Answer. I think a day or two before; I am The WITNESS. Repeat it, if you please. not very sure. Mr. Manager BUTLER. Have you received Question. To your knowledge have those any communication, through Mr. Merrick or papers, up to the hour in which we are' speak- anybody else, from the Attorney General of the 420 United States-not the resigned Attorney Gen- Answer. It was. eral of the United States? Question. Did you make that motion? Answer. I have not from any other person Answer. I did. than Mr. Stanbery. Question. So that, ia fact, General Thomas Question. And you have not received any was discharged by the court from custody on from him, either verbally or otherwise, while the motion of the President's counsel? he was Attorney General? Mr. CURTIS. He has not said " from Answer. I have not. custody." Question. When you sent in the papers was The WITNESS. Discharged from further he then Attorney General? attendance. Answer. I believe so. By Mr. Manager BUTLER: Question. Will you not think, and make Question. Excuse me. If he was not disyourself certain on that point? charged from custody, what was he discharged Aiswer. I do not know when he resigned. from? If you can inform me when that was I can Answer. He was discharged from the cornanswer. plaint or from any further detention or examQuestion. And the resignation made no ination, I suppose. difference in your action, so that you do not Question. From "further detention!" He remember it?. could not be detained without being in cusAnswer. I do not think he could have re- tody? signed at that time. I am very sure that the Answer. Not very well. papers were sent to him within two or three Mr. Manager BUTLER. I thought not, days after the discharge of General Thomas. when I was interrupted by the learned counsel Question. And were returned by him to you on that point. four or five days ago? The WITNESS. He was discharged from the Answer. I cannot be precise as to that-five complaint, I presume. or six days, or four or five days. Question. Then I will repeat the question at Question. Long after he resigned, at any the point at which I was interrupted: whether, rate? bin fact, Mr. Thomas was not discharged from Answer. I believe it was. custody, from detention, from further being Question. So that when you told us that Mr. held to answer upon that complaint, by the Merrick had brought a communication from motiofi of the President's counsel? the Attorney General you meant from Mr. Answer. He was. Stanbery? Question. Now, then, was that information Answer. I did. signed by any Attorney General, past, current, Question. And you have received no com- or to come, so far as you know? munication from the President or from the Answer. It was not. Attorney General as to what should be done RICHARDT.MERRI sworn and examined. with those proceedings?RICHARD T. MERRICK sworn and examined. with those proceedings? By Mr. CURTIS: Answer. No, sir. Question. Then, so far as you know, since Question. Where do you reside? you have prepared those papers, there has not Answer. In Washington city. been any direction or any effort from the Pres- Question. And what is your profession? ident or the Attorney General-leaving out Mr. Answer. I ata a lawyer by profession. Stanbery, for he is not Attorney General now- Question. How long have you been in that from the President or the Attorney General to profession? have anything done with those papers? Answer. Nineteen or twenty years, or over. Answer. There has been no direction, and In 1847 I was admitted. there has been no- Question. Wereyou employed professionally Question. Communication? in any way in connection with the matter of Answer. Communication to me since the GeneralThomas before Chief Justice Cartter? papers were forwarded to the office of the Answer. I was employed by GeneralThomas Attorney General. on the morning of the 22d of February, to conQuestion. Now, sir, we will go to the court duct the proceeding instituted against him, for a moment. Did not Mr. Merrick or your- and which brought him before Chief Justice self make the motion to have Mr. Thomas dis- Cartter. charged? Question. In the course of that day, the 22d Answer. We did. of February, did you have an interview, in Question. Had he not been in custody under company with General Thomas or otherwise, his recognizance up to the time of that motion? with the President of the United States? Answer. We claimed that he was, but the Answer. After theaction taken by the Chief other side denied it. Justice on the case sitting at chambers on the Question. And to settle that question you morning of the 22d, at the instance of General moved his discharge? Thomas, I went to the President's House for Answer. Yes, sir. the purpose of taking to the President the affi-.Question. And that was granted? davit and the bond filed by General Thomas, 421 and communicating to the President what had it was simply to give a bond,) I ordered copies transpired in regard to the case. of the papers to be made, and as soon as they Question. Did you communicate to him what were made I took them to the Executive Manhad transpired? sion. I think it occupied probably from thirty Answer. I did. minutes to an hour to make the copies, aid my Mr. Manager BUTLER. I did not under- impression is that I reached the Executive stand what the question was. Mansion by noon. Mr. CURTIS. The question is, did he com- Question. Now, you can answer the residue municate to the President what had transpired of the question, whether you received either in regard to the case? from the President himself, or the Attorney Mr. Manager BUTLER. I submit, Mr. General in the presence of the President, any President, that that is wholly immaterial. directions or suggestions as to the course to be The Senate ruled in the President's acts in taken by you as counsel in that case? employing Mr. Cox as his counsel. Those Mr: Manager BUTLER. Do you ask now were his acts. But what communication took for the conversations? place between him and Mr. Merrick, who very Mr. CURTIS. I ask for suggestions or frankly tells us here he was employed by Gen- directions to this gentleman. I do not go eral Thomas as his counsel, I think cannot be outside of those. evidence. Mr. Manager BUTLER. I think those are The CHIEF JUSTICE. The Chief Justice conversations, and I do not think they can be thinks the evidence is cumulative only, and is put in. This was not employing, as was the admissible. He will put the question to the other case, a counsel to do anything; but it Senate if any Senator desires it. The counsel was giving directions as to how Thomas's will reduce their question to writing. counsel should try his case. Mr. Manager BUTLER. Upon thewholeI Mr. CURTIS. I suppose it depends enwill not press the objection. tirely upon what was said. They might The CHIEF JUSTICE. The objection is amount to verbal acts, as they are called in withdrawn. the books; and if this gentleman so received Mr. CURTIS, (to the witness.) State and acted upon them I suppose they then pass whether you communicated to the President, out of the range of mere talk or declarations. in the presence of General Thomas, what had The question is whether he received instructranspired in reference to the case? tions or suggestions from the President or the Answer. My recollection is that I communi- Attorney General. cated what had transpired to the President in Mr. Manager BUTLER. It will be perthe absence of General Thomas in the first in- ceived that the difficulty is this: it is not a stance, for he was not at the Executive Man- mere question of the difference between acts sion when I called; but during the interview and declarations, although declarations make General Thomas arrived, and the same corn- it a remove further off; but my proposition is munication was again made in a general con- that the President's acts in directing General versation, in which the Attorney General, Mr. Thomas's counsel to defend General Thomas, Stanbery, the President, GeneralThomas, and his client, not being employed by him, the myself participated. President, cannot be evidence, whether reQuestion. I wish now youwould state whether, garded as acts or as declarations. That is all. either from the President himself, or from the Mr. EVARTS. It does not followthat these Attorney General in his presence. you received instructions were to defend Mr. Thomas. The any instructions or suggestions as to the course point of the inquiry is that the instructions to be pursued by you in reference to General were to make investigations in this proceeding Thomas's case? whether steps could be taken in behalf of the Mr. Manager BUTLER. Stay a moment. President. You cannot anticipate what the By Mr. CURTIS: answer is to be by the objections. We offer to Questiom In the first place you may fix, if show that the Attorney General, in the presyou please. the hour of the day when this ence of the President, after this report of the occurred on the 22d? situation that was opened by the existence of TheWITNESS. TheManagersignifiedtome this case of General Thomas, gave certain to stop. directions to this gentleman of the profession Mr. Manager BUTLER. What date was it? in reference to grafting upon that case the The WITNESS. The 22d of February. means of having a habeas corpus. By Mr. CURTIS: Mr. Manager BUTLER. I do not propose Question. Now, the hour of the day, as near to argue it. The statement of it is enough. as you can fix it? General Thomas's lawyer goes to the PresiAnswer. I think the proceedings before dent; the President has no more right to direct Chief Justice Cartter at chambers took place General Thomas's lawyer than he has to direct between ten and half past ten o'clock; to the me; and thereupon they do not offer even the best of my recollection about ten o'clock. declarations of the President, but they offer Immediately after they terminated, (and they now the declarations of the President's lawyer, extended through only a very brief period, for Attorney General Stanbery, and you are asked '422 to allow his counsel to put his declarations as Answer. Stating the result of that examin part of this defense. If that is allowed to go tion. in no argument on earth can be of any avail. Mr. Manager BUTLER. Whatever was in The CHIEF JUSTICE. The counsel will that note, you will not state it. pleae reduce their question to writi6g. The WITNESS. That was all the contents. The offer of proof was reduced to writing Mr. Manager BUTLER. Nothing will be ~and sent to the desk. stated unless the Senate rules it in. The CHIEF JUSTICE. The Secretary will By Mr. CURTIS: read the question propounded by the counsel Question. You wrote him a note on this ~for the President. ~subject? The Secretary read as follows: Answer. I wrote him a note on this subject, We offer to prove that about the hour of twelve and on the following Monday or Tuesday, this noon, on the 22d of February,upon the first commu- being Saturday, I met Mr. Cox, who was the nieation to the President of t situation of General unsel of the P Thomas's case, the President, or the Attorne' Gen- counsel of the President, eral in his presence, gave the attorneys certain direc- in consultation with him I communicated to tions as to obtaining a writ of hbe8 cors for the him theconclusions to which I had arrived in purpose of testing judicially the right of Mr. Stanton to continue to hold the office of Secretary of War the course of my examina against the authority of the President. previous, and we, having come to the same The CHIEF JUSTICE. The Chief Justice conclusion, agreed to conduct the casetogether thinks this evidenceadmissible within the rule in harmony with a view of accomplishing the already determined by the Senate. He will contemplated result ofgetting itto the Supreme submit the question to the Senate if any Sen- Court on a habeas corpus. ator desires it. [After a pause.] The witness Question. State now anything which you may answer the question. and Mr. Cox did for the purose of accomThe WITNESS. I should like to have the plishing that result? ~~question read. * Answer. Having formed our plan of proLMr. CURTIS. The question is, whether the ceeding, we went into court on the day on President, or the Attorney General in his pres- which, according to the bond, General Thomas ence, gave you any instructions in respectto wastoappearbefore Cartterat chambers. proceedings to obtain a writ of habeas corpus to Mr. JOHNSON. What day was thate test the right of Mr. Stanton to hold the office The WITNESS. That was, I think on Wednesof Secretary contrary to the will of the Presi- day, the 26th, if I am not mistaken. Shall I dent? state what transpired? Answer. The Attorney General, upon learn. Mr. CURTIS. Yes, so far as it regards ing from me the situation of the case, asked your acts. if it was possible in any way to get it to the Mr. Manager BUTLER. I respectfully subSupreme Court immediately. I told him I was mit once again, Mr. President, that the acts of not prepared to answer that question. He General Thomas's counsel under the direction then said: "ILook at itand see whether you* of the Attorney General, after the President,can take it up to the Supreme Court immedi- was impeac hed, cannot be put in evidence. ately upon a habeas corpus and have a decision The WITNESS, (to counsel.) Will you allow from that tribunal." I told him I would, me to make a correction? Question. Subsequent to this time did you Mr. CURTIS and Mr. EVARTS. Certainly. come in. communication with any gentleman The WITNESS.' You asked when Inext came acting as counsel for the President in reference in contact with'any one representing the Presto this matter, and who was that gentleman, ident. I should have stated that on Tue sday if any? night, by appointment, I had an interview with Mr. JOHNSON. What is the question? the Attorney General upon the subject of this We did not hear it. case and the proceedings to be taken on the Mr. CURTIS. The, question is, whether, following day. subsequent to this time, he came into commu- Mr. Manager BUTLER. I do not see that nication with any other legal gentleman acting that alters the question, which I desire may be as counsel for the President, and who he reduced to writing, if it is ever to be done, bewas? fore I argue it; because I have argued one or Answer. I examined the question as re- two questions here, and then another quesquested by the Attor-ney.General, and on the tion appeared when it came to be reduced to evening or afternoon of the 2-2d, and I think writing. within two or three hours after I had seen him, The CHIEF JUSTICE. The counsel will I wrote him a note. please reduce their question to writing. Mr. Manager BUTLER. We will not have The question was reduced to writing., and the contents of that note unless it is ruled in. read by the Secretary, as follows: The WITNESS. I paused, sir, that you. might What, if anything, did you and Mr. Cox do in referobject. ence to accomplishing the result you have spoken of? By Mr. CURTIS: Mr. Manager BUTLER. Does that include Question. Stating the result of that examin- what was done in court? ation? Mr. CURTIS. It includes what was done 423 bythe chief justice as a magistrate or in court, sufficient, and went on to remarkupon the ~if it is so termed. motion further in such a manner that I conMr. Manager BUTLER. I suppose that that eluded he would continue the case until the ust be termed a court. following day; and as soon as we saw that he Mr. EVARTS. It is the same question which would continue the case until the following day was put to the other witness. we brought forward a motion that it b then Mr. Manager BUTLER. No; it is another adjourned from before the chief justice at ~~~~~person. ~chambers to the chief justice holding the The CHIEF JUSTICE. Does the Manager criminal court. That question was argued by object to the question as proposed? counsel, and overruled by the court. Mr. Manager BUTLER. Yes, sir. Mr. JOHNSON. By the court? The CHIEF JUSTICE. The Chief Justice The WITNESS. By the judge at chambers, thinks it is competent, but he will put the not by the court. I then submitted to the question to the Senate if any Senator desires judge-. [After a pause, to the witness.] Answer Mr. Manager BUTLER. Mr. President, I ~~~the question. ~wish it simply understood, that I may clear The WITNESS, (to the Secretary.) Read me my skirts of this matter, that this all goes in ~~~~the question..under our objection, and under the ruling of The Secretary read the question. the presiding officer. The WITNESS. To answer that question it The CHIEF JUSTICE. It goes in under is ecessary that I shouldstate what transpired the direction of the Senate of the United before the judge at chambers and in court on States. [To the witness.] Proceed, sir. Wednesday; for all that we did was done to The WITNESS. We then announced to the accoplish that result. judge that General Thomas's bail ad surMr. CURTIS. Go on. rendered him, or that he was in custody of the The WITNESS. Shall I state it? marshal, and the marshal was advancing toMr. CURTIS. Yes. ward him at the time. I think that Mr. BradAnswer. We went into the room in the City ley or Mr. Cox handed me, while on my feet, Hall in which the criminal court holds its ses- and while I was making that announcement, sion in the morning. Chief Justice Cartter was the petition for a habeas corpus, which, I then then holding the term of the criminal court, presented to the criminal court, which having and the criminal court was regularly opened. opened in the morning, had not et adjourned, After some business in the criminal court and over which Chief Justice Cartter was pre was discharged the chief justice announced siding. I presented the habeas corpus to the that he was ready to hear the case of General criminal court. Thomas. The question was then suggested Mr. CURTIS. The petition? whether it was to be heard in chambers or Tlhe WITNESS. The petition for -a habeas before the court. The chief justice said he corpus to the criminal court, representing that would hear it as at chambers, the criminal General Thomas was in custody of the marcourt not having then been adjourned. The shal, and asked that it should be heard. case was thereupon called up. The counsel Mr. Manager BUTLER. Was that petition appearing for Mr. Stanton or for the Govern- in writing? ment, Messrs. Carpenter and Riddle, moved The WITNtSs. That petition was in writing, that the case be continued or postponed until I believe. As I said,. it was handed, to me by the following day on the ground of the absence one of my associates, and if my recollection of one' or twb witnesses, I think, and on the serves me aright I have seen the petition since, additional plea of Mr. Carpenter's indisposi- and it was not signed. When handed to me tion. To that motion, after consultation with General Thomas and Mr. Bradley were sitting my associate, Mr. Cox, and Mr. Joseph H. immediately behind me, and after reading it I Bradley, who appeared in person as advisory laid it down, and I believe it was taken up by counsel Zor General Thomas, I rose and oh- some of the reporters and not regained for half jected to the postponement, stating that I was an hour. constrained to object, notwithstanding the plea' By Mr. CURTIS: of personal indisposition, to which I always Question. Well, sir, after you had read it yielded; but I objected now for the reason that what occurred? this was a case involving a question of great Answer. After I had read it a discussion public interest4 which the harmonious action arose upon the propriety of the petition and of the Government rendered it necessary the regularity of the time, in regard to~ the time should be speedily determined. I elaborated of its presentation. The counsel upon the other the view. M7r. Carp enter replied, rep resenting side contended that General Thomas was rtot that there could be no detriment to the public in custody, and that it was a remarkable caseservice, a nd he earnestly urged the court to aIremember that expression, I think, of Mr. postponement. The chief justice thereupon Carpenter's-for an accused party to insist said-I think he remarked that it was the first upon putting himself in jail or in custody. We time he knew of a case in which the plea of a contended that he was in custody. The chief personal indisposition of couhisel was not ac- justice ruled that he was not in custody -at 411,. ceded to by the other side, that it. was generally and that he did not pirpo se to put him in, Cu-18 424 tody. The counsel upon the other side further Question. And for how long a time have you stated that they desired neither that he should been so personally acquainted with hiiiim? be put in custody nor that he should give bond, Answer. I knew Mr. Johnson in Tennessee because they were certain, from his character for several years beforejI left the State, having and position, that he would be here to answer met him more particularly upon the stump in any charge that might be brought against him. political campaigns, I being a Whig and he a The chief justice replied that, in view of the Democrat. statements made by the counsel, he should Question. And has that acquaintance conneither put him in custody nor demand bond, tinued until the present time? and was himself satisfied there was no necessity Answer. It has. for pursuing either course. We then remarked, Question. Were you in the city of Washing" If he is not in custody and not under bond ton in the month of February last? he is discharged." I think some one said, Answer. I was. " He is then discharged; " and thereupon, in Question. And for what period of time? order that there might be a decision in refer- Answer. I came here, I think, about the 1st ence to the alternatives presented of his being day of February, or near that time/ and replaced in custody or discharged upon the rec- mained until about the 1st of March or last of ard, we moved fbr his discharge in order to February. bring up the question officially of his commit- Question. During that time were you at a ment. He was thereupon discharged. hotel or at a private residence? Mr. CURTIS. I believe that is all we wish Answer. At a private boarding-house. to examine Mr. Merrick upon. Question. Did you have an interview with the President of the United States on the 21st Cross-examined by Mr. Manager BUTLER: of February? Question. Were you counsel, Mr. Merrick, Answer. I did. for Surratt? Question. Alone, or in company with whom? Answer. I was, sir. Answer. In - company with a member of Question. Was Mr. Cox? the House of Representatives. Answer. He was not. Question. Who was he? Question. Was Mr. Bradley, who was advis- Answer. Mr. SELYE, of Rochester, New ory counsel in this proceeding? York. Answer. He was. Question. How did it happen that you made Question. When you got to the Executive this visit? Mansion that morning Thomas was not there, Mr. Manager BUTLER. I pray judgment you tell us? on that. Answer. Ithinknot. Thatismyrecollection. Mr. EVARTS. It is merely introductory. Question. Did you learn whether he had been It is nothing material. You have no ground there?' to object, as the answer will show. Answer. I do not recollect whether I did or Mr. Manager BUTLER. Very well. not. Had I so learned I probably should have The WITNESS. Mr. SELYE said that while he recollected it. knew the President he never had been formQuestion. Did you not learn that Thomas ally presented to him; and understanding was then over at the War Department? that I was a friend of the President, and well Answer. I do not recollect that I did, and acquainted with him, he asked me if I would think I did not. not go up with him to the President's and inQuestion. Did you not learn when he re- troduce him. turned that he had come from the War Depart- By Mr. EVARTS: ment? Question. When did this occur? Answer. I do not recollect. Answer. On the 20th. Mr. Manager BUTLER. I will not tax your Question. The day before? want of recollection any further. [Laughter.] Answer. The day before-on the 20th. Question. Your visit, then, on the 21st was EDWIN 0. PERRIN sworn and examined. on this inducement? By Mr. EVARTS: Answer. I made the appointment for the Question. Where do you reside? next day. I informed Mr. SELYE that it was Answer. I reside on Long Island, near Ja. Cabinet day, and it would be no use to go unmaica. til after two o'clock, as we probably would Question. How long have you been a resi- not be permitted to enter, and appointed two dent of that region? o'clock, at his rooms in Twelfth street, to meet Answer. I have been a resident of Long him for that purpose. Island over ten years. Question. You went there, and you took up Question. Previous to that time where had Mr. SELYE? you resided? Answer. I went to Mr. SELYE'S room. He Answer. Memphis, Tennessee. called a carriage, and we got in and drove to Question. Are you personally acquainted the President's house, alittleafter two o'clock, with the President of the United States? or perhaps nearly three. I did not note the Answer. I am. hour. 425 Question. Did you have any difficulty in get- course it would be more convenient to stop a ~~~~~ting in ~? ~cause at the end of the prosecution's case and Answer. We had. Mr. Kershaw, the usher save the time of the country or of the court. at the door, when I handed him Mr. SELYE's We are reducing to writing our offer. card and mine, said that the President had Mr. Manager BUTLER. The question simply some of his Cabinet with him yet, and no one is what was said between the President and ould be admitted. I told him I wished that Mr. SELYE and Mr. Perrin. That is the queshe would o in and say to the President or say tion that I had the honor to -object to. to ColoneMoore, with my compliments- Mr. EVARTS. We are reducing it to form Mr. Manager BUTLER. Excuse me; are in order that it may be passed upon. you going to put in Colonel Moore? The offer, having been reduced towriting Mr. EVARTS. It is no matter; we are was read by the Secretary, as follows: only getting at the fact how he got in. [To We offer to prove that the President then stated ~thewitess. she fact that Mr. SELYE was that he had issued an order for the removal of Mr. a member of Congress mentioned? Stanton and the employment of General Thomas to s mentio d? perform the duties ad interim that thereupon Mr. Answer. That was mentioned that Mr. SELYE Perrin said "Supposing Mr. Stanton should oppose was a member of Congress. the order;" the Presidentreplied "Thereisno danger Question. And so you got in? of that, for General Thomas is already in the office." He then added, "It is only a temporary arrangeAnswer. And so we got in. ment; I shall send in to the Senate at once a good Question. When you went up-stairs; and name for the office." were you immediately admitted, or otherwise? Mr. Manager BUTLER. I find it, Mr Answer. We were up-stairs then when President and Senators, my duty to object to this took place in the ante-room near the this. There is no end to declarations of this Presidents reception-room. sort. The admission of those to Sherman and 11Question. Very well; then you went in after to Thomas was advocated on the ground that ~~~~~~awhile ~? ~the office was tendered to them and that it was Answer. Yes, sir; we went in. a part of the res gestce. This is mere narraQuestion. Was the President alone when you tion, mere statement of what he had done and ~~~~~~went in? ~what he intended to do. It never was evidence Answer. He was alone. and never will be evidence in any organized Question. And didyou introduce Mr. SELYE? court, so far as any experience in court has Answer. I introduced Mr. SELYE. taught me. I do not see why you limit it. If Question. As a member of Congress? Mr. Perrin, who says that he has heretofore Answer. As a member of Congress from the been on the stump, can go there and ask him Rochester district.. questions, and the answers can be received, Question. Before this time had you heard why not anybody else? If Mr. SELYE could go that any order for the removal of Mr. Stanton there why not everybody else? Why could he had been made? not make declarations to every man, ay, and Answer. I had heard nothinj of it. woman, too, and bring them in here, as to Question. Nor had Mr. SELYE, so far as you what he intenl id to do and what he had done ]know? to instruct the Senate -of the United States in Answer. He had not. I found him lying their duties sitting as a high court of impeachsown when I got to his room, about two o'clock, ment? and. he complained of being unwell. Mr. EVARTS. Mr. Chief Justice, I am Question. So far as you know, he had heard not aware that the credit of this testimony is nothing of it? at all affected by the fact that Mr. Perrin has Answer. So far as I know, he had heard been engaged in political canvasses, nor do I nothing of it. suppose that it assists us in determining whether Question. Did you then hear from the Presi- this should be admitted, because a declaration dent of the removal of Mr. Stanton? might be made even to a female. The quesMr. Ajanager BUTLER. Stay a moment. tion, then, is, whether the declaration, at this We feel it our duty to object to the state- time and under these circumstances, of the mnent of the President to this person or Mr. President's intent in what he had done wa's SELYE or anybody else, declarations made to and is proper to be heard. parties in the country generally. There can be it will be observed that this was an interview nDo end to this kind of evidence; everybody between the President of the United States may be brought here. Where are we to stop, and a member of Congress, one of " Ithe grand if thre is to be any stop? If not, the time inquest of'the nation," holding, therefore, an of the country will be consumed in. hearing official duty and having access, by reason of every conversation between the President and his official privilege, to the person of the every person that he chooses to introduce. President; that at this hour of the day the Mr. EVARTS. If the evidence is proper President was in the attitude of supposing, the time to have considered about the public upon the report of General Thomas, that'Mr. interest was when the trial was commenced or Stanton was ready to yield the office, desiring promoted. We are not to be excluded from a only the time necessary to accomipodate his defense because it takes tim~e'o put it in. Of private convenience, and that he then stated~to * B~~~~~~46'these gentlemen, "I haveremoved Mr. Stanton tion upon which declarations are evidence is that and appointed General Thomas ad interim," no man would declare anything against himself unless it were true; but every man, if h% was in a diffiwhich was their first intelligence of the occur- cuty wer in the view to anany difficulty, would make rence; that upon the suggestion, " Will there declarations for himself."-24 State Trials, -p. 109. not be trouble or difficulty?" the Preildent If this offer of proof does not come perfectly answered (showing thus the bearing on any within that rule then I never met a case within question of threats or purpose of force as to my experience that would come within its probe imputed to him from the declarations that visions. I leave this objection to the decision General Thomas was making at about the of the Senate upon that rule. same hour to Mr. Wilkeson) that there was no Mr. EVARTS. It may truly be said. I supoccasion for or "no danger of thatas General pose, Mr. Chief Justice and Senators, that the Thomas was already in." Then, as to the question now proposed is not entirely covered motive or purpose entertained by the President by any previous ruling of the Senate, because at the time of this act of providing anybody there were circumstances in regard to the attithat should control the War Department or tude of the persons between whom and the the military appropriations, or by combination President those conferences took place that are with the Treasury Department suck the public not precisely reproduced here in the relation funds, or to have, though I regret to repeat of a member of Congress toward the Presithe words as used by the honorable Manager, dent. But, Senators, you will perceive that a tool or a slave to carry on the office to the before.the controversy arose, and at a time,detriment of the public service, we propose to when, in the President's opinion, there was to show tlhat at the very moment he asserts, "This be no controversy, he made this statement in is but a temporary arrangement; I shall at the course of his proper intercourse with this once send in a good name for the office to the member of Congress, thus introduced to him, Senate." concerning his public action. It is applicable Now, you will perceive that this bears upon in reference both to the point of why the apthe President's condition of purpose in this pointment of General Thomas was made and matter, both in respect to any force as threat- with what limitation of purpose in so appointened or suggested by anybody else being ing him, and as bearing also upon the question imputable to him at this time, and upon the of whether he was using or justifying force. question of whether this appointment of Gen- May not declarations that are drawn from superal Thomas had any other purpose than what posed coadjutors of his, with a view of fixing appeared upon its face, a nominal appointment, upon him the responsibility of the same, be to raise the question of whether Mr. Stanton rebutted by his statemients at the same period would retire- or not, and determined, as it in thisopen and apparently truthful manner, seemed to be for the moment, by the acquies- unconnected with any agitation or any quescence of Mr. Stanton, was then only to be tions of difficulty or any lis mota? And then maintained until a name was sent into the it is important, as bearing upon this precise Senate, as by proof hitherto given we have fact, that the next day having sent in, a-s we shown was done on the following day before have proved, the nomination of Mr. Eying, one o' clock. senior, of Ohio, for the place of Secretary of Mr. JOHNSON. Mr. Chief Justice, I ask War, to show that that was not a purpose that the question be read. an act that was formed after the occasion o The CHIEF JUSTICE. The proposal of difficulty or after the appearance of danger or the counsel for the President will be read. threat to himself; but that at the very moment The Secretary read as follows: that he was performing the act of removing We offer to prove that the President then stated Mr. Stanton and appointing General Thomas, that he had issued an order for the removal of Mr. and had supposed that it had quietly been Stanton and the employment -of Mr. Thomas to a dto, form theduties ad interim; that thereupon Mr. Per- acceded to he then and there had the purpose rinsaid, "Supposing Mr. Stanton should oppose the not of making an appointment of General order." The President replied: "There is no dan-Thomas that was to hod, which should super-'ger of that, for General Thomas is already in the office." He then added: "It is only a temporary sede proper action of the Senate; but at the arrangement; I shall send into the Senate at once a very moment, having used this neoessary apgod name for the office."'good name for the office." pointment for the purpose of testing the quesMr. Manager WILSON. Mr. President, as tion of the Constitution and of the law, he then this objection is outside of any former ruling proposed to send to the Senate of the United of the Senate, and is perfectly within the rule States a nomination for the offee. laid down in Hardy's case, I wish to call the Mr. Manager BUTLER. Mr. President, attention of the Senate to that rule again, not there are one or two new facts now put in, or for the purpose of entering upon any consider- pretended facts, upon which this evidence is -able discussion, but to leave this objection pressed. The more material one is that this under that rule to the decision of the Senate: was before any controversy arose between the "Nothing is so clear as that all declarations which President and Congress upon the subject of apply to facts, and even apply to the particular case tanon. If that were so then it ight Mr. Stanton. If tha~t wore so, then it mig-ht th'at is charged. though the intent should make a part of that charge, are evidence against a prisoner, possibly have some color of a shadow of a and are not evidenve for him. because the presump- shade of bearing. But had there not been a 427 controversy going on? Had he not known there are or may have beenbetween the Proithat the Senate had restored Mr. Stanton? dent and the Houses of Congress, it is of no Had he not tried to get him out and had they consequence to inquire, nor is it of the least uot puthim back? Had henot been beseech- consequence to inquire into the period during ing and beseeching General Sherman to take which the suspension of Mr. Stanton had taken the office weeks, ay, months before, and had place, for that certainly was within any view not General Sherman told him, "I cannot of the law that can be suggested. I referred, take it without getting into difficulty; there therefore, as has often been referred, to the will be trouble; why mix me, an Army officer, controversy produced by the threat of the House up in this trouble?" And yet the President's and its very prompt execution of impeachment; counsel rise here in their place and put this and that had not occurred in any point to ask evidence before you, because it was his declar- the President's attention at the moment of this ation before any controversy arose or was statement. It was therefore a statement by likely to arise I him unaffected by any such considerations as Another proposition is put in here, and that those. is that this must be evidence because it was The CHIEF JUSTICE. Senators, the Chief said to a member of Congress. I am aware Justice is unable to determine the precise exthat we have many rights, privileges, and ap- tent to which the Senate regards its own decispurtenances belonging to our official position, ion as applicable. He has understood the but I never was aware before that one of them decision to be that, for the purpose of showing was that what was said to us was evidence be- intent, evidence may be given of conversations cause it was said to us by anybody. I have with the President at or near the time of the had a great many things said to me that I transaction. It is said that this evidence is disshould be very unwilling to have regarded as tinguishable from that which has been already evidence. For instance, here is a written introduced. The Chief Justice is not able to declaration sent to me to-day. "Butler, pre- to distinguish it; but he will submit directly pare to meet your God." [Laughter.] "The to the Senate the question whether it is admisavenger is abroad on your track." "I Sell is sible or not. your portion." [Laughter.] Now, I trust that Mr. CONNESS. I ask for the yeas and is not evidence because it is said to a member nays on that question. of Congress. And yet it is just as pertinent, The yeas and were ordered. just as competent, in my judgment, as this The question being taken by yeas and nays, declaration. We are to have these kinds of resulted-yeas 9, nays 37; as follows: declarations made to us by the enemies of the YEAS-Messrs. Bayard, Buckalew, Davis, Dixon, country, and we are to sit here and admit the Doolittle, HendriCks, McCreery, Patterson of TenPresident's declarations in justification of his nessee and Vickers-9. NAYS —Messrs. Cameron, Cattell, Chandler, Conkconduct, which brings out such a condition of ling, Conness, Corbett, Cragin, Drake, Ferry, Fessenthis country. den, Fowler, Frelinghuysen, Grimes, Harlan, Howy.did not -mean by any anner of meansard, Howe, Johnson, Morgan, Morrill of Maine I did not mean by any manner of means:Morrill of Vermont, Morton, N-ye, Patterson of when I was up before to suggest that the fact New Hampshire, Pomeroy, Ramsey, Ross, Sherman, of this being made to a gentleman who is on Sprague, Stewart,' Tltayer, Tipton, Trumbull, Van the stump would make it more or less compe- Winkle, Willey, Williams, Wilson, and Yates-37. NOT VOTING.-Messrs. Anthony, Cole, Edtent; only to show that so far as the evidence munds, Henderson, Norton, Saunlsbury, Sumner, and goes, so far as they choose to put in his pro- Wade-8. fession, it is utterly outside of this case. I do So the Senate decided the question to be not think it would make it more or less evi- inadmissible. dence because it should have been made to a Mr. EVARTS. This evidence being exwoman, I was only foreseeing what might cluded, we have no other questions to ask of come-quite as probable as this-that some the witness. of the lady friends-I beg pardon the woman Mr. Manager BUTLER. We have none, sir. friends Qf the President might have gone to Mr. EVARTS. We have reached a point, the White House on that day and he might Mr. Chief Justice and Senators, at which it have told them what his purpose was. It will be convenient to us that we should not be would be just as much evidence, in my judg- required to produce more evidence to-day. ment, as this; and it was only in that view, to Mr. Manager BUTLER. Mr. President, I show the innumerableness of the persons to hope upon this movement for delay the Presiwhom these competent declarations could be dent's counsel will be called upon to go on made, that I brought up the illustration which with their case, and I have only to put to them produced the answer on the part of the learned the exact thing that the President's counsel, counsel. Cox and Mr. Merrick, used in the ease of Mr. EVARTS. The lis mota, Mr. Chief General Thomas before the criminal court of Justice and Senators, so far as it has been this District, accordingto Merrick's testimony. alluded to as bringing discredit upon the Presi- It is always ungracious to object to delay bedent's statements is the controversy between cause of the sickness of counsel. We should Congress and himself in regard to the removal have been glad to have Mr. Stanbery here, but of Mr. Stanton. What political differeaces these gentlemen present can try this case. 428 There are four of them. When a motion to post- Mr. CURTIS rose. pone the case of Thomas before Chief Justice Mr. Manager BUTLER. I cannot be interCartter was made to postpone the case because rupted. This is the great fact which stands of the sickness of Mr. Carpenter, for a single here before us, and we are asked " Why stand day, the President's counsel, arguing his case, ye here idle?" by every true man in the countrying his case before the court said "No; a try. Mr. Chief Justice, in Alabama your case involving so much of public administration register of bankruptcy, appointed by yourself, cannot wait for the sickness of counsel." " I General Spencer, of Tuscaloosa, is driven tothank thee, Jew, for teaching me that word." day from his duties and his home by the KuThe President's counsel there well told us Klux-Klan, upon fear of his life, and I have what we ought to do. In the case of Mr. the evidence of it lying on our table; and Thomas the President could not wait for sick shall we here delay this trial any longer, under men or sick women. The case must go through. our responsibility to our countrymen, to our We cannot wait now, on the same ground, for consciences, and to our God, because of a the sickness of the learned Attorney General; question of courtesy? While we are being courand why should we? Why should not this Presi- teous.the true Union men of the South are dent be called upon now to go on? We have being murdered, and on our heads and on our been here thirty-three working days since the skirts is this blood, if we remain any longer idle. President actually filed his answer, and we, the Again, sir, since you have begun this trialManagers, have used but six days of them,.and, I hold the sworn evidence of what I say in my the counsel but part of seven. Twentv-one of hand-since the 20th day of February last them have been given to delays on motion of and up to the 4th day of this present Aprilthe President, and there have been four ad- and no gold had been sold by the. Treasury journments on the days we have worked earlier prior to that time since December 12-$10,800,than the usual time of adjournment, in order 000 of your gold has been sold at a sacrifice to to accommodate the President. your Treasury, and by whom? More than oneNow, the whole legislation of this country half of it, $5,600,000, by one McGinnis, whom is stopping; the House of Representatives has the Senate would not permit to hold office, and to.be, day by day, here at your bar. The taxes over ten thousand dollars in currency, of which of the country cannot be revised because this I have the official evidence here, under the trial is in the way. The appropriations for sworn oath of the Assistant Treasurer at New parrying on the Government cannot be passed York, has been paid to him, after the Senate because this trial is in the way. Nothing can had refused to have him hold any office and be done, and the whole country waits upon us had rejected him as a minister to Sweden. He and our action, and it is not time now for the now takes charge of the sale of your gold by exhibitions ofcourtesy. Larger, higher, greater order of the Executive, as a broker, and we interests are at stake than such questions of are to wait day by day while he puts into his ceremony. Far be it from menot to desire to pocket, from the Treasury of the country, be courteous, and not to desire that we should money by the thousands, because this gold is have our absent and sick friend here to take sold from one and one eighth per cent. to three part with us; but the interests of the people per cent. lower than the market rates at differare greater than the interests of any one indi- ent dates, as taken from the best tables. The vidual. Gentlemen of the Senate, this is the commissions alone amount to what I have said, closing up of a war wherein three hundred supposing the gold to be sold honestly by this -thousand men laid down their lives to save the rejected diplomat. country. In one day we sacrificed them by Worse still, sir; I have here from the same tens and twenties of thousands on the field of source the fact that since the 1st day of Janubattle, and shall the country wait now in its ary last there have been bought in the city of march to safety because of the sickness of one New York alone, on behalf of the Treasury, man and pause for an indefinite time, because $27,058,100 of the bonds of the United States, the duration of sickness is always indefinite? by men who return them from three eighths, More than that, I have here in my hand tes- one half, five eighths to three quarters above timony of what is going on this day and this the market price, and since February 20, hour in the South. $14,181,600 worth. Mr. CURTIS. We object to the introduc- Mr. Manager LOGAN. Below. tion of any testimony. -Mr. Manager BUTLER. No; I mean what Mr. EVARTS. We object tothe relevancy I say, above. I never make mistakes in such of it here. matters. I know what I say. From the 3d of Mr. Manager BUTLER. The relevancy of January to the 28th of January, by such purit is this, that while we are waiting for the chases, the price of bonds was run up and the Attorney General to get well, and you are asked people were made to pay that difference-run up to delay this trial for that reason, numbers of from one hundred and four and three quarters'our fellow-citizens are being murdered day by to one hundred and eight per cent., and still the day. There is not a man here who does not purchases went on, and they have gone on from know that the moment justice is done on this that of February down to the 4th of April,.great criminal these murders -will cease. when the Managers of impeachment on the 429 part of the House of Representatives felt it fi ant Treasurer at New York under oath, and the their duty to take this testimony of the Assist- result of it I here lay in detail before you: Sales of Goldfrom January 1, 1868, to April 4, 1868, inclusive. Quotations from Commis- Hunt's MerDate. By whom sold. Amount. Rate. sion. chants' Magazine..!_____ __Highest. Closing. February 20,1868. Jay Cooke & Co..................$200000 140 $250 00 40 40 February 21, 1868 P. M. Meyers & Co., 100,000 140 20 41* 411 February 21, 1868... P. M. Meyers & Co.......................... 100000 140 41 - - February 21, 1868... P. M. Meyers & Co................... 100,000 1401 February 21,1868... M. Meyers & Co......................... 50,000 141 41 February 21, 1868... P. M. Meyers & Co......................... 100,000 141 625 00 February 26, 1868... P. Meyers & Co......................... 100,000 141 412541 February 26,1868... P. M. Meyers & Co......................... 100,000 1411 41 - February 26,1868... P. M Meyers & Co......................... 14 312 50[ March 10, 1868...McGinnis Brothers & Smith...... 200,000 140* 250 00 1401 39* March 11, 1868.. P. M. Meyers & Co. 100,000 139 125 00 39 391 March 12, 1868......McGinnis Brothers & Smith.......... 100,000 140 125 00 40 39* March 14, 1868....... P. M. Meyers & Co................ 100,000 139- 125 00 398 39! March 14, 1868........ McGinnis Brothers & Smith........... 200,000 140 125 00 40 39 March 14, 1868........ McGinnis Brothers & Smith........... 50,000 139 312 50 March 16, 1868........ P. M. Meyers & Co......................... 65,000 1391 39i 391 March 16, 1868....... P. M. Meyers & Co........................ 5,000 139* - - March 16, 1868........ M. Meyers & Co..................... 40,000 139 March 16, 1868........ P. M. Meyers & Co......................... 60,000 139 250 00 - - March 16, 1868.....McGinnis Brothers & Smith....... 100,000 139 - March 16, 1868........0 139 2 50 00 - March 161868............................................. 100,000 139 250 00 March 18, 1868........ P. M. Meyers & Co......................... 138 125 00 38 38 March 18, 1868........ McGinnis Brothers & Smith......................... 80,000 138 - March 18, 1868................................................... 120,000 138* 250 00 - March 19,1868........ McGinnis Brothers & Smith........... 95,000 138* - 38* 38* March 19 1868........McGinnis Brothers & Smith.......... 105,000 138 - March 19, 1868......., McGinnis Brothers & Smith....... 100,000 138* 375 00 March 19, 1868....... P. M.. Meyers & Co.................................. 25,000 138* - March 19,1868......P. M. Meyers & Co......................... 75,000 138- March 19 1868....... P. M. Meyers & Co......................... 100,000 138* 250 00 March 20 1868........ Jay Cooke & Co.............................. 100,000 138* 125 00 38* 38* March 20, 1868........ P. M. Meyers & Co........................ 200,000 1383 250 00 March 20,1868........ McGinnis Brothers & Smith........... 50,000 138 _ -_ March 20. 1868........ McGinnis Brothers & Smith........... 150,000 138 March 20, 1868........ McGinnis Brothers & Smith..... 100,000 138* 375 00 March 21,1868....... McGinnis Brothers & Smith........... 200,000 138 391 39* March 21,1868........ McGinnis Brothers & Smith........ 100,000 139 375 00 - 4 March 21, 1868....... P. M. Meyers & Co......................... 100,000 138 March 21, 1868........ P M. Meyers & Co........................ 100,000 138 250 00 - March 21,1868........ Jay Cooke & Co.......................... 50,000 139* - - March 21, 1868........ Jay Cooke & Co................... 50,000 1391 125 00 March 23. 1868........ McGinnis Brothers & Smith.......... 100,000 139[ 125 00 39* 38$ March 23,1868........ Jay Cooke & Co............................. 100,000 138[ 125 00 - March 24,1868..... M.. M. Meyers & Co......................... 50,000 138 - - March 24, 1868..... P. M. Meyers & Co....................... 50,000 1381 125 00 38* 38 March 24; 1868..... McGinnis Brothers & Smith......... 75,000 138 March 24, 1868........ McGinnis Brothers & Smith........... 25,000 138* 250 00 March 24, 1868........ P. M. Meyers & Co......................... 100,000. 138* 125 00 March 25,1868..... McGinnis Brothers & Smith.......... 100,000 1381 - 38 3883 March 25 1868..... McGinnis Brothers & Smith.......... 100,000 138* - March 25, 1868..... McGinnis Brothers & Smith........... 60, 000 138* - March 25, J668::....... McGinnis Brothers & Smith........... 40,000 138* 375 00 - - March 26,........ McGinnis Brothers & Smith........... 400,000 1383 500 00 38* 38* March 26, 1868........ P. M. Meyers & Co......................... 300,000 1381 375 00 - March 27, 1868..... Jay Cooke & Co............................ 200,000 138* 250 00 38* 383 March 27,1868........ McGinnis Brothers & Smith.......................... 0,000 138 March 27,1868........ McGinnis Brothers & Smith........... 10,000 138*1 - March 27, 1868........ McGinnis Brothers & Smith.......... 50,000 1381 - March 27, 1868......Mcinnis Brothers & Smith....... 150,000 138* 500 00 March 27, 1868........ P.. Meyers & Co......................... 100,000 1388 i March 27,1868....... P. M. Meyers & Co......................... 300,000 138* 500 00 March 28, 1868........ McGinnis Brothers & Smith......... 300.000 138 38* 38* March 28, 1868..... McGinnis Brothers & Smith...... 200,000 138* -_ March 28, 1868......McGinnis Brothers & Smith........ 100,000 138* - - March 28, 1868........ McGinnis Brothers & Smith........ 100,000 138* 875 00 - March 28, 1868.....Ja Cooke & Co........................... 100,000 138* 125 00 - March 28, 1868.......P. M. Meyers & Co......................... 50,000 138 March 28, 1868....... P. M. Meyers & Co......................... 250,000 138 375 00.. March 28, 1868........ P. M. Meyers & Co........................ 50,000 139 - March 28, 1868.............................................. 50,000 138` 125 00 Carried forward........$........... $7,9200,000 43* STATEMENT-Continued. Quotations from Date. By whom sold. Amount. Rate. Commis- chants' Magazine. sion. Highest. Closing. Brought forward.......... $7,900,000 March 30, 1868........ McGinnis Brothers & Smith.......... 300 000 139 39 38* March 30, 1868........ McGinnis Brothers & Smith.......... 100,000 138 500 00 - March 30, 1868........ Jay Cooke & Co.............................. 100,000 138k 125 00 March 31, 1868........ P. M Meyers & Co.......... 135,000 138 - 38- 38i March 31 1868...... P.. Meyers & Co.40,000 138* March 31, 1868.......P. M. Meyers & Co........................ 25,000 138* 250 00 March 31; 1868........ McGinnis Brothers & Smith........... 85,000 138t - March 31, 1868........ McGinnis Brothers & Smith........... 115,000 138 -_ March 31, 1868........ McGinnis Brothers & Smith.......... 100,000 138* 375 00 April 1, 1868.......... McGinnis Brothers & Smith........... 100,000 1381 April 1, 1868........... McGinnis Brothers & Smith........... 100,000 1389 250 00 April 1,1868.......... P. M. Meyers & Co......................... 100,000 1384 125 00 - April 2,1868........... P. M. Meyers & Co......................... 200,000 138 250 00 April 2, 1868........... McGinnis Brothers & Smith........... 200,000 138 250 00 April 3, 1868........... McGinnis Brothers & Smith........... 200,000 138 250 00 April 3, 1868.......... Jay Cooke & Co.............................. 100 000 138 125 00 April 3, 1868........... P.M. Meyers & Co....................... 100,000 1384 125 00 April 4, 1868........... PM. Meyers & Co......................... 250,000 1383 312 50 April 4, 1868........... McGinnis Brothers & Smith.......... 250,000 1381 312 50 April 4, 1868........... Fisk & Hatch................................. 300,000 1384 * +*' 1$10,800,000 *Sold direct without commission. UNITED STATES TREASURY, NEW YORK, April 7,1868. I certify the accompanying statement to be a correct transcript from the books of this Department. H. H. VAN DYCK, Assistant Treasurer. NoTE.-Quotations not certified by Mr. Van Dyck. Purchases of Seven- Thirty Notes. STATEMENT-Continued. Date. Of whom purchased. Amount. Rate. Date. Of whom purchased. Amount. Rate. 1868. 1868. Brought forward... $13,231,900 January 3 Vermilye & Co.......... $250,000 104* Feb'y 21..... Vermilye & Co........... 600,000 107* January 6 Jay Cooke & Co........ 250,000 104 Feb'y 21..... P. V. Myers & Co 100,000 1071 January 8 Vermilye & Co......... 250,000 104* Feb'y 24.. Vermilye & Co........... 300,000 107 January 11 Fisk & Hatch.......... 200,000 105* Feb'y 24.... Jay Cooke & Co......... 250,000 1071 January11 Vermily & Co........... 300,000 1051 Feb'y 24..... Vermilye & Co........... 300.000 107* - January 13 Vermilye & Co......... 300,000 105* Feb'y 24..... Jay Cooke & Co......... 25,000 107 January15 P. M. Myers & Co..... 999,500 105* Feb'y 25..... Jay Cooke & Co..... 300,000 107 January16 Vermilye & Co........... 250,000 105* Feb'y 25..... Vermilye & Co........... 200,000 107 January 17 Jay Cooke & Co........ 500,000 105* Feb'y 25..... Vermilye & Co.......... 300,000 107 January 17 Fisk & Hatch......... 200;000 105* Feb'y 25..... Jay Cooke & Co........ 200,000 107 January17 H. A. Heiser's Sons.... 27,000 1051 Feb'y26.... Jay Cooke & Co......... 500,000 106* Januaryl17 Vermilye & Co........... 250,000 105* Feb'y 26..... Vermilye & Co........... 250,000 106 January 17 P. M. Myers & Co...... 300,000 1058 Feb'y 26..... Vermilye & Co.250,000 106* January 18 Rodman, Fisk & Co... 100,000 105* Feb'y26..... Fisk & Hatch............. 200,000 106*,January 20 Jay Cooke & Co......... 250,000' 105* March 18... Fisk & Hatch. 1,000,000 105 Janudiry 20 Hatch, Foote & Co.... 100,000 105 5 March 18... Jay Cooke & Co...... 200,000 1054 January 21. T. S. Quackenbush..... 50,000 105- March 19... Vermilye & Co........... 300,000 1054 January21 Vermilye & Co........... 400,000 105* March 19... First National Bank.. 200,000 105 January21 Edward Sweet & Co... 100,000 105* March 19... Rodman, Fisk & Co... 30.000 1054 January 21 Fisk & Hatch............. 250,000 106 March 20... Cnqtral NationalB'k.. 100,000 105 January 24 Jay Cooke & Co......... 500,000 107 March 24... Frank & Gantz.......... 300,000 105 January 27 Fisk & Hatch............. 500,000 1071 March 24... First National Bank.. 98,600 105| January28 Jay Cooke & Co.... 350,000 108 March 24... Hatoh,Foote& Co... 200,000 105 January28 Rodman, Fisk & Co... 300,000 108 March 24... Smith, Randolph & January 29 Vermilye & Co........... 500,000 1074 Co.......................... 50,000 105* January 30 Vermilye & Co........... 200,000 1071 March 24... Fisk & Hatch............. 250,000 105 January 30 Vermilye & CO........... 200,000 1071 March 24... H. A. Heiser's Sons... 17,500 105[ January 31 Fisk & Hatch............. 2,500,000 107* March 25... H. A. Heiser's Sons.. 350,000 105 January 31 Jay Cook & Co........... 2,000,000 1074 March 25... Fisk & Hatch............. 300,000 105 January 31 Vermilye & Co......... 500,000 107* March 25... Vermilye & Co........... 500,000 105 Feb'y 20.... Rodman, Fisk & Co... 5,400 107- March 26... Smith, Randolph & Feb'y 20..... White, Morris & Co... 50,000 107-1 Co................. 100,000 105* Feb'y 21..F. Fisk & Hatch............. 300,000 1072 March 26... First National Bank.. 50,000 105* Carried forward..... $13,231,900 Carried forward.... $21,278,000 431 STATEMENT-Continued. *let us have an end of them and see to it that.........- -.. we can sit at least four hours a day to attend Date. Of whom purchased. Amount. Rate. to this the great business of the people. Sir, it may be supposed here that I am mis1868. Brought forward... $21,278,000 taken as to time wasted; but let us see; let me March 26... Rodman Fisk & Co... 26,600 1051 give you day and date. The articles of imMarch 26... Fisk & Catch........... 300,000 1052 peachment were presented on March 4, and March 31... H.A. n, Heiser's Sons... 300,000 1051 the summons was returnable March 13, at March 31... Hatch, Foote & Co..... 250,000 1051 which time the President, by its terms, was March 31... H Loewnsbury & Fan-... 12100 105 requested to answer. Delay was given, on his hawrch 31..... Lousbury & Fa-105 application for forty days, to the 23d-ten days, March 31... Vermilye & Co......... 300,000 1053 when the answer was filed, and a motion was March 31... Jay Cooke & Co......... 300,000 1058 made for thirty days' delay, which failed. Then CApri100000....... Smith, R105andolph a motion for a reasonable time after: replicaCc.......................... 100,000 1055 April....... First NationalBank tion was filed, which was done on the 24th. of Brooklyn............ 50,000 1051 Time was given, on motion of the President's April 1.......M echanics' Bank...... 50,000 | 1051 April 1....... Dorr Russell................ 15,000 1051 counsel, until the 30th-six days. On that day April 1..... I. A. Heiser's Sons... 67,000 i1051 the Managers opened their case, and proceeded Apri......l VerFisklye & atch........... 250,000 105 without delay with their evidence till April 4 April....... Fisk & Hatch............. 300,000 105 April 2.. Jay Cooke & Co......... 300,000 1053 -six days. Then, at the request of President's April 2...... Torrey, Gidding & counsel, adjourned to April 9-five days. Mr. ApTorre.................... 40,000 1051 Curtis opened a part of a day, and asked for April 2........ Smith, Rndolph0 105 an adjournment till the 10th, wherein we lost Co........................... 50,000 10N April 2..... Central National B'k.. 25,000 1051 half a day. They continued putting in eviApril2......Frank & Gantz.. 100,000 1051 dence till the 11th (12th being Sunday) and April 2. Drexel, Winthrop & Co...................... 50,000 105 13th. Because of sickness, adjourned, again April2.......Fisk & Hatch........... 200,000 1051 over till Wednesday, 14th. Wednesday adApril2....... Hatch, Foote & Co..... 200,000 1051 journed early, because counsel could go no April 2....... Phoenix Bank.......... 100,000 1051 April2....... Rodman, Fisk & Co... 175,000 1051 further. Thursday, now another motion to April 2....... Ocean Bank............ 100,000 1051 adjourn, because counsel cannotgo on. ThirtyApril 2....... H.TA. deiser's Sons... 300,000 1051 four days since the President filed his answer; April2...... M. Meyers & Co.... 55,000 1051 six days used by the Managers in putting in April 2....... J. L. Brownell & Co... 50,000 1051 their case; parts of seven used by the counsel April 2....:.. Stone & Downer........ 55,000 1051 for thb President, and twenty-one given as April 3....... Vermilye & Co.......... 250,000 1051 del April 3..... Jay Cook & Co............ 300,000 105 delay to the President on his motion. April 3....... Jay Cook & Co.......... 300,000 105~ April 3....... Lockwood & Co......... 560,000 1051 I do not speak of all this to complain of the April3....... Newton, Russell&Co 25,000 1051 Senate, but only that you and the country may April 3...... Howes & Macy........... 5,000 1051 April 3..... Fisk & Hatch............ 250,000 105 see exactly how courteous and how kind you'April 3....... Central National B'k.. 10.000 1051 have been to the criminal and to his counsel. April 3....... Hatch, Foote& Co..... 25,000 1051 Yielding to the request of the counsel who April 3....... Baker & Kitchen....... 3Ii000 1051 April 3. R. Rodman, Fisk & Co. 35,000 1051 opened you lost half a day. Then the openApril 4....... Rodman, Fisk & Co... 25,000 1051 ing consumed parts of two days. On the next April 4....... Ninth National B'k....50,000 105 day they said they were not quite ready to go Total.................................. $2058100 through with General Sherman, and you again adjourned earlier than usual. Then we lost OFFICE OF ASSISTANT TREASURER UNITED STATES, almost all of Monday in discussing the quesNEW YORK, April 6, 1868. tions which were raised. We adjourned early H. H. VAN DYCK, Assistatt Treasu er. on Monday, as you remember, and on the next * Now, I say, for the safety of the finances of day there was an adjournment almost immethe people, fbr the progress of the legislation diately after the Senate met, because of the of the people, for the safety of the true and learned Attorney General. No*, all we ask loyal men, Slack and white, in the South who is that this case may go on. have periled their lives for four years; yea, If it be said that we are hard in our demands five years; yea, six years; yea, seven years, in that this trial go on, let me contrast for a your behalf for the good of the country, for all moment this case with a great State trial in that is dear to any man and patriot, I pray England, at which were present Lord Chief let this trial proceed; let us come to a de- Justice Eyre, Lord Chief Baron McDonald, termination of this issue. If the President of Baron Hotham, Mr. Justice Buller, Sir Nash the United States goes free anid acquit, then Grose, Mr. Justice Lawrence, and others of the country must deal with that state of facts her majesty's judges in. the trial of Thomas as it arises; but if he, as the House of Repre- Hardy for treason. There the court sat from sentatives instructs me, -and as I believe, is nine o'clock in the morning until one o'clock guilty; if on his head rests the responsibility; at night, and they thus sat there from Tuesday if from his policy, from his obstruction of the until Friday night at one o'clock, and then, peace of the country, all this corruption and when Mr. Erskine, afterward Lord Chancellor all these murders come, in the name of Heaven Erskine, asked of that court that they would 432 not come in so early by an hour the next day of these cowardly menaces; but all these because he was unwell and wanted time,~the threats, these unseemly libels on our former court after argument refused it, and would not government will go away when this man goes give him even that hour in whichto reflectupon out of the White House. his opening which he was to make, and which Mr. CONNESS. Mr. President, I offerthe occupied nine hours in its delivery, until the following order: jury asked it, and then they gave him but a Ordered, That on each day hereafter the Senate,'single hour, although he said upon his honor sitting as a court ofimpeachment, shall meetat eleven to the court that every night he had not got to o'clock a. m. his house until between two and three o'clock Mr. SUMNER. I send to the Chair a subin the morning, and he wa~ regularly in court stitute'for that order. at nine o'clock on the following morning.' The CHIEF JUSTICE. The Secretary will That is the way cases of great consequence read the substitute proposed by the Senator are tried in England. That is the way other from Massachusetts. courts sit. I am not complaining here, Sena- The Secretary read as follows: tors, understand me. I am only contrasting That, considering the public interests which suffer the delays given, the kindnesses shown, the from the delay of this trial, and in pursuance of the courtesies extended in this greatest of all orderalready adopted to proceed with all convenient courtesies extended in this greatest of all dispatch, the Senate will sit from ten o'clock in the cases, and where the greatest interests are at forenoon to six o'clock in the afternoon, with such stake, compared with every other case ever brief recess as may be ordered. tried elsewhere. The Managers are ready. Mr. TRUMBULL. I rise to a question of We have been ready; at all hazards and sacri- order, whether it is in order to consider these fices we would be ready. We only ask that propositions to-day under the ruling of the now the counsel for the President shall be Chair. likewise ready, and go on without these in- The CHIEF JUSTICE. They are not in terminable delays with which,. when the House order if anybody objects. began this impeachment, the friends of the Mr. TRUMBULL. I object to their conPresident there rose up and threatened. You sideration. will find such threats in the Globe. Mr. JAMES The CHIEF JUSTICE. They will go over BRooKS, of New York, said, in substance, until to-morrow. "You can go on with your impeachment, but Mr. EVARTS. Mr. Chief Justice and I warn you that we will make you go through Senators, I am not aware how much of the all the forms, and if you go through all the address of the honorable Manager is'approforms we- will keep it going until the end of priate to anything that has proceeded from Mr. Johnson's term, and it will be fruitless." me. I, at the opening of the court this mornI4aving thus threatened you, Senators, I had ing, stated how we might be situated, and supposed that you would not allow the threat added that when that point of time arrived to be carried out, as it is attempted to be car- I should submit the matter to the discretion,ried out, by these continued delays. of the Senate. I have never heard such a Mr. President and Senators, I have thus harangue before in a oourt of justice; but I given you the reasons pressing upon my mind cannot say that I may not hear it again in this why this delay should not be had; and I admit court. All these delays and the ill conseI have done it with considerable warmth, be- quences seem to press upon the honorable cause r feel warmly. I open no mail of mine Managers except at the precise point of time that I do not take up an account from the when some of their mouths are open occupySouth of some murder or worse of some ing your attention with their long harangues. friend of the country. I want these things to If you will look at the reports of the discusstop. Many a man whom I have known stand- sions on questions of evidence, as they appear ing by my side for the Union I can hear of in the newspapers, while all that we have to now only as laid in the cold grave by the say is embraced within the briefest paragraphs, assassin's hans. This has stirred my feelings, long columns are taken up with the views of I admit. - The loss of my friends, the loss to the learned Managers, and hour after hour is the country of those who have stood by it, has, taken up with debates on the production of our perhaps, very much stirred my heart, so that evidence by these prolonged discussions, and I have not been able with that coolness with now twenty minutes by the watch with this which judicial proceedings should be car- harangue of the honorable Manager about the ried on to address you upon this agonizing Ku-Klux-Klan. I have said what I have said topic. I say nothing of the threats of assassin- to the Senate. ation made every hour and upon every occa- Mr. CAMERON. Mr. President, I should sion, even when objection to testimony is made like to inquire whether the word " harangue" by the Managers. I say nothing of the threats be in order here? made against the lives of the great officers of Mr. Manager BUTLER. So far as I am the Senate and against the Managers. We concerned it is of no consequence. are all free. There is an old Scotch proverb Mr. DOOLITTLE. Mr. Chlief Justice, I in our favor: "The threatened dog a' lives should like to know whether the harangue the longest." We have not the slightest fear itself was in order, not the word? 433_ Mr. FERRY. Mr. President, I move that Mr. SUMNER. On that I should like to the Senate, sitting as a court of impeachment, have the yeas and nays. adjourn. The yeas and nays were ordered; and being Mr. SUMNER. I move that the adjourn- taken, resulted-yeas 13, nays 30; as follows: ment be until ten o'clock. YEAS-Messrs Cameron, Chandler, Cole, Corbett, Mr. TRUMBULL. That is not in order. Harlan, Morrill of Maine, Pomeroy, Ramsey, StewThe CHIEF JUSTICE. It is not in order, art, Sumner, Thayer, Tipton, and Yates-13. The CHIEF JUSTICE. It is not in order. NAYS-Messrs. Anthony, Cattell, Conness, Davis, The motion to adjourn is, under the rule, to Dixon, Doolittle, Drake, Ferry, Fessenden, Fowler, the usual time. Frelinghuysen, Grimes, Hendricks, Howard, Howe, Mr. SUMNER. On that I ask for the yeas Johnson, Morgan, Morrill of Vermont, Morton, Patterson of New Hampshire, Patterson of Tennessee, and nays. Ross, Saulsbury, Sherman, Trumbull, Van Winkle, The yeas and nays were not ordered. Vickers, Willey, Williams, and Wilson-30. NOT VOTING —Messrs. Bayard, Buckalew, ConkThe motion was agreed to; and the Senate, ling, Cragin, Edmunds, Henderson, McCreery, Norsitting for the trial of the impeachment, ton, Nye, Sprague, and Wade-11. adjourned until to-morrow at twelve o'clock. So the amendment was rejected. FRIDAY, April 17, 1868. ihe CHIEF JUSTICE. The question recurs on the order proposed by the Senator from The Chief Justice of the United States took California.'the chair. Mr. CONNESS. On that I ask for the yeas The usual proclamation having been made and nays. by the Sergeant-at-Arms, The yeas and nays were ordered. The Managers of the impeachment on the Mr. CONNESS. Now let it be read. part of the House of. Representatives, and the The Secretary read as follows: counsel for the respondent, except Mr. Stan- Ordered, That on each day hereafter the Senate, bery, appeared and took the seats assigned them sitting as a court of impeachment, shall meet at respegively. eleven o'clock a. m. The members of the House of Representa- The question, being taken by yeas and nays, tives, as in Committee of the Whole, preceded resulted-yeas 29, nays 14; as follows: by Mr. E. B. WASHBURNE, chairman of that YEAS-Messrs. Cameron, Cattell, Chandler Cole, committee, and accompanied by the Speaker Conkling, Conness, Corbett, Cragin, Drake, Ferry, and Clerk, appeared and were conductedto the Frelinghuysen, Harlan, Howard, Howe, Morgan ~seats for them. ~Morrill of Maine, Morrill of Vqmont, Patterson of seats provided for them. New Hampshire, Pomeroy, Ramsey, Sherman, StewThe CHIEFJUSTICE. The Secretary will art, Sumner, Thayer, Tipton, Willey, Williams, Wilread the Journal of yesterday's proceedings. son, and Yates-29. r. STEWART. I move that the reading NAYS-Messrs. Anthony, Davis, Dixon, Doolittle, MFowler, Grimes, Hendricks. Johnson, Patterson of of the Journal be dispensed with. Tennessee, Ross, Saulsbury, Trumbull, Van Winkle, The CHIEF JUSTICE. If there be no ob- and Vickers-14. -e twileoordered. The Chair hears NOT VOTING-Messrs. Bayard, Buckalew, Ediection it will be so ordered. The Chair hears omunds, Fessenden, Henderson, McCreery, Morton, none. It is so ordered. During the sitting of Norton, Nye, Sprague, and Wade-11. yesterday the Senator from California [Mr. So the order was adopted. CoNNEss] offered an order that the Senate, sit- Mr. FERRY. I.send an order to the Chair. ting as a court of impeachment, meet hereafter The CHIEF JJSTICE. The Secretary will at eleven o'clock a. m. That will be before t eeveunlok. T Tle befret a read the order proposed by the Senator from the Senate unless objected to. The Secretary Connecticut. will read the order. m a. The Secretary rea d s follows:. The Secretary read as follows: Whereas there appear in the proceedings of the Ordered, That on each day hereafter the Senate, Senate of yesterday as published in the Globe of this sitting as a court of impeachment, shall meet at morning certain tabular statements incorporated in eleven o'clock a. m. the remarks of Mr. Manager BUTLER upon the quesThe CHIEF JUSTICE. Does the Senator tion of adjournment, which tabular statements were neither spoken of in the discussion, nor offered or from Massachusetts desire to offer his amend- received in evidence: Therefore, mert? Ordered, That such tabular statements be omitted Tlr. SUMNER. I did offer it, Mr. Presi- ~from th the proceedings of the trial as published by rule Mr. SUMNER. I did offer it, Mr. Presi- of the Senate. dent, yesterday. TMr. Manager BUTLER. Is that a matter The CHIEF JUSTICE. The amewdment offered by the Senator from Massachusetts will The CHIEF JUSTICE. The order will be be read. The Secretary read the amendment, as fol- for present consideration unless objected to. Mr. FERRY. I ask its present consideralows: tion. Strike out all after the word "ordered" and in- The CHIEF JUSTICE. There is no objecsert: That considering the public interests which suffer tlon. It is before the Senate. from the delay of this trial, and in pursuance of the Mr. Manager BUTLER. I only desire to order already adopted to proceed with all convenient say, sir, that I stated the effect of the tabular dispatch, the Senate will sit from ten o'clock in the forenoon to six o'clock in the afternoon, with such statements yesterday. I did not read them at brief recess as may be ordered. length, because it would take too much time. C. I. — 28. .434 Mr. HENDRICKS. Mr. President, I rise Answer. William W. Armstrong. to a question of order and propriety. I wish Question. Where do you reside? to know whether it is the right of any Senator Answer. I reside in Cleveland, Ohio. to defend the Secretary of the Treasury against Mr. DRAKE. I ask permission to make a attacks that are here made upon him, or whether suggestion to the Chair, in reference to our our mouths are closed while these attacks are hearing on this side of the Chamber. Will the made; and if it is not the province and right Chair instruct the witness to turn his face in of a Senator to defend him in his office, whether this direction? it is the right of the Manager to make an attack Mr. EVARTS. Mr. Chief Justice, if we upon him? may be allowed a suggestion, there is not so The CHIEF JUSTICE. The question of or- much silence in the Chamber as would be der is made by the resolution proposed by the possible, and we must take witnesses with such Senator from Connecticut. Upon that ques- natural powers as they possess. tion of order, if the Senaite desire to debate, Mr. CURTIS, (to the witness.) Speak as it will be proper that it should retire for con- loud as you can. sultation. If no Senator moves that order,the The CHIEF JUSTICE. Conversation in Chair conceives that it is proper that the honor- the Senate Chamber must be suspended. able Manager should be heard in explanation. By Mr. CURTIS: Mr. Manager BUTLER. I wish to say, sir, Question. Repeat, if you please, what is that I did not read the tables because they your residence? would be too voluminous. I had them in my Answer. Cleveland, Ohio. hands; I made them a part of my argument; Question. And what is your occupation or I read the conclusions of them, and stated the business? inferences to be drawn from them, and I thought Answer. I am one of the editors and proit was due to myself and due to the Senate that prietors of the Cleveland Plaindealer. they should be put exactly as they were, and I Question. Were you at Cleveland at thl time therefore incorporated them in the Globe. of the visit made to that city by President To the remark of the honorable Senator, I Johnson in the summer of 1866P simply say that I made no attack on the Sec- Answer. I was. retary of the Treasury; I said nothing of him; Question. Were you present at the formal I did not know that he was here at all to be reception of the President by any committee discussed; but INdealt with the act as the act or body of men? of the Executive simply, and whenever called Answer. I was. upon to show I can show the reasons why I Question. State by whom he was received? dealt with that. Answer. The President and his party arrived The CHIEF JUSTICE. The Secretary will at Cleveland about half past eight o'clock in read the order submitted by the Senator from the evening, and were escorted to the Kennard Connecticut. House. After partaking of a supper the PresThe Secretary again read the order. ident was escorted on to the balcony of the Mr. ANTHONY. Mr. President, I under- Kennard House, and there was formally welstood the Senator from Indiana to inquire if comed to the city of Cleveland, on behalf of under the rules he could be permitted to make the municipal authorities and the citizens, by an explanation, or to. make a defense of the the president of the city council. Secretary of the Treasury? Question. Did the President respond to that The CHIEF JUSTICE. The rules positively address of welcome? prohibit debate. Answer. He did. Mr. ANTHONY. But by unanimous con- Question. What was the situation of this sent I suppose the rule could be suspeiqded. balcony in reference to the street, in referMr. WILLIAMS. I object. ence to its exposure and publicity, and whether The CHIEF JUSTICE. I Objection is made. or not there was a large crowd of persons The CHIEF JUSTICE. Objection is made. present? Senators, you who are in favor of agreeing to nswer. There was a very large crowd of the order proposed by the Senator from Con- There was a very large necticut will please say ay, those of the con- persons present, and there were quite a large trary opinion no. [Putting the question.] number of people on the balcony. tayoiinhquestion.] tion. How did it proceed after the PresThe ayes appear to have it. The ayes have ident on How dd t proceed afterthe Presit, and the order is adopted. ident began to respond The CHIEF JUSTICE. Gentlemen of Answer. For a few moments there were no interruptions, and I judge from what the Prescounsel for the President, you will please pro- interruptions, and I judge from what the President said that he did not intendceed with the defense. Mr. Manager BUTLER. Excuse me. Stop Mr. CURTIS. The Sergeant-at-Armswilla moment, if you please. I object to what the call William W. Armstrong. witness supposed were the President's intenWM. W. ARMSTRONG sworn and examined. tions. By Mr. CURTIS: By MIr. CURTIS:. Question. Please state your name in full? Question. From what you heard and saw 435 was the President in the act of making a con- dressed the President several of the distintinuous address to the assembly, or was he in- guished gentlemen who accompanied the party terrupted by the crowd, and describe how the were presented, and then, in response to calls, affair Froeeded? the President presented himself. Answer. Well, sir, the President commenced Question. Presented himself in response to his speech by saying that he did not intend to the crowd? make a speech. I think, to the best of my Answer. In response to therecollection, he said that he had simply come Mr. CURTIS. In response to what? there to make the acquaintance of the people, The WITNESS. In response to the calls. and bid them good-bye. I think that was about By Mr. Manager BUTLER: the substance of the first paragraphs of his Question. Would you say that this was a speech. He apologized for the non-appear- correct or incorrect report of that proceeding: ance of General Grant, and then proceeded "About ten o'clock, the supper being over, the with his speech. party retired to the balcony, where the President Question. How did he proceed, sir? Was was formally welcomed to the Forest City by F. W. it a part of his address, or.was it in response lPelton, esq., president of the city council, as folit a part of his address, or.was it in response lows: to calls made upon him by the people? De- "'Mr. PRESIDENT: On behalfof the municipal anscribe what occurred? thorities of the city I cordially extend to you the Answer. Well, sir, I did not hear all of tlre hospitalities of the citizens of Cleveland. We recogAnswize you as the Chief Magistrate of this now free speech. Republic and the chosen guardian of their rights Question. Did you hear calls upon him from and liberties. We are grateful for the opportunity Question. Did you hear calls upon him from afforded by your visit to our city to honor you as our the crowd and interruptions? Chief Magistrate, and again I extend to you and to Answer. I did, quite a number of them. the distinguished members of your party a hearty Question. From what you saw and heard the welcome."' President say, and all that occurred, was the Was that about the substance of Mr. PelPresident closing his remarks at the time when ton's address? these interruptions began? Answer. That was about the substance, I Answer. That I cannot say. think. Question. Can you say whether these inter- Question. Then: raptions and calls upon the President were "The President and several members of his party responded. to by his remarks? then appeared at the front of the balcony and were Answer. Some of them were. introduced to the people?" Question. Were the interruptions kept up Answer. Yes, sir. during the continuance of the address, or was Question. Then: he allowed to proceed without interruption? "The vast multitude that filled the streets below Answer. They were kept up very nearly to was boisterous, and sometimes bitter and sarcastic in their calls, interludes, and replies, though somethe conclusion of the President's speech. times exceedingly apt." Question. What was the character of the crowd? Was it orderly or disorderly? crowd? Was it orderly or disorderly? Would you say that was about a fair repreAnswer. Well, sir, the large majority of the sentation? crowd were orderly. Answer. I do not think there were any calls Question. As to the rest? or any interruptions of the President's speech answer. There was a good deal of disorder. until after he had proceeded some five or ten Question. Was that disorder confined to one minutes. or two persons, or did it affect enough to give Question. But, whenever they did come, a character to the interruptions? would that be a fair representation of them? Answer. I have no means of ascertaining Answer. What is your question, sir? how many were engaged in the interruptions. Question. "The vast multitude that filled Question. That is not what I asked you. I the streets below was boisterous, and someasked you whether there was enough to give a times bitter and sarcastic in their calls? general character to the interruptions? Answer. They were to some extent. Answer. There were quite a number of &Question. "They listened with attention voices. Whether they were all from the same Part of the time, and at other times completely drowned the President's voice with their vocifpersons or not I am not able to say. erations." Was that so? Cross-examined by Mr. Manager BUTLER: Answer. Yes, sir, that was so. Question. F. W. Pelton, esq., was the pres- Question. "After all the presentations had ident of the city council, was he not? been made loud calls were made for the PresiAnswer. I believe so. dent, who appeared and spoke as follows.': Question. Was not his address on the bal- Now I will only read the first part to see if cony to the President simply in the hearing you will agree with me as to how soon the inof those who were on the balcony, and did not terruptions came in: the President after he had received that wel- "FELLOW-CITIZENS: It is not for the purpose of come address then step forward to speak to making a speech that I now appear before you. I,the multitude? that after Mr. Pelton ad-am aware of the great curiositywhich prevails to see the nlmultitude? strangers who have notoriety and distinction in the Answer. I believe that after Mr. Pelton ad- country. I know a large number ofyoudesiretosee 436 General Grant, and to hear what he has to say. [A Answer. The merchants and business men voice:'Three cheers for Grant.'l" of the city had an exchange for doing business, Was not that the first.interruption? where they met daily. Answer. That' was the first interruption. Question. Not a political associatlbn? Question. "Butyou cannot see himto-night. Answer. No, sir. He is extremely ill." Now, then, was there any Question. Did the President make a public interruption after that untilhe spoke of Stephen address or an address to the people in St. A. Douglas, and wvas not that simply the intro- Louis while he was there? duction of applause? Answer. He made a speech in the evening Answer. There were three cheers, I believe, at the Southern Hotel to the citizens. given for Stephen A. Douglas at that time. Question. Were you present at the hotel Question. Then he went on without interrup- before the speech was made? tion, did he not, until these words came in: Answer. Yes, sir. " I come before you as an American citizen simply, Question. As one of the committee you have and not as the Chief Magistrate clothed in the insignia spoken of? and paraphernalia of State; being an inhabitant of Answer. Yes, sir. a State of this Union. I know it has been said that Question. Please to state under what cirI was an alien." cumstances the President was called upon to Was not that the next interruption? speak? Answer. I do not remember that paragraph Answer. I was in one of the parlors of the in the speech. hotel with the committee and the President, Question. You do not remember whether when some of the citizens came in and asked that was there or not. Now, sir, do you re- him to go out and respond to a call from the member any other interruption until he came citizens to speak. He declined, or rather said to the paragraph: that he did not care to make any speech. The " There was, two years ago, a ticket before you for same thing was repeated two or three times by the Presidency. I was placed upon that ticket with other citizens coming in, and he finally said a distinguished citizen, now no more." that he was in the hands of his friends, or of Then did not the voices dome in,'" Unfor- the committee, and if they said so he would go tunate I" "Too bad "? out and respond to the call, which he did do. Answer. I did not hear them. Question. What did the committee say? Did Question. Do you know whether they were they say anything? or were not said? Answer. A portion of the committee, two Answer. I do not. or three of them, said after some consultation Mr. Manager BUTLER. I will not trouble that they presumed he might as well do it. you any further. There was a large crowd of citizens on the outside in front of the hotel. BARTON ABLE sworn and examined. side in front of the hotel. Question. Did the President say anything By Mr. CURTIS: before he went out as to whether he went out Question. State your full name. to make a long speech or a short speech, or Answer. Barton Able. anything to characterizing the speech he inQuestion. Where do you reside? tended to make? Answer; In St. Louis. Answer. My understanding of it was tfat Question. What is your occupation? he did not care to make a speech at all. Answer. I am engaged in the mercantile Mr. CURTIS. That you have already exbusiness, and collector of internal revenue for plained. the first district of Missouri. Mr. Manager BUTLER. Mr. Able, please Question. Were you at St. Louis in the sum- not give your opinion, but give facts. mer of 1866, at the time when President John- By Mr. CURTIS: son visited that city? Question. You have already explained that Answer. Yes, sir. he manifested reluctance, and how he maniQuestion. Were you upon any committee fested it. Now, Iwant to know if he said anyconnected with the reception of the Presi- thing as to his purpose in going out? If so, dent? I should like to have you state it, if you reAnswer. I was upon the committee of re- member. ception from the Merchants' Union Exchange. Answer. I understood from his acceptance Question. Where did the reception take that his intention was to make a short speech place? when he went out. Answer. The citizens of St. Louis met the Question. Did you or not hear what he said, President and party at Alton, in Illinois, some or were you in a position so that you could twenty-four miles above St. Louis. My recol- hear what he said? lection is that the mayor of the city received. Answer. I heard his conversation with the him at the Lindell Hotel, in St. Louis. committee? Question. You speak of being on a com- Question. I do not mean that; I mean after mittee of some mercantile association. What he went out and began to speak? was that association? Answer. Very little of it. 437 Question. Wasitalarge crowdorasmallone? Answer. No, sir. Answer. A large crowd. Question. You do not know whether the Question. Were you present far enough to mayor made him a speech of welcome or not be able to state what the demeanor of the there? crowd was toward the President? Answer. Only from what I saw in the Answer. I heard from the inside-I was press. not on the balcony of the hotel at all; but I Question. Nor do you know whether the heard from the parlor one or'two interrup- President responded there? tions. I do not recollect but one of them. Answer. I was not present. Question. You remained in the parlor all Question. What time in the day was this the time, I understand you? when he got to the Lindell Hotel, as near as Answer. Between the parlor and the din- you can say? ing-room, where the banquet was spread. Answer. It was in the afternoon when they Question. You were not on the balcony? left the steamboat landing. I do not know Answer. No, sir. what time they were at the hotel, because I was not present on their arrival. Cros's-examined by Mr. Manager BUTLER: Question. Can you not tell about what time Question. You met the President at Alton, they got there? and you, yourself, as one of this committee, Answer. Well, it was probably between one made him an address on board the steamer and five o'clock. where he was received, did you not? Question. After that did you go with the Answer. I introduced him to the committee President from the Lindell Hotel to the Southof reception from St. Louis. ern Hotel? Question. The committee of reception from Answer. I do not recollect whether I accomSt. Louis met him, then, on board the steamer? panied him from the one hotel to the other or Answer. On board the steamer. not. Question. And you introduced him with a Question. He did go from the one to the little speech? other? Answer. Yes, sir. Answer. Yes. sir. Question. Then Captain Eads, who was the Question. There was to be a banquet for chairman of the citizens or the spokesman of him and his suite at the Southern Hotel that the citizens, made him an address, did he? night, was there not? Answer. Yes, sir. Answer. Yes, sir. Question. An address of welcome, and to Question. At which there was intended to be that the President made a response, did he? speaking to him and by him, I suppose? Answer. Yes, sir. Answer. There were to be toasts and reQuestion. And in that address he was lis- sponses; yes, sir. tened to with propriety by them, as became his Question. And what time was that banquet place and the ceremony? to come off? Answer. I observed nothing to the contrary. Answer. I do not recollect the exact hour; Question. You so supposed. Then you went I think somewhere about nine o'clock. to the Lindell Hotel? Question. At the time the President was -Answer. I did not go to the Lindell Hotel called upon by the crowd were you waiting for at the time. the banquet? Question. The President went, did he not? Answer. When the President was called Answer. Yes, sir; the President was enter- upon by the crowd I do not wtink the banquet tained at the Lindell Hotel. was ready. He was in the parlors with the Question. And en route to the Lindell Hotel committee of citizens. he was escorted by a procession, was he not, Question. The citizens being introduced to of the military and civic societies? him, I suppose? Answer. From the landing; yes, sir. Answer. Yes, sir. QuestiOn. A procession of the benevolent Question. He then went out on to the balsocieties? cony. Did you hear any portion of the speech? Answer. I do not recollect what societies Answer. Only such portions of it as I could they were. There was a very large turn-out; catch from the inside occasionally. I did not perhaps most of the societies of the city were go on to the balcony at all. present. Question. Could you see on to the balcony Question. Were you at the Lindell Hotel at where he stood from where you were? all? Answer. I could see on to the balcony, but Answer. Yes, sir. I do not know whether I could see precisely Question. When he got there he was received where he stood or not. by the mayor, was he not? Question. While he was making that speech Answer. I was not there when he arrived at and when he came to the sentence, "I will ihe Lindell Hotel.' neither be bullied by my enemies nor overQuestion. Were you there when he was re- awed by my friends," was there anybody on ceived by the mayor? the balcony trying to get him back? 438 Answer. I could hardly answer that ques- Answer. The crowd on the outside had called tion. I was not there to see. repeatedly for the President, and some conQuestion. You said you could see on to the versation ensued between those present. I balcony, but you were not certain that you think I recollect Captain Able and Captain could see him. You might have seen such an Taylor and myself at any rate were together. occurrence as that. The crowd continued to call. Probably some Answer. I did not. one suggested, I think I suggested, that he Question. You did not see. Can you tell ought to go out. Some further conversation whether it was so' or not from your own knowl- occurred, I think, between him and Captain edge? AbleAnswer. I should think if I could not see it Question. The gentleman who has just left I could not teW. the stand? Question. I only wanted to make certain Answer. Yes, sir; Captain Barton Able, upon that point. and I think I said to him that he ought to go Answer. Well, sir, I am positive on that out and show himself to the people and say a point. few words at any rate. He seemed reluctant Question. You have no knowledge on the to go out, and we walked out together. He subject. Who was on the balcony beside him? walked out on the balcony, and we walked out Answer. I suppose the balcony will hold withhim, and he commenced addressing the perhaps two hundred people. There was a assembled multitude as it seemed. good many people on there; I could not tell Question. What was the character of the how many. crowd? Was it a large crowd, a large number Question. Give me some one of the two hun- of people? dred, if you know anybody who was there? Answer. I do not think I looked at the crowd. Answer. I think Mr. Howe was there. My I do not think I got far enough on the balcony recollection is that the President walked out to look on the magnitude of the crowd. I think with Mr. Howe. I stood back some distance. Question. Was General Frank Blair there at Question. About what number of people any time?. were on the balcony itself? Answer. I have no recollection of it if he Answer. I suppose there were probably fifwas. teen or twenty; there may have been twentyQuestion. Did the President afterward make five. a speech at the banquet? Question. Could you hear the cries from the Answer. A short one. crowd? Question. Was thecrowd a noisyandboister- Answer. I could not. ous one after awhile? Question. What was the character of the Answer. I heard a good deal of noise from proceedings so far as the crowd was concerned? the crowd from where I stood-I stood inside — Answer. Well, I do not recollect distinctly. or where I was moving about, for I was not My impressions are that occasional or repeated standing still a great portion of the time. questions were apparently put to the President, but I do not now exactly recollect what they GEORGE KNAPP sworn and examined. were. By Mr. CURTIS: Question. Was the crowd orderly or otherwise, so far as you could hear? Question. What is your full name? Answer. At times it seemed to be somewhat Answer. Geoge Knapp. disorderly; but of that I am not very sure. Question. Where do you reside? Answer. St. Louis. Cross-examined by Mr. Manager BUTLER: Question. What is your business? Question. Didyougo ontothebalcony at all? Answer. I am one of the publishers and Answer. Yes, sir; I stepped out. It is a proprietors of the Missouri Republican. wide balcony; it is probably twelve or fifteen Question. Were you in St. Louis at the time feet; it covers the whole of the side wall. I the President visited that city inthe summer stepped out. I think I was probably only two of 1866? or three feet back of the President part of the Answer. I was. time while he was speaking. Then there are Question. Were you present at the Southern a number of doors or windows leading out to Hotel before Mr. Johnson went out to make a this balcony. You could stand in these winspeech to the people? dows or doors and hear every word that was Answer. I was. said. Question. Were you in the room where the Question. Did you listen to the speech so as President was? to hear every word that was said? Answer. I was. Answer. I am not sure that I stayed during Question. Please state what occurred be- the whole time. I listened pretty attentively tween the President and citizens, or the cornm- to the speech while I stood there, but whether mittee of citizens, in respect to his going out I stood there during the whole time or not I to make a speech? -do not now recollect. 439 Question. You told us there were from fif- passed; but in attending banquets it often teen to twenty persons, if I understood you happens that they do not take place exactly at aright, on the balcony? * the hour fixed. Answer. That is my impression. I am not Question. It appears that this did not; but certain about that, because I did not pay any was that because they waited for the Presiattention to the number. dent or because the banquet was not ready? Question. How many would the balconyhold? Answer. I think it was because they waited Answer. I suppose the balcony would hold for the President. one hundred. Question. Did you publish that speech the Question. Then it was not at all crowded on next morning in your paper? t]* balcony? Answer. Yes, sir; it was published. Answer. I do not recollect. I say about that Question. Did you again republish it on whether it was or not. I did not charge my Monday morning? mind with it, nor do I now recollect. The par- Answer. Yes, sir. lors were full. There was a crowd there wait- Question. While your paper is called the ing to go into the banquet, and I think it is very Republican it is really the Democrat, and the likely that a large number of them crowded on Democrat is the Republican? the balcony to hear the speech. Whether it Answer. The Republican was commenced was crowded or not I do not recollect. in early times, for I have been connected with Question. Who were present at the time so as it over forty years myself, and at the timeto remember distinctly when he said he would Mr. Manager BUTLER. I do not care to not be overawed by his friends or bullied by his go back forty years at this time. enemies. Do you remember that phrase? The WITNESS. You asked why it was Answer. I do not recollect it. called — Question. This confusion in the crowd some- By Mr. Manager BUTLER: times prevented his going on, did it not? Question. Not why, but as to the fact. Was Answer. I think it likely; but in that I must it in fact the Democratic paper at that time only draw from my present impression. I do when the President was there? not recollect. Answer. Yes, sir. Question. Did you hear him say anything Question. And the St. Louis Democrat, so about "Judas," do you remember? called, was really the Republican paper? Answer. No, sir; I do not recollect. Answer. Yes, sir. Questions. You do not recollect that about Question. Now, in the Democratic paper, Judas? Did you hear him say anything about called by the name of Republican, the speech John Bull, and about attending to him after a was published on Sunday and on Monday? while? Answer. Yes, sir. Answer. I have no recollection as to the Question. Has it never been republished points of the speech. since? Question. Then, so far as you know, all you Answer. No, sir; not to my knowledge. know that would be of advantage to us here is Question. State whether you caused an that you were present when some of the citi- edition of the speech to be corrected for Monzens asked the President to go out and answer day morning's publication? the calls of the crowd? Answer. I met our principal reporter, Mr. Answer. Yes some citizens then present in Ziderthe parlor asked him. Question. Please do not state whst took Question. While the banquet was waiting? place between you and your reporter; it is only At what time was the banquet to take place? the fact I want, not the conversation. Did Answer. I think it was to take place at eight you cause it to be done? o'clock. Answer. I gave directions to Mr. Zider Question. What time had this got to be? after complaining about the report of the Answer, I do not recollect that. speechQuestion. Was it not very near eight o'clock Question. Excuse me; I have not asked you at that time? about your directions? Answer. I think when the President went Answer. I did. I gave directions on readout it was near the time the banquet was to ing the speechtake place, and I think, also, I know, in fact, Question. Please answer the question? that while the President was speaking several Answer. Well, I gave directions to have it persons, in speaking about it, said it was time corrected, if that is your question. for the banquet to commence, or something to Question. Were your directions followed so that effect. far as you know? Question. The banquet had to wait for him Answer. I do not recollect the extent of the while the crowd outside got the speech? corrections. I never read the speech afterAnswer. I do not know that. ward, and I have forgotten. Question. Was not that your impression at Question. Did you ever complain afterward the time? to any man, Mr. Zider or any other, that the Answer. I think the hour, probably, had speech was not as it ought to be as it was pub 440 lished on Monday morning in the Repub- Answer. There were three or four corrections lican? that the printers did not make' that I had Answer. I cannot draw the distinction be- marked on the proof sheets that I made on tween Monday and Sunday. I have repeatedly the paper the following morning in the countspoken of the imperfect manner in which I ing-room. conceived the speech was reported and pub- Question. With those exceptions, did you lished in the Republican on Sunday. Whether make any corrections except what were called I spoke of its imperfections for Monday or not for by your own notes? I do not recollect. Answer. Those were called for by my own Question. Will you not let me call your notes. attention, Mr. Witness? You say that you Question. But they were not in fact mac~? directed a revised publication on Monday, and Answer. They were not in fact made in the it was so published. Now, did you ever coin- printed copy on Monday. plain after that revised publication was made Question. Now, answer my question whether to anybody that that publication was not a the corrections were called for by your own true one within the next three months follow- notes? ing? Answer. Oh, yes; all of them. Answer. It is possible I might have com- Question. Have you compared the report plained on Monday morning, if the corrections which you made, and which was published in were not made, but I do not recollect. the Republican on Monday, with the report Question. Excuse me; I did not ask for a published in the St. Louis Democrat? possibility? Answer. I have more particularly compared Answer. I tell you I do not Recollect. the report published in the Monday Democrat Question. But it impossible you did not? with the Sunday Republican. Answer. That I say again I cannot recollect. Question. You compared those two? Question. Now, sir, will you say that in any Answer. Yes, sir. There are, about sixty important particular the speech as published changes. in your paper differs from the speech as put in Mr. JOHNSON. Differences? evidence here? The WITNESS. Yes, sir. Answer. I could not point out a solitary By Mr. CURTIS: case, because I have not read the speech as Question. Describe the character of those put in evidence here, nor have I read the differences? speech since the morning after it was deliv- Mr. Manager BUTLER. "State the differered; so I know, nothing about what you have ences." I object to that. put in evidence here. Mr. CURTIS. Do you want him to repeat the sixty differences? HENRY F. ZIDER sworn and examined. jMr. Manager BUTLER. Certainly; if he By Mr. CURTIS: can. Question. Where did you reside in the sum- By Mr. CURTIS: mer of 1866 when the President visited St. Question. Have you a memorandum of those Louis? differences? Answer. At St. Louis, Missouri. Answqr. I have. Question. What was then your business? Question. Read it, if you please? Answer. I was then engaged as short-hand Mr. Manager BUTLER. Before he reads writer'and reporter for the Missouri Repub- it I should like to know when it was made. lican, a paper published at St. Louis. By Mr. CURTIS: Question. Had you anything to do with mak- Question. When did you make this coming a report of the speech of the President parison? delivered from the balcony of the Southern The WITNESS. The exact date? Hotel? Mr. CURTIS. If you can give it to us. Answer. I made a short-hand report of the Answer, (after consulting a memorandumspeech. I was authorized to employ all the book.) Saturday, April 11. assistance that I needed, for it was known that Question. When did you make the memothe President was to be received at St. Louis. randum? I employed Mr. Walbridge and Mr. Allen to Answer. On the Sunday following. assist me. Mr. Walbridge wrote outthe report By Mr. Manager BUTLER: for publication in the Sunday morning Repub- Question. Last Sunday? lican. I went over the same report on Sunday Answer. Yes, sir. afternoon and made several alterations in it Question. This month? for the-Monday morning paper. Answer. Yes, sir. Question. The Monday morning Republican? By Mr. CURTIS: Answer. Yes, sir. I made the corrections Question. From what did you make the from my own notes. memorandum? Question. Did you makeany corrections ex- Answer. I had been here before the board cept those which you found were required by of managers twenty-four days, and was disyour own notes? charged and had just returned to St. Louis. I 441 got telegraphic dispatches stating that I was compared with the report in the Democrat; summcned again to appear before the Senate. who made that report? I then went to the Republican office, took the Answer. Mr. Walbridge made that report on bound files of the Republican and the bound Saturday night, September 8, 1866. It was files of the Democrat for the latter part of 1866, published in the Sunday morning Republican and in company with Mr. James Monaghan, of September 9, 1866. one of the assistant editors, I made a com- By Mr. CURTIS: parison of the two papers, noted the differences, Question. Have you looked at the proceedcompared those differences twice afterward to ings in this case to see whetlher that has been see that they were accurate. That was on Sat- put in evidence? urday. I started for Washington on Sunday Answer. The Sunday morning Republican afternoon at three o'clock, the first through was mentioned in Mr. Walbridge's testimony, in train. which he states that he made one or two simple Question. When was this paper that you call corrections for the Monday morning Democrat. the memorandum, which contains these differ- Question. Now, I wish to inquire, Mr. Zider, ences, made? whether the report which you saw in the files Answer. On Saturday. of the Republican and which you compared Question. Was it made at the same time with the report in the Democrat was the report when you made this comparison or at a differ- which Mr. Walbridge made? ent time? Answer. Undoubtedly it was. Answer. The same day. Mr. CURTIS. Now, Mr. Chief Justice, it Mr. CURTIS. Now, you can tell us the is suggested by the learned Managernature of the differences; or, if the honorable Mr. Manager BUTLER. I will save you all Manager desires that all those differences trouble. You may put it in as much as you should be read, you can read them. choose. I do not care, on reflection, if you Mr. Maniger BUTLER. Stay a moment. leave it unread. It is of no consequence. Any on which you rely we should like to have Mr. CURTIS. - We will simply put it into read. the case to save time and have it printed. Mr. tURTIS. We rely on all of them, more Mr. Manager BUTLER. I think there should or less. not be anything printed that is not read. We Mr. Manager BUTLER. Then all of them, have got a very severe lesson upon that. more or less, we want read. Mr. CURTIS. WeV understood you to disMr. CURTIS. We should prefer to save pense with the reading. time by giving specimens; but then, if you The CHIEF JUSTICE. If the honorable prefer to have them all read, we will have them Manager dlesires to have the paper read it will read. be read. Mr. Manager BUTLER. There is a ques- Mr. Manager BUTLER. I do not desire it tion back of this, I think, and that is, that we to be read. have not the standard of comparison. Surely, Mr. EVARTS. Is it to go in as evidence, then, this cannot be evidence. This witness Mr. Chief Justice, or not. goes to the Republican office and there takes The CHIEF JUSTICE. Certainly. a paper —he cannot tell whether it was the true Mr. Manager BUTLER. It may go in for one or not, whether made properly or not, or aught I care. what edition it was-and he compares it with Mr. CURTIS. That is all, Mr. Zider. a copy of the Democrat, and having made that The paper thus admitted in evidence, concomparison he now proposes to put in the re- taining a memorandum of the differences besuits of it. I do not see how that can be evi- tween the two reports of President Johnson's dence. He may state anything that he has a speech at St. Louis, is as follows: recollection of; but to make the memorandum Sunday REPUBLICAN, DEMOCRAT,Monday,SePt. evidence, to read the memorandum, never was Sept. 9, 1866. 10, 1866. such a thing heard of, I think. I am I was Let me restate it and I have done. He goes Questions which Questions that that we have A we have to the Republican office, gets a Republican; as thiat we have as those we have what Republican, how genuine, what edition that they then knew that they there knew it was, is not identified; he says it was in a its power having expired itspowershaving expired bound volume. He takes the Democrat, of of A population of the population bound volume. He takes the Democrat, of without the will of the withoutthe consent of the what edition we do not know, and compares people people that, and then comes here and attempts to put A Then when And then when arison made in which it does not provoke me it don't provoke me in the results of a comparison made in which thingsthathavebeendone things that has been done Monaghan held one end. of the matter and he that wereintended to be that was intended to be held the other.' Now, can that be evidence? enforced upon enforced on Mr. CURTIS. I want to ask the witness a that I bandonedas a traitor abadoned the power question, and then I will make an observation Judas Iscariot A Judas-Judas Iscariot on the objection. [To the witness.] Who a traitor a t-r-ai-t-o-r made the report in the Republican which you Judas IscariotJ Iudasl Judaas,Juda Iscariot,-s examined-the one which you examined and the twelve apostles and these twelve apostlw 442 he never could have he could'nt have Cross-examined by Mr. Manager BUTLER: and that try to stay and A try to stay when there were when there ware Question..How long have you been troubled there was a Christ there ware a Christ with your unfortunate affliction? there were unbelievers there ware unbelievers to day who would to day ^ would Answer. To what do you refer. ^A Now what is the plan? Question. I understoodyou were a little deaf. for years four years Is that so? bear all the expenses bear all the expense, So much for thisquestion. Answer. I have been sick the greater part Yes, Yes, ~ Y-a-s, Y-a-s; of this year, and was compelled to come here A a decided majority as decided a majority a month ago almost, before I was able to come. What? Wha-t? Stimulating this elevating thenzmselves I have not got well yet. So far as offences are So far as the Fenians are Question. Did you hear my question? concerned concerned Answer. Yes. Upon this subject of Upon this subject ofYes. offences Fenians, Question. How long have you been deaf, if and battled more for and sacrificed more for, you have been deaf at all? It has been my Peculiar It has been my peculiarartially deaf for the last two years, mi h ave mi sf to have Answer. Partially deaf for the last two years, misfortune A to have misfortune alwaysto have fierce opposition fierce opposition I should think. (a voice whyo didnt you, >__Question. About what time did it co21mence? The law was executed, - Answer. I cannot state that. The law was executed Question. As near as you can. You know to give somebody else a to vote somebody else a when you became deaf, do you not? bounty bounty. he can get $50 bounty A can get $50. bounty, Answer. I know I was not deaf when. you (Great cheering) (Loud cheering) made your St. Louis speech in 1866. are A entitled to are constitutionally enti- Question. That is a very good date to reckon tled to equal representation in equal suffrage in the from; but as these gentlemen do not all know the when that was, and you and I do, suppose you Congress of the United Senate and no power has by the alma try it by the almanac and tell us wen th States without violating right to deprive them of it was? the Constitution (cheers) withoutviolatingthe con- Answer. That was on the 13th of October, stitution. (cheers) Amongthispeople. Ihave Among the people. Ihave 1866. labored for it I am for it labored for it. Now I Question. You were not deaf then? now. I deny, deny, Answer. N manner pointed out by manner pointedA by 4nd sometimes having Question. How soon after that did you re- sinned and having re- become deaf? pented maakes him abetter pented Answer. Perhaps a month. [Laughter.] man than he was makes him a better man before than he was before Question. You are quite sure it was not at Yes, I have, Y-a-s, I have that time? Yes I have. Y-a-s I have Answer. Quite sure it was not that time (Voice "bully for you" Voice (bully for you oldAnswer. Quite sure and cheers) fellow and laughter) because I heard some remarks the crowd on either side on the other side made which you did not. [Laughter.] a kind of over-righteous- a kind of over righteous- Question. I have no doubt you heard very ness -over r-iglteousness — ness-better than any much that I did not. Now, suppose we conbetter fine ourselves to this matter. About a month than any body else and body else and always after that you became deaf although wanting wanting, that you became deaf Hle went upon the cross He went upon the cross & Answer. Partially. aau there wasa nailedby therewas painfullynailed Question. Partially deaf, as now. unbelieves and there these unbeievers that I Answer. I recovered from that sickness. I shed became sick again the first part of this year. his blood that you and I havespoken ofheretonight, Question. Now, will you have the kindness might live (cheers and there shed his blood that you and I might live to state whether you have your notes? (cheers) The WITNESS. Of the President's speech? nor the judgeA nor the judge (voice nor Mr. Manager BUTLER. Yes, sir. the Moses:..') Answer. I have not. I know there are some I know there is some that talk that talk Question. When did you see them last? And manage all the And manageA the Answer. The last recollection I have of affairsof State affairs of State, them is when Mr. Wbride was summoned The people of Missouri The people of Missourimmoned as well as other States as well as other States before the Reconstruction Committee to give know that all my know thatA my efforts testimony on the New Orleans riot. efforts have have all this all this traduction Question. Did you and he then go over that traduction and de- and detraction that speech together? traction that have has Answer. We went over only a part of it. let us fight the enemies let us fight^ enemies And in parting with And in parting Question. The part that referred to New you now I leave the you now leaveA the Orleans? government in your Government in your Answer. Yes, sir. hands. haendas, Question. But the part that referred to New recognized are-cog nized Orleans you went over with him? 443 Answer. I did. Answer. They were not. Question. Was there any material difference Question. Any other difference? between you and him when you had your notes Answer. No other. That was as far as we together in that part of the speech, and if so, proceeded with the report as to the New Orstate what? leans riot. The latter part of the report was Answer. There was. not compared at all, nor was the first part. Question. What was it? Question. Now, have you the report as it Answer. He asked me to compare notes appeared in the Republican of Monday mornwith him- ing before you? Question. Excuse me; I am not asking what Answer. I have. he said. I am asking what difference there Question. Let me read the first few sentences was between your report and his report upon of the report put in evidence, and tell me how that comparison; what material difference? many errors there are in that. Have you it? Mr. EVARTS. I submit, Mr. Chief Justice, Answer. Yes, sir; I have it. [The witness that as he is asked the precise question what produced a new paper.] the difference was that arose upon that com- Question. Now, I will read from the report parison, he is to be permitted to state what it put in evidence here: was and how it arose. "Fellow-citizens of St. Louis: In being introMr. Manager BUTLER. I have not asked duced to you to-night, it is not for the purpose of any difference that arose between him and Mr. making a speech. It is true I am proud to meet so Walbridge. Far be it from me to go into that. many of my fellow-citizens here on this occasion, and under the favorable circumstances that I do. I havesked what the difference was between [Cry,'How about British subjects?'] We will atthe two speeches. tend to John Bull after awhile, so far asthat is conMr. EVARTS. As it appeared in that com- cerned. [Laughter and loud cheers.] I have just stated that I was not here for the purpose of making parison. a speech." Mr. Manager BUTLER. As found at that The WITNESS. "Am nother time. Mr. Manager BUTLER. The difference is The WITNESS. That is what I was going to here "I was," and there "I am." Now, do answer. If you will possess your soul inhe Iws"ntr Ia. o d answer. If you will possess your soul in you know that the President used the word patience a moment I will answer.am" instead of was?" The CHIEF JUSTICE. The witness will Answer. Of course I do confine himself entirely to what is asked and Question. I will read on: make no remarks.on: ~~make no remarks. ~"Iwas nothere forthe purpose of making aspeech; The WITNESS. When we proceeded to com- but after being introduced simply to tender my corpare that part relating to the New Orleans riot dial thanks for the welcome you have given me in Mr. Walbridge read from his notes; I looked your midst. [A voice:'Ten thousand welcomes;' nhurrahs and cheers.] Thank you, sir. I wish it was in on, and when he came to this passage, as near my power to address you under favorable circumas I can remember: "When you read the stances upon some of the questions that agitate and speeches that were made, and take up the facts, distract the public mind at this time" if they are as stated, you will find that speeches Answer. " Questions which agitate." were made incendiary in their character, ex- Question. " Which agitate" instead of' that citing that population called the black popu- agitate?" lation to take up arms and prepare for the Answer. Yes. shedding of blood;" I called Mr. Walbridge's Question. And then it goes on: attention to the qualifying words, " if the facts' Questions that have grown out of a fiery ordeal are as stated." He replied to me, " You are we have just passed through, and which I think as h and went.important as those we havejust passed by. The time mistaken; I know I am right," and went on. hascomewhenit seems to me that all ought to bepreAs he was summoned to swear to his notes, and pared for peace-the rebellion being suppressed, and not to mine, I did not argue the question with the shedding of blood being stopped, the sacrifice of hitomi gdo on. life being suspended and stayed, it seems that the him further, but let him go on. time has arrived when we should have peace; when By Mr. )Manager BUTLER: the bleeding arteries should be tied up. A. voice: Question. What other difference was there'New Orleans;''Go on.']" Answer. There was another difference. It is so far all right except those two corQuestion. In the New Orleans matter? rections? Answer. Yes sir. The President's words, Answer. Yes, sir. [ think, were that they there knew a conven- Question. Now we will try another part? tion was to be called which was extinct by The WITNESS.' Go over the New Orleans reason of its power having expired. There part, if you please. I wish to make a correction was a difference in the words "by reason of." in that part. Question. What was that difference? Question. Are you dealing with a memoAnswer. The words "by reason of." randum? Question. Werethey in or out of Walbridge' s Answer. It is the official proceedings. report? Question. You are comparing yourself with Answer. They were in my report. the official proceedings as you go on, where Question. And were not in Walbridge's re- you have noted these corrections? port?. Answer, Yes, sir, in'the official proceedings. 444 Question. Then you are going on with a copy Mr. Manager BUTLER. Now, sir, will you of the official proceedings and noting the attend to your business and see what differences differences? there are as I read? Answer. Yes; but I can make the memo- "If I have played the Judas, who has been my randa without the official proceedings before Christ that I have played the Judas with? Was it me. Do you want it? [Offering the printed Thad. Stevens? Was it Wendell Phillips? Was it CharlesSumner? [Hissesandcheers.] Arethesethe official' report of the trial, with manuscript men that set up and compare themselves with the corrections, to the honorable Manager.] Saviour of men, and everybody that differs with them Mr. Manager BUTLER. No; I do not care in opinion, and try to stay & arrest their diabolical for it. You told me that you wished I should and nefarious policy, is to be denounced as a Judas." go on with the New Orleans part. Why do you Answer. "And that try." wish anything about it? Question. "Differ with them in opinion, The WITSNESS. YOU were proceeding to make and that try to stay and arrest their diabolicorrections, and when you came to the New cal and nefarious policy is to be denounced Orleans part you stopped. as a Judas. [' Hurrah for Andy and cheers. "'] By Mr. Manager BUTLER: Am I right so far, sir? Question. Well, I will take this portion of Answer. I think so. it — Question. Is that a fair specimen of the sixty The WITNESS. Any portion. corrections? Question. " Judaas, Judas Iscariot, Ju- Answer. There are fourinthenextthreelines. daas?" Question. Is that a fair specimen of the Answer. One Judas too many there. [Laugh- sixty corrections. Answer the questioj? ter.] Mr. EVARTS. Mr. Chief Justice,7I supQuestion. "There was a Judas once." You pdse the corrections, the whole of which we are sure he did not speak Judas four times, are have put in evidence, will show for themselves. you? Mr. Manager BUTLER. I am cross-examAnswer. Yes, sir. ining the witness. Question. How many times did he speak it? Mr. EVARTS. It has nothing to do with Answer. Please read it again. the matter of evidence. Question. I asked how many times did he Mr. Manager BUTLER. I am asking a speak Judas? question of the witness on cross-examination, Answer. Three times. and I prefer that he should not be instructed. Question. Well, I believe we have got "Ju- Mr. EVARTS. No instruction. We thought daas, Judas Iscariot, Judaas." That is only we should save time by putting in the memothree times. Why did you say one too many? randum; but it seems that the cross-examinaAnswer. You have it four times there. tion is to go over every item. We insist that Question. I beg your pardon. I have only it be confined to questions that are proper.,said it three times. "Judaas, Judas Iscariot, Whether this is a fair specimen or not, comJudaas." pared with the whole paper, will appear by The WITNESS. Are not those words itali- the comparison the court make between the cized there? two pieces of evidence. Mr. Manager BUTLER. Yes, sir. Mr. Manager BUTLER. I am testing the The WITNESS. Are they not stretched out to credibility of this witness, and I do not care to make it appear ridiculous? have him instructed. Mr. Manager BUTLER. I really think two The CHIEF JUSTICE. If the question is of the Judases are spelt with the pronunciation objected to, the honorable Manager will please -" J-u-d-a-a-s." put it in writing. The WITNESS. Yes, and italicized. Mr. Manager BUTLER. I will put it in Question. Do you mean to say that the Presi- writing if the Chief Justice desires. dent did not speak those words with emphasis? Mr. EVARTS. It is no question of crediAnswer. I mean to say that he did not speak bility; it is a mere question of judgment asked them in that way. 8f him between two papers, whether one is a Question. I read: fair specimen of the other. "There was a Judas once, one ofthetwelve apostles. Mr. Manager BUTLER. I will put the Oh! yes, and these twelve apostles had a Christ. [A question in writing if the Chief Jus voicye, AnaMssto'Gelagt.Th question in writing if the Chief Justice desires. voice,'And a Moses, too.' Great laughter.] The twelve apostles had a Christ, and he could not have The question is this: whether all the correchad a Judas unless he had had twelve apostles." tions which you have indicated in answer to my See if I am right. questions are of the same average character Answer. The word "yes" should not be with the other corrections of the sixty? stretched out with dashes between each letter, The WITNESS. There are two or three coras there. rections in that which you have read. Mr. ManagerBUTLER. The "yes" isnot The CHIEF JUSTICE. Is the question here stretched out. Is there any other ques- objected to? tion you would like to ask me, sir? [Laughter. ] Mr. EVARTS. We object to the question. The WITNESS. All I wish is that you shall It requires a reexamination of the whole subread it as it is there. ject. 445 The CHIEF JUSTICE. The question will Question. And still you think "were" best be put in writing, objection being made. i represents his tone of voice, do you? Mr. Manager BUTLER. I will pass Trom Answer. I think it did. that rather than take time, because I shall be Question. Although it cannot be represented accused of having taken up too much time. in print. Now, sir, with the exception of these [To the witness.] Mr. Witness, you have told corrections in pronunciation and grammar, is us that in the next few lines there were cor- there any correction as the speech was printed rections, I think four in the next three lines. in the Democrat on Monday from that which Now I will read the succeeding lines: was printed in the Republican? "In the days when there ware twelve apostles and Answer. Of what date? when there ware a Christ, while there ware Judases, Question. The Republican of Sunday. there ware unbelievers, too. Y-a-s; while there Answer. Yes, sir. were Judases, there ware unbelievers. [VoicesA'Hear,"'Three groans for Fletcher.'] Yes, oh yes i Question. Or of Monday? With the excepunbelievers in Christ." tion of corrections of grammar and pronunciaThe WITNESS. DO yOU wish me to make tion, is there any correction of substance becorrections there? tween the two reports as printed that morning? Mr. Manager BUTLER. I want you to Answer. Specify which papers you want stop me when there is anything wrong. compared, the Sunday Republican and MonThe WITNESS. "In the days when there day Democrat, or the Monday Republican and ware;" were is right. Monday Democrat? Mr. Manager BUTLER. It reads in mine Question. The Monday Republican and Mon"ware," and in yours it reads " were?" day Democrat. Answer. Yes; and then in the next line Answer. Yes, sir. there is a "ware " again. It should be "wer'e." Question. What are they as printed? Question. What is the next? Answer. One is " Let the Government be Answer. There is another "ware." restored. I have labored for it. I am for it Question. That is, it should be "were" now. I deny this doctrine of secession, come instead of "ware?." from what quarter it may." Answer. Yes, sir. Question. What is the change as printed? Question. Those are the three corrections Answer.-' Let the Government be restored. you want to make there? Are those the only I have labored for it." So far it is the same corrections there? in both papers; and then the words " I am for Answer. Then there is one before "unbe- it now" are omitted in the Democrat, and the lievers." punctuation is changed so as to begin the next Question. What is it? sentence " Now, I deny this doctrine of seces. Answer. " Were" for "ware." sion," and then words are omitted and the Question. Are those all? punctuation changed. The WITNESS. Does it read in yours "Voices, Question. There are four words omitted, "I'Hear!''Three groans for Fletcher?'" am for it," before now. What else? Mr. Manager BUTLER. Yes, sir. Itisall Answer. Speaking of the neutrality law he right, is it not? What is the trouble with that? said, " I am sworn to support the Constitution The WITNESS. There are four "'wares" and to execute the law." Some one halloed there, are there not? out "Why didn't you do it?" and he answered, Mr. Manager BUTLER. What do you "The law was executed; the law was exemean by "wares?" We have corrected the cuted." Those words " Why didn'tyou do it" " e" for the "a;" that is the whole change. and " The law was executed; the law was exeThe WITNESS. Yours reads'" there ware a cuted," are omitted in the Democrat. Christ;" the " ware" should be " was." Question. What else of substance? Question. Then all your corrections are of Answer. I do not know that 4 can point out pronunciation and grammar, are they not? any others without the memorandum. Answer..The President did not use those Question. Use the memorandum to point out words. substance, not grammar, not punctuation, not Question. Do you say that the President does pronunciation. not pronounce "were" broadly, as is some- Answer, (referring to the memorandum.) times the southern fashion? One expression he used was, "Allow me to Answer. I say that he did not use it as used ask if there is a man here to-night who in the in that paper. dark days of Know-Nothingism stood and batQuestion. Did he not speak broadly the word tied more for their rights""were " when he used it? Question. What is the word left out or put Answer. Not so that it could be distinguished in there? for "ware." Answer. The word " sacrificed" is used in Question. Then it is a matter of how you the Democrat, and the word " battled" is the would spell pronunciation that you want to one that was employed. correct, is it? Mr. Manager BUTLER. I will not trouble Answer. The tone of voice cannot be repre- you further, sir. sented in print.. The WITNESS. Oh; I can point out more. 446 Mr. Manager BUTLER. That is all, sir. Justice, to put in a document from the DepartMr. CURTIS. We now desire, Mr. Chief menkof the Interior, showing the removals of Justice, to put in evidence a document certi- supcMntendents of Indian affairs, and of Infied from the Department of State. dian agents, of land officers, receivers of pub[The document was handed to the Managers.] lic moneys, surveyors general, and certain misThe CHIEF JUSTICE. The counsel will cellaneous officers who are not brought under state the object of this evidence. any one of those classes. The document which Mr. CURTIS. It is the commission issued I hold shows the date of the removal, the by President Adams to General Washington, name of the officer, the office he held, and also constituting him Lieutenant General of the contains a memorandum whether the removal Army of the United States. The purpose is was during the recess of the Senate or in the to show the form in which commissions were session of the Senate. issued at that date to high military officers, Mr. Manager BUTLER. I have but one and we have selected the most conspicuous objection to this species of evidence without instance in our history as regards the person, anybody brought here to testify to it, and that the office, and the occasion. is this: I have learned that in the case of Mr. Manager BUTLER. There were two the Treasury Department, which I allowed to commissions issued to General Washington, come in without objection, there were other two appointments made. Was this the one he cases not reported where the power w;as reaccepted, or the one he rejected; do you fused to be exercised. I do not know whether remember? it is so in the Interior Department or not. But Mr. EVARTS. We'understood it to be the most of these cases, upon our examination, one actually issued, and received by him. appear to be simply under the law fixing their Mr. Manager BUTLER. And accepted by tenure during the pleasure of the President for him? the time being, and some of them are inferior Mr. EVARTS. We suppose so. officers originally made appointable by the Mr. CURTIS. We understand so. heads of Departments. If the presiding officer Mr. E VARTS. We desire to have the cornm- thinks they have any bearing we have no objecmission read. tioef. Mr. Manager BUTLER. I see no objection Mr. CURTIS. I understand the matter of to it. I thought perhaps you could tell me the application of the law to these offices somewhat I inquired about. what differently from that which is stated by Mr. EVARTS. Will the Clerk be good the honorable Manager. I have not had an enough to read it? opportunity minutely to examine these lists, The CHIEF JUSTICE. The Secretary will for they were only handed to me this morning; read the paper. but I understand that a very large number of The Chief Clerk read the following commis- these officers held for a fixed tenure of four sion, which is accompanied by a certificate years. That, however, must' be a matter of from the Secretary of State, that it is a care- argument hereafter. fully compared and exact copy of the original Mr. Manager BUTLER. What class of offion file in his Department: cers do you speak of? JOEN ADAMS, Mr. CURTIS. Receivers of public moneys President of the United States of America: is one of the classes. To all ho shall. see these presents, greeting: Mr. JOHNSON. What is the date of the Know ye, that reposing special trust and confi- first removal and of the last? dence in the patriotism, valor, fidelity, and abilities Mr. CURTIS. These tables, I think, exof George Washington. I have nominated, and by and with the advice and consent of the Senate do tend through the whole period of the existence appoint, him Lieutenant General and Commander- of that Department. I do not remember the in-Chief ofall th armies raised or to be raised for date when the Department was established, the service of the United States. He is therefore carefully and diligently to discharge the duty of Lieuten- but I think they run through the whole history ant General and Commander-in-Chief by doing and of the Department. performing allmanner of things thereuntobelonging. The CHIEF JUSTICE. No objection is And I do strictly charge and require all officers and soldiers under his command, to be obedient to his made to the reception of this document in eviorders as Lieutenant General and Commander-in- dence. Chief. And he is to observe and follow such orders The documens as follows: and directions from time to time as he shall receive t is as follows: from me or the future Prepidentof the United States DEPARTMENT OF THE INTERiOR, of America. This commission to continue in force WASHINGTON, D. C., April 17,1868, during the pleasure of the President of the United States for the time being. I, Orville H. Browning, Secretary of the Interior, do Given under my hand at Philadelphia, this 4th hereby certify that the annexed thirteen sheets'conday of July, i. the year of our Lord 1798, tain full, true, complete, and perfecttranscripts from [L. S.] and in the tbAlkty-third year of the inde- the records of this Department, so far as the same pendence of the United States. relate to the removalsfrom office ofthepersoastherein JOHN ADAMS. named. By command of the President of the United States In testimony whereof, I have hereunto subscribed of America: my name and caused the seal of the DepartJAMES McHENRY, Secretary of War. [L. s.] ment to be affixed the day and year above written. 0. H. BROWNING, Mr. CURTIS. I noNv desire, Mr. Chief Secretary of the Interior. Removals of Superintendents of Indian Affairs' and of Indian Agents. Date. Name. Office. Remarks. March 13,1849........Thomas P. Harvey........ Superintendent at Saint Louis, Missouri..........During the recess. June 9,1865..........W. H. Albin............. Central superintendency.......................During the recess. April 18, 1853.........Elias Murray................North superintendency........................During the recess. March 13, 1857........Francis Huebseliman..........North superintendency........................During the recess. March 27, 1861........W. J. Cullen.................North superintendency........................During the recess. October 29,1866......'E. B. Taylor.................North superintendency........................During the recess. April 8, 1853..........John Dresman...............South superintendency........................Senate consented to appointment of his successor. March 3,1855.- Thomas S. Drew..............South superintendency....................... Duing the recess. March 17,1 1857. C. W. Dean..................South superintendency........................During the recess. April 1, 181Elias Rector.................South superintendency........................During the recess. March 16,1863........J. L~. Collins.................New Mexico superintendency...................During the recess. March 3,1865.........Michael Steck...............New Mexico superintendency...................Senate consented to appointment of his successor. March 17, 1866........Filipe Delgado...............New Mexico superintendency...................Senate consented to appointment of his successor. August 9, 1866........G. W. Leihy.................Arizona superintendency.......................During the recess. March 31, 1854........E. F. Beale..................California superintendency.....................Senate consented to appointment of his successor. April 16, 1861.........A. D. Rightmire..............Southern District California superintendency......During the recess. August 10, 1863.......-G. AL Hanson................North District California superintendency.........During the recess. March 22, 1865........Austin Wiley................North DIstrict California superintendency.........During the recess. March 17, 1853........Anson Dart.................Oregon superintendency........................Senate consented to appointment of his successor. June -, 1856..........Joel Palmer.................Oregon superintendency.......................Senate consented to appointment of his successor. March 22, 1859........J. W. Nesmith...............Oregon superintendency.......................During the recess. 6 June 30, 1861.........E. R. Geary..................Oregon superintendency.......................During the recess. March 28, 1863........W. H. Rector................Oregon superintendency.......................Senate consented to ~pointmcnt of his successors. July 16, 1861..........W. W. Miller.................Washinjton Territory superintendency...........Senate consented to Xpointment of his successor. Marcl?6, 1862.........B. F. Kendall................Washington Territory superintendency...........Senate consented to appointment of his successor. March 30, 1864........C. H-. HalIe..................Washington Territory superintendency...........Senate consented to appointment of his successor. September 25, 1866.....W. HI. Waterman.............Washington Territory superintendency...........During the recess. April 18. 1853.........W. P. Richardson.............Great N~emaha agency......................... During the recess. March 25,1861........Daniel Vanderslice...........Great IN em aha agency........................Senate consented to appointment of his successor. April1,18715....1867. R.. W TuWa..Turnas..... Omaha..... agencyeny...Senate.....consented.......to...appointmentnte onenof thisoinmsuccessor.cesor May 27 27...1861.... C. C H'Mi Mix...Winnehago.......agencyinebgo. Senate.....consented.......to...appointmentenae cnsofe thisoinsuccessor.ucesor September 7. 1865......St. A. D. Balcombe...........Winnebago agency...........................During the recess. April 29, 1861.........James L. Gillis...............Pawnee agency..............................During the recess. March1,18216,...1862. H..W.DeW uy.De....uy...... awnee. Pw agencycy.....Senate....consented.......to...appointmente onsntof"o hpostmsuccessor.cesor August1,18613,...1856. HG.MurhG...Murphy. St....... Peter'sete'sagency.....Senate....consented.....to..appointment cnseteoto phistmn successor.esor September 11. 1857.....Charles E. Flanders....t........St. Peter's agency............................During the recess. March 23,1861........Joseph R. Brown.............St. Peter's agency............................Senate consented to appointment of his successor. September 20,1864.....W. W. Ross.................Pottawattomie agency.........................During the recess. January 4,1866.......William Daily............... Ottoe and Missouria, agency....................Senate consented to appointment of his successor. April 27, 1859.......... C. Miller.................Upper Arkansas agency........................During the recess. April 18,1861.........M. C. Dickey................Kansas agency................................During the recess. June3,183,...1858... Royaloyl Baldwin.......i..k..poo.. agency.agecySenate.....consented......to...appointmentnae cnsofedthispontuctcoshs sscc rso May 7,164C. D. Keith..................Kickapoo agency............................Senate consented to appointment of his successor. Mac 16, 1865. Abram Bennett...............Kickapoo agency.............................During the recess. March 27, 1861':.......Thomas B. Sykes.............Delaware agency.............................Senate consented to appointment of his successor. April18 118, 1864......Fieldingohnonohnson..... DelawareDelwaagencyy.....Senate.....consented......to..appointment cnseteofo phistmn successor.esor June 3188A. Arnold...................Shawnee agency.............................Senate consented to appointment of his successor. March 13'89 Francis Tymony..............Sac and Fox agency...........................During the recess. April 3, 1858..........Max. MeCauslin........ Osage river agency...........................Senate consented to appointment of his successor. April 15, 1861........ Scth ClvrOsage river agency............................During the recess. STATEMENT-Continued. Date. Name. Office. Remarks. October -,1850.... Fitzpatrick...........Upper Platte agency................................................ During the recess. April 14, 1862.............. J. A. Cady.............Upper Platte agency................................................ Senate consented to appointment of his successol. August 3, 1866......... Vital Jarot.................................Upper Platte agency...................................... During the recess. May 29,849.......... R. C. S. Brown........................... Cherokee agency...................................................... During the recess. April 5,1861.......... R.J. Cowart............................... Cherokee agency...................................................... During the recess. March 6, 1862............... John Crawford............ Cherokee agency...................................................... Senate consented to appointment of his successor. September 25,1866....... Justin Harland........................... Cherokee agency...................................................... During the recess. April 18, 1853............... William Wilson................... Choctaw agency.................................. During the recess. July 31, 1861................ D. H. Cooper.................... Choctaw and Chickasaw agency.............................. Senate consented to appointment of his successor. August22, 1866........... Isaac Colman.................... Choctaw and Chickasaw agency.............................. During the recess. March 16, 1865.............. P.P. Elder................................. Neosho agency......................................... During the recess. July 6,1858................... A.. McKissack........................ Witchitaagency................................................. During the recess. July 26, 1860................. Samuel A. Blain........................ Witchitaagency....................................... Senate consented to appointment of his successor. April 19,1861......... Matthew Leeper................. Witchita agency....................................................... During the recess. March 6, 1862............... J. J. Humphreys........................ Witchita agency...................................................... Senate consented to appointment of his successor. April 5, 1849................. James Logan.............................. Creek agency............................................................ During the recess. April 18, 1853............... P. H. Raiford......................... Creek agency................................. During the recess. April 5, 1861............... W. H. Garrett............................. Creek agency............................................................During the recess. April 6, 1.861............... William Quesenbury.................. Creek agency............................................................ Senate consented to appointment of his successor. June 9, 1865........... G. A. Cutler............................... Creek agency................................. During the recess. March 11, 1852............ Elias Wampole......................... Warm Springs (Oregon) agency................................ Senate consented to a pointment of his successor June 13,1861.......A......... P. Dennison.................. Warm Springs (Oregon) agency................................ During the recess. h November 2,1854..... S. H. Culver..................... Grande Ronde (Oregon) agency................................ During the recess. July 16, 1861................ J. J.F. Miller................................. Grande Ronde (Oregon) agency............................... Senate consented to appointment of his successor. July 10, 1851................. H.. Spalding........................... Siletz (Oregon) agency........................................ Durngthe recess. August 13, 1856............ E. A. Starling................... Siletz (Oregon) agency.............................................. During the recess. July 16, 1861................. Daniel Newcomb........................ Siletz (Oregon) agency...................................... Senate consented to ppointent of his successor. January 21, 1863......... Benjamin R. Biddle................... Siletz (Oregon) agency.............................................. Senate consented to appointment of his successor. July 17, 1861................. Wesly B. Gasnell........................ Umatilla (Oregon) agency.............................. Senate consented to appointment of his successor. September 1,1852......... A. IL Wooley.................... An Indian agent in New Mexico..S.................... Senate consented to appointment of his successor. May 1, 1853.................. Michael Stek................ An Indian agent in New Mexico............................. During the recess. May 13. 1857................. Lorenzo Labadi.......................... An Indian agent in New Mexico............................ During the recess. March 21,1865.............. Jos6 A. Mansinares.................... An Indian agent in New Mexico............................. During the recess. May 3,1853................... E.H. Wingfield.......................... An Indian agent in New Mexico.................... During the recess. July 26, 1861................. Michael Steck............................ An Indian agent in New Mexico............................ Senate consented to appointment of his successor., April 30,1861...: J........... T. Russell..................... An Indian agent in New Mexico............................ Seteconsented to appointment of his successor. June 21,1866............. Toribio Romero......................... An Indian agent in New Mexico............................. Senate consented to appointment of his successor. July 22,1852................. R. H. Weightman...................... An Indian agent in New Mexico............................. Senate consented to appointment of his successor. April 11, 1853...............'S. M. Baird................................. An Indian agent in New Mexico............................. Senate consented to appointment of his successor. April 30, 1861.............. S. S.F. Kendrick................... An Indian agent in New Mexico............................. During the recess. March 24,1865.............. John Ward......................... An Indian agent in New Mexico............................. During the recess. August 4, 1862............ F. M. Arny................... An Indian agent in New Mexico............................. During the recess. March 21, 1865............. L. J. Keithly.................... An Indian agent in New Mexico............................. During the recess. April 18, 1853............... B. Lambdin......................... Crow Creek agency............................... During the recess. March 28, 1861............. A. H. Redfield........................... Yanetonagency.......................... Senate consented to appointment of his successor. July 16, 1861.. J. S. Gregory.............................. Ponc agency...... Senate consented to appointment of his successor. April 26, 1861............... Andrew Humphreys.................. Unintah Valley (Utah) agency................................. During the recess. June 7,1864.................. F. W. Catc h................................ Unintah Valley (Utah) agency................................ Senate consen,ted to appointment of his successor. September 22, 1865...... Charles Hutchings............. Flat head (Montana) agency............................ During the recess. April 7,1862.................. Luther L. Pe ase.......B. lack feet (Montana) agency.Senate consented to appointment of his successor. October 13, 1863............ II. W. Reed................................ Black fect (Montana.) agency......D.......................... During the recess. March 14.1861.......... R. II. Lansdale......................... Yakama (Washington Territory) agency................ During the recess. June 7,1864.................. A. A. Bancroft........................... Yakama (Washington Territory) agency................ Senate consented to appointment of his successor. May 11, 1865................. Simeon Whitely......................... Indian agent in Colorado................................. During the recess. September 21, 1866....... William Bryson.......................... Smith river (California-) agency.............................During the recess. April 23. 1853............. William Sprague...................... Mackanac (Michigan) agency................................. During the recess, INMarch 25, 1861.............. A. M. Fitch................................. Mackanac (Michigan) agency.......................... Senate consented to appointment of his successor. March 23. 1861.............. J. W. Linde............................... Chippewas of the Mississippi............................. Senate consented to appointment of his successor. April 20, 1865............... A. C. Morrill............................. Chippewas of the Mississippi............................. During the recess. November 9, 1866......... Edwin Clark............................... Chippewas of the Mississippi........................... During the recess. April 18, 1853............... J. S. Watrous............................. Chippewas of Lake Superior................................ During the recess. March 25,1861.. Cyrus K. Drew.Chippewas of Lake Superior................................ Senate consented to appointment of his successor. Registers of Land Offices removed during the recess of the Senate. Date. Name of officer. Location of office. State. Remarks. April 5, 1849............... John Gardner......................... Winnamac........................................ Indiana.............................. April 7, 1849............... Thomas Tiger............................ Fort7Wayne................... Indiana............................... April 12, 1849........ i... J. II. McBride........................... Springfield.......................... Missouri........................................ April 12, 1849............... Abraham~ Edwards..................... Kalamazoo........................................... Michi-an.......................................... April 14, 1849.............. John F. Reed............................ Jeffersonville......................... Indiana............................................ May 8, 1849................. John Bruton.............................. Clarksville............................. Arkansas..... May 8, 1849................ John Miller............................ Batesville........................... Arkansas............................. May 8, 1849................ E. P. Dickson............................. Fayetteville......................... Arkansas............................................. May 8, 1849................. B. P. Jett................................... Washington......................... Arkansas.................................... May 8, 1849.............H... iram Smith........................ Chlampagnole...................... Arkansas................................ ay 8,1849................. Henry L. Bisco..Helena.................................. Arkansas................................ aM y 8,1849................. S. B. Farwell............................. Dixon................................... Arkansas............................................. May 9,1849................ B. R. Cowherd........................... Jackson.............................. Arkansas.............................. May 9, 1849................. J. B. Hunt................................. Sault Ste. Marie.. Michigan...................... May 12, 1849................ J. W. Rush................................. Crawfordsville....................... Indiana............................... May 12, 1S49................. J. S. Mayes................................ Vincennes.............................. Indiana................................ May 18, 1849................. C. D. Strickland, jr.................... Greensburg,.......,...............................,, LIouisiana........................................... May 18, 1849................ Bernhart Hlenn......................... Fairfield....................................... Iowa...................................... May 18, 1849................. Charles Neally......................... Iowa City......................Iowa................................................... May 18, 1849................. Warner Lewis....................... Dubuque................................. Iowa........................................ May 21, 1849................. J. W. Barrett............................. Springfield........................................ Illinois. May 21, 1849............... John Barlow.............................. Genesee................................ Michigan................................ May 24, 1849................. Alerrt W. Parris........................ Mineral Point................................... Wisconsin................................ May 31, 1849................ Elisha Taylor............................ Detroit................................ Michigan............................... June 4, 1849............... D. P. Richardson..................... Monroe....................................... Louisiana................................ June 4,1849............... M. McIntire.............................. Opelousas.......................................... Louisiana......... ~t.............................. June 4,1849............... J. C. Sloe.................................... Shawneetown.........................Illinois. June 11, 1849............... Thomas J. Hodsonn..................... Tallahassee......................................... Floridida................... June 14, 1849............... George H. Walker..................... Milwaukee..................................... Wisconsin................................ June 14, 1849............ Hugh P. Caperton..........:.......... Lebanon............................................. Alabama..................... June 25, 1849............... John Taylor.............................. Defiance....................................... Ohio.................................... June 25, 1849.............. R. K. McLaughlin..................... Vandalia........................................ Illinois.. July ~ ~ ~ e 12, 1849.Lewis S. Marti.. 18kw Oleans.. Luisiana J~uly 12, 1849................. L~ewis fSt. Marrlin........................ NJ~w Orleans................................,.... Louisiana............................................r~ July 12, 1849................. Benjamin Sherman.................... Ionia....... Michigan........................................ July 12, 1849................. William E. Russell............. Danville-..................................... Illinois............................................ * ~~STATEMENT-Continue'd. Date. Name of officer. Location of office. State. Remarks. July6 84...16,.... a1849exndr.Harmon...... PlstnAlexander..............Palestineioi.............llinoi............ July27 84...27,.....Sm1849me.Samuel...... unc...........o.......cs.....Quincylnis..........llinoi.............. October,189....10,Na 1849Bltn.Nat.......hanielois......Bolton.........Indianapolis........Indiana................ October,149........10,b ramn1849........Jacob Ksksia..Freaman...........Kaskaskialios.Illino....................s... October,149........10,kinCan1849........Franklinon..........Cannon..........Jacksonsui.Missour..................... November 189...... Wli1,M 1849..........William...........Mc....ai........Fayetteu.Missour...................... October,180........13, 1859. Arh...........anson........Sa.....tmars...........Cahaaaba........Alabama.......... October,80....... 13, Gaam.1850.......D..... B.goer Graham..........Montgomerylbaa.Alabama..................... June3,81....13,...LaF1861Mohe.La.........ayetteug........Mosher...........Roscburg..............Oregon.......... July 14, 1855..........E. W. Martin................Elba...........................Alabama....................... July 24, 1855..........W. P. Davis.................Danville......................Illinois......................... October 185........ 2,yL.Bs1855........Henry. een....L......B....sco.......HelenaArasa.Arkansas.................... March6186...26,... i1856. Fielding........... olmbsI......Dowsing.........Columbusisisipi.Mississippi................ April 3, 1857..........Deidrick Upson..............Winona.........................Minnesota...................... March 19,........ eoge1857et....George..... SnkW.id.Sweet........Sank.......Rapidst.Minnes...............ta.... March 20, 1857........ James H. Birch..............Plattsburg........Missouri........................ March 28, 1857........J. 0. Henning...............H ud s on.Wisconsin...................... September 85.....Abe22,Smth.1858.......Abner.Foes CC.....Smith........Forest.... MnnCity.......M...nnesota......... April6159......1...Sue Cak8.........Samuel... ucann..Clark.........Buchanan.....Minnesota........................ May 3, 1859..........Daniel Shaw................Superior........................Wisconsin....................... Septeember 6....Jon c 19,.......1860.......John........Mc.......ery.......Monroesina......Louisiana............. April 1, 1861.......... V. T. Galloway..............Eau Claire......................Wisconsin...................... April 9, 1861..........Ira Munson.................San Francisco....................California......................... April 181.......9,...H1861..................P.Vsai.Hart............isa.......ia.California........................ April 9, 1861... s MatthewKllr................. Ls ngKeller.........Los......Angeleslfo.California.................... April,86.....9,....1861m.William............ umoMte....anie.......s...Humboldt.California......................... May 9, 1861..........J. H. Bennett................Chatfield........................Minnesota...................... May1 15, 1861....... Peter ie..................Whiteete......Marquette..Mihia.Michigan.................... April 2, 1861..........Isaac W. Griffith......Des Moines..............Iowa.......................... April,86.....2,.... 1861.Hils..Lewis.. Cuni S.fs..Hills.........Council.Ioa.......Bluffs.........Iowa....... April 2, 1861..........J. M. Stockdale..............Fort Dodge......................Iowa.......................... ApriI 2, 1861..........S. P. Yoemans...............Sioux City......................Iowa.......................... April 9, 1861..........E. 0. F. Hastings.............Marysville......................California....................... April 9, 1861..........A. C. Bradford...............Stockton........................California....................... April 1081.........1861cW.SmtIsaac.......W.....Smithi.Olympia.................shingtonshigtn eriTerritory.......... April 15, 1861.........Charles S. Benton............La Crosse.W......................Tisconsin...................... April5161......15,..JmeC 1861........James... edesoC......Dow.......Henderson..Mssur.Missouri.................... April 18, 1861.........Jesse Mernu.................Fort Scott.......................Kansas......................... April818 Jms.18,s....1861.......James E.............Jones.........LeKcompton............Ka.....sas..... April218......22,....Dv1861Cran....David.......MeH.a....Curran...........Menasha............Kansas. 1....... April6 26,..........S18e61. Samuel............B.JnciGarrett.........Junctiona........City......Kansas........ April 26, 1861.........John A. Parker..............Omaha.........................Nebraska:...................... April0181....3.... 0 P1861rso.0........P......Richardson..............Santa...... NwFexco.New......Mexico......... May 3, 1861..........Henry L. Brown.............Bonneville......................Missouri....................... MayM181.30,......1861n.Warren..............SH.nfel Graves..........Springfield.Missouri.......................... June3,86...13,....Bn1861Jnnns.Ben.......aminr-o it Jennings............Oregon Oegn....City.......Oregon......... June22 22,.. eogeM 1861.........George. n Meois.......ut.....I....d.....nIdina.o..........Indiana........... Augst7,8ust 7, 186Ihoas:ak:....:..............Chllcohe...................s.........khe. C....i.....icot......e...O...io... September 161...... Wl9,mE.K1861......William. pr E.ed......Keeper........Springfieldlnos.Illinois................... March 18. 1866..1 C. NV. Boardman.............Booneville..............Missouri........................ Septembcr 26. 1866.. Sim ona Jones.................NersaCt...................Newbrraa.Luskana....................... Se'cpmer24tcrnbc..R.C.Drg24,.....1.....6...H....ECt.agnDr.....gg........East......Saginaw...........Michigan.......... Octobcr185.........5,D is................S....Siu T......D....vis.Sioux....... ow......City.....Iowa............ Octobcr 27, 1866. ~~G. W. Martin............ Junction City..........Kansas....... Ncoveber 57, 1866.C..... H. DosyBonvleNbanska......................... The above dates are those upon which the successors of the above-named persons were appointed. Receivers of Public Afoneys removed during the recess of the Senate. Date. Name of officer. Location of office. State. Remarks. March 28, 1849........Joihn G.oinson.L............. renBanon......................Wsosn.....Albm.................... March 30,1849.......- J.G esn...ElsaMro.G...........Free Bayne.....W..................Iscnsiana........................ April 7, 1849.......... JamD.G. Nraelso.Fort........... WIdaynepls...................... Indiana........................ April 7., 1849....... Ja.. Micesl P. sl Drk.Indi......... aanapolis.......................Indiciana....................... April 12, 1849..........Thomas Dyer................Chicago........................... Illinois......................... May 8, 1849...........'W. Adams..................Clarksville.........i............... Arkansas....................... May 8, 1849..........DJCamn...D.J hpa.............Batesville.........................Arkainsas....................... May 8, 1849........... Matthew L eeper.............Fayetteville...................... Arkansas........................C May 8, 1849..........F any...DT.Wte.W............. hmashngone......................Arkansas........................ May 8,.........1849ore.efres...George.........HJeifries........Hel...........na....Aknss.........Arkansas............ May 8, 1849..........JhDo nt...JonDmn..............Dixon............................Illinois......................... May 9, 1849........... W. W. Leland...............Pontotoc......................... Mississippi...................... May 9, 1849........... David C. Glenn..............Jackson.......................... Mississippi...................... May 92, 1849...........PasehaetW BEquete.Mine........ ralwPorsint..................... WIscnsiana........................ May 12, 1849.......... Samuel Wise................Vincennes........................ Indiana..... May 18, 1849.......... Theodore Gillespie............Greensburg........................ Louisiana........ May 18, 1849.......... Verplanck Van Antwerp.......Fairfield......................... Iowa............: May 18, 1849..........Genorgoe M.ler.Dubuque.......... ow iy.......................... Iowa............ May 21, 1849..........A Geog MHerdnry.Springfi....... ubqeld..........................Iliois............... May 31, 1849...........John Parsdons.N............ ewmansvi....e.....Florida... May 24, 1849...J. A. Helfenstien. M~~~~~~ringiwuee........................ WIlisconsin......... June 41, 1849.........Jh asn...............BratonParis. S awneetown.....I............... llorisa......................... June 24,1849.......... J. H. Wefestbrook........... Colwumbus.....M.................. ississippi...................... June 14, 1849.........BrxoPars............. hwnewn...Frederick........Hall.....lolinia.....Mcia...................... June 25, 1849.........J.Wsbok...W.L edro.Defiance... Clmu........................ isispi.....Ohio................. June 30, 1849......... Samuel Leech...............Stillwater........................... Minnesota...................... July 12, 1849.......... John B. Filhiol..............Monroe.......................... Louisiana....................... July 27, 1849..........Hiram Rodgers..............Quincy........................... Illinois........................ August 95, 1849..... Nicholas M B. Smithr.Spri........... Ngfcitceld..................... MLoissouri....................... August 25, 1849........ Daniel Ashby...............Clinton........................... Missouri........................ STATEMENT-Continued. Date. Name of officer, Location of office. State. Remarks. October 149 10,1849. L.. R. l.....................Davll.Noel..............Dan......vilnos...e....Illinoi............... October,189.....10,Jon.1849o.John....... EwGdsileCameron..............EdwardIlinis..........e...Ill.....n...i..... December 189......H1,.Paf1849.......H.....WewOrePaifrey............New.....Orleansa.Louisiana................... September 4, 1855.....James Larkins...............Elba...........................Alabama....................... October 8. 1855........A. S. Bryant.................Sioux City.......................Iowa.......................... October 10, 1855.......J. C. Clarborne...............Batesville........................Arkansas........................ September 13, 1856.... Tifomas C. Shoemaker........TertyofKna.............. August 19, 1858.......E. B. Dean..................Superior.Terr..................... itcorysof Kansas.................... September 86.... hr19.hr 1860s.Christopheroro...............H.....Dobbs.......LoMonroe........Louisiana........... September 86.... oh D21,1860.........John...FoesD.ty..Evans..........Forest..... ineCity......Minnes...ota......... April,181....1,.....1861.Pekis.John.......E... auPerkins.............Eau.....Clairecnsn.Wis...........onsin........ March 30, 1861........J. H. MeKenny...............Chatfield........................Chatfield....................... June3,86...13.... Wl1861.Mrtn.William...... osbugJ......Martin...............oseegnhurg........Oregon......... March0181.....30,.Thma e1861.......Thomas..Chlicth M......u......y......Chi...Ohol....co.....h......Ohio....... April 2, 1861..........Isaac Cooper.................Des Moines......................Iowa.......................... April 2, 1861..........A. H. Palmer................Council Bluffs....................Iowa.......................... April 2, 1861..........Tbomas Sargent..............Fort Dodge......................Iowa.......................... April 2, 1861..........Robert Means...............Sioux City.......................Iowa.......................... April,86.....9,....J1861Hpkn.Joseph..........MHopkins.............Marysvi......lCliorie....California.............. April 9, 1861..........Thomas Baker...............Visalia.........................California....................... April 9, 1861.........George W. Hook..............Humboldt.......................California....................... April,86....9,.... 1861uti.Augustin............ LOAlivera..............es....Angelesifrna.California.................. April,18 t...9,....1861sha.BquttPaschal.........Bequettesc...........San.....Franciscoioria.......California............ April 9, 1861..........W. B. Norman...............Stockton........................California....................... April0,186 10,.....1861. J S.Va CeM....S....Van. OyCpaleare.......Olympia....... Washingtonigto TrrtoTerritory......... April,161.......15,C Gahm.1861........C.......Graham..............Henderson.Missouri............................ November 160..... b10,rWare 1860......Ebenezerete.......Warren...........Marquetten.Michigan.................... April 22, 1861.........Samuel Ryan................ Menasha........................Wisconsin...................... April6 161...26,.... F1861PttrsnF....n.....ey..JnPatterson...............Junction K City.................ansas....... April 26, 1861.........George J. Clark...............Fort Seott.......................Kansas......................... May2,161..24, A Sre1861.......W......A..SataStreet.............Santa....... FwMeio.New......Me.....ico...... May 18, 1861.... J. Rush Spencer..............Bayfield........................Wisconsin....... May 20, 1861..........E. E. Buckner................Boonville.......................Missouri....... May 30, 1861..........Thomas J. Bishop.............Springfield......................Missouri............ June 11, 1861.........George E. Greene.............Vincennes.......................Indiana........................ June 13, 1861.........A. L. Lovejoy.................Oregon City.....................Oregon......................... May 27, 1861..........C. B. Smith...................Brownsville.....................Nebraska....................... June2, 86.22,.....1861le.Charles...........C.IniaCampbell..............ndianapolis.............Ind.....ana..... September 9, 1861.....A. G. llerndon................Springfield......................llinois......................... October 161.....5... o1861M.Johnd............. MMcha....e.....and.......Menas...hasonin.Wisconsin............. JulyO,183.30,.....1863akln.Franklin...........Stewarta.it..........ebraska.. ebasa City......Nebraska....':... March6184.....16,. JhnGr18r....4...Jobn........Greiner..............Santa.........Fe MxioNew......Mexico.......... Sete be tembcr...... 18,ll...1866........... SB.lud..Mitchell.............St..... Clouda.......Minnes.........ta.... September 86......18,rlnd.1866......J.... BonileMc.......rl....nd.....Boon....Misiri...e...Missouri.......... September 166..... 24,1.1-.1866s....W............Nebasa iWaters.........Nebraska....NerakCity......Nebraska........ March30185 30,...... 1865. Charles..............A. CouGi......man.......St......Cloud.Minnesota................. Tib. ol-r r~f- tr.h' fl nqn onn which the successors of the above-named persons were appointed. Receivers of Public Moneys removed during session-T of the Senate, that body advising and consenting to the appointments of their successors. Date.. Name of officer.. Location of'office. State. Remarks. July 31,1852................. Henry Acker.................... Sault Ste. Marie................................. Michigan............................................. December 22,1857........ Harvey Whittington................ Plattsburg.......................................... Missouri.............................................. May 17,1858................ J ames P. Downer..........g............ Kansas................................................ June 3,1858................ Edwa rd Conner.......................... Springfield.......................................... Illinois............................................... December 22,1858........ E.B. Dean, jr............... Superior..............................................Wisconsin........ March 8,1859............... Rob ert J. Graveriat............. Marquette........................................... Michigan............................................. January 16,1859.........John C. Turk.................... Dakota City......................................... Nebraska............................................ February 14, 1860......... Thomas C. Hunt................. Natchitoches....................................... Louisiana............................................ February 14,1860......... Milton H. Abbott...................... Cambridge.......................................... Minnesota.......................................... May 28, 1860................ S amu el L. Hayes....................... St. Cloud............................................. Minnesota.......................................... January 16, 1860.......... Dave Shaw................................. Superior.............................................. Wisconsin......................................... March 18, 1861............. Peter F. Wilson......................... Omaha................................................. Nebraska............................................ March 25, 1861.............. Oscar A. Sterens............ Traverse City............ Michigan............................................ March 25,1861............. W. L. P. Little................... East Saginaw...... Michigan............................................. March 23,1861.............. Benjam in F. Tillotson............... St. Peter............................................. innesota.......................................... March 23,1861.............. A lbert G. Ellis........................... Stevens's Point................................... innesota.......................................... March 23, 1861.............. W.H. Mower.............................. Sunrise City........................................ Minnesota.......................................... March 25, 1861.............. Henry J. Wilson................. Ionia...................................................Michigan............................................. March 27,1861.............. Jam e s D. Reynolds.................... Falls St. Croix.................................... Wisconsin............................................ March 27, 1861.............. Samuel E. Adams................ St. Cloud........................................ Minnesota................... July 19,1861................ Theodore Rodolf....................... La Crosse.......................................... Wisconsin........................ July 22,1861................ John J. Turnbraugh.................. Ironton...............................................Missouri.............................................. July 16. 1861................. Natha niel B. Holden................. Warsaw...............................................Missouri.............................................. March 6, 1862............... Richard C. Vaughn............... Nebraska City... Nebraska............................................ March 12,1863............. James Compton................. Marysville............. California............................................ January 26 1864......... George E. Briggs....................... Roseburg............................................. Oregon............................................... June 7, 1864..... B. F. Reynolds..............F... alls of St. Croix................................ isconsin........................................... May 4. 1866............... John Griemer................... Santa F6....................................... N ew Mexico...................................... July 14,1866....... Alfred H. Carrigan....................Washington......................................... Arkansas............................................. The above dates are the dates of confirmation by the Senate. Registers of Land Offices removed during session of the Senate, tfat body advising and consenting to the appointment of their successors. Date. Name of officer. Location of office. State. Remarks. March 14, 1849.............. Joel S. Fiske.............................. Green Bay......................................... Wisconsin............................................ July 31, 1852................. Andrew Bac kus.......................... Sault Ste. M arie.................................. March 12, 1857.............. Deidrich Upman........................ Faribault............................................. Minnesota........................................... April 14. 1858............... Robert Brown............................ Des Moines......: Iowa................................................... May 17,1858................. F redwick Emory........................ Ogden.............................................. Kansas................................................ May 17, 1858................. W. H. Doak.......................... Fort Scott.......................................... Kansas.............................................. June 3,1858.................. J. ush Spencer....Hudson Wisconsin............................................ June 3, 1858................. J oh n Connelly, jr....................... Springfield....................................... Illinois............................................... June 15,1858................ W.W. Gift................................. San Francisco................................... California........................................... March 1,1859............... A.C. Smith................................. Forest City.......................................... Minnesota........................................... February 14,1860......... John B. Cloutier........................ Natchitoches......Louisiana............................................ March 23,1860.............. Charles F. Hyerman.................. Detroit Michigan............................................. March 25, 1860.............. Jacob Barns........................... Traverse City.............................. Michigan......... March 25, 1860............. Moses B. Hess............... East Saginaw........................Michigan........ March 27, 1861............. Orpheus Everts.......... Falls St. Croix.................................... Wisconsin............................................ March 23,1861.............. Josh ua B. Culver........................ Portland..............................................Minnesota........................................... March 23,1861.............. Oscar Taylor.............................. Otter Tail City................................ Minnesota.......................................... March 23,1861.............. Hugh Brawley............... Steven's Point..................................... Wisconsin........................................... March 23,1861.............. Henry N. Setger........................ Sunrise City........................................ Minnesota........................................... March 27,1861.............. Thom as E. Massey..................... Forest City........................................... Minnesota........................................... March 27, 1861.............. J. D. Cruttendon........................ St. Cloud............................................. Minnesota........................................... March 25, 1861.............. John C. Blanchard.................... Ionia...................................................Mi........ March 27, 1861.............. Samuel Plume r....................... St. Peter... Minnesota........................................... July 19,186 1................. Charles S. Benton....................... La Crosse.................................... Wisconsin............................................ March 6, 1862............... Adolph Renard.......................... Recorder of land titles, St. Louis........ Missouri.............................................. March 31, i862............. G eo rge W ebster......................... Stockson.............................................. California........................................... July 17,1862................ W.W. Lewis.............................. Batesville........................................ Arkansas............................................ March 9,1865............... D. H. Ball................................... Michigan............................................. February 10,1868......... Joseph W. E dw ards................... Marquette...........................................Michigan............................................. The above dates are the dates of confirmation by the Senate. ,Surveyor Generals removed during recess of the Senate. Date. Name of officer, Location of office. Remarks. April 11, 1849............... Robert 1ititler.........................Florida................................ May 8, 1849.................. William Peiham....................... Arkansas............................................................ May 9, 1849............P. F. Landry......................... Louisiana............................................................ June 14, 1849...... F. R. Conway................... Illinois and Missouri............................................... March 22, 1859.............. John S. Zieber.Oregon................................................................ April 3, 1861................ John Lougbb h..................LogboonhIllinois and Missouri............................... April 15, 1861..........J. W. Mand'eville...................... California................................................................ April 29,1861.H. B. Burnett.Kansas and Nebraska.................. May 11, 1861...............Warner Lewis........................ Iowa and Missouri... June 13. 1861...............W. H. Chapman....................Oregon.. March 16. 1865........Daniel W. Wilder............Kansas and Nebraska....................... Surveyor Generals removed during session of the Senate, that, body advising and consenting to the appointments of their successors. Date. Name of officer. Location of office. Remarks. March 3. 1855.........George Milbourne.............Arkansas.................................. March 27, 1861........Charles L. Emerson...........Minnesota................................ July 22, 1861. A. P. Wilbar.................New Mexico............................... July 15, 1861. James Tilton............Washington Territory........................ March 13, 1863-:......Francis M. Case...Colorado.................................. Februatry 23, 1864......Edward F. Beale......... California..................................( May 22, 1866........ George D. Hill..............Dakota............................... July 15, 1861........ Samuel C. Stambaugh.........Utah................................Miiscellaneous Removals. Date. Name of officer. Office. Remarks. July 23, 1849..........S. H. Laughlin............ Recorder of General Land Office.''During recess. July 1, 1849..........William Mediii............... Commissioner of Indian Affairs....:..:During recess. April 7, 1849..........Charles Douglas...............Commissioner of Public Buildings...............During recess. April 5, 1849..........C. P. Sengstack...............Warden of the penitentiary, District of Columbia- During recess. May 9, 1849...........Edmond Burke...............Commissioner of Patents.D.................... uring recess. November 10, 1850.....James L. Edwards.............Commissioner of Pensions.D.................. uring recess. August 12, 1865.......Robert Beale.................Warden of the jail.D......................... uring recess. September 7, 1865..... N. C. Towle............ U... Register of deeds, District of Columbia..........During recess. November 3, 186......Z. C. Robbins................. eiro ils, District of Columbia...........During recess. October 21, 1862.......S. J. Dallas...................Principal clerk of surveys General Land Office....During recess. June 29, 1850.........Jonas B. Ellis.................Warden of the penitentiary, District of Columbia Senate consented to appointment of successor. March -, 1853........Luke Lea....................Commissioner of Indian Affairs................Senate consented to appointment of successor. December 23, 1859.....Thomas Thornley.............Warden of the penitentiary, District of Columbia. Senate consented to appointment of successor. March 19. 1861........Joseph S. Wilson..............Commissioner of General Land Office............Senate consented to appointment of successor. July 20, 1867..........Thomas B. Brown.............Warden of the jail, District of Columbia.........Senate consented to appointment of successor. 456 FREDERICK W. SEWARD sworn and exam- Answer. Running"subjettotheconditions inm~~~~~~ed. ~prescribed by law." ~~~By Mr. CURTIS: ~Question. Is this appointment of vice conQuestion. State what office you hold under sul made temporarily to fill a vacancy, or how ~~the Government ~? ~otherwise? Answer. Assistant Secretary of State. Answer. It is made to fill the office during Question. How long have you held the the period which necessarily elapses in the time that it takes for the news o the vacancy to Answer Sine arch, 1861. reach the Department for a successor to be Answe. Sice Mrch, 1861. itd Question. In whose charge in that Depart- ppointed. ment is the subject of consuls and consular Question. That is for a succeeding consul to and vice consular appointments? be appointed? y general supervision. Answer. For a succeeding full officer to be Question. Please state the practice in mak- appoin. Sometimes a ing appointments of vice consuls in case of months may elapse before the news can reach n, incapacity, or absence this country, and a similar period before the ofedeath, cosus? gntininewly-appointed successor can reach the post. Question. It is, then, in its character an ad ~IAnswer. Usualwy?interim appointment'to fill the vacancy Mr. Manager BUTLER. Stop a moment. Answer. Yes. Is not that regulated by law? Mr. CURTIS. That is a matter of argu- Cross-examined by Mr. Manager BUTLER: ment. We think it is. Question. Is there anything said in their Mr. Manager BUTLER. So do we. There commissions or letters of ~cannot be any disputeon that question. their being ad interim Mr. CURTIS. Now we are going to show Answer. Their letter o the pratice uner the aw. ICAnswer. Their letterofapitetsy tepatcun the law. " subject to the conditions prescribed bylaw." Mr. Manager BUTLER. Different from the Question. That is the only limitation there ~~~~~~~~law? ~~is? Mr. CURTIS. Just as we have done in Answer. That is the only limitation I reother cases. I have a document here to offer, member. but it requires some explanations to make the Question. Are not these appointments made docu nt intelligibe. linder the fifteenth section of the act of August Mr., Manager BUTLER. We do not object 18, 1856? if the offer is to show the practice under the Answer. I think the act of 1856 does not law. create the office nor give the power of appointMr. CURTIS, (to the witness.) Proceed, if ment, but it recognizes the office as already in you please,' Mr. Seward. existence, and the power' as already in the,The WITNESS. When the vacancy is fore. President. seen the consul'nominates a vice consul, who Mr. Manager BUTLER. We will see about enters upon the discharge of his duties at )once that in a moment, sir. during the time that the nomination is sent to Mr. JOHNSON.. Has the Manager the the Department of State. The Department statute before himY approves or disapproves when it receives *ie Mr. Manager BUTJJER. I have. nomination. In case the vacancy has not been Mr. JOHNSON. What is the volume? foreseen and the consul is dead, absent, or Mr. Manager BUTLER. The volume is the sick, unable to discharge the duties or to desig- 11th Statutes-at-Large. This statute beginison~ nate his temporary substitute, then the minister page 35 of the 11th Statutes-at-Larg~e; but the in the country will make a nomination and fourteenth and fifteenth sections are those that send that to the Department of State; or if relate to the matter. The fourteenth section I there be no minister, the naval commander will read, for I want to ask~ some further ques-'Will not infrequently make a nomination and tions in regard to it: send that to the Department of State, and the "That the President be, and he is hereby, authorvice consul so designated will act uintil. the ized to define the extent of country to be embraced Department shall approve or disapprove. In within any consulate or commercial agency, and to othe caes te Dpartentitself will designate prvide for the appointment of vice consuls, vice other cases the Departmentcom~mercial agents, deputy consuls, and consular a vice consul without any previous nomination agents therein, in such manner and under such regof either minister, consul, or naval commander, ulations as he shall deem proper; but no compensa-, * ~~~~~~~~~tion shall be allowed for the service of any such vice and he enters 1upon the discharge of his duties consul or vice commercial agent beyond nor except in the same manner. out of the allowance made by his act for the principal Question. How is he authorized or corn- consular officer in *hose place such appointment missioned? ~~~~~~~~shall he made; and no vice consul, vice commercial missioned? ~~~~~~~~~agent, deputy consul, or consular agent shall be apAnswer. He receives a certificate of his pointed otherwise than in such manner and under appointment signed by the Secretary of State. such regulations as the President shall prescribe Question. Running for a definite time, or prun otepoiin fti c. how? [To the witness.] Now, sir, in the Depart. 457 ent of State, have they ever undertaken to Mr. EVARTS. And filled during the session. make a vice consul against the provisions of Mr. Manager BOUTWELL. That we do ~~~~this act ~? ~not know anything about; when they were filled. The WITNESS. I am not aware that they It does not appear that they didnot happen ~~~~ever have.~ ~ ~during the recess. LQuestion. Or attempted it in any way? Mr. EVARTS. The certificate is to the Answer. Not that I know of. effect that they were filled during the session Mr. CURTIS. I now offer from the Depart- of the Senate. ment of State the document Lhold in my hand, Mr. Manager BINGHIAM. We do not pro which contains a list of consular offices ap- pose to settle the law of the case now. pointed during the session of the Senate when The CHIEF JUSTICE. The Chief Justice vacancies existed at the time such appoint- does not understand the honorable Managers mets were made. The earliest instance of it as objecting to the reception of this document in this list is in 1837, and the latest one does in evidence. not come down to the law whichthe honorable Mr. Manager BOUTWELL. We do not Manager has read. They are all prior to that object to the paper. I only give notice how we law, and after the year 1837: propose to treat it, on the face of the paper, as [The document was haded tothe Managers not showing that the vacancies happened during ~~for examination.] ~the session of the Senate. Mr. CURTIS. I was mistaken in a date. The document is as follows: I thought the honorable Manager read the date UNITED STITES OF AMERICA of the law as 1866. Department of State: Mr. Manager BUTLER. Eighteen hundred To allto whom these presents shal come, greeting: and fifty-six. August 18, 1856. I certify that the document hereunto annexed Mr. CURTIS. Then there are some which contains a list of consular officers appointed during the session of the Senate, where vacancies existed at aresubseqenttothelaw. Theybegin in 1837, the time such appointments were made. and they come down to about 1862, if I re- In testimony whereof I, William H. Seward, Semember rightly. I have not examined it retaryof Stateof the UnitedStateshavehereuto subscribed my name and caused the seal of the D ~~~~~~~minutely.~ ~partment of State to be affixed. Mr. Manager BUTLER. There was a prior Done at the city of Washington, this 11th day of tatuthwas partly revived in the E. s] April, A. D. 1868, and of the independence of was partly revived in the [L S.] the United States of America the ninetylaw of 1856. second. WILLIAM H. SEWARD. Mr. Manager. BOUT WELL. Mr. Chief Justice, I wish to call the attention of the Henry C. Bridges, appointed vice consul at Kincounsel for the respondent to the fact that itKinCnaMy16184ontersgtonf W Breck, consul. does not appear from this paper that these D. Thurston,;appointed vice consul general atMonvacancies did not happen during the recess of treal, May 31, 1864, on the death of J. R. Giddings, the Senate. It merely states that they were consul general. A. Duff, appointed vice consul. at Demerara, 7th filled during the session. As these were offices January, 1865, on the death of C. G. Hannah, consul. existing in remote countries the probability is Georg6 W. Healy, appointed vice consul at Bomthat the vacancies happened during the recess bay, December 28, 1861, on death of L. H. Hatfield, of the Senate. Robert Bayman, appointed vice consul at Funchial, Mr. CURTIS. It does not iappear when March 24, 1864, on death of G. True, consul. the vaancieshappeed~ Th purpoe for E. Bremt, appointed vice consul at Hanover, Feb.the vcances hapene!. Te purose or rary 18, 1861, on the resignation of J. M. Holton, which we offer the evidence is to show that consul. these temporary appointments were made to Alexander Thompson, appointed vice consul genfill vacancies during the session of the Senate. eral at Constantinople, January 7,1860, awaiting the arrival of M. M. Smith, appointed consul general. Mr. Manager BO UT WELL. I only wish to Bernardo J.,Arcanques, appointed vice consul at give notice that we treat them as cases where Bayonne, April 19, 1,856, on resignation of John P. vacancies happened during the recess of the Jseph Ayton, appointed vice consul at CarthaSenate, i4 being perfectly understood that, ena, February 20. 1838, on the resignation of J. M. according to the practice, vacancies hapenn V1cPherson. consul. durng herecssof the Senate mgtbe fled Thomas V. Clark, appointed vice consul at GuayaThereis noquil, December 31,1857, on resignation of M.P. Gaine, during the session of the Senate. Teeinoconsul. evidence to the contrary in the papers. A. Lacombe, appointed vice consul at Puerto CaMr. EVARTS. We understand, then, that to LgJuany~ra.~S ntetanfro.H oh the Managers hold that a vacancy that happens John Gardner, appointed vice consul at Rio Jain, the recess may be filled during the session neiro, September 15, 1839, on the removal of J. M. Baker. without sending a nomination to the Senate. H. F. Fitch, appointed vice consul at Pernambuco, Mr. Manager BOUTWELL. No. April 13, 1860. on death of W. W. Stepp. Mr. EVARTS. I thought that was what you August Peixoto, appointed acting consul, December 7, 1864, on the removal of Thomas F. Wilson, stated. Is it not your proposition? consul, at Bahia. Mr. Manager BOUTWELL. I only give Samuel G. Pond, aponted actin consul at Par&, nmtice that on that record we propose to treat December 2, 1862, on the death of 1V. H ilas vacacieshappnin durng te reess Robert H. Robinson, appointed acting vice consul these as aace apnn uigtercs at Montevideo, March 12, 18,5, on resignation of R. of the Senate. M. Hamilton. 458 Amory Edwards, appointed acting consul atBuenos Mr. EVARTS. Is objection made to this? As, December 28,1840, on death of Slade. Mr. Manager BUTLER. Yes, sir; and be iliam L. Hobson appointed vice consul at Val- fore we speak to the objection I should like to araiso, July 17, 1, on resignation of George G. tore we speak to the obj e a Wobson. I~~~~~~~ask the witness to fix ths George B. Merwin appointed vice constfl at Val- carefully araso, December 5,1854, on the resignation of lReu-. Een Wood. Mr. EVARTS. He has stated it exactly; W. H. Kelley, appointed vice consul at Otaheite, about noon. [December 31,1848. Mr. iawes not having exequatur. The WITNESS. About twelve o'clock on th D. B. Van Brundt, appointed United States consul d at Acapulco May 261860, by Flag Officer Montgom- 22d of February BL nken. By Mr. Manager BUTLE Question. How close to twelve, before or worn and examined. aow c after? ~By Mr. EVART~~S~: Answer. I should think it was a little before Question. You are now Secretary of the twelve o'clock. I will state a circumstance or ~~~~~~Navy? ~two. The Attorney General was there when I ~~~Answer. I am. ~went in. While I was there the nomination of Question. At what time and from whom did Mr. Ewing was'made out for Secretary of you receive that appointment? War, and was delivered to the Private Secre Answer. I was appointed in March, 1861, by tary to be carried to the Senate. ~Abraham Lincoln. Mr. Manager BUTLER. Stay a moment. Question. And have held office continuously Let us see what time he said that was. ~~~until now? ~Mr. EVARTS. It is not time for cross Answer. From that date. examination now. Question. Do you remember on the 21st of Mr. Manager BUTLER. No; but I sub February last your attention being drawn to mit, Mr. President, it is time for cross-examsome movements of troops or military officers? ination upon the question whether the thing is Answer. On the evening of the 21st of Feb- admissible in order to ascertain the time. At ruary my attention was called to some move- one point of time it may be, while at another ments that were being msade. point of time it clearly is not admissible. Question. How was this brought to your Mr. EVARTS. It is quite immaterial, if ~~~~attention ~?. you will go on and get through. Answer. My son brought it to my attention. Mr. Manager BUTLER. Quite immaterial He had been attending a party at which there what point of time? had been an application from a son of Gen- Mr. EVARTS. Immaterial whether you eral Emory, I Pthink, and from one or two cross-examine now or hereafter. others, for any officer belonging to the fifth regi- Mr. Manager BUTLER. I only want to fix ment or under the command of General Emory it. [To the witness.]I You think it was very to repair forthwith to headquarters. near twelve? Question. Your son had observed that and The WITNES9. About twelve o'clock. had reported it to you? Question. Could it have been as early as Answer. He reported that to me. half past eleven? Question. Did you, in consequence of that, Answer. No, sir; I do not think it was. seek or have an interview with the President Question. But between that and half past of the United States? twelve some tim'e? Answer. I requested my son to go over that Answer. Yes, sir. evening; but he did not see the President. Question. Within that hour? Mr. Manager BUTLER. Stay a moment. Answer. Yes, sir. We object to what was said. Mr. Manager BUTLER. Now, our objecMr. EVARTS. He says he sent his son, and tion-~ his son failed to see the President. His at- Mr. EVARTS., Now Iwill proceed with my tempt was first to send a message. qetions, if you please. He ITNSS I as otwell,ancolnt Mr. Manager BUTLER. Very well., go myself. Mr. EVARTS. How far have we got' now? By Mr. EVARTS: Let the answer on this point as far as it has Question. You attempted to send a message gone be read, Mr. Stenographer. that night? The CHIEF JUSTICE. The stenographer Answer. I did. will read what is desired. Question. State what happened on the fol- D. F. MURPHY, one of the reporters for the' lowing day? Globe, read from the short-hand notes of Mr. Answer. On Saturday, the 22d, I went my. Welles's testimony, as follows: self, in the morning or about noon, to the Presi- " On, Saturday, the 22d, Iwent myself in the morndent on that subject. I told him what I had ing or about noon to the President on that subject. heradasked him what it meant-~ I told him what I had heard; asked him what it heard, and ~~~meantMr. Manager BUTLER. We object to that "Mr. Manager BUTLER.. We object -to that conconversation. versation." The WITNESS. Very good. Mr. EVARTS. Very good. 459 The CHIEF JUSTICE. If the question be ward; but of that I am trying to make myself objected to the counsel will please reduce it to certain by an examination. ~~~writing. ~The CHIEF JUSTICE. The Chief Justice Mr. Manager BUTLER. We object to any thinks the evidence is competent. It will be conversation of the President at that time. for the Senate to judge of its value. He will, Mr. EVARTS, (to the witness.) Whatpassed however, put the question to the Senate if any between you and the President after that in Senator desires. [After a pause.] You will regard to that communication which you had proceed, Mr. Welles. ~~~made to him? Mr. EVARTS. You will be so good as to Mr. Manager BUTLER. Wait a moment. answer the question, Mr. Welles. The Chief Justice desired the question to be The WITNESS. I should like to have it read. ~~put in writing~. The CHIEF CLERK. The question is: Mr. EVARTS. That is being done now. What passed between you and the President after The question was reduced to writing, and you made that communication and in reference to read by the Secretary, as follows: that communication? What passed between you and the President after The WITNESS. I cannot repeat the words, you made that communicoation and in reference to perhaps, exactly; but yet I should think the first ~that communication? words of the President were: I do not know Mr. EVARTS. I would state, Mr. Chief what Emory means;" or I do not know what Justice and Senators, before any argument is Emory is about." I remarked that I thought commenced on this subject, if there is to be he ought to know; that if he was summoning one, that this evidence is offered in regard to high officers at such a time the evening before the article that relates to the conversation it must be for a reason, and it was his duty, I between the President and General Emory. thought, to send for General Emory, and to inMr. Manager BUTLER. That is precisely quire into the facts. He hesitated somewhat. as we understand it, Mr. President; but we We had a little conversation, and I think he said also understand the fact to be that General that he would send for him. He either said he Emory ad been sent for before Mr. Welles would send for Emory or that he would send appars on the scene. That is why I was and inquire into this. I think he said he would anxious to fix the time. I am instructed by send for him. That was about the coversamy associate Managers, and we are now en- tion. davoring to get the matter certain, that Gen- By Mr. EVAPTs: eral Emory received a note to come to the Question. Now, Mr. Welles, I will call your President's at ten o'clock in the morning, and attention to the 21st of February of this year at that he got there before even the Secretary of the time of the close of the Cabinet meeting On the Navy. But, however that may be, he was that day. At what hour was the Cabinet meetcalled there beoe; we cannot at this moment ing held on that day, Friday, the 21st of Febascertain exacl how that is; but it does' not ruary? appear, at any rate, that this conversation was Answer. At twelve. Twelve is the regular before Emory was sent for. hour of meeting. Mr. CURTIS. We shall see about that. Question. That is theeusual hour and that is Mr. EVARTS. That is part of the matter the usual day for Cabinet meetings? of proof that is to be considered of when it is Answer. Yes, sir. Tuesdays and Fridays.all in, as to which is right in- hours and which Question. Did you at thattime have any interin facts. view with the President of the United States Mr. Manager BUTLER. The cquestion of at which the subject of Mr. Stanton's removal what was said in the conversation is not to be was mentioned? considered as proof which was right in fact. I Answer. I did. suppose my learned opponents would not claim Question. At about what hour of the day. that if this was before General Emory came was that? there they have a right to put in the testi- Answer. I cannot fix it. It must have been, mony..perhaps, in the neighborhood of two o'clock. Mr. EVARTS. It is precisely in that view Question. Had you, up to that time, heard that we offer it. of the removal of Mr. Stanton? Mr. Manager BUTLER. I should have said Answer. I had not until the close of Cabinet subsequent. business that day. Mr. EVARTS. I beg your pardon. Question. When the Cabinet meeting was Mr. Manager BUTLER. I made a mistake closed this interview took place at which the as to the comparative date for which I am very subject was mentioned? glad that you corrected me.'If it was subse- Answer. The President remarkedquent I suppose the gentlemen would not Mr. Manager BUTLER. Stop a moment. claim that it could be admitted. Therefore Mr. EVARTS, (to the witness.) You need it must appear affirmatively that it was before not state now what it was the President said; in order to make it competent. That is my but that is the time he made the communicapropstion. It does not appear affirmatively tion? totohvse been before, and I think it was after- The WITNESS. Yes, sir. 460 ~By Mr. EVARTS: Mr. Manager WILSON. Before theysepQuestion. What passed between you and the arated. President at that time? Mr. EVARTS. Before the meeting broke Mr. Manager BUTLER. We object to that. up. It was in the Cabinet meeting not yet The CHIEF JUSTICE. Counsel will please broken up. reduce their question to writing. Mr. Manager BUTLER. W have the honor Mr. EVARTS. I will state what I propose to object to this. ~~~~to prove. IThe CHIEF JUSTICE. The Secretary will Mr. CONNESS. I move that the Senate read the proposition so that it can be heard take a recess for fifteen minutes.,, by the Senate. The motion was agreed to; and at the expi- The Secretary read the offer, as follows: ration of the recess the Chief Justice resumed We offer to prove that on this occasion the Presi~~~~~the chair. ~dent communicated to Mr. Welles and the other Mr. EVARTS. Before presenting in writing members of his Cabinet, before the meeting broke t ue that he had removed Mr. Stanton and appointed teqsinhcwaobcetI tThomas obSecretaryted to I wish to Gene ral Thomas Seertary ask one or two preliminary questions of Mr. that upon the inquiry by Mr. Welles whetherGeneral Thomas was in possession of the office the President the further. [To the wit- replied that he was; and upon further question of ness.] idthe sident proceed to make Mr. Welles whether Mr. Stanton acquiesced the any communication to you on this occasion President replied that he did all that he required concerning the removal of Mr. Stanton and the was time to remove his papers. appointment of General Thomas? Mr. Manager BUTLER. Mr. President and Answer. Yes he did. Senators, as it seems to us, this does not come Question. Was this before the Cabinet meet- within any possible proposition of law to renIng ad broken up; or at what stage of your der it admissible. It is now made certain that ~~~meeting was it? ~this act was done without any consultation of Answer. We had concluded the depart- his Cabinet by the President, whether that mental business and were about separating consultation was to be held verbally, as I when the President remarked - think is against the constitutional provision, or Mr. Manager BINGHAM. You need not whether the theory is to be adopted that the state anything he said. President has a right to consult with his CabiMr. EVARTS. It was then that he made net upon questions of his conduct. I should the communication, whatever it was? hardly have dared, perhaps, to speak upon this The WITNESS. At that time he made the question of constitutional law with any con communication. fidence, except so far as to bring to the mind Question. Who were present? of the Senate that the President has no right Answer. I believe all the Cabinet were pres- to call upon his Cabinet save through the conent. Perhaps Mr. Stanbery, the Attorney stitutional method, were I not borne out in it General, was not. He was a good deal absent by the opinion of Jefferson. Early in the Govduring the session of the Supreme Court. ermient he took the same view that I have Question. All were present, unless it be Mr. heretofore had the honor incidentally of stating Stanbery, you think? to the Senate. There seems to be good reason Answer. I think so. for it, because the heads of Departments were Mr. EVARTS. Now, Mr. Chief Justice and in the first place never expected to be a CabiSenators, I offer to prove that communication net; there were but three of them. There has and submit it in this form: been a gradual growing up of this practice. We offer to prove that on this occasion the Presi- The Consti tution wisely, for good purposes, dent communicated to Mr. Welles and the other required that when the President wanted the members of his Cabinet, before the meeting broke UP, advice of any one of his principal officers he that he had removed Mr. Stanton and appointed Gieneral Thomas Secretary of War ad interim, and should ask that advice iii writing, and it should that upon the inquiry by Mr. Welles whether Gen- be given in writing, so that it should remain eral Thomas was in possession of the office the Presi- for all time exactly what the advice was which dent re lied that he was; and upon further question of Mr. Welles whether Mr. Stanton ac uiesced the he received, and exactly the point made. President replied that he did; allthat~ -e required And the reason of that was, there had been was time to remove his papers, an attempt in the various trials of impeachis that objected to? ment of members of cabinets to put in the Mr. Manager BUTLER. Yes, sir. In refer- fact of the order of the king to the cabinet, or ence to this question I want to call the counsel' s the advice of various members of the cabinet attention to the state of the fact. I understood to each other. That had been exploded in the Mr. Welles said that after the Cabinet meeting Earl of Danby's case. That question used to broke up- arise under that state of facts before courts of Mr. EVARTS. No. I have put that ac- impeachment, but our fathers evidently did not cording to the fact. You were out, I believe, mean that it should arise here. when it was brought out. It was after they had But that is not this case, and I have only adgot through what he calls their departmental verted to this to make the clear distinction: business, but before the meeting broke up, that whatever may be the character of the act of the President made the communication. removal of Edwin M. Stanton and the act of 461 a inment of Lorenzo Thomas, I am glad So, too, I wish no misunderstandin as to that it is now made quite certain by the testi- the situation of the member the mony of the Secretary of the Navy (who de- toward the President, as being still in their ares he never heard of it until after it was Cabinet meeting with unfinished, unadjourned done) that it was not done by the advice of the counsel. I think the honorable Manager is a Cabinet; that the President was solely respon- little in difficulty on that point from having an sible for it; and upon that, his own sole respon- impression beyond the case as it was left by sibility, he acted. Now, the question is, after the witness when he left the stand before the he has done the act, after he has thought it was recess, and not attending to the differences successful, after he thought Mr. Stanton had made by his answers to my questions since he yielded the office, can he, by his narration of returned, mydesire being to get at the precise what he had done and what he intended to do, fact. * shield himself before a tribunal from the con- Now, then, it stands thus: that at a Cabint sequences of that act? Is it not exactly the meeting held on Friday, the 21st of February, same question which you decided yesterdayby when the routine business of the different Dealmost unexampled unanimity in the case of partments was over, and when it was in order Mr. Perrin and Mr. SELYE, the member of for the President to communicate to his CabiCongress, on that same day, a few minutes ear- net whatever he desired to lay before them, the er or a few minutes later. They offered in President did communicate this factof the reevidence here what he told Mr. Perrin and moval of Mr. Stanton and the appointment of what he told Mr. SELYE; they complicated it General Thomas ad interim, and that thereby the fact that Mr. SELYE was a member of upon his Cabinet officers inquired as to the Congress; and the Senate decided by a vote posture in which the matter stood, and as to which indicated a very great strength of opin- the situation of the office and of the conduct ion that that sort of narration could not be of the retiring officer. Here we get rid of the ~~~~~~~put in. ~suggestion that it is a mere communication to Now, is this any more than narration? It a casual visitor which made the staple of the was not to take the advice of Mr. Welles as to argument yesterday against the introduction what he should do in the future, or upon any of the evidence as to the conversation with Mr. question; it was mere information given to Perrin and Mr. SELYE. We now present you r. Welles or to the other members of the the communication made by the President of Cabinet after they had separated in their Cabi- the United States while this act was in the very net consultation, and while they were meeting process of execution, while it was yet, as we together as any other citizens might meet. It say in law, infieri, being done. would be as if, after you adjourned here, some. It being in fteri, the President communicates question should be attempted to be put in as the fact how this public'transaction has been to the action of the Senate because the Sen- performed and is going on, and we are entitled ators had not left the room. Again, I say it to that as a part of the res gestce in its sense of was simply a narration, and that narration of a governmental act, with all the benefit that can his intent and purposes, his thoughts, expecta- come from it in any future consideration you tions, and feelings, are to give to the matter as bearing upon the I do not propose to argue it further until I merits and the guilt or innocence of the Presihear something showing why we are to distin- dent in the premises. It bears, as we say, guish this case from the case of Mr. Perrin, on directly upon the question whether there had which you voted yesterday. Mr. Perrin tells been any other purpose than the placing of the you that on the 22d he waited for the Cabinet office in a proper condition for the public sermeeting to break up, and as soon as it broke vice according to the announcement of the up he went in with Mr. SELYE, and then the President as his intention when he conversed President undertook to tell him. You said with General Sherman in the January precedthat was no evidence. Now, when he under- ing; and it negatives all idea that at the time took to tell Mr. Welles is that any more evi- that General Thomas to Mr. Wilkeson or to the deuce? I cannot distinguish the cases, and I Dakota delegate, Mr. BuRLEIGH, was saying or desire to hear them distinguished before I suggesting anything of force, the President was attempt an answer to any such distinction, the author of, or was responsible for, his stateMr. EVARTS. Mr. Chief Justice and Sen- ments. The truth is, it presents the transacators, certainly nothing has'yet proceeded from tion as wholly and completely an orderly and the mouth of' this witness which has shown peaceful movement of the President of the that the act of removal of Mr. Stanton or of United States, as in fact it was, and no evidence appointment of General Thomas had taken has been given to the contrary, ofany occurrence place without previous advice from the Cabi- disturbing that peaceful order and as the situnet. However that fact may be, nothing as ation in which its completion left the matter in yet has been said to show it. All that has the mind of the President up to that point Qf been proved is that Mr. Welles had not before time. that heard of the fact that he had been re- Mr. CURTIS. Mr. Chief Justice, I desire moved. That is all as it now stands. I merely to add to what my colleague has said a very correct that impression for the moment. few observations of a slightly different charac 462 ter from those which he has addressed to the to the executive power is to be exercised by the unSenate. We are anxious that this testimony controlled will of the Presidt. Acting upon the bnow offered should e distinguished in the clause of the Constitution which empowers the President to call for the opinions in writing of the heads ~~appreh~ension of the Senate, as it is in our own, of Departments, Washington the first President, from an offer of advice, or from the giving of commenced the practice of talng their opinions in t to the President. We separate consultation; and he also, upon imprtant occasions, assembled them for oral discussion in the do not place our application for the admission form of a council. After having heard the reasons of this evidence upon the ground that it is an and opinions of each he decided the course to be act of giving advice by his councilors to the pursued." President. We place it upon the ground that And I may mention here in passing that if this was an official act done by the President Senators have the curiosity to look into the himself when he made a comnmunication to his history of the period they will find that the councilors concerning this change which he latter course was pursued by General Washhad made in one of their number; that that ington, especially toward the close of his first was strictly and purely an official act of the and during his second administrations on very President, done in a proper manner, the sub- important occasions, one of the most romiject-matter of which each of those councilors nent of which was the difficulty with the rench was interested in in his public capacity, and minister, M. Genet, and the course that was which it was proper for the President to make pursued by the Government growing out of known to them at the earliest moment when those complications. The author proceeds: he could make such a communication. "The second President, Mr. John Adams, fllowed Now, I wish to say a word in respect to the substantiallythesamepractice. ThethirdPresident, Mr. Jefferson, adopted a somewhat different practice. ccncil, in reply to the re- When a question occurred of sufficient magnitude to marks of the honorable Manager concerning require the opinions of all the heads of Departments ights and powers of t he called them together, had the subject discussed, and a vote taken, in which he counted himself hut as t to them. I understand one. But he always seems to have considered that the honorable Manager to have rested his views he had the power to decide against the opinion of his stitutional character of Cabinet. That he never or rarely exercised it was thoscercouncingltheorstiionwhat herudersd owing partly to the unanimity in sentiment that preon what he understands vailed in his Cabinet and to his desire to preserve to be Mr. Jefferson's opinions and practice. that unanimity, and partly to his disinclination to I wish to bring before the Senate, in this the exercise of personal power. When there were andsomewtheat e inadvanc f the differences of opinion he aimed to produce a unaniconnectionan ewhat in advance of the mous result by discussion, a - question which will presently arise respecting ceeded. But he admit at this practice made the advice given by these officers, the practice Executive, in fact, a directory." of this Government concerning such a coun- And then r-eferences are given to Mr. Jefferoil; and I beg to refer the Senate, in the first son's works in support of this statement. The place, to a passage from the Federalist. In author does not continue to speak of the subits commentary upon that provision of the sequent practice of the Government, as that, Constitution which enables the President to no doubt, was considered to be very familiar, require the opinion in writing "1of the princi- his purpose being merely to point out the pal officer in each of the Executive Depart- origin of these two practices; the one being ments upon any subject relating to the duties that the members of the Cabinet were called of their respective offices" -I read from Daw- together and a consultation held, and then, as son'7s edition of the Federalist, pages' 516-17. the result of that consultation, the President Mr. JOHNSON. What is the number? decided; the other practice be~in that a vote Mr. CURTIS. Number 73. The author, was taken in the Cabinet, the President himin the first place, quotes what I have'read self ordinarily counting as one in that vote, from the Constitution, and then makes this but always understanding that he had the remark, and passes from the subject as requir- power, if he thought proper to exert it, to deing no further discussion or examination. cide the question independently of the votes "This I consider as amereredundancyin the plan; of the Cabinet. That, I understand, has conas the right for which it provides would result of tinned to be the practice from Mr. Jefferson's itself from the office." time to the present day, and including all the Mr. JOHNSON. That is by Mr. Hamilton. Presidents who have intervened during that Mr. C URTIS. That is Mr. Hamilton. Now, period. in respect to the practice of this Government, I have made these remarks, because they and particularly the practice of Mr. Jefferson, seem to me to have an application, not merely in its relations to what had preceded under to the testimony now offered, but to other eviother Presidents, I beg leave to refer to Mr. dence which we shall have occasion to present G. T. Curtis's History of the Constitution, vol- to the Senate subsequently. They are pertiume 2, page 409, note: neat to the question now under consideration, "Those who arenot familiarwiththeprecise struc- for they go to show that, under the Constituture of the American Government will probably be tion and laws of the United States, as pracsurprised to learn that what is in practice sometimestiedobyvryPsdnicligGnra called the' Cabinet' has no constitutional existence as a directory body or one that can decide anything. Washington and Mr. Adams, Cabinet ministers:Thie theory of our 4lovernment is, that whit belongs were assembled by them as a council for the 463 purposes of consultation and decision; and, of Mr. Stanton, Was carried out by the President, dourse, when thus assembled, a communication he sending to the Secretary privately-semade to them by the President of the United cially, I should say, rather than privatel States concerning an important offioial act sending to the Secretary specially the fact that fwhich was then eri, in process of being there hac been sueh removal, and the Secreexecuted and not yet completed, is itself an tary, as we have proved by Mr. Creecy, inofficial act of the President, and we submit to formed his subordinates as the act of March the Senate that we have a right to prove it in 2, 1867, the tenure of civil office act required. ~~that character. ~If I am right, Senators, and there is no A reference has been made by the honorable official duty on the President to inform his Manager to attempts which have sometimes Cabinet, whether in session or out of session, been made in England by ministers to defend whether just as they broke up or after they themselves under the orders of the king. had got through the routine of business, or at Everybody who understands the British con- any other time, as to such a proceeding on his stitution knows that that is in the nature of the part, then I undertake to say it is not an official Gvernment an absurdity. The king is not act; it is an act required by no law, by no responsible; the ministers are; and therefore practice, so far as it is in evidence here, and by ny order which the king gives contrary to law no duty. is executed by his ministers on their own re- Now, then, what is offered? He had done sponsiility, and not upon that of the sovereign. the act. While the counsel took exception to In the United States it is wholly otherwise; the my stating to the Senate that it was in evidence responsibility is on the President; but among that this was not a consultion of the Cabinet, other responsibilities which it involves is the that the Cabinet had never consulted upon the responsibility to seek and weigh and consider removal of Mr. Stanton in the manner and the advice which it is proper for him to receive. form in which it was done, and that was fairly Mr. Manager BUTLER. Mr. President, I to be gathered from Mr. Secretary Welles'stestishall not pursue the discussion as to whether mony, yet, I observe that he did not te to advice given by the Cabinet to the President the Senate that the Cabinet ever was consulted would be competent, because it is agreed by with upon the question of removing Mr. Stan-'the counsel for the President last up that this ton in manner and form as it was done; and was neither to get advice, nor was there any- whenever he or anybody does state it, I have thing in the nature of advice. the President's declarations, which I can prove, It is said that it is an official act. I had that it was not so. Therefore, I assume it supposed up to this moment-ay, and I sup- never will be stated. pose now-that there is no act that can be Now, then, what is offered? Stanton has called an official act of an officer which is not been removed by the act of the President; and an act required by some law or some duty im- thereupon, without asking advice-because that posed upon that officer. Am I right in my is expressly waived by the learned counsel last ideas of what is an official act? It is not addressing us-not as a matter of advice, the every volunteer act by an officer that is official. President gives information. Now, how can Frequently such acts are officious, not official. that. information be evidence? How can he An official act, allow me to say, is an act which make it evidence? The information is required the law requires, or a duty which is enjoined by no law, was given for no purpose to carry upon the officer by some law, or some regula- out any official duty, was the mere narration tion, or in some manner as a duty. Will the of what the President chose to narrate at that learned counsel t~ell the Senate what constitu- time. tional provision, what statute provision, what More than that, sir; it is said that this must practice of the Government requires the Pres- prove the case of the President;i and the gravity ident at any time to inform his Cabinet or any with which it was argued by both counsel shows member of them whatever that he has removed the importance they place upon it. It is-said one man -and put in another, and that that this must prove the case of the President, beother man* is in office? If there is any such cause it proves that then he had no idea of law it has escaped my attention. I am not using force. I should have no objection to aware of it. grant that at that moment he had no idea of The only law that ever has been made on using force, because he at that time supposed this subject is the' law of March 2, 1867, which that Mr. Stanton had yielded the office, and requires the President to inform one member there was no occasion to use force. of his Cabinet, to wit, the Secretary of the Therefore he had no idea of force. at that Treasury, when he suspends an officer, and moment of time, if he told the truth. He says, then requires the Secretary of the Treasury to " Stanton is out and Thomas is in; and it is inform the accounting officers of the Treasury, all settled."I Then he did not mean to use so that that suspended officer shall by no acci- force. But what did he mean to do in case dent get his salary. Up to that time there Stanton resisted, as Stanton did resist? That never was any law requiring any such informa- is the question for the Senate. What did he tion, and that law is a special one for a special contemplate? What h~ad been in his mind? purpose; and, in the case of the suspension of General Sherman lets it out here that he and 464 the President said somethingaboutforce. Gen- part of the action of the President, with preeral Sherman uses the word "force." Where vious testimony that had been given as to what did he get that idea? Sherman, with great his expectation was would happen on the part tcaution, says, I agree that I do not know of Mr. Stanton when he should make an order that he said anything from which I got the idea for his removal, as made known to us in the of force; so that I could say what he said, or testimony of General Sherman; and I cannot that he said anything from which I had a right consent to that testimony being either misconto infer it. But he said somethingfrom which ceived or misrepresented. That witness said Sherman did infer it, and he put the word "something was said about force, and then the force" here before you of his own free will President said there will be no occasion for and accord. It bore on his mind; and when that, because Mr. Stanton will retire;" and in the learned Senator [Mr. HowARD] asked what answer to the question of the honorable Seforce was meant, what did the President say ator from Michigan as to what was said about about force, Sherman said-I give the sub- force the witness assumed to himself that all stance now-" I cannot say what he said that that was said about force, all that ad the idea would justify me in using the word'force.'" of force in it, proceeded from himself in the The record is before you, Senators. You will form of his question as to what would happen correct me if I am wrong; but I think I am in case Mr. Stanton should resist or refuse, exactly right in substance. and then, not only by an absolute exclusion That testimony being in, and other testi- of the idea that the President used any words mony, how does the President's narration, of force from his, the President's, mouth, or after he thought Stanton had given up the raised a notion that there might be n opporofice peaceably, (when, if I may use a com- tunity or occasion for force, proceeded to say, mon phrase, he was chuckling over the fact to with that precision which marked all his rehis Cabinet that he had got possession of the flective and deliberate testimony, The Presoffice easier than he expected to do,) form a ident did not convey to my mind any idea that piece evidence in this case? How can it be force was to be used." put in Senators u may think this piece of The CHIEF JUSTICE. Senators, the evidence, and peas you in some of your Chief Justice thinks that this evidence is decisions have proceeded upon that hypoth- admissible. It has, as he thinks, important esis-I have no right to know, but I trust with- relation to the res gesta, the very transaction out offense'I may suggest it-you may think which forms the basis of several of the articles that this particular piece of evidence does not of impeachment, and he thinks it also entirely weigh much, and that, perhaps, it is best to let proper to be taken into consideration in formit in because it does not weigh much. But the ing an enlightened judgment upon the intent counsel on the other side think it weighs heav- of the President. He will put the question to ily, for both of them argue it with great care. the Senate if any Senatordtesires it. I say you may put it upon that ground; but it Mr. CRAGIN. I ask for the yeas and nays lays the foundation for other information, other upon it. If it is in order I will ask that the declarations to the other members of the Cab- offer to prove made yesterday in.the case of mnet; and I do not know where you can stop; the witness Perrin may be rend. and whenever you attempt to stop you simply The yeas and nay's were ordered. involve yourselves, I respectfully submit, in an The CHIEF JUSTICE. No debate is in. inconsistency, that you ruled in what was said order. The Secretary will call the roll. to Mr. Welles and refused to rule in what was Mr. CONNESS. The Senator from New said to Mr. A or Mr. B thereafter; for it is Hampshire calls for the reading of a question. impossible, in my judgment, to distinguish the The CHIEF JUSTICE. What question? cases. Mr. CONNESS. The question proposled to As yet I have not heard any legal distinction be put yesterday to another witness, which between the case of Perrin and the case of was then voted upon. Welles, between what was said to Perrin and The CHIEF JUSTICE. The Secretary will what was said to Welles. The only distinction rend the question. is, that one was a Cabinet officer and the other The Chief Clerk being unable to find the was not; but is that a legal distinction, when written offer yesterday submitted, they themselves admit that it was not sub- M.MngrBTE.Hr steGoe mitted to the Cabinet officer for the purpose of You canareadi ro B That. HrsteGoe asking advice, or for any like purpose? It is The ChiefeClerk read thea ferttroei a mee peceof nfomatin. or o t cytop the case of the witness E. 0. Perrin, yesterthere. They then propose to put in what the dy rmteGoe sflos President thought he would do. That is the dy rmteGoe sflos offer. Now can that be evidence? Can you "We offer to prove that the President then stated that he had issued an order for the removal- of Mr. distinguish it from the cause of Perrin yester- Stanton and the employment of General Thomas to day; 1 mean by any legal distinction? Perform the duties ad interim; that thereupon Mr. Mr. EVARTS. Mr. Chief Justice and dSen- Perrin said,'Supposing Mr. Stanton should oppose I conectd tis pece f eidene, wichthe order.' The President replied,'There is no danators, Icnetdtipicofeiecwchger of that, for General Thomas is already in the I suppose may rightfully be introduced as a office.' He then added,'It is only a temporary 465 arrangement; I shall send in to the Senate at once President, not in relatin to the removal of a good namefor the office."' Mr. Stanton, as the Chief Justice understood Mr. CONKLING. What was the time it, but in relation to the immediate appoint referred to in that question? ment of a successor by sending in the nominaMr. SUMNER. What was the vote of the tion of Mr. Ewing. The question to-day re~Sncu~ate on that? ~lates to the intention of the President in the The CHIEF JUSTICE. The Secretary will removal of Mr. Stanton; and it relates to a read the vote of the Senate on that subject. communication made to his Cabinet after the The SECRETARY. On this question the yeas departmental business had closed, but before wr9anthnas37. the Cabinet had separated. The Chief Jus Mr. TRMBUEL.I should like to know Mr.TUBULI. I should liketoknow tice is clearly of opinion how the Senator from Massachusetts voted the transaction, and that it is entirely proper upon it. [Laughter.] to take this evidence into consideration as TheCHIEFJUSTICE. TheSecretarywill showing the intent of the President in his read, in answer to the question, the vote in acts. The Secretary will call the roll. ~~~~~full. ~Mr. MORTON. I should like to hear the Mr. SHERMAN. I object. All this is in proposition read. I was not in. the nature of argument. The CHIEF JUSTICE, (to the Secretary.) The CHIEF JUSTICE. The Chief Justice Read the proposition. thinks it all out of order; but lest there The Chief Clerk read as follows: might be some misapprehension he did not We offer to prove that on this occasion the Presi~~interpose,.~~ ~dent communicated to Mr. Welles, and the other members of his Cabinet, before the meeting broke Mr. HOWARD. I should like to hear a up, thathe had removed Mr. Stanton and appointed word further from the counsel for the accused General Thomas Secretary of War ad ineri; and the subjects embraced in the questions that, upon the inquiry by Mr. Welles whether Genieeupesti~ons~ eral Thomas was in possession of the office, the Preswhich I send to the desk and ask the Secre- ident replied that he was; and upon further questary to read before I vote on the question under tion of Mr. Welles, whetherMr. Stanton acquiesced, ~~~~~con~sideration. ~the President replied that he did; all that he required was time to remove his papers. ad as follows: n whidef Cler reaide e flows The question being taken by yeas and nays, neevidenetheounselfor resulted-yeas 26, nays 23; as follows: accused now offer meet any of the allegations contained in the impeachment? YEAS-Messrs. Anthony, Bayard, Buckalew, Cole, How does it affect the gravamen of any one of the Conkling, Corbett, Davis, Dixon, Doolittle, Fessencharges? den, Fowler, Grimes, Hendricks, Johnson, MCreeryr Morton, Patterson of Tennessee, Ross, Saulsbury, Mr. EVARTS. The Senators will perceive Sherman, Sprague, Sumner, Trumbull, Van Winkle, that this question anticipates a very extensive Vickers, and Willey-26. fiel ofinquryfirt asto hatthe ravmen NAYS-Messrs. Cameron, Cattell, Conness, Cragin, fied o inuir, frstas o wat he ravmenDrake, Edmunds, Ferry, Frclinghuysen, Harlan, of all these articles is;. and secondly, as to Howard, Howe, Morgan, Morrill of Maine. Morrill what shall -finally be determined to be the of Vermont, Patterson of New Hampshire, Pomeroy, limits of law and fact that properly press upon Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, the issues here; but it is enough to say, prob- NOT VOTING-Messrs.Chandler, Henderson, Norably, as we have every desire to meet the ques. ton, Nye, and Wade-5. tion with all the intelligence that we can com- The CHIEF JUSTICE. On this question mand, at the present stage of the matter, the yeas are 26, and the nays are 23. without going into these anticipations, that it Mr. CHANDLER, (who had just entered' bears upon the question of the intent with which the Chamber.) Mr. President-~ this act was done, as being a qualification of The CHIEF JUSTICE. It is too late. The the act in the President's mind at the time he result has been announced. The yeas have it; announces it as complete. It bears on the and the'question is admitted. conspiracy articles, and it bears upon the Mr. EVARTS, (to the witness.) Please eleventh article, even if it should be held that state, Mr. Welles, what communication was the earlie~r articles, upon the mere removal of made by the President to the Cabinet'on the Mr. Stanton and the appointment of General subject of the removal of Mr. Stanton and the Thomas, are to cease in the point of their in- appointment of General Thomas, and what quiry, intent, and all, with the consummation passed at that time? of the acts. The WITNESs. As I remarked, after the Mr. Manager WILSON. A question was departmental business had been disposed of, asked by a member of the Senate as to the the President remarked, as usual, when he has date of the conversation between the Presi- anything to communicate himself, that before dent and Mr. Perrin. That was on the 21st; they separated, it would be proper for him to but a few moments after the conversation be- say that he had removed Mr. Stanton and tween the President and Mr. Welles. appointed the Adjutant General, Lorenzo The CHIEF JUSTICE. The Chief Justice Thomas, Secretary ad interim. I asked will restate to the Senate the question as it pre- whether General Thomas was in possession. sents itself to his mind. The question yes- The President said he was; that Mr. Stanton' terday had reference to the intention of the required some little time to remove his writC. T. -31Y 466 ings, his papers. I said perhaps, or I asisked, the advice of the Cabinet about. One of them "Mr. Stanton, then, acquiesces." He said consumed most of the time that day. he did, as lie understood it. Mr. Manager BUTLER. The poit, Ibelieve, Question. Was it a part of the President's is as to what took place there? answer that all he required was time to remove By Mr. EVARTS: ~~~~~~his papers? ~Question. This civil-tenure act was the subAnswer. The President made that remark ject of consideration there when I inquired in relation to possession, that Answer. It was submitted. he merely wanted time to remove his papers- Question. How was it brought to the attensome private papers and matters, I think. tion of the Cabinet? Question. Was the time at which this an- Answer. By the President.'nouncement of the President was made in ac- Question. As a matter of consideration in cordance with the ordinary routine of your the Cabinet? meetings as to such matters? Answer. For consultation for the advice and Answer.. It was. The President usually the opinion of the members. communicates after we have got through, Question. How did he submit the matter to Question. After you have got through of the your consideration? several departmental affairs? Mr. Manager BUTLER. If that involves Answer. Yes, sir; he then states what he anything that he saidhas to communicate. Mr. EVARTS. Yes, it does. Question. Now, sir, one moment to a matter Mr. Manager BUTLER. Now, we should which you spoke of incidentally. You were like to have, so that we may not discuss this there the next morning about noon? matter in the dark, the offer put in writing; ~~Answer. I was. ~but we object to anything that took place in Question. Did you then see the appointment the Cabinet consultation, and in order to have ~~~of Mr. Ewing? ~this matter brought to a point, we desire to ~Answer. I~ ~ did. ~have the offer of proof put in writing. nQuestion. Was it made out before you came Mr. EVARTS. We will put the whole matthere, or after, or while you were there? ter in writing. vAnswer. While I was there. The offer was reduced to writing and read Question. And you then saw it? by the Secretary, as follows: ~~~~Answer. I saw it. ~We offer to prove that the President at a meeting Mr. JOHNSON. What time of the day was of the Cabinetwhile the billwas before the President that? ~ ~ ~ ~ ~~~~~~~fo is approval, laid before the Cabinet the tenureAhat? ~~~~~~~~~~~~of-civIl-office bill for their consideration and advice The WITNEss. It was about twelve. The to thve President respecting his approval of the bill; Attorney General was there and said that he and thereupon the members of the Cabinet then pre3must be at the Supreme Court. He had not ent gave their advice to the President that the bill was unconstitutional and should be returned to Conmore than time to get to the court. gress with his objections, and.that the duty of preparBy Mr. EVARTS: ing a message, setting forth the objections to the conQuestion. Did not the Supreme Court meet stitutionality of the bill, was devolved'on Mr. Seward P and ~~~~Mr. Stanton; to be followed by proof as to what at eleven? was done by the President and Cabinet up to the Answer. I do not know. He had business time of sending in the message. which required him to be at the Supreme Court Mr. SHERMAN. Does that give the date? at twelve o'7clock, I think. He was there up Mr. EVARTS. It gives the date as being to- that time. the time the bill was before them for considQuestion. Did you become aware of the eration. passage of the civil-tenure act, as it is called, Mr. CONKLING. During the ten days at or about the time that it passed Con- succeeding its first passage? gress?.Mr. EVARTS. I omitted the precise date Answer. I was aware of it. because there were two meetings. Question. Were you present at any Cabinet Mr. JOHNSON. Within the ten days, I meeting at which, after the passage of that act, suppose? it became the subject of consideration? Mr. EVARTS. Within the time fixed by Answer. Yes; on two occasions. the Constitution. Question. Who were present, and when wds Mr. Manager BUTLER. I assumed, Mr. the first occasion? President and Senators, for the purpose of the Answer. The first occasion when it was objection, that the'time to which this offer of brought before the Cabinet was on Friday, I proof refers itself is during the ten days be-.think, the 26th February, 1867. It was at a tween. the first passage of the bill by the two Cabinet meeting on Friday. Houses and the time of its return, with the Question Who were present? objections of the President, for redeliberation Answer. I think all the Cabinet were. and reconsideration. Question. Was Mr. Stanton there? Mr. EVARTS. It is so stated. Answer. Mr. Stanton was there, I think, on Mr. Manager BUTLER. Up on this questhat occasion. I might state, perhaps, that the tion I only propose to open the debate in order President said he had two bills which he wanted Ithat my learned friends may be possessed, so 467 far as I may be able to possess them, of the Mr. Manager BUTLER. I am perfectly grounds of our objection. willing to read it; if you will spare me a moThe question is whether, after a law has ment, I will give you the page. [Examining been passed, under the due forms of law, the the official report.] I do notfindit. amcerPresidentcan show what his opinions were, tain, however, it is in one of the messages I and the opinions of his Cabinet, before it was think in the message of December 12, 1867, passed, as a justification for refusing to obey you will find the phrase. I refer to one of the it and execute it. That is the first proposition. messages given in evidence in this case in whi Let me restate it and see if I have made any (and with the leave ofthe counsel and the Senate mistake. It is whether the President can show I will take care that the exact quotation appears his opinions and those of his Cabinet as to the in my remarks,) he says, in substance, thatif consttuionality of a law before the law is Mr. Stanton had informed him that he woul passed, in order to justify himself for refusing not leave upon being asked under this law, he to obey it and execute it after it is passed. would have taken care to remove him before I am not now, in stating this objection, deal- it went into operation, or words to that effect. ing with the vehicle of proof, but with the ques- I say if that unlimited power can be held by the tion whether declarations in the Cabinet can President, then he can always defend himself or cannot be a ode of proof. I ventured to by his Cabinet. Let us look at it in the light say to you, Senators, that heretofore the strug- of another great criminal whom you, sir, may gle has been, on the trial of impeachments, be called upon to try some time or other. I wheth the king's order should sustain the have no doubt he had a Cabinet around him minister; and was somewhat sharply re- by whose advice he candefend himself for most minded how familiar it was to everybody that of the treasons which he committed. I have the king could do no wrong in the eye of the no doubt at all upon that proposition British constitution, and therefore thatt of Let us take it in another view. I have had course, the miisters were responsible. But gentlemen say tome upon this question Why, the question which I brought to your attention would you not allow a military commander, was that the struggle in impeachments in former who should either make a battle or forbear a times was whether the king, not being able to battle, to show that he called a council of do anything wrong, when he gave his express officers and what their advice was to justify order or advice to the minister, could shield him in the case of his refusal to give battle or the minister; and the British Parliament, in ofhis giving battle improvidently." Tothat the Earl of Daby's case, decided that it could answer that I would do so, but I make a wide not, for he produced for his justification the distinction: I would not let any general call order of the king, and that was thought to be around him his staff officers, dependent on his a. great point. iwhang breath for their official existence, and allow Now he ropsiton i, w hainggot a them to show their opinions as a shield for his, king who is responsible, to see if we cannot acts. have the ministers shield the king. That is I do not, as I said, propose by any means to the proposition; whether the advice of the argue this question. I proposed simply when Cabinet ministers can shield the Chief; in other I rose to open the proposition, and I desire to words, whether the Constitution has placed put in a single authority as a justification why these heads of Departments around him as aids I did myself the honor to say that Jefferson. or shields. That is the qutinbeasifthoughit it the better opinion that the constituthat can be done then impeachment is ended tional. right of the Cabinet was to give opinions in this country for any breach of law, for there in writing, and that is the better constitutional will be, no President who cannot find Cabinets principle. IL hold in my hand Story's Coinsubservient enough to. advise him as he wants mentaries on the Constitution, second volume, to be advised, especially if they are dependent and I read the third note. to section -fourteen upon his will, and he cannot be restrained by hundred and ninety-four. law from removing them. If he has this power, "Mr. Jefferson has informed us that in Washingas he said* he had, in a message which is ap- ton's administration for measures of difficulty a conpendd a o~i ofhisexhiits inwhic heals sul tation was held with the heads of Departments pendd a o'n ofhis xhiitsin hichhe lsoeithier assembled or taking their opinions separately says that if Mr. Stanton had told him that he in conversation or in writing. In his own administhought that law was constitutional, he would tration he followed the practice of assemhling the remoed hm beore t wet ino efectheads of Departments as a Cabinet council; hut lie have rovdhmbfritwninoefchas added that he. thinks the course of requiring the then any President can find a Cabinet sub~ser- separate opinion in writing of each head of a Devient enough to him to give hi die n artment is most strictly within the spirit of the advice cn shiel hi heeis anvce end- Constitution. for the other does in fact transform the if that adiecnsil i hr sa n - Executive into a directory."-4 Jefferon'8 Cor-reMr. CURTIS. Allow me to interrupt you, spondence, 143, 144. Mr. Manager, to understand what you are say- I have here, and IL only propose to refer to ing. What message do you refer to? it, in the third volume of Adams's works, in Mr. M1anager BUTLER. Lest I should the apedix an opinion of Mr. Jefferson fur. make any mistake, ptrhaps I had better read it. nished teoGe'neral Washington upon the quesIMr. CURTIS. I only want to know what tion' of Washington's right to~fix the grade of message you refer to. embassadors, the right to. appoint being in the 468 Constitution, and whether the Senate had a ductionofevidenceauthenticinitselfand trustright to negative that grade so fixed by the worthy, to be used and applied according to the President. There is an example of one of final theory of law and fact as the court shall the opinions that President Washington re- adopt it. quired of his Secretary of State as early as _Now, the proposition in this matter on the April 24, 1790, upon this very question of ap- part of the Managers may be stated briefly pointment to office, and we have it now to be thus, as it has often been repeated, that in seen and read of all men; whereas if it had regard to the civil tenure act, if what was done not been for this trial we never should have by the President on the 21st of February, 1868, known what the opinion of the Secretary of in the writing out and delivery of these two the Navy was on this great constitutionalques- orders, one upon Mr. Stanton to surrender, tion. and one to General Thomas to take charge of Before I sit down I will call the attention of the surrendered office, if those two papers make the learned counsel [Mr. Curtis] to. the mes- a consummate crime, then the law imports an sage to which I referred. It will be found on intent to do the thing done, and so to commit the 46th page of the proceedings of this trial, the crime, and that all else is inapplicable and the words are: legally within the purview of an impeachment "If any one of these gentlemen had then said to and its trial as much as it might or would be me that he would avail himself of the provisions of upon a question of a formal infraction of a that hill in case it became a law, I should not have statute under an indictment punishable by fine. hesitated a moment asto his removal." That is one view. It will be for you to determMr. CURTIS. What message is that? ine hereafter whether a violation of a statute, Mr. Manager BUTLER. Of the 12th of however complete, is necessarily a high crime December, 1867, on the suspension of Mr. and misdemeanor within the meaning of the Stanton. It is in evidence, and will be found Constitution for which this remedy of impeachon the 46th page of the proceedings. ment must be sought, and must carry its punMr. EVARTS. We understand that the ishments. Managers have exhausted their opening argu- So, too, it is not to be forgotten that in the ment on this point? matter of defense the bearing of all the cirMr. Manager BUTLER. Yes, sir. cumstances of intent and of deliberation and Mr. EVARTS. The difference, as we un- inquiry and pursuit of duty on the part of a derstood, between the honorable Manager's great official to arrive at and determine what statement of what was contained in the mes- is his official duty, under an apparent conflict sage and what is really in the message, is that between the Constitution and the law, forms he put it upon the President's statement that a part of the general issue of impeachment if it had been pronounced a constitutional law and defense. Our answer, undoubtedly, does by Mr. Stanton he would have removed him. set forth and claim that whatever we have The point of the President's statement was done in the premises has been done upon the that there was a concurrence of all the Secre- President's judgment of his duty under the taries who were appointed by Mr. Lincoln that Constitution of the United States, and after they were not within the law; and if they had that deliberate and responsible, upright and taken the opposite ground there would then sincere effort to get all the aid and light on the have been an opportunity for him to have Cab- subject of his duty that was accessible within inet ministers of his own appointment for the his powers. One of this most important, one law to take effect upon. always recognized as among the most importThe question as stated by the honorable ant of the aids and guides; supports, and deManager is, whether the President can show fenses which the Chief Magistrate of the counhis opinions and the advice of his Cabinet as to try is to have in the opinion of the people at the unconstitutionality of a law as a justifica- large, in the opinion of the two Houses of tion of his refusal to obey the law. That is the Congress, in the opinion even of judicial conproposition on which they rest their argument. sideration, when a case shall properly come Now, Mr. Chief Justice and Senators, this in- before a court, of whether he has pursued his volves more or less the general merits of this duty or attempted to pursue his duty, is the case, as they have, necessarily, perhaps, some- view that these chief officers of the Governwhat anticipated by incidental arguments; but ment (under his constitutional right to call we do not propose to occupy your time with upon them for their opinions, and under the preliminary discussions of what must form a. practice of this Government to convene them very large and important part of the final con- in council for the purpose of arriving at those siderations to be disposed of in this case. It opinions) have given him in regard to the prois enough in reference to the question of evi- posed matter of conduct and duty. deuce when it is introduced in a trial, that it And this matter of evidence here touches should be apparent that the premises of con- that part of the case, and is to supply that porsideration both of fact and of law in the different tion of the evidence of what care, what delibviews that are to be insisted upon, and in the eration, what advice attended the steps of the different views that may be maintained by the President as he proceeded in the stress in court within those premises, permit the intro- which he was placed of the obligation of the 469 Constitution in respect to an act of Congress The motion was agreed to-ayes thirty, noes which had rceived the constitutional major- not counted; and the Senate sitting for the itis of the two Houses in the very matter in trial of the impeachment adjourned until towhich he was called upon to proceed, not by a morrow at eleven o'clock voluntary case assumed by him, but in a matter pressing upon his duty as President in regard SATURDAY, April 18, 1868. to the condct of one of the chief Departments The Chief Justice of the United States took ~~of the Government. ~the chair at eleven o'clock a. m. That is the range of the issue, and that is The usual proclamation having been made the application of thisevidence. That it bears by the Sergeant-at-Arms, upon the issue, and is authentic testimony The Managers of the impeachment on the within the range of the President's right and part of the House of Representatives and the duty to aid and support himself in the per- counsel for the respondent, except Mr. Stanformace of his office cannot be doubted. bery, appeared and took the seats assigned But it is said that this involves matter of them respectively. gave constitutional difficulty, and that if this The members of the House of Representa kind of evidence is to be adduced that will be tives, as in Committee of the Whole, preceded theend of all impeachment trials, for it will be by Mr. E. B. WASHBURNE,.chairman of that equivalent to the authority claimed under the committee, and accompanied by the Speaker British Constitution, but denied, that the and Clerk, appeared and were conducted to the king's order should shield the minister. When- seats provided for them. ever any such pretension as that is set forth The CHIEF JUSTICE. The Secretary will here, that the order of the Cabinet in council read the Journal of yesterday's proceedings. for any act of the President is to shield him Mr. STEWART. I move to dispense with from his amenability under the Constitutiou for the reading of the Journal. trial and dgmentupon his act before this con- Mr. DRAKE. I object. stitutional tribunal, it will be time enough to in- The CHIEF JUSTICE. The Senator from sist upon the argument, or to attempt an answer. Missouri objects. The Secretary will proceed But it is produced here as being a part of with the reading. the conduct of the President, the whole of The Chief Clerk read the Journal of yesterwhos conduct, as it shall be displayed before day's proceedings of the Senate sitting for the evidence, is to furnish the basis in fact trial of the impeachment. fo'ryour judgment and sentence concerning it The CHIEF JUSTICE. At the adjournunder the view of the Constitution and the law. ment yesterday the Senate had under considNor is there any fear that any such privilege, eration an offer to prove on the part of the or any such right, as we call it, should inter- counsel for the President. The offer will now fere with the due power of this tribunal and be read. the proper responsibility of all great officers The Secretary read as follows: of th Govrnmet toit. O thequesions We offer to prove that the President at a meetthat, as we suppose, make up the sum and cata- ing of the Cabinet, while the bill was hefore the logue of crimes against the State within the President for his approval, laid before the Cahiblet general proposition of impeachable offenses, it the tenure of civil office hill for their consideration and advice to the President respecting his approval is impossible that matters of this kind should of the bill;. and thereupon the members of the Cabicome in to play. On freason or bribery or net then present gave their advice to the President offnse inolingturitueand sinning against th at the bill was unconstitutional and should he c~ffensesinvolvingturpitudereturned to Congress with his ohjections, and that the public welfare, no such matters can prop- the duty of preparing a message, setting forth the erly ever come in play. Of course, in some objections to the constitutionality of the bill, was matters of conduct of foreign affairs, if our devolved on Mr. Seward and Mr. Stanton, to he foly lowed by proof as to what was donehby the President Constitution permitted the implication of doubt- and Cabinet up to the time of sending in the message. ful conduct as within the range of treason, The CHIEF JUSTICE. Do the honorable which it 4oes not, it might be supposed that'Managers desire to be heard further? the constitutional advisers might by their opin- Mr. Manager WILSON. Yes, sir. ions support the President in his conduct, if Mr. JOHNSON. Mr. Chief Justice, I wish that was made the subject of accusation. to put a question to the counsel for the PresiBut here it will be perceived that the very dent. matter that is in controversy must be regarded The question was sent to the desk and read, by the court in determining whether this spe- as follows: ciesof eidene i appicabe; nd i detrm- Do the counsel understand that the Managers deny ining its applicability I need not repeat before the statement made by the President in his message so learned a court that the question of its of December 12, 1867, in evidence as given by the weight and force is not to be anticipated. Managers at page 45 of the official report of the trial, that the members of the Cabinet gave him the opinMr. CONNESS. I move that the Senate ion there stated as to the tenure-of-office act; and is sitting as a court now adjourn. [ "No, no."] the evidence offered to corroborate that statement, I will say that I make this motion at request, or for what other ohject is it offered? because this question will be argued at length, Mr. HOWARD. I have a query to propound and it is now late. to the counsel, also. 470 Mr. CURTIS. Mr. Secretary, will you send There is no acceptance here of the issue me that question, please? tendered by the respondent, and in support of The question of Mr. JOHNSON was sent to which he offers the immaterial, incompetent, ~~~~the counsel. ~and irrelevant testimony to which we object. The CHIEF JUSTICE. The Secretarywill The advice which he may have received, and read the question proposed by the Senator from the belief which he may have formed touching ~~~~~~Michigan. ~the constitutionality of said act, cannot be The Chief Clerk read as follows: allowed to shield him from the consequences Do the counsel for the accused not consider that of his criminal acts. Nor can his mistaken the validity of the tenure-of-office bill was purely a view of the Constitution relative to his right question of law, to be determined on this trial by the to re uir th opinions of the heads of the sevenate; and if so do they claim thato reuire the opinion of Cabinet officers touching that question is competent eral Executive Departments upon certain quesvidence by whih the judgmentofthe Senate ought tions aid his efforts to escape from the just ~to be influen~ed? demands of violated law. In his answer to Mr. EDMUNDS, (after a pause.) I inquire the first article he alleges fthethe argument on the part "This respondent had, in pursuance of the Conof the Managers cannot proceed while thegen- stitution, required the opinion of each principal offiltlemen for the defense are considering their cer of the Executive Departments upon this question answers to these questions, which may take of constitutional executive power and duty, and had estions which may take *been advised by each of t he said ~~~~~~~some time? ~Stanton, Secretary for the Department of War, that, The CHIEF JUSTICE. The Chief Justice under the Constitution of the United States, this thinks that the argument on the part of the power of removal] was lodged by the Constitution in the President of the United States, and that, conhonorable Managers may proceed, and that the sequently, it could be lawfully exercised by him, and counsel can reply to these questions in their the Congresscouldnotdeprive him thereof." argument. That course will be taken if there The respondent found no provision in the ~~be no objection. ~Constitution authorizing him to pursue any Mr. CURTIS. That is the course we should such course. The Constitution says the Presprefer, Mr. Chief Justice. We will reply to identhonorable Senator from. a. the question of the honorable Senator from "May require the opinion, in writing, of the prinMaryland, and also to that of the honorable cipal officer in each of the Executi]ve Departments Senator from Michigan in the course of the upon any subject relating to the duties of their reremarks which we desire to address to the spectiveoffices."-Article2,section 2. ~Senate... Noti of his office, not of the legislative deMr. Manager WILSON. Mr. President and partment, nor of the judicial department. Senators, as the pending objection confronts But when did he require the opinions and reone of the most important' questions involved ceive the advice under cover of which he now in this case, I wish to present the views of the seeks to escape? His answer informs us that Managers respecting it with such care and ex- this all transpired prior to his veto of the bill actness as I may be able to command. "1regulating the tenure of certain civil offiTIhe respondent now offers to prove, doubt- ces"UoYhs nwitnoiin n le~ss as a foundation for other Cabinet action that advice he based his veto of said bill and of more recent date, that he was advised by fashioned the character of his message. He the members of his Cabinet that t~he act of communicated his objections to Congress, they Congress upon which rest several of the articles were overruled by both Houses, and the bill to which he has made answer, to wit: "An act was enacted into a law in manner and form as regulating the tenure of certain civil offices," prescribed by the Constitution. He does not passed March 2, 1867, was and is unconstitn- say that since the final passage of the act he tional, and therefore void. That he was so ad- has been further advised by the principal offi*vised he has alleged in his answer. Whether cer of each of the Executive Departments that he was so advised or not we hold to be imma- he is not bound to enforce it. And if he had terial to this case, and irrelevant to the issue done so he would have achieved a result of no joined. The House of Representatives were ossible benefit to himself, but dangerous to not to be entrapped, in the preparation of their Eis advisers, for it will be-borne in mind that replication, by any such cunning devise, nor by the articles charge that he "Idid unlawfully the kindred one, whereby the respondent affirms conspire with one Lorenzo Thomas, and with that he was not bound to execute said act be- other persons to the House of Representatives cause he believed it to be unconstitutional. unknown." He might have. disclosed that The replication says that the House of Repre- these unknown persons were the members of sentatives- his Cabinet. This disclosure might have placed "Do deny each and every averment in said several them in jeopardy without diminishing the peril answers, or either of them, which denies or traverseswhcatedupnisonrdcmn. the acts, int~ents, crimes, orfmisdemeanors chargedwhcatesupnisonrdcmn. against said Andrew Johnson in the said articles It is not difficult to see that the line of deof impeachment, or either of them; and for reislica- fense to which we have directed the present tion to said answer do say that said Andrew.ohn- objection involves the great question of this ~on President of the United States, is guilty of the ae.Itnd'omtermrewihyhn high crimes and misdemeanors mentioned in said arti- cae Itensomtermrewihyhn sles," &c. ~~~~~~a mere resolution of the technical offenseis - 471 which float on the surface of this prosecution. ecutive, and judicial. Of the first the ConstiWhoever attempts to measure the magnitude tution declares thatof the case by the comparatively insignifi- "All legislative powers herein granted shall he cant acts which constitute the technical crimes vested in a Congress of the United States, which shall and misdemeanors with which the respondent nsist of a Senae and House stands charged, will attain a result far short of 1, ection This encircles the entirerneolgiate its true character, and be rewarded with a most Ths encircles the entire beggarly appreciation of the immensity of its action. The will of the legislative department ar above and below and is made known by the terms of the bills which breynth eetchnical offen a it may pass. Of these expressions of thgrave legiseynduthe are, th ea es i lative will the Consgreat question sayswhich: arey u utoetle e tohbe found. at envelops the "Every bill which shall have passed the House of you are to settle is to be found. It envelops the Representatives and the Senate, shall, hefore it bewhole case and everything pertaining thereto. come a law. be presented to the President of the It is the great circle which bounds the sphere United States, and if he approve he shall sign it, but composed of the multitude of questions and if not he shall return it with his objections to that House in which it shall have originated, who shall issues presented for your determination. The enter the objections at large on their Journa and respondent is arraigned for a violation of and proceed to reconsider it. If, after such reconsidera refusal to execute the law. He offers to ation, two thirds of that House shall agree to pass the bill it shall be sent, together with the objections. prove that his Cabinet advised him that a cer- to the other House, by which it shall likewise be ta bill presented for his approval was in vio- reconsidered, and, if approved by two thirds of that lation of the Constitution; that he accepted House, it shall become a law."-Article 1. ction 7. their advice and vetoed the bill; and upon Thus laws are made. But laws cannot exthat, and such additional advice as they may ecute themselves. However wise, just, neceshave given him, claims the right to resist and sary they may be, they are lifeless declarations defy the provisions of the bill, notwithstanding of the legislative will, until clothed with the its enactment into a law by two thirds of both power of action by other Departments of the Houses over his objections. In other words, Government. he claims, substantially, that he may determine The builders of our Constitution understood for himself what laws he will obey and execute, with great exactness the philosophy of gov and what laws he will disregard and refuse to ernment, and provided for every contingency. enforce. In support of this claim he offers the They knew that laws to be effective must be testimony. which, for the time being, is ex- executed; that the best and purest law could cluded by the objection now under discussion. not perform its proper office in the absence If I am correct in this, then I was not mis-, of executive power; therefore they created taken when I asserted that this objection con- that power and vested it in a President of the fronts one of the most important questions United States. To insure a due execution of involved in this case. It may be said that this the power, they imposed the duty of taking and testimony is offered merely to disprove the subscribing the oath above quoted on every intent alleged and charged in the articles; but person elected to the presidential office, and deit. goes beyond this and reaches the main ques- clared that he should comply with the condition tion, as will clearly appear to the mimid of any " before he enter on the execution of his office. " one who will read with care the answer to the Chief among the executive duties imposed by first article. The testimony is improper for the Constitution and secured by the oath is any purpose and in every view of the case. the one contained in the injunction that the The Constitution of the United States (arti. President " shall take care that the laws be faithcle two, section one) provides that- fully executed." (Article 2,section 3.) What "TheexecutivepowershallbevestedinaPresident laws? Those which may have been passed by of the United States of America." the legislative department in manner and form The erso atpresnt eercsingthe unc as declared by that section of the Constitution The ersn a preentexecisig te fnc-heretofore recited. The President.is clothed tions of' the executive office is the respondent with no discretion in this regard. Whatever who sta~nds at your bar to-day, charged withisdcaebytelgltvepwro'eth -the commission of high crimes and misde- isw dhelaresdebyth leislaodtiv powerutoe. the meanors in office. Before he entered upon lapwerthe Prsiento bisl bouned tyotexecute.sB the discharg~e of the duties devolved on him as his powgers tohet may biallepasse bybthe Houislaies President he took and subscribed the consti- ofll Congres he may cveallengey the legislthive tutionally prescribed oath of office, in words aswilbuifhbeoruedyteto-id follows:. voice of the Houses he must respect the' de"I do solemnly swear that I will faithfully execute cision and execute the law which that constithe office of President of the United States, and will tutional. voice has spoken into existence. If to the best of my ability preserve, protect, and this be not true,.then the executive power is defend the Constitution of the United States." superior to the legislative power. If the execThis oath covers every part of the Constitu- utive will may declare what is and what is tion, imposes the duty of observing every sec- not law, why was a legislative department, tion and clause thereof, and includes the dis- established at all? Why impose on the Prestribution of powers therein made. The powers ident the constitutional obligation to "take embraced and distributed are legislative, ex- -care that the laws be faithfully executed," if 472 he may determine what acts are and what are This lodgment of the most delicate power not laws? It is absurd to say that he has any known to the Constitution is most wise and discretion in this regard. He must execute proper, because of the frequency with which ~~~~~~the law. ~those who may exercise it are called to account "The great object of the executive department is for their conduct at the bar of the people, and to accomplish this purpose; and without it, be the this is the check balanced against a possible form of governmentwhatever it may, it will be utterly abuse of the power, and it has been most worthless for offense or defense; for the redress of grievances orthe protection of rights; for the happi- effectual. But the wisd ness or good order or safety of the people."-Story our Constitution did not stop here. It next on the Constitution. vol. 2, p. 419. declared that: De Toqueville, in his work on Democracy in The Senate shall have the sole power to try all America, in opening the chapter on executive impeachments."-Articte 1. section 3. power, very truly remarks that- In the theory of our Constitution the SenThe American legislators undertook a difficult ate represents the States, and its members task in attempting to create an executive power being removed from direct accountability to dependent on the majority of the people, and never- the people are supposed to be beyond the reach theless sufficientl strong to act without restraint in its own sphere. t was indispensable to the main- of those excitements an tenance of the republican form of government that frequently change the political complexion of the representative of the executive power should be the House of Representatives; and this is the subject to the will of the nation."- Volume 1, p. 128. more immediate check p The task was a difficult one, but the great the possible hasty action of the Representaminds from which our Constitution sprung tives. Wise, considerate, and safe to the perwere equal to its severest demands. They cre- fet work of demonstration is this admirable ated an executive power strong enough to exe- adjustment of the powers with which we are cute the will of the nation, and yet sufficiently now dealing. The executive power was creweak to be controlled by that will. They knew ated to enforce the will of the nation; the will that power will intoxicate the best of hearts, of the nation appears in its laws; the two as wine the strongest heads," and therefore Houses of Congress are intrusted with the they surrounded the executive agent with such power to enact laws, the objections of the Exroper restraints and limitations as would con- ecutive to the contrary notwithstanding; laws ne him to the boundaries prescribed by the thus enacted as well as those which receive national will or crush him by its power if he the executive sanction, are the voice of the stepped beyond. The plan adopted was most people. If the person clothed for the time perfect. It created the executive power; pro- being with the executive power-the only vided for the selection of the person to be power which can give effect to the people's intrusted with its exercise; determined the will-refuses or neglects to enforce the legisrsrInts, and limitaotionsdwhich shoud retlative decrees of the nation, or willfully violates upon, guide an oto tadhm n, Out the same, what constituent elements of governofabundant caution, decreed that- mental power could be more properly charged "The President" ****"of the Uni- with the right to present and the means to try ted States shall be removed from office on impeach- adremove the contumacious Executive than ment for, and conviction of, treason, bribery, or otheran high crimes and misdemeanors."-Ar-ticle 3, seetion 4. those intrusted with the power to enact the It is preposterous for the respondent to at-' laws of the people, guided by the checks and tempt to defend himself against the corrective balances to which I have directed the attention power of this grand remedy by interposin nthe of the Senate? What other constituent parts opinions or advice of the principal officers of of the Government could so well understand the Executive Departments, either as to the and adjudge of a perverse and criminal refusal body of his offense or the intent with which to obey, or a willful declination to execute, the he committed it. His highest duty is to "Itake national will,, than those joining in its exprescare that the laws be faithfully executed - in hr a ebu n nwrt hs and if he fail in this particular he must fail in qusin.TepososofteCsiuin nland anarchy will usurp the throne of order. are wise and just beyond the power of dispuThe laws are but expressions of the national tationsiinleaving the Eenutire sbeto ofaitheul will, which can be made known only through responsiblt off the Exdecutive toe faistothful the enactments of the legislative department executehsofc n noc h ast h of the Government. A criminal failure to charge, trial, and judgment of the two several execute that will (and every willful failure, no branches of the legislative department, rematter what its inducement may be, is crim- gardless of the opinions of Cabinet officers or inal) may justly call into action the remedial of the decisions of the judicial department. powe ofimpechmnt.Thispowr is bytheThe respondent has placed himself within this express terms of the Constitution, confided to Poeofipah ntbtrmlgonhecone branch of the legislative department, in stitutional duty of the Executive and violating these words: the penal, laws of the land. ThefHouse of Representatives" **** I readily admit that the Constitution of the "shall have the sole power of impeachment."-Arti- United States is, in almost every respect, difele 1, section 2. ferent from the constitution of Great Britaid. 473 The latter is, to a great extent, unwritten, and of the House as declared in the first resolution, is, in all regards, subject to such changes as that no necessity existed for the adoption of Parliament may enact. An act of Parliament the second. To effectuate this end Lord North, may change the constitution of England. In the Premier, in the course of his remarks, said: this country the rule is different. The Con- "ThemajorityofthatHoushadresolvedthatpeace gress ma enact no law in conflict with the should be made with America; and the answer given Constitution. The enactments of Parliament from the throne was so satisfactory that the House become a part of the British constitution. The had just concurred in a motion to return thanks to his majesty for making it; where, therefore, could wil of Parliament is supreme. The will of be the ground for coming to a resolution which Congress is subordinate to the written Consti- seemed to doubt the propriety or sincerity of that tution of the United States, but not to be answer? He was not of the disposition of thosewho ates, but not to ecomplained of majorities in that House who cjudged of by the executive department. But demned them, and by factious and seditious misrepthe theories upon which the two constitutions resentations, held them out to thublic in the most rest at the present time are almost identical odiouscolors; a majority of tha ouse was, in parme. ealotia. *liamentary language, the Hou In both the executive is made subordinate to make him change a single opinion, yet he bowed to the legislative power. The Commons of Eng- that opinion which was sanctioned by the majority; land tolerate no encroachments on their powers though he might not be a convert to such opinion, still he held it to be his indispensable duty to obey from any other estate of the realm. The Par- it and never once to lose sight of in the advice limee power of the kingdom, which, as the servant of the cro should have "isthesupremepoc the kingdccasion to give his sovereign. as the right of in spite of the doctrine that thatHouse to command: it was the duty of a minisno wrong," and in spite of the assertion that ter to obey its resolutions; Parliament had already the exercise of the sovereignty rests in the expressed its desires or its orders; and as it was scarcely possible that a minister should be found theoiessper-hardy, daring, infamous enough to advise his soverThe kindred character of the theories per- eign to differ in opinion from his Parliament, so he meating the two constitutions may be illus- could not think the present motion, whichmust suptrated by certain parliamentary and ministerial pose the existence of such a minister, could be at all [amentry an miniserialnecessary."7 —lbid., p. 1090. action connected with the American Revolu- tion, and which will well serve the purposes And again he said: of my argument. On the 27th day of February, "To the policy of that resolution he could not sub1782 General Conway moved in the House of scribe, but as Parliament had thought proper to pass I1~~ + it, and as ministers were bound to obey the orders of Commons the following resolution: Parliament, so he should make that resolution the "That it is the opinion of this House, that the fur- standard of his future. conduct."-bid., p. 1107. ther prosecution of offensive war on the continent These protestain... i of North America, for the purpose of reducing the revolted Colonies to ohedience bvr force, will be the arrest the action of the Commons. The resomeans ofweakeniugthe efforts of thiscountry against lution passed, and peace followed. her European enemies, dangerously t o increase the I ilb bevdta hs rceig mutual enmity, so fatal to the interests both of Great I ilb bevdta hs rceig Britain and America; and by preventing a happy on the part of the Commons trenched on ground reconciliation with that country, to frustra~te the covered by the prerogatives of the Crown, and earnest desire graciously expressed by his majesty to affected to some extent the powers of declarrestore the blessing ofpublic tranquillity,"-Hanoar-d, volume 22, P. 1071, ing war, making peace, and entering into The Commons passed the resolution. The treaties. Still the ministry bowed in obedience ministry did not seem to catch its true spirit, to the command of the House, and declared and, therefore, on March the 4th next follow- thating, General Conway moved another resolution $' It was scarcely possible that a minister should be found hardy, daring, infamous enough to advise in these more express and emphatic terms, to his sovereign to differ iu opinion from his Parliawit: ment,"1 "That after the solemn declaration of the opinion This grand acinothCmosadis of this House in their humble address presented to cino h omn n t his majesty on Friday last, and his majesty's assur- results disclosed the sublimest feature of the ance of his gracious intention, in pursuance of their British constitution. It was made to appear advice, to take such measures as shall appear to his how thoroughly, under that constitution, the majesty f~ be most conducive to the restoration of harmony between Great Britain and the revolted executive power was dependent on the legisColonies, so essential to the prosperity of both, this lative will of the nation. The doctrine that Hlouse will consider as enemies to his majesty and "Ithe king can do no wrong" I while it prothis country all those who shall endeavor to frustrate his majesty'spaternal care for the ease and hap- tected his person, was resolved into an almost piness of his people, by advising or by any means at- perfect subordination of the ministers, through tempting the further prosecutiod of offensive war on whom the powers of the Crown are exerted, to the continent of North America, for the purpose of reducingthe revolted Colonies to obedienceby force." the acts and resolutions of the Parliament, -ibid., p. 1089. until at last the roar of the lion of England is This resolution led to an animated debate. no more than the voice of the Commons of the The temper of the Commons was equal to the realm. So completely had this principle directness of the resolution. The ministry saw asserted itself in the British constitution that this and understood exactly its meaning. They the veto power had passed into disuse for nearly were disposed to avoid the implied censure, a century, and it has not been exercised since. and attempted to show, by expressions of a de- The last instance of its use was in April, 1696, term'ination to observe and respect the opinion when William III refused the royal assent to 474 a bill to regulate elections of members to the legislative department in the distribution serve in Parliament." (Hansard, vol. 5, p. of powers, as through it alone the State can ~~~~~~~~993.) ~speak. Its voice is the law, the rule of action The men who formed our Constitution in to be respected and obeyed by every person 1787 were not untaught of these facts in Eng- subject to its direction or amenable to its relish history; and they fashioned our Govern- quirements. ent on the plan of the subordination of the Next in the order of its distribution of Powexecutive power to the written law of the land. ers the Constitution names the executive deThey did not deny the veto power to the Pres- partment. This is proper and logical; forthe ident; but they did declare that it should be will-the law-of the nation cannot act except subject to a legislative limitation, under the through agents or instrumentalities charged operation of which it might, in any given case, with its execution. The Congress can enact a be overruled by the Congress, and when this law, but it cannot execute it. It can express happens, and the vetoed bill becomes a law, the the will of the nation, but some other agencies President must yield the convictions of his own are required to give it effect. The Constitutio judgment, as an individual, to the demands of resolves these agencies and instrumentalities the higher duty of the officer, and execute the into an executive department. At the head law. is oath binds him to this, and he can- of this department, charged imperatively with not pursue any other course of action without the due execution of its great powers, appears endangering the public weal. The Constitution the President of the United States, duly enregards him in a double capacity-as citizen joined to "take care that the laws be faithfully and public officer. In the first it leaves him to executed." If the law which he is to execute the same accountability to the law in its ordi- does not invest him with discretionary power, nary processes as would attach to and apply in he has no election-he must execute the will of se he were a mere civilian or the humblest the nation as expressed by Congress. In no citizen; while in the latter it subjects him to case can he indulge in the uncertainties and the power of the House of Representatives to irresponsibilities of an officialdiscretion unless impeach, and that of the Senate to remove him it be conceded to him by express enactment. from office, if he be guilty of "treason, bribery, In all other cases he must follow and enforce or other high crimes and misdemeanors." If the legislative'will. "The office of executin the citizen disobeys the law, and be convicted a law excludes the right to judge of it;" an thereof, he may be relieved. by pardon; but the as the Constitution charges the President with officer who brings upon himself a conviction the execution of the laws, it thereby declares on impeachment cannot receive the executive what is his duty,,and gives him no power beclemency. For while it is provided that the yond." (Rawle on the Constitution, p. 134.) President "Ishall have power to grant reprieves Undoubtedly he possesses the right to recoinand pardons for offenses against the United mend the enactment and to advise the repeal States," it is also expressly declared that this of laws. He may also, as I have before repower shall not extend to IIcases, of impeach- marked, obstruct the'passage of laws by intermenit."7 (Artidle2, section 2.) The same per- posing his veto. Beyond these means'of changson, if he be a civil officer, may be indicted for ing, directing, or obstructing the national will a violation of law and impeached for the same he may not go. When the law;making power ac.If convicted in both cases he may be par- has resolved, his "Ioppositio utb ta doned in the former, but in the latter he is end. That resolution is a law, and resistance beyond the reach of forgiveness. The relief to it punishable." (Federalist, No. 70.) provided for the disobedient citizen is denied The judgment of the individual intrusted, to the offending officer. for the time being, with the executive power of I have already observed that the Constitu- the Republic may reject as utterly erroneous tion of the United States distributes the powers the conclusions arrivd at by those invested of the Government among three departments. with the legislative power; but the officer must First in the order of constitutional arrange- submit and execute the law. He has no dismbent is the legislative department; and. this, cretion in the premises except such as the pardoubtless, because the law-making power is ticular statute confers on him; and even this the supreme power of the land through which he must exercise in obedience to the rules the will of the nation is expressed. The legis- which the act provides. A high officer of the lative power, in other words, the law-making Government onae gave to a President of the power, is "vested in a Congress of the United United States an opinion relative to this doeStates." The acts of Congress constitute the trine in these words: municipal law of the Republic. -' To the Chief Executive Magistrate of the Union "Mncpllwisarl fatonpecie yis confided the solemn duty of seeing the laws faithMuncipl lw i a uleof ctin pescibe byfully executed. That he may be able to meet this the supreme power of a State, commanding what is duty with a power equal to its performance he nomright and prohibiting what is wrong."-1 BlaekstOft. mates his own subordin ates and rem oves them at his P. 44-. Pleasure." The supreme power of a State is that which Thi's opinion was given prlior to the passage ig highest ini authority, and therefore it was of the' act of March 2, 1867, which requires ptopet that the Constitution should name first the- concurrence of the Senate in removals 475i from office, which, while denying to the Pres- of the President, upon his own doubts as to the exident the power of absolute removal, concedes gency [referred to by the statute] having arisen it to him the power to suspend remofficncers ed mustbe equally the right of every inferioriand soldier:, to him the power to suspend officers and toand any act done byanyperson in furtherance ofsuch supply their places temporarily. orders would subject him to responsibility in a civil " For the same -reason the land and naval forces suit, in which his defense must finally rest upon his are under his orders as their Commander-in-Chief; ability to establish the facts by competent proofs. but his power is to be used only in the manner pre-Such a course would be subversive of all discipline, scribed by the legislative department. He cannot and expose the best disposed officers to the chances accomplish a legal purpose by illegal means, or of ruinous litigation," * * * * "Thepower break the laws himself to prevent them from being itself is confined to the Executive of the Union, to violated by others. him who is, by the Constitution, the commander of "The acts of Congress sometimes give the Presi- themilitia, when called into the actual service of the dent a broad discretion in the use of the means by United States; whose duty it is'to take care that which they are to he executed, and sometimes limit the laws be faithfully executed,' and whose responsihis power so that he can exercise it only in a certain bility.for an honest diseharge of his official obligap rescribed manner. Where the law directs a thing tions is secured by the highest sanction. He isuneees; to be done, without saying how, that implies the sarily constituted the judge of the existence of the power to use such means as may be necessary and exigency in the first instance, and is bound to call proper to accomplish the end of the Legislature. Bt forth the militia; his orders for this purpose are in where t he mode of performing a duty is pointed out strict conformity with the provisions of the law, and by statute, that is the exclusive mode, and no other it would seem to follow, as a necessary consequence, can he followed. The United States have no ommon that every act done by a subordinate officer, in obecan be followed. The UnitedStates ave no common dience to such orders, is equallyjustifvable. The law' law tofall back upon when the written law is defect- dience to such orders, is equallyjustifiable. The law ive. If, therefore, an act of Congress declares that contemplates that, under such circumstances, orders a certain thing'shall be done by a particular officer, will be given to carry the power into effect; and it it cannot be done by a different officer. The agency cannot, therefore, be a correct inference that any which the law furnishes for its own execution must other person has a just right to disobey them." be used to the exclusion of all others."-Opinion of Attorney General Black, Nov. 20,1860. Apply the principles here enunciated to the This is a very clear statement of the doctrine case at bar, and they become its perfect supwhich I have been endeavoring to enforce, and ports. If the President has a right to contest on which the particular branch of this case and refuse to obey the laws enacted by Connow commanding our attention rests. If we gress, his subordinates may exercise the same drift away from it we unsettle the very founda- right and refuse to obey his orders. If he may tions of the Government, and endanger its sta- exercise it in one case, they may assert it in any bility to a degree which may well alarm the other. If he may challenge the laws of Conmost hopeful minds and appal the most cour- gress, they may question the orders of the Presiageous. A departure from this view of the dent. It is his duty to enforce the laws of the character of the executive power, and from the nation, and it is their duty to obey his orders, nature of the dutyand obligation restinguponthe If he maybe allowed to defy the legislative will, officer charged therewith, would surround this they may be allowed to disregard the executive nation with perils of most fearful proportions. order. This begets confusion; and the affairs Such a departure would not only justify the re- of the public are made the sport of the contendspondent in his refusal to obey and execute the ing factions and -eonflicting agents. No such law, butalso approve his usurpation of the judi- power belongs to either. To Congress is given cial power when ]e resolved that he would not the power to enact laws, and while they remain observe the legislative will, because, in his judg- on the statute-book it is the constitutional duty ment, it did not conform to the provisions of of the President to see to their faithful exeeuthe Constitution of the United States touching tion. This duty rests upon all of his subordithe subjects embraced in the articles of im- nates. Its observance by all, the President peachment on which he is now being tried at included, makes the executive department, your bar. Concede this to him, and when and though it be acting through ten thousand agents, where may we look for the end? To what a unit. Unity produces harmony, harmony result shall we arrive? Will it not naturally effects directness of action; and this secures a and inevitably lead to a consolidation of the due execution of the laws. But if the Presi' several powers of the Government in the execu- dent may disregard the law because he has been tive depatment? And would this be the end? advised by his Cabinet and believes that the Would it not rather be but the beginning? If Congress violated the Constitution in its enact, the President may defy and usurp the powers ment, and his subordinates may, following his of the legislative and judicial departments of example, disobey his orders and directions, the the Government, as his caprices or the advice object and end of an executive unity is defeated of his Cabinet may incline him, why may not anarchy succeeds order, force, irresponsible his subordinates, each for himself, and touch- and vicious, supplants law, and ruin envelops ing his own sphere of action, determine how the Republic and its institutions. If the views far the directions of his superior accord with which I have imperfectly presented are correct, the Constitution of the United States, and and such I believe them to be, the testimony to reject and refuse to obey all that come short which we object must be excluded from your of the standard erected by his judgment? It consideration, and thus will be determined one was remarked by the Supreme Court of the of the most important questions encircled by United States in the case of Martin vs. Mott this case. (12 Wheaton, 19) that- If I have been able to arrest your attention, If asuperior officer has arighttocontestthe orders and to center it upon the question which I have 476 imperfecly discussed, the time occupied by me it is wholly immaterial whethAr he honestly will not be without profit to the nation. I have believed that this act of Congress was unconendeavored to show that the royal fiction which stitutional; it is wholly immaterial whether he asserts that "the king can do no wrong" can- believed that he was acting in accordance with not be applied to the Presidenrt of the United his oath of office, to preserve, protect, and deStates in such manner as to shield him from fend the Constitution when he did this act"the just condemnation of violated law. The instead of averring that, they aver that he king's crimes may be expiated by the vicarious acted with an intention to violate the Constiatonement of his ministers; but the President tution of the United States. is held personally amenable to the impeaching Now, when we introduce evidence here, or power of the House of Representatives. Con- offer to introduce evidence here, bearing on this cede to the President immunity through the question of intent, evidence that before formadvice of his Cabinet officers, and you reverse ing any opinion upon this subject he resorted by your decision the theory of our Constitu- to proper advice to enable him to form a cortion. Let those who will, assume this respon- rect one, and that when he did form and fix sibility. I leaveitto the decision of the Senate: opinions on this subject it was under the infiuMr. CURTIS. Mr. Chief Justice and Sen- ence of this proper advice, and that conseators, I have no intention of attempting to quently when he did this act, whether it was make a reply to the elaborate argument which lawful or unlawful, it was not done with the has now been addressed to you by one of the intention to violate the Constitution-when we honorable Managers touching the merits of offer evidence of that character, the honorable this case. The time for that has not come. Manager gets up here and argues an hour by The testimony is not yet before you. The case the clock that it is wholly immaterial what his is not in a condition for you to consider and intention was, what his opinion was, what adpass upon those merits, whether they consist vice he had received and in conformity with in law or fact. The simple question now be- which he acted in this matter. fore the Senate is whether a certain offer of The honorable Manager's argument may be proof which we have placed before you shall a sound one; the Senate may ultimately come be carried out into evidence. Of course that to that conclusion after they have heard this inquiry involves another. That other inquiry cause; that is of discussion into which I do not is whether the evidence which is offered is per- enter; but before the Senate can come to the tinent to any matter in issue in this case, and consideration of those questions they must when it is ascertained that the evidence is per- pass over this allegation; they must either say, tinent I suppose it is to be received. Its cred- as the honorable Manager says, that it is wholly ibility, its weight, its effect finally upon the immaterial what opinion the President formed merits of the case or upon any question involved or under what advice or circumstances he in the case, is a subject which cannot be con- formed it, or else it must be admitted by Senasidered and decided upon preliminarily to the tors that it is material, and the evidence must reception of the evidence. And, therefore, be considered. leaving on one side the whole of this elaborate Now, how is it possible at this stage of the argument which has now been addressed to inquiry to determine which o'f these courses is you, I propose to make a few observations to to be taken by the honorable Senate? If the show that this evidence is pertinent to the mat- Senate should finally come to the conclusion ter in issue in this case. that it is wholly immaterial this evidence will The honorable Manager has read a portion do no harm. On the other hand, if the Senate of the answer of the President, and has stated should finally come to the conclusion that it is that the House of Representatives has taken material what the intention of the President no issue upon that part of the answer. As to was in doing these acts, that they are to look that, and as to the effect of that admission by to see whether there was or not a willful violathe honorable Manager, I shall have a word or tion of the Constitution, then they will have two to say presently. But the honorable Man- excluded the evidence upon which they could ager has not told you that the House of Rep- have determined that question, if it should thus resentatives, when the honorable Managers prove to be material. brought to your bar these articles, did not I respectfully submit, therefore, that whether intend to assert and prove the allegations in the argument of the honorable Manager is sound them which are matters of fact. One of these or unsound, whether it will finally prove in the allegations, Mr. Chief Justice, as you will find judgment of the Senate that this evidence is by reference to the first article and to the sec- immaterial or not, this is not the time to exond article and to the third article, is that the dlude it upon the ground that an examination President of the United States in removing of the merits hereafter and a decision upon Mr. Stanton and in appointing General Thomas those merits will show that it is immaterial. intentionally violated the Constitution of the When that is shown the evidence can be laid United States, that he did these acts with the aside. If the other conclusion should be arintention of violating the Constitution of the rived at by any one Senator, or by the body United States. Instead of saying, " it is wholly generally, then they will be in want of this immaterial what intention the President had; evidence which we now offer. 477 In reference to this question, Senators, is it I will answer that part of the question first. not pertinent evidence? I do not intend to The constitutional validity of any bill is of enter into the constitutional inquiry which was course a question of law which depends upon started yesterday by an honorable Manager as a comparison of the provisions of the bill with to the particular character of this Cabinet the law enacted by the people for the governcouncil. One thing is certain: that every ment of their agents. It depends upon whether President from the origin of the Government those agents have transcended the authority has resorted to oral consultations with the which the people gave them, and that cornmembers of his Cabinet and oral discussions parison of the Constitution with the law is, in in his presence of questions of public import- the sense that was intended undoubtedly by the ance arising in the course of his official duty. honorable Senator, a question of law. Another thing is equally certain, and that is, The next branch of the question is "whether that although the written letter remains, and that question is to be determined on this trial therefore it would appear with more certainty by the Senate." what the advice of a Cabinet councilor was if That is a question I cannot answer. That it were put in writing, yet that every practical is a question that can be determined only by man who has had occasion in the business the Senate themselves. If the Senate should affairs of life and every lawyer and every legis- find that Mr. Stanton' s case was not within this lator knows that there is no so satisfactory mode law, then no such question arises, then there of bringing out the truth as an oral discussion, is no question in this particular case of a conface to face, of those who are engaged in the flict between the law and the Constitution. If subject; that it is the most suggestive, the most the Senate should find that these articles have searching, the most satisfactory mode of arriv- so charged the President that it is necessary ing at a conclusion; and that solitary written for the Senate to believe that there was some opinions, composed in the closet, away from act of turpitude on his part connected with the collision between mind and mind which this matter, some malafides, some bad intent, brings out new thoughts, new conceptions, and that he did honestly believe, as he states more accurate views, are not the best mode in his answer, that thiswas an unconstitutional of arriving at a safe result. And under the law, that an occasion had arisen when he must influence of these practical considerations un- act accordingly under his oath of office, then doubtedly it is that this habit, beginning with it is immaterial whether this was a constituGeneral Washington-not becoming universal tional or unconstitutional law; be it the one by any means until Mr. Jefferson's time, but or be it the other, be it true or false that the from that day to this continuing a constant President has committed a legal offense by an practice-has been formed. President John- infraction of the law, he has not committed the son found it in existence when he went into impeachable offense with which he is charged office, and he continued it. by the House of Representatives. And, thereI therefore say that when the question of his fore, we must advance beyond these two quesintention comes to be considered by the Sen- tions before we reach the third branch of the ate, when the question arises in their minds question which the honorable Senator from whether the President honestly believed that Michigan propounds, whether the question of this was an unconstitutional law, when the the constitutionality of this law must be departicular emergency arose, when if he carried termined on this trial by the Senate. In the out or obeyed that law he must quit one ofthe view of the President's eounsel there is no rteowers which he believed were conferred upon cessity for the Senate to determine that queshim by the Constitution, and not be able to tion. The residue of the inquiry is: carry on one of the departments of the Gov- Do the counsel claim that the opinion of the eminent in the manner the public interests Cabinet officers touehing that questionrequired-when that question arises for the consideration of the Senate, then they ought That is, the constitutionality of the lawto have bqfore them the fact that he acted by is competent evidence by which the judgment of the the advice of the usual and proper advisers Senate might be influenced? that he resorted to the best means within his Certainly not. We do not put them on the reach to form a safe opinion upon this subject, stand as experts on questions of constitutional and that therefore it is a fair conclusion that law. The judges will determine that out of when he did form that opinion it was an honest their own breasts. We put them on the stand and fixed opinion which he felt he must carry as advisers of the President to state what adout in practice if the proper occasion should vice, in point of fact, they gave him, with a arise. It is in this point of view, and this view to show that he was guilty of no improper point of view only, that we offer this evidence. intent to violate the Constitution. We put The honorable Senator from Michigan has them on the stand, the honorable Senator from proposed a question to the counsel for the Michigan will allow me to answer, for the same President, which is this: purpose for which he doubtless, in his extenDo notthe counselforthe accusedconsiderthat the sive practice, has often put lawyers on the, validity of the tenure-of-office bill was purely a stand. A man is proceeded against by another question of law? for an improper arrest, for a malicious prose 478 cution. It is necessary to prove malice and tleman concludes I desire t submit a question want of probable cause. When the want of to him. probable cause is proved the malice is infer- The CHIEF JUSTICE. The Secretary will able from it; but then it is perfectly well set- read the question proposed by the Senator from tled that if the defendant can show that he Oregon. fairly laid his case before counsel, and that The Chief Clerk read as follows: counsel informed him that that was a probable Is the advice given to the Presidentby his Cabinet case, he mut be acquitted; the malice is gone. with a view of preparing a veto message pertinetto That is the purpose for which we propose to prove the right of the President to disregard the aw ut thesegentlemen on the stand, to prove that after it was passed over his veto the acted as advisers, that the advice was Mr. CURTIS. I consider it to be strictly given that it was acted under; and that purges pertinent. It is not of itself sufficient; it is the malice, the improper intent. not enough that the Preident received such To respond to the question of the honor- advice; he must show that an occasion arose able Senator from Maryland, he will allow me for him to act upon it which in the judgment to say that it is a question which the Managers of the Senate was such an occasion that you can answer much better than the President's could not impute to him wrong intention in ~~counse~~l.~ ~ ~acting. But the first step is to show that he Mr. JOHNSON. Will you read it, please? honestly believed that this was an unconstituMr. CURTIS. It is: tional law. Whether he should treat it as such Do the counsel for the President understand that in a particular instance is a matter depending the Managers deny the statement madebythePres- upon his own personal responsibility without ident in his message of December 12. 1867. to the Senate asgiveninevidencebythe Managers at page advice. That is the ans 45 of official report of the trial that the members is consistent with the views we have of this of the Cabinet gave him- case. That is, the President- And I wish, in closing, merely to say that the opinion there stated as to the tenure-of-office the Senators will perceive how entirely aside act; anis the evidence offered to corroborate that this view which I have now presented to the statement, or forwhat other object is it offered? Senate is from any claim on behalf of the PresWe now understand, from what the honor- ident that he may disregard a law simply beable Manager has said this morning, that the cause hebelieves it tobeunconstitutional. He House of Representatives has taken no issue makes no such claim. He must make a case on that partof our answer; that the honorable beyhaond that-a case such as is stated in his Managers do not understand that they have answer; but in order to make a case beyond traversed or denied that part of our answer. that it is necessary for him to begin by satisfyWe did also understand before this question ing the Senate that he honestly believed the law -was proposed to us that the honorable Man- to be unconstitutional; and it is with a view agers had themselves put in evidence the to that that we now offer this evidence. message of the President of the 12th of De- The CHIEF JUSTICE. Senators, the quescember, 1867, to the Senate, in which he states tion now before the Senate, as the Chief Justice that he was advised by the members of the conceives, respects notthe weight butthe admisCabinet unanimously, including Mr. Stanton, sibility of the evidence offered. To determine that this law would be unconstitutional if en- that question itis necessaryto seewliatis charged acted. They have put that in evidence them- in the articles of impeachment. The first article selves. charges that on the 21st day of February, 1868, Nevertheless, Senators, this is an affair, as the President issued an order for the removal yo ecie, of the utmost gravity in any pos- of Mr. Stanton from the office of Secretary of sil setof it; and we did not feel at liberty War, that this order was made unlawfully, and taviorabstain from the offering of the that it was made with intent to violate the tenuremembers of the President's Cabinet that they of-office act and in violation of the Constitution might state to you, under the sanction of their of the United States. The same charge in suboaths, what advice was given. I suppose all stance is repeated in the articles which relate that the Managers would be prepared to ad- to the appointment of Mr. Thomas, which was mnit might be-certainly they have made no necessarilyconnectedwiththetransaction. The broader admission-that the President said intent, then, is the subject to which much of thesethingsinamessage tothe Senate; butfrom the evidence on both sides has been directed; the experience we have had thus far in this trial and the Chief Justice conceives that this testiwe thought it not impossible that the Managers, mony is admissible for the purpose of showiiig or some one of them speaking in behalf of the intent with which the President has acted himself and the others, might say that the Pres- in this transaction. He will submit the quesident had told a falsehood, and we wish there- tion to the Senate if any Senator desires it. fore to place ourselves right before the Senate Mr. HOWARD. I call for the yeas and nays. on this subject. We desire to exam~ine these gen- The CHIEF JUSTICE. The Senator from tlemnen to show what passed on this subject, and Michigan desires that the question be submitwe wish to do it for the purposes I have stated. ted, to the Senate, and calls for the yeas and Mr. WILLIAMS. Before the learned gen-I nays. 479 The yeas and nays were ordered. a matter for debate. We understand that the The CHIEF JUSTICE. Senators, you who disposition of the question of evidence already are of opinion that the proposed evidence is made may turn upon any one of several conadmissible will, as your names are called, an- siderations quite outside of the present in4uiry swer ea; those of the contrary opinion, nay. as, for instance, if it should be held to have Mr DRAKE. I ask. for the reading of the turned upon considerations suggested by some ~offer of counsel,.~ of the questions put by one or more of the SenThe CHIEF JUSTICE. The Secretary will ators of this body, as to the importance or per~~~read the offer. ~tinence of evidence as bearing upon the quesThe Chief Clerk read the offer. tion of the constitutionality ofa law, as tending The question being taken by yeas and nays, to justify or explain or affect with intent e resulted-yeas 20, nays 29; as follows: act alleged of a violatio of the law. YEAS-Messrs. Anthony, Bayard, Buckalew, Davis, The present evidence sought to be introduced Dixon, Doolitle, Fessenden, Fowler, Grimes, Hen- is quite of another complexion, and has thisderson, Hendricks, Johnson, McCreery, Patterson of bject in refer Tennessee, Ross, Saulsbury, Trumbull, Van Winkle, purpose and object in reier Vickers, and Willey-20. that may be applied to.the Presient's conduct; NAYS-Messrs. Cameron, Cattell, Chandler, Cole, in the first place, as respects the law itself, that Conkling, Conness, Corbett. Cragin, Drake. Edinunds, Ferry, Frelingbusen, Harlan, Howard, Howe, Mor- a new law confessedly reversing, or, as was gan, Morrill of Maine, Morrill of Vermont, Patter- frequently expressed in the debates of the son of New Hampshire, Pomeroy, Ramsey, Sherman, Houses which passed the law, revolutionizing prau, stewartThayer, Tipton, Williams, Wilson, the action of the Govern and Yates-29. the action of the Gover-mesc NOT VOTING-Messrs. Morton, Norton, Nye, this exercise of executive power, and in respect ~~Sumner, and Wade-5. ~to this particular point also of whether it had So the Senate decided the evidence to be any efficacy or was intended to have any appli~inadmissible,.~ ~ ~cation which should fasten upon the President's GIDEON WELLEs-examination continued. Secretaries whom he never had selected or appointed, which formed the subject of so much opinion in the Senate, and also in the House Question. At the Cabinet meetings held at of Representatives, was made a subject of in the period from the presentation of the bill to quiry and opinion by the President himself, and the President until his message sending in his that his action concerning which he is now objections was completed was the question brought inquestion here in the removal of Mr. whether Mr. Stanton was within the operation Stanton, was based upon his opinion after of the civil-tenure act the subject of consider- proper and diligent efforts to get at a correct ation and determination? opnowhether Mr. Stanton was within the Mr. Manager BUTLER. Stop a moment. law; and, therefore, that his conduct and action We object. was not in the intent of violating the law which, The CHIEF JUSTICE. The counsel will it is said here, cannot he qualified even under please propose their question in writing, these charges by showing that he did n~ot do it Mr. EVARTS. I will make an offer, with with intention of violating the Constitution. the permission of the Chief Justice. The point now is that he did not do it with The offer was reduced to writing, and read intent of violating the law., but that he did it by the Chief Clerk, as follows: with the intent of exercising a well-known, perWe offer to prove that at the meetings of the fectly established constitwtional power, deemed Cabinet at which Mr. Stanton was present, held by him, on the advc fteehsCbnt o while the tenure-of-office bill was before the Presi-dvcofteehsCbnnt den t for approval, th e advic e of th e Cabin et in regard to be embraced within the law; and if the to the same was asked by the President and given question of the intent of his violation of duty, by the Cabinet; andthereupon the question whether of the purpose and the motive and the object Mr. Stanton and the other Secretaries who had received their appointment from Mr. Lincoln were and the result, the injury to the public service within the restrictions upon the President's power of or the order of the State is to form a part of removal from office created by said act was consid- teiqiy hnw rn i yoemd ered, and the opinion expressed that the Secretaries appointed by Mr. Lincoln were not within such ofinquiry within obedience to the Constitution restrictions, as he was advised, and by this present object Mr. Manager BUTLER. We object, Alr. of inquiry within obedience to the law as he President and Senators, that this is only ask- was advised. ing the advice of the Cabinet as to the con-',So, too, it has a bearing from the presence struction of a law. The last question was as of Mr. Stanton and his assent to these opin-' to the constitutionality of a law, and advice as ions, on the attitude in which the President to law we suppose to be wholly included within stood in regard to his right to expect from Mr. the last ruling of the Senate. We do not pro- Stanton an acquiescence in the exercise of the pose to argue it. power of removal, which stood upon the ConMr. EVARTS. We do not so regard the stitution in Mr. Stanton's opinion, and which matter; and even if the ruling should be so was nol~ affected by the law in Mr. Stanton's rightly construed, still, Mr. Chief Justice and opinion; and thus to raise precisely and defiSenators, it would be proper for us to make nitely in this aspect the qualifications of the this offer accepting your ruling, if it were not President's course and conduct in this behalf 480 as intending an application of force, or con- last proposition voted upon to show that Mr. templating the possibility of the need of an Stanton gave advice as to the constitutionality application of force. of the law; so that in this respect the two Mr. Manager BUTLER. Withoutintending propositions stand precisely alike in principle, to debate this proposition, I desire to call the and cannot be distinguished. attention of the Senate to the fact that the It is said this evidence should be admitted question seeks to inquire whether the Cabinet, to show that the President when he removed including Mr. Stanton, did not advise the Stanton and put in Thomas, supposed that President that the bill as presented for his con- Stanton did not believe himself to be within the sidration did not apply to Mr. Stanton and law and protected in office by its enactments. those in like situation vth him. I desire to Mr. Stanton had just been reinstated under the call the attention of the Senate to Exhibit A, law; had refused to resign because he could not on the 38th page, which is the veto message, be touched under the law; had put the Presiherein the President vetoes the bill expressly dent's power to defiance, as the President says upon the groun that it does include all his in his message, because he believed that the Cabinet, so thatif they advised him to the con- law did not allow him to be touched. Now, trary, the advice does not seem to have had does this evidence tend to show that the Presioperation on his mind. dent thought Mr. Stanton would agree that he )Mr. Manager BOUTWELL. Read the was not kept in office by the law, and go out ~~~~~~words. ~when he put in Mr. Thomas? Does any sane Mr. Manager BUTLER. I will. man believe that the President thought that "To the Senate of the United States: Mr. Stanton would yield on the ground that he "I have carefully examined the bill to regulate the was not covered by the law when he was retenure of certain civil offices. The material portion moved and Mr. Thomas appointed? The of the bill is contained in the first section, and is of President did not put his belief on any such the effect following, namely: "That every person holding any civil office to which ground; he put it on the he has been appointed by and with the advice and was a coward, and would not dare resist; not consent of the Senate, and every person who shall that he did not believe himself within the law hereafter be appointed to any such office, and shall and protected by it, but become duly qualified to act therein, is, and shall be, entitled to hold suchoffice until asuccessorshallhave not be sufficient to meet General Thomas. been appointed by the President, with the advice and That was the President's proposition to Genconsent of the Senate, and duly qualified; and that eral Sherman; it was a reliance on the nerves the Secretaries of State, of the Treasury, of Ware of uo h the Navy, and of the Interior, the Postmaster Gen- of the man, not upon his construction of the eral, and the Attorney General, shall hold their officas law. Therefore, I must call your attention to respectively for and during the term of the President the fact that these offers are wholly illusory by whom theymay havebeen appointed, and for one month thereafter,subject to removal byandwith the and deceptive. They do not show the thing advice and consent of the Senate.cotdefo;hycantswi;teyav " These provisions are qualified by a reservation in contenidedc forthycno show it; n hte they have the fourbhi section,'that nothing contained in thenotdectoswiadwhhrteyav bill. shall be construed to extend the term of any or have not, the Senate, by solemn decision, office the duration of which is limited by law.' in have said that the advice of Cabinet officers is effect the bill provides that the President shall not no he legal vehicle of proof by which the fact remove from their places any of the civil officers no whose terms of service are not limited by law with- is to be shown to the Senate, even if it were out the advice and consent of the Senate of the Uni- competent to be~proved in any manner. ted States. The bill, in this respect, conflicts, in my Mr.EAT M.CifJsceadSn judgment, with the Constitution of the United Satas. -EAT.M.CifJsieadSn The question, as Congreesis well aware, is byno means ators, the reference to the argument of the a new one." President's message, which is contained on And then he goes on to argue upon the de- page 38 and the following pages of the record, bate of 1789, which wholly applied to Cabinet seems hardly to require any attention. The' officers, and you will find that that is the gist President is there arguing against the bill as a of th Prsdn' hl ruet hn nmatter of legislation, and rightly-regards it in the forty-first page, after havin exhausted the its general application to the officers of the argument as to the Cabinet officers, he says: Government, including the principal officers "It applies equally to every other officer of the of 1he Departments. The minor consideraGovernment appointed by the President whose term tino hte rnti yitowtem of duration is not specially declared. It is supported reached the particular persons who held their by the weighty reason that the subordinate officers commissions from President Lincoln could not in the executive department ought to hold at the nposblthaeentesujcofdpleasure of the head of the department, because he by anypsiiiyhv ee h ujc fds is invested generally with the executive authority, cussion by the President of the United States and the participation in that authority by the Sen- in sending in his objections to the bill on conate was an exception to a general principle, andstuioagrnd.IwsntaCsiuinl ought to be taken strictly. The President i's the siuinlgons twsntacntttoa great responsible'officer for the execution of the question whe~ther the bill included the officers laws." who had received their commissions from But I must ask attcntion to the poiiit that President Lincoln, or did not exclude them. there is some additional reason to have this The learned Manager seems equally unforevidence go in because Mr. Stanton gave such tunate in his reference to the conduct of Mr. construction to the law. It was offered in the Stanton upon the preliminary proceeding of 481 his suspension under the civil-tenure act, for NewHampshire, Pomeroy. Ra Stewart. Thayer, no construction can be put upon Mr. Stanton's Tivton, Williams, Wilson, and tes-26. dNyT VOTING-Messrs. Conkling, Morton, Norton, t that he did not think Nye, Sumner, and Wade —6. he was under the act, I suppose, because he said he did not yield to the act which author- So the evidence proposed e ized suspension, but yielded to force. So much decided to be inadmissible ~for~Mr. EVARTS, (to that. M E e wine s.MWele Now, I come to the principal inquiry; and at any of the Cabinet metheltee that is whether or not it bears either upon the removal o r. Stanton did the subPresident's conduct in attempting a removal of t te of f adteremoval of and Mr. Stanton because he was not under the bill, ject of the public service as affected by the or whether it bears upon the rightful expecta-operation of that act come up for the considoeration of that Cabinet. tion and calculation of the President that the eration of the Cabinet. Mr.tionae BUTER Ih Cabinect. attempt would be recognized as suitable by Mr. Mr. Manager BUTLER Stanton because he, Mr. Stanton, did not be- Mr. EVARTS. Thisismerelintroductory. lieve he was within the bill. Mr. Manager BUTLER. es or no It will be observed that the President had a Mr. EVARTS. Yes. perfect right to suppose that Mr. Stanton would Mr. Manager BUTLER. We do not objet. not attempt to oppose him, the President, in to that. the exercise of an accustomed authority of the The WITNESS. I answer yes. By Mr. EVARTS: Chief Executive sincehe, Mr. Stanton, believed By Mr. EVARTS: it to be unlawful; and if the Executive had Question. Was it conside rp tel. been advised by Mr. Stanton on this very point Answer. It was on two o that he, Mr. Stanton, was not protected by the Question. During those considerations and restrictions of the civil tenure-of-office bill, then discussions'was the question of the importance the Preside had a right to suppose that when of having some determination judicial in its the executive authority given by the Constitu- character of the constitutionality of this law tion, as it was understood by Mr. Stanton, was considered? MroMnsider BTE.Sa oedn? not impeded by the operation of the special act Mr. Manager BUTLE of Congress, Mr. Stanton of course would yield w oj t Mr. EVARTS. It only calls for "yes" or tnstitutional power. n o." The CHIEF JUSTICE. Senators, the Chief no." Justice is of non that this testimony is Mr. Manager BUTLE it as on roper to be taen into consideration by the to ies" or "no.," Senate sitting as a court of impeachment; but sidered, it is not very important. he is unable to determine whatextent the Senate Mr. EVARTS. That is all. is disposed to give to its previous ruling, or how Mr. Manager BUTLER. Then it is not to far they consider that ruling applicable to the get in that there was any particular considerapresnt uesion.He illtheefor diectthe tion on a given point. In other words, to make Seretary qetionrea tHe offer toereproe, adirc then myself plain, by asking a series of well-conwill submit the question directly to the Senate. whtrie questions, onte Caighnet in pretty muc Mr. DRAKE. On that I ask for the yeas wha wa doei heCbntby"e"o and nays. &no" answers. We object to it as immaterial; The Chief Clerk read the offer, as follows: and now we, perhaps, might have it settled at We offer to prove that at the meetings of the Cabi- once, as well as ever. If this line oftestimonyis net at which Mr. Stanton was present, held while the Immaterial, then it is immaterial whether the tenure-of-civil-office bill was before the President for matter was considered in the Cabinet. If the approval, the advice of the Cabinet in regard to the determination of the Senate is that what was same was asked by the President and given by the dn nteCbntsol o oei ee Cabinet, and thereupon the question whether Mr. dn nteCbntsol o oei ee Stanton and the other Secretaries who had received then whether it was done is wholly immaterial., their appointment from.Mr. Lincoln were within the and is as objectionable as what was done. restrictionseupon the President's power of removal M.EXT.Ys u h ooal from office created by said act, was considered and M.EAT.Ys u h ooal the opinion expressed that the Secretaries appointed Manager will be so good as to remember that by Mr. Lincoln were not within such restrictions, the rulings of the Senate have exp~ressly deThe CHIEF JUSTICE. On this question termined that all that -properly bears upon the the Senator from Missouri asks for the yeas question of the intent of the President in makand nays. igthe removal and appointing the ad interim The yeas and nays were ordered; and being holder of the office with a view of raising the taken, resulted-yeas 22, nays 26; as follows: judicial question is admissible, and has been YEAS-Messrs. Anthony, Bayard, Buckalew, Davis, admitted. Dixon, Doolittle, Fessenden, Fowler, Grimes, Hen- Mr. Manager BUTLER. We neter have derson, Hendricks, Johnson, McCreery, Patterson Of heard that ruling. It may have escaped us, Tennessee, Ross, Saulshury, Sherman,- Sprague,Trum- Pras bull, Van Winkle, Vickers, and Willey-22. pras NAYS-Messrs. Cameron, Cattell Chandler, Cole, Mr. EVARTS. By examining the record Conness, Corbett, Cragin, Drake, ihdmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan. you will find it. Msorrill. of Maine, Morrill of Vermont, Patterson of Mr, Manager BUTLER. We have exam 482 ined it with great carte; but we shall not find case in the form in which it has been done? that, we think. Will you have the kindness If they agreed upon any other proceeding it is to read that ruling? wholly immaterial; but if they agreed upon Mr. EVARTS. It is in the memory of the this case, then we arein this condition of things, COurt. that they propose to justify the President's act Mr. Manager BUTLER. The ruling is on by the advice of his' subordinates, and substithe record. tute their opinion upon the legality of his action The CHIEF JUSTICE. If the question be in this case for yours. Objected to it will be reduced to writing. Senators, you passed this tenure-of-office The offer of the counsel for the respondent act. That might have been done by inadvertWas reduced to writing and handed to the Man- ence. The President then presented it to you agers. for your revision, and you passed it again Mr.ManagerBUTLER. By "theremoval" notwithstanding his constitutional argument do I understand down to the 21st of February, upon it. The President then removed Mr. 1868? Stanton, and presented its unconstitutionality Mr. EVARTS. Yes, sir. again, and presented also the question whether Mr. Manager BUTLER. May I insert these Mr. Stanton was within it, and you, after solwords: " 21st of February, 1868?" emn deliberation and argument, again decided Mr. EVARTS. You may alter the word that Mr. Stanton was within its provisions so " removal" to "order of the 21st of February, as to be protected by it, and that the law was 1868, for the removal." constitutional. Then he removed Mr. Stanton The CHIEF JUSTICE. TheSecretary will on the 21st of February, and presented the:read the offer made by the counsel for the same question to you again, and again. after President. solemn argument, you decided that Mr. StanThe offer was handed to the desk and read, ton was within its provisions and that the law as follows: was constitutional. Now they offer to show We offer to prove that at the Cabinet meetings the discussions of the Cabinet upon its consti between the passage of the tenure-of-civil-office bill tutionality to overrule the quadruple opinion rnd themoval order oMrf the 21sot of Foebrucary 1868, for the solemnly expressed by the Senate upon these removal of Mr. Stanton upon occasions when the condition of the public service was affected by the very questions-four times upon the constituoperation of that bill came up for the consideration tionality of the law, and twice upon its consti-.and advice of the Cabinet it was considered by the aresident anddi Ca binet itwas ponsirderegd by the tutionality and upon the fact that Mr. Stanton President and Cabinet that a proper regard to the public service made it desirable that upon some was within it. Is that testimony to 1e put in proper case a judicial determination on the consti- here? The proposition whether it was desirttionality of the law should be obtained. able to have this constitutional question raised i-r. Maniger BUTLER. Mr. President and is the one presented. If it was any other conSeniators, wA, of the Managers, object, and we stitutional question in any other case, then it should like to have this question determined in is wholly immaterial. If it is this case, then the minds of the Senators upon this principle. you are trying that question, and they propose We understand here that the determination of to substitute the judgment of the Cabinet for the Senate is, that Cabinetdiscussions, of what- the judgment of the Senate. ever nature, shallnot beputin as a shieldto the Mr. EVARTS. I must, I think, be allowed President. That I understand foruone, to be to say that the patience of the Senate, which the broad priniciple uponwhich this class of is so frequently referred tobythe learned Manquestions stand and upon which the: Senatehas agers asbeing taxed, seems to be, in their judgvoted; and, therefore, these attempts to get ment, a sort of unilateral patience, and not around it, to get in by detail and at retail-if I o pen to impressionsupon opposite sides. Now, may use that expression-evidence which-in its.Senators, the proposition cap be very briefly wholesale character ca'not be admitted, are submitted to you. b v simply tiring out and wearing out the patience By decisive determinatiolt upon Cettain of the.Senate. I shouldlike to have it settled, questions of evidence arising in this cause once for all, if it can be, whether the Cabinet you have decided that, at least, what in point consultations upon any subject are to be a of time is'so near to this action of the Presishield. Upon this particular offer, however, dent as may fairly import to show that in his I will leave the matter with the Senate after a action he was governed by a desire to raise a single msuggestion. question for judicial determination shall be It is offered to show that the Cabinet con- admitted. About that there can be no quessulted upon the desirabilityofgettingupacase tion that the record will confirm my state to test the constitutionality of the law, It is ment. Now, my present inquiry is to show either material or immaterial. It might pos- that within this period, thus extensively and sibly be material in one view if they mean to comprehensively named for the present, in say that they consulted upon getting up this his official duty and in his consultations concase in the mode and manner that it is brought cerning his official duty with the heads of Dehere, and only in that event could it be mate- partments, it became apparent that the operarial. Does the question mean to ask if they tion of this law raised embarrassments in the consulted and agreed together to bring up this ublic service and renderedit important as a 483 practical matter that there should be a de- cannot be competent until the time arrives for termination concerning the constitutionality the consideration of the judgment. If I may of the law, and that it was desirable that upon ask a question, I would inquire -do the Presia proper case such a determination should be dent's counsel offer this tvidence in mitiga. had. I submit the matter to the Senate with tion, because if they do that will raise another these observations. question. We shall not object to it, perhaps, The CHIEF JUSTICE. The Secretarywill even now, in mitigation, because that will be read the offer to prove. a confession of guilt. [Laughter.] The Chief Clerk read the offer. The CHIEF JUSTICE. The Secretary will The CHIEF JUSTICE. The Chief Justice read the offer to prove once more. will submit the question to the Senate. The offer was read as follows: Mr. CONNESS called for the yeas and nays, We offer to prove that at the Cabinet meetings beand they were ordered. tween the passage of the tenure-of-civil-office billand Mr. HENDERSON. Mr. President, I de- the order of the 21st of February. 1868, for the resire to submit a question to the Managers moval of Mr. Stanton. upon occasions when the condition of the public service was affected by the operbefore I vote. I send it. to the desk. ation of that bill came up for the consideration and The CHIEF JUSTICE. The question pro- advice of the Cabinet, it was consideredby the Prespounded to the honorabe Managers by the ident and Cabinet that a proper regard to the public uned to the honorable Managers by the service made it desirable that upon some propercase Senator from Missouri will be read. a judicial determination on the constitutionality of The Chief Clerk read as follows: the law should be obtained. If the President shall be convicted, he must be The CHIEF JUSTICE. Senators, you who removed from office. If his guilt should be so great as to demand such are of opinion that the evidence offered by the Punishment, he may be disqualified to hold and en- counsel for the President should be received joy any office under the United States. will, when your names are called, answer Is not the evidence now offered competent to go yea; those of the contrary opinion, nay. The before the court in mitigation? yea; those of the contrary opinion, nay. The before the court in mitigation? Secretary will call the roll. Mr. Manager BUTLER. Mr. President and The question being taken by yeas and nays, Senators, I am instructed to answer to that, resulted-yeas 19, nays 80; as follows: that we do not believe this would be evidence in any event; but all evidence in mitigation of YEAS- Messrs. Anthony, Bayard, Buckalew, p, un.eent mut blevsbitedc afnmtergerict o Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, punishment must be submitted after verdict Henderson, Hendricks, Johnson. McCreery, Patterand before judgment, save where the jury fix son of Tennessee, Ross, Saulsbury, Trumbull, Van the punishment in their verdict, which is not Winkle, and Vickers-19. NAYS-Messrs. Cameron, Cattell, Chandler, Cole, the case here. Evidence in mitigation never Conkling, Conness, Corbett, Cragin, Drake, Edis put in to influence the verdict; but if a ver- munds, Ferry, Frelinghuysen, Harlan, Howard, dict of guilty is rendered, then circumstances Howe, Morgan, Morrill of Maine, Morrill of Vert o. gu i l t y. r e ndered, mont, Patterson of New Hampshire, Pomeroy, Ramof mitigation, such as good character or pos- sexy, Sherman, Sprague, Stewart, Thayer, Tipton sible commission of the crime by inadvertence, Willey, Williams, Wilson, and Yates-30. can be given, but not upon the issue. NOT VOTING-Messrs. Morton, Norton, Nye, Mr. CONKLING. Is that the rule of prac-Sumner, and Wade-5. tice before this tribunal? So the Senate ruled the offer to be inadmisMr. Manager BUTLER. I do not know as sible. there are any rules of practice here. Mr. ANTHONY, (at two o'clock p. m.) I Mr. CONKLING. Would that be applica- move that the Senate take a recess for fifteen ble to this tribunal? minutes. My. Manager BUTLER. I am asked by The motion was agreed to- and at the expithe honorable Senator from New York whether ration of the recess the Chief Justice resumed it would be applicable before this tribunal. the chair. Under the general practice of impeachments GIDEONWELLES'S examination continued. judgment is never given by the House of Peers until demanded by the Commons. Whether By Mr. EVART: that may be applicable here or not I do not Question. Mr. Welles, was there within the mean at this moment to determine. I say period embraced in the inquiry in the last quesjudgment never is given until demanded, and tion, and at any discussions or deliberations of as this judgment is to be given as a separate the Cabinet concerning the operations of the act, if evidence in mitigation is applicable at civil tenure act, or the requirements of the puball, it must be given to influence that event. lic service in respect to the same, any suggestion There is an appreciable time in this tribunal, or intimation of any kind touching or looking as in all others, between a verdict of guilty to the vacation of any office, or obtaining posand the act of judgment; and if any such evi- session of the same by force? dence can be given at all it must, in my judg- Answer. Never, on any occasionment, be given at that time. It certainly can- Mr. Manager BUTLER. Stop a moment. not be given for any other purpose. We object. I have already stated that we do not believe The CHIEF JUSTICE. The counsel for it to be competent at all, and I am so instructed the President will please reduce the question by my associates; but, if ever *ompetent, it to writing. 484 The question was reduced to writing and sent NOT VOTING-Messrs.Cameron, Doolittle, Drake, to the -desk and read, as follows:. eHenderson, Morton, Norton, Nye, Sprague, Sumner, to the dTesk and read, as follows: and Wade-10. Was there, within the period embraced in the inauiry in the last question, and at any discussions or So the Senate decided the question to be indeliberations of the Cabinet concerning the operation admissible. of the tenure of civil office act and the requirements Mr. EVARTS. We are through with the of the public service in regard to the same, any suggestion or intimation whatever touching or looking witness. to the vacation of any office by force or getting pos- Cross-examined by Mr. Manager BUTLER: session of the same by force. Question. Mr. Welles you were asked if you Mr. Manager BUTLER. To thatwe object. were Secretary of the Navy, and you said you We think it wholly within the previous ruling; held under a commission, and you gave the and if it were not, it would be incompetent date of the commission? upon another ground-that to show that the Answer. March, 1861. President did not state to A, B, or C that he Question. You have had no other? meant to use force by no means proves that Answer. No other. he did not tell E, F, and G. Question. And you have been Secretary of Mr. EVARTS. We may hereafter call per- the Navy down to to-day? sons to testify that he did not tell E, F, and G, Answer. I have continued to this time. and that would not prove that he did not tell Question. Has Lorenzo Thomas acted as a A, B, and C. member of the Cabinet down to to day from Mr. Manager BUTLER. And so on to the the 21st of February? end of the alphabet. Answer. He has met in the Cabinet since Mr. EVARTS. Yes; and so on to the end that time. of time. The question is, Mr. Chief Justice Question. Did he meet as a member or outand Senators, a negative to exclude a con- sider? clusion; and if the subject of force or the purpose of force is within the premises of this Mr. EVARTS. I submit, Mr. Chief Jusissue and trial, evidence on the part of the tice, that this is no cross-examination upon President to show that in all the deliberations any matter we have examined upon, as far as for his official conduct force never entered General Thomas is concerned. into contemplation is, as I suppose, rightfully Mr. Manager BUTLER. I waive it. I will offered on our part. not have a word upon that. Mr. Manager BUTLER. We object to the By Mr. Manager BUTLER: question, whether he told his Cabinet he would Question. Now, then, you told us of someor would not use force, as wholly immaterial thing said between you and the President about and as within the last ruling. -a movement of troops. I want to know a little The CHIEF JUSTICE. The Chief Justice more accurately when that was. In the first does not understand the honorable Manager to place what day was it? object to it as leading. Answer. It was on the 22d of February. Mr. Manager BUTLER. No; it is not worth Question. Is there any doubt about that in while to take that objection. We wish to come your mind? to substance. Answer. None at all. The CHIEF JUSTICE. The Chief Justice Question. What time was it? will submit the question to the Senate. Answer. It was not far from twelve o'clock. Mr. GRIMES. I ask for the yeas and nays. Question. I understood you to fix that time The yeas and nays were ordered. of day by something that happened with the The CHIEF JUSTICE. The Secretary will Attorney General. What was that? read the question. 224nswer. I called on the President on the The Chief Clerk again read the question. 22d, about twelve o'clock. The reception for The CHIEF JUSTICE. Senators, you who official business at the Navy Department is are of opinion that this question is admissible, from eleven to twelve. I left as soon as I will, as your names are called, answer yea; well could, after that matter was over, and those of the contrary opinion, nay. therefore it was a little before twelve, I suppose. Mr. FERRY. I was requested by the Sea- When I arrived at the President's and called ator from Missouri [Mr. DRAKE] to state that on him, the Atttorney General was there. he was called away by sickness in his family. While there, the nomination of Mr. Ewing The question being taken by yeas and nays, was made out. resulted-yeas 18, nays 26; as follows: Question. Never mind about that; I am not now speaking of that. YEAS-Messrs. Anthony Bayard Buckalew, Da- Answer. I am speaking of that. The Privis; Dixon, Edmunds. Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Patterson of Tennes- vate Secretary wished to get it up to the Sensee, Ross, Saulsbury, Trumbull, Van Winkle, and ate as early as he could; and Mr. Stanbery Vickers-18. remarked that he wished to be here, I think, NAYS-Messrs. Cattell Chandler, Cole, Conkling, remarked that he wished to be here, I think, Conness, Corbett, Cragin, Perry, Frelinghuysen, Har- about twelve; that he had some appointment lan, Howard, Howe, Morgan, Morrill of Maine, Mor- about twelve; and it had got to be nearly that rill of Vermont, Patterson of New Hampshire, Pom- time then eroy, Ramsey, Sherman, Stewart, Thayer, Tipton, Willey, Williams, Wilson, and Yates-26. Question. I understood you to say that he 485 had some appointment in the Supreme Court. Answer. I did not hear the reasons. If I Was that so? had heard the reasons perhaps they would have Answer. I will not be sure that it was. satisfied me. I do not know how that may be. Question. Did you not state yesterday that Question. You did not hear the reasons? he had an appointment in the Supreme Court? Answer. No; I knew the fact that they had Answer. Perhaps I inferred that it was there; been called to meet at headquarters that evenI cannot say that he said itwasat the Supreme ing, which was an unusual order, -and were Court, or where it was. call6d from a party, I believe. Question.'Did you not so testify yesterday? Question. What party? Answer. Perhaps I did. Answer. A party that was in F or G street, Question. How was the fact? I think; a reception. Answer. He had an engagement. Question. That they were called from a Question. How was the fact as to your testi- party to go to headquarters. Now, sir, that mony yesterday-not what perhaps you did, was all the movement of troops you spoke of but how do you remember you testified on that yesterday to us, was it not? point yesterday? Answer. I do not recollect that I spoke of Answer. I presume I testified that he was to others. I spoke of that. come here at twelve o'clock to the Supreme Question. Had you any other in your mind Court, because that was my inference. I sup- yesterday but that? posed it was so. He had an engagement at Answer. There were some other movements twelve o'clock, and wanted to get away as soon in my mind; but perhaps not connected with as he could; and it was in connection with the General Emory, unless they were called there nomination of Mr. Ewing, which went up at for a purpose. the same time. Question. There was none communicated to Question. Have you not heard since yester- you, whatever might have been in your mind, day that the court did not sit on Saturdays? was there? Answer. No, sir. Answer. What do you mean by "none comrnQuestion. Have you heard anything on that municated?"' subject? Question. No other movements were ccz lAnswer. No, sir. municated to you, whatever may have beer un Question. Do you know whether they sit on your mind, that evening? Saturdays, or not? Answer. I heard of movements that evenAnswer. I do not. ing, or heard of appearances. I heard that' Question. You do not know upon that mat- the War Department was lighted up, which ter? was an unusual matter. Answer. I do not. Question. You heard that the War DepartQuestion. Now, sir, did you learn that there ment was lighted up? was any other movement of troops, except an Answer. I did. do not know thatI alluded order upon one officer of the regiment to meet to that to President Johnson; but that was General Emory? one of the circumstances that I heard of the Answer. Well, I heard of two or three things evening before. that evening. Question. Then the movement was the call Question. I am now speaking of the officers of the officers of one regiment to meet Genof the regiment? eral Emory. How many officers did you hear Answer. I understand. were called? Question. Did you learn that there was any Answer. I did not hear the number of offiother movement of troops except an order to cers. I heard that General Emory's son and an officer of the regiment to meet General his orderlies, one or two, had called at a party, ~Emory? requesting that any officers belonging to the Answer. I heard that the officers of the regi- fifth regiment, and, I believe, to his own, should ment were wequired to meet at headquarters repair forthwith to headquarters; which was that evening. thought to be a very unusual movement. Question. At what time? Question. I did not ask for your thoughts Answer. That evening. about it? Mr. EVARTS. The 21st. Answer. Well, I thought it was. By Mr. Manager BUTLER: Question. Those officers were asked to come Question. The evening of the 21st? to headquarters. That was all you stated to Answer. The evening of the 21st. the President of movements of troops? Question. And that the officers were called Answer. I will not say that that was all. to headquarters? Question. Is it all that you remember you Answer. The officers were called to head- did? quarters. Answer. I will not be sure whether I stated Question. Did you learn whether it was to to him the fact of the lighting up of the War give them directions about keeping away from Department that night, for that was the first a masquerade or going to it as a reason why of the intrenchment there, or whether I alluded they were called to headquarters? to the fact that there was a company, or part 486 of a company, reported to me as being seen of others, but communicated to the President in the what I had learned. Question. Excuse me; I am only asking EDGAa T. WELL-S sworn and examined. what you stated, not what you think you did not state. By Ur.. EVARTS. not state. Answer. I say I do not know that I stated Questiqn. You: are the son of Mr. Secretary that. Welles? Question. And I am asking for what'you Answer. Yes, sir. stated? Question. Are you employed in the Navy Answer. I say I do not know that I stated Department? to the President that the War Department was Answer. Yes, sir; I am chief clerk of the lighted up that night. Department. Question. I do not ask you for what you do Question, (presenting a paper to the witnot know you stated, but what you know you ness.) Please look at this paper and say if did state? that is a blank form of Navy agent's commisMr. EVARTS. Your question was, whether sions as used in the Department? that was all he stated, and he says he cannot Answer. It is the blank form that was used. say whether it was all or not. Question. Before the civil tenure bill? Mr. Manager BUTLER. I am asking if it Answer. Yes, sir. was all he stated, and I am asking not for what Mr. EVARTS. We propose to offer it in he did not state, but for what he did. evidence. Mr. EVARTS. He says he cannot say but [The document was handed to Mr. Manager that he did. B.UTLLER.] The WITNESS. I stated to him in relation Mr. Manager BUTLER. We have no obto General Emory and what I heard in regard jection to that. Do you want it read? to him. Whether I alluded to the other facts Mr. EVARTS. No.. in my mind I cannot say now. The document thus put in evidence is as Mr. Manager BUTLER. Very well; that follows: is exactly what I want; but I did not want to President of the United States of America: get at what the facts were. The 22d was to be To all who shall see these presents, greeting: kept as a holiday? Know ye, that reposing special trust and confidence in the patriotism, fidelity, and abilities of Answer. It is a half holiday, I believe. The.-, I do, by and with the advice and conWar Department closed that office; but I sup- sent of the Senate of the United States, appoint him pose that is in violation of law. The law is Navy agent for the. e is therefore carefully and diligently to disthat the Departments shall be kept open, each charge the duties of Navy agent, by doing and perof them every day of the year, save Sundays forning all mannerofthings thereunto appertaining, and the Fourth of July and the 25th of Decem- and he is to observe and follow theorders and directions which he may from time to time receive from her. The War Department has sometimes-... the President of the United States and Secretary of Mr. Manager BUTLER. Excuse me; I did the Navy. not ask you for your legal opinion. This commission to continue in force during the The WITNESS. I am not giving a legal term of four years from the —. The WITNESS. I am not giving a legal opin- Given under my hand at Washington, this - day ion. I am stating facts. of -, in the year of our Lord one thousand Mr. Manager B UTLER. You say it is in vio- [L. S.] eight hundred and -, and in the - year of the independence of the United States. lation of law. I suppose that is a legal opinion? By the President: The WITNESS. YOU can read the law and Secretary of the Navy. see what it is. eistered. Question. I am only asking you whether, in By Mr. EVARTS: fact, it is kept as a holiday? Question. Do you remember, on Friday, the Answer. We did not keep it as a holiday, 21st of February, that your attention was drawn as we keep the Fourth of July. The clerks were to some movement, orsupposedmovement, conat the Department and were required to clear nected with military organization here? their desks before they left. Ansiver. I do. Question. How was it in the War Depart- Question. At what hour of the day was that? ment? Answer. I should suppose it was about five Answer. I understood-if you will allow me o'clock. to state that-that the War Department was Question. What was it, and how was it closed on that day. I have understood it was brought to your attention? closed on other days; but the Navy Department Answer. I was attending a small reception, had not been closed in that way. and the lady of the house informed me — Question. I do not want any comparison Mr. Manager BUTLER. Excuse me. You between the Navy and War Departments. I need not state what the lady of the house said. only ask the fact if it was closed on that day. Mr. EVARTS. It does not prove the truth Did you inquire whether the officers were of the lady's statement, but only what it was. called together to notify them that the next Mr. Manager BUTLER. I beg your parday was to be a holiday or not? don; but as nothing but the truth is to be in - Answer. I made no inquiries on the subject evidence we do not want the lady's statement. 487......., u Mr. EVARTS. It came to his notice and Answer. I did. he acted upon it. That is the truth to be Question. At what hourin the evening? proved. Answer. Between eight and nine o'clock; Mr. Manager BUTLER. In answer to that, shortly after I went home. the truth is that this is not the proper way to Question. Was it on an occasion of any enprove the truth of a case of impeachment, by gagement of the President? putting in what the lady said to this man. No Answer. The President was engaged at dinmatter how he got the information; let him ner. give the information he gave to his father. Question. Was it a diplomatic dinner? Mr.EVARTS. Verywell. [Tothewitness.] Answer. It was a State dinner. I do not. What information did you get, whether it was remember precisely the character of it. from a lady or not, I do not care? Question. Did you see him? Mr. Manager BUTLER. No, sir; the ques- Answier. I did not see him on that account. tion should be, what informnation did he give Question. And you reported to your father? to his father? Answer. I reported to him that I did not see Mr. EVARTS. I want to prove that he him; that there was nobodyat the President's gave the same that he got; that he did not Mansion to communicate with. make it up. I certainly am permitted to prove Question. Was anything further done that what occurred. It will all be over in three night that you know of on the subject? minutes. [To the witness.] Did you gain any Answer. Nothing further that I know of. information concerning it? No cross-examination. Mr. Manager BUTLER. On the whole, I Mr. EVARTS. Mr. Chief Justice and Senthink it had better come in; I will not object. ors, we have in attendance, to give their eviMr. EVARTS. It is utterly immate~rial. dence, the Secretary of State, the Secretary Mr. Manager BUTLER. I think it is. of the Treasury, the Secretary of the Interior, The WITNESS. General Emory had, sent his and the Postmaster General, and we offer them orderlies there that afternoon requesting cer-as witnesses to the same points that we have tain officers named to me to report to head- inquired of from Mr. Welles, and that have quarters immediately, and that after that Gen- the rulings of the court. been covered by the rulings of the court.! If eral Emrys son, r. Tom. Emry, had come objection is made to their examination, of there with the request that any officers of two course it must be considered as covered b the branches of the service-I do not recall what rulings already made. two branches; cavalry and infantry or cavalry Mr. WILLuAMS. I did not full underand artillery-should report at headquarters stand the last witness, and I should like to immediately. have him recalled for a moment Mr. CONNESS. Mr. President, we cannot hear the witness. We did not hear the answer EDGAR T. WELLES recalled. to the last question. Mr. WILLIAMS. If allowable, I should Mr. EVARTS. Does the Senator desire it like to inquire of the witness whether what he to be repeated? communicated to his father was told to him by Mr. CONNESS. Yes, sir. this lady, or whether it was communicated to Mr. EVARTS, (to the witness.) Be so good him by the officers? as to repeat it. Answer. It was told to me by this lady. Answer. That General Emory had sent cer- Mr. EVARTS. We tender the witnesses I tain orderlies requesting officers, who were have named for examination upon the points named, to report at headquarters without de- that Mr. Secretary Welles has been interrolay, and had also sent his son, requesting that gated concerning, and that the rulings of the any officers of two branches of the service, cav- Senate have covered. If the objection is made, alry and infantry, or cavalry and artillery, it must be considered as covered by that should report at headquarters immediately. ruling. Question. After this, did you communicate Mr. Manager BUTLER. We object. We this to your father? have not objected that Mr. Welles was not a Answer. I did, sir. credible witness, but only that the testimony Question. At what time? to be given was not proper. Answer. I should suppose it was about seven Mr. EVARTS. - understand that. o'clock. Question. The same evening? ALEXANDnER W. RANDALL sworn and examAnswer. The same evening, between seven ined. and eight o'clock. By Mr. EVARTS: Question. Were you sent on any message to Question. Mr. Randall, you are Postmaster the President concerning this? General? Answer. I was. Answer. I am, sir. Question. By your father? Question. From what time have you held Answer. I was sent by him over to the Pres- that office? ident's. Answer. I was appointed in July, 1866; I Question. Did you go? have held it from that time. 488 Question. Before that time had you been in Mr. EVARTS. Yes, sir. [To the witness.] the Department; and if so, in what capacity? And on the complaint, verbally and in writing, Answer. I had been from the fall of 1862. this action was taken? I was First Assistant Postmaster General. Answer. Yes, sir. Question. Since the passage of the civil- Mr. EVARTS. I propose to put in evidence tenure act, have cases arisen in the postal ser- these papers. vice in which officers came in question for their Mr. Manager BUTLER. Let me see them conduct and duty in the service? first. Answer. They have. After an examination of the papers. Question. Do you remember the case of Fos- Mr. Manager BUTLER. Have you a copy ter Blodgett? of the indictment referred to in these papers? Answer. I do. Mr. EVARTS. It is not here. Question. What was he? Mr. CURTIS. Governor Randall has it Answer. He was postmaster at Augusta, in here. Georgia. Mr. EVARTS, (to the witness.) Have you Question. Was there any suspension of Mr. it here? Blodgett in his office or in its duties? The WITNESS. I do not think a copy of the Mr. Manager BUTLER. That suspension indictment is here. must have been evidenced by some writing. Mr. Manager BUTLER. That is all there Mr. EVARTS. I have asked the question is of it. whether there was one. Mr. EVARTS. Very well. Mr. Manager BUTLER. If it was in writ- Mr. Manager BUTLER. We object to these ing I desire it to be produced. papers, because, very carefully, there has been Mr. EVARTS. I expect to produce it. left out the only thing that is of any conseThe WITNESS. There was. quence. Question. By whom was it made? Mr. EVARTS. Whose care do you refer to? Answer. It was made by me. Mr. Manager BUTLER. The man who Question. As Postmaster General? did it. Answer. As Postmaster General. Mr. EVARTS. Who is that? Question. Had the President anything to do Mr. ManagerBUTLER. Idonotknow. This with it? Mr. Blodgettis now attempted to be affected in Answer. Nothing at all. his absence, and I feel a little bound to take care Question. Did he know of it? of him, because, being called as a witness here, Answer. Not when it was done, nor before it. he must be dealt justly with. The papers they Question, (handing some papers to the wit- now offer refer to the evidence of Mr. Blodness.) Please look at these papers and say if gett' s misconduct, and the evidence is not prothey are the official papers of that act? duced here, not even a recital of it; and thereAnswer. Yes, sir; they are certified to be fore I say it is unjust to put in Mr. Randall's by me as Postmaster General. recital of a fact that happened when he has in Question. Did you receive' a complaint his Department the fact itself, and which has against Mr. Blodgett? been, by somebody to me unknown, carefully Answer. There. was one; yes, sir. kept away from here. Question. And was it upon that complaint Mr. EVARTS. Mr. Chief Justice and Senthat your action was taken? ators, the honorable Managers chose, for some Answer. It was. reason and ground best known to themselves, Question. In what form did the complaint to offer in evidence as a part of this incrimcome to you, and of what fact? ination an act of the President of the United Mr. Manager BUTLER. Let the complaint States in the removal of Foster Blodgett. I itself state. propose to show what that act was. Mr. EVARTS. I have asked in what form Mr. Manager BUTLER. I do not object, if it came. you will show what that act was, and not keep Mr. Manager BUTLER. The complaint will back the paper which is the inculpation of Mr. speak for itself. This form is in writing. Blodgett. Mr. EVARTS. I do not know that. Mr. EVARTS. I am not inculpating Mr. Mr. Manager BUTLER. Then I object to Blodgett. I am proving what the act of the the information of others. Executive Officer of the United States was that Mr. EVARTS. I have asked in what form you have sought to put in evidence by oral the complaint came to him. Is that objected testimony. to? Mr. Manager BUTLER. You have put in Mr. Manager BUTLER. No, sir; that is the fact that Mr. Blodgett was removed upon not objected to; whether it was in writing or a complaint in writing of misconduct, and you verbal. keep back that complaint in writing. The WITNESS. It came in writing and ver- Mr. EVARTS. And you said that if the bally, both. act was in writing it must be proved by the Mr. Manager BUTLER. We shall have the letters, and I agreed to it, and now produce writing, I suppose. them. 489 Mr. Manager BUTLER. You do not pro- doubtedly it is competent for the Senate to duce the complaint. order it to be read. Mr. EVARTS. Well, we will not wrangle Mr. SHERMAN. If the counsel will state about it. I offer the official act of the Depart- the matter so that we can act upon it without ment in the removal of Mr. Blodgett. taking time in reading the papers, I have no Mr. Manager BUTLER. And I object that objection. it is not fair play unless you.bring in the corn- The offer'to prove of the counsel for the plaint. respondent was reduced to writing and sent to Mr. EVARTS. The learned Manager treats the desk. this as if it were a question of impeaching Mr. The CHIEF JUSTICE. The Secretary will Blodgett. I am giving in evidence the act of read the offer to prove made by the counsel for the executive department which you brought the President. in testimony. The Secretary read as follows: Mr. Manager BUTLER. We proved the We offer in evidence the official action of the P*st act ourselves. We proved that they removed Office Department in the removal of Mr. Blodgett, Blodgett. Now, then, there is no occasion to which removal was put in evidence by oral testiprove that over again, if they are goifig to stop mony by the Managers. there.Mr. MranagerBUTLER. Wewillnotobject Mr. EVARTS. You made it inculpation, further. We think we can get in the indictand we want to prove what the act was. ment somehow. Mr. Manager BUTLER. Then produce the The CHIEF JUSTICE. The objection is whole thing on which it was grounded. withdrawn. Mr. JOHNSON. What is the paper? - Mr. EVARTS. I ask the Clerk to read the Mr. GRIMES. I call for the reading of the papersin theirordJUSTICE. The The CHIEF JUSTICE. The Clerk will read paper. - the papers offered by the counsel. Mr. EVARTS. If you want the indictmentr counsel. produced it may certainly be produced: but The Chief Cler read the papers, as follows: the fact that it is not here is no legal objection A. to these papers. %OST OFFICE DEPARTMENT, Mr. JOHNSON. What is the paper pro- January 3, 1868. dced? dIt appearing from an exemplified copy of the bill ~~~~~~~~duced ~? of indictment now on file in this Department, against The CHIEF JUSTICE. The counsel for Foster Blodgett, postmaster at Augusta, Georgia, the President will state what they propose to that he has been indicted in the United States district court for the southern district of Georgia for prove in writing.perjury: it is Ordered that said Foster Blodgett be Mr. EVARTS. I offer in evidence the order suspended from the office of postmaster at Augusta, and letters handled to the Clerk, and desire Georgia, aforesaid; and that George W. Summers be thand letters handed tobe read Clerk, and desire designated as special agentofthisDepartqient to take that they may be read. charge of the post office thereat and discharge all its The CHIEF JUSTICE. It will be neces- duties until further action shall be had by the Presisary to state what the order and letters are; dent and Senate of the United States. ALEX. W. RANDALL, otherwise the court will be unable to judge of Postmaster General. their admissibility. Mr. EVARTS. The testimony of Governor PosT OFFICE DEPARTMENT, Randall has described them as the official ac- WASHINGTON, D. C., April 17, 1868. tion of the Department. I offer in evidence This is to certify that the foregoing, marked.A, is a the official action of the Post Office Depart-. true copy of an original order on file in this Departmbent in accomplishing the removal of Foster In witness whereof I have hereunto set my hand Blodgett, which removal was put in evidence and caused the seal of the Post Office Departby the Managers. [L. S. ment to be affixed, at the General Post Office by the managers.* Al' 8.~in the city of Washington, District of ColumThe CHIEF JUSTICE. The counsel will bia, the day and year first above written. please reduce their offer to writing. ALEX. W. RANDALL, Mr. SIlERMAN. I think we have a right Postmaster General. to ask for the reading of the lettersto know B. what we are called upon to vote. THE POST OFFICE DEPARTMENT: The CHIEF JUSTICE. The Senate un- To whom it may concern: doubtedly have a right to order the letters to Know ye, that Foster Blodgett having been susbe read. pended from the office of postmaster at Augusta, Mr. SHERMAN. We are called upon to Georgia, undera bill ofindictment for perjury, George We. Summers is hereby designated a special agent of decide a question of evidence, and I should this Department to take charge of the post office and like to know what is offered from the papers public property thereat, and to discharge all the dutips of the aforesaid office. themselves. Witness my hand and the seal of said Department The CHIEF JUSTICE. The usual mode r. j at Washington this 3d day of January, A. D. of proposing to prove is by stating the nature 1868. ALEX. W. RANDALL, of the proof proposed to be offered, and then, Postmaser General. upon an objection, the Senate decides whether POST OFFICE DEPARTMENT, proof of that description can be introduced. WASHINGTON, D. C., April 17, 1868. t is' not usual to read the proof itself. Un- This is to certify that the foregoing, marked B, is a true copy of an original commission on record in Cross-expmined by Mr. Manager BUTLER: this Department.:...... ~~Question. Is the post office in A ugust, In witness whereof I have hereunto set my hand. Is the post office n August and caused the seal of the Post Office De- Georgia, one that is within the appointment of partment to be affixed at the General Post the President under the law?.L. Sj,] Office in the city of Washington, District of Answer It is. Columbia, the day and year first above writ-.' ten. ALEX. W. RANDALL, Question. Was Mr Blogett appoted by Postmaster General. the President? Answer. He was. I~c~~. ~Question. When? POST OFFICs DEPARTMENT, Answer. I cannot tell you that. APPOINTMENT OFFICE, January 3,1868. estion. Some time ago Sin: Inclosed please find blank oath and bond ne to be executed by yourself and sureties as special Answer. Yes, sir; some time ago; and conagent of this Department to take charge of the post firmed by the Senate. office at Augusta, Richmond county, Georgia. So st Question. Under what law did you, as PostSoln as the same shall have been executed and placed in the mail addressed to this Department, you will master General, suspend him? tren exhibit the inclosed commission to Foster Blod- Answer. Under the law of necessity. gett, or to the person in charge of the post office at uesti A thr? ~~~~~~~~~~Quition. Any other? Augusta aforesaid, take possession of the public prop6rty thereat, and enter on the full discharge of all Answer. Under the law authorizing mne to the.duriesthereof, as required bythe postal laws and put special agents in charge of offices where t regulations. ou ~~~~~~~~~~was satisfied that injusticewabendoey ou will continue to conduct the office in thesamewas stisfied that injustice was being done by manner as though you were postmaster until the the postmaster, and under the practice of the President and Senate shall have taken further action Department, u.jthe premises. Question. I am asking you now as to the X our salary will be at the rate of $1,600 a year with Question. a askng you no as to the threedollars per diem for subsistence. ]aw. We will come to the practice by and by. Very respectfullY, our obedient servant, Cannot you tell us whereabouts that law will ST. JOHN B. L. SKINNER. be found? First Assistant Postmaster General. e GEORGE W. SUMMERS, esq., Augusta, Georgia. Answer. No, sir; not without referring t9 my notes. PoWr bFFICE DEPARTMENT, Question. Well, sir, refer to your notes, WiSRINGTON, April 17,1868. Of course I do not mean that unwritten lawThis is to certify that the foregoing, marked C, is a the law of necessity? true copy of a letter on record in this Department. A tIn witness whereof I have hereunto set my hand Answer No. It was a question whether and caused the seal of the Post Office Depart- would close up the office, or appoint a special [L. s.] ment to be affixed at the General Post Office agent. [Holding a letter in his hand.] I have in the city of Washington, District of Clo ba, theday and year first abo~ve writtenum there, in a letter I wroteALEX. W. RANDALL, Question. I do not care about your letters. Postmaster General. I am asking you to refer me to the law under ~~D. ~which you did it, if you can? D. POST OC DEPARTM Answer. I can make no further reference Pos? OFFICE DEPARTMENT. -......... ArPOINT"ENT OFFICE, January 3,1868. than I did to that law, except my authority to SIR: A copy of the bill of indictment found against appoint special agents. you in the United States district court for the south- Question. What statute did you do this era district of Georgia, for perjury, has been placed on file in this Department.and in consequence thereof er the Postmaster General has made an order suspend- Answer. Appoint the special agent? ing you from the office of postmaster at Augusta, Question. What statute did you do this act Georgia, and designated George W. Summers s spe-statute do you justify yourself under? What statute d o yujstify yourself eial agent of this Department, to take charge of the aforesaid post oeffice and all the public property by? thereat..- Answer. I do not justify myself under any You are, therefore required to deliver to said l a particular statute. George W. Summers the mail key and all the publicparcuar su.. property in your possession, upon the exhibition of Question. What general statute? his commission and demand for the mail key and Answer. No general statute. property aforesaid; take fromn him duplicate receipts Questn. Then under no statute whatever Question. Thea Under no statute whatever,, for the same; retain one and forward the other to this Department. either particular or general, do you justify Very respectfully yr. K, yourself, Nqw, sir, do you mean to say that S..' JOHN B. L. SKINNER, this took place on the 8d of January? First Assistant Postmaster General. 3T OER~ esq., GSeorgvia.Answer. The fore part of January. OETT Au..st, Question, The paper is dWated the 3d. POST OFFICE DEARTMAnswer. The fore part of January. WASEINGTON, April 17, I88. XTr, JOHNSON. What is th date of the This is to certify that the foregoing, marked D. is a paper, Mr. Manager? true copy of a letter on record in this Department. Mr. Manager BUTLER, They are all dated In witness whereof I have hereunto set my hand t and caused the seal of the PostOffieeDepart- y, 1868 [T the witness ment to be affixed at the General Post Office, Now, sir, have you ever communiceted tli~ CL. s.] in the city of Washington, District of Colum- cae to the President big the day and the Year first above men-............ t.. bia, the ay and th~~ w, RANA Answer.I did tioned. ALX. W- RANDAL L, nwer I dd pict er GGrl. Queis.ti, When? 491 Answer. I do not recollect; some time after Question. Why did you not furnish us a copy it was done. of the indictment? Question. About how long? Answer. I cannot tell about that. I did not Answer. Perhaps a week. think anything about it. I would have furQuestion. More? nished it to you if you had asked me for it. Answer. I do not remember about that; a You did not ask me for any copies. few days afterward. Question. Now, sir, lad you any other comrnQuestion. Did you take any advice of the plaint against Foster Blodgett except the fact President, or consent, or order before you that he was indicted? made this removal? Answer. I do not remember any now. Answer. I did not. Question. Have you any inclination of your Question. Was the verbal complaint the mind; anything in your mind, in any way, of same, or different from the written complaint anything else brought against him? against Foster Bfodgett? Answer. I cannot tell you now. I do not Answer. It was the same, It was the state- remember anything else. There may be somement that he had been indicted by the district thing in the papers. attorney. Question. Have you any remembrance of Question. The statement that he had been acting upon any other, which you have forgot. indicted? ten? Answer. Yes, sir. Answer. I do not remember anything now, Question. And was there any other amrn- The papers are quite voluminous, and there plaint? may be something else in them. I do not reAnswer. And a copy of the indictment. member now. Question. Was there any other complaint Question. Did you act upon any other than than that? this? Answer. I do not remember now whether Answer. Not that I remember. there was any other or not. Question. Now, sir, was not that an indict. Question. Who made the complaint to you? ment brought by the grand jury of that county Answer. The district attorney of that dis- against him for taking the test-oath? trict stated to me the fact that an indictment Answer. Yes, sir. had been found against him. Question. Was it for anything else except Question. Did he state it to you in person? that he was supposed to have sworn falsely Answer. Yes, sir. when he swore the test-oath? Question. Did you ask him to forward you a Answer. Not that I remember. copy? Question. It was taking the test-oath as an Answer. No, sir. officer of the United States that he had not Question. Did he do so? been in the rebellion? Answer. He did, or somebody did, Answer. Yes. Question. Somebody did. Do you know Question. And you removed him for that? who? Answer. No, sir; I did not remove him. Answer. I cannot tell, unless he did. Question. You suspended him for that? Question. Did you prepare these papars Answer. Yes. here? Question. Did you give him any notice of Answer. I ordered them to be prepared. the suspension? Question. You ordered all the papers to be Answer. I did. pfepared? Question. That you were going to do it? Answer. I did. Answer. No, sir; not that I was going to do Question. Why is not a copy of the indit it. I sent him the notice you see there, or ment here, then? directed it to be sent. Answer. It was not inquired for, and I did Question. You sent a notice suspending not think-of it. him? Question, If it was not inquired for, who Answer. I directed notice to be sent to him Made the inquiry for the papers? that he was suspended, a copy Qf which is in Answer. One of the attorneys aked me the papers about the case. Question. That was the order of suspension? Question. One of the counsel aked you Answer. Yes, sir. about the case, the papers I am talking about Question. You did pot give him any means now? of defending himself, or showing what had Answer. He asked me what was the condi- happened to him, or how it came on? tion of the case, what the testimony of Mr. Answer. No, air. Blodgett meant, and I told him, and told him Question. But you suspended him at once? I could furnish all the orders that were made Answer. I did. in the case; and I did so. Question. Is there any complaint on your Question. Then you volunteered to furnish books that he had not properly administered him the orders? this office? Answer. I did?.. Answer. I do not remember any. 492 Question. Certainly none upon which you Answer. No, sir; I did not. acted? Question. Did you inquire? Answer. Not that I remember. Answer. I did not. Question. And a competent officer, acting Question. Whether they were rebels or Union properly, because somebody found an indict- men? ment against him for taking the test-oath, Answer. I did not. swearing he was a Union man, you suspended, Question. Did you not ask whether it was a without any hearing or trial at all? prosecution by rebels down there against Mr. Answer. I do not swear to any such state- Blodgett? ment as that. Part of it is incorrect. If you Answer. No, sir; that was not my business. will ask me to state what there is about this I simply inquired as to the fact of his being case, I shall be glad to do it. indicted for perjury in taking the oath of office. Question. I will ask this question, and you Mr. Manager BUTLER. Will you have the will answer it- kindness to furnish me with a copy of that The WITNESS. Ask your questions and I indictment, duly certified? will answer them. The WITNESS. I will do so, certainly. Question. I will put this question: Did you Mr. Manager BUTLER. And of any other not suspend this officer, without investigation complaint you can find against Foster Blodgett or trial, upon the simple fact of an indictment before his trial commenced? being found against him for having taken the The WITNESS. I will do so. test-oath to qualify him for that office, against Mr. CURTIS. We should prefer to have it whom no other complaint stood in your office? furnished to the court, and it can be directed Answer. I do not remember any other com- to be put into the case. I suppose that will plaint now, as I have stated before. answer the purpose. Question. And therefore if you answer upon Mr. Manager BUTLER. I do not know what you know, you will have to answer yes; that until I see it. If you had -wanted it very you did suspend him? much you could have had it. Answer. Yes, I did suspend him; and if he Mr, CURTIS. It was a mere inadvertence. had been convicted I should have asked to The WITNESS. I presume they did not think have himn removed. of it, for I did not. Question. This case has been pending since Mr. CURTIS. It was a mere inadvertence the 3d of January? that it was not produced Answer. Yes, sir. Mr. Manager BUTLER. Perhaps. Question. Has it ever been communicated Mr. CURTIS. I wish it now produced. by the President to the Senate? [To the witness.] Will you furnish to the Answer. Not that I know of. Secretary of the Senate a copy of that indictQuestion. Did he direct you so to do? ment? Answer. No, sir. TheWITNESS. Yes,sir. Question. Did you suspend him under the e. Yes, ~~civil-tenure actMr. Manager BTITLER. Furnishing it to Answter. No, sir. the Secretary without my seeing it will not put Question. You took no notice of that? it into the case. If you desire it to be furAswer. Yes, sir; I took notice ofit That nished to him, very well; but I object to anyAnswer. Yes, sir; I took notice of it. That being put on the files without my seeing was the difficulty in the case, if you will allow th ind I shll want the witness after that. it; and I shall want the witness after that. ~~tome. nontc fi oat Mr. EVARTS. If it is objected to as eviQuestion. You took dence, perhaps it is not worth while to proAnstwer. I could snot act under it. duce it. The only object of having it here is Answer. I could not act under it. as evidence. Question. How many hundreds of men have you appointed who could not take the test- Mr. Manager BUTLER. I cannot tell yoathppointed who could not take the test- whether I shall object to it or not until I see it.,Answer. I do not know of any-none ta Mr. EVARTS. That will be a private matAnswer. I do not know o f any-none that I ter, then, between you and Governor Randall. kr. Manager BUTLER. We shall want the Question. Do you not know that there are Mr. Manager BUTLER. We shall want the Postmaster General with it. I shall want to men appointed to office who have not taken him some more uestions after I get t the test-oath? Mr. EVARTS. You can do so. The WITNESS. AS postmasters? Mr. EVARTS. ou can do so. Mr.The WINE. Aspostmasters? siThe WITNESS. There is another similar Mr. Manager BUTLER. Yes, sircase in which I suspended a man last week. The WITNESS. No, sir; I do not know of Mr. ManagerBUTLER. Never mind about one-never one with my consent. the other case. I do not care about what you Mr. JOHNSON. What is your last answer? have done since. The WITNESS. I say there never has been The WITNESS. I thought you might want such an appointment with my consent. that. By Mr. Manager BUTLER: Question. Did you learn who were the prose- Reexamined by Mr. EVARTS: tutors under this indictment? Question. I understand your judgment as 493 Postmaster General was that this suspension upon that question of the Senator, that it has should be made. been once decided by the Senate. answer. Yes, sir. The CHIEF JUSTICE. The Chief Justice Question. It occurred not during a recess of has no doubt that the question may be propthe Senate? erly put to the witness. Whether it shall be Answer. No, sir; it was during the session answered is a question for the Senate to judge. of the Senate. Mr. Manager BUTLER. I should like, Question. So that it was not under the civil- before that question is put, to have the questenure act? tion which was decided by the Senate to-day, Answer. Not as I understand it. the third question I think it is, read from the Mr. EVARTS. It would not be a suspen- minutes. It was an offer covering exactly the sion under the civil-tenure act. same ground. Mr. Manager WILLIAMS. It was during The CHIEF JUSTICE. The offer will be the recess. read. Mr. EVARTS. It was not in the recess, Mr. SHERMAN. If the Senate will allow and the civil-tenure act does not apply to the me, I can tell in a word the difference between case. [Tothewitness.] Now, sir, this oath, for the two. perjury in taking which he was indicted, as you Mr. CONNESS and others. I object. were informed by the indictment, was in tak- Mr. CONKLING. Let us hear that offer ing the oath to this office that he held? read. Answer. Yes, sir. The CHIEF JUSTICE. The Secretary will Mr. Manager BUTLER. I object to what read the offer to prove, the reading of which was done as to the indictment until that can be is requested by Mr. Manager BUTLER. produced. The Secretary read as follows: Mr. EVARTS. I said as you stated. You We offer to prove that at the meetings of the Cabasked him the question whether the indict- inet at which Stanton was present, held while thQ ment was not for taking a false oath. 1 ask tenure-of-civil-office bill was before the President him if that false oath was not in qualifying for fo pal, the advice of the sameCabinet in regard to this office which he held? the Cabinet, and thereupon the question whether The WITNESS. Yes, sir. Mr. Stanton and the other Secretaries who had reThQuestNESon. YesAnd in which susp eived their appointments from Mr. Lincoln were Question. And in which,you suspended within the restrictions upon the President's power him? of removal from office created by said act, was conAnswer. Yes, sir; that is what I understand. sidered and the opinion expressed that the SecreAMr. EVARTS. That is all, sir. uestaries appointed by Mr. Lincoln were not within Mr. EVARTS. That is all, sir. such restrictions. Mr. Manager BUTLER. That is all until you bring the indictment. Mr. JOHNSON. I ask that the question Mr. SHERMAN. I desire to submit, if the propounded by the Senator from Ohio shall Senate think the question admissible, this ques- now be read. tion to this witness, or any other member of The Secretary read the question, as follows: the Cabinet that may be called. It may be State if, after the 2d of March, 1867, the date of the pa assage of the tenure-of-office act, the question contravened by the decision already made, and whether the Secretaries appointed by President LinI should like to have the question decided by coln were included within the provisions of that act, the Senate. came before the Cabinet for discussion; and if so, what The CHIEF JUSTICE. The Secretary will opinion was given on this question by members of The CHIEF JUSTICE. The Secretary will Cabinet to the President? read the question proposed by the Senator Mr. FERRY I call for the yeas and nays Mr. FERRY. I call for the yeas and nays from Ohio. the Secretary read as follows: on that question. The yeas and nays were ordered; and being State if, after the 2d ofT March, 1867, the date of taken, resulted yeas 20, nays 26; as follows the passage of the tenure-of-office act, the question taken, resulted-yeas 20, nays 26; as follows: whether the Secretaries appointed by President Lin- YEAS - Messrs. Anthony, Bayard, Buckalew, coin were included within the provisons of that act, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, came before the Cabinet for discussion; and if so, Hendricks, Johnson, McCreery, Patterson of Tenwhat opinion was given on this question by mem- nessee. Ross, Saulsbury, Sherman, Trumbull, Van bers of the Cabinet to the President. Winkle, Vickers, and Willey-20. NAYS-Messrs. Cameron, Cattell, Chandler, Cole, Mr. Manager BINGHAM. We desire to Conkling, Conness, Corbett, Cragin, Edmunds, Ferry, object to that on the ground of its incompe- Frelinghuysen,' Harlan, Howard, Howe, Morgan,,tency, and that we deem it directly within the Morrill of Maine, Morrill of Vermont, Patterson of New Hampshire, Pomeroy, Ramsey, Stewart. Thayer, ruling of the Senate twice or three times made Tipton, Williams, Wilson, and Yates-26. this day. NOT VOTING —Messrs. Drake, Henderson, MorMr. Manager BUTLER. The very same ton, Norton, Nye, Sprague, Sumner, and Wade-8. question was voted upon. So the question was not admitted. Mr. Manager BINGHAM. The very same Mr. EVARTS. Mr. Chief Justice and Senquestion. ators, the counsel for the President are now Mr. SHERMAN. I should like to have the able to state that the evidence on his part is question taken by the Senate upon that by yeas now closed, as they understand their duty in and nays. the matter. The conduct of the proofs, howMr. HOWARD. I raise a question of order ever, has been mainly intrusted to Mr. Stan; 494 bery, both on the part of the counsel' and for Mr. CtJRTIS. No, Mr. Chief Justice; we some particular reasons in reference to his consider that we have closed the evidence on previous knowledge concerning the conduct of the part of the defense. 4 the controversy and the matters to be given in The CHIEF JUSTICE. Do the honorable evidence which belonged to his official famil- Managers propose to put in any rebutting iarity with them. Mr. Stanbery's health, we evidence? are sorry to say, is still such as to have pre- Mr. Manager BINGHAM. As we are adcluded anything like a serious conference with vised at present, Mr. President and Senators, them since he was taken ill. We submit it, we may desire, in case one or two witnesses therefore, to the Senate that, upon such con. subpoenaed early in this trial should appear, sideration, it is possible some other proof may to call them. I will desire, however, to consult need to be offered. We do not at present ex- my associates, two of whom are absent and who pect that it will be so., are expected within a few minutes at the table, Mr. JOHNSON. Mr. Chief Justice, I ask in regard to any further statement about it. the Managers if they have any proof to offer The CHIEF JUSTICE. In case the hone to-day? orable Managers desire to put in further eviMr. Manager BUTLER. Not till the other dence after the argument it will be necessary to side get through. obtain an order of the Senate; at least it would Mr. JOHNSON. I move, then, that the be proper to obtain such order before the court adjourn until eleven o'clock on Monday. argument proceeds. Mr. EVARTS. Mr. Chief Justice, we have Mr. Manager BINGHAM. I wish to be made this announcement. We suppose our- understood as suggestingto the presiding officer selves to be through. I have only stated that of the Senate that I desire to consult my assoin the absence of Mr. Stanbery, it may be pos- ciates further about it. sible that some further evidence may need to The CHIEF JUSTICE. Certainly. be offered, which we do not at all expect. Mr. Manager BINGHAM. So far as the Mr. Manager BUTLER. When you are order is concerned, I took it for granted that entirely through we will commence. upon the suggestion made at the time the evti The CHIEF JUSTICE. The Senator from dence was closed on the part of the Managers Maryland moves that the Senate, sitting as a it would be competent for us without further court of impeachment, adjourn until Monday order, if these wvitnesses should appear, to inat eleven o'clock. troduce them upon the stand, because the SenThe motion, was agreed to; and the Sen- ate will recollect, although I have not referred ate, sitting for the trial of the impeachment, myself to the Journal of proceedings since, it adjourned. was stated by my associate Manager, Mr. BUTLER, in the hearing of the Senate, that we con. sidered our case closed, reserving our right to call rebutting testimony or to offer some docu. The ChiefJustice ofthe United States took the mentary testimony that might have escaped our chair. notice. Some such statement, I believe, was The usual proclamation having been made entered upon the Journal. by the Sergeant-at-Arms, Mr. JOHNSON. I am not sure that I heard The Managers of the impeachment on the correctly the honorable Manager. I rise merely part of the House of Representatives and the for the purpose of inquiring whether the Mancounsel for the respondent, except Mr. Stan- agers desire to have the privilege of offering bery, appeared and took the seats assigned to evidence after the argument begins? them respectively. Mr. Manager BINGHAM. Not as at presThe members of the House of Representa- ent advised, althoughortthat subject, as doubttives, as in Committee of the Whole, preceded less is known to honorable Senators, in proby Mr. E. B. WASHBURNE, chairman of that ceedings of this sort, (though I am not prepared committee, and accompanied by the Speaker to say that it has happened in this country; I and Clerk, appeared and were conducted to the am not sure but it did, however, in the case of seats provided for them. Justice Chase,) such orders have been made The CHIEF JUSTICE. The Secretary will after the final argument has been opened. I read the Journal of Saturday's proceedings. am not advised, however, that the Managers The Secretary proceeded to read the Jour- have any desire of that sort. I wish it to be, nal of the Senate sitting on Saturday last for understood simply by the Senate that there are the trial of the impeachment; but before con- one or two witnesses who were deemed imcluding was interrupted by portant on the part of the Managers who were Mr. STEWART. I move that the further early subpoenaed to attend this trial, and neither reading of the Journal be dispensed with. of whom we have been able yet to see, although The CHIEF JUSTICE. If there be no ob- we are advised that they have been in the capjection it will be so ordered. The Chair hears ital for the last forty-eight hours, or twentyno objection. It is so ordered. Gentlemen of four hours at least. counsel for the President, do you propose to Mr. YATES. I do'not still understand-I put in any further evidence? could not hear the Manager-whether he pro tiposes to introduce evidence after the examin- Preaidnt and th e ntos, letter from the MounleSNveiwginal legO~rehh~aanrslu, an~outwTRE.ASURYz DEPXRtrEF(?, AUaUst 23, 1855. atiSI: Your letd nd after of the 18argument bgins. Treasunt r ecommendt in answer to w gat has Mr. Manager BINGHAM. As at present been put Irvin as the practicendall for the appointment of advised, we have no purpose of the sort. I to appoint officers during the recess. [The only made the remark I did in oisrespi vse to the i letter wa havnded to the counsel for the rehonorable gentleman from Maan Ido spondent.] It is one of a series of letters, not know what may occu the adprogress of which were enot brought to your attention in this trial, a nd I do not wis to be eoncluded by the schedules which tou allowed to come in. any statemdent oI have made here touching the Only so much of the eeactice, as I charge, astl rights of the people under the usage anasd prac- would make ono on side utin. tice in proceedings of n theirs okind. [The letter was ret the Manager], Mr. JOHNSON. I do not think there is Mr. EVARTS. The letter we do not conany such practice and oin the United States. ider as applicable to any point that we have Aftaerxy am paue,, made eithser in argument or in e AMvidence; nor Mr. Manager BUTLER. I desire, Mr. Pres- do we regard it as an act of the Treasury.Pe idsent, to offe the Journal of Congress of partment, but simply as an expression of tand.~ith ful.orders and aue~thuonhtritoy toat a ou shrteanlloAENDRWRNALexmnd 1774-75, of the First Congriess, pages 121-22, opinion of the then' existi~ng.Secretary of the which is a report of the committee appointed Treaury. It is simply an immaterial puiece nedto draft a commission to the Generalc George of evidence; it is not worthwhile to olecupy Waoshington, who' had just been theretofor time in discussing it. appointed: Mr. Manager BUTLER. Ionly ask whethet "SATURDAYTiss 17, 1775. you object?I A f * Mr. EVARTS. Inhavestatedall have to be, The committee appointed to draft a commision to the Geneveral dreported in the same, which, being say.de read by paragraphs and debated, was agreed to as Mr. Manager BUTLER. You do not.e follows: CONGRsS. Mr. EVARTS. No. I have stated what it ilcdausing tictmtisipione andoder th e Cobseredin wanot tohexamine them toriia copy what Ifiled there the I ndelegates ofthenited Colonies e of Newr amp e applied to. rshie, Massachusetts Bae, Rhode Island, Copnec- Mars. er. n BUTLER, Very well. Io will ticut, New York, New Jersey, Pennsylvania, the read the letter:'uties of CNew Catle to Kegat ySussexonDelawat iret Matrylniria othe Crolina and S - Sip: Your letter of the 18th instant, recommending olina. William Irving Crandall for the appointment of To GEORGE WAS'HIlNGToN, esq.:d suWe, r se rs an d dconsfidm surveyor of the customs at Chattanooga, Tennessee, patriotismhvalor, conduct, and fidelityd, b ten e is received. The office not having been filled before ptroQuestis, onvr. Hacndu on you to ne the adjournment p of the Senate, it must necessarily peeTscosiueadapityutbeenrlremain vacant until its next ses sion twhern your i reaned mmander-in-Chioef of the Army of the United ommendation of Mr. Crandall will receive respectful Colonies, and of all the forces now raised or to be i raised by thenaisd of all others who shall voluntarily ihathonoto be, Qffcr their service and join the said Army for the de- entav s hervantJAMESver GepetuTl Hu RIb, fense of Americsion liberty and for repelling every Seceas ioth mea hostiletinvacomssions r thertAndyou are herebyvested Hthe easre r. ith full.power. and authority to act as you shallHo.JR.mia aretnSuhVdIla think for the good and welfare of the service. After a pause, And we do herebystrictly charge and require all Mr. Manager BUTLER. If the President officers and soldiers under your command-to ~bewilgatmamoe.MrRndlddnt obedient to your orders and diigent in the exercise bllringthe apersmhich calle dlddfotomunoti ur of their several duties. ph atwih I do th il Andwe do alsoenjoin and requree you tobecare- incwer h i i the Sen I ful in executing the good trust reposed in You byhe e.causing strctdiscipline and order to be observed in want o them e.thelArmiy, wnd'tbatthe soldiers be duly exercised and what I will not offer. [After an examination' provided wirth all convenient necessaries, of the papers.] Mr. Randall, you will take "And youAre to regulate your conduct in every re- the stand. sPect by the rules and discipline of wars, (as herewith given you,)and punctual yto observe and follow A such orders and directions, from time to time, as you LXNELW ADL xmnd shall rece!yc from this or a future Congress of these By Mr. Manager BUTLER: United Co o~ies or Coinimittee of Congress. "This commission to continue in force until re-_ Question. Had you any copy of the indictyokediby-this or a future Congress. ment against Foster Blodgett on file in your ".By order of the Congress." office? The point to which I bffer this is that this is Answer. What purported to be. the only form of commission ever prescribed Question. When was it made? by law in this country to a military officer. and Answer. That I cannot tell you; I suppose in drafting commissions under the Constitu- about the time the original copy was filed there. tion of the United States "'Ithe pleasure of the Question. Have you produced it here? President" was inserted instead of " the pleas- Answer, No, sir. ure of Congress.".Question. What did you do with it? The CHIEF JUSTICE. Is there any objec- Answer. It is in the office. tion?,Question. Have you produced copies here? Mr. CURTIS and Mr. EVARTS. No o-b- Answer. Yes, sir; there is a copy there jection. before you. Mr. Manager BUTLER. I now offer, Mr. Question. A -copy from where? 496 Answer. From the Treasury Department. States aforesaid, in the civil department of the pubQuestion. Why did you not produce the copy lie service, and that, after said appointment and befrom your office, as I asked you? fore entering upon the duties of the said office, and before he, the said Foster Blodgett, was entitled to Answer. Because that would not prove any- any salary or other emoluments arising from the said thing; I could not certify that it was a copy office, to wit, the office of deputy postmaster aforewithout having the original, said, he, the said Foster Blodgett, was then and there required by law to take and subscribe the oath Question. Have you produced the original? hereinafter set forth, the said oath being by law Answer. I understand it is here. The reason made material and necessary to be taken and subI did not produce it was I understood it was scribengd byuponhim the said Foster Blodgett, before entering upon the duties of the office aforesaid, to here. wit, the office of deputy postmaster at Augusta aforeQuestion. Where? said, and, being so required by law, he, the said FosAnswer. Before some committee It was ter Blodgett, came in his own proper person before Answer. Before some committee. It was David S. Roath, a judge of the court of ordinary for sent up here with the case. The letter of Mr. the county of Richmond, in the State of Georgia and McCulloch there explains that. within the district aforesaid, and within the jurisdicQuestion. The letter of Mr. McCulloch ex- tion of this court, on the 5th day of September, in the year of our Lord 1866, at Augusta aforesaid, plains about Mr. Hopkins' s case, which I do not within the county, State, and district aforesaid, and mean to put in; but I mean now to deal with then and there was duly sworn and took his corporal Mr. Blodgett's caseA? oath before the said David S. Roath, a judge of the Mr. BlYodgett's case? court of ordinary for the county of Richmond, in the Answer. You will find the copy of two in- State of Georgia and district aforesaid, he, the said dictments fastened together in the original as David S. Roath, being then and there duly authorthey are there, and I understand they are here. ized by law, and having then and there sufficient and here threadudestndthyreheecompetent power, to administer the said oath to the That is the reason I did not bring that, for I said Foster Blodgett in that behalf, and that therecould not, without the original, certify that it upon the said Foster Blodgett, having so sworn as aforesaid, and not having the fear of God before his was a copy. eyes, but having been moved and seduced.by the inQuestion. And you got a copy from the stigation of the devil, then and there, to wit, on the Treasury Department this morning? day and year aforesaid and at the place last aforeAnswer. Yes, sir. Bsaid, before the said David S. Roath, judge of the Answer. Yes, sir. court of ordinary as aforesaid, (he, the said Roath, Question. Which you produce here, but do having then and there competent authority to adnot from your own office? minister the said oath as aforesaid,) upon his oath Answer. No, sir; I do not produce that be- aforesaid, sworn to before the said David S. Roath Alnswer. No, sir; I do not produce that be-,on the 5th day of September, in the year of our Lord cause I could not certify without having the 1866, falsely willfully, and corruptly did swear to the original that it was a true copy; and, under- purportand effectfollowing, that is to say: tI, Foster Blodgett, (meaning the said Foster standing the others were here in the Senate, I Blodge tt (meaning appointed deputy postmaster Blodgett,) being appointed deputy postmaster at did not bring it. Augusta, in the county of Richmond and State of Question. But you brought this copy? Georgia, do swear that I will faithfully perform all Answer. I had forgotten how the case came the duties required of me and abstain from anything forbidden by the laws in relation to the establishhere. ment of the post office and post roads within the Mr. Manager BUTLER, (to the counsel for United States; and that I will honestly and truly the respondent.) Gentlemen, I will detach account for and pay over any moneys belonging to the said United States which may come into my these, or only put in one paper, just as you possession or control, and I do further solemnly swear please. that I have never voluntarily borne arms against Mr. EVARTS. Of course, we understand the United States sinceIhave been a citizen thereof; that I have voluntarily given no aid, countenance, Mr. Manager BUTLER. I do not care to counsel, or encouragement to persons engaged in go through detaching the copy in this one case. armed hostility thereto; that I have neither sought Mr. EVARTS. It is Mr. Blodgett's indict- nor acce ed nor attempted toexercise thefunctions of any office whatever, under anY authority or prement? tended authority, in hostility to the United States; Mr. Manager BUTLER. Yes, sir. I now that I have not yielded a voluntary support to any offer simply the indictment in Blodgett's case, pretended government, authority, power, or constitution within the United States hostile or inimical which I will read, without detaching it from thereto; and I do further swearthatto the best of my the other paper: knowledge and ability I will support and defend the Constitution of the United States against all UNITED STATES OF AMERICA, enemies, foreign or domestic; that I will bear true Southern District of Georgia faith and allegiance to the same; that I take this District court of the United States for the southern obligation freely, without any mental reservation or district of Georgia. purpose of evasion; and that I will well and faithNOVEMBER TER3M, 1867, A. D. fully discharge the duties of the office on which I The grand jurors of the United States, chosen, se- am about to enter; so help me God." lected, and sworn in, and for the southern district of Whereas in truth and in fact, the said Foster BlodGeorgia, being good and lawful men of the said south- gett before the time of taking the said oath as aforeern district of Georgia, and being charged to inquire said, had voluntarily borne arms against the United for the United States and for the body of the said States aforesaid, he the said Foster Blodgett having district upon their oaths; been at that time, that is to say, at the time when he Present: that heretofore, that is to say, on the 27th bore arms as aforesaid, a citizen of the United States day of July, in the year of our Lord 1866, one Foster aforesaid; and whereas in truth and in fact he the Blodgett, of the city of Augusta and county of Rich- said Foster Blodgett being a citizen as aforesaid, bemond, in the State of Georgia, and in the southern fore that time, that is to say, before the time of the district of Georgia aforesaid, was appointed by the taking of the oath, voluntarily had given aid to President of the United States to the office of deputy persons engaged in armed hostility tod the United postmaster at Augusta aforesaid, the said office, that Stater aforesaid, and had voluntarily as aforesaid is to say, the office of deputy postmaster, being an given countenance, counsel, and encouragement to office of profit under the Government of the United persons engaged in armed hostility to the United 497 States aforesaid- and whereas, in truth and fact, he Mr. EVARTS. One moment, Mr. Manager. the said Foster Blodgett being a citizen of the Uni- We suppose that there is no inquiry before this ted States as aforesaid had before that time, that is Snate sitting as a court of impeachment as to to say before the time of the taking of the said oath sitting as a court of impeachment as to as aforesaid, accepted anoffice, to wit, the office of the the truth of the charges against Mr. Blodgett, captaincy of an artillery company in the service of nor as to his defenses. We put in evidence and under the authority of the so-called confederate nothing but the oficial action of the Govern States, the so-called confederate States being then official action of the Govern and there an authority or a pretended authority in ment through the Post Office Department, and hostility to the United States aforesaid; and whereas that only in answer to an oral statement conin truth and fact he, the said Foster Bl6dgett, being a citizen as aforesaid, had before that time, that is to say, before the time of the taking of the said oath, Now, the Manager brings in the indictment, yielded a voluntary support to a pretended govern- and having got that in claims the right to repel ment of Georgia, the same being at that time, that evidence on both sides of is to say at the time he, said Foster Blodgett, yielded it and thus produce evdence on both sides of a voluntary support thereto, a pretended authority the question of the reason of Mr. Blodgett's in power within the United States andhostilethereto. suspension. We submit to the Senate that the And so the jurors aforesaid, upon their oaths afore- p said, do say that the said Foster Blodgett, by his oath proof is irrelevant. aforesaid taken and subscribed on the day and year Mr. Manager BUTLER. Mr. President, the aforesaid, by David S. Roath, a judge of the court case stands thus. Mr. Foster Blodgett, who is of ordinary as aforesaid, falsely willfully, and corruptly, in manner and form aforesaid did, in the mayor of the city of Augusta, appointed by southern district of Georgia, and within the juris- General Pope, and a member of the constitudiction of this court, commit willful and corrupt tional conventionperjury, contrary to the forms of the statute in such Mr. EVARTS. No part of that statement case made and provided, and against the peace and dignity of the United States. is in evidence. HENRY S. FITCH, Mr. Manager BUTLER. I propose to put it United States Attorney for Georgia. in evidence, and am stating my case. I have got Indorsement.. it all here. He was a member of the constituUnited States of America, Southern District of tional convention and an active Union man Georgia, United States District Court, November TheCHIEFJUSTICE. ThehonorableManUniterm, 1867.States ager will please reduce his offer to prove to United States ) vs. ~- Indictment for perjury, writing. Foster Blodgett.tIndictment for perjury. Mr. Manager BUTLER,,I will after I state Witnesses: JamesA. Bennett, Ambrose R. Wright, the grounds of it. I will putDr. M. J. Jones, John N. Wray, Avera D'Antiquac, The CHIEF JUSTICE. The Chief Justice George W. Vennurey, Allen Phillips, John L. Ellis. C. A true bill. thinks it ought to be reduced to writing now, HENRY BINGHAM, Foreman. in-order that the Senate may pass upon the SAVANNASH, November 26, 1867. question whether they will receive the evidence. Filed November 29, 1867. Mr. Manager BUTLER. They cannot until JAMES McPHERSON, Clerk. I make the statement, sir. Mr. JOHNSON. Does it charge that he The CHIEF JUSTICE. The Chief Justice was a captain in the rebel service? thinks that the same rule which was applied to Mr. Manager BUTLER. He was charged the counsel for the President yesterday ought to with being a captain in a volunteer company. e appled to the honorable Managers to-day. [To the witness.] Now, Mr. Randall, upon The Managers should state in writing the nature notice which you have put in as given to Mr. of the evidence which they propose to introduce, Blodgett being sent to him, did he return an and the Senate can then pass upon the question answer, and is this paper that answer or a copy whether they desire to hear evidence of that of i? [Handing a paper to the witness.] description Mr. JOHNSON. Does the Manager proAnswer. These are copies of the papers that. JOHNSON. Does the Manager pro are on fle. I ean only swear to them as co pose to offer that paper in evidence itself? are on file. I can. only swear to them as copies'do of papers on file. I believe these are correct. Manager BUTLER. I do. Mr. JOHNSON. And nothing else? copies. Mr. ~Ianager BUTLER. I propose'to offer Question. And that is a copy of his answer? Mr. Manager BUTLER.? propose offer Will you look at it. something else besides. At present Ipropose to Answer. Yes, sir. I have read it all over; offer this, and it is the first time any counsel has I think it is. been thus stopped. I assume, Mr. PresidentQuestion. The notice left here on the 3d of I never have assumed any different-that the January, we have learned by the paper which same rule will be applied to-day as yesterday. was put in on Saturday? I do not want to be understood as asking anyAnswer. I think it was the 3d of January. thing different. Question. And on the 10th he returned this answer? Manager appears to the Chief Justice to be Answer. Yes, sir. making a statement of matters which are not Mr. Mvanager BUTLER. I propose to offer in proof, and of which the Senate has as yet it. It is: heard nothing. He states that he intends to WASHINGTON, D. C., January 10, 1868. put them in proof. The Chief Justice there, Hon. A. W. RANDALL: fore requires that the nature of the evidence that SIR- he proposes to put before the Senate shall be C. I. -32. 498 reduced to writing as has been done hereto- indictment against Mr. Blodgett. *A complaint fore. He will make the ordinary offer to prove, was made that that indictment was not proand then the Senate will judge whether they duced. The Managers having procured it, will receive the evidence or not. having put it in evidence, they now propose to Mr. Manager BUTLER. I was trying to put in evidence his answer to that indictment state that this was a part of the record pro- or to the accusation made before the Postmasduced by the other side. It is the first time, I ter General. have a right to say, that any counsel has been Mr. Manager BUTLER. I know you do not interrupted in this way. This- mean to misstate-his answer to the PostinasThe CHIEF JUSTICE. Does the honor- ter General's notice, not to the indictment. able Manager decline to put his statement in Mr. EVARTS. His answer to the accusawriting? tion and the evidence concerning the accusaMr. Manager BUTLER. I am not declining tion as placed before the Postmaster General, to put the statement in writing, sir. I understood. The CHIEF JUSTICE. Then the honor- Mr. Manager BUTLER. Not an answer to able Manager will hale the goodness to put it the indictment. in writing. Mr. EVARTS. An answer to the indictMr. Manager BUTLER. I can do it, sir, ment so far as it was the accusation before the by taking sufficient time. Post Office Department. I understood you to The CHIEF JUSTICE. It will be allowed. say so; that is, you propose to prove that he The proposition having been reduced to was friendly to the United States, apd always writing, had been, notwithstanding he had been a capMr. Manager BUTLER. This is the offer, tain in the rebel troops. I understood you to sir: say so; and now the honorable Manager states We offer to show that Foster Blodgett, the mayor that this paper, which is part of his evidence of Augusta. Georgia, appointed by General Pope, to sustain Mr. Blodgett's loyalty and defeat the and a member of the constitutional convention of accusation against him, in which Mr. Blodgett Georgia, being, because of his loyalty, obnoxious to may be entirely ight for aught I now, s a some portion of the citizens lately in rebellion against may be entirely right for aught I know, is the United States, by the testimony of such citizens letter written by him ten days after his suspenan indictmentwas nrocured to be found against him; sion; and the honorable Manager states that that said indictment being sent to the Postmaster that letter of his, written to the Postmaster General, he thereupon, without authority of law, suspended said Foster Blodgett from office indefinitely, General ten days after his suspension, was a without any other complaint against him and with- part of the papers upon which the Postmaster out any hearing and did not send to the Senate the General acted in suspending him. How that report of such suspension, the office being one within the appointment of the President by and with the could be, in the nature of things, it is difficult advice and consent of the Senate: this to be proved for me to see. He was suspended on the 3d. in part by the answer of Blodgettto the Postmaster Ten days after he wrote an answer to the inGeneral's notice of such suspension, being a portion of the papers on file in the Post Office Department crimination; and that is one of the papers on upon which the action of the Postmaster General which the Postmaster General suspended him, was taken, a portion of which have been put in evidence by the counsel of the President, and that Mr. it is said. Blodgett is shown by the evidence in the record to The honorable court can see that this is not have always been friendly to the United States and evidence introduced by us in disparagement of loyal to the Government. Foster Blodgett. It is evidence introduced by That is the offer. On this we wish to be us to show the action of the Post Office Deheard at such time as the Chair will permit. partment in the suspension, which suspension Mr. EVARTS. We object to the evidence, the Managers had put in by oral testimony; Mr. Chief Justice and Senators, as being and under cover of that the learned Manager wholly irrelevant to this case. The evidence first seeks to introduce the accusations against concerning Foster Blodgett was produced on Blodgett, and then to rebut them. If this evithe pwart of the Managers, and on their part dence is rightly put in on their part we of was coifined to' his oral testimony that he had course can meet it on ours; and we shall have received certain commissions under which he an interesting excursion from the impeachment held the office of postmaster at Augusta; that trial of the President to the trial of Mr. Foster he had been suspended in that office by the Blodgett on the question of loyalty; and I am Executive of the United States in some form instructed to say that there is a witness in the of its action, and there was a superadded neg- city who can testify that he was a captain in ative conclusion of his that his case had not the rebel army; and we are ready to go on been sent to the Senate. In taking up that with that proof if it is desired. case the defense offered nothing but the official Mr. Manager BUTLER. Mr. President and action of the Post Office Department, coupled Senators, I think now it will not be out of any with the evidence of the head of that Depart- order either of to-day or yesterday or the day ment that it was his own act, without previous before for me to state the grounds upon which knowledge or subsequent direction of the Pres- I offer this evidence. ident of the United States. In that official Foster Blodgett was called here to show that, order, thus a part of the action of the Depart- holding an office which required the advice and ment, it appears that the ground of it was an consent of the Senate, he had been suspended 499 indefinitely by the President of the United Senate. It may be said that Mr. Randall had States, as he supposed, and as we supposed, on no business to return it to the Senate. He the 3d of January, 1868, without any fault on had just as much business to return it to the his part, so far as his official duties were con- Senate as he had to suspend him. cerned, and without any adjudication or con- We are answered, too, that they put in only viction of any crime, and a man placed in his the official act of the Department. ~ I had the office as special agent with the same salary and honor to explain to the Senate some days ago a little more; so that it amounted to a removal that I understood an official act to be that and putting in a man into the office as now ap- which was made a man's duty by law to do. pears by the papers presented. Mr. Blodgett I never understood that there was any other testified that up to the day he testified he had official act. I have always understood that not had his Case before the Senate; he could the kind of acts which a man does where the get no redress. We thought that upon the law does not require him to do them are offiproposition that the President desired to obey cious acts and not official, and I think this the law, except that he wanted to make a case was the most officious act I have ever known, to test the constitutionality of it, this was quite one which the Postmaster General' says there pertinent'evidence. He having put forward is no law for, which was justified by no statute. broadly in his answer that he was exceedingly A man is suspended; his reputation is ruined desirous to obey the laws, the civil-tenure act as far as it can be; the tribunal the law has and all other laws, except that he wanted to appointed before which he could have a hearmake a case to test the constitutionality of the ing, the Senate of the United States, is not law, these facts are put in, and these facts are informed of it in the regular way. It affects: yet undisputed. They called Mr. Postmaster the President of the United States, because he General Randall on Saturday, and he pro- was informed of it after it was done, and he duced, and they put in, a letter of appointment has taken no action; and then when we put of one Summers, special agent, with a salary him on to say to us "I have been suspended therein set out. They also put in a letter in- and cannot go before the Senate,s" the answer forming Mr. Blodgett that he had been sus- is what? When he simply says that the anpendedfrom office. Thatletterstates precisely swer is to put in the fact that he was indicted that itwas upon an indictment for perjury, not in order to blacken his reputation and send it setting out the indictment, so as to leave us to out to the country. infer that Foster Blodgett had in some contro- I never saw Foster Blodgett until the day he versy between neighbor and neighbor, or citi- was brought upon this stand. I have no interzen and citizen, somewhere committed'willful est in him any more than any other gentleman and corrupt perjury, and that it was so heinous of position in the South. I put it to you, if a case that the Postmaster General felt obliged you had been treated in that way when here as instantly to suspend him; and it was a case, a witness under the summons of the Senate by he said, where the great law of necessity com- the Managers of the House of Representatives pelled him to suspend him at once. In order to testify to a fact, and then the President, after to meet that we asked for the indictment. We refusing you any hearing before the constitugot it at last from the Treasury Department, a tional tribunal and legal tribunal, had put in copy of it. The indictment then makes cer- the fact to blacken your character that you had tain statements against Mr. Foster Blodgett. been indicted, would you not like to have the Now, Mr. Foster Blodgett instantly upon being privilege of putting in at least your answer on notified-this being the 3d of January, and the record in the case, that which you did instantly? paper, which I shall show you, being dated the It is said tobethe letter of Mr. Blodgett. True, 10th-seven days only, three from ten leaves it is; but it also contains exhibits and other seven, not ten, Mr. Counsel, so that inadver- papers which establish the facts beyond contences can take place as well on the one side as troversy. the other- It is said here, with a slur, that they have Mr. EVA4RTS. If you consider it material, got a witness to prove that he was in the rebel I will retract. army. I do not doubt it-plenty of them-. Mr. Manager BUTLER. I do not consider whether he was or not. But what I say is, that it material only as a matter of correctness; he was only a captain in a militia company, and that is all. As I say, seven days afterward, called into service and bound to obey the being iln Washington, he instantlyanswers and powers that be; and he was indicted because he puts on file his justification, that this was all yielded to the power of the State of Georgia. a rebel plot and treason against the United to compel him to hold the commission; and States in fact. Having put that on file, that taking no commission, he had either to go or is a part of the case. lose his life; and he could well swear, although Now, I have not said to the Senate that this he went as a militia captain into the service, paper was that upon which Mr. Randall acted that he did not voluntarily go. But, however in suspending him, but I do say it is a part of that may be, he has a right to have before the the proceedings in the case, and it is a paper country that he has been traduced-a man on which Mr. Randall acted in not returning among his neighbors so well known that they that suspension through the President to the elected him to make the constitutional law for 500 them; a man among his neighbors so well idue of said record, including the papers on file in known that General Pope appointed him mayor the said case, for the purpose of showing the whole of this very town where he held the ofice; a f the case as the same was presented to the Posta master General before and at the time of the suspenman so well known that when the State of sion of the said Blodgett. Georgia shall come here and demand a place in this Chamber I have no doubt Foster Blod- Mr. EVARTS. Our objection to that ofer, gett will come and take his place beside the as we have already stated, is that it does not gproudest of youme and take hisplacebesid present correctly the relation of the papers. proudest of you.. The CHIEF JUSTICE. The Chief Justice I say under these circumstances I feel it my will submit the question to the Senate. The duty tq put this testimony before you; and if will submit the question to the Senate. The duty t9 put this testimony before you; and if original offer to prove has been withdrawn. the mere objection is want of relevancy I put oginal offer to prove has been withdrawns it as a matter of justice to a witness that the The offer which has just been read has been House of Representatives brought here and who substituted. Senators, you who are of opinion that the evidence now proposed to be offered is now being oppressed by the entire power of that the evidence now proposed to be offered the executive Governroentof the United States, should be received will say ay; contrary opine who has been confessedly, without law, against in no. [Puttingthe question. The noes have it. The evidence is not received. right, suspended from his office and so removed, Mr. ANTHONY. I should like to havethe can get no hearing before this tribunal or any yes and nays on that, if not too late. other, because the President controls his dis- The CHIEF JUSTICE. It is too late. trict attorney and he cannot get a trial down there be no objec t there, and they will not report him up here there be no ecton, however, the ChiefJus tire will again put the question on taking the and he cannot get a trial here. It appeals to tie will again ut the quest ion on taking the your justice. 1 do not propose to go into any and nays. ME h ere seems to be no objection. excursion in trying the case of Foster Blodgett. Mr. Manager BUTLER, (to the witness.) Mr. I only propose to put in all the papers that Randall, I have been informed that you desire were on file in the Post Office Department to make some statement about this removal. about this case that bear on my side of the case. If it does not put in anything that the PresiThey have put in such papers as bear on their side of the case, and I propose to put in such dent said or anybody else I shall not object. papers as bear on my side of the case out of The WITNESS. I expressed to a gentleman the same bundle, that they shall not pick out this morning a wishto explain the circumstances such as please them and have them put in with- under which I made thes suspension. It was out my picking out and putting in from the same one of those cases which there is no provision bundle such asplease us. of law to meet, like several others that we have, Mr. EVARTS. We do not put anything andonethatl passedupon this last week. The from the bundle. We ut in merely the action copy of this indictment was brought to me, and of the Department. You have taken a paper the district attorney at the same time or about from the bundle and now propose to put in an the same time, soon afterward at any rate, answer to it. That is now thestatement of the came to me and made statements of the cirevidence. We have as little to do with and as cumstances under which it was found. Under little care for Foster Blodgett as possible; but the tenure-of-office law, if we acted under that, you brought him here and compelled us to state the President would have no power, as I unthe circumstances of the Department's action. derstood. it, to suspend any officer during the We have stated them. If his case is to be tried session of the Senate. The only thing he could by this court because it cannot be tried by any do woud be to send up the name of some man other, and if that is a ground of jurisdiction, his place, removing Mr. Blodgett. It ocof course you nmay have plenty of worlk. curred to me that this violation of the law by The CHIEF JUSTICE. The Secretary will Mr. Blodgett might be merely a technical vioread the offer to prove made by the honorable lation of the law. If it was a technical violaManagers. tion of the law-I am telling now what my The Chief Clerk read: reasoning was on the subject-if it was true W7e offer to show — that he was forced into the rebel service and Mr. Manager BUTLER. Stop a moment. got out of it'as soon as he could, and this vioMation of the oath of office law, in taking that Perhaps I will amend the offer a little, though lation of the oath of office law, in taking that Perhaps I will amend the offer a little, though oath was merely a technical violation for which not in substance. With leave, sir, I will with- he was indicted, I did not want him turned out draw that and take one which covers the snme he was indicted, I did not want him turned out; points, but is much shorter, which covers the same and for that reason I took the responsibility poidrawn up by one of my associates. whichha of doing this thing, of making this suspension Thedrawn up by on e of my associates.ecretary will and putting a special agent in temporary charge redthe oF Ser to prove now made by the bon- of the office until we could ascertain more fully orable Managers. what the facts were in the case and what action The Chief Clerk read as follows: ought to be taken. Those are the circumstances The defendant's counsel having produced from the under which this thing was done. files of the Post Office Department a part of the rec- By Mr. Manager BUTLER: ord showing the alleged causes for the suspension of estion. Why did you not report it to the Foster Blodgett as deputy postmaster at Augusta,on. Why did you not report it to the Georgia, we nowTpropose to give in evidence the res- President for his action? 30'1 Answer. I told the President what I had submitted in writing, and will be read by the done. Secretary. Question. When? The question propounded by Mr. CONNESS Answer. Afterward; as I stated before. was read, as follows: Question. Why did you not report it before Have you ever taken any step since your act susyou undertook to take the responsibility. Did pending Foster Blodgett in further investigation of you not suppose he would turn him out? his case? Answer. Because the only thing he could do, Answer. Yes, sir; in trying to secure informaif he did anything, was to send to the Senate tion. There is considerable information among some other nomination, turning this man out. the papers here on the subject. Question. That is to say, if I understand Mr. Manager BUTLER. That is wnhat we you, following the law, the only thing he could offered to put in. do was to send to the Senate the name of some- The WITNESS. Beyond what you offered to body in place of this man, removed; and you put in. thought, breaking the law, you could do some- Mr. Manager BUTLER. I only offered one thing better? thing at a time. We have no more questions Answer. I do not put it in any such shape to ask the witness. as that. I stated it just exactly as it occurred. Mr. CURTIS. Nor we. I did not want the man turned out if this was Mr. Manager BUTLER. I now offer, Mr. a mere technical violation of the law on which President, an official copy of the order creating he was' indicted, and if he was an honest man. the military department of the Atlantic, and That was the reason I was disposed to ascer- putting General Sherman into charge of it. tain the facts. It may have been a technical Mr. EVARTS. What does that rebut? I violation of the law; but I assumed the doing am not aware that we have 4gven any evidence of it for the purpose of not having an act of on that subject. injustice done to him if he was an honest man. Mr. Manager BUTLER. Do you object? Question. Was the Spnate in session on the Mr. EVARTS. We do, unless it is relevant 3d of January last? and rebutting. I do not recall any evidence Answer. I cannot tell you whether it was in that we have given concerning the department session on that day or not. of the Atlantic. Question. Was there not a recess? Mr. Manager BUTLER. It is put in to show Answer. There may have been; I do not part of the action of the President at the same remember now. time, on the same day that he restored General Question. Then the reason that the Senate Thomas. That date was not fixed until after was in session did not apply to the case? General Thomas came on to the stand. The Answer. I considered the Senate in session. object is to show what was done militarily on I do not look upon arecess for two or three or that same day. That is the reason why it is five days as a recess of the Senate, in the sense put in. of the Constitution. I do not remember whether Mr. EVARTS. I do not see any conneethe Senate was actually in session on that par- tion with General Thomas's testimony. The ticular day. only connection the honorable Manager states Question. You deemed it to be in session, is that he learned from General Thomas when and you treated it as if in session? he was restored, as if he did not know that Answer. I considered the session as con- before. It was all public when he was retinuing. stored. It does not connect itself at all with Mr. Manager BUTLER. That is all. any evidence we have produced. If it is put Mr. CONNESS. I should like to ask a on the ground that it was forgotten or overquestion of the witness. I will reduce it to looked, that is another matter; but to bring it writing. in as rebutting is a consideration which we The WITNESS. One suggestion I forgot to cannot consider well suggested. make which I wish to mention. The reason Mr. Manager BUTLER. Mr. President) why something was not further done in the when I speak of learning a thing in the trial case is that I was trying to get information on of a cause. I mean learning it in the course of this subject, and then this trouble began, and the evidence during the trial, not what I know this case has lain long without any intention to in the country from the newspapers, because delay it, and no further action has been had. they are not always the best sources of knowlI Mr. Manager BUTLER. By trouble you edge. I say that General Thomas testifies that mean the impeachment, I suppose? on the 13th of February the President made The WITNESS. Yes, sir; I had no time to an order that he should be restored to his pohave copies made, but I have brought here the sition as Adjutant General. That was fixed by original papers which were filed at the time he his testimony; it was not fixed before. That was appointed. I did not know whether you was an ordergivenon the 13thto General Grant, would want them. which was not published, a private letter ot Mr. Manager BUTLER. No, sir; I do not order. Now, I want to show that on that same want to see them. day, or the day before, this new military division The CHIEF JUSTICE. The question pro- was made here, and General Sherman ordered posed by the Senator from California has been to the command of it, showing the acts of the 502 President at or about the same time. The document, I suppose we can refer to it in the presiding officer has so well told us heretofore argument. We withdraw the offer. the competency of the acts of a party about The CHIEF JUSTICE. The offer to prove the same time as being a part of the res gestce, made by the honorable Managers is withdrawn. and the Senate has so often allowed testimony Mr. Manager BUTLER. I have now, Mr. to come in to that effect, that I cannot con- President and Senators, a list prepared as careceive why this cannot be competent. It is fully as we were able to prepare it in the time part of the things done by the President on the given us, from the laws, of the various officers same day, or the day before Thomas was re- in the United States who would be affected by stored. I do not mean to say a word on the the President's claim here of a right to remove question whether it is rebutting; I do not at pleasure. That is to say, if he can remove understand that that rule belongs here. at pleasure and appoint ad interim, this is a The CHIEF JUSTICE. On the part of the list of officers taken from the laws, with their honorable Managers, it is proposed to give in salaries, being a correlative list to that put in evidence an order establishing the department by the counsel, showing the number of officers of the Atlantic. The Chief Justice will sub- and the amount of salaries which would be mit the question to the Senate. * affected by the President. In order to bring Mr. ANTHONY. I ask forthe yeas and nays. it before the Senate I will read the recapitulaThe yeas and nays were ordered. tion only thus: Mr. BUCKALEW. Mr. President, I ask "In the Navy, War, State, Interior, Post Office, for the reading of a question submitted to Gen- Attorney General, Agriculture, Education, and Treasury, the officers are 41 558 - the grand total of eral Sherman by the counsel for the defense in their emoluments is $21,180,736 837 a year." reference to this very matter. If our Clerk I propose that the same course shall be taken will turn to the recgrd he will find that a question with this as with the like schedule, this being was put to General Sherman as to the estab- a compilation from the laws, that it be printed lishment of the department of the Atlantic,' as part of the proceedings. which was ruled out. The CHIEF JUST/WE. Is there any objecThe CHIEF JUSTICE. The Secretary will tion? read the question referred to. Mr. EVARTS. If it shows what it is there Mr. Manager BUTLER. We shall not trouble is no objection. the Senate. This being a matter of public The document is as follows: Navy Department as per Navy Register for 1868. Office. Number. Annual pay. Total. Secretary..................................................................... $8,000 00 $8,000 00 Assistant Secretary...................................................1 3,500 00 3,500 00 Solicitor and judge advocate general.......................... 1 3,500 00 3,500 00 Admiral....................................................................... 1 10,000 00 10,000 00 Vice admiral.............................................................. 1 7,000 00 7,000 00 Rear admiral.............................................................. 9* 5,000 00 45,000 00 Commodores.................................................... 24* 4,000 00 96,000 00 Captains....................... 49* 3,500 00 171,500 00 Commanders.................................... 90* 2,800 00 252,000 00 Lieutenant commanders........................................... 136* 2,343 00 318,648 00 Lieutenants............................................................... 45* 1,875 00'84,375 00 Masters........................................................................ 29* 1,500 00 43,500 00 Ensigns......................................................... 52* 1,200 00 62,400 00 Midshipmen......................................................... 157* 800 00 125,600 00 Surgeons as captains......................................14 3,500 00 49,000 00 Surgeons as commanders...................................... 38* 2,800 00 106,400 00 Surgeons as lieutenant commanders........................... 28* 2,343 00 65,301 00 Passed assistant surgeons as lieutenants.................... 42* 1,875 00 78,750 00 Assistant surgeons as masters..................................... 28* 1,500 00 42,000 00 Paymaster as commodore............................1*....... 1* 4,000 00 4,000 00 Paymasters as captains......................................12* 3,500 00 30,000 00 Paymasters as commanders.............................. 30* ~ 2.800 00 84,000 00 Paymasters as lieutenant commanders..................... 36* 2,343 00 84,348 00 Passed assistant paymasters as lieutenants................ 39* 1,875 00 73,125 00 Assistant paymasters as masters................................. 26* 1,500 00 39,(J00 00 Chief engineer as commodore....................... 4,000 00 4,000 00 Chief engineers as captains............................... 4* 3,500 00 14,000 00 Chief engineers as commanders............................... 34* 2,800 00 95,200 00 Chief engineers as lieutenant commanders 11*............... 11 2,343 00 25,773 00 First assistant engineers as lieutenants..................... 88* 1,875 00 165,000 00 Second assistant engineers as masters.............131* 1,500 00 196,500 00 Third assistant engineers as midshipmen after graduation....................................................................... 24* 800 00 19,200 00 Chaplains as commanders.......................................... 7* 2,800 00 19,600 00 Chaplains as lieutenant commanders......................... 11* 2,343 00 25,773 00 Professors of mathematics as commanders................ 4* 2,800 00 11,200 00 Professors of mathematics as lieutenant commanders, 7* 2,343 00 16,401 00 1,210 $2,464,594 00 *Active list. 503 Warrant Officers. Officer. Number. Annual pay. Total. Boatswains........................................ 52 $1,000 00 $52,000 00 Gunners....................................................................... 55 1,000 00 55,000 00 Carpenters as gunners................................................ 36 1,000 00 36,000 00 Sailmakers as gunners............................................... 31 1,000 00 31,000 00 174 $174,000 00 Constructors. Officer. Number. Annual pay. Total. Naval constructor as commodore................................ 1 $4,000 00 $4,000 00 Naval constructor as captain..................................... 1 3,500 00 3,500 00 Naval constructors as commanders............................ 3 2,800 00 8,400 00 Naval constructor as lieutenant commander.............. 1 2,343 00 2,343 00 Assistant naval constructors as masters..................... 5 1,500 00 7,500 00 11 $25,743 00 Retired and Reserved List. Officer. Number. Annual pay. Total. Rear admiral............................................................... 17 $2,000 00 $34,000 00 Commodores........................................ 65 1,800 00. 117,000 00 Captains...................................................................... 32 1,600 00 51,200 00 Commanders.............................,................................. 17 1,400 00 23,800 00 Lieutenant commanders............................ 3 1,300 00 3,900 00 Masters (not in the line of promotion)....................... 6 800 00 4,800 00 Midshipman................................................................ 1 500 00 500 00 Surgeons as captains............................................. 18 1,600 00 28,800 00 Surgeons as commanders...................................... 3 1,400 00 4,200 00 Surgeons as lieutenant commanders......................... 3 1,300 00 3,900 00 Passed assistant surgeons as lieutenants.................... 3 1,000 00 3,000 00 Assistant surgeons as masters................................ 4 800 00 3,200 00 Paymasters as captains......................................15 1,600 00 24,000 00 Paymaster as commander.............................. 1 1,400 00 1,400 00 Chief engineer as lieutenant commander.................... 1,300 00 1,300 00 First assistant engineers as lieutenants..................... 4 1,000 00 4,000 00 Second assistant engineers as masters........................ 8 800 00 6,400 00 Chaplains as commanders............................ $ 1,400 00 11,200 00 Chaplain as lieutenant commander...................... 1 1,300 00 1,300 00 Professor as commander...1.............................. I 1 1,400 00 1,400 00 Professor as lieutenant commander........................... I 1 1,300 00 1,300 00 Naval constructor as captain................................. 1 1,600 00 1,600 00 Beatswains.................................................................. 6 600 00 3,600 00 Gunners...................................................................... 6 600 00 3,600 00 Carpenters............................................................... 6 600 00 3,600 00 Sailmakers.................................................................. 600 00 3,600 00 236 $346,000 00 Marine Corips. Officer. Number. Annual pay. Total. Brigadier general and commandant........................... 1 $6,130 00 $6,130 00 Majors (staff)............................................................... 3 2,666 00 7,998 00 Captains (staff).......................................................... 2 1,776 00 3,552 00 Colonel (line)........................................................ 1 3,365 00 3,365 00 Lieutenant colonels (line)........................................... 2 3,015 50 6,031 00 Majors (line)..........................................................4 2 666 00 10,664 00 Captains (line)............................................................ 19 1,776 00 33,744 00 First lieutenants (line)...................................... 30 1,616 00 48,480 00 Second lieutenants (line).................................. 27 1,536 00 41,472 00 89 $161,436 00 504 RECAPITULATION-NAVY DEPARTMENT. Office. Number. Total annual pay. Naval constructors..00 Marine oorps.....................................................................89 161.436 00 Total........................................................................... 1,720 $3,171,773 00 Tabular statement of officers of the Army appointed by the President. Secretary of War...................................................................................................................................... $8,000 General officers. Rank. Number. Annual pay. Total. General...................................................................... 1 $10,632 00 $10632 00 Lieutenant General.................................................... 1 9,072 00 9,072 00 Major generals............................................................ 5 5,772 00 28,860 00 3.rigadier generals...................................................... 10 3,918 00 39.180 00 $87,744 00 AcUdjutant General's Deparstment. Rank. Number. Annual pay. Total. Adjutant General-brigadier general......................... 1 $3,918 00 $3,918 00 Assistant adjutant generals-colonels........................ 2 2,724 00 5,448 00 Assistant adjutant generals-lieutenant colonels...... 4 2,436 00 9,744 00 Assistant adjutant generals-majors......................... 13 2,148 00 27,924 00 $47,024 o00 Inspector General's Department. Rank. Number. Annual pay. Total. lonels..................................................................... 4 $2,724 00 $10896 00 eutenant colonels................................................... 3 2,436 00 7,308 0 ajors........................................................................ 3 2,148 00 6,444 00 $24,648 00 Bureau Military Justice. Rank. Number.' Annual pay. Total. Brigadier general-Judge Advocate General............. 1 $3,918 00 $3,918 00 ~olonel........................................................................ 9 214 00 29724 00 Majors........................................................................ 9 2,14.8 00 19,332 00 $25,974 00 505 Quartermaster's Department............................_._........... Rank. Number. Annual pay. Total. Brigadier general-Quartermaster General............... 1 $3,918 00 $3,918 00 Colonels-assistant quartermaster generals........... 6 2,724 00 16,344 00 Lieutenant colonels-deputy quartermaster generals. 10 2,436 00 24,360 00 Majors-quartermasters............................................. 15 2,148 00 32,220 00 Captains-assistant quartermasters........................ 44 1,650 00 72,600 00 Military storekeepers............................................. 16 1,650 00 26,400 00 $175,842 00.Subsistence Department. Rank. Number. Annual pay. Total. Brigadiergeneral-Commissary General Subsistence.. 1 $3,918 00 $3,918 00 Colonels-assistant commissary generals subsistence. 2 2,724 00 5,448 00 Lieutenant colonels-assistant commissary generals subsistence............................................................ 2 2,436 00 4,872 00 Majors....................................................................... 8 2,148 00 17,184 00 Vaptain.....1.......64.............................. 16 1,650 O0 26,400 00 $57,822 00 Medical Department. Rank. Number. Annual pay. Total. Brigadier general-Surgeon General........................ 1 $3,918 00 $3,918 00 Colonel-assistant surgeon general............................. 1 2,724 00 2,724 00 Chief medical purveyor-lieutenant colonel.............. 1 2,436 00 2,436 00 Assistant medical purveyors-lieutenant colonels...... 4 2,436 00 9,744 00 Surgeons-majors................................................. 60 2,148 00 128,880 00 Assistant surgeons-first lieutenants...................... 150 1,449 96 217,494 00 Medical storekeepers........................................ 5 1,650 00 6,600 00 $371,796 00 Pay Department. Rank. Number. Annual pay. Total. Brigadier general-Paymaster General..................... 1 $3,918 00 $3,918 00 Colonels...................................................................... 2 2,724 00 5,448 00 Lieutenant colonels...................................... 2 2,436 00 4,872 00 Majors.....,...........8....0 2,148 00 128,880 00 Majors......,,,,.........!................................................. 2,148 O0 128, $143,118 00 Engineer Department. Rank. Number. Annual pay. Total. Chief Engineer-rbrigadier general........................... 1 $3,918 00 $3,918 00 Colonels....................................................................... 6 2,724 00 16,344 00 Lieutenant colonels........................................ 12 2,436 00 29,232 00 Majors....................................................................... 24 2,148 00 51,552 00 Captains...... *.. 30 1,650 00 49,500 00 Captains..................................................................... 30 1,6500 49,500 O0 Lieute nt......,.................................................... 38 1,449 96 55,098 48 $205,642 48 506 Ordnance Department. Rank. ONumber. Annual pay. Total. Brigadiergeneral-Chief of Ordnance........................ 1 $3,918 00 $3,918 00 Colonels...................................................................... 3 2,724 00 8,172 00 Lieutenant colonels................................. 4 2,436 00 9,744 00 Majors 10 2,148 00 21,480 00 C a ptt a i n 20 1:650 00 33,000 00 Lieutenaits................................................................ 26 1,449 96 37,698 96 Military storekeepers................................................. 13 1,650 00 21,450 00 $135,466 96 Signal Corps. Rank. Number. Annual pay. Total. Chief-colonel..................................................... 1 $2,724 00 $2,724 00 Post Chaplains. Rank. Number. Annual pay. Total. Chaplains..............................:................ 30 $1,416 00 $42,480 00 Regimental officers —Cavalry. Rank. Number. Annual pay. Total. Colonels................ 10 $2,724 00 $27,240 00 Lieutenaht colonels......................................... 10 2,436 00 24,360 00 Majors................................................... 30 2,148 00 64,440 00 Captains.................................................................. 120 1,650 00 198,000 00 Adjutants..................................................... 10 1,569 96 15,699 60 Quartermasters.......................................................... 10 1,569 96 15.699 60 Commissaries............................................................ 10 1,569 96 15,699 60 First lieutenants............................ 120 1,449 96 173,995 20 Second lieutenants..................................................... 120 1,449 96 173,995 20 $709,129 60 Artillery. Rank. Number. Annual pay. Total. Colonels................................................................. 5 $2,544 00 $12,720 00 Lieutenant colonels.............................................. 5 2,256 00 11,280 00 Majors...................................................................... 15 2,028 00 30,420 00 Captains............................................................... 60 1,530 00 91,840 00 Adjut ants..................................................... 5 1,530 00 7,650 00 Quartermasters.................................................. 5 1,530 00 7,650 00 Firs t lieutenants................................................... 120 1,410 00 169,200 00 Second lieutenants............. 120 1,350 00 162,000 00 $492,720 00 Infantry. Rank. Number. Annual pay. Total. Colonels........................................................... 45 $2,544 00 $114,480 00 Lieutenant colonels........................................ 45 2,256 00 101,520 00 Majors........................................................................ 45 2,028 00 91,260 00 Captains..................................... 450 1,530 00 688,500 00 Adjutants........................................................ 45 1,530 00 68,850 00 Quartermasters......................................................... 45 1.530 00 68,850 00 irst lieutenants....................................................... 450 1,410 00 634,500 00 Second lieutenants........................... 450 1,350 00 607,500 00 $2,375,460 00 507 West Point. Rank. Number. Annual pay. Total. Professors................................................................... 8 $2,240 00 $17,920 00 SUMMARY. Total number of officers, 3,033. Totat amount of their salaries, $4,907,831 04. Department of State as per Official Register of 1865. Officer. Number. Annual salary. Total annual salary. Secretary..................................................................... 1 $8,000 00 $8,000 00 Assistant Secretary...................................... 2 3,500 00 7,000 00 Envoy extraordinary, &c............................................. 2 17,500 00 35,000 00 Envoy extraordinary, &c...................................... 7 12,000 00 84,000 00 Envoy extraordinary, &c...................................... 2 10,000 00 20,000 00 Ministers resident....................................................... 21.7,500 00 157,000 00 Secretaries of legation............................................. 2 2,625 00 5,250 00 Secretaries of legation...................................... 7 800 00 12,600 00 Secretaries of legation......................................7 1,500 00 25,500 00 Assistant secretaries of legation......................2....... 1,500 00 3,000 00 Interpreter and secretary of legation.......................... 1 5,000 00 5,000 00 Dragoman and secretary of legation........................ 1 3,000 00 3,000 00 Interpreter.................................................................. 1 2,500 00 2,500 00 Interpreters................................................. 2 1,500 00 3,000 00 Interpreters.....................................................2 1,000 00 2,000 00 Commissioner and conl general............................... 1 7,500 00 7,500 00 Commissioner and consul general................................ 1 4,000 00 4,000 00 Consul general............................................................. 1 5,000 00 5,000 00. Consul general............................................ 1 6,000 00 6,000 00 Consul generals......................................................... 2 3,000 00 6.000 00 Consul general.................................1........................................... Fees Consul general....................................................... 1 3,500 00 3,500 00 Consul generals......................................... 2 4,00 00 8,000 00 Consul general.................................. 1 1,500 00 1,500 00 Consuls................................................................... 2 7,500 00 15,500 00 Consuls................... 23 2,000 00 46,000 00 * onsuls......................................................................... 12 3,000 00 36,000 00 Consuls........................................................................ 78 1,500 00 117.000 00 Consuls......................................................................... 6 3,500 00 21,000 00 Consuls........................................................................ 9 2,500 00 22,500 00 Consuls................... 5 4,000 00 20,000 00 Consuls........................................................................ 18 1,000 00 18,000 00 Consuls....................................................................... 3 750 00 2,250 00 Consuls......................................................... 5 500 00 2,500 00 Consuls.........................F................. 84 Fees Vice consul.............. 1 1,500 00 1,500 00 Vicerconsuls................................................................ 11 Fees Commercial agents........................................... 3 2,000 00 6,000 00 Commercial agents......................................................3 1,500 00 4,500 00 Commercial agents...................................................... 7 1,000 00 7,000 00 Commercial agents.................................................... 7 Fees Marshals to consular courts........................................ 7 1,000 & fees ~ 7,000 00 Consular clerks..................................................... 3 1,000 00 3,000 00 Judges underprovisions of treaty with Great Britain of April 7,1862........................................................ 3 2,500 00 7,500 00 of April 7, 186..3 2,500 00 7,500 00 Arbitrator under provisions of treaty with Great Britain of April 7, 1862..................................... 1 1,000 00 1,000 00 Arbitrator under provisions of treaty with Great Britain of April 2, 1862...................................... 1 2,000 00,000 00 Commissioner........................................ 1 2,000 00 2,000 00 Commissioner.............................................................. 1 3,000 00 3,000 00 Commissioner......................................... 5,000 00 5,000 00 Secretary of commissioner....................................... 2,000 00 2,000 00 Governors of Territory....................................... 6 1,500 00 9,000 00 Governors of Territory............................................. 2 2,500 00 5,000 00 Secretaries of Territory........................................ 5 1,800.00 9,000 00 Sccrcttary of Territory............................... 1 1,500 00 1,500 00 Secretaries of Territory.............................................. 2 2,000 00 4,000 00 394 $797,600 00 RECAPITULATION-DEPARTMENT OF STATE. Total number of officers, 394. Total annual salary, $797,600. 5(O8 Interior Department as per Official R egister, 1865. Officer. Number. Annual salary. Total annual salary. Secretary.................................................1 $8,000 00 $8,000 00 Assistant Secretary..............................1 3,500 00................... 3,500 00 Commissioner General Land Office............................ 1 3,000 00 3,000 00 Registers..................................................................... 73 500 &fees 36,500 00 Receivers.................................................................... 73 500 &fees 36,500 00 Surveyors of public lands........................................... 4 2,000 00 8,000 00 Surveyors of public lands.......................................... 3 3,000 00 9,000 00 Surveyor of public lands........................................... 1 2,500 00 2,500 00 Surveyor of public lands........................................ 1 1,800 00 1,800 00 Commissioner of Patents........................................... 1 4500 00 4,500 00 Examiners-in-chief........................................ 3 3,000 00 9,000 00 Examiners.i................................................................ 14 2,500 00 35,000 00 Assistant examiners............................................... 12 1,800 00 21,600 00 Second assistant examiners........................................ 6 1,600 00 9,600 00 Commissioner of Indian Affairs................................. 1 3,000 00 3,000 00 Superintendents......................................................... 7 2,000 00 14,000 00 Agents.................................................. 4 1,800 00 7,200 00 Agents....................................................................... 48 1;500 00 72,000 00 Special agents............................................... 7 1,500 00 10,500 00 ub-agents.................................................................. 1 1,500 00 1,500 00 Sub-agents.................................................................. 3 1,000 00 3,000 00 Commissioner of Pensions.......................................... 1 3,000 00 3000 00 Agents for paying Army and Navy pensions in the several States and Territories................................. 45 4,000 00* Captain of Capitol police......................................1..... 1,740 00 1,740 00 Police officers............................................................ 27 1,320 00 35,640 00 President Columbia Institution for Deaf and Dumb.. I 2500 00 2,500 00 Professor Columbia Institution for Deaf and Dlmb.. 1 1,600 00 1,600 00 Professor Columbia Institution for Deaf and Dumb.. 1,800 00 1,800 00 Engineer in charge of Washington aqueduct............ 1 800 00 1,800 00 Superintendent of Hospital for Insane of the Army, ~ Navy, revenue-cutter service............................, 1 2,500 00 2,500 00 Superintendent of police.......................1........... 1 1,500 00 1,500 00 Superintendent of Public Printing............................ 1 3,000 0 3,000 00 Commissioners of police......................................5 250 00 1250 00 Ex-officio commissioners of police................. 2 250 00 500 00 Surgeons of police............ 3 300 00 900 00 Police magistrates..................................................... 800 00 4,000 00 Corps of detectives..................................................... 5 840 00 4,200 00 Sergeants of police................................................ 10 600 00 6,000 00 Police patrolmen....................................................... 140 480 00 67,200 00 Sanitary police commissioners.................................... 9 480 00 4,320 00 Policeman at President's House................................. 1 1,320 00 1,320 00 Watchman in the crypt.............................................. 960 00 960 00 Gatekeeper at Capitol........................................................... 1,000 00 1,000 00 Watchmen on the grounds............................ 2 720 00 1.440 00 Watchman at public stables...................................... 1 1,000 00 1,000 00 Watchmen at President's House.............................. 2 720 00 1,440 00 Watchman at reservation No. 2................................. 1 720 00 720 00 Doorkeeper at President's House.............................. 1 720 00 720 00 Assistant doorkeeper at President's House............... 1 720 00 720 00 Public gardener....................................................... 1 1,440 00 1,440 00 Gardener at President's....................................... 1 960 00 960 00 548 $457,170 00 *Fees: whole compensation not to exceed $4,000 per annum. BECXPITULATION-INTERIOR DEPARTMENT. Total number of officers, 548. Total annual salary, $457,870. Post Office Department as per Official Register, 1865. Officer. Number. Annual salary. Total annual salary. Postmaster General........................................... 1 $8,000 00 $8,000 00 Assistant Postmaster Generals.............................. 3 8,500 00 10,500 00 Postmasters.......................................... 26,619* t 4,250,000 00 Special agents...................................................... 29 1,600 00 46,400 00 Srecial agents................................................. 3 1,200 00 3,600 00 Special agent........................................................... 1 2,500 00 2,500 00 oute agents............................................................. 410 - approx. 287,000 00 ocal agents............................................................... 51 - 25,353 00 ail contractors........................................................,926 - 5,001,315 00 Local mail agency...................................................... 67 - 13,541 27 Mail messenger service.............................................. 1,776 - 111,492 32 Special mail messenger service..................... 1,836 - 51,997 68 34,722 $9,811,699 27 * As per special list corrected by Post Officee Department to October 20, 1867. t Too varied for speedy clasisiiction, $ As per report of Postmas ter General. 509 Attorney Generalis Office and Judiciary as per Official Register, 1865. Officer. Number. Annual salary. Total annual salary. Attorney General.......................1 $8,000 00 $8,000 00 Assistant Attorney General...... 1 3,500 00 3,500 00 District attorneys, States and Territories.................. 60 250 & fees. 15 000 00 Marshals courts........................................................ 60 250 &fees. 15,000 00 Chief justices, Territories............................. 2 2,500 00 5,000 00 Chief justices, Territories............................ 3 2,000 00 6,000 00 Chief justices, Territories..3 1,80 00 5,400 00 Associate justices, Territories.. 4 2,500 00 10,000. 00 Associate justices, Territories..............................6 2,000 00 12,000 00 AssociateJustices, Territories....................... 6 1,800 00 10,800 00 146 $90,700 00 Department of Agriculture as per Official Register, 1865. Officer. Number. Annual salary. Total annual salary. Commissioner............1............ 1 $3,000 00 $3,000 00 Department of Education as per law creating Department. Officer. Number. Annual salary. Total annual salary. Commissioner.............................................................. 1 $4,000 00 $4,000 00 Treasury Department as per Official Register of 1865. Office. Number. Annual salary. Total annual salary. Secretary.1 $,0008...............................................1.......... $8,000 00 $8,000 00 Assistant Secretaries........................................ 2 3,500 00 7,000 00 Comptroller..................................................... 1 3,500 00 3,500 00 Comptroller................................................................. 1 3,000 00 3,000 00 Commissioner of Customs.................................1..... 3,000 00 3,000 00 Auditor....................................................................... 6 3,000 00 18,000 00 Treasurer.......................................................... 1 5,000 00 5 000 00 Assistant Treasurer..................................................... 1 2,800 00 2,800 00 Assistant Treasurer........................................ 1 6,000 00 6,000 00 Assistant Treasurer.............................. 1 4,500 00 4,500 00 Assistant Treasurer..........................2................. 4,000 00 8,000 00 Assistant Treasurer................ 1..................................... 1,000 00 1,000 00 United States depositaries............................1.......... 2,500 00 2,500 00 United States depositaries...................................... 2,000 00 6,000 00 United States depositaries...................................... 1,800 00 3,600 00 United States depositaries............................ 1 1,600 00 1,600 00 UTnited States depositaries......................................1 1,500 00 1,500 00 United States depositaries......................................... 2 1,400 00 2,800 00 United States depositaries.......................................... 6 1,300 00 7,800 00 United States depositaries.......................................... 4 1,200 00 4,800 00 United States depositaries........................ 1,000 00 1,000 00 United States depositaries................................. 1 750 00 750 00 United States depositaries.......................................... 1 480 00 480 00 Register....................................................................... 1 3,000 00 3,000 00 Assistant register........................................................ 1 2,000 00 2,000 00 Chief of loan branch........................................ 1 2,000 00 2,000 00 Comptroller National Currency Bureau..................... 1 5,000 00 5,000 00 Deputy comptroller............................ 1 2,500 00 2,500 00 Solicitor..................................................................... 1 3,500 00 3,500 00 Chief of first division................................ 1 3,000 00 3,000 00 Assistant of first division................................ 1 2,500 00 2,500 00 Commissioner of Internal Revenue........................... 1 4,000 00 4000 00 Deputy commissioner of internal revenue................. 1 2,750 00 2,750 00 Assessors of internal revenue.................................... 226 1,500 & fees. 602,008 90 Collectors of internal revenue.................................... 216 1,500 &fees. 498,239 66 Deputy collectors........................................................ 216 1,500 00 324,000 00 Supervising architect of Bureau of Construction, (Coast Survey)........................................................ 1 3,000 00 3,000 00 Assistant supervising architect of Bureau of Construction, (Coast Survey).................................. 1.... 2,000 OD 2,000 00 51O STATEMENT-Continued. Office. Number. Annual salary. Total annual salary. Superintendent of United States Coast Survey......... 6,000 00 6,000 00 First assistant superintendent.................................... 1 3,500 00 3,500 00 Second assistant superintendent................................. 2 2,500 00 5,000 00 Hydrographic inspector............................... 1 2,825 00 2,825 00 Disbursing agent of Coast Survey.............................. 1 2,500 00 2,500 00 Assistant and foreman of weights and measures 1 2,500 00 2,500 00 Director of Mint at Philadelphia............................ 1 3,500 00 3,500 00 Treasurer of Mint at Philadelphia............................. 1 2,000 00 2,000 00 Melter and refiner of Mint at Philadelphia 1 2,000 00 2,000 00 Assayer of Mint at Philadelphia....................... 1 2,000 00 2,000 00 Chief coiner of Mint at Philadelphia....................... 2,000 00 2,000 00 Engraver of Mint at Philadelphia........................... 1 2,000 00 2.000 00 Superintendent of branch mint at San Francisco 1 4,500 00 4,500 00 Treasurer of branch mint at San Fc ancisco...............1 4,500 00 4,500 00 Assayer of branch mint at San Frasicisco................. 3000 00 3,000 00 Melter and refiner of branch mint at San Francisco 1 3,000 00 3,000 00 Coiner of branch mint at San Francisco.................... 1 3,000 00 3,000 00 Superintendent of branch mint at Denver................. 1 2,000 00 2,000 00 Assayer of branch mint at Denver............................. 1,800 00 1,800 00 Chief coiner of branch mint at Denver 1 1,800 00 1,800 00 Melter and refiner of branch mint at Denver............ 1 1,800 00 1,800 00 Assistant treasurer at Denver................................. 1 500 00 500 00 Superintendent of assay office at New York............. 1 3,500 00 3,500 00 Assayer of assay office at New York 1 3,000 00 3,000 00 Melter and refiner of assay office at New York 1 3,000 00 3,000 00 Deputy treasurer of assay office at New York............ 1 3,000 00 3,000 00 Accountant of assay office at New York.1 2,500 00 2,500 00 Weigh clerk of assay office at New York................... 1 2,500 00 2,5Q0 00 Special agent........................................................ 1...... 5,000 00 5,000 00 Special agents.................................. 7 3,000 00 21,000 00 Special agents............................................................. 2 2,500 00 5,000 00 Special agents............................................................. 24 $6 per day. 52,560 00 Special'agents............................................................ 2 5 per day. 3,650 00 Supervising inspectors of steamboats...................... 9 1,500 00 13,500 00 Local inspectors of steamboat hulls....................... 28 - 23,900 00 Local inspectors of steamboat boilers..................... 28 - 23,900 00 Captains revenue-cutter service........................... 34 1,800 00 61,200 00 First lieutenants revenue-cutter service..................... 27 1,400 00 37,800 00 Second lieutenants revenue-cutter service............. 16 1,200 00 19,200 00 Third lieutenants revenue-cutter service.48 900 00 43,200 00 Chief engineer revenue-cutter service....................... 18 1,400 00 25,200 00 First assistant engineer revenue-cutter service......... 19 1,200 00 22,800. 00 Second assistant engineer revenue-cutter service..... 18 900 00 16,200 00 Chief clerk of Light-House Board............................. 1 2,000 00 2,000 00 Physicians, &c., at marine hospitals........................... 18,800 00 1,023 $. 2,036,263 56 RECAPITULATION-TREASURY DEPARTMENT. Total number of officers, 1,023. Total annual salary, $2,036,263 56. RECAPITULATION TOTAL. Department. Number of officers. Total annual salary. Navy.............................................................................. 1,720 $3,171,773 00 War................................................................................... 3,033 4,907,831 04 State................................................................................. 394 797,600 00 Interior........................................ 548 457,870 00 Post Office......................................................................... 34,722 9,811,699 27 Attorney General.............................................................. 146 90,700 00 Agricultural......................................................... 1 3,000 00 Education..........................................................................1 4,000 00 Treasury......................................................................... 1,023 2,036,263 56 Grand totals...................................................... 41,588 $21,180,736 87 Errors excepted. 511 Mr. Manager BUTLER. - Mr. President, I it; but we have a right to put in any evidence have the honor to offer now from the files of which would be competent at any stage of the the Senate, in the first place, the message of cause anywhere. Andrew Johnson nominating Lieutenant Gen- Mr. EVARTS rose. eral William T. Sherman to be general by Mr. Manager BUTLER. Excuse me a mobrevet in the Army of the United States on ment. the 13th day of February, 1868. Mr. EVARTS. I wish to ask a question. Mr. EVARTS. Under what article is that When does our right to give in evidence end? offered? With what intent? Mr. Manager BUTLER. When you get Mr. Manager BUTLER. That is under the through with competent and pertinent evieleventh article and under the tenth. dence, I suppose. Mr. EVARTS. The tenth is the speeches. Mr. EVARTS. I supposed there was a Mr. Manager BUTLER. I should say the different rule for us? ninth; I beg pardon. Mr. Manager BUTLER. No, sir; that is the -Mr. EVARTS. That is the Emory article. rule that I am claiming now, putting in comMr. Manager BUTLER. That is the Gen- petent and pertinent evidence, not a different eral Emory article. rule. I beg you will not misunderstand me..Mr. EVARTS. Do you offer this on the In many of the States-I can instance the ground that the conferring the brevet on Gen- State of New Hampshire-I am sure the rule eral Sherman was with intent to obstruct the of rebutting evidence does not obtain in theirreconstruction act? courts at all. Each party calls such pertinent Mr. Manager BUTLER. I offer it valeat and competent evidence as he has up to the quantum. I referred to it in the argument I hour when he says he has got through from have already made. The statement which I time to time; and in some other of the States made in the opening upon that question has it is so applicable, and no injustice is done to been twice read-once, I believe, by yourself, anybody. and ofice, I am certain, by Mr. Curtis. The CHIEF JUSTICE. The Chief Justice Mr. EVARTS. It does not seem to us, Mr. will submit the question to the Senate. The Chief Justice and Senators, to be relevant, and honorable Managers propose to put in eviit certainly is not rebutting. We have offered dence the nomination sent by the President to no evidence bearing upon the only evidence the Senate on the 13th of February, 1868, of you offered under the. eleventh article, which Lieutenant General Sherman to be general by was the telegrams between Governor Parsons brevet, and the nomination of Major General and the President on the subject of recon- George H. Thomas, sent to the Senate on the struction. We have offered no evidence on 21st of February, 1868, to be lieutenant genthat subject, and we do not see that this ap- eral by brevet and general by brevet. pointment — Mr. ANTHONY called for the yeas and Mr. Manager BUTLER. They maybe both nays; and they were ordered. passed upon at once to save time. I offer, also, Mr. HOWARD. I ask that the offer may: the appointmentby brevet of George H. Thomas be again read. It is not understood. to be lieutenant general and then general by The CHIEF JUSTICE. The Chief Justice brevet, two brevets on the 21st, the same day will state it. The offer was not reduced to that Mr. Stanton was removed. writing. It isvery'brief, and the Chief Justice Mr. EVARTS. What was the last paper? will state it. Mr. Manager BUTLER. The last paper Mr. HOWARD. I respectfully ask that the, wa.the appointment by brevet of Major Gen- Chair will again announce it to the Senate. eral George H. Thomas first to be lieutenant The CHIEF JUSTICE. He was about to do general by-brevet and then general by brevet; so. The honorable Managers propose to put and that was done on the same day that Mr. in evidence the nomination of Lieutenant GenStanton was removed, the 21st of February. eral Sherman to be general by brevet, sent to Mr. EVARTS. Mr. Chief Justice and Sen- the Senate on the 13th of February, 1868; also, ators, it is very apparent that this does not re- the nomination of Major General George H. but any evidence we have offered. It is then Thomas to be lieutenant general by brevet offered as evidence-in-chief that the conferring and to be general by brevet, sent to the Senate of brevets on these two officers is in some way on the 21st of February, 1868. Senators, you within the evil intents that are alleged in these who are of opinion that this evidence shall be articles. We submit that on that question received will, as your names are called, answer there is nothing in this evidence that imports yea; those of the contrary opinion, nay. any such evil intent. The question being taken by yeas and nays, Mr. Manager BUTLER. I only wish to say resulted-yeas 14, nays 35; as follows: upon this that we do not understand that this YEAS-Messrs. Anthony, Cole, Fessenden, Fowler, case is to be tried upon the question of whether Grimes, Henderson, Morton. Ross, Sumner, Tipton, evidence is rebutting evidence or otherwise, Trumbull, VanWinkle, Willey, and Yates-14. because we understand that to-day the House NAYS-Messrs. Buckalew,Cameron, Cattell, Chandler, Conkling, Conness, Corbett. Cragin, Davis, Dixon, of Representatives may bring in a new article Doolittle, Drake, Edmunds, Ferry, Frelinghuysen, of impeachment if they choose, and go on with Harlan, Hendricks, Howard2 Howe, Johnson, Me 512 Creery, Morgan,MorrillofMaine, MorrillofVermont, him this morning. The summingup of a cause Patterson of New Hampshire, Patterson of Tennes- of this weight in many aspects, regarding the see, Pomeroy, Ramsey, Sherman, Sprague, Stewart, testimony and the subject and the situation, is Thayer, Vickers, Williams, and Wilson-35. testimony and the subject and the situation, is, NOT VOTING-Messrs. Bayard, Norton, Nye, of course, a labor of no ordinary magnitude, Saulsbury, and Wade-5. physical and otherwise, and Mr. Stanbery is of So the Senate refused to receive the evidence the opinion, in which we concur, that he will offered. need an interval of two days, added to what in Mr. Manager BUTLER. Mr. President, I' the course of the trial would probably bring have the honor to say that the case on the part him to his feet in the' argument, to have the of the Managers is closed, and all witnesses adequate strength for that purpose. It might who are here under the subpoena of the Sen- have been left until the day on which he should ate, at the instance of the Managers, may be have appeared, and then have the request made discharged. for a day or two's relief in this regard; but it The CHIEF JUSTICE. Does the Chief occurred to us to be fairer to the Managers Justice understand that the case on the part that the interval of repose should be interposed of the President is closed? at a time when it would be useful and valuable Mr. EVARTS. We are able to make the to them also, as the proofs are not entirely same announcement as regards witnesses who printed in the proper form for reference, and are attending on the part of the defense under the latter voluminous evidence on the subjectsubpoena; and this announcement on both sides, of appointments and the routine of the practice we assume, precludes almost necessarily any of the Government is such as to require conattempt to proceed with evidence again. siderable investigation in order to point out to' The CHIEF JUSTICE. The honorable the Senate the efficacy on the one side of, or Managers will please proceed with their argu- the answer on the other to, the proofs. It is, ment. therefore, our duty now to suggest (coupling it Mr. Manager BOUTWELL. Mr. Chief Jus- with the suggestion of the Managers, that until tice and Senators, it has fallen to me, upon the to-morrow should be given for the propriety of judgment of the Managers, to make the first the mere agreeable introduction of the arguargument on the part of the House of Repre- ment on their part,) that we ask that you consentatives in the close. It is very likely that I sider this statement which I have made to you, shall be obliged to occupy the larger part of a and see whether it is not better in all respects day in presenting to the honorable Senate the that the matter should now be disposed of. I views which I shall feel it my duty to offer. think the Managers will concur that this is the Under these circumstances, I have to ask that proper time to consider it and accommodate the Senate will do me the favor to adjourn until matters to the providential interference with to-morrow morning at the usual hour, when I the leader of the President's counsel and his shall be prepared to proceed. confidential friend and adviser. Mr. JOHNSON. Mr. Chief Justice, I move Mr. JOHNSON. What is the motion? that the Senate, as a court of impeachment, Mr. EVARTS. The suggestion is that an adjourn until eleven o'clock to-morrow. internal of two days should be given now, Several SENATORS. Say twelve o'clock. instead of waiting till Mr. Stanbery shall come The CHIEF JUSTICE. The rule now fixes in; and I understand the Managers will agree eleven as the hour of meeting. it is better it should occur now than later. Mr. EVARTS. Mr. Chief Justice, may I Mr. YATES. I move that the Senate adbe heard a moment? journ until Wednesday. The CHIEF JUSTICE. On a motion to Mr. Manager BOUTWELL. Mr. Presiadjourn no debate is in order. dentMr. JOHNSON. I withdraw the motion. Mr. YATES. I withdraw the motion if the Mr. EVARTS. Of course I do not rise Managers desire to be heard. with the view of making the least objection to Mr. Manager BOUTWELL. Mr. President, the suggestion on the part of the honorable if it shall be the pleasure of the Senate to conManagers, which seems to us to be entirely rea- sider favorably the request made by the learned sonable, but to couple with it a statement to counsel for the respondent, which is a question which I beg the attention of the court for a of public duty on which I can express no opinmoment. Our learned associate, Mr. Stan- ion, I certainly should desire that the time to bery, has, from the outset, been relied upon by be granted should be granted at once. I may the President and by the associate counsel to say that if I had consulted my own feelings make the final argument in this cause; and exclusively I should have made the request for there are many reasons, professional and others, a day more of time for further examination of why we should all wish that this purpose should the record and more careful preparation than be carried out. It has been his misfortune, in I have yet been able to make; but under the the midst of this trial and after it had proceeded circumstances of the trial I did not feel at libfor a fortnight, to be taken suddenly ill. The erty to ask that favor or consideration upon my illness, of no great gravity, is yielding to the own account. I have only now to say that if remedies prescribed and to the progress of time, it is the judgment of the Senate that time so that he now occupies his parlor, aswe found should be granted to the learned counsel who 513 is to close for the respondent it would cer- involves a change of the rules. Is there unanitainly be very desirable on my part that the mous consent? time should be granted at once, and that we Mr. BUCKALEW. I object. may all have the bdnefit of it in preparing what Mr. WILSON. I ask that the rule bearing we deem it proper to say. on this matter be read. Mr. EVARTS. One word, if I may be in- The CHIEF JUSTICE. The Secretary will dulged. The honorable Senators will also per- read the twenty-first rule. ceive that if Mr. Stanbery's resolution and The Chief Clerk read as follows: expectation should be disappointed, it is then "XXI. The case, on each side, shall be opened by a matter of some importance for us of the de- one person. The final argument on the merits may'fense to supply his place as well as we may on be made by two persons on each side, (unless otherfense to supply his place as well as we may on wise ordered by the Senate, upon application for an unexpected emergency, and a little time in that purpose,) and the argument shall be opened and that behalf also would be valuable to us. closed on the part of the House of Representatives." Mr. JOHNSON. Mr. Chief Justice, I move Mr. Manager LOGAN. Mr. President, the that the Senate, sitting as a court of impeach- reason I made the request to-day-if it is ment, adjourn until Thursday morning. denied, as a matter of course I shall not renew Several SENATORS. Say Wednesday. it-was that I might present the argument I Mr. Manager LOGAN. If the gentleman have prepared, to the counsel for the respondwill withdraw the motion for a moment, I de- ent, that they, if they saw anything worthy of sire to make a request of the Senate. reply in it, might have an opportunity of reply. Mr. JOHNSON. Certainly; or rather I ing in their argument. would submit the motion in this form: that The CHIEF JUSTICE. The rule permits' when the Senate, sitting as a court of impeach- argument by but two counsel, one in opening ment, adjourns to-day, it adjourn to meet at and one in the close on the part of the Maneleven o'clock on Wednesday morning. agers and two on the part of the President. Mr. DOOLITTLE. I suggest twelve o'clock The question of changing the rule has been instead of eleven. ["'No, no."] frequently before the Senate and the Senate The CHIEFJUSTICE. The rule now fixes has uniformly refused to alterit. An ordercan eleven as the hour of meeting. be submitted to-day to be considered on the Mr. Manager LOGAN. I merely desire to next day of meeting, but not for present conmake a request. Is this the proper time to do sideration except by unanimous consent. it, sir? Mr. HOWE. I did not hear any objection. The CHIEF JUSTICE. It is. The CHIEF JUSTICE. Objection has been Mr. Manager LOGAN. Mr. President and made. Senators, I desire to make a request of the Mr. DOOLITTLE. I object. Senate before the adjournment, as doubtless Mr. Manager BOUTWELL. Mr. President, that will be granted upon the statement of the before the adj ournment of the Senate I should honorable counsel for the President and the like to call the attention of the counsel for the Managers,las they both seem to desire this ex- respondent to a feature of the testimony. It tension of time. I have not presumption happens that the Managers, as Isuppose, under enough to ask of the Senate permission to ad-' the construction given to the rule, are to prodress them on the issues presented for their ceed first in the argument. A large mass of consideration, nor do I desire to do so; but I testimony has been introduced upon the subask that I may be permitted to file to-day the ject of removals and appointments. At the printed argument which I have prepared that it present time I am not informed whether there maf become a part of the record, without taking are special cases on which the counsel for the the time of the Senate, inasmuch as the evi- President rely. I think it may be proper for dence on both sides, for the prosecution on the me at this time to ask them whether there are part of the people and for the respondent, has cases tupon which they purpose to rely as furbeen closed. nishing precedents for the course pursued by Mr. ST]WART. Mr. President, I move the President on the 21st of February. that leave be granted to the Manager to file his Mr. ANTHONY. Mr. President, I will make argument. a motion, to lie over until to-morrow, that the The CHIEF JUSTICE. That involves a twenty-first rule be so modified as to allow the change of the rules, and it cannot be done if honorable Manager-. there is any objection. The CHIEF J USTICE. The order will be Mr. BUCKALEW. I object. reduced to writing. Mr. JOHNSON. May I ask the honorable Mr. STEWART. I have drawn up an order Manager whether the argument is now in print? which I submit in writing. Mr. Manager LOGAN. It is, and I am The CHIEF JUSTICE. The Senator from ready to file it at once. Nevada submits ain order, which will be read Mr. STEWART. I make the motion that by the Secretary. leave be granted, and that the Manager furnish The Chief Clerk read as follows: a copy of his argument to the other side. Ordered, That the honorable ManagerLoGAihave The CHIEF JUSTICE. The order cannot leave to file his written argument to-day and furnish be made except by unanimous consent, as it a copy to each of the counsel for the respondent. C.. —33. 514 Mr. SHERMAN. Mr. President, I submit, hearsnoobjection. Itis so ordered. Senators, as a substitute for that, to go over with it, the the business under consideration when the Senfollowing: ate adjourned on Monday was an order offered That the Managers on the part of the House of by the Senator from Nevada, [Mr. STEWART,] Representatives and the counsel for the respondent which the Clerk will read. have leave to file written or printed arguments before The Chief Clerk read as follows: the oral argument commences. The CHIEF JUSTICE., The order sub- Ordered, That the Managers on the part of the House of Representatives and the counsel of the mitted by the Senator from Nevada is under respondent have leave to file written or printed arguconsideration unless objected to. ments before the oral argument commences. Mr. BUCKALEW. I mean my objection Mr. VICKERS. Mr. President, I beg leave to apply to all this. to offer this as a substitute. The CHIEF JUSTICE. It is objected to. The CHIEF JUSTICE. The Secretary will For information, the amendment proposed by read the substitute. the Senator from Ohio will be read. The CHIEF CLERK. It is proposed to strike Mr. STEWART. I will accept the amend- out all of the proposed order, and insert in ment offered by the Senator from Ohio as a lieu thereof: substitute for my proposition. As the counsel for the President have signified to The CHIEF JUSTICE. The order as now the Senate, sitting as a court for the trial of the improposed will be read for information. peachment, that they did not desire to file written or T1he Chief Clerk read as follows: printed arguments, but preferred to argue orally, if allowed to do so: Therefore, Ordered, That the Managers on the part of the Resolved, That anytwo of the Managers otherthan House of Representatives and the counsel for the those who under the present rule are to open and respondenthave leave to file written orprinted argu- close the discussion, and who have not already adments before the oral argument commences. dressed the Senate, be permitted to file written arguments at or before the adjournment of to-day, or to The CHIEF JUSTICE. The present con- make oral addresses after the opening by one of the sideration of the order is objected to; it will Managers anft the first reply of the President's counlie over until to-morrow. sel, and that other two of the counsel for the President who have not spoken may have the privilege Mr. DOOLITTLE. Mr. Chief Justice, the of reply, but alternating with the said two Managers, motion now made is a change of the rule, and leaving the closing argument for the President and I object to it. the Managers' final reply to be made under the oriThe CHIEF JUSTICE. It is already ob-ginal rule. jecThe CHIE USTICE It is already ob- Mr. CURTIS. Mr. Chief Justice, it may Mr. JOHNSON. I now renew the motion have some bearing possibly on the vote which MIr. JOHNSON. I now renew the motion that when the Senate, sitting as a court of im-is to be taken on this proposition if I were to peachment, adjourns, it adjourn to meet at state what I am now authorized to state, that eleven o'clock on Wednesday. the extent of Mr. Stanbery' s indisposition is The motion was agreed to. such that it will be impracticable for him to take any further part in this trial. Mr. EDMIUNDS. I move that the Senate The CHIEF JUSTICE. Senators, you who sitting for this trial do now adjourn. agree to the amendment proposed by way of The motion was agreed to; and the Sen- substitute by the Senator from Maryland will ate, sitting for the trial of the impeachment, say ay. adjourned until Wednesday, the 22d instant. Mr. CONNESS called for the yeas and nays, and they were ordered. WEDNESDAY, April 22, 1868. Mr. YATES. I ask for the reading of the The Chief Justice of the United States took amendment. the chair. The CHIEF JUSTICE. The Secretary will The usual proclamation having been made read the original proposition and also the by the Sergeant- at-Arms, substitute. The Managers of the impeachment on the The Chief Clerk read the order proposed part of the House of Representatives and the by Mr. STEWART and the amendment of Mr. counsel for the respondent, except Mr. Stan- VICKERS. bery, appeared and took the seats assigned to The question on the amendment being taken them respectively. by yeas and nays, resulted-yeas 26, nays 20; The members of the House of Representa- as follows: tives, as in Committee of the Whole, preceded YEAS-Messrs. Buckalew, Cragin, Davis, Doolitby Mr. E. B. WASHBURNE, chairman of that tle, Edmunds, Fessenden, Fowler, Frelinghuysen, committee, and accompanied by the Speaker Grimes, Hendricks, Johnson, McCreery, Morrill of Maine, Morton, Norton, Patterson of New Hampand Clerk, appeared and were conducted to shire, Patterson of Tennessee, Saulsbury, Sprague, the seats provided for them. Tipton, Trumbull, Van Winkle, Vickers, Willey, The CHIEF JUSTICE. The Secretary will Wilson, and Yates-26. NAYS-Messrs. Cameron, Cattell, Chandler, Conread the minutes of Monday's proceedings. ness, Corbett, Drake, Ferry, Henderson, Howard, Mr. EDMUNDS. Mr. President, I move that Howe, Morgan, Morrill of Vermont, Pomeroy, the reading of the Journal be dispensed with. Ramsey, Ross, Sherman, Stewart, Sumner, Thayer, and Williams-20. The CHIEF JUSTICE. Unless there be NOT VOTING-Messrs. Anthony, Bayard, Cole, some objection it will be so ordered. The Chair Conkling, Dixon, Harlan, Nye, and Wade-8. 515 Mr. POMEROY. The Senator from Cali- The CHIEF JUSTICE. It has just been fornia, [Mr. COLE,.] who sits by my side,. has offered by the Senator from Maryland. If there been called suddenly to leave the city on is no objection it will be now considered. account of a matter of deep interest to his Mr. CONNESS. I offer a substitute for it. family. He wished me to say this to the The CHIEF JUSTICE. It is before the Senate in explanation of his absence. "Senate for consideration, and the Senator from So the amendment was agreed to. California proposes a substitute. The CHIEF JUSTICE. The question re- Mr. SHERMAN. I should like to have it curs on the order as amended. read again. It was not heard. Mr. CONNESS called for the yeas and nays, The CHIEF JUSTICE. In a moment. and they were ordered; and being taken, re- The Secretary will read the order proposed by sulted-yeas 20, nays 26; as follows: the Senator from Maryland, and also the subYEAS-Messrs. Buckalew, Cragin, Davis, Doolit- stitute proposed by the Senator from California. tie, Fowler, Hendricks, Johnson, McCreery, Morton, The CHIEF CIERK The order as proposed Norton, Patterson of New Hampshire, Patterson of Tennessee, Saulsbury, Sumner, Tipton, Trumbull, by the Senator from Maryland is: Vickers, Willey, Wilson, and Yates —20. Ordered, That one of the Managers on the part of NAYS-Messrs. Cameron. Cattell, Chandler, Con- the House be permitted to file his printed argument ness, Corbett, Drake, Edmunds, Ferry, Fessenden, before the adjournment of to-day, and that after an Frelinghuysen, Grimes, Henderson, Howard, Howe, ora~l opening hy a Manager, and the reply of one of Morgan, Morrill of Maine, Morrill of Vermont, the President's counsel, another of the President's Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart, counsel shall have the privilege of filing a written or Thayer, Van Winkle, and Williams-26. of making an oral address, to be followed by the NOT VOTING-Messrsl Anthony, Bayard, Cole, closing speech of one of the President's counsel, and Conkling, Dixon, Harlaf, Nye, and Wade-8. the final reply of a Manager under the existing rule. So the amendment was disagreed to. Mr.So the amendment was disagreed to I send an The Senator from California proposes to Mr. VICKERS. Mr. President, I send an amend by striking out all after the word order to the chair, * "ordered" and inserting: Mr. Manager STEVENS. Mr. Chief Justice, I desire to make an inquiry; and that is That such of the Managers and counsel for the tice, I desire mak an impropriety in and that s President as may choose to do so have leave to file whether there is any impropriety in any Man- arguments before Friday, April 24. ager's publishing a short argument after this vote. After the motion made here on Monon the amendient proposed by way of substiday some few of us, I among the rest, com- the amendment proposed by way of substimenced to write out a short argument. I ex- tute. pect to finish it to-night, and, if the first vote Mr. CONNESS called for the yeas and nays, had passed. I meant to file it. I do not know and they were ordered, that there is any impropriety now in printing it Mr. BUCKALEW. I would move to lay except that it will not go into the proceedings. the resolution and amendment on the table; I would not like to do anything which would but I desire to have the order and amendment be improper, and I inquire whether there would read again. be any impropriety? The CHIEF JUSTICE. The order and Mr. FERRY. Mr. President, I inquire proposed amendment will be read again. whether it would be in order to move the The ChiefClerk read the order and the amendoriginal order upon which we have taken no ment. vote, introduced, I think, by the Senator from Mr. CONNESS. Mr. President, I wish to Massachusetts, [Mr. SUMNER.] modify my amendment so as to read "on or'lTe CHIEF JUSTICE. It would not. As before Friday, April 24." the Chief Justice understands the matter is The CHIEF JUSTICE. That modification finally disposed of. A proposition has been will be made if there be no objetction. The offered by the Senator from Maryland, [Mr. question is on the motion of the Senator from VICKERS,] which will be read for information. Pennsylvania, [Mr. BUCKALEW,] to lay on the The Chief Clerk read the order proposed by table the proposition and pending amendment. Mr. VICKERnS, as follows: The motion was not agreed to. That one of the Managers on the part of the The CHIEF JUSTICE. The question reHouse be permitted to file his printed argument be- curs on the amendment proposed by the Senfore'the adjournment of to-day, and that after an oral opening by a Manager and the reply of one of the ator from California. Upon that question the President's counsel, another of the President's coun- yeas and nays have been ordered. sel shall have the privilege of filing a written or of Th e e e eand nays, making an oral address, tobe followed by the closing es tobentanbyesadny speech of one of the President's counsel and the final resulted-yeas 24, nays 25; as follows: reply of a Manager under the existing rule. YEAS-Messrs. Cameron, Cattell, Chandler, ConkThe CHIEF JUSTICE. This order is in the ling, Conness, Corbett, Cragin, Drake, Ferry, Hendernature of an amendment of the rules, and can- son, Howard, Morrill of Vermont, Patterson of New cnseredo amnto runless by unani m s Hampshire, Pomeroy, Ramsey, Sherman, Stewart, not be considered now unless by unanimous Sumner, Thayer, Tipton, Willey, Williams, Wilson, consent. and Yates-24. Mr. CONNESS. That was offered, I believe, NAYS-Messrs. Anthony, Bayard, Buckalew, Da-. not mstfee, b te i, iDixon, Doolittle, Edmunds, Fessenden, Fowler, two days since, if I am not mistaken, by the Frelinghuysen, Grimes, Hendricks, Howe, Johnson. Senator from Nevada. McCreery, Morgan, Morton,, Norton, Patterson of 516 Tennessee, Ross, Saulsbury, Sprague, Trumbull, Van The CHIEF JUSTICE. The Chief Justice Winkle, and Vickers-25. does not understand the amendment. NOT VOTING —Messrs. Cole, Harlan, Morrill of Mr SHERMAN. Will the Secretary read Maine, Nye, and Wade-5. r. SER AN. Will the Secretary read the first clause, and I will submit an amendSo' the amendment was not agreed to. ment. The CHIEF JUSTICE. The question re — The CHIEF JUSTICE. The Secretary curs on the order proposed by the Senator from will read the first clause. Maryland, [Mr. VICKERS.] The Chief Clerk read as follows: Mr. JOHNSON. I move to amend the Mr. JOHNSON. I move to amend the Ordered, That two of the Managers on the part of order by inserting "two" instead of "one the House be permitted to file their printed argubefore the words " of the Managers," at the ment. beginning of the order. Mr. SHERMAN. I move thatthelanguage Mr. SHERMAN. Say "all." be, "The Managers on the part of the House Mr. JOHNSON. No; I will not say all; be permitted to file printed or written arguthat would be objectionable. ments." The CHIEF JUSTICE. The question is on Mr. FESSENDEN. That cannot be done the amendment of the Senator from Maryland, without reconsidering the vote by which we [Mr. JOHNSON,] to strike out "one" and in- inserted the word " two." sert "two." The CHIEF JUSTICE. A motion to strike The question being put, the Chief Justice out the word " two" and insert anything else declared that the amendment appeared to be will not be in order; but a motion to add the agreed to. words " or written" will be in order. Mr. CONKLING called for a division. Mr. SHERMAN. I will then move to reconMr. HOWARD. I ask how the order will sider the vote adopting the amendment of the read if amended? Senatorfrom Maryland, [Mr. JOHNSON,] insert' The CHIEF JUSTICE. It is proposed to ing the woid "two." strike out "one" in the first line and insert The CHIEF JUSTICE. The Senator from "two;" so as to read: "That two of the Ohio moves to reconsider the vote by which Managers on the part of the House be per- the word "one" was stricken out and " two" mitted to file, &c." was inserted. Mr. CONKLING. I beg to withdraw the The motion was not agreed to. call for a division; I made it under a misap- The CHIEF JUSTICE. The question reprehension of the amendment. curs on the amendment to insert after the word The CHIEF JUSTICE. The Chief Justice "printed" the words "'or written." announced the vote as agreed to. The amend- Mr. GRIMES. I wish to have the order Ment, then, stands as agreed to. reported, so as to know when these written Mr. CONNESS. What is the state of the argumentsare tobefiled. [" To-day."] Then question now, the amendment adopted? I ask unanimous consent to inquire whether or The CHIEF JUSTICE. The amendment not it is expected that the counsel for the is adopted. The question is on the order as President will examine these written arguments amended. to-day and be able to make a replyto them toMr. Manager WILLIAMS. Mr. President morrow morning? and Senators, I beg leave to suggest, as I do The CHIEF JUSTICE. The question iq very respectfully, that the effect of this order upon adding after the word "printed"' the as it now stands, requiring that any argument words " or written." which may be presented shall be in print to- The amendment was agreed to. day, will be to leave the matter substantially Mr. WILSON. I ask that the order be read, as it was before, because there is but one of the Managers, as I believe is well understood, The Chif Clerk read as follows: although three of them would like to put in arguments, there is but one of them who is so Ordered, That two of the Managers on the part of prepared just now; that is to say, whose argu- the House be permitted to file their printed or writprep ared just now that i. to s yten arguments before the adjournment of to-day, and ment is in print. So that, in this shape, it that after an oral argument by one Manager and the would be keeping the word of promise- to the reply of one of the President's counsel, another of ear and breaking it to the hone. the President's counsel shall have the privilege of filing a written or of making an oral address, to be Mr. JOHNSON. What time would the followed by the closing speech of one of the PresiManager like? dent's counsel and the final replyof a Manager under Mr. Manager WILLIAMS. Ifyou would say theexistingrule. "written" instead of "printed," it would be Mr. CORBETT. Mr. President, I move to satisfactory. insert in place of the word " another" the word Mr. SHERMAN. I move that the order be "two," so as to make it the same on the part so amended that "'the Managers shall have of the President's counsel as on the part of the leave to file written or printed arguments." Managers. The CHIEF JUSTICE. It is moved to The CHIEF JUSTICE. The Clerk will strike out the word "two" read the order as it stands now, and as it will Mr. SHERMAN., No, sir. be if amended as proposed. 51,7 Mr. FO'WLER. Mr. Chief Justice, the noise Senator from Oregon to withdraw that amendis so great in the Hall that we cannot hear. ment. The counsel do not ask it.'The CHIEF JUSTICE. Conversation in Mr. CORBETT. Mr. President, as the order the Senate Chamber must be suspended. is satisfactory to the President's counsel as it Mr. FOWLER. Particularly in the galleries. now stands without the amendment I withdraw The CHIEF JUSTICE. Conversation in the amendment. the Senate Chamber must be suspended, in- The CHIEF JUSTICE. The question is on eluding the galleries. adopting the order. The Clerk will read it as The CHIEF CLERK. It is proposed to strike it now stands. out the word " another" before the words " of The Chief Clerk read as follows: the President's counsel," and to insert' two;" Ordered, That two of the Managers on the part of so that the order will read: the House be permitted to filetheir printed or written arguments before the adjournment of to-day, and Ordered, That two of the Managers on the part of that after an oral opening by a Manager and the the House be permitted to file their printed or writ- reply of one of the President's counsel, another of ten arguments before the adjournment of to-day, and the President's counsel shall have the privilege of that after an oral opening by a Manager and the filing a written or of making an oral address, to be reply of one of the President's counsel, two of the followed by the closing speech of one of the PresiPresident's counsel shall have the privilege of filing dent's counsel and the final reply by a Manager under a written or of making an oral address,to befollowed the existing rule. by the closing speech of one of the President's counsel and the final reply of a Manager under the exist- Mr. CONNESS. I ask for the reading again lng rule. of the first part of the order. Mr. EVARTS. Mr. Chief Justice and Sen- The Chief Clerk read the order. ators, if you will allow me to say one word on Mr. CONNESS. That, Mr. President, I this question, as the rule now stands two of the desire to suggestPresident's counsel are permitted to make oral The CHIEF JUSTICE. The Senator from,arguments. By the amendment, without the California can speak by unanimous consent. modification of inserting "two". instead of Mr. CONNESS. I will notaskconsent, nor " another," we understand that three of the speak. I move, at the instance of one of the Pr4sident's counsel will be enabled to make Managers, to amend so that it will read "before oral arguments to the Senate. That is as many to-mrorrow noon," that that length of time be as, under any circumstances, would wish or be given to file either written or printed arguable to do so. ments, as they are not ready to-day. Mr. Manager STEVENS. Mr. Chief Jus- Mr. GRIMES. How can the other side tice, this would embarrass the Managers among reply to-morrow? themselves very much. Would it not do to Mr. HENDERSON. I desire to offer a say that "the Managers and the counsel for substitute. the President may file written or printed argu- The CHIEF JUSTICE. The first question ments between this and the meeting of the is on the amendment proposed by the Senator court to-morrow??" That would disembarrass from California, [Mr. CONNESS.] us of all our difficulties, and I cannot perceive The amendment was agreed to. its inconvenience. The CHIEF JUSTICE.' The question now Mr. BAYARD. Mr. Chief Justice, I move is on the substitute proposed by the Senator to lay the resolution on the table, and I ask from Missouri, [Mr. HENDERSON.] The Clerk for the yeas and nays. will read it. Mr. NELSON rose. The Chief Clerk read as follows: Mr. BAYARD. I withdraw the motion. Mr. BAYARD. I withdraw the motion. Strike out all after the word "Ordered" in the Y r. FESSENDEN. Mr. President, I ask original proposition, and insert: if he order was not adopted. That all the Managers not delivering oral arguThe CHIEF JUSTICE. It has not been. ments may be permitted to file written arguments at h e CI`EFSTICEM. It ast n ot b een. * any time before the 24th instant, and the counsel for Mr. FESSENDEN. I understood it to be the President not making oral arguments may file adopted. written arguments at any time before Tuesday, the The CHIEF JUSTICE. It has not yet been 28th instant. adopted.'An amendment was adopted, but Mr. HENDERSONcalled for theyeas and the vote has not been taken on the order. nays on cthe amendment, and they were or Mr. TRUMBULL. Mr. President, I should dered. like to inquire what the question before the Mr. THAYER. I move to lay the whole Senate is prior to the motion to lay on the subject on the table. table? Mr. SPRAGUE called for the yeas and nays, The CHIEF JUSTICE. The motion to lay and they were ordered; and being taken, re on the table is -withdrawn. sulted —yeas 13, nays 37; as follows: Mr. TRUMBULL. Whatisthe motionpend- YEAS-Messrs. Buckalew, Conkling, Dixon, Doolittle, Edmunds, Grimes, Henderson, McCreery, Noring? ton, Ross, Sprague, Thayer, and Williams-13. The CHIEF JUSTICE. The motion pend- NAYS-Messrs. Anthony, Cameron, Cattell, Chanding is to strike out the word " another' and ler, Conness, Corbett, Cragin, DaZvis, Drake, Ferry, inse-tt ordtwo." Fessendlen, Fowler, Frelinghuysen, Harlan, Hendinsert th~e word "I two." ricks, Howard, Howe, Johnson, Morgan, Morrill of Mr. TRUMBULL. I:would ask the unani- Maine, Morrill of Vermont, Morton, Patterson of mous consent of the Senate to appeal to:the New Hampire, Patterson of Tesnessee, Poneroy, 518 Ramsey, Saulsbury Sherman, Stewart, Sumner, attempt to address an unwilling audience, and Tipton., Trumbull, Van Winkle, Vickers, Willey, much less would it be a source of gratification Wilson, and Yates-37. NOT VOTING-Messrs. Bayard- Cole, Nye, and for me to attempt to address the Senate when Wade-4. they had indicated by a rule that they were unSo the motion to lay on the table was not willing to hear further argument. On a former agreed to. occasion I stated to the Senate that intending The CHIEF JUSTICE. The question is on our part faithfully to adhere to the rule on the amendment proposed by the Senator which you had prescribed for the conduct and from Missouri, to strike out all after the word management of the trial, two of the President's - "Ordered" and to insert what will be read by counsel had determined not to address the Senthe Secretary. ate; that three others of the President's counMr. HENDERSON. Before it is read I sel had assumed, with our consent, the mandesire to modify it so as to make it read, agement and direction of the case, and that in "' Monday, the 27th," instead of "Tuesday, our arrangement it was left to them to make the 28th." the argument before the Senate. As an appliThe CHIEF JUSTICE. The Secretary will cation was made on the side of the Managers read the amendment, as modified. to enlarge the number, I thought that it would The Chief Clerk read as follows: not be improper on our part to ask to be perStrike out all after the word " Ordered," and in- mitted to appear for the cause and to argue it. sert: Since I made a few brief observations to the That all the Managers not delivering oral argu- Senate the other day, Mr. Stanbery, upon ments may be permitted to file written arguments whom we relied to make the leading argument at any-time before the 24th instant, and the counsel for the President not making oral arguments may in behalf of the President, has been confined file written arguments at any time before Monday, by sickness. It is uncertain whether he will the 27th instant, be able to address the Senate at all; the prob-. Mr. HENDERSON. I will say "before abilities at present are that he will not; and eleven o'clock on Monday, the 27th instant," even if he should make the effort, the chances so that they will be in at the time of meeting. are that he will be unable to make that arguMr. DOOLITTLE. Mr. Chief Justice, I ment to the Senate which he had intended to desire to inquire of the Chief Justice whether make. under that rule all the Managers would not be Under these circumstances I desire to say permitted to deliver oral arguments? to the Senate that I would like to be permitMr. HENDERSON. It does not change ted to address the Senate in behalf of the the present rule. President. Indeed, I desire that the rule shall The CHIEF JUSTICE. The Secretary will be so enlarged as to give all the President's read the order proposed. counsel the privilege of addressing the Senate, Mr. EVARTS. Mr. Chief Justice and Sen- either orally or in writing, as we may find conators, as we understand the order now pro- venient to do. I have stated that, owing to posed, it would not enlarge the privilege of the the circumstances indicated, we have not prePresident's counsel in addressing the court. pared written arguments; and it is too late Any liberality that should be shown by the now for the two counsel who had not intended Senate, so far as it could be availed of by the to address the Senate to make such preparaPresident's counsel under the peculiar circum- tion; but in the progress of the case I have stances in which they are placed, would prob- made such notes and memoranda that I think ably need to include an opportunity on their I could argue the case before you; and I feel part to make oral addresses. constrained by a sense of duty to ask the SenMr. NELSON. Mr. Chief Justice and Sen- ate, under these circumstances, to allow the ators, I have felt and still feel an almost irre- whole of the counsel to make addresses. sistible repugnance to saying anything to the I beg leave to assure you, Senators, that in Senate upon this subject. In the first place, doing this I am not animated, as I trust, by a in the view which I entertained of the Consti- spirit of idle vanity, and by the desire to make tution and laws of our country, I regard it as a an address in a great cause like this. I have matter of right in the President of the United lived long enough in the world to know that States to appear by counsel. I suppose, follow- sometimes we can make more by our silence ing the analogies of courts of justice, that the than by an effort to make a public address. I Senate, sitting as a court, have the right to am satisfied from my experience that great regulate the number of counsel and to confine risks attend such an effort, especially when we it within reasonable limits. Inasmuch as the attempt to address the Senate or any other Senate had indicated, by a rule which was assembly extemporaneously; and were I to adopted before the commencement of the trial, consult my own feelings and inclinations, I the number of persons who were to address the would not make this request; but, under the Senate in the progress of the trial, I felt reluc- peculiar circumstances by which we are surtant to ask that any alteration of that rule rounded, if the Senate are willing to enlarge should be made in behalf of the President's the rule, I choose to take the risk and to take counsel for the very simple reason that it has my chances of endeavoring to argue the case never been to me a source of satisfaction to before you, and I feel, Senators, that, under 519 existing circumstances, this is not an unrea- Mr. EDMUNDS. I Object to debate. sonable request. Mr. CONNESS. T6 makethat entirely clear, I may say, although I am not expressly I move to insert the words "in accordance authorized to do so, that I am satisfied the with the twenty-first rule." President desires that his cause shall be au- The CHIEF JUSTICE. "Subject to the gued by the two additional counsel whom he twenty-first rule."' has provided in the case, besides the three Mr. CONNESS. Yes, "subject to the counsel who were heretofore selected for that twenty-first rule." purpose; and I trust you will not deny us this Mr. HENDERSON. I accept the modifiright. I trust that you will feel at liberty to cation. That is whatit means now. extend it to all the counsel in the case. If we The CHIEF JUSTICE. The Secretary will choose to avail ourselves of it we will do so. read the substitute, as modified. I have no sort of objection, so far as I am The Chief Clerk read as follows: concerned, that the same right shall be ex- Ordered, That all the Managers not delivering oral tended to all or to more than an equal num- arguments may be permitted to file written arguber of the Managers on the other side. I trust ments at any time before the 24th instant, and the that the resolution will be so shaped as to em- counsel for the President not making oral arguments may file written arguments at any time after brace all the counsel who are engaged in the eleven o'clock of Monday, the 27th instant, subject, cause in behalf of the President. I do not however, to the twenty-first rule. know that under these,circumstances I shall Mr. CONNESS. I wish to insert that lanbe able to interest the Senate at all. But it is guage at the beginning after the word "that;" a case of great importance. On the trial of sothat itwill read "that subject tothetwentyJudge Chase, six of the managers were per- first rule" so and so shall be done. mitted to address the Senate, and five of the Mr. HENDERSON. I suggest, after the counsel for the defendant were permitted to words "oral arguments, to insert except address the Senate; and in a great case like the two Managers delivering oral arguments this, one of such momentous magnitude, a under the twenty-first rule." case in which the whole country is interested, The CHIEF JUSTICE. The Chief Justice is it asking, Senators, too much at your hands, will suggest to the Senator from Missouri that that you will enable us to present his case in his object will be attained by accepting the the best manner that we may be able to do amendment proposed by the Senator from Calunder the circumstances by which we are sur- ifornia, inserting the words subject to the rounded? twenty-first rule." The CHIEF JUSTICE. The question is The CHIEF JUSTICE. The question is Mr. CONNESS. I ask if it was my privion the amendment proposed by th~e Senator MrCONS.Iakiftwsmypvon the amendment proposed by the Senator lege to offer it as an amendment. I do not from Missouri, [Mr. HENDERSON.] The Sec- know why it was not accepted. retary will read the original proposition again, The CHIEFJUSTICE. TheChiefJustice and also the amendment. understood it to be accepted. The CHIEF CLERK. The original order is as Mr. CONNESS. I suggest to the Secretary follows: -to write it. Ordered, That two of the Managers on the part of The CIE JUSTICE. It was written and the House be permitted to file their printed or written The CHIEF JUSTICE. It was written and arguments on or before eleven o'clock to-morrow, was accepted, as the Chief Justice understood, and that after an oral opening by a Manager and and then after it was accepted the Senator the reply of one of the President's counsel, another from Missouri proceeded still further to modof the President's counsel shall have the privilege of filing a written or making an oral address, to be fol- ify his amendment. losed by the closing speech of one of the President's Mr. CONNESS. I ask the Secretary to counsel and the final reply of a Manager under the read it again as I moved it. existing rule. r a taana oe t The Chief Clerk read as follows: Theamendmentofthe Senator from Missouri is to strike out all after the word "ordered" Ordered, That, subject to the twenty-first rule, all and insert: the Managers not delivering oral arguments may be permitted to file written arguments at any time beThat all the Managers not delivering oral argu- fore the 24th instant, and the counsel for the President ments may be permitted to file written arguments at not making oral arguments may file written arguany time before the 24th instant, and the counsel for ments at any time before eleven o'clock of Monday, the President not making oral arguments may frle the 27th instant. written arguments at any time before eleven o'clock of Monday, the 27th instant. The CHIEFJUSTICE. TheSenatorfrom Mr. HOWARD. Mr. President, I rise to California moves to amend the amendment make an inquiry, whether the proper construc- proposed by the Senator from Missouri by intion of the amendment offered by the honor- serting after the word "that" the words "subable Senator from Missouridoes not open the ject to the twenty-first rule." door and repeal the twenty-first rule; in short, The amendment to the amendment was whether it does not allow all the counsel on agreed to. the part of the accused and all the Managers Mr. TRUMBULL. Is an amendment still who may see fit to make oral arguments in in order? the final summing up? The CHIEF JUSTICE. It is. Mr. CONNESS. To make that- Mr. TRUMBULL, I move to strike out all 520 after the word " that " and insert what I send Mr. TRUMBULL. That would be so necesto the Chair. sarily. The CHIEF CLERK. It is proposed to The amendment to the amendment was amend the amendment by striking out all after agreed to. the word "that " and inserting: The CHIEF JUSTICE. The question recurs As many of the Managers and of the counsel for on the amendment of the Senator from Misthe President as desire to do so be permitted to file souri [Mr. HENDERSON,] as amended on the. arguments or to address the Senate orally. motion of the Senator from Illinois, [Mr. Mr. EDMUNDS, Mr. STEWART, and TRUMBULL.] others called for the yeas and nays, and they Mr. CAMERON. I rise to inquire whether were orderedT.. Ia substitute would be in order now. Mr. CORBETT. I call for the reading again. The CHIEF JUSTICE. An amendment to The CHIEF JUSTICE. The Clerk will re- either proposition will be in order. Does the port the order, the amendment proposed, and Senator from Pennsylvania propose to offer an the proposed amendment to the amendment. amendment? The CHIEF CLERK. The order originally Mr. CAMERON. Yes, sir, by way of subproposed is as follows: stitute. Ordered, That two of the Managers on the part of The CHIEF JUSTICE. It will be in order the House be permitted to file their printed or writ- to move a substitute to strike out all after the ten arguments on or before eleven o'clock to-morrow; and that after an oral opening by a Manager word "' that" in the amendment. and the reply of one of the President's counsel an- Mr. CAMERON. I send my amendment other of the President's counsel shall have the priv- to the Chair. ilege of filing a written or of making an oral address, to be followed by the closing speech of one of the The CHIEF CLERK. It is proposed to strike President's counsel and the final reply of a M2anager out all after the word " that" -in the amendunder the existing rule. ment as amended and to insert: The Senator from Missouri [Mr. HENDERSON] All the Managers and all the counsel for the Presiproposes to amend that by striking out all after dent be permitted to file written or printed arguthe word' "Ordered" and inserting: ments by eleven o'clock to-morrow. That, subject to the twenty-first rule, all the Man- Mr. EDMUNDS. Mr. President, I wish to agers not delivering oral arguments may be permit- inquire whether that is offered as a substitute ted to file written arguments at any time before the 24th instant, and the counsel for the President not for the original proposition or for:the amendmaking oral arguments may file written arguments ment, at any time before eleven o'clock of Monday, the The CHIEF JUSTICE. For the amend27th instant. ment. The Senator from Illinois [Mr. TRUMBULL] Mr. EDMUNDS. Then I rise to a point of proposes to amend the amendment by striking order, that it is not in order on account of our out all after the word "' that" and inserting: having voted that the amendment should stald As many of the Managers and of the counsel for as it is. the President as desire to do so be permitted to file arguments or to address the Senate orally. The CHIEF JUSTICE. The Chief Justice is The CHIEF JUSTICE. The question is of opinion that.itis in order as an amendmentL on the amendment proposed by the Senator The question is on the amendment proposed from Illinois to the amendment of the Senator by the Senator from Pennsylvania, [Mr. CAMfrom Missouri. ERON,] to strike out all after the word " that" The question being taken by yeas and nays, he amendmenas amended and inser wh resulted-yeas 29, nays 20; as follows: has been read. YEAS-Messrs. nhoy caMr. HOWE. I move to lay the order and E YEAS-Messrs. Anthony, Buckalew,Conkling, Cra- the amendment on the table. gin, Davis, Doolittle, Edmunds, Ferry, Fessenden,. Fowler, (Grimes, Henderson, Hendricks. Johnson, The motion was not agreed to. McCreery, Morrill of Maine, Norton, Patterson of The CHIEF JUSTICE. The question recurs New Hampshire, Patterson of' Tennessee Ramsey, Saulsbury, ShermanJ, Sprague, Tipton, Trumbull, onthe amendment proposed by the Senator Van Winkle, Vickers, Willey, andYates-29. from Pennsylvania, [Mr. CAMERON.] NAYS-Messrs. Camerop, Cattell, Chandler, Con- The amendment was rejected. ness, Corbett, Dixon, Drake, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Vermont, Mor- The CHIEF JUSTICE. The question recurs ton, Pomeroy, Ross, Stewart, Sumner, Thayer, and t omeroy, Ross, tewrt, Sumner. Thayer, and on the amendment of the Senator from MisWilliams —20. NOT VOTING-Messrs. Bayard, Cole, Nye, Wade, souri as amended on the motion of the Senator and Wilson-5. from Illinois. So the amendment to the amendment was Mr. YATES. I move to strike out all after agreed to. the word "-that" and insert the following. The CHIEF JUSTICE. The question re- The CHIEF JUSTICE. The Secretary will curs on the amendment as amended. read the amendment proposed by the Senator Mr. BUCKALEW. I move to amend fur- from Illinois, [Mr. YATES.] ther by adding at the end of the amendment The CRIEF CLERK read the amendment, which the following words: was to strike out all after the word " that"' But the conclusion of the oral argument shall be and to insert: by one Manager, as provided in the twenty-first Four of the Managers and four of the counsel'fr rAs. Ithe respondent be permitted to make printed or 521 written or oral arguments, the Managersto have the to hear the original -proposition, as moved, I opening and closing. believe, by the Senator from California, read, Mr. YATES called for the yeas and nays, Mr. HENDRICKS. Mr. President, I move and they were ordered. to postpone the further consideration of this Mr. JOHNSON. I move to amend by in- subject until the close of the first argument on serting at the close "~ subject to the limitation the part of the Managers. I think that arguin the twenty-first rule" as to the closing of ment ought to proceed. the case, because otherwise all the Managers The motion was not agreed to; there being might close. on a division-ayes 19, noes 22. The CHIEF JUSTICE. The amendment TheCHIEFJUSTICE. Thequestionrecurs is not in order, unless it is accepted by the on the amendment of the Senator from MisSenator from Illinois. The Senator from souri [Mr. HENDERSON] as amended on motion Maryland proposes to add "subject to the of the Senator from Illinois [Mr. TRUMBULL] limitation of the twenty-first rule." Does the to the original proposition made by the SenaSenator from Illinois accept the amendment? tor from Maryland, [Mr. VICKERS.] Both the Mr. YATES. Yes, sir. original order and the proposed amendment Mr. ANTHONY. I ask unanimous con- will be read. sent to make an inquiry. Does not this order The CHIEF CLERK. The original order is as allow all four of the Managers to reply after follows: all four of the President's counsel have Ordered, That two of the Managers on the part of spoken? the House be permitted to file their printed or writMr. JOHNSON. Net as it is now amended. ten arguments on or before-eleven o'clock to-morrow, Mr.JOHNSON. Ntasitisnowamended. and that after tn oral opening by a Manager and the The CHIEF JUSTICE. The Chief Justice reply of one of the President's counsel another of thinks it does not. The Secretary will read the President's counsel shall have the privilege of filinga written or of making an oral address, to be the amendment as it now stands. followed by the closing speech of one of the PresiThe CHIEF CLERK. It is proposed to amend dent's counsel and the finalreply of a Manager under the amendment by striking out all after the the existing rule. word "that" and inserting: The amendment as amended proposes to Four of the Managers and four of the counsel for strike out all after the word " Ordered " and to the respondent be permitted to make printed or insert: written or oral arguments, the Managers to have the That as many of the Managers and of the counsel opening and closing, subject to the limitation of the ~~~twenty-first rule. ~for the President as desire to do so be permitted to file arguments or to address the Senate orally, but Mr. GRIMES. I call for the reading of the the conclusion of the oral argument shall be by ope twenty-first rule. Manager as provided in the twenty-first rule. The CHIEF JUSTICE. The Secretary will The CHIEF JUSTICE put the question on read the twenty-first rule. the amendment as amended and declared himThe Chief Clerk read as follows: self at a loss to decide the result. "XXI. The case on each side shall be opened by Mr. HOWARD called for the yeas and nays, one person. The final argument on the merits may and they were ordered; and being taken, rebe made by two persons on each side, (unless other- 28, wise ordered by the Senate upon application for that suited-yeas nays 22; as follows: purpose,) and the argument shall be opened and YEAS-Messrs. Anthony, Conklin, Cragin, Davis, closed on the part of the House of Representatives." Dixon, Doolittle, Edmujds, Ferry, Fessenden, FowThe CHIEF JUSTICE. The question is on ler, Grimes, Henderson, Hendricks, Johnson, MecCreery, Morrill of Maine, Miorton, Norton, Patterthe amendment proposed by the Senator from son of Tennessee, Saulsbury, Sberman, Sprague, TipIllinois [Mr. YATES] to the amendment as ton, Trumbull, Van Winkle, Vickers, Willey, and ai ended proposed by the Senator from is- YateS-28rs. Blew, Caeron, NAYS —Messrs. Buyayd,.Buckalew, Castieron, Catsouri, [Mr. HENDERSON.] Upon this question tell, Chandler, Corbett, Drake, Frelinghuysen,:Iarthe yeas and nays have been ordered. lan, Howard, Howe. Morgan, Morrill of Vermont, The question being taken b yyeas and nays, Patterson of New HIampshire, Pomeroy, Ramsey, Ross, Stewart, Suniner, Thayer, Williams, and Wilresulted-yeas 18, nays 31; as follows: son-22. YEBAS-esers. Buokalew, Conskling, Corbett, Cra~-.NOT VOTING-Messrs. Cole, Conness, Nye, and gin Davis, Doolittle Fowler, Hendricks Howard, Wade-4. Mcbreery, Morgan, Morton, Norton, Aaulsbury, So the amendment as amended was Sprague, Van Winkle, Vickers, and Yates —18. areed to. NAYS-Messrs. Anthony, Bayard, Cameron, Cattell, Chandler, D ixon Drake. Edmunds, Ferry, Fes- The CHIEF JUSTICE. The question senden, Frelinghuysen, Grimes, Harlan, Henderson, recurs on the order as amended, Howe, Johnson, Morril l of Ver- Mr. EDMUNDS. I ask for the yes and mont, Patterson of Tennessee, Pomeroy, Ramsey, Ross, Sherman, Stewart, Sumner, Thayer, Tipton, nays on that question. Trumbull, Willey, Williams, and Wilson-31. The yeas and nays were ordered; and being NOT VOTING.-Messrs. Cole, Conness, Nye, Pat- taken, resulted-yeas 28, nays 22; as follows: terson of New Hampshire, and Wade —5. So the amendment to the amendment was YEAS-Messrs. Anthony, Cragin, Davis, Doolittle, Ferry, Fessenden, Fowler. Grimes, Henderson, Hendrejected. ricks, Johnson, McCreery. Morgan, Morrill of Maine, The CHIEF JUSTICE. The question re- Morton, Norton, Patterson of Tennessee, Ramsey, Saulsbury, Sherman, Sumnr, Tipton, Trumbull, Van curs on the amendment as amended. Winkle Vickers Willey, Wilson, and Yates-28. Mr. FRELINGIiHUYSEN. I should like NAYS —Messrs. Bayard, Buekalew, Cameron, Oat 522 tell, Chandler. Conkling. Corbett, Dixon, Drake, Ed- President of the United States was an adminmunds, Frelinghuysen. Harlan, Howard, ifowe, istrator of the law in all its force and example, Morrill of Vermont, Patterson of New Hampshire, and would be a pr.omoter. of the welfare of Pomeroy, Ross, Sprague, Stewart, Thayer, and Wil- and would be a per of the welfare of liams-22. his country in all its perils and adversities. NOT VOTING-Messrs. Cole, Conness, Nye, and Such have been the hopes and such has been oWade-4. ithe reliance of the people at large; and in conSo it was sequence the chief executive chair has come Ordered, That as many of the Managers as desire to assume in the hearts of Americans a form to do so be permitted to file arguments or to address to assum e hearts a form the Senate orally; but the conclusion of the oral so sacred and a name so spotless that nothing argument shall be by one Manager, as provided in impure could attach to the one and nothing the twenty-first rule, dishonorable could taint the other. To do The CHIEF JUSTICE. Gentlemen Man- aught or to say aught which will disturb this agers on the part of the House of Represent- cherished feeling will be to destroy one of the atives, you will please to proceed with the argu- dearest impressions to which our people cling. ment. And yet, sirs, this is our duty to-day. We Hon. JOHN A. LOGAN, one of the Man- are here to show that President Johnson, the agers of the impeachment on the part of the man whom this country once honored, is unHouse of Representatives, thereupon, under fitted for his place. We are here to show that the order just adopted by the Senate, filed the in his person he has violated the honor and following argument: sanctity of his office. We are here to show Mr. PRESIDENT and SENATORS: When one in that he usurped the power of his position and public life is suddenly called to.the discharge the emoluments of his patronage. We are of a novel and important public duty whose here to show that he has not only willfully vioconsequences will be great and whose effects lated the law, but has maliciously commanded will be historical, he must betray an inordinate its infringement. We are here to show that self-esteem and an unpardonable lack of mod- he has deliberately done those things which he esty if he did not at the outset acknowledge ought not to have done, and that he has crimhis diffidence and solicit forbearance. inally left undone those things which he ought And, sirs, more than any other man do I to have done. feel that it becomes me to invoke the charity He has betrayed his countrymen that he and to ask the leniency of this honorable tri- might perpetuate his power, and has sacrificed bunal. For surely never since the foundation their interests that he might swell his authority. of this Government has there been cast upon He has made the good of the people subordiany of its servants a duty so high and import- nate to his ambition, and the harmony of the ant in its nature, so unusual and unexpected community second to his desires. He has in its character, and so full of good or ill in its stood in the way which would have led the consequences as the duty with which the Man- dismembered States back to prosperity and agers on behalf of the people now find them- peace, and has instigated them to the path selves charged, and one part of which I now which led to discord and to strife. He has reluctantly find myself called upon to perform. obstructed acts which were intended to heal, I shall be sustained throughout my effort by and has counseled the course which was inthe consciousness that the cause I in part repre- tended to separate. The differences which he sent is too great to be weakened by my weak- might have reconciled by his voice he has ness, and by the sincere hope that however stimulated by his example. The questions feeble may be my efforts, and however appa- which might have been amicably settled by his rent may b6 my imperfections, I shall not be acquiescence have been aggravated by his accused of a want of fairness, or found lacking insolence; and in all those instances whereof. in concession and candor. in our articles we complain, he has made his I wish to assure you, Senators-I wish most prerogatives a burden to the Commonwealth earnestly and sincerely to assure the learned instead of a blessing to his constituents. and honorable counsel for the defense-that And it is not alone that in his public course we speak not only for ourselves but for the he has been shameless and guilty, but that his great body of the people when we say that we private conduct has been incendiary and maregret this occasion, and we regret the neces- lignant. It is not only that he has notoriously sity which has devolved this duty upon us. broken the law, but that he has criminally Heretofore, sirs, it has been the pride of every scoffed at the framers ~bf the law. By public American to point to the Chief Magistrate of harangue and by political arts he has sought to his nation. It has been his boast that to that cast odium upon Congress and to insure credit great office have always been brought the most for himself; and thus, in a Government where preeminent purity, the most undoubted in- equal respect and dignity should be observed tegrity, and the most unquestioned loyalty in reference to the power and authority conwhich the country could produce. However ferred upon each of its several departments, he fierce might be the strife of party; however has attempted to subvert their just proportions clamorous might be the cry of politics; how- and to arrogate to himself their respective ever desperate might be the struggles of leaders jurisdictions. It is for these things, Senators, and of factions, it has always been felt that the that to-day he stands impeached; and it is 523 because of these that the people have bid us this of itself is a guaranty of your impartiality prosecute. Thatwe regret it, I have said; that in a forum like this. And you, Senators, by they regret it, I repeat; and though it tears the theory and structure of our Government, away the beautiful belief with which, like a are constituted its most select and responsible drapery, they had invested the altar, yet they legislators. By the arrangement and disposifeel that the time has come when they must tion of the functions of our Federal powers, expose and expel the sacrilegious priest in you occupy a sphere the exact parallel to which order to protect and preserve the purity of the is found in no other Government of the world. temple., You are of the President, and yet so far sepYes, Senators, Andrew Johnson, President arated from him that you are beyond his flatof the United States, now stands arraigned at teries and above his threats. You are of the this bar to answer to the high crimes and mis- people, and yet so far removed from them that demeanors which an indignant and outraged you are not affected by their local excitements; people have at length alleged against him. you are not swayed by their passions, norinflu - This trial has given us many surprises, but no enced by their tumults. When the Constituone fact has given us more surprise than the tion fixed the age of eligibility to the Senate it tone of complaint which by his counsel he has was that your minds should be matured and assumed. Of what should he complain? Did that your judgments should be ripened; it was he think that he could proceed in his unwar- that you should have come to that period when rantable course forever with impunity? Did reason is not obscured by passion and wisdom he suppose that he could break down every rule is gathered of experience. To such an august and safeguard in the land and that none should body have the people committed their grievsay him nay? Did he believe that because the ances; and of this he certainly should not compeople were for a time stricken into silence by plain. Does he complain of us? Sirs, it may the audacity of his acts they would suffer in be that he does; but yet I feel that he should, sainessand continue tobedumb? Did he not not. What we have done we have done know that they were jealous of their liberties promptly, but none the less reluctantly. 4We and rights, and in the end would punish him felt, as citizens, the irresistible conviction that who attempted to tamper with either; and now this man was false to every citizen; and we that they are visiting upon him the inevitable felt, as Managers, that we did not dare to jeopresult of his misdeeds is it of this that he comn- ardize, by unseemly delay or fatal favors. the plains? He should rather give them thanks safety of a nation. We thoughtthat they have spared him so long, and be "If it were done, when'tis done, then'twere well grateful that their magnanimity has preserved It were done quickly." him to this hour. Is it of the articles alleged There had been too much dallying with treaagainst him that he complains? son already. If but a few short years ago Sirs, the people have selected the latest but traitors had been quickly seized and speedily not the greatest instance of his dereliction. punished there would never have been a shot They have hesitated, in the first instance, to fired in rebellion. If plotters had been made think that the actions which they knew were to feel the early gripe of the law there never insidious were intended to be revolutionary. would have been a resort to arms. When we They preferred to attribute to the frailty of his looked back and recalled the memories of our mind what they should have ascribed to the battle-fields; when we saw the carnage amid duplicity of his heart; and when, day after day, the slain, the unutterable woe of the wounded; the evidences of his falsehood became stronger when we remembered the shriek of the widow an4 stronger, when month after month the and the sob of the orphan; when we reflected baseness of his purpose became more and more on the devastation of our land and the burpalpable, and when session after session the dens now on our people; when we turned us proof of his desertion became more and more about and saw in every direction the miseries convincing, still they hesitated, until further and the mischiefs which follow every war, no hesitation As to him would have been certain matter how just, and when we remind ourdestruction to them, and theypresented through selves that all this would not have been had us, nothismostflagrantoffenses, but only his last treason been executed for its overt acts before offendings. Should he complain that they de- yet its hands were red; and when we felt, as nounce for the lesser when he is equally guilty we do all feel, that to delay might bring all of the greater crimes? Is it of this tribunal this and more upon us, we could not and did that he complains? You, Mr. President, pre- not pause. We urged this trial at "railroad side, and most worthily preside, over the Su- speed." In view of such results self-preser. preme Court, which is the court of last resort vation would have dictated that we should ask in all this land. To you and your associates is for "lightning speed." Ought he to complain? left the final arbitrament of the most grave and If he is guilty, then there is no speed too great important controversies which concern our peo- for his deserts. If he is innocent, there is ple. By your education and habityou are fitted none too great for his deliverance. It is the to pass upon serious issues. You are raised fact, then, that we have desired to advance by your jurisdiction above the ordinary pas- this case with all possible speed; but it is not sions and prejudices of the lesser courts; and the fact that we have advanced with all pos 524 sible rigor. We only desired to be just; we charges which come from a whole people are did not wish to be severe. If we had been frivolous and vain; itshallnotlongerbe claimed actuated by any spirit other than a sense of that that which a community in its aggreour high duty we might lave given the Presi- gate capacity asserts is insufficient and of no dent cause to complain. We might have asked, avail; the mighty mass of men who are the and asked it in the strength of authority, too, nation-the great unit of minds who are this that pending the trial he should have been Union-of minds enlightened, of thoughts proplaced under arrest, or at least suspended from found, of discrimination quick, and purpose is office. The English practice would have steady, of hearts free, of souls rsolved, of all sanctioned this. May, in his treatise on the the elements which make this nation what it law, privilege, &c., of Parliament, says: is-a nation young in years, but mature in "If the accused beapeerhe is attached or retained action. The murmur of this nation is mighty, in custody by order of the House of Lords; if acor- and its accusations cannot be ignored. Here, moner, he is taken into custody by the sergeant-at- at least, it may be said: " Vox populi vox arms attending the Commons, by whom he is delivered to the gentleman usher of the black rod, in Dei-' the voice of the people is the voice whose custody he remains until he is admitted to of God." bail by the House of Lords, or otherwise disposed of It is for this reason that neither a demurrer to test any questions of law or a motion to In Wooddeson we find it was customary for quash to decide any questions of fact has the Commons to request the Lords that the ever been permitted to be interposed against person impeached "may be sequestered from any article of impeachment, no matter where his seat inParliament or be committed, or that ever or whenever such has been presented. the peers will take order for his appearance, And yet, before issue joined upon the present according as the degree of the imputation jus- occasion, it was asseverated. against those who tifies more or less severity." The Commons favored this proceeding that they were about demanded that Clarendon be sequestered from to pervert the Constitution, to submerge the Parliament and committed. (6 HIowell's State law, and further their partisan ambitions by Trials, 395; 11 Howell, 733.) the proclamation of charges which on their Lord Stafford was sequestered in 1641. (2 face are fabulous and weak, if not absurd and Nalson's Collections, 7.) contumacious; and in the answer which this In the matter of the impeachment of Blount respondent has made he has announced, as one it was ordered by the Senate as follows, July of the issues upon which you are to pass, that 7, 1797: several of our articles are insufficient in law "That the said William Blount be taken into the and inadequate in fact. I repeat, sirs, that custody of the messenger of this House untilheshall this is an anomalous answer. The fiat of a enter into recognizance, himself in the sum of $20.- h 000, with two sufficient sureties in the sum of $15,000 each, to appear and answer such articles of impeach- to whom they have delegated official favors ment as may be exhibited against him." and whom they have charged with derelictions On the 18th day of June, 1788, in the Vir- of official duty can never be treated as an empty ginia convention, George Mason objected to the sound, nor their inquiry regarded as an idle pardoning power vested in the President for ceremony. And here I wish to impress upon ordinary crimes. Mr. Madison, in reply, said: these triers the important fact that every artiThere isonesecrityinthis ce to which gentle- cle which we here present stands in the light There is one security in this case to which gentle- of a separate count in an indictment, and muat men may not have adverted; if the Presidentbe con of a separate count n an tment, and mut nected in any suspicious manner with any person be decided as a separate issue on its own merand there be grounds to believe he will shelter him, its. It should not be permitted, where any the House of Representatives can impeach him; they count is found to contain matter of substance, [evidently referring to the Senate, or the Senate in connection with the House] can remove him if found that the accused should have a verdict of not guilty; they can suspend him when suspected, and the guilty because of insufficiency in matters of power will devolve upon the Vice President." form. Therefore, as we have not asked what we It is the rule -that all questions of law or of might have so consistently demanded, I feel fact are to be decided in these proceedings by that he has no ground of discontent with us. the -final vote upon the guilt or innocence of What, then, is he to answer? He is to make the accused. It is also the -rule that in determdefense to the charge of high crimes and mis- ining this general issue Senators must condemeanors which the people of the United sider the -sufficiency or insufficiency in law or States, in virtue of their sovereignty, do pro- in fact of every article of accusation. But-the claim against him. I wish to he distinctly insufficiency which they aTe -to consider is not understood when I say that the allegation the technical insufficiency by:which indictments comes from the people in their sovereignty- are measured. No mere insufficiency of statein their supreme capacity as -the rulers of us ment, no mere want of precision, no mere lack all. By remembering this we may escape from of relative averments, no mere absence of the narrow confines of legal technicalities, and legal verbiage can inure to the benefit of the be governed by more extended and liberal accused. The insufficiency which will avail rules than prevail in the courts of the common him must be such an entire want of substance law. It shall not be truthfully said that the as takes all soul and body from the ch~age 525 and leaves it nothing but a shadow. Neither should accept a bribe he certainly cannot be iwshall the respondent be allowed to escape be- dieted for it, and yet no man can doubt that he might cause of any immaterial variance between the be impeached. If one of the heads of Departments cause ofaimaeralvaiaebewenshould undertake to recommend to office for pay he averment and the proof. If we have succeeded certainly might be impeached for it, and yet I would in sustaining the principal weight of each sep- ask under what law and in what court could he be arate article, then we are entitled to a finding indicted."-Judge Chase's Trial, p. 54. upon each, These are the propositions which I In the trial of Judge Chase Mr. Manager ather from the following authorities: Trial of Randolph says: dge Peck, page 232, (Mr. Wirt, counsel for " It has been contended that an offense to be imrespondent;) Mr. Webster, inr the trial of Judge peachable must be indictable. For what, then, I pray you, was it that this provision of impeachment Prescott, page 25; Mr. Shaw, in the same case, found its way into the Constitution." * * page 45; report from the committee of the * "If the Constitution did not contemplate a dis~House of Commons appointed to inspect the tinction between an impeachable and an indictable offense whence this cumbrous and expensive proLords journals, April 30, 1794. cess, which has cost us so much labor and so much Story, on the Constitution, says: anxiety to the nation? Whence this idle parade, "It is obvious that the strictness of the forms of this wanton waste of time and treasure, when the proceeding in cases of' offenses at common law are ready intervention of a court and jury alone was ill adapted to impeachments. The very habits grow- wanting to rectify the evil Anna42 of on ing out of judicial employments, the rigid mannerin whieh the discretion of judges is limited and fenced By permission of the Senators I will read in on all sides, in order to protect persons accused ofsome extracts that I have made from the crimes, by rules and precedents, and the adherence some extracts that I have made from the to technical principles which, perhaps, distinguishes speeches of some of the most learned men of this branch of the law more than any other, are all England on this same question, which was disill adapted to the trial of political offenses in the cussed in the trial of ueen Caroline in the broad course of impeachments." * * * * cus al of Queen Caroline, in the " There is little technicalin the mode of proceeding; year 1820. the chargesaresufficiently clear, andyet, inageneral Earl Grey, in speaking of the powers of form, there are few exceptions which arise in the Parliament, said: application of evidence which grow out of mere rliament said: technical rules and quibbles; and it has repeatedly "He must maintain this principle, supported on been seen that the functions have been better under- the ground of parliamentary law, and bottomed on stood and more liberally and justly expounded by the constitution of the country, that on all occasions, statesmen than by mere lawyers. An illustrious in- when a great State necessity or a matter of great stance of this sort is upon record in the case of the State expediency exists, Parliament were vested with trial of Warren Hastings, where the question whether extraordinary powers, and it became their duty to an impeachment was abated by a dissolution of Par- exercise those extraordinary powers in order to proliament was decided in the negative by the House cure that remedy commensurate with such State of Lords as well as the House of Commons, against necessity or expediency, which no proceeding in a what seemed to be the weight of professional opin- court of law could effect."-Trial Queen Caroline, ion."-Story, sees. 762, 763. vol. 1, p. 8. n the same case Brougham (since maae a The next question which it is proper to ask lord) said: is, for what crimes and misdemeanors may an officer be impeached? Can he be impeached able b nt was a remedy fojurisdict ases not cgni for any other than an indictable offense? The "The House of Commons might impeach for whatauthorities certainly sustain the Managers in ever was indictable, but they also might impeach in er cases where no indictment could be found. He subasserting that he may be. We cannot search mitted, therefore, that some satisfactory reason ought through all the cases, as they are too numer- to be stated why impeachmentwas not resorted to in ous, but will call the attention of the Senate this instance."- Vol. 1, p. 22. to some that should be regarded'as good au- Again, he says: thority, and the opinions of those who should "The learned attorney general has held that no be regarded as learned in the law. impeachment could lie unlesssome law was violated; Mr. adison, in discussing the power of the but the opinion was contrary to the doctrine laid Mr. Madison, in discussing the power of the down by the greatest writers on the law of impeachPresident, used the following language: ment. Lord Coke did not so limit the power of Par" What will be the motives which the President liament. He regarded this power as most extensive, can feel forethe abuse of his power and the restraints and in describing it quoted this remarkable expresthat operate to prevent it? In the first place hewill sion: That it was so large and capacious that he be impeachable by this House before the Senate for could not place bounds to it either in space or time.' such an act of maladministration; for I contend In short, this maxim has been laid down as irrefrathat the wanton removal of meritorious officers gable, that whatever mischief is done, and no remedy would subject him to impeachmentandremoval from could otherwise be obtained,it is competent for Parhis own high trust."-Annals of Congress, 1804-5, volliament to impeach." * * * "Why'is ow1, bi- p. 517. was impeachment competent in the case of the misdemeanor of a public functionary? Expressly beThe trial of Blount, 1788-89. Story, in cause no remedy was to be found by any other means; speaking of that case, says: because an act had been committed which justice "aIn the argument upon Blount's impeachment it required should be punished, but which could only "In the argument upon Blount's impeachment it be reached by Parliament." was pressed with great earnestness that there is not "It happened that the very first impeachment a syllable in the Constitution which confines im- which occurred in the history of Parliament was one peachment to official acts, and it is against the plain- which neither related to a public officer nor to any est dictates of common sense that such a restraint offense known to the law. It was the case of Richard should be imposed."-Story, sec. 802. Lyons and others, who were complained of for reTrial of Judge Chase, February 26, 1805. moving the staple of wool to Paris, for lending money Mr. Manager Nicholson says: to the king on usurious contracts. The statute against usury had not then been passed, and there were va" If, therefore, the President of the United States rious other charges against the parties which formed 526 no legal offense. The case was one in which -mer- or habitual disregard of the public interests, in the chants were, among other things, charged with com- discharge of duties of political office. These are so pounding duties with the king for a small percent- various in their character, and so indefinable in their age." actuat involutions, that it is almost impossible to provide systematically for them by positive law. Also, the "case of Sir Giles 1ompessen, They must be examined upon very broad and comrnfor the sale of patents." This was not an prehensive principles of public policy and duty. indictable offense, and is the more remarkable They must be judged of by the habits and rules and "Ccbe a eokre r les principles of diplomacy, of departmental operations from being recorded in " Coke's Institutes." and arrangements; in short, by a great variety of Hence we find that in the very inception of circumstances, aswell those which aggravate asthose trials of impeachment no indictable offense which extenuate or justify the offensive acts; which do not properly belong to the judicial character in need have been committed. the ordinary administration of justice, and are far Again, we find Mr. Brougham stating: removed from the reach of municipal jurisprudence."-Story on Constitution, sec. 762. "That the House would exercise the right of im-. peachment, not because the offense was liable to a Treason is defined in the Constitution itself; five pounds penalty, not because it was indictable, bribery is defined by common law; and Mr. but because some evil had been committed which Story in discussing the definition of impeachthe ordinary courts of law could not reach. This he definition of impeachconceived was the only constitutional principle upon able crimes, says: which impeachment rested." * * * * "The "The only practical question is, What are deemed case of Mr. Hastings illustrates his argument, for of high crimes and misdemeanors? Now, neither the the articles of impeachment preferred against him Constitution nor any statute of the United States has four out of five were for offenses of a natureof which in any manner defined any crimes except treason no court of law could take cognizance."- Vol. 1, pp and bribery to be high crimes and misdemeanors,. 62 and 63. and as such impeachable. In what manner, then, I again call attention to the arguments and are they to be ascertained? Is the silence of the opInionsof learned men of our own country, statute-book to be deemed conclusive in favor of the opinions of learned men of our own country, party until Congress have made a legislative declawhich most clearly sustain our view on the ration and enumeration of the offenses which shall point now under discussion. be deemed high crimes and misdemeanors? If so, On the trial of Judge Peck Mr. Manager then, as has been truly remarked, the power of imOn thea trial of Judge Peck Mr. Man ager peachment, except as to the two expressed cases, is Buchanan says: a complete nullity; and the party is wholly dis"A gross abuse of granted power and an usurpi- punishable, however enormous may be his corrup"'A gross abuse of granted power and an usurpa- The o nly see, 794c tion of power not granted are offenses equally worthy tio or crmiait- s., c. 94. of and liable to impeachment."-Page 428. In further reasoning upon the same subject, In the same case Mr. Manager Wickliffe's he says: remarks are so applicable to the conduct of the "There are many offenses, purely political, which In the that s Iam may be pardoned for counse have been held to be within the reach of parliamentthe respondent that Imaybepardonedfor giving ary impeachments, not one of which is in the sli htthem in this connection. He says: est manner alluded to in our statute-books. And, "Take the case of the President of the United indeed, political offenses are of so various and cornStates. Suppose him base enough or foolish enough, plex acharacter, soutterlyincapableofbeing:defined if you please, to refuse his sanction to any and every or classified, that the task of positive legislation act which Cohgress may pass. This is a power which, would be impracticable, if not almost absurd to ataccording to the Constitution, he can exercise. Will tempt it." * * * * "The only safe guide, in such it be contended that he could be indicted for it cases, mustbetheconmonlaw,which istheguardian as a misdemeanor in any court, State or Federal? at once of private rights and public liberties; and Yet, where is the man who would hesitate to remove owevermuch itmayfallin with the politicatheories him from office by impeachment?"-Peck's Trial, of certain statesmen and jurists, to deny the existence 1831, p. 309. of a common law belonging to and applicable to the nation in ordinary cases, no one yet has been bold In the same case Mr. Wirt, of counsel for enough to assert that the power of impeachment is the respondent, said: limited to offenses positively defined in the statutebook of the Union as impeachable high crimes and, The President, Vice President, and all civil offi- misdemeanors."-Section798. cers shall be removed from office on impeachment for and on conviction of treason, bribery, or other Also, same authority: high crimes or misdemeanors.' (Constitution, art. 2, "In examining the parliamentary history of imsec. 4.) The Constitution itself defines treason, but peachments it will be found that many offenses not it does not define bribery, nor does it define those easily definable by law, and many ofa purely politiother high crimes and misdemeanors forwhich these cal character, have been deemed high crimes and officers maybe impeached andremoved. Now, what misdemeanors, worthy of this extraordinary remedy. does the Constitution mean by the expression high Thus lord chancellors and judges and other magiscrimes and misdemeanors? It has a meaning; what trates have not only been impeached for bribery and is it? and where are you to look for it? The phrase acting grossly contrary to the duties of their office, is obviously borrowed from the common law. This butformisleadingtheirsovereignbyunconstitutional instrument thus, by its own terms, connects itself in opinions, and for~attemptsto subvertthe fundamental this instance with the common law, and authorizes laws, and introduce arbitrary power. So, where a you to go to that law for an explanation of itsmean- lord chancellor has bee* thought to have put the ing. In the very proceeding, therefore, in which you great seal to an ignominious treaty; a lord admiral are now engaged, the common law is in force for the to have neglected the safeguard of the sea; an emdefinition of the high crime or misdemeanor which bassador to have betrayed his trust; a privy counyou are called on to punish."-Peck's Trial, pp. 498 selortohavepropoundedor supported pernicious and and 499. dishonorable measures; or a confidential adviser of Mr. Story, in discussing what are the func- his sovereign to have obtained exorbitant grants or tions to be performed in impeachments, says: incompatible employments-these have been all tPens t eeoddeemedimpeachable offenses."-Story's Corn., book 3, The offenses to which the power of impeachment chap. 10, sec. 798. has been and is ordinarily applied as a remedy, are Mr. Story, after his examination of imeachof a political character," * * * "what are aptly termed political offenses, growing out of ment trials in England and the few cases in this personal misconduct or gross neglect, or usurpations, country, came to the following conclusion in 527 regard to the rule applicable to trials of im- for crimes nor misdemeanors, but extends only peachment before the Senate of the United to removal from office or disqualification to States: hold office, leaving the party (if a crime is com" Congress have unhesitatingly adopted the conclu- mitted) to be punished therefor by other provisaion that no previous statute is necessary to authorize ions of law, which shall neither be retroactive, an impeachment for any official misconduct, and the ex post facto, nor in the nature of a bill of rules of proceeding and the rules of evidence, as well ex post facto, nor in the nature of a bill of as the principles of decision, have been uniformly attainder. promulgated by the known doctrines of the common This provision would seem, therefore, to law and parliamentary usage. In the few came~ of impeachment which have hitherto been tried no one make it clear that impeachment is not a punof the charges has rested upon any statutable misde- ishment for crime. True, an officer may be zneanor."-Story's Com., book 3, chap. 10, sec. 797. impeached for a crime, technically, either by Although we have shown that both English common or statute law, but he cannot be punand American authorities sustain us in the ished therefor as a part of the judgment of imposition that an offense need not be punishable peachment. He can only be removed from or indictable by statute law to be an impeach- office, and his punishment, if any, is left to the able offense, yet we are told that British pre- ordinary courts. We are led to consider, therecedent should not influence the case, because fore, whether, in the language of the Constituthey hold the ministers of the Crown account- tion and laws of the United States, the term able for the honesty, legality, and utility of " removal from office" is anywhere used as the measures proposed by them, and punishable penalty for a crime. Of course that phrase by impeachment for failure in any of these must have the same construction, whether found particulars; yet that construction of the law of in the Constitution, which is paramount law impeachable offenses has obtained because Par- only, or in the statutes enacted in conformity liament in Great Britain is substantially omnip- with the Constitution, which are equally laws otent; they may pass ex post facto, retroact- of the United States. ive laws, bills of attainder, and even change Now, it is admitted by all sides that any the constitution itself; therefore, that when officer may be removed under our laws for any the Commons present any officer of the Gov- reason, no reason, or for political reasons simernment for any claimed offense, it is not to be ply, the contest between the -Executive and considered whether it is made so by any pre- Congress being as to the person or body by existing laws; because, if the Commons im- whom such removal shall be exercised-whether peach and the Peers adjudge the party pre- by the President alone or by the President and sented guilty, the joint action of the two Houses Senate in concurrence, or whether such right would only be in effect to declare the act of removal may be restrained by legislation. complained of to be noxious or injurious, This power of removal by somebody is recogalthough not so enacted by any previous legis- nized in a variety of statutes, but nowhere as lation, and that this would be within their clear the penalty for crime. The phrase "' removal right. But that our Constitution, by prohibit- from office" appears only once in the Constiing the passage of any retroactive or ex post tution. Must it not, therefore, have the same facto law or any bill of attainder, has limited meaning and construction there as it does in impeachment for high crimes and misdemean- the other laws of the United States? Is not ors to those acts only which have been declared this construction of the phrase " removal from to be such crimes and misdemeanors by pre- office" made certain by the uniform legislation existing laws; and, therefore, in this country, and practice of the Government? And as the whatever might be the case in England, im- phrase " removal from office" is only found in peachment must be, limited to such offenses the Constitution as the consequence of conviconly as are made so by statute or at common tion upon impeachment, thejudgment of which law. There is force and speciousness, to say can extend no further than such removal or no more, in this view, and it deserves a careful disqualification for office, is it not equally cerand candid consideration. tain that such judgment is not a punishment for The weight of the argument is derived from crime, and, therefore, that an officer may be the suggestion that the judgment following im- removed by impeachment for political reasons, peachment is in truth a punishment of crime: as he may be for the same reasons by any dethat failing the argument fails. True it is, our partment of the Government in which the right Constitution forbids the passage of any retro- of removal is vested? active or ex post facto law, or bill of attainder, Is not this view of the constitutional proas a punishment for crime; but it is equally I vision strengthened by this consideration: that true that it says that "judgment is cases of by the theory of and practice under the Conimpeachment shall not extend further than to stitution, every officer, other than the Presremoval from office and disqualification to hold ident and Vice President, may be, and in pracand enjoy any office of honor, trust, or profit tice is, removable by the power that appointed under the United States; but the party con- him at pleasure; or, in other words, when the victed shall, nevertheless, be liable and subject 4 service of the Government, in the judgment of to indictment, trial, judgment, and punishment, the appointing power, seems to make such according to law." Thus it appears that the removal necessary and proper? Is it not, -judgment of impeachment is not apunishment therefore, more consonant with the theory of 528 the Constitution to hold that the President may peached for offenses not punishable by statute be removed from office by presentment of the law, it behooves us next to inquire what have House, who represent in his case the people been the definitions of crimes and misdemeanwho appointed him, if the reasons for the re- ors as used by writers of acknowledged authormoval shall be found sufficient by two thirds ity. It is by the light of these definitions that of the Senate, who, by the Constitution, are to we are to inquire and determine what culpaadjudicate thereupon? Can we not illustrate bility, if any, attaches to each and all of the this by supposing a case of inability in the acts by the President of which we complain, President to perform the duties of his office and how far he may palliate or justify the act because of his insanity? Now, insanity is not after having admitted its performance. These a crime, but every act of an insane man might, which I shall read are but few among the many and almost necessarily would, be a misde- authoritative definitions of crimes and misdemeanor in office. meanors. Is the phrase "misdemeanor in ofiice" any What is a crime? Blackstone defines a more than the Norman French translation of crime or misdemeanor as beingthe English word misbehavior? Judges are "An'act committed or omitted in violation of a to hold office during good behavior. Is not public laweitherforbidding orcommindingit. This that equivalent to saying they hold office during generaldefinition comprehends both crimes and misdemeanors, which, properly speaking, are mere good demeanor, i. e., while they demean them- synonymousterms; though in common usage the word selves well in office? Are not both phrases crimes is made to denote such offenses as are of the equivalent of the Latin one "duv dm se bene deeper and more atrocious dye; while smaller faults and omissions of less consequence are comprised ungesserit. derthe gentlername of misdemeanors only."-BlackHIow is an insane President or an insane stone's Commentaries, book 4, p. 5. judge to beremoved un der our Constitution?'The distinction of public wrongs from private judge to be removed under ou-r Constitution? hcrimes and misdemeanors from civil injuries seems Clearly not until his insanity is ascertained. principally to consist in this: that private wrongs or By whom is that to be ascertained? The Con- civil injuries are an infringement or privation of the sttuton makes no provision save by present- civil rights which belong to individuals merely as stitution makes no provision save by present- individuals; public wrongs or crimes and misdement by the House, and adjudication by the meanors are a breach and violation of the public Senate. And it is remarkable, as sustaining rights and duties due to the whole community conthis argument, that the first case of impeach- sidered as a community in its social aggregate capacity."-Blackstone's Commentaries, book 4, p. 5. ment of a judge under our Constitution, Judge "When the words high crimes and misdemeanors Pickering's, was of an insane man, as the de- are used in prosecutions by impeachment, the words fense allge, and clearly made out by evidence. high crimes and misdemeanors haveno definite sig_fense allege, and clearly made out by evidence. nification, but are used merely to give greater solemJudge Pickering was removed, the defense of nity to the charge." —Sentence froi a note to Blackinsanity apparently not being considered by stone's Commentaries. 5 Christian. the Senate. Is it not clear that the process Or, to state it stronger even than Blackstone of impeachment, under the English constitu- does, that the defendant may have the benefit tion, being a mode of punishment of all crimes, of it, a crime or misdemeanor is the violation as well as a method by which an officer whose of a public law where there shall be a joint official or personal conduct was hurtful to the operation of act and intention in the perpetraState might be removed, that our Constitution tion of the act. limiting the form of impeachment to removal Mr. Blake, in discussing Prescott's case, only takes away from it its punitive element defines a misdemeanor perhaps better than I which it vests in the ordinary courts of law have heretofore stated it. I will therefore give alone; thus leaving the process of impeach- his definition: ment an inquisition of office for any act of the "To misconduct is to misbehave: to misbehave is officer or cause which the House of Represent- to misdemean; to misdemean is to be guilty of amisatives might present as, and the Senate adju- demeanor —nothing more-nothing less. The term is atives mgtrsnadteSenatdju- technical, signifying a crime; hence it follows, as a dicate to be, hurtful to the State or injurious to conclusion from these premises, that misconduct or the common weal. misbehavior, in its legal interpretation, can signify ~ Will any one say that if the President should nothing less. veto every bill that should pass the Congress- INTENTION-OW DETERMINED. and there not be a two-thirds vote against his When the unlawful act is shown, how, then, veto-and thereby defeat all appropriations, do we gather the intention? It can only be so as to completely block the wheels of Gov- done from all the circumstances surrounding ernment, that he could not be impeached for the commission of the acth an improper use of said power, although he is I believe it is a rule, both in law and morals authorized by the Constitution to use such that every man is presumed to intend the natpower? Here would be a case wherein the ural and probable consequences of his own exercise of lawful power was done in such a act. A good motive never accompanies a bad way as to become so oppressive and obviously act, nor a bad one a good act. wrong that there must be a remedy, and im- Mr. Buchanan, in the trial of Judge Peck, peachment would be the only one............... states this proposition so clearly that I will adopt his language, (with his quotations): DEFINITION OF CRIMES AND MISDEMEANORS. "'Out of the abundance of the heart the mouth, Having thus shown that a party can be im- speaketh,''The tree is known by the fruit,' are 529 axioms which wehavederivedfrom thefountain of all learned counsel as being any excuse whatever truth. Actions speak louder than words, and it is for his violations of law, we may here get some from the criminal actions the judges must infer the criminal intention." clue to the hesitancy in the trial of Jefferson Speakling of the respondent, Peck, he says Davis, the great criminal of the rebellion, (inasmuch as he certainly believed he was doing "If he shall, in an arbitrary manner and without no wrong in breaking. the law, as his opinion the authority of law, imprison a citizen of this coun- was that he was mantaning a great prnctry and thus consign him to infamy, are you not to was maintaining a great princiinfer his intention from the act? Is not the act ple.) As the counsel, or a part of them, who itself thMu best source from which to draw the infir- now defend tne President on this principle, ence? Must we, without any evidence, in the spirit must prosecute Jeff. Davis against this prnciof false charity and mercy ramble out of the record must prosecute Jef. Davis against this princito imagine a good motive for this bad conduct? ple, itwould seem that, by adopting this theory, Such rule of decision would defeat the execution they will succeed in releasing both instead of of all human laws. No man can doubt but that y will succeed in releasing both instead of many a traitor during the American Revolution convictingeither. believed in his conscience that he owed allegiance Sirs, adopt this new theory, and you thereby to the king of Great Britain and would violate his unhinge the law, open wide the prison gates,'duty to God if he should lend the least aid in the cause of freedom. But if such a man had commit- and give safe conduct to every criminal in the ted treasonable acts, will any person say he was land, no matter how high or low his position, not guilty of treason because in his secret heart he or how grave or small hisoffenses. mnight have had a good intention? Does a poor, Havngthus sow what are mpachabls offenses. hungry, naked wretch filch from my pocket a single dollar to satisfy the cravings of appetite, the law in- offenses, the definition of crimes and misdefers a felonious intent, and he must be convicted and mnanors, and how we are to gather the intenpunished as a thief, though he may have had no other tion of the accused in the violation of a law, purpose but that of saving himself and his children ed in the violation of a law, from starvation. And shall a man who has been it becomes necessary to examine somewhat selected to fill a high judicial position on account of the basis of the justification stated by the dehis knowledge of the laws of the land be permitted the basis of the ustification stated by the deto come before the Senate and say:'It is very true dantfor his action. that I did, against law, imprison an American citi- RESPONDENT'S DEFENSE TO FIRST TWO CHARGES. zen and deprive him for eighteen months of prac- The respondent admits the facts upon which tising that profession by which he lived; it is true that I violated the Constitution of the United States the first charge rests, but denies that they conby inflicting on him unusual punishment, but I did stitute an offense for which he is answerable to not know any better; I had a good intention."' this Senate, sitting as a curt oimpeachment. And, Mr. President, in the case at bar are This denial involves two inquiries: we to be told that this violation of law car- 1. HAD THE PRESIDENT THE POWER TO REries with it no bad motive, that the law was MOVE THE SECRETARY OF WAR UNDER THE CIRbroken merely to test its strength? Is a man CUMSTANCES BY VIRTUE OF THE CONSTITUTION to be permitted to break a law under the pre- AND THE LAWS AS THEY STOOD PRIOR TO THE tense of testing its constitutionality? Are the PASSAGE OF THE TENURE-OF-OFFICE ACT I opinions of a man against the soundness of a 2. HAD HE THE RIGHT TO REMOVE THAT OFlaw to shield him from punishment for the vio- FICER UNDER THE TENURE-OF-OFFICE ACT? lation of said law? If so, the opinion of the It must be conceded' that a negative answer criminal becomes the rule by which you are to to either of these propositions is equivalent to try him, instead of the law which he has bro- a verdict of guilty. The respondent has stated ken. If this doctrine be established every his defense upon the highest possible grounds, traitor in the land will find a complete justifi- and it is of the first importance that his reacation for his many crimes against the Gov- sons be put to the severest test, for they unernment of the United States in this: that he derlie the whole network of our admirable believed that secession was no violation of the system of Government. The question here Constitution. Doubtless every robber and involved was crowded into the smallest commurderer has some reason by which he justi- pass by the respondent's distinguished prefies himself in his own mind for the commis- mier, on a memorable occasion, when he put sion of his crimes. But is that a justification to a gaping multitude, heated by the inflammaor excuse ii law? Had Booth (the assassin) tory speech of this respondent, this question: been captured alive, doubtless on his trial he "Will you have Andrew Johnson President would have said that he thought he was doing or king?" no wrong in murdering the President, could Sir, it was gratuitous in this respondent to he thereby have advanced the interests of his attempt to purge himself by his answer of an friends in the South; and would have also intent to violate the Constitution and laws of stated, no doubt, that he was advised by his the land. His answer stands upon a right friends to commit the act. And the accused which he claims began with his high office, and claims the same as an excuse for his conduct. has clung to the President as an undisputed He claims that he was advised by his minis- prerogative since the days of.Washington by ters at the heads of the different branches of virtue of the Constitution. If he is right, the the executive department. But, sir, in neither motive, whether good or bad, cannot make him case can such an excuse be considered as in answerable; if he was wrong, the motive folthe least manner forming any justification or lows. The innocent violation'of a law is not excuse in law. This plea, answer, or excuse supposable. If there was in this action of the pleaded, if believed by the President and his President the exercise of a rightful power he C. I.-34. .530 must be acquitted of this charge; if he acted rights and so fearful lest the President might outside and in violation of law he must be assume undue authority and obtain the power convicted, whatever his motive. Let us, then, of a monarch, that it was only by the most examine the two inquiries suggested: strenuous exertions of the friends of the proSirs, I think there exists a widespread and posed Constitution, in triumphantly showing dangerous misapprehension as to the powers that this power of removal made him subservand prerogatives of the President. We have ient to Congress, that the public mind became been in the habit of speaking of three cobrdi- reconciled, and the Constitution was finally nate branches of Government in such connec- accepted by the people. They seemed even tion and in such manner as to imply that each then to well understand their rights. The great possesses coequal power with the other. One danger attending the appointing power was of the transcendently valuable results of the perceived. Then, as now, the people feared late war has been the fixing the powers of our the enormous patronage of the Executive if three branches of Government where they prop- left unrestricted, and they appreciated the fact erly belong, the resolving of hitherto blended so patent to-day that lust for power would be powers into the original elements of Govern- likely to corrupt officials and cause them to' ment. The rebellion was a war of encroach- "Crook the pregnant hinges of the knee, ments upon the rights of the people. The Where thrift may follow fawning. people triumphed, and they now insist that the Hence, as was thought, "effective measures victory shall not be a barren one. of keeping officials virtuous while they conI hold that the President of the United States tinue to hold their public trusts" were interpossesses no power other than that given him posed by making the appointing power a depenby the Constitution and thelaws; and I mean dency upon the Senate. However we may by this that there are no inherent powers in guard this power, it will ever be liable to be the Executive, no reserved authority, no im- made a source of corruption. Office will be pliedprerogatives other than those which are the bribe held out by unprincipled Executives: necessarily dependent upon and derivable from and at all times there will be found men base the expressed constitutional provisions and the enough to accept that bribe. This evil is unlaws. avoidable, and to save the nation as far as posWith the evils of a monarchy so fresh in their sible from this curse. is appointment madea memoryth the the Constitution sought joint power. The second clause of section two, to surround the President with such checks article two, of the Constitution, says: as to make him a mere executive officer-the He shallhave power, by' and with the advice and servant of the people. His owers were spe- consent of the Senate, to make treaties, provided a fe His powers were spe- two thirds of the Senators present concur; and he cifically defined and confined to the narrowest shall nominate, and by and with the advice and compass; except the high honor of receiving consent of the Senate shall appoint, embassadors, embassies as the representative of the Govern- other public ministers and consuls, judges of the hewasstipe f al ateries of son- Supreme Court, and all other officers of the United ment, he was stripped of all attributes of sov- States whose appointments are not herein otherwise ereignty; he was given no jurisdiction over provided for." the legislative or judicial branches, but, on the No shadow of authority is here given to the contrary, was made amenable to the former for President alone to appoint any officer what-,his unofficial as well as official conduct; he can ever, not even the most inferior, except as create no office, and his appointing power is invested with power by Congress; on the cononly conditional; he is unable to declare war trary, it is made a joint act of the President or alone make treaties; his authority is mainly and Senate. And why was this made a joint negative, confined chiefly to offering sugges- power? In order to protect public interests, tions to Congress; granting pardons and re- to prevent a vicious. Executive from displacing prieves, to concluding treaties and appointing faithful officers and supplanting them with his embassadors and other public officers " by and own tools and confederates; to prevent the with the advice and consent of the Senate." consummation of just such a conspiracy as He is the Executive only, and "shall take care was conceived by the respondent to obtain that the laws be faithfully executed." He is possession of all departments of Government, without the least judicial attribute; and Mr. and to use the power thus obtained against the Kent says: people, even if it involved another great naWhen laws'are duly made and promulgated they tional strife and appeal to arms. But, whatonly remain to be executed. No discretion is sub- ever may have been the reasons which led to mitted to the executive officer. Itis not for him to this being made a cooperative power of the deliberate and decide upon the expediency of the President and enate, the fact tat it is thus law. What has been once declared to be latw under all and Senate, the fact that it is thus the cautious forms of deliberation prescribed by the Con- made stands uncontroverted, and cannot be etitution ought to receive prompt obedience."-Kent's explained away. Words have lost their meaning if other construction be put upon it. I To the legislative is given the power of super- wish, however, to direct attention to the revising the Executive's acts, and to remove him markable connection of the appointing with from office for " high crimes and misdemean- another-the treaty-making power. Manifestly ors." At the time of. the formation of our the framers of the Constitution had some obGovernment sojealous were the people of their i ject in thus blending the two powers; and tlbe 531 reasons given for making the President and the people. The frequency of elections enSenate parties to treaties apply with equal ables the people to change or ratify any policy force to the appointing power. Boththe Sen- that Congress may adopt by retiring its memate and President are necessary to make a bers or indorsing their acts by reelection. treaty; and in the same sentence the same This makes the legislative the mouth-piece of parties are made the appointing power. Reck- the people; to the people alone is Congress less of his acts as has been the respondent in responsible, and it is through Congress the this case, and regardless as he has proved of people are immediately represented in the the Constitution, he has never yet dared to Government. The magnitude of the duties assume to be the sole treaty-making power in assigned to the legislative, and the authority this Government; that, without the concur- given that branch over the executive and judirence of the Senate, he can conclude treaties ciary, aside from the imperative necessity, fully and annul them. Sirs, under the Constitution sustain the assumption that the legislative is the the treaty-making and appointing powers are superior power in the three departments of identical; the same parties that make treaties Government mentioned in our Constitution, make appointments; the President and Senate Indeed, upon no other theory could the Gorare both as essential in perfecting appoint- ernment be sustained;. This control of the ments as in making a treaty. And happy for people in their Government is the grqat feature the American people is this so, or would we in republicanism; this power of the many;is again have the din of battle ringing in our the distinctive character of our Constitution. ears and war once more sweeping over the While the power of the executive is qualified land. and restricted by-the legislative, the authority Human genius has not yet been able to frame of the latter is uncontrolled by any other dea rule for government in which all the powers partment. It makes and unmakes; it removes are so perfectly defined and balanced as to be presidents, judges, and other civil officers who literally equal. Our own Constitution more maybe guilty of high crimes and misdemeanors, nearly approaches such a form than any other and sweeps away all obstacles in the way of the. that has been given to the world; but even in nation's advancement and prosperity, and from this instrument, framed by the wisest patriots its verdict, in a case of trial as this, there is.ro of the age, one branch in the Government is appeal. made superior to the others. This superiority A further examination of section two, article follows from the nature of the duties with which two, will disclose a peculiarity of expression each branch is-intrusted and the necessity of which is important. "He shall nominate, and some controlling influence —the exponent of by and with the advice and consent of the Senthe people's will-in order to check usurpa- ate shall appoint," "all officers," &c. The tions and correct abuses, which in a republic very first step in the matter of appointment is are likely to arise in departments not directly by the Constitution given to the President to responsible to the people. The grand object "nominate." The appointment is still into be attained by our Constitution was the con- choate. The next step is the concurrence of solidation of the several States into one nation the Senate, and this completes the ceremony by such a compact as would secure " the great- of appointment. It then becomes the duty of est good to the greatest number." It was to the President to issue the commission. In the be a Government of the people, for the people. case of Marbury vs. Madison (1 Cranch, 137, The experience of ages had shown the neces- 156) it was distinctly affirmed in the opinion sity of a division of powers, and that one of of the court that the President could not withthes powers should possess an influence su- hold a commission from an officer nominated perior to that of the others; but no one power and confirmed.: (See, also, Story on the Conwas made supreme or wholly independent of stitution, section 1537.) It is the essence of its contemporaries. The judiciary is eminently all contracts or matters in which two or more " conservative" in its character; it is depend- are to act that their minds must meet and ent upon tble executive and legislative for its concur, and when this is done the act is comexistence and perpetuity, is without creative plete, and is thenceforward beyond the control authority, and its duties are-mainly those of an of one without the consent of the other. But advisory character. note again, the Constitution does not confer That controlling influence in this great trinity the power on the President to "appoint." of powers which form our Government is the His power is to "nominate," and when the people, acting through their chosen Represent- Senate concur, and not till then, is he ematives in Congress assembled. Even the most powered to " appoint," and in doing this he casual reader of the Constitution must see that merely carries out the previously determined] such was the intent of its framers from the wish of both parties to the appointment. In wide range of authority delegated, even to Marbury vs. Madison the court says, to "apregulating the executive and judiciary. point and commission are not one and the The Constitution lays down this great fund- same thing." amental principle: "All power is derived from In the United States vs. LeBaron (19 Howthe people." Congress is the only branch in ard, 74) the court says the commission is not our Government chosen directly from and by necessarily the appointment, although conclu 532 sive evidence of the fact. It would have been The general intention of the framers of the the simplest thing to.have stripped this ques- Constitution was to make the appointing power tion of all doubt when the Constitution was joint with the President and Senate, and the framed had there been a disposition to confer exception only makes more imperative the the authority upon the Executive here claimed general intention. in the defense. We know that the very matter The inconvenience of uniting these powers now before this honorable body was discussed in the multitude of minor officers made the then, so that it cannot now be said we are exception necessary, but the general intention called upon to decide new questions. By what was only the more distinctly asserted. right, then, or upon what principle of construc- But this power of removal, as implied from tion, can you interpolate language into the Con- the power of appointment, is further shown to tution or give the language already there a rest in the Senate and the President conjointly, meaning contrary to its letter? by the adoption of the third section of the secMr. Sedgwick, in his work on Construction, ond article, which provides thatsays: " The President shall have power to fill up all va",Where there is no obscurity in the effect of the cancies that may happen during the recess of the laws, and the object aimed at by the Legislature, we Senate by granting commissions which shall expire are not permitted to inquire into motives of the Le- at the end'of the next session." gislature, in order to defeat the law itself, afortiori Mr. Wirt says: any law subsequently passed on the same subject."- "The meaning of the Constitution seems to me to dgwik p. 295; Dunn vs. Rid 10 Ptrs, 524. result in this: that'the President alone cannot make If this is true of statutes, it is much more a a permanent appointment to those offices; that to just rule in searching for the meaning of a render the appointment permanent it must receive the consent of the'Senate; but that whenever a fundamental law. I insist that the Constitu- vacancy shall exist which the public interests retion is perfectly clear and unambiguous upon quire should be immediately filled, and in filling the subject of appointment. There should be which the advice and consent of the Senate cannot be immediately asked, because of their recess, the no division of opinion on this one point, it does President shall have power of filling it by an appointseem to me. Attorney General Legare says: ment which shall continue only until the Senate shall have passed upon it, or, in the language of the " The people, however, were wisely jealous of this Constitution,'till the end of the next session."' great power of appointing the agents of the execu- tive department, and chose to restrain it by requir- not here discussing the question of vaing it in all cases to nominate; but only in case it cancies and the power to fill them under the had the concurrence of the Senate to appoint."-3 Constitution, but I desire to show that this parOpinions, P. 675. ticular clause of the Constitution now being But let us look further into this secdion. I noticed furnishes strong and direct evidence have already alluded to the matter, but will re- that the appointing power was intended to be peat it in this connection. The language is: kept undivided in the Senate and President, "But the Congress may by law vest the ap- except in those cases where the two could not pointment of such inferior officers as they think from some uncontrollable necessity act at the proper in the President alone." Now, sirs, time. Hence we find Mr. Story holding what there is a familiar maxim -" expressio Unius I think to be the undisputed construction of the est exclusio alterius'-which here prevails. clause, thatThe President is, by this clause, empowered "If the Senate are in session when offices are creto appoint, such inferior officers as Congress ated by law, and nominations are not made to them may by law direct. Is it toomuchtourgethat, by the President, he cannot appoint to such offices amitespaticlarand no others, iduring the recess of the Senate, because a vacancy by naming these particularly, and no others, it does not happen during the recess of the Senate. In was intended he should alone appointno others? many instances where offices are created by law speBut, sirs, even the maximum of the law need cial power is on this'very account given to the Presinthere be invoked. The mConstitutionmf not dent to fill them during the recess; and it was then not here be invoked. The Constitution not said that in no other instanceshad the President filled only expresses one, and thus excludes others, such vacant offices without the special authority of but it expresses all-i. e., it provides for the law."-2 Story, paragraph 1559. appointment of all officers of the Government, This author says again, in paragraph 15.57: and prescribes the manner of appointment in " There was but one of two courses to be adopted, this section. First, it gives the President and. either that the Senate should perpetually be in session, in order to provide for the appointment of offithe Senate the powerto appoint a certain class; cers, or that the President should be authorized to and second, it gives Congress power to allow make temporary appointments during the recess, the President alone, the courts of law, or the which should expire when the Senate should have heads of Departments, to appoint certain others; had an opportunity to act on the subject." and these cover the whole range of officers This distinction between temporaryandperof the Government; and, to my mind, it is the manent appointments is recognized in the case wildest reasoning that can vault itself into the of the United States vs. Kirkpatrick, 9 Whea position claimed by the respondent. ton, page 720. The independent action of the Chief Justice Best, in 5 Bingham, page 180, President, in violation of the wishes of the Sengives a rule directly applicable here: ate, seems not to have been anticipated. Ina "herse a general intention is expre:ssedand the long list of casualties given by Mr. Wirt, in the ct expresses als generapaticular intention incompd the opinion referred to, he had in mind only those ible with the general intention, the particular inten- causes which could not be foreseen as preventtion is to be considered an exception." ing the cooperation of the Senate. 533 It has been uniformly held that if vacancies In No. 76 of the Federalist the writer exare known to exist during the session of the amines at more length the reasons which led Senate, and nominations are not then made, to the adoption of this joint plan of appointthey cannot be filled by Executive appoint- ment, instead of conferring the entire power ment during a recess of the Senate. (4 Opinions, upon the President; and he shows that the p. 362.) This would not be true if itwere un- power given to the President was solely to important whether the Senate participated in nominate, while the President and Senate apthe appointment. point. He shows that as the President must It is urged here that the President not only first nominate he can always, even if the Senhas the power to appoint, but that, having that ate reject, send back the name of some one of power, he may also remove, as a necessary his choice; and this should satisfy those who incident. I will admit that if it can be shown insist upon giving supreme power of appointthat the President may alone appoint to office, ment to the Executive. He then asks: then if the tenure of the office is not fixed but "To what purpose, then, require cooperation of remains at the pleasure of the President he the Senate? I answer that the necessity of the conmay, unquestionably, remove that officer. But, currence would have a powerful, though in general may, unquestionably, remove that officer. But, silent, operation. It would be an excellent check sir, I shall show hereafter that the doctrine of upon a spirit o f favoritism in the President, and incidental power goes no further than to ex- would tend greatly to prevent the appointment of tend to the President when he alone has the unfit characters from State prejudice, from family I the President connection, from personal attachment, or from a appointing power. I deny that the President view to popularity. In addition to this, it would be anywhere has that power save when conferred an efficacious source of stability in an Administraby Congress as prescribed by the C6nstitution. tion." * * * Itwill readily be comprehended that a man who had himself the sole disBesides, Mr. President, I assert that, prior to position of offices would be governed much more by the opinion rendered by the late Attorney his private inclinations and interests than when he General, there can be nowhere found an au- was bound to submit the propriety of his choice to General, gongs fr sdi ha lthe decision and determination of a different and thority going so far as did that learned gentle- independent body, and that body an entire branch man. What says history upon this subject? of the Legislature." Hamilton said, in No. 77 of the Federalist: Now, sirs, I aver that at the time Hamilton "It has been mentioned as one of the advantages wrote it will be found in this matter he exto be expected from the coiperation of the Senate, pressed not only his own views, but the views in the business of appointments that it would contribute to the stability of the Administration. The of the people who adopted the Constitution. consent of that body would be necessary to displace Mr. Madison at this time entertained no other aswell as appoint. The change of the ChiefMagis- view, and his opinions had a large influence trate, therefore, would not occasion so violent or so general a revolution in the officers of the Govern- upon the people, and contributed, probably, ment as might be expected if he were the sole dis- more than those of any other one public man poser of offices. When a man in any station had in bringing about the adoption of the Constigiven satisfactory evidence of his fitness for it a new President would be restrained from attempting a tution. In No. 47 of the Federalist he argues change in favor of a person more agreeable to him at length to show that the maxim of Montesby the apprehension that the discountenance of the quieu, which requires a separation of the deSenate might frustrate the attempt and bring some queu, which requires a separation of tpe dedegree of discredit upon himself. Those who can partments of power to secure liberty, is not best estimate the value of a steady administration true, and has not been without exception in will be most disposed to prize a provision which con- any Government other than an absolute monnects the official existence of public men with the any Government other than an absolute monapprobation or disapprobation of that body which, archy. He then shows that by the British confrom the greater permanencyof its own composition. stitution the departments of Government are will, in all probability, be less subject to inconstancy not distinctive, but that one branch of the legisthan any other member of the Government. To this unin of the Senate with the President in the article' lative forms, like our Senate, a great constituof appointments it has, in some cases, been objected tional council to the chief executive; it is the that it would serve to give the President an undue sole depository of judicial power in impeachinfluence over the Senate, because the Senate would have the power of restraining him. This is an ab- ment, and is the supreme appellate jurisdiction surdity in terms. It cannot admit of doubt that the in other cases. And the judges are so far conentire power of appointment would enable him much nected with the legislative as to attend and more effectually to establish a dangerous empire participate in the deliberations, though not to over that body than a mere power of nomination participate in the deliberations, though not to subject to their control." vote. Mr. Hamilton then proceeds to review, in a Mr. Madison then shows that, notwithstandmasterly manner, the structure and power of ing the unqualified terms in which the axiom the executive department, and in conclusion of hIontesquieu is laid down by the Constiturefers to the many restraints thrown around tion of the, States of the Confederation, there the Executive, and, speaking to this matter of was not a single instance in which the several appointing power, says: " In the only instance departments of power have been kept absoin which the abuse of the executive authority lutely separate and distinct. was materially to be feared the Chief Magis- In New Hampshire the Senate had the right trate would, by that plan, (speaking of the of trial by impeachment. The president, who Constitution,) be subjected to the control of a was the head of the executive department, was branch of the legislative body," and asks: the presiding member of the Senate, and had " What more can an enlightened and reason- a casting vote. The Legislature elected the able people desire?" executive, and his council were chosen from 534 the Legislature. Some State officers were ap- ecutives as standing high above them and dispointed by the Legislature, while the judiciary tributing the powers which they alone poswere appointed by the executive. sessed. They had never been in the habit of In Massachusetts the judiciary were ap- clothing themr with imperial powers, or perpointed by the executive, and were removable mitting them to suppose for a moment that by him on an address of the two branches of they were a distinct and separate entity of govthe Legislature. Many officers of the State ernment, They had never, in a single instance, (some of them executive) were appointed by given to a State executive a distinct existence the Legislature. separate from his legislative and judicial deHe passes over Rhode Island and Connee- partments; He always acted conjointly, and ticut, as their constitutions were adopted be- upon the question of appointments to and. fore the Revolution and before the principles removal from office, more than upon any other, under examination had become an object:of they seemed-to have been cautious. attention. With the: light of this history it is monstrous In New York the powers of government to suppose that the people parted with their were curiously blended. The executive had a power, as is claimed by the respondent, ina partial control over the legislative, and a like- adopting the article under discussion, that they control over the judiciary, and even blendedw gave up without a: word: of dissent all those the executive and judiciary in the exercise of: checks upon the Executive with which they this control. Therewas a council of appoint- had been so familiar: and which they had so ment composed of the executive and partly of uniformly.adopted in their State governthe legislative, which appointed both executive ments. and judicial officers. They did-no such thing, Mr. President, and New Jersey blended the powers of govern. nowhere- can it be shown they intended any ment more than either of the foregoing. The such: thing' On the contrary, we have seen Governor, who was the executive, was- ap- that this clause of the Constitution was urged pointed by the Legislature, and yet he wCs anot upon; them for: the very- reason that it practionly the executive, but he was chancellor-and cally secured to them a system with which they surrogate of the State; he was a member of had been so long familiar. The debates at the supreme court of appeals and president, thattime show thatthe Constitution was adopted with a casting vote, of one of the legislative under the impression that this clause gave the branclhes. This same legislative branch acted power of appointment and removal jointly to again as executive council of the Governor, the Senate and President, and they show, too, and with him constituted the court of appeals. that the clause was framed to meet this view. The judiciary were appointed by the Legisla- I say, then, it is unwarrantable, upon any printure. ciple of constitutional orstatutory construction, Pennsylvania, belaware, Maryland,Virginia, to give the instrument any other meaning. North Carolina, South Carolina, and Georgia, As well might you annul an ordinary contract all had the same system of blended powers. - In upon declarations given after it is signed. The some of them even justices of the peace were most that can be shown is what the parties said appointed by the Legislature. at the time it was made, and the written comt is scareely possible to find anywhere in pact is conclusive ofthe meaning expressed. contemporary history a stronger proof of the We have seen how the people felt at the time. jealousy with which the people clung to their We have:seen what two great writers upon the right to control their:own political affairs; and subject said' at the time, and thattheir opinions it was a great concession of the. States of the influenced largely the adoption of the ConstiConfederacy to the Union under the Constitu- tution. Upon the question under discussion tion when they assented to the clause now at that time there seemed but one mind. being considered. In every State of the Con- Mr. President, I think I do not state it too federacy, at the time they were called upon to strongly in saying that prior to the meeting of adopt the Constitution, the people, through the the First Congress, and at the time the ConstiLegislatures, not: only made the laws, but:they tution was adopted, none of the friends of the appointed the officers who were to execute Constitution claimed the power for the Presithem; and not only this, but provided for their dent which is nowurged. Some of its enemies removal in the same manner. They seemed made the charge, but it was denied by its to have regarded the Chief Executive as an friends. No man in this country has studied officer designated to assist the execution of the more'carefully the history on the subject than laws, but that it was unsafe' to give- him power Mr. Story; He says in his Commentaries on to appoint those who were to coUperate with the Constitution, (pages 15, 39, 40, 41,) that him in this duty. the:doctrine- (speaking of the same construcI say it was a great concession, and aradical tion urged by the Managers) was maintained, change which conferred upon thee President of with great- earnestness- by the earliest writers, the United States even the prerogatives: which and says that at this: period the friends of the are now undisputed. Constitution had no other view. He cites 5 Sirs, the people who-adopted theConstitution Marshall's Life of Washington, chapter 3, page *ere unaccustomed to looking upon; their ex- 198, and 1 Lloyd's Debates, 851, 366, 450. 535 Of the effect of these opinions upon the pub- forthwith, after his appointment, be entitled to have lic mind at that time this, writer says: the custody and charge of all records, books, and papers in the office of Secretary for the Department "This was the doctrine maintained with great of War, heretofore established by the United States earnestness by the Federalists, and it had a most in Congress assembled." material tendency to quiet the just alarms of the It isnoticeable that the law nowhereprooverwhelming influence and arbitrary exercise of this prerogative of the Executive, which might prove vides how or by whom the principal officer is fatal to the personal independence and freedom of to be appointed, The language of the law is,. opinion of public officers, as well as to the public in the first section, there shall be a principal liberties of the country."-Story'8 Commentaries, sec. offic 1539; Story on Constitutiona vol. 2, p. 400. officer;" in the third section, "that the said I have been endeavaring to show that at the principal officer and every other person to be adoption of the Constitution the appointing appointed or employed in said Department," was regarded and made a joint power &c., shall take an oath, &c.; in section fours, 5ower was regarded and made a joint power that the Secretary for the Department. of tetween the Senate and the President, as was also the power of removal. I think s War, to be appointed in. consequence of this. tion well estarflished.- act, shall forthwith, after his appointment, be I have thus fully discussed the appointing entitled to have custody and charge of all power directly with the Senate because the records, &c. It las been uniformly held same reasons that required that power to be that where no provision is made in the law joint apply with equal force to the power of for the appointment of the officer, the appointremoval. ment must be made by and with the advice; Let us come down, however, to a period and consent of the Senate. (6 Attorney Gen-. subsequent to the adoption of the Constitution. erals' Opinions, p. 1.) This results necessarily Congress met March 4,- 1789, and continued from the language of the Constitution. No until September 29, of the same year. On provision was made in the laws organizing the 27th of July they passed the act or. either of the Executive Departments as to how the 27th of July they passed the act organizing the Department of Foreign Affairs, and on the the principal officers were toi be appointed; 6th of August following, was passed the act they were, therefore, all appointed by and with organizingtheDepartmetofWar. Thesetwothe advice and consent of the Senate. Is it organizing the Department of War. These two acts are identical in language in every partic-not fair to suppose the removal was to take ular, except the assignment of duties to t place in the same manner? On the same day different principal officers of the Department. the War Department was created Congress As much of the argument hinges on the law passed an act giving the President power esorganizing the Department of War at this pressed to remove the Governor and other time, it is imnportant to know just what was officers of the Territory organized under the said and done at the time. There are some ordinance of 1787, and yet these officers were peculiarities of the law to which I invite atten- the same act to be appointed by and with ~~~~~~~tion. ~the advice and consent of the Senate. Is it Section one provides that- probable that Congress would have made speSe oe roids ha- ~ cial provision for the exercise of power in one "There shall be an executive Department to be case, if they hadsupposed that power incident denominated the Department of War, and that there shall be a principal officer therein, to be called the to the share the President took in the appoint- Secretary for the Department of War, who shall per- ment? The act, it seems.to me, clearly indicates form and execute such duties as shall from time to that Congress regarded legislation necessary to time be enjoined upon him by the President of the United States, agreeably to the Constitution, relative confer the power, else it was needless. to have to military commissions, or to the land or naval legislated at all upon the subject. forxoes, ships or warlike stor es of the United States, But it is urged that the second section of the orto such other matters respecting military or naval affairs as the President of the United States shall War Department act does confer this power, assign to said Department, or relative to the grant- absolutely. I say not. The second section proing of lands to persons entitled thereto for military vides for the appointment, by the Secretary of services rendered to the United States, or relating to Indian affairs; and furthermore. that the said War, of an inferior officer, to be called the principal oflcer shall conductthe business of thesaid " chief clerk," who, whenever the said princiDepartmenvin such manner as the President of the pal officer (the Secretary) shall be removed by United Statesshall from time to time order or direct." "SEC. 2. That there shall be in the said Department the President of the United States, or in any am, inferior officer, to be appointed by the.said prin- other case of vacancy, shall, during such vacipal officer, to be employed therein ashe shall deem cancy, have charge, &c. proper, and to be called the chief clerk in the De: partment of War, and who, whenever the said prin- There is a marked difference of expression cipal officer shall be removed. from office by the:Pres- between the act I have referred to, as passed ident of the United States, or in any other case of upon thesame day, and this. In the on the vacancy, shall, during such vacancy, have charge upon the.same day, and this. I the one the and custody of all records,. books, and papers apper- absolute power of revoking commissions and taining to the said Department. removing is conferred; in the other the ex"SEC. 3. The said principal officer, and every other pression, "whenever the said principal officer person to be appointed or employed in the said Department, shall, before he enters on the execution of his shall be removed from office by the;President," office or employment, take an oath or affirmation &c. Now, sirs, I think that the utmost which well and faithfully to execute the trust committed can be claimed from this grant, is recognition " SEC. 4. The Secretary for the Department of War, of a qualified and limited. power: over the Secto he appointed in consequence of this act, shall retary of War, in case his removal should ba 536 come necessary at a time when by the exercise such removals. This last amendment was of it a vacancy would be made at a time when carried by a vote of 31 ayes to 19 noes,- and the Senate could not assist il filling it. Pro- the bill, as amended, passed the House by a vision had to be made for this, as the discus- vote of 29 to 22. In the Senate the bill was sions at the time show, and I think the lan- carried by the casting vote of the Vice Presi. guage means nothing more than that the Pres- dent. ident was to exercise the same and no imore It is an easily understood principle that where power than would be conceded to him in the two or more unite in an act they may delegate entire absence of any provision on the subject. the authority in all to any one of the number; This law did not take the case out of the con- and this, we may say, was done inferentially stitutional limitation, and by no legal interpre- by the vote I have noticed. But, sirs, the Sentation can it be held to do so. ate has since spoken upon this very subject When the bill for organizing the Department many times, as I shall show, and on every *of Foreign Affairs was under discussion, the occasion in unmistakable condemnation of the original draft read "to be removed by the principle laid down by the respondent. President." Upon this arose all the discus- When John Quincy Adams, in 1826, atsion which is chiefly relied upon by the coun- tempted to entangle the United States in an sel for the respondent. Whatever may or may alliance with the new republics of South Amernot be proved by that discussion, one thing is ica, and to establish what was popularly termed observable, namely, the language of the first the "Panama mission," this encroachment draft was materially changed, and, as finally upon legislative prerogative was sturdily readopted, left the question upon inference sisted; the Senate insisting upon its rights to merely. Instead of declaring that this officer the utmost, even to contending that when a is removable by the President, in plain and new mission is created it creates a new office, unmistakable phrase, an equivocal expression which does not come under the class of vacanwas finally adopted, which it was thought cies, and therefore the President has no right would partially meet the views of the majority to fill it by a temporary appointment. and yet decide nothing absolutely. Under every Administration since the days But let us notice for a moment this discussion of Monroe we observe attempts by the Execuof 1789. I am not inclined to underrate the tive to monopolize the right of appointment; value of that debate, but as forming any rule but in every instance these encroachments were or guide for us I cannot give it great import- resisted, the Senate successfully asserting its ance. The leading mind which controlled the joint authority to appoint and remove. In the removal party was that of Mr. Madison, and session of 1825-26, warned by the attempted he, it is known, argued against his views ex- exercise of this assumed power by Mr. Adams in pressed before the Constitution was adopted. the case of the Panama mission, a select comWhether he began to have glimmering hopes mittee was appointed by the Senate, charged of the Presidency himself I will not say, but it with an inquiry into the expediency of reduccertainly detracts from the value of his opinions ing executive patronage, which committee reto know that his views expressed after the ported six bills, intended to control and reg-Constitution was adopted were different from ulate different branches of the public service those entertained when he was urging its adop- and limit some exercises of executive power. tion. But, as I understand that discussion, the In one of the six bills, to secure in office faithargument turned largely upon the necessity of ful collectors and disbursers of the revenue, this power resting somewhere at a time when the President was required to report to Conthere was a pressing emergency for its exercise. gress the causes for each removal. The section The first proposition was made by Mr. Madi- of the bill to that effect reads: on that there be established an Executive " That in all nominations made by the President Department. comprising the Departments of to the Senate to fill vacancies occasioned by an exForeign Affairs, of the War, and of the Treas- ercise of the President's power to remove from office ury, tue chief officers thereof to be called Sec- the fact of the removal shall be stated to the Senate at the same time that the nomination is made, with retaries; to be nominated by the President and a statement of the reasons for which such officer may appointed by and with the advice and consent have been removed." of the Senate, and "to be removable by the Benton says this was intended to operate President." This resolution was finally made as a restraint upon removals without cause, the basis for three separate bills, couched in andsimilar language, creating the Department of " Was a recognition of a principle essential to the Foreign Affairs, Department of the Treasury, proper exercise of the appointing power, and entirely and Departmentof War. The bill creating the consonant with Mr. Jefferson's idea of removals, but never admitted by any Administration nor enforced Department of Foreign Affairs was first taken by the Senate against' any one —always waiting the up, and gave rise to a long discussion. This legal enactment. The opinion of nine such Senators bill was amended by inserting in the second as composed the committee who proposed to legalize this principle, all of them democratic and most of article words implying the right of the Presi- them aged and experiencedm should stand for a perdent to remove the Secretary, and was subse- suasive reason why this principle should be legalquently amended by striking out of the first ized."-Benton's Thirty Years' View, vol. 1, chap. 29. article the authority of the President to make During Jackson's administration this power 537 of removal, as claimed by the accused, came Taney was put in charge of the Department, before the Senate many times, and never but and at once carried out the plans of Jackson. to receive a decided condemnation. Upon the Upon the assembling of Congress Mr. Clay inbreaking up of Jackson's first Cabinet Mr. troduced into the Senate two resolutions in Van Buren was nominated to the Senate as relation to the matter. The first one was as minister to England. His confirmation was follows: opposed for several reasons, and among them "ThatbydismissingthelateSecretaryoftheTreasit was charged that he introduced, as Jackson's ury because he would not, contrary to his sense of Secretary of State, a system of proscription or his own duty, remove the money of the United States removal for opinion's sake, and a formal mo- in deposit with the Bank of the United States and its remoal for opinion's sake, and a formal mo- branches, inconformity with the President's opinion, tion was made by Mr. Holmes, of Maine, to and by appointing his successor to effect such reraise a committee, with power to send for per- moval, which has been done, the President has assons and papers, to inquire into the charges sumed the exercise of a power over the Treasury of the United States not granted to him by the Constiand report to the Senate. But this looked so tution and laws, and dangerous to the liberties of the much like an impeachment of the President people." that it was dropped. The same reasons for the The resolution was adopted by a vote of 28 rejection were urged, however. Among those to 18. who insisted upon the rejection for the reason Jackson held the nomination of Taney as I have stated, among others, were Clay, Web- Secretary of the Treasury in his pocket until ster, Clayton, Colonel Hayne of South Caro- the last week of the session of Congress; but lina, Governor Moore of Alabama, and not it was rejected as soon as sent to the Senate. least on the list was Thomas Ewing of Ohio. An acceptable name was afterwards presented, Van Buren was rejected, and the right of the and the matter ended. Senate and the truth of the principle I now The next expression of the Senate upon the insist upon were vindicated. power of the President to remove a Cabinet During Jackson's second term the question minister was even more decided in its concame up before the Senate in a different form. demnation of the false doctrine derived from The offices of bank directors to the United the debate of 1789. I refer, sir, to the passage States Bank were about to be vacated by limit- of the tenure-of-office act over the veto, and ation of their term. Jackson desired the re- of course by two thirds of both Houses of Con-. appointment of, and accordingly nominated, gress, on March 2, 1867. Both Senate and the incumbents. The Senate, for their own House here united in this expression; and in reasons, rejected the nominees. Jackson then this they spoke for every representative eleattempted to coerce the Senate into the appoint- ment of this Government and for the whole ment, and accordingly sent the same names people. back, intimating in his message that he would Need I add to this chain of uniform decision nominate no others. The nominations went the last vote of the Senate given on the 21st day to a committee, who reported a resolution rec- of Febiruary, within twelve hours after the reommending rejection, which was immediately spondent had made the attempt to remove Mr. adopted. The report was an able review of the Stanton? power of the Senate, and concludes as follows: It is plain to my mind that those who voted " The Senate perceive, with regret, an intimation with the majority in, 1789 were not understood in the message that the President may not see fit to to give license to wholesale and causeless resend to the Senate the names of any other persons to be directors of the bank except those whose nomina- movals by the President. And we have the tions have been already rejected. While the Senate very highest evidence of this not only in the wiIl exercise its own rights according to its own views decisions of the Senate, which I have noticed, of'duty, it will leave to the other officers of the Gov ernment to decide for themselves on the manner they but in the uniform practice of the Government will perform their duties. The committee know no throughout all Administrations. I do not find reasons why these offices should not be filled- or why, that the first President ever eercised the in this case, no further nominations should be made, at the first President ever exercised the after the Senate has exercised its unquestionable power of removal, but if he did so, it will be right of resecting particular persons who have been seen, I venture to assert, that he consulted the nominated, any more than inother cases. The Sen- Senate at the time or at ts first session. I do ate will be ready at all times to receive and consider any such nominations as the President may present find, however, an example of his great respect to it." for, and deference to, that body which the ConThe Senate had condemned the assumption stitution had made his aid in making appointof the President in presuming to remove for ments. opinion's sake, and here we have a condemna- Less than a month after the bill had passed tion of his attempt to perpetuate in office his organizing the Department of Foreign Affairs own favorites against the wish of the Senate. he sent to the Senate the name of Benjamin But Jackson persisted in putting the question Fishbourne as naval officer at the port of to every conceivable test, and removed his Sec- Savannah. The Senate rejected the nominaretary of the Treasury (Mr. Duane) because he tion. The President, fearing that in this there refused to do what he conceived to be a viola- might be some misconception of his motives tion of the law and his duty in the removal of sent another name, but gave hi reasons in justithe public deposits. This was during a vaca- fication for nominating Colonel Fishbourne. tion of the Senate. ~ The late Chief Justice When John Adams desired to displace Mr. 5388. Pickering, his. Secretary of State, and appoint meats he rewarded his friends, and. for cause. another he notified the incumbent that he he displaced incompetent men by appointing would, on a certain day, cease to be Secretary successors, but his action was always subject of State. Meanwhile, the Senate being in ses- to review by.the Senate. The Supreme Court sion, he sent in the nomination of John Mar- said upon this point in ex.parte Hennen: "The shall, who was confirmed; and thus Mr. Pick- removal takes place in virtue of the new apering was removed, not by the President under pointment, by mere operation of law." Not any power the law' gave, but under the Consti- the mere nomination, but the appointment. tution and by virtue of the power incident to Mr. Madison's administration will be searched the. appointing power vesting in the Senate in vain to find an instance where he ran counter and the President. This is a very striking to the will of the Senate in this matter of reand practical illustration of the doctrine then movals and appointments. In every instance supposed to be the true one, and it was but where changes were made the Senate legalizedfollowing out the- true spirit of the opinions them if they were appointments coming within expressed in the great debate of 1789. the first clause- of the second section, article Jefferson, the President who initiated the second, of the Constitution. practice of removals, and was the first to con- I do not-find that any occasion arose in Mr. finee his favors to hisowna party, made it a fund- Monroe's: administration to present the quesamental principle that removals were only to tion. I have elsewhere noticed the opinion of: be made. for cause. March 7, 1807, only three his Attorney General, William Wirt, upon the days;after his induction into office, he writes to duties of the President in relation to the exeMr. Monroe; cution of laws which by their terms are to be, "Some removals, I know, must be made, They executed by officers namedin the law. Thisopinmust be as few as- possible, done gradually. and bot- ion completely overthrows the assumption of tomed on some malversation or inherent disqualifi- this respondent. CaUtion." this respondent. John Quincy Adams succeeded Mr. Monroe. On the 23d of the same month he thus writes John Quincy Adams succeeded Mr. Monroe. o the 23Governor of Virgthe same month he thus writesThere was no occasion for removals:for politito the Governor of Virginia, Mr. Giles: "Good men, to whom there is no objection but a cal causes ar this.time, There was no revoludifference of political opinion, practiced only so far tion of parties. Mr. Adams had occupied the' as the right of apxrivate citizen will justify, are not first place in Mr. Monroe's Cabinet during the. proper subjects of removal." whole term of eight years, and stood. in conSix days after he writes to Eldridge Gerry, currence with his appointments.. It was called afterward Vice President: " the era of good feeling." It will be found"Mr. Adams's last appointments, when he knew that he made no change in offices. filled by he-was appointing counselors and aids for me, not nomination to the Senate which were not confor himself, I set aside as fast as depends on me. Offlceerswho have been guilty of gross abuse of office, curred in by that body. such as marshals packing juries, &c., I shall now When Jackson came in there was an entire remove, as my predecessor ought in justice to have alrevolutioninthecountry. Hefored. done.'The instances will be few, and governed by evolution ntry. Hefo strict rule, and not party passion. The right: of his Cabinet, as all other Presidents had done, opinion shall suffer no invasion from me." by nomination to the Senate. He displaced How, sir, did- Mr. Jefferson proceed to dis- officials by nominating successors when the place incompetent or untrustworthy officers? Senate was in session, or. issuing commissions If there was a vacation of the Senate he ap- during vacation, which stood or fell as the first pointed successors and gave notice to the in- Senate thereafter decided. We have already cumbent of his action. The successor then seen how quickly the Senate brought. this became the legal officer, and the incumbent President to account for his first usurpation in was removed by virtue of the new appointment the matter of removals when he removed Mr..working as revocation of the old commission. Duane from the Treasury, although it was done: If; the Senate was, in session when this tran- during vacation. spired. he seiLt. the nominations to that body, Van Buren succeeded Jackson, and nowhere and: their. concurrence in the new appointment can I find that he violated the general practice: worked the revocation. If the Senate was of filling.appointments and making removals. not in session at the time he sent the nomina- Harrison's administration presents another tions to that body at its next meeting, and the instance of a complete revolution in party. confirmation concluded, the appointment,. its power. Presidentl Harrison in no-instanceran action being an order or approval nunc pro counter to the Senate or made- removals. or! tunc. And this has-been true of every Admin- appointments-which were- without the Senate's istration except the present one. I ask coun- concurrence. Mr. Tyler, who succeeded him sel for the respondent to show a single re- but a. month after his inauguration, was. so. noval from office by any President that was impressed with the history of Jackson's atever held of legal force that was not at the tempted usurpation that he made this very.time or at a subsequent date approved by the subject the occasion for remark in his inauguiSenate. When. this is. done the spirit and the ral message. He said&.: letter of the Corestitution. are met, and when it letter of the Cotitution are met, andhen it "In view of the fact, well avouched'n history, thatis not. done both are violated. Jefferson did the*tendency of all human institutions.is'to concen... not create vacaieesi In.. making new appoint- trate power in the hands of a Asi. man,, and that 539 theirultimatedownfall hasproceeded fromthistause, clerk,- but was silent as to how he might bye I deem it to be of the most essential importance that removed. The judge removed Hennen..Thw acomplete separation should take place between the sword and the purse. No matter where or-how Supreme Court of the United States held, on: the public moneys shall be deposited, so long as the appeal, that the power of removal was incident President can exert the power of appointing and tothe power of appont and sstained moving at his pleasure the agents selected for their the pwroap int, a st custody the Commander-in-Chief of the Army and the judge of the court accordingly. The court, Navy is, in fact, the Treasurer. A permanent and in remarking upon the clause of the Constituradical change should therefore be decreed. The tion under discussion, remark: patronage incidental to the presidential office, already great, is constantly increasing. Such increase "No one denied the power of the President and is destined to keep pace with the growth of our pop- Senate jointly, to remove where the tenure of the ulation, until, without a figure of speech, an army office was not fixed by the Constitution; which was of office-holders may be spread over the land. The a full recognition of the principle that the power of unrestrained power exerted by a selfishly ambitious removal was incident to the power of appointment." man, in order either to perpetuate his authorityor Any lawyer will to hand it over to some favorite as his successor, may see that this is all the court lead to the employment of all the means within his was called upon to say, and in going beyond control to accomplish his object. The right to re- this to discuss what had been the opinions exmove from office; while subjected to no just restraint, is inevitably destined to produce a spirit of crouch- pressed in the First Congress was mere dictum, ing servility with the official corps, which, in order and is not to be considered as judicial interto uphold the hand which feeds them, would lead to pretation. It is no new thing for courts to go direct and active interference with elections, both State and Federal, thereby subjecting the course of outside of the case before them, and the Su:State legislation to the dictation of the chief execu- preme Court is not an exception. There is tive officer and making the will of that officer abso- not, Mr. President, as no one knows better lute and.equently.e found...se~fat. i- s mthan yourself, a single decision recorded in When subsequently he found himself at v the Supreme Court reports, where the power ance with his Cabinet, instead of removing of the President to remove from office in viothem he caused scandalous things to be wrltten lation of the expressed wish of the Senate was and published of them in public newspapers, drawn in question. Trace the history of all and revealed the Cabinet consultations, which by the President down to the present were published in the same way, thus making rmovals were.ublished. the- same.ay,.hus X X =ng time, and there will be found no instance where the position of the Cabinet so unpleasant that time, and there will be found no instance where a removal has been made to which the Senate they resigned. What I now- state is alluded to in. Mr, ler. r. ( has not made the act its own, expressly or imtoin M r. Ewtyng's letter of resignation. (Ben- pliedly, by confirming the successor to the ton's Thirty Years View, p. 853.) office made vacant by removal, and this, sir, I will not pursue the history of removals and o I will not pursue the history of removals and takes all decided cases out of this discussion. appointments in: subsequent Adm.nistrations, What we claim is thatthe Senate must either but I assert that there will not be found in the be first consulted in the removal, or it must practice pursued in any of them; the slightest subsequently to the removal assent thereto. warrant for overriding the Senate either in In Marbury vs. Madison (1 Cranch) the appointments or removals without authority power of the President to remove was not of law. directly made a question. Marbury was nomIt is well understood that immediately uponustice of the peace for the District of the inauguration of a President the Senate is a u f Columbia under a law which fixed the tenure called together in extra session; and at once go of his ofice at four years. The Senate had into executive session to consider any: new concurred in the nomination, and the commisappointments to be made. Cabinet changes'are then mades and s *ubmitted. If the Presdent 1 sion was signed by the President but not yet then made and submitted. If the President. Mr. e delivered. Mr. Madison, the, Secretary ofcoi*d remove and, appoint without them such State, refused to deliver,it, and a mandamus proceeding would be useless. undeed, the President, having in mind the selection of: a Cabinet he had reason to believe would be court decided that a mandamus could not lie.L~bine he ha. reao8against ttie head of an executive Department, rejected by the: Senate, would: accomplish his Upon the right of arbury to his comission b. withholding all nominatios ul.Up on the right of Marbury to his commission. purpose by withholding all nominations untill. d purpose... nhowever, the court said: the Senate adjourned, and thus defeat the very purpose of the: Constitution in requiring the'"Some point of time must be taken when thepower prpose of the onstitutio i requiring the of the Executive over an officer. notremovableat his concurrence of the Senate. will, must cease. The point of time- must be when Much weight has:- been attached to'the judib theconstitutional power of appointment has been cialf decisions upon the -potwer of removal. A exercised. And this power has been exercised when the last act, required from the person possessing the close scrutiny of these will show that they do power, has-been performed." not decide the question here discussed. By the act of 1789, creating the Department The opinion of the, Supreme Court in ex of Foreign Affairs, it was made the duty of the parte H-ennen establishes this simple proposi- Secretary; of that Department to affix the seal tion and- no other, namely: the power of re- of the United States to all commissions signed moval in the absence of all constitutional or by the President. Upon the point-asto whether statutory regulation is incident to: the power the President could arrest the commission here of appointment. Hennen was appointed clerk the court said:of a court in- Louisiana The law creating the "This is not a proceedinugwhich may be varied if court gave the judge the:power tot appoint th the judgnent ofthkefxeeudivesha1lsuggesone more 540 eligible; but is a precise course, accurately marked out treated the Secretary of War as the only exby leat, and is to be strictly pursued. It is the duty of ecutive officer with whom they had anything the iecretary of State to conform to the law, and in to do, so far as that Department was concerned, this he isan officer of the United States, bound to obey the laws. He acts under the authority of the and the legislation does not in many instances law, and not by the instructions of the President." recognize the existence of a Chief Executive, so If that case bears upon this, it goes only to great and powerful an engine of government show that the President cannot interfere with had the War Department become. Resoluthe due progress of the law, under the assump- tions of inquiry for information in relation to tion that he is Chief Executive, and therefore military affairs were all directed to the Secrepossessed of power to control all executive tary of War, and he made answer to Congress offices. himself without consultation with the PresiIf there are any decisions of the Supreme dent. The entire and immense system of purCourt directly in point they have escaped me. chase and supplies for the Army, the organizaI assume there are none, for the respondent tion and equipment of troops, the moving of states that he was governed in his action mainly troops and military supplies, the sequestration to make a case for the courts, in order to obtain of the enemy's property, the entire internal a judicial decision. For the first time in our management of Army affairs, the payment and history have we a direct issue between the two disbursement of millions of dollars annually, appointing powers. For the first time have the adjustment of numberless claims against we a case where the Senate, refusing to concur the Government, are all by law imposed upon in a removal, the President ignores that body the Secretary of War. Indeed, the War Deand defies its expressed will, and that, too, in partment has, by virtue of laws passed since the face of a positive enactment. 1789, been completely changed, and instead of Sirs, I contend that the Department of War being a mere appendage to the executive office, to-day, 6f which Edwin M. Stanton is Secre- with an amanuensis in it to write what the tary, is not the Department of War of which President might dictate, it is now, next to the Henry Knox was Secretary under George Treasury, the most powerful and important Washington. I hive shown that by the act of Department of the Government. 1789 the law simply created the Department, Take up the statute-books and compare the but assigned no duties to it except such as laws as they now stand and as they stood when might suggest themselves as necessary to the Congress spoke the Department int6 existPresident. ence by four short sections in the act of 1789. The Department remained thus, without any You will find that there is scarcely a vestige duties imposed upon it by law, and without any of the act of 1789 left in force. That made legislation recognizing its importance or its dis- the Department of War a part of the executive tinctiveness, until May 8, 1798. Meanwhile, office, with its whole control in the President. the duties pertaining to the Navy had been The laws now place the specific duties of that taken from the War Department and conferred vast Department in the hands of the Secretary, on a separate Department; Congress had given and hold him alone responsible. The very the power to make contracts for war and navy necessities of our national growth have wrought materials to the Secretary of the Treasury. this change, and the people have come to hold By the act of July 16, 1798, it was provided the President no longer responsible, as they that all contracts and all purchases for the once did, for the conduct of the Executive Demilitary service should be made by direction partments. Any one who, during the late war, of the Secretary of War. The law also made had occasion to appeal from Mr. Stanton's it the duty of the public purveyor, who was an decision in matters appertaining to his legal important officer and responsible for large sums functions knows that what I state was recogof money, to report to the Secretary of War. nized by the President as true. The change here may seem unimportant, but This, too, has been recognized by judicial it marks the beginning of that emancipation decision. The President has no right to perof the War Department from the manacles of form executive acts by law given to his Secreexecutive control which is now by law made taries. He had this right in 1789 because the so complete. law made them the executors of his will merely. The subsequent laws organizing the pay de- Can the President make a contract for the partment, the quartermaster and commissary supply of the Army or Navy which the courts departments, the engineer and ordnance corps, would hold binding? Can he give legal effect all recognize the Secretary of Wai as in many to an act which the law requires a particular respects the chief and sole executive officer for officer of the Government to do? Can he step the discharge of specific duties with which the into the War, Treasury, or Navy Departments President had nothing whatever to do. and sign official papers which the Secretaries Still later, in 1812, when an army was raised sign and make his acts legal? If he is the to meet the apprehended war with Great chief and only controlling Executive, why has Britain, greater powers were conferred on the not he cut the Gordian knot by taking the War Secretary of War. In the Indian wars, in the Department reins into his own hands until the war with Mexico, and especially in the late Senate shall confirm his nominees? war against rebellion, Congress seemed to have There can be no other safe view to take of 541 this question-any other leads to despotism. Army. Let me ask the learned counsel, if they In speaking of the Executive Departments dur- be correct in claiming the inherent right of ing the great discussion upon President Jack- removal in the President, where is the authorson' s removal of his Secretary of the Treasury, ity that makes Sherman's, Sheridan's, or FarMr. Clay said: ragut's commissions more thah blank parch"We have established and designated offices, and ment before the imperial throne at the White appointed officers in each of these respective Depart- House? Under what authority can the Secments to execute the duties respectively allotted to retaries of the Navy, of State, Department of them. The President, it is true, presides over the Interior Postmaster General, and the thouwhole. Specific duties are often assigned by particular laws to him alone, or to other officers under his sands of officers of the several executive superintendence. aHis parental eye is presumed to branches of Government, scattered all over the survey the whole extent of the system in all its land, shield themselves fom the witheng and movements; but has he power to come into Congress and, shield themselves from the withering and and say such laws only shall you pass; to go into the corrupting touch of the executive wand, when courts and prescribe the decisions they may pro- he chooses to command their removal? nounce; or even to enter the offices of administra- If the President can do these things with tion, and where duties are specially confided to thosean do these things with officers to substitute his will to their duty? Or has impunity, let me ask if we have not that state he a right, when those functionaries, deliberating of government forewarned by Mr. Seward's upon their own solemn obligations to the people, have moved forward in their assigned spheres, to question, "Will you have Andrew Johnson arrest their lawful progress because theyhave dared President or king?" to act contrary to his pleasure? No, sir. No, sir. We hear much said about the so-called CabHis is a high and glorious station, but it is one of inet council of the President. The heads of observation and superintendence. It is to see that obstructions in the forward movement of Govern- Executive Departments have become Cabinet rment,unlawfullyinterposed, shall be abated bylegit- ministers, who hover around their chief as aids imate and competent means." to a general of the Army, and the argument is Will gentlemen consider for a moment the used that you might with the same propriety tremendous consequences of the doctrine force an obnoxious aid upon a general as an claimed by this respondent? If, sirs, this obnoxious Cabinet minister upon the President. Senate concede the power arrogated to the Sirs, what is the origin of Cabinet councils, and President, he is henceforward the Govern- whence comes the appellation Cabinet minm.ent. Even Congress is powerless to arrest ister? I do not find them anywhere in the his despotic rule. law which organized the several Departments. Suppose he desired to force upon the coun- Let us not be deceived by names. I know of try a certain policy, and chose the Secretary no authority for convening Cabinet conclaves of the Treasury, with his immense power, for semi-weekly, and I fear these councils are his instrument. That officer might decline to cabals in which the public weal is much less execute the President's will, and claim that discussed than the party weal. the law conferred upon him alone certain spe- Tell me why the Postmaster General need cific duties which he could not conscientiously be called to consult as to how the Navy Deabandon to the dictates of the President. The partment should be administered; and what remedy is at hand, and the official guillotine necessary connection is there between the ducommences its work. An obsequious tool of ties of the Attorney General as prescribed by the Executive is placed at the head of the law and those appertaining to the War DeTreasury, and the Senate and the people are partment? Sirs, the so-called Cabinet countied hand and foot. He may remove at any cils are misleading us, and so far has this time. He may withhold the name of the ap- independent and self-constituted board of Govpwintee till the very close of an intervening ernment directors counseled the accused that Senate, and should the Senate reject he may he sets up the difference existing between him reappoint the same person or another equally and the Secretary of War as working their loss subservient. Indeed, sir, if the absolute power of the latter's counsel in this cabal, and from claimed is conceded, he may so arrange the this he excuses his attempt to remove him. appointment as to avoid submitting it at all to You are asked to give legal existence to this the Senate. Can it be possible that a power Cabinet, and say the Secretary of War has so tremendous in its consequences was ever duties to perform there, failing in which he intended? must leave his Department. This Cabinet If the Congress of the United States have no appendage to our executive government is an right by legislative enactment to fix the tenure innovation, and should not be legalized. to certain offices, and exercise their joint The Constitution says the President " may authority in appointments as well as removals require the opinion, in writing, of the principal from office, what restriction is there on the officers of each of the Executive Departments President's power? upon any subject relating to the duties of their If lie can control the Treasury by this in- respective offices." genious, not to say despotic means, does his But, sirs, it nowhere authorizes him to conpower end there? He may remove the Sec- solidate the heads of these Departments into a retary of War and the General-in-Chief, if they cabal to discuss party politics, and devise ways dare dispute his policy. He thus possesses to perpetuate their tenure by securing the rehimself of the purse of the nation and next its election of their chief. There is danger in our forgetting that the law-making power of this the counsel once sat upon that bench. Would Government has imposed duties and obliga- he have tolerated an argument uponna decision tions upon these heads of Departments which of that court which had been rendered after they cannot delegate to the President, much repeated examinations by the most learned of less the Cabinet, and which neither the Presi- the country, exhausting every phase of argudent nor the Cabinet can arrogate to them- ment on both sides, and which decision was selves. finally concurred in by two thirds of the court? In this portion of the defense set up I do not But the question is before the Senate again; find that any breach of duty is charged to the has been elaborately argued, and courtesy to Secretary of War. It does not appear that he the counsel for the respondent, if no other has been derelict in anything enjoined upon reason offers, would seem tX require for it a him by law. No, sirs; he has ceased to be an passing notice. agreeable companion to the President's Cabi- I do not observe in the remarks of counsel net tea parties, and he must be decapitated. any argument different from that given in the Under all this lies much of that evil growing message vetoing the act of March 2, 1867. This out of the power arrogated to the President. did not prevail before the Senate then, and I -Here is the seed of executive consolidation, see no reason why it should now. We are told of which the fathers had such dread. These there that the question arose and-was settled secret meetings tend to destroy that independ- in the discussion of 1789 when the War Deence of administration which the law contem- partment and the Foreign Department were plates. Napoleon used to say that councils of created. I think the question presented then war never fought battles. I think, sirs, I may is much misapprehended. It was not whether say that Cabinet councils do not always exe- Congress had the power to legislate upon the cute laws. subject. It was whether they ought to confer I come now to notice the second branch of the power of removal on the President. If the offense involved in the first charge, namely: the power inheres in the President the actthen HAD THE PRESIDENT POWER TO REMOVE THE passed was wholly gratuitous and unnecessary. SECRETARY OF WAR IN VIOLATION OF THE TEN- To my mind the persistent determination with URE-OF-OFFICE ACT? which the majority (and a small one it was) The first section of this;act reads as follows: insisted upon putting into those acts of 1789 a " That every-person holding any civil office to which clause impliedly giving the power of removal he has been appointed by and with the advice and to the President is the highest proof of their consent of the Senate, and every person who shall belief in the power ofCongress to legislate upon hereafter be appointed to any such office, and shall the subject, and that without legislation the become duly qualified to act therein, is and shall be that without legislation the entitled to hold such office until a successor shall President would not possess the authority to have been appointed by the President, with the ad- remove. If Congress was competent to grant vice and consent of the Senate, and duly qualified; the power to the President, are they not equally and that the Secretaries of State, of the Treasury, the power to the President, are they not equally of War, of the Navy, and of the Interior, the Post- competent to withhold it? master General and the'Attorney General, shall hold The only officers of the Government whose their offices respectively for and during the term of tenure s fixed by the Constitution are the the President by whom they may have been ap- is fixed by the Constitution are the pointed, and for one month thereafter, subject to President and Vice President and the judges removal by and with the advice and consent of the of the Supreme Court and such inferior courts as Congress may establish. (Art. 2 and 3.) It is urged by the accused, in order to evade The President and Vice President hold for four the necessary consequences attending a viola- years, but Congress may remove them by imtion of this act, first, that it is unconstitutional; peachment. The judges hold "during good and second, that it does not reach Mr. Stan- behavior," but who can decide the good or bad ton's case. behavior of judges except Congress? Congress The first of these points goes to the power cannot abridge the tenure of the office, but of Congress to enact any law on the subject of they can abridge the officer's tenure by imtenure of office, while the second is -a legal peaching him. quibble upon the language of the law, which This, sirs, is the only limitation upon Conthe respondent knows better than any one else gress anywhere to be found in the Constitution is a plain violation of the spirit and intent, not upon the subject of controlling official tenure. to say letter of the act. Let us consider briefly The Constitution is silent upon the subject these two points. of tenure. I hold, therefore, that the whole First: Is THE TENURE ACT CONSTITUTIONAL? power is vested in Congress to provide, whenItwould seem idle to discuss a question which, ever and however they choose, both for apso far as this Senate is concerned, is res adju- pointment to and removal from office. There dicata. I am surprised, sirs, to find counsel is not an officer mentionedin the second clause of such eminence as those pleading for the of the second article over whom Congress has accused coming before a court and rearguing not control in such manner as they may bylaw with pretentious hopes of reversing a decision provide, except in the cases mentioned. deliberately made by over two thirds of this Congress is perfectly competent to fix any body. Would they thus presume before the tenure it deems best to embassadors, ministers, Supreme Court of the United States? One of consuls, or. any other officers than those whose 543 term of office is fixed by the Constitution. the President, to courts of law, or heads of The section of the Constitution to which I have Departments in the other case, but in neither alluded only provides for the manner of ap- case do they say through the Constitution, pointment; it does not restrain Congress from directly or impliedly, that Congress, who create giving a tenure to the offices which it estab- the office, shall not adjust its tenure. The lishes, and to impose such restraint by impli- reason for giving the appointment of inferior cation is wholly unwarrantable. Nothing but officers into other hands than the Senate and the method of appointment is attempted to be President was to provide for speedy execution controlled. Suppose Congress should determ- of the law and for early action in filling the ine that the efficiency of our diplomatic sys- offices. Inferior officers were of less importtem is greatly impaired by the frequent and ance; they were numerous; vacancies were causeless changes made among ministers, em- constantly occurring, and hence the necessity bassadors, or consuls, and that the practice of of relieving the Senate and President from putting spies upon them, and crediting such acting jointly. But the reason for giving Conmythical men as McCracken, and recalling gress power to control the tenure of inferior ministers upon their statements, should be offices applies with much greater weight in the stopped-could no law be passed fixing their case of higher officers, whose wanton and tenure, requiring the President to advise with capricious removal may lead to:infinitely more the Senate before recalling the minister, leav- dangerous consequences. ing us unrepresented abroad, except where he If this view be correct, there can be nothing did so for good cause? left of the argument against the constitutionality The object of the Constitution was to pro- of the tenure act. In Marbury vs. Madison vide the means of filling offices which Con- the case of an officer appointed by the Presigress might establish. No intention was ex- dent and Senate is presented, where the law pressed to control absolutely the tenure of the also fixed the tenure of the office at five -years. office or prohibit Congress from prescribing In this case the court said: means of removal. "If the officer be removable at the will of the PresiIf Congress cannot do more than make the dent, then a new appointment may be immediately office and prescribe the duties incumbent upon made and the rights of the 6fficer teminated; -if the office and prescribe the duties incumbent upon officer is by law not removable at the will of the Presithe person filling it, in the matter of those offi- dent, the rights the officer has acquithred re protected cers referred to in the first part of section sec- by the law, and are not resumable by the President. ond, article second, how can Congress do more They cannot be extinguished by the Executive." in the creating of inferior officers spoken of This would be bad law if Congress were powin the last part of the section? It says, " Con- erless to fix a tenure, and it is no answer to gress may vest the appointment of such infe- say Congress may fix the number of years the ror officers as they think proper in the Presi- officer is to serve, for if the term of years can dent alone, in the courts of law, or in the be fixed so can the manner of his removal. heads of Departments." Suppose Congress If Congress can pass one step beyond the create a board of examiners to examine into power to create the office and provide for fillthe national banks, and give the President the ing it, then they can regulaie the tenure in power to appoint them. Congress has then any and all particulars. The question cannot exhausted all the directly-conferred power turn upon who are or who are not inferior given them by the letter of the Constitution, officers, for here we would be left in.a maze and they are powerless to fix the tenure here and labyrinth, and the President could shield if they are in the other cases. The argument himself behind a will-o'-the-wisp. The Con-uged is that the power to remove is incident stitution does not pretend to define who are to the power to appoint. The President by or who are not inferior officers, and the law appoints, and, therefore, he alone can fact that this is left undefined shows that terminate the officer's tenure. Congress, by the matter of controlling the tenure by congiving the President the power to appoint, is gressional enactment of either! the one or the estoppedfrom fixing the tenure, so as to con — other was not the question the framers had trol the President'sremoving prerogative. But, in mind. It was much discussed in 1789 as sirs, we know this is not true. The country is to whether the heads of Departments are infilled with officers, civil and military, some of ferior officers, and the result of the discussion them appointed by the President alone, others is doubtful. and really settled nothing. (1 by and with the advice and consent of the Sen- Lloyd's Debates, 480 to 600; Sergeant on Conate, and yet Congress, in these cases, has never stitution, ch. 29, (ch. 31;) 2 Lloyd's Debates, been held to be powerless to fix the tenure. 1 to 12.) But whether they are or are not Wherein is the difference between the Con- does not affect the question in hand.'Because stitution saying the President and Senate may this appointment is to be by both Senate and appoint certain officers created by law, or President does not settle it, else every petty the Constitution saying Congress may provide postmaster and collector in the country must means of filling certain offices? The will of be held to rank with embassadors, ministers, the people is expressed in the same manner and judges of the Supreme Court. What rule through the Constitution directly to the Presi- determines whether the General-in-Chief and dent and Senate in one case, and indirectly to all subordinate military officers are or are not 544 inferior officers? There is none. Tlre Army But this principle of recognizing the right or is a creature of law, and Congress has always power of Congress to legislate as to how an regulated it as it chose. Some of its officers officer is to be displaced had the sanction of were placed under the control of the War De- Mr.. Lincoln in the act of February 25, 1863, partment; some minor ones even appointed creating the office of Comptroller of the Curby the Secretary. Others were nominated to rency. It provides as follows: and confirmed by the Senate. In point of fact, "He shall be appointed by the President, on the however, officers of the Army are not regarded nomination of the Secretary of the Treasury, by and as inferior officers. yet Congress has regulated with the advice and consent of the Senate, and shall the woeAm sseipsgrhold his office for the term of two years, unless sooner the whole Army system, imposing restraints removed by the President, by and with the advice and upon the President in many ways with regard consent of the Senate." to it. The question came up in Mr. Monroe's This is not a power recently claimed by ConAdministration, and was discussed in his mes- gress. I have shown in another part of the sage of April 12, 1822. (1 Ex. Journal, 286.) argument that many unsuccessful efforts were The Senate disagreed with Mr. Monroe, and made at different periods of our national hisheld that Congress had the right to fix the tory to pass laws similar to the present tenure rule as to promotions and appointments as act, and they were supported by members of well as to reductions in the Army, and that all shades of politics. The constitutionality this right had, to that time, never been dis-of such laws was not questioned, but the bills puted by any President. It is true this was always failed from executive influences brought claimed under the general power to make all to bear upon Congress. Mr. Benton was an needful rules and regulations for the govern- earnest advocate of a tenure act limiting execument of the Army, but that clause of the Con- tive control over appointments and removals. Ltitution confers no more executive control Mr. Clay and Mr. Webster have left upon the on Congress in respect to the Army than does records ofthe Senate arguments not only showthe clause which provides that Congress shall ing the constitutionality of such laws, but giving establish post offices and post roads over the the most weighty reasons for passing them upon manner of appointing postmasters. the grounds of public policy and safety. Story says, (sec. 1537:) In 1835 a lengthy discussion occurred upon "As far as Congress possesses the power to regu- an amendment offered by Mr. Clay to a pendlate and delegate the appointment of inferior officers, so far they may prescribe the term of office, the man- ing bil which embraced every principle of the ner in which and the persons by whom the removal present tenure act. I will be pardoned for as well as the appointment to office may be made." giving a condensed statement of the view taken But, as we have seen, the clause of the Con- at that time by three Senators who particistitution on this subject does not define who pated in the discussion, as giving briefly the are inferior officers, and does not separate whole argument upon this question. Mr. Clay them from other officers, with any view to give supported his position by the following arguCongress greater control over their tenure than ments, among others: in other cases, we are brought back again to "It is legislative authority which creates the office my position, that there is no restraint upon defines its duties, and may prescribe its duration. I the tenure in the onc speak, of' course, of offices not created by the ConstiCongress to regulate the tenure in the one case tution. but the law. The office coming into existence more than the other. by the will of Congress, the same will may provide The officers of the army then coming within how and in what manner the office and officer shall he lass titled superior, as distinguished from cease to exist. It may direct the conditions on which the class titled sutperior, as distinguished from he shall hold the office and when and how he shall inferior, they are to be placed beside and are be dismissed. Suppose the Constitution had omitted to rank with embassadors, ministers, Cabinet to prescribe thetenure of the judicial oath, could not officers, &c., and if Congress is competent to Congress do it? officers, &c., and if Congress is competent to n" But the Constitution has not fixed the tenure of control the tenure of the one it is of the other. any subordinate officers, and therefore Congress may Unfortunately for the consistency of the re- supply the omission. It would be unreasonable to contend that although Congress, in pursuance of the spondent's special plea, he is on the record public good, brings the office and the officer into be-.against himself..ing and assigns their purposes, yet the President has By the act of July 13, 1866, section five, it is a control over the officer which Congresscannot reach and regulate." * * "The precedent provided that- of 1789 was established in the House of Representa"No officer in the military or naval service shall, tives against the opinion of a large and able minorin time of peace, be. dismissed from service except ity, and in the Senate by the casting vote of the Vice upon, and in pursuance of, the sentence of a court- President, John Adams. It is impossible to read the martial to that effect or in commutation therefor" debate which it occasioned without being impressed with the conviction that the just confidence reposed Here is a direct inroad upon the prerogative in the father of his country, then at the head of the of the President as now set up, and admits Government, had great, if not decisive, influence in the whole principle'here contended for. Where establishing it. It has never, priorto the commencement of the present Administration, been submitted were the vigilant advisers of the President to the process of review." ** "No one when he approved the bill and made it law? can carefully examine the debate in the House of VWas there no genius of executive prerogatives Representatives in 1789 without being struck with as there no genius of executive prerogatives the superiority of the argument on the side of the near to whisper "Veto?" Was the facile logic minority, and the unsatisfactory nature of that of of the law officer of the President reserving the majority." itself for this occasion? Daniel Webster agreed with Mr. Clay in his 545 position in the following language used by him he did it in direct defiance of the solemn judgon the occasion: ment of this Senate; and.he to-day defies this "I think, then, sir, that the power of appointment judgment by denouncing the tenure act as naturally and necessarily includes the power of re- unconstitutional. But the accused says even moval where b ~no limitation is expressed nor any if the tenure act be held constitutional, still tenure but that at will declared. The power of appointment being conferred on the President and he is guiltless, because it does not apply to Senate I think the power of removalwent along with the case of Mr. Stanton; and this brings me to it, and should have been regarded as apart of it, and exercised by the same hands. I think the Legislature inquirepossesses the power of regulating the condition, dura- Second. DOES THE TENURE ACT APPLY TO THE tion, qualification, and tenure of office in all cases PRESENT SECRETARY OF WAR? where the Constitution has made no express pro- It i a new method of ascertaining the meanvision on the subject. I am, therefore, of opinion that it is competent for Congress to decide by law, as ing of a law, plain upon its face, by resorting one qualification of the tenure of office, that the in- to legislative discussions, and givingin evidence cumbent shall remain in place till the President shall opinions of persons affected by the law. As a remove him for reasons to be stated to the Senate. pn s affected by the law. A a And I am of opinion that this qualification, mild and matter of fact, it is well known the act was ingentle as it is, will have some effect in arresting the tended to prevent the very thing Mr. Johnson evils which beset the progress of the Government attempted in the matter of Mr. Stanton's reand seriously threaten its future prosperity." moval. I think this manner of defense will This view was sustained by Hon. Thomas not avail before this Senate. The law must Ewing of Ohio: govern in its natural and plain intendment, and "Mr. Ewing spoke at length upon the question of will not be frittered away by extraneous interremovals, maintaining that the Constitution does not pretation. The President n his veto messa confer on the President alone thepower of removal; pretation. The President in his veto message that is a matter of legislative provision, subject to be admits substantially this construction. vested, modified, changed, or taken away at their The proviso does not change the general prowill; and ifitis not regulated at all bylaw, itrests in visions of the act except by giving a more efithe President, in conjunction withthe Senate, as partons of the act exceptbygiving a more def of the appointing power." nite limit to the term of office, but the last paraThe respondent cannot, I think, find support graph of the act puts the whole question back in any precedent or decision, or by any right into the hands of the Senate according to the construction of the Constitution. What, then, general intention of the act, and provides that becomes of his reliance upon these in defense even the Secretaries are "subject to removal of his willful violations of the act? He stands by and with the advice and consent of the convicted by his own confession. Did he make Senate." a mistake in his research, and did he innocently The act first provides that all persons holdmisinterpret the Constitution? These thmis- ng civil offices at the date of its passage aptakes and these innocent misinterpretations are pointed by and with the advice and consent of too erious to be thus condoned. To admit the Senate shall only be removed in the same them as a good defense would emasculate every manner. This applies to theSecretary of War. criminal law in the land, and leave all public The proviso merely gives a tenure running with officers free to misinterpret statutes with im-the term of the President andonemonththerepunity, and, no matter what the consequences, after, subject to removal by the advice and conthey could shield themselves from'punishment. sent of the Senate. The law clearly gives Mr. Mdr. Johnson's pretended prototype, Jackson, Stanton a right to the office from the 4th of did not so understand the law. When the Senate March, 1865, till one month after the 4th of passed the resolution declaring his removal of March, 1869, and he can only be disturbed i his Secretary of the Treasury, Mr. Duane, a that tenure by the President by and with the usutipation, Jackson regarded it as equivalent advice and consent of the Senate. to impeachment. In his protest to the Senate Yet, although Mr. Stanton was appointed by he said- 41r. Lincoln in his first term, when there was " That the resolution does not expressly allege that no tenure to the office fixed by law, and conthe assumption of power and authority which it con- tinued by Mr. Lincohi in his second term, it is demns was intentional and corrupt, is no answer to argued that his term expired one month after the preceding view of its character and effect. The the passage of the tenure-of-office act, March act thus condemned necessarily implies volition and design in the individual to whom it is imputed, and, 2, 1867, for the reason that Mr. Lincoln's term being unlawful in its character, the legal conclusion expired at his death. This is false reasoning; is, that it was prompted by improper motives, and the Constitution fixes the term of the President committed with an unlawful intent. The charge is not of a mistake in the exercise of supposed powers, at four years, and by law the commencement but of the assumption of powers not conferred by the of his term is the 4th of March. Will it be said Constitution and laws, but in derogation of both, and that when Mr. Johnson is deposed by a verdict nothing is suggested to excuse or palliate the turpi- of tude of the act. In the absence of any such excuse the Senate that the officer who will succeed or palliation there is room only for one inference, him will serve for four years? Certainly not. andthatis, thattheintentwas unlawfulandcorrupt." Why? Because he will have no presidential I cannot believe the respondent relies upon term, and will be merely serving out a part of this plea of innocent intent as amounting even the'unexpired term of Mr. Lincoln, and will to a shadow of defense. He not only took the go out of office 4th of March, 1869, at the time risk of construing the Constitution upon a ques- Mr. Lincoln would have retired by expiration tion not settled by any judicial decision, but of his term, had he lived. C. I. —35. 546 I give section ten of the act of March 1, 1792, the following official order to Edwin M. Stanton, which settles the question whether the term Secretary of War: ceases with the death or resignation of the Pres- EXECUTIVE MANSION, ident, which so clearly decides the matter and WASHINGTON, D. C., February 21, 1868. settles it that no argument is necessary further in me: Bs irtue byof the powernst itution and laws of on the subject: the United States, you are hereby removed from office as Secretary for the Department of War, and "SEC. 10. And be itfurther enacted, That whenever your functions as such will terminate upon the rethe offices of President or Vice President shall both ceipt of this communication. become vacant the Secretary of State shall forthwith You will transfer to Brevet Major General Lorenzo cause a notification thereof to be made to the execu- Thomas, Adjutant General of the Army, who has tive of every State, and shall also cause the same to this day been authorized and empowered to act as be publishedin at leastone of thenewspapers printed Secretary of War ad interim, all records, books, in each State, specifying that electors of the Presi- papers, and other property now in your custody and dentof the United States shall be appointed or chosen charge. in the several States within thirty-four days preced- Respectfully, yours, ANDREW JOHNSON. ing the first Wednesday in December then next ensuing: Provided, Thereshallbeth e spaceoftwomonths Hon. EDWIN M. STANTON, Washington, D. C. between the date of suchnotification and the said first Upon the same day he sent to Lorenzo Wednesday in December; butif there shall not be the space of two months between the date of such notifi- Thomas, Adjutant General of the. Army, the cation and the first Wednesday in December, and if following order: the term for which the President and Vice President EECUTIVE MANSION, last in office were elected shall not expire on the 3d WASHINGTON, D. C,, February 21,1868. day of March next ensuing, then the Secretary of State shall specifyinthenotificationthattheelectors SIR: HIon. Edwin M. Stanton having been this day shall be appointed or chosen within thirty-four days removed from the office as Secretary for the Departpreceding the first Wednesday in December in the ment of Waryou are herebyauthorized and empowyear next ensuing, within which time the electors ered to act as Secretary of War ad interim, and will shall accordingly be appointed or chosen, and the immediately enter upon the discharge of the duties electors shall meet and give their votes on the pertaining to that office. said first Wednesday in December, and the pro- Mr. Stanton has been instructed to transfer to you ceedings and-duties of the said electors and others all the records, books, papers, and other public propshall be pursuant to the directions prescribed in erty now in his custody and charge. this act." Respectfully, yours, ANDREW JOHNSON. Brevet Major General LORENZO THOMAS, Adjutant This law settles certainly the question, if General United States Army, Washington, D. C. any doubt existed before, that the term does "Every person holding any civil office, to which not expire on the death or resignation of the he has appointed by and with the advice and consent President, but continues as his term the four of the Senate," * * * "is and shall be entitled to hold such office until a successor shall years. have been in like manner appointed and duly qualiBut I will not argue this question at more fled." length. If the judgment of men, deliberately This plain and not to be misunderstood proexpressed, can ever be relied upon, I think it vision of the law is violated. The order for resafe to assume that this Senate will not reverse moval was made absolute and without condiits judgment so recently expressed upon the tion. The President ignored all " advice and constitutionality and meaning of the tenure consent of the Senate," and planted himself act. The only question, then, which remains upon his own opinion as to his inherent power is simply this: has the accused violated that to act outside of the law and in violation of it; act? No one knows better than this accused and his answer so confesses. The proofs of the history of, and the purpose to be secured his guilt are therefore placed beyond dispute. by, that act. It was ably and exhaustively What, sirs, says the law with regard to the discussed on both sides, in all aspects. In the crime involved in such conduct? The sixth debates of Congress it was subsequently re- section of the same act declares that " every viewed and closely analyzed in a veto message removal" "made" " contrary to the provisof the respondent. No portion of that apt ions of this act" " is hereby declared to be a escaped his remark, and no practical applica- high misdemeanor." tion which has been made of it since did he Upon these facts, and in the face of this fail to anticipate. He knew before he attempted law, can there be a doubt that the charge is its violation that more than three fourths of fully sustained? Need we pursue the questhe Representatives of the people in Congress tion of intent, when by the terms of the law assembled had set their seal of disapprobation the mere act of removal, in violation of it, is upon the reasons given in the veto message declared a " high misdemeanor?" But, sirs, and had enacted the law by more than the con- we do not shrink from an examination into the stitutional number of votes required. Nay, motives which actuated this accused. The more; he was repeatedly warned, by investi- history of his public acts since the passage of gations made looking toward just such a pro- this law is crowded with evidences of his guilty ceeding as is now being witnessed in this court, intent. To-day, with the fear of that law bethat the people had instructed their Represent- fore his eyes, he conforms strictly to its reatives to tolerate no violation of the laws con- quirements; to-morrow he openly defies it and stitutionally enacted. What, then, is the vio- declares his purpose not to be governed by it: lation here charged upon this respondent, and and, with the strangest inconsistency and indewhat are the proofs to sustain it? Upon the cision of character, he wavers between the 21st day of February, 1868, the respondent sent I plainest duty pointed out by law and the rash 547 est contempt of all law. We have shown by 13th of January to the 21st of February he was the testimony that under his instructions the scheming and devising-means to thwart the chiefs of the Departments changed the forms vote of this Senate and to dispossess the Seeof official bonds of commissions and letters of retary of War in disregard of the law, and yet appointment to adapt them to the requirements to evade, if possible, the punishment conseof this law. We have seen that within five quent upon its violation. The law told him if months after its passage he suspended the Sec- he should remove the Secretary he must do so retary of War and notified the several Execu- "by and with the advice and consent of the tive Departments that he had done so under Senate." He knew by the previous vote of the provisions of this act. We have seen that that body that no such " advice and consent" hundreds of commissions, to fill various offices, would be given. He, therefore, not only adwere issued under his sign manual, distinctly monished by the Senate, but directed by the recognizing the provisions of this act. Yet, in law, usurped apower nowhere given, and issued defiance of the law, and in disregard of his hismandate accordingly. With what effrontery own repeated recognition of it, he asks this then comes in the plea that his only motive Senate to hold him guiltless. Do the annals was to innocently assert his prerogatives? Was of criminal trials anywhere present so mon- the War Department to be made a mere playstrous an absurdity? thing in the hands of the Eecutive? Was But the circumstances connected with this the machinery of that vast Department to halt removal are themselves proof positive of a and its chief officer to subject himself to a trial criminal purpose. Upon the 12th of August, for neglect of duty, while Mr. Johnson would 1867, the President suspended the Secretary amuse himself with preparing a case for the of War and appointed General Grant the ad courts? Did he not know that the law enjoined interim Secretary. This suspension purported duties upon the Secretary which he could notlay to be in conformity to the law, and was acqui- aside? Could he have for a moment supposed esced in. Under the provisions of the second that that officer would tamely submit to an order section of the "tenure act," this removal was for removal in which he had every reason to reported to the Senate within twenty days after believe the Senate would not concur? No, sir; its next meeting. The reasons assigned by he comprehended fully the length and breadth the President were duly considered by the Sen- of the offense he was then committing. He ate, and the following resolution communicated saw then, as plainly as he sees now, what would to the President as their decision: be the legal consequences of his act, and only IN EXECUTIVE SESSION, hoped to shield himself behind that forbearance SENATE OF THE UNITED STATES, which he had mistaken for cowardice on the January 13, 1868. part of the representatives of the people. Resolved, That, having considered the evidence But, Mr. President and Senators, this inquiry and reasons given by the I'resident in his report of is relieved of all doubts; the question is res the 12th of December, 1867, for the suspeqsion from the office of Secretary of War of Edwin M. Stanton, adjudicata, and I have simply to read the dethe Senate do not concur in such suspension. cision rendered upon the same day this highAttested. handed attempt at usurpation was made: The law says in such case, " but if the Sen- IN XECUTIVE SESSION, ate shall refuse to concur in such suspension, SENATE OF THE UNITED STATES, such officer so suspended shall resume the February 21, 1868. functions of his office, and the powers of the Whereas the Senate have received and considered functions of his ofcicand the powers of th the communication of the President stating that he person so performing its duties shall cease." had removed Edwin M. Stanton, Secretary of War, The Secretary ad interim vacated the office and had designated the Adjutant General of the accordingly, and the suspended Secretary re- Army to act as Secretary of Warrad interim: Theresumed his duties. I will not stop now to speak Resolved by the Senate of the United States, That, unof the unmanly and disgraceful attempt made der the Constitution and laws of the United States. by the President and his Cabinet cabal to trick the President has no power to remove the Secretary of War and to designate any other officer to perform the General-in- Chief into a violation of the law the duties of that office ad interim. and to force upon Mr. Stanton the alternative REMARKS UPON ARTICLE SECOND. of submitting to an indirect removal from office REMARLS UPON ARTICLE SECOND. under cover of his suspension, or resorting to Let us pass to notice briefly article second. under cover of his suspension, or resorting to legal proceedings through the curts which The respondent is here charged with violating legal proceedings through the courts which the tenure-of-office act in the appointment of could not possibly have ended during the pres- Lorenzo Thomas as Secretaryf War on the ent Administration. The history of al crimTinals illustrates a constant struggle between 21st of February, 1868, there being no vacancy inals illustrates a constant struggle between in said office. The letter of appointment is crime and cowardice-the desire to commit the in said office. The letter of appointment is crime and the fear of the consequences that may EXECUTIvE MANSION, follow. The criminal intent to disregard the WASHINGTON, D. C., February 21, 1861. law was never tnore manifest in the mind of SIR: Hon. Edwin M. Stanton having been this day the accused than at this time; but his dread of removed from the office as Secretary for the Departpunishment deterred him from the overt act. ment of War, you are hereby authorized and empowered to act as Secretary of War ad interim and will The answer of the respondent and the proofs immediately enter upon the discharge of the duties spread upon the record show that from the pertaining to that office. ,548 Mr. Stanton has been instructed to transfer to you not only violated the tenure act, but he has all therecords, books, papers, and other public prop- violated the very law under which he claims erty now in his custody and charge. Nothing Respectfully yours, ANDREW JOHNSON. immunity. Nothing can beplainer, andnothBrevet Major General LORENZO THOMAS, Adjutant ing exhibits more strongly the utter hollowness General United States Army, Washington, D. C. of his defense. This appointment was made simultaneously ARTICLE THIRD. with the removal of Mr. Stanton; it was made The next and third article charges the Preswith the full knowledge that no vacancy ex- ident with a violation of the Constitution of isted, and that the Senate had so decided; it the United States in the appointment of Lowas made in defiance of all those repeated renzo Thomas as Secretary of War whilp the warnings to which I have alluded —that the Senate was in session, no vacancy having ocCongress of the United States would regard curred during the recess of the Senate, and no the act as an open violation of law; it was made vacancy existing at the time. The facts alleged with every reasonable apprehension on his part. are not controverted; the question presented that it would lead almost inevitably to his im- to the Senate under this article involves the peachment. Indeed, in this act, as well aas proper construction of our fundamental law. others now laid down to his charge, he seems I have previously addressed myself-to the Sennot only to hde defied, but to have courted ate upon this subject, and will not again enter impeachment. upon it. The law told him here, as plainly as it told The line of inquiry is very simple. If this him in the matter of removal, that his act was accused has violated a law constitutionally endenounced as a high misdemeanor in office. It acted, then has he violated the Constitution told him more. It said to the person who itself. He has sworn to support the Constituwould accept such appointment and attempt tion, and by that oath he is enjoined to " take to discharge duties under it, would thereby care that the laws are faithfully executed."'himself commit:a high misdemeanor in office. He cannot support the Constitution and defy This respondent was, therefore, guilty of the the laws enacted pursuant to it any more than double crime of himself violating the law and he can execute the laws faithfully and violate inducing others to join him in the criminal act. the Constitution. The duties are blended, and Section six of the tenure act says: he cannot violate one without violating the " Every removal, appointment, or employment other. If he be guilty under either the first made, had, or received, contrary to the provisions or second article, he is guilty of the offense of this act, and the making, signing, sealing, coun- charged in the third. tersigning, or issuing of any commission or letter of authority for or in respect to any such appointment ARTICLES FOURTH, FIFTH, SIXTH, AND SEVENTH. or employment, shall be deemed and are hereby de- The four succeeding charges allege conclared to be high misdemeanors." spiracy between the respondent and Lorenzo What defense is made' for the palpable viola- Thomas and others unknown: tion of the law now shown? ~ The respondent First.'By force, intimidation, and threats goes back to the act of February 13, 1795, and unlawfully to hinder Edwin M. Stanton, then rests his case upon that law, which provides Secretary of War, from holding said office, as follows, (1 Statuteg-at-Large, p. 415:) contrary to the provisions of an act to prevent Be it enacted b! the Senate and House of Representa- and punish certain conspiracies, approved tives of the United States of America in Congress assem- July 31, 1861. bled, That in case of vacancy in the office of Secre- Secod.To prevent and hinder the executary of State, Secretary of the Treasury, or of the Secretary of the Department of War, or of any officer tion of an act regulating the tenure of certain of either of the said Departments whose appoint- civil offices, passed March 2, 1867, by attemptment is not in the head thereof, whereby they cannotfully to prevent Edwin M. Stanton, perform the duties of their' said respective offices, it ing unlawfully to prevent Edwin M. Stanton, shall be lawful for the President of the United States, then Secretary of War, from holding said in case he shall think it necessary, to authorize any office. person or persons, at his discretion, to perform the. By force to sd posess duties of the said respective offices until a successor Third. By force to seize, take, and possess be appointed or such vacancy be filled: Provided, the property of the United States in the DeThat no one vancancy shall be supplied, in manner partment of War, then and there in the cusaforesaid, for a longer term than six months."Stanton, Secretary of the tody of Edwin M.:Stanton, Secretary of the But by the very terms of the act of 1795 this Department of War, contrary to an act to define respondent can there find no defense; that law and punish certain conspiracies, approved says, "in case of vacancy in the office of Sec- July 31, 1861. retary of the Department of War whereby -Iourth. To seize, take, -and possess'the he cannot perform the duties of said office, it property of the United States in the Departshall be lawful for the President to authorize ment of War, and in custody of said Stanton, any person to perform its duties." We see, with intent to disregard and violate an act then, there must bea vacancy in the office, or iegulating the tenure of certain civil offices, a disability on the part of the Secretary to act passed March 2, 1867. before the President can make such an appoint- That part of the conspiracy act which defines ment. There was neither a vacancy nor a dis- the offenses here charged is as follows: ability existing at the time Lorenzo Thomas "That if two or more persons, within any State or was appointed. This respondent, then, has Territory of the United States, shall conspire to 549 gether" * * * * "to oppose by force thing appear more clearly than another in the the authorityof the Government of the UnitedStates, testimony it is that he fully anticipated a forcor by force to prevent, hinder, or delaythe execution contest in order to succeed. He was of any law of the United States, or by force to seize, ible take, or possess any property of the United States, clothed with ample authority by the President against the will or contrary to the authority of the to do this. It will not do to say that General United States, or by force or intimidation or threat Thomas's order was in the usual form, a to prevent any person from accepting or holding any Thomas's order was in the usual form, and office or trust or place of confidence under the therefore the President only expected of him United States, each and every person so offending the usual compliance with the order, for Thoma~ knew that not onlyin the opinion of his General-. The acts which he has himself admitted to in-Chief and the rightful Secretary of War, but, have done and those proved against him by in the solemnly declared judgment of Congress, the undisputed testimony of witnesses bring that order was but blank paper; when, therehis conduct within the letter of the law. No fore, we find him declaring a purpose to resort, other result could have followed his conduct- to force, he only stated what was necessary to. it tended directly to "hinder and delay the make the order of the slightest use. No one, execution of" the tenure act. He had no knew better than Thomas the consequences of other purpose than to " seize, take, and possess even accepting such an order, and the mere the property of the United States in the War agreement between the President and himself, Department, against the will and contrary to the one to issue the order and the other to acthe authority of the United States, then in the'cept it and to enter upon its execution, both lawful custody of the Secretary of War, and as knowing it to be unlawful, is of itself enough.. placed there by the highest authority in the to hold both responsible for the manner in which. land. And it is equally evident that his design either attempted to execute it. But his conwas to prevent Edwin M. Stanton from hold- versation with Mr. BURLEIGHWas not.merely thi ing the office to which he had been legally idle talk of a garrulous old man, drawn out of appointed, and from which he had not been him by an inquisitive interlocutor, for we find. and could not be legally removed. We are that on the same day, and previous to his con-. not, then, to inquire at this time whether he is versation with BURLEIGH, he had a conversation guilty of a high misdemeanor in doing these with Samuel Wilkeson, in which, after somethings, which have been made the gravamen hesitation, he told that witness substantially of the first three.articles; but we are to see the same thing on two different occasions. whether he has unlawfully conspired, by force I quote briefly from his testimony, pages or intimidation or threat, to attempt the ac- 212, 213: complishment of these objects. complishment ofare these objevidences of a cnspiracy? "The WITNESS. I asked him to tell me what had What are the evidences of - a conspiracy? occurred that morning between him and the SecreIt may be well first to inquire, what is a con- taryof War in his endeavor to take possession of the spiracy? Under articles fourth and sixth we War Department. He hesitated to do so till I told are confined in our definition to a cons piac him that the town was filled with rumors of the piracy..change that had been made, of the removal of Mr. or agreement by force to do the things alleged. Stanton and the appointment of himself. He then Under the fifth and seventh articles of im- said that since the affair had become public he felt peachment the broader rule of the common relieved to speak to me with freedom about it. He..... peachment te broader r u eothommondrew from his pocket a copy, or rather the original, law is applicable. Leaving the discussion of of the order of the President of the United States, lt hose articles for their proper place, let us directing him to take possession of the War Departinquire whether there is a conspiracy proved ment immediately. He told me that he had taken as a witness of his action General Williams, and had in violation of the act of 1861. To determine gone up into the War Department and had shown this there must be grouped about: the accused to Edwin M. Stanton the orderof the President, and all he circumstances tnding to expl had demanded, by virtue of that order, the possesall the circumstances tending to explain his sion of the War Depar'tment and itsboksdeh pasion of the War Department and its books and paconduct. pers. He told me that Edwin M. Stanton, after reads From the very nature of the crime its perpe- ing the order, had asked him if he Would allow to him sufficient time for him to gather together his trators would carefullyabstain from leaving any books, papers, and other personal property and take trace of their original purpose, We are, then, them away with him; that hetold himthat hewould to scan the circumstances surrounding the trans- allow to him all necessary time to do so, and had then withdrawn from M;r Stanton's room. He furaction; we are to inquire into the character of ther told me, that day being Friday, that the next the. act to be performed, the means and the day would be what he called a dies non, being the instrument employed, the declarations of the holiday of the anniversary of Washington's bii'thday, when he had directed that the War Department cqonspirators before and since, the mind and should be closed; that the day thereafter would be temper of the accused, as well as hiscoconspir-. Sunday, and that on Monday morning he should ators, and everything that can throw light-upon demand possession of the War Department and of its property, and if that demand was refused orresisted their motives and intentions. What are these he should apply to the General-in-Chief of the Army circumstances, acts, and declarations? for a force sufficient to enable him to take possession * Here we find the unmistakable declaration of the War Department; and he added that he did f Herewe find th e uonmpir s takable declaration not see how the General of the Army could refuse to of one of the conspirators that he intended to obey his demand forthat force. He then added that use force; that should.the doors of the Depart- under the order that the President had given to him ment be barred against him he would break them he had no election to pursue any other course than the one that he indicated; that he was a subordinate down. When he made this declaration he bad offaer directed bye an order from a superior officer, been once refused possessio, and if any onQ ia tl.4 e ixnt prme that course.". 550 Here we find not only the purpose to use is madethe subject-matter of a separate article, force distinctly declared, but that, under the and I will not give it at length in this place. " order the President had given him, he had But I urge that no man cancead General Emno election to pursue any other course." I ory's narrative of what then transpired in the ask how he could have spoken truthfully and light of the circumstances surrounding this have made any other declaration, when it is case and not feel himself driven to the conpatent that no other course could have been clusion that the President meant to use the successful? It does not seem to me that this military force of this department through that view of the case could be made to appear more officer to carry out his unlawful design; and clear by illustration; and yet let me put a par- nothing but the indirect rebuke administered allel case. by General Emory, and his avowed purpose Suppose Andrew Johnson had determined made to the President to obey no orders except to possess himself of the Capitol with a view they should comethrough the General-in-Chief, of ousting Congress, and had directed the as by law provided, deterred the accused from Speaker of the House of Representatives and then and there directing him to marshal his the President of the Senate to turn over all the forces, if necessary, for the expulsion of Mr. records, and had directed Thomas to take im- Stanton. mediate possession. Such an order would be While this remarkable scene was transpiring no less unlawful, in one view of the tenure act, in the Executive Mansion, another not less rethan the one he gave. Could anybody doubt markable was being enacted by the tool of the that such an order would mean revolution, and President at the War Department. There were that a clash of arms must follow if it were many witnesses present, most of whom have executed; and, if such thing followed, that testified. As they concur substantially in their Mr. Johnson would be directly chargeable with testimony, I will give that of but one of them, the consequences? Would not force appear Hon THOMAS W. FERRY. (See page 224.) all over the order, though the word were not " In the presence of Secretary Stanton, Judge KELwritten? If the officer charged with executing LEY, MOORHEAD. DODGE, VAN WYCK, VAN HORN, such order declared, after receiving it, that he Delano, and Freeman Clarke, at twenty-five minintended to use force, would any sane man set utes past twelve min., General Thomas, Adjutant Genintended to use force, would any sane man set eral, came into the Secretary of War Office, saying.'up that the President must notbe held account-'Good morning,'the Secretary replying,'Goodmornable for the declarations of such officer when ing, sir.' Thomas looked around and said,'I do not they were declarations showitg the only means wish to disturb these gentlemen, and will wait.' Stanthey were declarations showing the only means dton said,' Nothing privatehere; what doyouwant.sir?' of accomplishing the object? Let me ask "Thomas demanded of Secretary Stanton the surwherein this hypothetical case is not covered render of the Secretary of War Office. Stanton deby that at bar? Mr. Stanton was intrenched nied it to him, and ordered him back to his own office ~~~by thtatbr r Sato a as Adjutant General. Thomas refused to go.'I behind the law as securely as is Congress; he claim the office of Secretary of War, and demand it had frequently declared that he would not yield by order of the President.' except to superior force. I say, then, that STANTON.'I deny yourauthority toact, andorder you back to your own office.' when the President ordered Thomas to take T"THo~As. *I will stand here. I want no unpleasimmediate possession of the War Department antness in the presence of these gentlemen.' "STAnTON.' You can stand there if you please, but he gave him a carte blanche to do whatever he you cannot act as Secretary of W ar. I am Secretary thought necessary to accomplish his purpose, ofWar. I order you out ofthis office, and to yourown.' and Thomas only echoed his coconspirator "THOMAS.'I refuse to go, and will stand here.' when he talked with BURLEIGH and Wilkeson. STANTON.'How are you to get possession; do you when he talked with BURLEIGH and Wilkeson. mean to use force?' But General Thomas not only communicated " THOMAS.'I do not care to use force, but my mind his purpose to BURLEIGH, but he afterward told is made up as to what I shall do. I want no unthis witness why he had not executed his plan. pleasantness though. I shall stay here and act as this witness why he had not executed his plan. Secretary of War.' Witness says (page 210) that he (Thomas) told " STANTON.'You shall not, and I order you, as your him that the only thing that prevented his superior, back to your own office.' "THoMAS.'I will not obey you, but will stand taking possession of the War Department on here, and remain here. the morning he had invited BURLEIGH to be "STANTON.'You can stand there, as you please. I present was because of bis arrest by the United order you out of this office to your own. I am SeSates marshal at an unusually early hour. retary of War, and your superior.' States marshal at an unusually early hour. ra" Thomas then went into opposite room across hall At this point, before noticing the attempt (General Schriver's) and commenced ordering Genof Thomas to seize the War Department on eral Schriver and General E. D. Townsend. Stanton the morni of the 22 f Febuaryese entered, followed by MOORHEAD and FERRY, and orthe morning of the 22d of February, I desire dered those Generals not to obey or pay attention to to call attention to a fact in evidence showing General Thomas's orders; that he denied his assumed a perfect concurrence of mind between the authority as Secretary of Waradsinterim, and forbade their obedience of his directions.'I am Secretary President and his coconspirator, Thomas. On of War, and I now order you, General Thomas, out the morning of the 22d, the President's Pri- of this office to your own quarters.' vate Secretary addressed a note, by direction "THOMAS.'I will not go. I shall discharge the. functions of Secretary of War.' of the President, to General Emory, in com- "Sf ANTOn.'You will not.' mand of the military forces of the department. "THOMAs.'I shall require the mails of the War General Emory responded in person, and met Department to be delivered to me, and shall transact the business of the office.' the President About the same hour that Thomas "6STANTON.'You shall not have them, and I order entered the War Department. That interview you to your own office."' 551 Gentlemen of the Senate, was this the to clothe this offense with something abhormethod of executing an ordinary command of rent to public sentiment* and'we are told that an officer delivered to him for an ordinary pur- persons ma~ be jointly engaged in the most pose? Did Thomas assume this belligerent heinous crimes, and yet we must be cautious attitude and enter upon this despicable busi- before convicting them of a conspiracy. This ness in such violent manner without having is an appeal to popular prejudice; and is nobeen instructed to do so, if necessary, by the where to be derived from the books and decisman whose orders he was executing? Is it ions upon criminal law. The accused could not probable that at the very moment he was not himself carry out his unlawful purpose; he bullying the Secretary of War and ordering was forced to select an accomplice. He made General Schriver and General Townsend to that selection, the agreement was entered into, recognize him as the rightful Secretary he was the requisite order issued, the two minds met, expecting the force necessary to maintain and one of the parties entered upon the design his authority from General Emory, who, he to be accomplished, and that design beiqg an thought, was receiving instructions from the unlawful one the conspiracy was complete. President to that effect? Sirs, this coincidence The tenure-of-office act, in its fifth and sixth and concurrence of action between the Presi- sections, denounces as /thigh misdemeanor the dent and Thomas on that morning is suscep- very acts which are proved to have been comtible of no reasonable solution other than that mitted by the President. Were it not for the they meditated the use of force and were avail- rule bf law which protects him while in his high ing themselves of every possible means to office from a criminal prosecution before a jury obtain it. of his countrymen he could upon his own anNow, sirs, I do not desire to pursue this swer be convicted and sentenced to imprisoninquiry further. If there was a conspiracy ment. And so, also, could Lorenzo Thomas. between these parties to take possession of the How1 then, can he escape conviction before War Department by force, as I think has been this court which can properly try him, simply fully shown by the evidence at this trial, then because he has united wlth one or more'perthat conspiracy must be held to extend neces- sons to commit the offense? All the evidence sarily to the charges laid in the fourth and which has been presented under the fourth and sixth articles, and they need not be separately sixth articles applies with greater weight to discussed. the fifth and seventh. And should it be found I will now briefly notice the charge laid in not to establish that he conspired by force to articles five and seven. The President is here remove Mr. Stanton, it by no means follows charged with conspiring with Lorenzo Thomas that he did not conspire at all. Itwould seem and others unknown to seize, take, and possess to me a work of supererogation to add to the the property of the United States in the De- grouping of guilty circumstances already given partment of War, and to hinder and prevent to intensify the proofs of complicity. Edwin M. Stanton, the Secretary of said De- The accused has admitted in his answer that partment, from holding his said office; this in on and before August 5, 1867, " he became violation of the civil-tenure act. In these satisfied that he could not allow the said Stancharges there is no allegation of force being ton to continue to hold the office of Secretary meditated, as was necessary in alleging the of the War Department;" "that he did neviolation of the conspiracy act. The offense cessarily consider and determine that the said charged, then, consists simply in an agreement Stanton ought no longer to hold the said office;" to do an unlawful act in an unlawful manner. "and to give effect to such his decision and It does not matter what means were contem- determination he did address the said Stanton plated nor what used. It is enough to know a note," &c., following: that the act and the manner of its accomplish- "Sin: Public considerations of a high character ment were unlawful. constrain me to say that your resignation as SecreThe evidence already adduced, and the laws tary of War will be accepted." cited, showv that at the time the accused at- To which Mr. Stanton, on the same day, tempted Mr. Stanton's removal he was law- said: fully in possession of his office. The evidence."In reply, I have the honor to say that public and the laws noticed also show that the accused considerations of a high character, which alone have had eheausnted e galso mn tot reme induced me to continue at the head of this Departhad exhausted every legal means to remove ment, constrain me not to resign the office of SecreMr. Stanton. I say, then, that Mr. Johnson tary of War before the next meeting of Congress." could take no step beyond these which would Here was the first step pursuant to the plan not in itself be an unlawful act. There was no to dispossess Mr. Stanton peaceably if he could, way to remove Mr. Stanton against his will forcibly if he must. Here he was plainly told and without the advice and consent of the Sen- that only by resort to the latter means would ate except by resort to unlawful means. If the Secretary yield. The answer tells us he he is proved to have attempted this by concert was forced to consider what " acts could be or agreement with one or more he is guilty of done to cause the said Stanton to surrender a conspiracy so to do. There is, sirs, an un- the said office." Surrenders, Mr. President, warrantable attemptto throw around this charge do not often precede force. They usually folof conspiracy a meaningwhich it has not in law, low not only its exhibition but its application. 552 The tenure act pointed out but one way, and upon information furnished them by the SecMr. Stanton having deelined to resign, the law retary of War, passed a resolution declaring pointed out the only peaceable way. the attempted removal of Mr. Stanton a vioHe next, on the 12th of August, seven days lation of the Constitution and the laws, and after Mr. Stanton refused to resign, appointed that resolution upon the same day was placed General Grant ad interim and suspended Mr. in the hands of the accused and his coconStanton; but this was but of temporary dura- spirator Thomas. Not only this, they both ton, for the Senate refused to concur, and Mr. knew that the Houae of Representatives had, Stanton. resumed his functions of office. in view of this removal, entered seriously upon Here ended all legal means; here ended all the consideration of this respondent's impeachpeaceable means; this exhausted every resort ment. With these proceedings well underexcept to force, and this he prepared himself stood, with the consequences certain to await to use. He says the next step, although a vio- the accused and his coconspirators, the order lation of the law, was taken to raise a question to Thomas is not countermanded, nor are his for the courts. This will not do. He had instructions changed, but the plan originally been told in plainest terms by Mr. Stanton entered upon is attempted to be carried out that he would not resign; he had been told by without the slightest deviation, as we learn that officer that he yielded to superior force in from Thomas's testimony, and with the plan the matter of his suspension, and he knew that fresh in his mind as laid before him by the the Senate had practically instructed Mr. Stan- accused, Thomas, on the same night, stated to'ton that no attempt at removal by unlawful Mr. BURLEIGH what lie was going to do. Let means would be sustained by them. We have me give a portion of BURLEIGH'S testimony, Mr. Johnson, then, brought to an alternative pp. 201-2: which had but on&' solution in his mind, and'A. On the evening of the 21st of February last I that he had already determined upon, namely, learned that General Thomas had been appointed to remove Mr. Stanton at all hazards. Secretary of War ad interim, I think while at the T6 raise a question for the courts forsooth! Metropolitan Hotel. I invited Mr. Leonard Smith, of Leavenworth, Kansas, to go with me up to his He could not do this, and he well knew it, ex- house and see him. We took a carriage and went cept by committing a trespass upon the baili- up. I found the general there getting ready to go wick of Mr. Stanton, by law assigned him, and out with his daughters to spend the evening at some place of amusement. I told him I would not detain when within his office by forcibly ejecting him him if he was going out; but he insisted on my sittherefrom. If, sirs, his design was not to go tingdown, and I satdown for a few moments. Itold this far, still if it included a purpose to estab-him that I had learned he had been appointed Secretary of War. He said he had; that he had been lish a second Secretary of War in that building, appointed-that day, I think; that after receiving his and require subordinates to obey the orders of appointment from the President he went to the War the pretended Secretary, this was force ill the Office to show his authority or his appointment to Secretary Stanton, and also his order to take possesmeaning of the act. We are bound to infer sion of the office; that the Secretary remarked to him that when Mr. Johnson sat out to accomplish that he supposed he would give him time to remove an object which he had every reason to believe his personal effects or his private papers, something to that effect; and his reply was'Certainly.' He would be successful only upon the application said that in a short time the Secretary asked him if of force, he meditated that force; and whether he would give him a copy of his order, and he replied he subsequently went to that extreme does not'Certainly,' and gave it to him. He said that it was t no more than right to give him time to take out his matter; the offense is complete without it. personal effects. I asked him when he was going to But what did he do? Having failed to secure assume the duties of the office. He remarked that the General-in-Chief as a tool he selected an he should take possession the next morning at ten o'clock, which would be the 22d; and I think in that officer of the Army, who was nominally Adju- connection he stated that he had issued some order tant General, but whom neither Mr. Lincoln in regard to the observance of the day; but of that while he was President nor ~MIr. Stanton would I amnot quite sure. I remarked to him that I should while he was President nor Mr. Stanton would be up at that end of the avenue the next day, and trust in charge of the Adjutant General's de- he asked me to come in and see him. I asked him partment. The respondent peremptorily or- where I would find him. and he said in the Seoredered the General-in- Chief to reinstate this tary's room, up stairs. I told him I would be there. mened the k e neral-in-Chief to reinstate this Said he,'Be there punctual at ten o'clock.' Said man, knowing that he could not show a greater I,'You are going to take possession to-morrow?' contempt for Mr. Stanton's authority than to'Yes.' Said I,'Suppose Stanton objects to it-rethrust upon that Department an officer whom'Well,' saide,'I expect to meet fore Mr. Stanton himself had suspended from his Mr. CONKLING. Repeat that. duties. "The WITNESS. I asked him what he would do if He had still another motive: the office of Stanton objected or resisted? He said he would use force or resortto force. Said I,'Supposehe barsthe the Adjutant General was in the same build- doors?' His reply was,'I will break them down.' ing with that of the Secretary of War, and the I think that was about all the conversation that we ulterior purpose to possess himself of the en- had there at that time in that connection." tire building was thus to be more readily ac- I have not noticed the sending for Gencomplished. On the 21st of February General eral Wallace, the officer second in command Thomas was directed to take immediate pos- of this military department, after the President session of the War Department. He went had failed in his attempted seduction of Genaccordingly and demanded the office. It is in eral Emory. I have not noticed the frequent evidence that on that same day the Senate, declarations of the cocoaspirator Tho rna, 553 showing that up to the time- this trial was en- dertake to state exactly. The President askedtme tered upon he had not desisted from his pur- if I recollected a conversation he had had with me pose to possess himself of the War Depart- when I first took command of the department, T told him that I recollected the fact of the conversament; that he is, in violation of any other the tion. distinctly. He then asked me what changes had ory than that he is, and has been since his been made. I told him no material changes; but appointment, in perfect accord and agreenm~ent such as had been made I could state at once. I went appointment, in perfec~accord.and.gre~ement -on to state that in the fall six companies of the with the President, received into Cabinet coun- twenty-ninth infantry had been brought to this city oils and official communication with the Pres- to winter; but, as an offset to that, four companies ident as Secretary of FWar; thathe has certified' of the twelfth infantry had been detached to South Carolina, on the request of the commander of that papers, one of which is in evidence, as Sec- district; that two companies of artillery that had retary of War; and in them'at least, if not been detached by my predecessor, one of them for practically, is to-day by recognition and order the purpe of aiding in putting down the Fenian difficulties, had been returned to thecommand; that, of the President a de facto Secretary of War. although the number of companies had been inBut, sirs, casting aside all evidence intro- creased, the numerical strength of the command Va duced. by the prpsecution, and looking at the verymuchthe same, growing outof an order redncipg the artillery and infantry companies from the macXcharge of conspiracy in the light of the testi- mum of the war establishment to the minimum of mony which the answer furnishes, there is left the peace establishment. The President said,'I do us but one of two conclusions: either that this not refer to those changes.' I replied that if he would state whatchanges he referred to, or who made accused and General Thomas are fully sus-' the report of the changes, perhaps I could be more tained by the law in what they did and ast- explicit. He said,'I referto recent changes, within tempted to do, or they are both guilty and the a dayor two,' or something to that effect. I told him emted to do, or they are both guilty and the I thought I could assure him that no changes had one now on trial must be convicted. been made; that, under a recent order issued for I I will not here sto to notice the charges laid the government of the armies of the United Stat0e, founded upon a law of Congress, all orders had to be in article eighth. The offense does not ma- rndsit&l hGeertGrantto the Armdy ad, terially differ from that laid in the second and inlike manner, allorders coming fromGeneral 4rant third articles, to any of his subordinate officers must necessarily ARTICLE NINTH. come, if in my department, through me; that if by We arebrgtthntooi chance an order had been given to any junior officer We are brought, then, to notice article ninth, of mine it was his duty at once, to report the fact. which charges that the accused instructed-Gen- The President asked me,' What order do you refer eral Emory that the act of Congress approved to?' I replied,'To Order No. 17 of the series of 1867.' He said,'Iwould like to see the order,' and March 2, 1867, was unconstitutional and in a messenger was dispatched for it. At this time.a contravention of commission of the said Em- gentleman came in who I supposed had business in ory, with intent to induce him, in his official no way connected with the business that I had in hand, and I withdrew to the further end of the roomt, capacity as commander of the military forces and while there the messenger oame with the book of this department, to violate the provisions of of orders and handed it to me. As soon as the genthat act, and with the further intent thereby to tIeman had withdrawn I returned to the President with the book in my hand, and said I would take it enable the accused to prevent the execution of as a favor if he would permit me to call his attention the tenure act, and also prevent Edwin M. to that order; that it had been passed in an approStanton, the Secretary of War, from discharg- priation bill, and I thought it not unlikely had esStanton,.tSretary. a, fro dsh caped his attention. He tookthe orderandreadit, and ing the duties of his office by virtue thereof. observed,'This is not in conformity to the ConstitsIt would be difficult to read General Emory's tion of theUnitedStates, thatmakes me Commandertestimony under this charge, if it stood uncon- in-Chief, or with the terms of your commission.' estimony under this charge, if it stood uncon- "Mr. HOWARd. Repeat his language, if you please. nected with any other evidence, and not con- "The WITNESS.. I cannot repeat it any nearer elude that he was sent for by the President than ]am now doing. with a view to counsel a violation of this law. "Mr. CNLNG. epeatyur last answer luder, This testimony is brief, and I crave the in- "Mr. JOHNSON. Whathe-said. dilgence of the court to read it as given upon "The WITNESS* What who said; the President the record. General Emory was summoned or me.? by the President' s Private Secretary. The note " Mr. HOWARD. The President. "The WiNrss. He said,'This is not in conformsent him and his testimony I will now read. Itywith the Constitution of the United States, which General Emory's testimony, pages 227, 228, makes me Commander-in-Chief, or with the terms and 229:' of your commission.' I replied,'That is the order EXECUTIVE MANSION which you have approved and issued to the Army * WASHINGTON, D C., Februarv 22, 1868. for our government,' or something to that effect. GENERAL: WhI O PrFesidentdirecrs e otI cannot recollect the exact words, nor do'I intend GNENERIAL: The President directs me to say that he to quote the exact words of the President. He sail, will be pleased to have you call on him as early as'Am I to understand that the President of the Unipracticable. ted States cannot give an order except through the Very respectfully and truly, yours, Geaerxl of the Army' or'General Grant?' I sid, WILLIAM Gl. MO)ORE, in reply, that thatwas my impression; that that was United States Army. the opinion the. Army entertained, and I thought "Q. How early did you call? A. I called imme- upon that subject they were a unit. I also said,'I diately. think it is fair, Mr. President, to say to you that "Q. How early in the day? A I thinkit was about when this order came out there was considerabledismid-day. cussion on thesubject as to whatwere the obligations "Q. Whom did youfnd with the President, if any- of an officer under that order, and some eminent body? A. I found the President alone when I first lawyerswereconsulted —Imyself consulted one —ad went in. the opinion wasggiven to me decidedly and unequiv"Q. Will you have the kindness to state as nearly ocally that we were bound by the order, oonstituas you can what took place there? A. I will try and tional ornot constitutional. The President observed state the substce of it, but the words I cann4ot uu- that the object of the law was evident. 554 "Mr. Manager BUTLER. Before you pass from Iforces. The only thing, sirs, which he had that, did you state to him who the lawyers were that any reason to apprehend might happqn was, had been consulted? A. Yes, ". What did you state on that subject? A. Per- that in the event he persisted in his design to haps, in reference to that, a part of my statement ekecute his order to remove the Secretary of was not altogether correct. In regard to myself, I War, this military force might not be found consulted Mr. Robert J. Walker. " Q. State what you said to him, whether correct subservient to his wishes. And here we have or otherwise? A. I will state it. I stated that I a key which unlocks his treasonable designs. had consulted Mr. Robert J. Walker, in reply to Here we have his motive made plain as the his question as to whom itwasI had consulted; andHe could ot, by open confession, I understand other officers had consulted Mr. REV- sunlight., by confession, ERDY JOHNSON. disclose more certainly what was intended by "Q. Did you say to him what opinion had been him when he sutnmoned General Emory to his reported from those consultations? A. I stated before that the lawyer that I had consulted stated to presence. It was not a proper question to ask me that we were bound by it undoubtedly; and I that officer, when upon the witness stand, what understood from some officers, who I supposed had he understood the President to mean by that consulted Mr. Johnson, that he was of the same opinion. cabalistic manner with which he introduced "Q. What did the President reply to that? A. the subject of recent changes in the military TherPresident said,'The object of the law is evi- forces made within a day or two. That is a dent.' There the conversation ended by my thanking him for the courtesywith which he had allowed question for you, Senators, to answer. General me to express my own opinion. Emory could have answered it but one way. "Q. Didyouthenwithdraw? A. Ithenwithdrew." But let us see whether the turn which the conI have said that this testimony, standing versation took does not.of itself show the leadalone, bears upon its face proof of guilt, but we ing motive which the President had in mind. are not permitted to view it from so narrow a General Emory had responded fully as to the. stand-point. Itisilluminedfrommanysources, question put him, and assured the President and is given a significance not to be misunder- that there had been no recent changes, and stood. There is scarcely a scene or act con- could be none (under the law and orders) nected with this remarkable drama of ex cu- wthout General Emory's first knowing it. tive usurpation which does not explain this at- There the conversation ought to have ended tempt to alienate a gallant officer from his if the President's answer is held to disclose General-in-Chief, and stamp it as scarcely less the whole truth. General Emory read to him infamous than the attempt previously made to the law by which he was guided, and the Presalienate the General-in-Chief from the whole ident himself took it and read it, and immeloyal people of the land. diately observed: Sirs, there is not in this the naked procura- "Thisis notin conformity with the Constitution of tion to violate law, but a treasonable attempt to the United States, which makes me Commander-inpoison the mind of a high Army officer to sow Chief, or with the terms of your commission." dissension, insubordination, and treachery in General Emory replied, speaking of the the Army. This, too, sirs, from the Com- order which promulgated that law: mand~er-iln-Chief. Such conduct in an officer " That is the order which you have approved and issued to the Army for our government. or soldier is, by the Articles of War, punishable with death. Scores of soldiers have paid The Commander-in-Chief being thus bafed this penalty for mutinous conduct not half so by his subordinate, made this reply: aggravating. The moral sense not only of the Am I to understand that the President of the.Agrmyvbuti. the moural musene notsyofe at United States cannot give an order except through Army but of the country must be shocked at the General of the Army, or General Grant?" such an exhibition from a Chief Magistrate; This last answer is a complete portraiture of and, sirs, I will be pardoned for saying that the President's motive, and his disappointGeneralEmory nevr did a more heroic act ment in not finding in Emory a willing tool than when he spurned the treacherous offer of through whom he might prosecute his designs. high command which he knew would await him To put this in other phrase it would read: should he lend himself to the conspiracy already "Then, General Emory,'I am to understand you hatched by the President. will not obey my orders unless I communicate them Now, sirs, how is this extraordinary inter- through General Grant?" view explainedby theaccused? Hesaysin his General Emory felt himself called upoo to answer that his purpose was to ascertain what say that with regard to this law the Army were changes had been made in the military affairs a unit. Of its meaning the President could of this department. That may have been one have no doubt, for after listening to General of his motives, but is it to be believed for a Emory a moment longer, he remarked, with moment that this was all? To do this we must' apparent disappointment at the result of the shut our eyes to allthe cumulative evidence in interview, " The object of the law is evident, this case. No one was threatening to use force and they then separated. against Mr. Johnson. There was no effort When we remember that this is but one of being made to oust him from office by force. the links in the chain being forged by the acHe had nothing to apprehend from the military cused with which to manacle the Secretary of forces of this Department. There was no un- War and bind a great department of the Govusual excitement anywhere in the country that ernment to the Juggernaut used by him to made it necessary for him to marshal these crush all opposition to executive will, the 555 offense appears in hideous distinctness. That removals proved have been made under some it was sth a link to be thus used I am forced existing law, either the laws of 1789, 1795, to believe, and I leave it to await the judgment 1820, 1856, or some authority in law upon of this high court. which the act was based. But suppose every I am disinclined, after this protracted dis- other Administration had violated the law, cussion, to dwell at any length upon the tenth would that justify the violation of a positive and eleventh articles; and yet I beg not to be enactment making its violation a crime or misunderstood as derogatingfrom their import- demeanor? Certainly not. If so, a murderer ance or their gravity. The accused is here might justify his murder on the grounds that charged not only with improprieties and inde- murders were common in the country from the cencies of speech; he is not only called to commencement of the Governmeat to the presanswer intemperate, disgraceful, incendiary, ent time. Even the advice of his Cabinet and riotous language, but he is charged with cannot excuse him. By advising a crime they following up the purposes avowed in these cannot shield their chief, but may be impeachspeeches by overt acts looking directly to the able themselves for advising a disobedience of obstruction of the laws which he had sworn to law. But it is all of record, and I will notpurtake care should be faithfully executed. If sue it further. We have laid bare his offenses. the conduct of this accused, in his official capa- In all that has been proven, or aught of his city, in word, act, and deed, has not shown conduct since President, which ifs a matter of conclusively his guilt under both of these arti- history, there is not to be found a good motive cles then there could be no proof adduced, for his conduct. He is found without any of however strong, that would be efficient. the elements necessary to fit hi-m for any offiThe proof does show his unlawful attempt cial position. to obstruct the laws as therein charged. I will Goodness, clemency, and a proper liberality not again do more than to ask your examina- should be among the virtues that adorn a Chief tion of the facts proved and found in the re- Magistrate. With the aid of these he should corded testimony, which shows how eagerly he be able to greatly assist in the amelioration of entered upon the dangerous business of ob- the condition of the whole people. The chief structing and defying the laws of the country. end of all his actions should be to promote As to his speeches, upon which the tenth ar- peace, safety, prosperity, and happiness to the tide is based, look at them, read them; there nation. they stand in history as a monument of his This was the idea of the heathen philosoeverlasting disgrace. Thegreatlaborofexplain- phers; they defined a good prince as " one who ing and justifying such speeches and conduct is endeavors to render his subjects happy;" "and certainly in able hands. It is defended and a tyrant," on the contrary, "one who only justified as one of the great privileges of the aims at his own private advantage." President of the United States to be guiltyof An example of the first we had in the such indecency, impropriety, vulgarity, pro- lamented Lincoln, and of the latter in Mr.'fanity, and impiety of speech as to offend the Johnson. moral sense of the whole people. It is for Mr. Lincoln was endowed with one of the them to show how far the liberty of indecent mostgenial souls that Heaven ever gave to man speech in a high official may be indulged before and an intellect of most wonderful power. His it reaches that unwarrantable license where the apprehension was quick, his judgment sound, only power than can will step in and correct his conclusions correct. His mind was suffithe wrong. The idea that a President may so ciently capacious to comprehend all the vast demean himself by indecent speech as to make range of thought to which occasion gave scope. him a scoff and byword, and place himself so He met the critical hour of duty to his country low in the moral scale that none "would stoop like a statesman and a man. He sustained to touch his loftiest thought," and yet not be loyalty and gave all his strength in crushing guilty of such misdemeanors as would call for treason. Instead of denouncing your Congress, the very a tion we have taken, is beyond my he consulted and advised with them for the ken. good of the country. Instead of vetoing every "0 judgment, thou art fled to brutish beasts, law, he aided and assisted in giving them force. And men have lost their reason." Instead of openly violatin the plain provisions The defense have not, by their evidence, of your enactments, he eiecuted them faith-'contradicted what we have proven, but have fully, as was his duty. only strengthened our case. There has been How' a Government is to be administered no proof adduced on the part of the defendant while peace is smiling is one thing, and how that either will' justify or excuse his unlawful it is to be administered amid the horrors of acts. The evidence of General Sherman, and war is quite another thing. Mr. Lincoln had all others put on the stand by the defense, wants hourly multiplying upon his hands that only make his guilt the more manifest. The before or since were unheard of. The diffiattempt by documentary evidence to prove the culties with which the war on our hands was practice of the Government to justify his act complicated were almost interminable; but proves that the practice has been to obey the with each new-found difficulty he found new la; and not violate it, as all appointments and strength, hope, and energy, until all obstalees 556 were overcome and the war ended. But at the sway would have been autocratic and his reign very dawn of the nation's new birth, resting irresistible. It was not alone by forcetat this from his labors and contemplating that peace was to be accomplished. By appeal' which that was then breaking through the dark, angry were designing, and all the more dangerous clouds of war, he fell by the hand of an because of apparent candors he drew to him assassin. the careless and unsuspecting. By pledges, Yes, his sun has set forever. Loyalty's all the more reprehensible because of plighted gentle voice can no longer wake thrills of joy honor, he soothed the suspicions of the caualong the tuneless chords of his moldering tious and.the wise. 3By profuse disposition of heart. Yet the patriots.and lovers of liberty, rewards in his hands he gained the mercenary who still linger on the shore of time, rise and and attracted. the unscrupulous; and where bless his memory; and millions yet unborn the pliant. arts of flattery and persuasion failed will In after times rise up to deplore his fate to accomplish his intended views, by the stern and cherish as a household word his deathless show of his power and authority he awed the name. timid and overbore the weak. Mr. President and Senators, what patriots These, sirs, we have manifested, if by our that linger behind will rise up and bless the proof we have made aught manifest. And to memory of Andrew Johnson? Who will in all this what does he reply? That, though his after times rise up to deplore the fate that now acts were bati, his motives. were good; thatb surely awaits him? Who will cherish as a though his course was unlawful, his heart was household word his dishonored name? None, well-meaning; that he trampled on the law in none, Mr. President; no, not onel No, sir; order that he4might uphold the law; that he the virtues that should adorn a Chief Magis- disregarded his oath the better to enable him trate fled on the induction of this criminal into to keep it. When we ask him why he set aside thathighoffice. In sadness and sorrow didthe the law of the land he replies that it was bepeople witness this man succeed to the execu- cause it was opposed to the Constitution of the tive chair-not by their sipontaneuos voice, not land; and when we again inquire as to the Conby their free accord, but by the ministration of stitution of the land we are assured that it is the murderer's missive. They witnessed him, his prerqgative to construe it even in violatio, who had acquired power by such a sorrowful of the laws of the land. Have I stated this be and inauspicious chance, bending blindly to the yond the line of his defense? Have I wronged behests of those whose adherents, if not they him by one unjust description of his conduct themselves, had lately been in rebellious arms or his claim? If not, shall this state of things against that Constitution which he had sworn longer exist? Shall we snap the chains that to protect and maintain. They saw him, flushed bind us or continue in them longer? Shall we with arrogance and pride, despise the warnings vindicate the law or crouch at the usurper's of the people and deride the mandates of their frown? Shall we vindicate to-day the princilegislators. When an act of the legislative ple that underlies the very foundation of this department of the Government would notinure Government or allow the laws to be trampled to his advantage politically they saw himopenly under foot at the will of every tyrant? violate and trample it under foot. When loy- It is a fundamental principle of this Govern. alty was supported and peace attempted to be ment that there shall be a known rule and law perpetuated they saw him disregard their will by which not only the conduct of the citizen, and throw all manner of obstructions in the- but all officers, including the Chief Magistrate way. of the nation, shall be regulated and governed, When the officers of the Government would This is. a Government of laws and not of men. not bend the knee and, cry "great and good It is thisprinciple which distinguishes this reprince," they saw him attempt to hurl them publican fbrm of Government of oursfrom the from his courts. When the commander of the monarchies of the Old World. Army would not do his bidding they have seen I repeat, sirs, this is a. Government of laws him conspire to destroy his good name and, and not of men. Never before, I believe, wA fame before the country. When the country it known in this enlightened country that the was at ease they have seen him give it grief executive head of the nation had the arrogance and pain. When at peace and rest they have to take upon himself not only the executive, seen his attemptto Eve itrevolution and blood. but the judicial functions of the Government. They saw him with a ruthless and heavy hand No sir; under the smiles of that merciful attempt to seize the nation's purse and the Providence who had watched over and guided nation's sword, and thus, by clutching in his the destinies:of the people, we have hitherto longing grasp all the attributes of power, place been exempt, and I trust. in God shall herehimself in a condition where he might with after continue to be, from the affliction of that safety announce his views and enforce his most direful scourge, a Chief Executive with designs. full discretionary powers to execute a law or They felt the weight of his great office fall declare it unconstitutional at will. It is not like an enshrouding pall over a suffering peo- that which pleaseth nor that which is most conple. They marked with alarm and consterna- sonant with the humor and inclination of the tin his rapid Btride8 to that point, where lij President, but the law, which should be the 557 rule of'his conduct. I trust, sirs, thatthetime splendor; who dug him from that oblivion to will never again come in the history of this which he had been consigned by the treasoh nation when, by elevation to the Presidency, of his State, and gave him that distinction any one will become so infatuatedas to imagine which, as disclosed by his subsequent acts, he himself independent of that rule, or to set up never merited and has so fearfully scandalized, his own private judgment or opinions as the disgraced, and dishonored;false to the memory only standard by which he will'be guided'or of him whose death made him President; false -governed. Then, sirs, whether we shall in the to the principles of our contest for national future witness this attempt in other Executives life; false to the Constitution and laws of th'e depends upon your decision upon the issues in land and his oath of office; filled with all this case involved. Being the grand tribunal vanity, lust, and pride; substituting, with the from which there can be no appeal, you should most disgusting self-complacency and ignorproperly reflect the law and the testimony. ance, his own coarse, brutalized will for the The pure stream of public justice should flow will of the people, and substituting his vulgar, gently along, undisturbed by any false pretense vapid, and ignorant utterances for patriotism, on the part of the defendant or false sympathy statesmanship, and faithful public service, he upon your part. The President should not be has completed his circle of high crimes and permitted to play the necromancer with this misdemeanors; and, thanks to Almighty God, Senate as he did with the country through the by the imbedded wisdom of our fathers found law department of the executive branch of the in the Constitution of our country, he stands Government, whereby he raised a tempest that to-day, with all his crimes upon his head, he himself could not control. Well might he uncovered before the world, at the bar of this have exclaimed: the most august tribunal on earth, to receive " I am the rider of the wind, the awful sentence that awaits him as a fitting The stirrer of the storm; punishment for the crimes and misdemeanors The hurricane I left behind of which he stands impeached by the House Is yet with lightning warm." of Representatives, in the name and on behalf But, thanks to the wisdom of our far-seeing of all the people. patriot sires, you, Senators, are, by our Con- Here, Senators, we rest our case; here we stitution, made the great power that shall calm leave the great criminal of the age. In your the tempest and Ao direct the lightning that hands, as wisely provided by the charter of its strokes shall be warded off from the peo- our liberties, this offender against the Constipie and fall only upon the head of their op-,tution, the laws, liberty, peace, and public pressor. decencyof our countryeis now left to be finally Yes, Senators, we fervently hope and confi- and, in the name of all the people, we humbly dently rely upon you to calm the'torm, and trust, disposed of forever, in such manner as prevent the Temple of Liberty being dashed to no more to outrage the memories of an heroic earth by the hurricane. We cannot, will not and illustrious past, nor dim the hopes,:ex-believe that we are or will be mistaken in those pectations, and glories of the coming future.:in whom we now place our trust. Methinks I Let us, we implore you, no more hear his re-hear a voice coming up from the lowly pillows sounding footfalls in the temple of American of patriotism's immortal martyrs, saying, "Be constitutional liberty, nor have the vessels of of good cheer, all will yet be well." We can- the ark of the covenant of our fathers polluted not, will not believe that the respondent's un- by his unholy hands. Let not the blood of:a just appeals will avail him'now. He appeals half million of heroes who went to their deaths ta the truth of history to vindicate him in the on the nation's battle-fields for the nation's acts of former Executives; but truth itself life cry from the ground against us on account rises up from the midst of the mass of testi- of the crimes permitted by us, and committed mony here adduced, and says, even in this by him whom we now leave in your hands. appeal, he has polluted God's holy sanctuary; Standing here to-day for the last time with:and wherl on justice he relies to protect him, my brother Managers, to take leave of this:and lift him up out of his difficulties, justice case and this great tribunal, I am penetrated comes forward in all her majesty and declares and overwhelmed with emotion. Memory is that he has not only traihpled the laws of man busy with the scenes of the years whiich have'but of God under foot. When he indirectly intervened between March 4, 1861, and this asks that the mantle of charity shall by you be day. Our great war, its battles and ten thouthrown over his shortcomings and violations sand incidents, without mental bidding and of law clemency steps forward, and with a beyond control, almost pass in panoramic view loud voice cries, " Forbearance has ceased to before me. As in the presence of those whom be a virtue;" " Mercy to this criminal would I have seen fall in battle as we rushed to vicbe cruelty to the State." tory, or die of wounds or disease in hospital From the 14th day of April, 1865, to this far from home and the loved ones, to be seen day, as shown by the testimony, he has been no more until the grave gives up its dead, have consistent only with himself and the evil spirits I endeavored to discharge my humble part in of'his Administration. False to the people who this great trial. took him from obscurity and conferred on him The world inafter times will read thehistory 658 of the administration of Andrew Johnson as trial is a new test to our public national virtue an illustration of the depth to which political and also of the strength and vigor of popular and official perfidy can descend. Amid the un- government. The trial of a great criminal is healed ghastly scars of war; surrounded by not an extraordinary event, even when folthe weeds of widowhood and cries of orphan- lowed by conviction and the severest penalty age; associating with and sustained by the known to the laws. This respondent is not to soldiers of the Republic, of whom at one time be deprived of life, liberty, or property. The he claimed to be one; surrounded by the men object of this proceeding is not the punishment who had supported, aided, and cheered Mr. Lin- of the offender, but the safety of the State. As coln through the darkest hours and sorest trials the daily life of the wise and just magistrate of his sad yet immortal administration-men is an example for good, cheering, encouraging, whose lives had been dedicated to the cause and strengthening all others, so the trial and of justice, law, and universal liberty-the men conviction of a dishonest or an unfaithful who had nominated and elected him to the officer is a warning to all men, and especially second office in the nation at a time when he to such as occupy places of public trust. scarcely dared visit his own home because of ISSUES. the traitorous instincts of his own people; yet, The issues of record between the House of as shown by his officialacts, messages, speeches, Representatives and Andrew Johnson, Presiconversations, and, associations, almost from dent of the United States, are technical and the time when the blood of Lincoln was warm limited. We have met the issues, and, as we on the floor of Ford's theater, Andrew John- believe, maintained the cause of the House of son was contemplating treason to all the fresh Representatives by evidence direct, clear, and fruits of the overthrown and crushed rebel- conclusive. Those issues require you to ascerlion, and an affiliation with and a practical tain and declare whether Andrew Johnson, official and hearty sympathy for those who had President of the United States, is guilty of cost hecatombs of slain citizens, billions of high crimes and misdemeanors as set forth in treasure, and an almost ruined country. His the several articles of impeachment exhibited great aim and purpose has been to subvert against him, and especially whether he has law, usurp authority, insult and outrage Con- violated the laws or the Constitution of the gress, reconstruct the rebel States in the in- country in the attempt which he made on the terests of treason, insult the memories and 21st of February last to remove Edwin M. resting-places of our heroic dead; outrage the Stanton from the office of Secretary for the feelings and deride the principles of the livin Department of War, and to appoint Lorenzo men who aided in saving the.Union, and de- Thomas Secretary of War ad interim. liver all snatched from wreck and ruin into These are the issues disclosed by the record. thehands of unrepentent, but by him pardoned, They appear in the statement to be limited in traitors. their nature and character; but your final acBut. all honor to the servants of a brave and tion thereon involves and settles questions of loyal people, he has been in strict conformity public policy of greater magnitude than any to the Constitution arrested in his career of which have been considered in the political or crime, impeached, arraigned, tried, and here judicial proceedings of the country since the awaits your sentence. We are not doubtful adoption of the Constitution. of your verdict. Andrew Johnson has long DEFENSE. since been tried by the whole people and found Mr. Johnson attempts to defend his conduct guilty, and you can but confirm that judgment in the matter of the removal of Mr. Stanton by already pronounced by the sovereign Ameri- an assertion of " the power at any and all times can people. of removing from office all executive officers for Henceforth our career of greatness will be cause to be judged of by the President alone." unimpeded. Rising from our baptism of fire This claim manifestly extends to the officers and bl'ood, purified by our sufferings and trials of the Army and of the Navy, of the civil and under the approving smiles of Heaven, and the diplomatic service. He thus assumes and freed, as we are, from the crimes of oppression demands for himself and for all his successors and wrong, the patriot heart looks outward and absolute control over the vast and yearly inonward for long and ever-increasing national creasing patronage of this Government. This prosperity, virtue, and happiness. claim has never been before asserted, and surely it has never been sanctioned; nor is Hon. GEORGE S. BOUTWELL, on behalf there a law or usage which furnishes any ground of the Managers, addressed the Senate, as for justification, even the least. follows: Heretofore the Senate has always been conMr. PRESIDENT, SENATORS: The importance suited in regard to appointments, and during of this occasion is due to the unexampled cir- the sessions of the Senate it has always been cumstance that the Chief Magistrate of the consulted in regard to removals from office. principal Republic of the world is on trial upon The claim now made, if sanctioned, strips the the charge that he is guilty of high crimes and Senate of all practical power in the premises, misdemeanors in office. The solemnity of this and leaves the patronage of office, the revetiues occasion is due to the circumstance that this and expenditures of the country in the hands 559 of the President alone. Who does not see that itself was established; and it follows. necesthe power of the Senate to act upon and con- sarily, that the three departments of the Govfirm a nomination is a barren power, as a means ernment possess sufficient power collectively to of protecting the public interests, if the person accomplish those objects. so confirmed may be removed frohn his office It will be seen from an examination of the at once without the advice and consent of the grants of power made to the several departSenate? If this claim shall be conceded the ments of the Government thatthereis a differPresidentis clothed with power to remove every ence in the phraseology employed, and that the person who refuses to become his instrument. legislative branch alone is intrusted with disAn evil-minded President may remove all cretionary authority. The first section of the loyal and patriotic officers from the Army, the first article provides that " all legislative powers Navy, the civil and the diplomatic service, and herein granted shall be vested in a Congress of nominate only his adherents and friends. None the United States, which shall consist of a but his friends can remain in office; none but Senate and House of Representatives." his friends can be appointed to office. What The first section of the second article prosecurity remains for the fidelity of the Army vides that " executive power shall be vested in and the Navy? What security for the collec- a President of the United States of America;" tion of the public revenues? What account- and the first section of the third article proability remains in any branch of the public vides that "the judicial power of the United service? Every public officer is henceforth a'States shall be vested in one Supreme Court, mere dependent upon the Executive. Here- and in such inferior courts as the Congress tofore the Senate could say to the President, may, from time to time, ordain and establish." " You shall not remove a faithful,'honest public The words "herein granted," as used in the officer." This power the Senate has possessed first section of the first article of the Constituand exercised for nearly eighty years, under tion, are of themselves words of limitation upon and by virtue of express authority granted in the legislative powers of Congress, confining the Constitution. Is this authority to be sur- those powers within the authority expressed in rendered? Is this power of the Senate, this the Constitution. The absence of those words prerogative we may almost call it,.to be aban- in the provisions relating to the executive and doned? Has the country, has the Senate, in judicial departments does not, as might at first the exercise of its legislative, executive, or judi- be supposed, justify the inference that unlimited cial functions, fully considered these broader authority is conferred upon those departments. and graver issues touching and affecting vitally An examination of the Constitution shows that our institutions and system of government? the executive and judicial departments have The House of Representatives has brought no inherent vigor by which, under the ConAndrew Johnson, President of the United stitution, they are enabled to perform the funeStates, to the bar of this august tribunal, and tions delegated to them, while the legislaive has here charged him with high crimes and department, in noticeable contrast, is clothed misdemeanors in office. He meets the charge with authority "to make all laws which shall by denying and assailing the ancient, un- be necessary and proper for carrying into exedoubted, constitutional powers of the Senate. cution the foregoing powers, and all other This is the grave, national, historical, consti- powers vested by this Constitution in the Govtutional issue. When you decide the issues ernment of Aie United States, or any departof record, which appear narrow and technical, ment or officer thereof. " you decide these greater issues also. By virtue of this provision the Constitution sThe Managers on the part of the House of devolves upon Congress the duty of providing Representatives, as time and their abilities by legislation for the full execution not only of may permit, intend to deal with the criminal the powers vested in Congress, but also of proand with these his crimes, and also to examine viding by legislation for the execution of those the constitutional powers of the President and powers which, by the Constitution, aresvested of the Senjate. I shall first invite your atten- in the executive and judicial departments. tion, Senators, to the last-mentioned topics. The legislative department has original power It is necessary, in this discussion, to con- derived from the Constitution by which it can sider the character of the Government., and set and keep itself in motion as a branch of the especially the distribution of powers and the Government, while the executive and judicial limitations placed by the Constitution upon the departments have no self-executing constituexecutive, judicial, and legislative depart- tional capacity, but are constantly dependent ments. upon the legislative department. Nor does TENTH AMENDMENT. it follow, as might upon slight attention be The tenth amendment to the Constitution assumed, that the executive power given to the provides that " the powers not delegated to the President is an unlimited power, or that it anUnited States by the Constitution, nor pro- swers or corresponds to the powers which have hibited by it to the States, are reserved to the been'or may be exercised by the executive of States respectively, or to the people. " any other Government. The President of the This provision is not to be so construed as United States is not endowed by the Constituto defeat the objects fpr which the Constitution tion with the executive power which was pos 560 sessed by Henry VIII or Queen Elizabeth, or shall be vested in the Congress of the United by any ruler in any other country or time, but States; while in the section relating to the only with the power expressly granted to him powers of the President it is declared that the by the Constitution and with such other powers executive power shall be vested in a President as' have been conferred upon him by Congress of the Untted States of America. The infor the purpose of carrying into effect the ference from this distinction is in harmony powers which are granted to the President by with what has been previously stated. "' The the Constitution. Hence it may be asserted executive power" spoken of is that which is that whenever the President attempts to exer- conferred upon the resident by the Constitucise any power he must, if his right be ques- tion, and it is limited by the terms of the Contioned, find a specific authority in the Consti- stitution, and must be exercised in the manner tption or laws. By the Constitution he is prescribed by the Constitution. The words Commander-in-Chief of the Army and Navy; used are to be interpreted according to their but it is fbr Congress to decide, in the first ordinary meaning. place, whether there shall be an Army or Navy, It is also worthy of remark that the Constiand the President must command the Army or tution, in terms, denies to Congress various Navy as it is created by Congress, and subject, legislative powers specified. It denies also to as is every other officer of the Army and Navy, the United States various powers, and various to such rules and regulations as Congress may powers enumerated are likewise denied to the from time to time establish. States. There is but one denial of power to The President " may require the opinion in the President, and that is a limitation of an writing of the principal officer in each of the express power granted. The single instance Executive Departments upon any subject re- of a denial of power to the President is in that lating to the duties of their respective offices," provision of the Constitution wherein he is but the executive offices themselves are created authorized "to grant reprieves and pardons by Congress, and the duties of each officer are for offenses against the United States, except prescribed by law. In fine, the power to set in cases of impeachment." As the powers the Government in motion and to keep it in granted to the President are specified, and as motion is lodged exclusively in Congress un- he takes nothing by implication or inference, der the provisions of the Constitution. there was no occasion to recite or enumerate By our system of Government the sovereignty powers not delegated to him. As the Constiis in the people of the United States, and that tution clothes Congress with powers of legissovereignty is fully expressed in the preamble lation which are ample for all the necessities to the Constitution. By the Constitution the of national life, wherein there is opportunity people have vested discretionary power-lim- for the exercise of a wide discretion, it was ited, it is true-in the Congress of the United necessary to specify such powers as are proStjes, while they have denied to the execu- hibited to Congress. The powers of Congress tive and judicial departments all discretionary are ascertained by considering as well what is or implied power whatever. prohibited as what is granted, while the powers The nature and extent 6f the powers con- of the Executive are to be ascertained clearly ferred by the Constitution upon Congress have and fully by what is granted. Where there is been clearly and fully set forth by the Supreme nothing left to inference, implication, or disCourt. (McCulloch vs. The Stateof Maryland, cretion, there is no necessity for clauses or 4 Wheaton, pp. 409 and 420.) The court, provisions of inhibition. In the single case in speaking of the power of Congress, say: of the grant of the full power of pardon to the "The Government, which has a right to do an act, President, a power unlimited in its very nature, and has imposed on it the duty of performing that the denial of the power to pardon in case of act, must, according to the dictates of reason, be impeachment became necessary. This example fully illustrates and establishes the position Again, they say: to which I now ask your assent. If this view "We admit, as all must admit, that the powers of be correct it follows necessarily, as has been the Government are limited, and that these limits before stated, that the President, acting under are not to be transcended; but we think the sound construction of the Constitution must allow to the the Constitution, can exercise those powers national Legislature that discretion, with respect to only which are specifically conferred upon him, the means by which the powers it confers are to e and can take nothing by construction, by imcarried into execution, which will enable that body to perform the high duties assigned to it in the man- plication, or by what is sometimes termed the ner most beneficial to the people. Let the thing be necessity of the case. legitimate, let it be within the scope of the Constitu- But in every Government there should be in tion, and all means which are appropriate, which are plainly adapted to the end, which are not prohibited, its constitution capacity to adapt the adminisand consistent with the letter and spirit of the Con- tration of affairs to the changing conditions of stitution, are constitutional." national life. In the Government of the UniIt is also worthy of remark, in this connec- ted States this capacity is found in Congress, tion, that the article which confers legislative in virtue of the provision already quoted, by powers upon the Congress of the United States which Congress is authorized "to make all declares that all legislative powers herein laws which shall be necessary and propcr for glinted-that is, granted in the Constitution- carrying into executioni She foregoing powers; (i. e., the powers given to Congress,) and all duty of the Executive to take care that the laws other powers vested by this Constitution in the be faithfully executed-an injunction wholly Government of the United States, or in any inconsistent with the theory that it is in the department or officer thereof." power of the Executive to repeal or annul of t is made the duty of the President, " from dispense with the laws of the land. To the time to time, to give to the Congress informa- President in the performance of his executive tion of the state of the Union, and recommend duties all laws are alike. He can enter into no to their consideration such measures as he shall inquiry as to their expediency or constitutionjudge necessary and expedient." ality. All laws are presumed to be constituProvision is also made in the Constitution tional, and, whether in fact constitutional or not, for his cooperation in the enactment of laws. it is the duty of the Executive so to regard them Thus it is in his power to lay before Congress while they have the form of law. When a the reasons which, in his opinion, may at any statute is repealed for its unconstitutionality, or time exist for legislative action in aid of the for any other reason, it ceases to be law in form executive powers conferred by the Constitu- and in fact. When a statute is annulled in tion upon the President; and under the ample whole or in part'by the opinion of a competent legislative powers secured to Congress by the judicial tribunal, from that moment it ceases provisions already quoted there is no reason to be law. But the respondent and the counsel in the nature of the Government why the con- for the respondent will seek in vain for any stitutional and lawful powers of the Executive authority or color of authority in the Constitumay not be made adequate to every emergency tion or the laws of the country by which the of the country. In fine, the President may be President is clothed with power to make any said to be governed by the principles which distinction upon his own judgment, or upon the govern the judge in a court of law. He must judgment of any friends or advisers, whether take the law and administer it as he fifids it private or official persons, between the several without any inquiry on his part as to the wis- statutes of the country, each and every one of dom of the legislation. So the President, with which he is, by the Constitution and by his oath reference to the measure of his own powers, of office, required faithfully to execute. Hence must take the Constitution and the laws of the it follows that the crime of the President is not, country as they are, and be governed strictly either in fact or as set forth in the articles of by them. If, in any particular, by implica- impeachment, that he has violated a constitution or construction, he assumes and exercises tional raw, but his crime is that he has violated authority not granted to him by the Constitu- a law, and in his defense no inquiry can be tion or the laws he violates his oath of office, made whether the law is constitutional; for by which, under the Constitution, it is made inasmuch as he had no constitutional power to his duty "to take care that the laws be faith- inquire for himself whether the law was confully executed," which implies necessarily that stitutional or not, so it is no excuse for him that he can go into no inquiry as to whether the he did unlawfully so inquire and came to the laws are expedient or otherwise; nor is it conclusion that the law was unconstitutional. within his province, in the execution of the It follows, from the authorities already law, to consider whether it is constitutional. quoted and the positions founded thereon, that In his communications to Congress he may there can be no inquiry here and now by this consider and discuss the constitutionality of tribunal whether the act in question-the act existing or proposed legislation, and when a entitled "An act regulating the tenure of cerbill is passed by the two Houses and submitted tain civil offices"-is in fact constitutional or to him for approval he may, if in his opinion not. It was and is the law of the land. It was th& same is unconstitutional, return it to the enacted by a strict adherence to constitutional House in which it originated with his reasons. forms. It was and is binding upon all the In the performance of these duties he exhausts officers and departments of the Government. his constitutional power in the work of legis- The Senate, for the purpose of deciding whether lation. If, notwithstandinghisobjections, Con- the respondent is innocent or guilty, can enter gress, by atwo-thirds majority in each House, into no inquiry as to the constitutionality of the shall pass the bill, it is then the duty of the act, which it was the President's duty to exePresident to obey and execute it, as it is his cute, and which, upon his own answer, and by duty to obey and execute all laws which he or repeated official confessions and admissions, he his predecessors may have approved. intentibnally, willfully, deliberately set aside If a law be in fact unconstitutional it may and violated. be repealed by Congress, or it may, possibly, If the President, in the discharge of his duty when a case duly arises, be annulled in its un- "to take care that the laws be faithfully execonstitutional features by the Supreme Court cuted," may inquire whether the laws are conof the United States. The repeal of the law is stitutional, and execute those only which he a legislative act; the declaration by the court believes to be so, then, for the purposes of govthat it is unconstitutional is a judicial act; but ernment, his will or opinion is substituted for the power to repeal or to annul or to set aside the action of the law-making power, and the a law of the United States is in no aspect of Government is no longer a Government of laws, the case an executive power. It is made the but the Government of one man. This is also C. I.-36. true, if, when arraigned, he may justify by show- cution of the constitutional trusts and duties ring that he has acted upon advice that the law imposed upon him. If he has willfully disrewas unconstitutional. Further, if the Senate garded the obligation resting upon him, to take sitting for the trial of the President may inquire care that the laws be faithfully executed, then and decide whether the law is in fact constitu- the constitutional duty imposed upon you is to tional, and convict the President if he has vio- convict him of the crime of having willfully lated an act believed to be constitutional, and disregarded the laws of the land and violated acquit him if the Senate think the law uncon- his oath of office. stitutioral, then the President is in fact tried I indulge, Senators, in great plainness of for his judgment, to be acquitted if in the opin- speech, and pursue a line of remark which, ion of the Senate it was a correct judgment, and were the subject less important or the duty convicted if in the opinion of the Senate his resting upon is less solemn, I should studiously judgment was erroneous. This doctrine offends avoid. But I speak with every feeling and senevery principle of justice. His offense is that timent of respect for this body and this place he intentionally violated a law. Knowing its of which my nature is capable. In my boyterms and requirements, he disregarded them. hood, from the gallery of the old Chamber of With deference I maintain still further that the Senate, I looked, not with admiration it is not the right of any Senator in this trial merely, but with something of awe upon the to be governed by any opinion he may enter- men of that generation who were then ih the tain of the constitutionality or expediency of seats which you now fill. Time and experithe law in question. For the purposes of this ence may have modified and chastened those trial the statute which the President, upon his impressions, but they are not, they cannot be:own confession, has repeatedly violated is the obliterated. They will remain with me while law of the land. His crime is that he violated life remains. But, with my convictions of my thelaw. Ithas notbeen repealedby Congress; own duty, with my convictions of your duty, it has not been annulled by the Supreme Court; with my convictions of the danger, the immiit stands upon the statute-book as the law; and nent peril, to our country if you should not for the purposes of this trial it is to be treated render a judgment of guilty against this reby every Senator as a constitutional law. Other- spondent, I have no alternative but to speak wise it follows that the President of the United with all the plainness and directness which States, supported by a minority exceeding by the most earnest convictions of the truth of one a third of this Senate, may set aside, dis- what I utter can inspire. regard, and violate all the laws of the land. It MOTIVE. is nothing to this respondent, it is nothing to Nor can the President prove or plead the this Senate, sitting here as a tribunal to try and motive by which he professes to have been judge this respondent, that the Senators par- governed in his violation of the laws of the ticipated in the passage of the act, or that the country. Where a positive specific duty is respondent, in the exercise of a constitutional imposed upon a public officer his motives canpower, returned the bill to the Senate with his not be good if he willfully neglects or refuses,objections thereto. The act itself is as bind- to discharge his duty in the manner in which ing, is as constitutional, is as sacred in the eye it is imposed upon him. In other words, it is of the Constitution as the acts that were passed not possible for a public officer, and particuat the first session of the First Congress. If larly for the President of the United States, the President may refuse to execute a law be- who is under a special constitutional injunccause in his opinion it is unconstitutional, or tion to discharge his duty faithfully, to have for the reason that, in the judgment of his any motive except a bad motive if he willfully friends and advisers, it is unconstitutional, then violates his duty. A judge, to be sure, in the he and his successors in office may refuse to exercise of a discretionary power, as in imexecute any statute the constitutionality of posing a sentence upon a criminal, where the which has not been affirmatively settled by the penalty is not specific, may err in the exercise Supreme Court of the United States. If a of that discretion and plead properly his good minority, exceeding one third of this Senate motives in the discharge of his duty; that is, by one, may relieve the President from all re- he may say that he intended, under the law, sponsibility for this violation of his oath of to impose a proper penalty; and inasmuch as office, because they concur with him in the that was his intention, though all other men opinion that this legislation is either unconsti- may think that the penalty was either insuffitutional or of doubtful constitutionality, then cient or excessive, he is fully justified by his there is no securityforthe execution of the laws. motives. The constitutional injunction upon the Presi- So the President, having vested in him disdent is to take care that the laws be faithfully cretionary power in regard to granting parexecuted; and upon him no power whatsoever dons, might, if arraigned for the improper exis conferred by the Constitution to inquire ercise of that power in a particular case, plead whether the law that he is charged to execute and prove his good motives, although his action is or is not constitutional. The constitutional might be universally condemned as improper injunction upon you, in your present capacity, or unwise in that particular case. But the is to hold the respondent faithfully to the exe- circumstances of this respondent are wholly 563 different. The law which, as he admits, he has constitutional, may refuse to execute it, then intentionally and deliberately violated, was your laws for the reconstruction of the southern mandatory upon him, and left*in his hands no States, your laws for the collection of the indiscretion as to whether he would, in a given ternal revenue, your laws for the collection of case, execute it or not. custom-house duties, are dependent for their A public officer can neither plead nor prove execution upon the individual opinion of the good motives to refute or control his own ad- President as to whether they are constitutional mission that he has intentionally violated a or not; and if these laws are so dependent, all public law. other laws are equally dependent upon the opinTake the case of the President; his oath is: ion of the Executive. Hence it follows that, " I do solemnly swear that Iwill faithfully execute whatever the legislation of Congress may be, the the office of President of the United States, and will laws of the country are to be executed only so to the best of my ability preserve, protect, and de- far as the President believes them to be constifend the Constitution of the United States." This respondent avers that his sole One of the provisions of that Constitution is object in violating the tenure-of-office act was that the President shall " take care that the to obtain the opinion of the Supreme Court laws be faithfully executed." In this injunc- upon the question of the constitutionality of tion there are no qualifying words. It is made that law. In other words, he deliberately viohis duty to take care that the laws. the laws, be lated the law, which was in him a crime, for faithfully executed. A law is well defined to the purpose of ascertaining judicially whether be " a rule laid, set, or established by the law- the law could be violated with impunity or not. making power of the country." It is of such At that very time he had resting upon him the rules that the Constitution speaks in this in- obligations of a citizen to obey the laws, and the junction to the President; and in obedience to higher and more solemn obligation, imposed that injunction, and with reference to his duty by the Constitution upon the first magistrate of under his oath to take care that the laws be the country, to execute the laws. If a private faithfully executed, he can enter into no in- citizen violates a law, he does so at his peril. If quiry as to whether those laws are expedient the President or Vice President, or any other or constitutional, or otherwise. And inasmuch civil officer, violates a law, his peril is that he as it is not possible for him, under the Consti- may be impeached by the House of Representtution, to enter lawfully into any such inquiry, atives and convicted by the Senate. This is it is alike impossible for him to plead or to precisely the responsibility which the respondprove that, having entered into such inquiry, ent has incurred; and it would be no relief to which was in itself unlawful, he was governed him for his willful violation of the law, in the by a good motive in the result which he reached circumstances in which he is now placed, if and in his action thereupon. waving no right the court itself had pronounced the same to be to inquire whether the laws were expedient or unconstitutional. constitutional, or otherwise, if he did so inquire, But it is not easy to comprehend the audaand if upon such inquiry he came to the con- city, the criminal character of a proceeding clusion that, for any reason, he would not exe- by which the President of the United States cute the law according to the terms of the law, attempts systematically to undermine the Govthen he willfully violated his oath of office and ernment itself by drawing purposely into conthe Constitution of the United States. The troversy, in the courts and elsewhere, the necessary, the inevitable presumption in law validity of the laws enacted by the constituted is, that he acted under the influence of bad authorities of the country, who, as much as motives in so doing, and no evidence can be himself, are individually under an obligation introduced controlling or coloring in any degree to obey the Constitution in all their public this necessary presumption of the law. acts. With the same reason and for the same Having, therefore, no right to entertain any object he might violate the reconstruction laws, motive contrary to his constitutional obligation tax laws, tariff acts, or the neutrality laws of to execute the laws, he cannot plead his mo- the country; and thus, in a single day of his tive. Inasmuch as he can neither plead nor official life, raise questions which could not be prove his motive, the presumption of the law disposed of for years in the courts of the counmust remain that in violating his oath of office try. The evidence discloses the fact that he and the Constitution of the United States he has taken no step for the purpose of testing was influenced by a bad motive. The magis- the constitutionality of the law. He suspended trate who willfully breaks the laws, in violation numerous officers under, or, if not under, at of his oath to execute them, insults and out- least, as he himself admits, in conformity with rages the common sense and the common na- the tenure-of-office law, showing that it was ture of his countrymen when he asserts that not his sole object to test its constitutionality. their laws are so bad that they deserve to be He has had opportunity to make application broken. This is the language of a defiant through the Attorney General for a writ of quo usurper, or of a man who has surrendered him- warranto, which might have tested the validity self to the counsel and control of the enemies of the law in the courts. This writ is the writ of his country. of the Government, and it can never be granted If a President, believing the law to be un- upon the application of a private person. The 564 President has never taken one step to test the President was the inevitable result of the law in the courts. Since his attempted re- operation of this provision of the organic law. rnoval of Mr. Stanton on the 21st of February In the first instlanice, several executive Departlast he might have instituted proceedings by a ments were established by acts of Congress, writ of quo warranto, and by this time have and in those Departments offices of various obtained, probably, a judicial opinion covering grades were created. The conduct of foreign all the points of the case. But he shrinks from affairs required the appointment of embas the test he says he sought. Thus is the pretext sadors, ministers, and consuls, and conseof the President fully exposed. The evidence quently those necessary offices were established shows that he never designed to test the law in by law, The President, in conformity with the courts. His object was to seize the offices this provision of the Constitution, made nomof the Government for purposes of corruption, inations to the Senate of persons to fill the and by their influence to enable him to recon- various offices so established. These nominastruct the Union in the interest of the rebel- tions were considered and acted upon by the lionus States. In short, he resorted to this Senate, and when confirmed by the Senate the usurpation as an efficient and necessary means persons so nominated were appointed and of usurping all power and of restoring the authorized by commissions under the hand of Government to rebel hands. the President to enter upon the discharge of No criminal was ever arraigned who offered their respective duties. In the nature of the a more unsatisfactory excuse for his crimes. case it was not possible for the President, durThe President had no right to do what he says ing a session of the Senate, to assign to duty he designed to do, and the evidence shows that in any of the offices so created any person who he never has attempted to do what he now had not been by him nominated to the Senate assigns as his purpose when he trampled the and by that body confirmed, and there is no laws of his country under his feet. evidence that any such attempt was made. These considerations have prepared the way The persons thus nominated and confirmed in some degree, I trust, for an examination of were in their offices under the Constitution, the provisions of the Constitution relating to and by virtue of the concurrent action of the the appointment of embassadors and other pub- President and the Senate. There is not to be lic ministers and consuls, judges of the Supreme found in the Constitution any provision conCourt, and other officers of the United States, templating the removal of such persons from for whose appointment provision is made in the office. But inasmnuch as it is essential to the second section of the second article of the Con- proper administration of affairs that there stitution. It is there declared that the Presi- should be a power of removal, and inasmuch dent' shall nominate," and, by and with the as the power of nomination and confirmation consent of the Senate, shall " appoint embas- vested in the President and in the Senate is a sadors and other public ministers and consuls, continuing power, not exhausted either by a judges of the Supreme Court, and all other single exercise or by a repeated exercise in officers of the United States whose appoint- reference to a particular office, it follows legitiments are not herein otherwise provided for mately and properly that the President might and which shall be established by law." The at anytime nominate to the Senate a person to phrase, "'are not herein otherwise provided fill a particular office, and the Senate, in the for," is understood to refer to Senators, who, exercise of its constitutional power, could conunder the Constitution, in case of a vacancy, firm that nomination, that the person so nommay be appointed by the Governors of the sev- inated and confirmed would have a right to eral States, and to those appointments which take and enjoy the office to which he had been so might be confided by law to the courts or to the appointed, and thus to dispossess the previous heads of Departments. Itis essentialto notice incumbent. It is apparent that no removal the fact that neither in this provision of the can be made unless the President takes the Constitution nor in any other is power given to initiative, and hence the expression "'removal the President to remove any officer. The only by the President." power of removal specified in the Constitution As, by a common and universally recognized is that of the Senate, by its verdict of guilty, to principle of construction, the most recent remove the President, Vice President, or other statute is obligatory and controlling wherever civil officer who may be impeached by the House it contravenes a previous statute, so a recent of Representatives and presented to the Senate commission, issued under an appointment for trial. made by and with the advice and consent of Upon the premises already laid down it is the Senate, supersedes a previous appointment clear that the power of removal from office is although made in the same manner. It is thus not vested in the President alone, but only in apparent that there is, under and by virtue of the President by and with the advice and con- the clause of the Constitution quoted, no power sent of the Senate. Applying the provision of removal vested either in the President or in of the Constitution already cited to the con- the Senate, or in both of them together as an dition of affairs existing at the time the Gov- independent power; but it is rather a conernment was organized, we find that the course sequence of the power of appointment. And pursued by the First Congress and by the first as thd power of appointment is not vested in 565 the President, but only the right to make a have great weight in forming that of the publio, nomination, which becomes an appointment could not fail to operate as a barrier to one and to. the other. He would be both ashamed and afraid to only when the nomination has been confirmed bring forward for the most distinguished or lucraby the Senate, the power of removing a public tive stations candidates who had no other merit than officer cannot be deemed an executive power that of coming from the same State to which he particularly belonged, or of being in some way or other solely within the meaning of this provision of personally allied to him, and possessing the necesthe Constitution. sary insignificance and pliancy to render them the This view of the subject is in harmony with obsequious instruments of his pleasure." the opinion expressed in the seventy-sixth When the President has made a nomination number of the Federalist. After stating with for a particular office, and that nomination has great force the objections which exist to the been confirmed by the Senate, the constitu" exercise of the power of appointing to office tional power of the President during the sesby an assembly of men," the writer proceeds sion of the Senate is exhausted with reference to say: to that officer. All that he can do under the "The truth of the principles here advanced seems Constitution is in the same manner to nominate to have been felt by the mostintelligentof those who a successor, who may be either confirmed or have found fault with the provision made in this re- rejectedby the Senate. Considering the powers spect by the convention. They contend that the of the President exclusively with reference to President ought solely to have been authorized to Slake the appointments under the Federal Govern- the removal and appointment of civil officers ment. But it is easy to show tjiat every advantage during the session of the Senate it is clear that to be expected from such an arrangement would in he can onlyt in concurrence with the Senate. substance be derived from the power of nomination which is proposed to be conferred upon him, while An office being filled, he can only nominate a several disadvantages which might attend the abso- successor, who, when confirmed by the Senate lute power of appointment in the hands of that officer is by operation of the Constitution, appointed would be avoided. In the act of nominating his judgment alone would be exercised, and as it would to the office, and it is the duty of the President be his sole duty to point out the man who with the to issue his commission accordingly. This approbation of the Senate should fill an office, his commission operates as a supersedeas, and the responsibility would be as complete as if he were to make the final appointment. There can, in this view, previous occupant is thereby removed. beno difference between nominating and appointing. No legislation has attempted to enlarge c: The same motives which would influence a proper diminish the constitutional powers ofthe Presdischarge of his duty in one case would exist in the other; and as no man could be appointed but upon ident, and no legislation can enlarge or diminish his previous nomination, every man who might be his constitutional powers in this respect, as I appointed would be in fact his choice. "But his nomination may be overruled. This it shall hereafter show. It is here and now, in certainly may, yet it can only be to make place for the presence of this provision of the Constituanother nomination by himself. The person ulti- tion concerning the true meaning of which mately appointed must be the object of his prefer- there neither is nor has ever been any serious ence, though, perhaps. not in the highest degree. It is also not very probable that his nomination would doubt in the mind of any lawyer or statesman, often beoverruled. TheSenatecouldnotbe tempted that we strip the defense of the President of by the preference they might feel to another to reject all the questions and technicalities which the the one proposed, be.cause they could not assure themselves that the person they might wish would intellects of men, sharpened but not enlarged be brought forward by a second, or by any subse- by the practice of the law, have wrung from the quent nomination. They could not even be certain legislatn ofthe country covering three fourhs that a future nomination would present a candidate in any degree more acceptable to them. And as of a century. their dissent might cast a kind of stigma upon the On the 21st day of February last Mr. Stanindividual rejected, and might have the appearance ton was de facto and de, ure Secretary for the of areflection upon the judgment of the Chief Magis- a The President's letter trati, it is not likely that their sanction would often Department of War. he President's letter be refused, where there were not special and strong to Mr. Stanton of that date is evidence of reasons for the refusal. this fact "To what purpose, then, require the cooperation this fact: of the Senate? I answer that the necessity of their WA ECHINGTON, D. C, FrANSry 21,1868. concurrence would have a powerful, though in general, a silentsoperation. It would be an excellent SIR: By virtue of the power and authority vested check upon the spirit of favoritism in the J?resident, in me as President by the Constitution and laws of and would tend greatly to preventing the appoint- the United States, you are hereby removed from ment of unfit characters, from State prejudice, from office as Secretary for the Department of War, and family connection, from personal attachment, or your functions as such will terminate upon receipt from a view to popularity. And, in addition to this, of this communication. it would be an efficacious source of stability in the You will transferto Brevet Major General Lorenzo Thomas, Adjutant General of the Army, who has Administration. this day been authorzed and empowered to act as " It will readily be comprehended that a man who this day been authorized and empowered to act as had himself the sole disposition of office would be Secretary of War ad interim, all records, books, pagoverned much more by his private inclinations and pers, and other public property now in your custody interests than when he was bound to submit the pro- and charge. priety of his choice to the dictation and determina- Respectfully, yours, ANDREW JOHNSON. tion of a different and independent body, and that Hon. EDWIN M. STANTON, Washington, D. C, body an entire branch of the Legislature. The possibility of rejection would be a strong motive to This letter is an admission, not only that Mr. care in proposing. The danger of his own reputa- Stanton was Secretary of War on the 21st of tion, and, in the case of an elective magistrate, to February, 1868, but also that the suspension his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity of that officer of the 12th of August, A. D. to the observation of a body whose opinion would 1867, whether made under the tenure-of-office 566 act or not, was abrogated by the action of the The President cannot assume to exercise a Senate of the 13th of January, 1868, and that power as a power belonging to the office he then Mr. Stanton thereby was restored law- holds, there being no warrant in law for such' fully to the office of Secretary for the Depart- exercise, and then plead that he is not guilty ment of War. because the act undertaken was not fully acOn the 21st day of February the Senate was complished. The President is as guilty in conin session. There was then but one constitu- templation of law as he would have been if tional way for the removal of Mr. Stanton; a Mr. Stanton had submitted to his demand and nomination by the President to the Senate of retired from the office of Secretary for the Dea successor, and his confirmation by that body. partment of War. Nothing more possible reThe President attempted to remove Mr. Stan- mainedforthePresidentexceptaresortto force ton in a way not known to the Constitution, and what he did and what he contemplated and in violation thereof, by issuing the said doing to obtain possession of the office by force order for his removal. In the first of the arti- will be considered hereafter. cles it is set forth that this order was issued If these views are correct, the President is "in violation of the Constitution and of the wholly without power, under and by virtue of laws of the United States," and the President the Constitution, to suspend a public officer. is consequently guilty under this article if we And most assuredly nothing is found in the have proved a violation either of the Constitu- Constitution to sustain the arrogant claim tion or the laws. If we show that he has vio- which he now makes,: that he may during a lated the Constitution of the United States, session of the Senate suspend a public officer we show also that he has violated his oath of indefinitely and make an appointment to the office, which pledged him to support the Con- vacancy thus created without asking the advice stitution. Thus is the guilt of the President, and consent of the Senate either upon the sus'under the Constitution and upon admitted pension or the appointment. facts, established beyond a reasonable doubt. I pass now to the consideration of the third This view is sufficient to justify and require at clause of the second section of the second artiyour hands a verdict of guilty under the first cle of the Constitution: article, and this without any reference to the artice, and this without any reference to the " The President shall have power to fill up all legislation of the country, and without refer- vacancies that may happen during the recess of the ence to the constitutionality of the tenure-of- Senate, by granting commissions which shall expire office act or to the question whether the See- at the end of their next session." retary of War is included within its provisions The phrase, "may happen," construed acor not. But I intend in the course of my ar- cording to the proper and well-understood gument to deal with all these questions of law, meaning of the words when the Constitution and to apply the law as it shall appear to the was framed, referred to those vacancies which facts proved or admitted. To be sure, in my might occur independently of the will of the judgment, the case presented by the House of Government-vacancies arising from death, Representatives in the name of all the people from resignation, from circumstances not proof the United States might safely be rested duced by the act of the appointing power. here; but the cause of justice, the cause of The words " happen" and "happened" are the country, requires us to expose and demon- of frequent use in the Bible, " that well of pure strate the guilt of the President in all the par- English undefiled," and always in the sense of ticulars set forth in the articles of impeach- accident, fortuity, chance, without previous ment. We have no alternative but to proceed. expectation, as to befall, to light, to fall, or to In this connection I refer to a view presented come unexpectedly. This clause of the Conby the counsel for the President in his open- stitution contains a grant of power to the Presing argument. He insists or suggests that ident, and under and by virtue'of it he may inasmuch as the letter to Stanton of the 21st take and exercise the power granted, but of February did not, in fact, accomplish a nothing by construction or by implication. He removal of the Secretary, that therefore no then, by virtue of his office, may, during the offense was committed. The technicalities of recess of the Senate, grant commissionswhich the law have fallen into disrepute among the shall expire at the end of the next session, and people, and sometimes even in the courts. thus fill up any vacancies that may happen; The technicalities proper of the law are the that is, that may come by chance, by accident, rules developed by human experience, and without any agency on his part. justly denominated, as is the law itself, the If, then, it be necessary and proper, as unperfection of human reason. These rules, doubtedly it is necessary and proper, that prowise though subtle, aid in the administration vision should be made for the suspension or of justice in all tribunals where the laws are temporary removal of officers who, in the recess judicially administered. But it often happens of the Senate, have proved to be incapable or that attorneys seek to confuse the minds of dishonest, or who in the judgment of the Presmen and thwart the administration of justice ident are disqualified for the further discharge by the suggestion of nice distinctions which of the duties of their offices, it is clearly a have no foundation in reason and find no sup- legislative right and duty, under the clause of port in general principles of right. the Constitution which authorizes Congress — 567 "' to make all laws which shall be necessaryand solutely, his removal to be followed by the proper to carry into execution the foregoing nomination of a successor to the Senate, they powers, and all other powers vested in the might yet have denied to the President the: Government of the United States, or in any power to suspend public officers indefinitely department or officer thereof," to provide for and to supply their places by his appointees the contingency. It is no answer to this view without the advice and consent of the Senate. of the case to say that until the 2d of March, But, inasmuch as the power to suspend inde1867, Congress neglected to legislate upon this finitely is not a power claimed as a specific grant subject; and that during the long period of under the Constitution, and as the claim by the such neglect, by the advice of Attorneys Gen- President of the power of removal during a eral, the practice was introduced and cen- session of the Senate is not sustained by the tinnued, by which the President, during the re- text of the Constitution or by any good authorcess of the Senate, removed from office per- ity under it, it is not important to consider sons who had been nominated by the President whether, if the power of removal were admitted and confirmed by the Senate. This practice to exist, the power fo suspendindefinitely could having originated in the neglect of Congress to be considered as an incident. It is sufficient legislate upon a subject clearly within its juris- to say that neither power, in the sense claimed diction, and only tolerated by Congress, has, by the President, exists under the Constitution at most, the force of a practice or usage which or by any provision of law. can at any time be annulled or controlled by I respectfully submit, Senators, that there statute. can be no reasonable doubt of the soundness This view is also sustained by the reasoning of the view I have presented, both of the lanof Hamilton, in the sixty-seventh number of guage and meaning of the Constitution in rethe Federalist, in which he says: gard to appointments to office. But, if there "The last of these two clauses. it is equally clear, were any doubt, it is competent and proper cannot be understood to comprehend the power of to consider the effects of the claim, if recogfilling vacancies in the Senate, for the following ned, as set up by the President. And in a reasons: First, the relation in which that clause stands to the other, which declares the general mode matter of doubt as to the construction of the of appointing officers of the United States. denotes Constitution it would be conclusive of its true it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary methdd interpretation that the claim asserted by the of appointment in cases to which the general method President is fraught with evils of the gravest was inadequate. The ordinary power of appointment character. He claims the right, as well when is confided to the President and Senate.jointly, and theSenate is in session as en i is no in can therefore only be exercised during the session ofas whenit isnotin the Senate' but as it would have been improper to session, to remove absolutely, or to suspend oblige this body to be continually in session for the for an indefinite period of time, according to appointment of officers, and asvacancies might hap- his own discretion, every officer of the rmy, pen ini their recess, which it might be necessary for the public service to fill without delay, the succeed- of the Navy, and of the civil service, and to ing clause is evidently intended to authorize the supply their placeswith creatures and partisans President, singly, to make temporary appointments of his own. To b sure, he has not asserted,'during the recess of the Senate, by granting com- his own. To be sure, he has not asserted, missions which should expire at the end of their in direct form, his right to remove and suspend next session."' indefinitely officers of the Army and Navy; but The arguments which I have thus offered, when you consider that the Constitution makes and the authorities quoted, show that the Pres- no distinction in the tenure of office between ident had not the power during the session of military, naval, and civil officers; that all are the Senate to remove either the Secretary of nominated originally by the President and reWar or any civil officer from officQ by virtue ceive their appointments upon the confirmation of the Constitution. The power of removal of the Senate, and hold their offices under the during the recess of the Senate was recognized Constitution by no other title than that which by the act of 1789, and tolerated by the coun- secures to a Cabinet officer or to a revenue coltry upon the opinions of Attorneys General till lector the office to which he has been appointed, 1867. The President claims, however, and as there can be no misunderstanding as to the an incident of the power of removal, the power nature, extent, and dangerous character of the to suspend from office indefinitely any officer claim which the President makes. The stateof the Government; but inasmuch as his claim ment of this arrogant and dangerous assumpto the power of removal is not supported by tion is a sufficient answer to any doubt which the Constitution, he cannot sustain any other might exist in the mind of any patriot as to claim as an incident of that power. Butif the the true intent and meaning of the Constitupower to remove were admitted, it would by tion. It eannotbe conceived thatthe men who no means follow that the President has the framed that instrument, who were devoted to power to suspend indefinitely. The power to liberty, who had themselves suffered by the suspend indefinitely is a different power from exercise of illegal and irresponsible power, that of removal, and it is in no proper sense would have vested in the President of the necessarily an incident. It might be very well United States an authority, to be exercised conceived that if the framers of the Constitu- without the restraint or control of any other tion had thought fit to confer upon the Presi- branch or department of the Government, dent the power to remove a public officer ab- which would enable him to corrupt the civil, 568 military, and naval officers of the country by dience to his will, they compensated themselves rendering them absolutely dependent for their for this devotion and this obedience by frauds positions and emoluments upon his will. upon the revenues and by crimes against the At the present time there are forty-one laws of the land. Hence it has happened that thousand officers, whose aggregate emoluments in the internal revenue service alone-chiefly exceed $21,000,000 per annum. To all these through the corruption of men whom he has the President's claim applies. These facts thus appointed-the losses have amounted to express the practical magnitude of the subject. not less than twenty-five, and probably to more Moreover, this claim was never asserted by than fifty million dollars during the last two any President or by any public man from the years. beginning of the Government until the present In the presence of these evils, which were time. It is in violation also of the act of July then only partially realized, the Congress of 13, 1866, which denies to the Executive the the United States passed the tenure-of-office power to remove officers of the Army and the act as a barrier to their further progress. Navy, except upon sentence of a court-martial. This act thus far has proved ineffectual as a The history of the career of Andrew Johnson complete remedy; and now the President, by shows that he has been driven to the assertion his answer to the articles of impeachment, of this claim by circumstances and events con- asserts his right to violate it altogether, and nected with his criminal design to break down by an interpretation of the Constitution which the power of Congress, to subvert the institu- is alike hostile to its letter and to the peace tions of the country, and thereby to restore and welfare of the country he assumes to the Union in the interest of those who partici- himself absolute and unqualified power over pated in the rebellion. Having entered upon all the offices and officers of the country. The this career of crime, he soon found it essential removal of Mr. Stanton, contrary to the Conto the accomplishment of his purposes to secure stitution and the laws, is the particular crime the support of the immense retinue of public of the President for which we now demand officers of every grade and description in the his conviction. The extent, the evil characcountry. This he could not do without making ter, and the dangerous nature of the claims by them entirely dependent upon his will; and in which he seeks to justify his conduct are conorder that they might realize their dependence, trolling considerations. Byhis conviction you and thus be made subservient to his purposes, purify the Government and restore it to its orihe determined to-assert an authority over them ginal character. By his acquittal you surrenunauthorized by the Constitution, and there- der the Government into the hands of an usurpfore not attempted by any Chief Magistrate: ing and unscrupulous man, who will use all the His conversation with Mr. Wood in the autumn vast power he now claims for the corruption of 1866 fully discloses this purpose. of every branch of the public service and the Previous to the passage of the tenure-of- final overthrow of the public liberties. office act he had removed hundreds of faithful Nor is it any excuse for the President that and patriotic public officers, to the great detri- he has, as stated in his answer, taken the adment of the public service, and followed by an vice of his Cabinet officers in support of his immense loss of the public revenues. At the claim. In the first place, he had. no right time of the passage of the act he was so far under the Constitution to the advice of the involved in his mad schemes-schemes of am- head of a Department except upon subjects bition and revenge-that it was, in his view, relating.to the duties of his Department. If impossible for him to retrace his steps. He the President has chosen to seek the advice of consequently determined, by various artifices his Cabinet upon other matters, and they have and plans, to undermine that law and secure to seen fit to give it upon subjects not relating himself, in defiance of the will of Congress and to their respective Departments, it is advice of the country, entire control of the officers in which he had no constitutional authority to the civil service and in the Army and the Navy. ask, advice which they were not bound to IHe thus becamegradually involved in an unlaw- give, and that advice is to him, and for all ful undertaking.from which he could not re- the purposes of this investigation and trial, as treat. In the presence of the proceedings the advice of private persons merely. But of against him by the House of Representatives what value can be the advice of men who, in he had no alternative but to assert that under the first instance, admit that they hold their the Constitution power was vested in the Pres- offices by the will of the person who seeks ident exclusively, without the advice and con- their advice, and who understand most clearly sent of the Senate, to remove from office every that if the advice they give should be contrary person in the service of the country. This to the wishes of their master they would be at policy, as yet acted upon in part, and devel- once, and in conformity with their own theory oped chiefly in the civil service, has already pro- of the rights of the President, deprived of the duced evils which threaten the overthrow of offices which they hold? Having first made the Government. When he removed faithful these men entirely dependent upon his will, he public officers, and appointed others whose only then solicits their advice as to the application claim to consideration was their unreasoning of the principle by which they admit that they devotion to his interest and unhesitating obe- hold their places to all the other officers of the 569 Government. Could it have been expected not become his instruments, and all who bethat they, under such circumstances, would come his instruments are destroyed in the use. have given advice in any particular disagree- He spares no one. Already this purpose of able to the will of him who sought it? his life is illustrated in the treatment of a genIt was the advice of serfs to their lord, of tleman who was of counsel for the respondent, servants to their master, of slaves to their but who has never appeared in his behalf. owner. The thanks of the country are due to those The Cabinet respond to Mr. Johnson as old distinguished soldiers who, tempted by the Polonius to Hamlet. Hamlet says: President by offers of kingdoms which were "Do you see yonder cloud, that's almost in shape not his to give, refused to fall down and worof a camel? ship the tempter. And the thanks of the "Polonius. By the mass, and'tis like a camel, country are not less due to General Emory, "Hamlet. Methinks it is like a weasel. who, when brought into the presence of the "Polonius. It is backed like a weasel. President by a request which he could not dis"Hamlet. Or, like a whale? obey, at once sought to protect himself against "Polonius. Very like a whale." his machinations by presenting to him the law The gentlemen of the Cabinet understood the upon the subject of military orders. position that they occupied. The President, The experience and the fate of Mr. Johnin his message to the Senate upon the suspen- son's eminent adherents are lessons of warnsion of Mr. Stanton, in which he says that he ing to the country and to mankind; and the took the advice of his Cabinet in reference to:his more eminent and distinguished of his adheaction upon the bill regulating the tenure of rents have furnished the most melancholy lescertain civil offices, speaks thus: sons for this and for succeeding generations. "The bill had then not become a law. The limita- It is not that men are ruined when they tion upon the power of removal-was notyet imposed, abandon a party; but in periods of national and there was yet time to make any changes. Ifany trial nd peril t one of these gentlemen had then said to me that he trial and peril the people will not tolerate those would avail himself of the provisions of that bill in who, in any degree or under any circumstances, case it became a law. I should not have hesitated a falter in their devotion to the rights and inmoment as to his removal." terests of the Republic. In the public judgHaving indulged his Cabinet in such freedom ment, which is seldom erroneous in regard to of opinion when he consulted them in reference public duty, devotion to the country and adto the constitutionality of the bill, and having herence to Mr. Johnson are and have been covered himself and them with public odium by wholly inconsistent. its announcement, he now vaunts their opin- Carpenter's historical painting of Emancipaions, extorted by power and given in subserv- tion is a fit representation of an event the most iency, that the law itself may be violated with illustrious of any in the annals of America impunity. This, says the President, is the exer- since the adoption of the Constitution. Indeed, cise of my constitutional right to the opinion it is second to the ratification of the Constitu. of my Cabinet. I, says the President, am re- tion only in the fact that that instrument, as a sponsible for my Cabinet. Yes, the President means of organizing and preserving the nation, is responsible for the opinions and conduct rendered emancipation possible. The princiof men who give such advice as is demanded, pal figure of the scene is the immortal Lincoln, and give it in fear and trembling lest they be whose great virtues endear his name and memat once deprived of their places. This is the ory to all mankind, and whose untimely and President's idea of a Cabinet, but it is an violent death, then the saddest event in our idea not in harmony with the theory of the Con- national experience, but now not deemed so stitution. great a calamity to the people who loved him The President is a man of strong will, of and mourned for him as no public man was violent passions, of unlimited ambition, with ever before loved or lamented, as is the shame, capacity to employ and use timid men, adhe- humiliation, disgrace, and suffering caused by sive men, subservient men, and corrupt men, the misconduct and crimes of his successor. as the instruments of his designs. It is the It was natural and necessary that the artist truth of history that he has injured every per- should arrange the personages of the group on son with whom he has had confidential rela- the right hand and on the left of the principal tions, and many have escaped ruin only by figure. Whether the particular assignment was withdrawing from his society altogether. He by chance, by the taste of the artist, or by the has one rule-of life: he attempts to use every influence of a mysterious Providence which man of power, capacity, or influence within works through human agency, we know not. his reach. Succeeding in his attempts, they But on the right of Lincoln are two statesmen are in time, and usually in a short time, utterly and patriots who, in all the trials and vicissiruined. If the considerate flee from him, if tudes of these eventful years, have remained the brave and patriotic resist his schemes or steadfast to liberty, to justice, to the principles expose his plans, he attacks them with all the of constitutional government. Senators and enginery and patronage of his office and pur- Mr. Chief Justice, in this presence I venture sues them with all the violence of his personal not to pronounce their names. hatred. He attacks to destroy all who will On the left of Lincoln are five figures repre 570 senting the other members of his Cabinet. ask your attention to the character and history One of these is no longer among the living; he of the act of 1789, on which stress has been laid died before the evil days came, and we may bythePresidentinhisanswer,andbythelearned indulge the hope that he would have escaped counsel who opened the case for the responds the fate of his associates. Of the other four ent. The discussion in the House of Reprethree have been active in counseling and sup- sentatives in 1789 related to the bill establish;porting the President in his attempts to subvert ing a Department of Foreign Affairs. The first the Government. They are already ruined section of that bill, as it originally passed the men. Upon the canvas they are elevated to House of Representatives, after recapitulating the summit of virtuous ambition. Yielding to the title of the officer who was to take charge the seductions of power they have fallen. Their of the Department, and setting forth his duties, example and fate may warn us, but their ad- contained these words in reference to the Secvice and counsel, whether given to this tribunal retary of the Department: " To be removable or to him who is on trial before this tribunal, from office by the President of the United cannot be accepted as the judgment of wise or States." The House, in Committee of the of patriotic.men. Whole, discussed this provision during several On motion of MIr. SPRAGUE, at two o'clock days, and all the leading members of the body and fifteen minutes p. m., the Senate took a appear to have taken part in the debate. As recess for fifteen minutes. is well known, there was a difference of opinAt the expiration of the recess the Chief ion at the time as to the meaning of the ConJustice resumed the chair and called the Sen- stitution. Some contended that the power of ate to order.. removing civil officers was vested in the PtesiMr. SHERMAN. I move that the roll of dent absolutely, to be exercised by him, withthe Senators be called, so that we may get their out consultation with the Senate, and this as attendance. well when the Senate was in session as during Mrif. CONNESS. That is never done, vacations. Others maintained that the initiaMr. SHERMAN. It can be done. A mo- tive in the removal of a public officer must be tion to adjourn will have the same effect praci taken by the President, but that there could be tioally. no actual removal except by the advice and Mr. CONNESS. The Senator may move an consent of the Senate, and that this rule was adjournmen't and get a call in that way. applicable to the powers of the.President as Mr. SHERMAN. I move a call of the well during the vacation as during the session Senators. of the Senate. Others maintained that during The CHIEF JUSTICE. The Senator from the session of the Senate, while the initiative Ohio moves that the roll of the Senate be was in the President, the actual removal of a called. civil officer could: be effected only upon the Mr. CONNESS. It never has been done. advice and consent of the Senate, but that durMr. SUMNER. The rule provides for a ing the vacations the President might remove call of the Senate. such officers and fill their places temporarily, ir. CONNESS. I should like to hear the under commissions, to expire at the end of the rule. next session of the Senate. Mr. Madison Mr. SUMNER. It is Rule 16. maintained the first of these propositions, and The CHIEF JUSTICE. The Secretarywill he may be said to be the-only person of historread the sixteenth rule of the Senate. ical reputation at the present day who expressed The Chief Clerk read as follows: corresponding opinions, although undoubted"16. When the yeas and naysshallbe called for by ly his views were sustained by a considerone fifth of the Senators present, each Senator called able number of members. Jt is evident from upon shall, unless for special reasons he be excused an examination of the debae that Mr. Madiby the Senate, declare openly and without debate histhat Mr. M assent or dissent to the question. In taking the yeas son s views were gradually and finally successand nays, and upon a call of the Senate, the names fully undermined by the discussion on that of the Senators shall be called alphabetically." occasion. The CHIEF JUSTICE. If there be no ob- As is well known, Roger Sherman was then jection the Secretary will call the roll to ascer- oie of the most eminent members of that body. tain who are present. He was a signer of the Declaration of Inde. Mr. DRAKE. I object, sir. pendence, a member of the Convention which Mr. SHERMAN. 1 move that there be: a framed the Constitution of the United States, call of the Senate. and a member of the House of Representa-' The motion was agreed to; and the roll tives of the First Congress. He was undoubtbeing called, forty-four Senators answered to edly one of the most illustrious men of the contheir names. stitutional period of American history; and in The CHIEF JUSTICE. There are forty- each succeeding generation there have been four Senators answering to their names. The eminent persons of his blood and name; but honorable Manager will proceed. at no period has his family been more distinMr-. Manager BOUTWELL. Mr. President, guished than at the present time. Mr. SherSenators, leaving the discussion of the provis- man took a leading part in the discussion, and iWou of the Constitution, I am now prepared to there is no doubt that the views which he enter 571 tained and expressed had a large influence in In harmony with the views of MBr. Shermaui producing the result which was finally reached. was the opinion expressed by Mr. Jackson, of The report of the debate is found in the first Georgia, found on page 508 of the same volume. volume of the Annals' of Congress; and' I He says: quote from the remarks made by Mr. Sherman, " I shall agree to give him [that is, the President] preserved on pages 510 and 611 of that volume: the same power in cases of removal that he has in appointing; but nothing more. Upon this principle "Mr. SHERMAN. I consider this a very important I would agree to give him the power Of suspension: subject in every point of view, and therefore worthy during the recess of the Senate. This, in my opinion, of full discussion. In my mind.it involves three would effectually provide against those inconvenquestions. First. Whether the President has, by the iences which have been apprehended and not ex-. Constitution, the rightto remove an officer appointed pose the Government to those abuses we have to by and with the advice and consent of the Senate. dread from the wanton and uncontrollable authority No gentleman contends but that the advice and con- of removing officers at pleasure." sent of the Senate are necessary to make the appointment in all cases, unless in inferior offices where the It may be well to observe that Mr. Madison, contrary is established by law; but then they allege in maintaining the absolute power of the Presthat, although the consent of the Senate be neces- idcers, coupled with h sary to the appointment, the President alone, by the nt to remove civil officers coupled with his nature of his office, has the power of removal. Now, opinions upon that point doctrines concerning it appears to me that this opinion is ill-founded, be- the power of impeachment which would be cause this provision was intended for some useful wholly unacceptable to this respondent. And purpose, and by that construction would answer wholly unacceptable to th none at all. I think the concurrence of the Senate indeed, it is perfectly apparent that without as necessary to appoint an officer as the nomination the existence of the power to impeach and reof the President; they are constitited as mutual e the President of the Unite States from checl&, each having a negative upon the other. United States from "I consider it as an established principle that the office in the manner maintained by Mr. Madipower which appoints can also remove, unless there son in that debate, that the concession of are express exceptionsmade. Now, the powerwhich absolute power of removalwould end in the appoints the judges cannot displace them, because there is a constitutional restriction in their favor; destruction of the Government, Mr. Madison, otherwise the President, by and with the advice and in that debate, said: consent of the Senate, being the power which appointed them, would be sufficient to remove them. The danger to liberty, the danger ofmaladminisThis is the construction in England, where the king traion, has not yet been found to lie so much in the has the power of appoininng judges; it was declared facility of introducing improper persons into office ta be during pleasure, and they might be removed as in the diffieulty of displacing those who are Pnwhen the monarch thought proper. It is a general worthy of the public trust."-Annals of onsress, p. principle in law as well as reason that there shall 515, vol. - be the same authority to remove as to establish. It Again, he says: is so in legislation, where the several branches whose concurrence is necessary to pass a law must concur "Perhapsthegreat danger, ashasbeen observed, of in repealing it. Just so I take it to be in cases of abuse in the executive power lies in the improper appointment, and the President alone may remove continuance of bad men in office. But the power we When he alone appoints, as in the case of inferior contend for will not enable him to do this; for if an offices to be established by law." * * * * * unworthy man-be continued in office by an unworthy "As the office is the mere creature of the Legisla- President the House of Representatives can at any ture we may form it under such regulations as We time impeach him, and the Senate can remove him, please, with such powers and duration as we think whether the President chooses or not. The danger, good policy requires. We may say he shall hold his then, consists merely in this: the President can disoffice during good behavior, or that he shall be an- place from office a man whose merits require that he nually elected. We may say he shall be displaced should be continued in it. Whatvill be the motives for neglect of duty, and point out how he shall be which the President can feel for such abuse of his convicted of it without calling upon the President power and the restraints that operate to prevent it? or Senate. In the first place he will be impeachable by this " The third question is, if the Legislature has the House before the Senate for such an act of maladpower to authorize the President alone to remove ministration; for I contend that the wanton removal ths officer whether it is expedient to invest him with of meritorious officers Would subject him to impeachit? I do not believe it absolutely necessary that he ment and remioval from his high trust." —Annals of should have such power, because the power of sus- Congress, p. 517, vol. 1. pending would answer all the purposes which gentle- It is thus seen that Mr Madison took great men have in view by giving the power of removal. I do not think that the officer is only to be removed care to connect his opinions of the power of by impeachment, as is argued by the gentleman from removal in the President with a distinct declaSouth Carolina, (Mr. Smith,) because he is the mere ration that if this power was mproprly exe creature of the law, and we can direct him to be removed on conviction of mismanagement or inability cised by the President he would himself be without calling upon the Senate for their concur- liable to impeachment and removal from-office. rence. But I believe, if we make no such provision, Ifis opons wereto be accepted he may constitutionally be removed by the President, by and with the advice and consent of theSen- by the President as a whole, he would be as ate; and I believe it would be most expedient for us defenseless as he is at the present time if artosay nothing in the clause on this subject." raigned upon articles of impeachment based I may be pardoned if I turn aside for a mo- upon acts of maladministration in the removal ment, and, addressing myself to the learned of public officers. The result of the debate gentleman of counsel for the respondent who upon the bill for establishing the executive Deis to follow me in argument, I request him to partment of Foreign Affairs was that the phrase refute, to overthrow the constitutional argu- in question which made the head of the Department of his illustrious ancestor, Roger Sher- ment " removable from office by the President man. Doing this, he will have overcome the of the United States" was stricken out by a first, but only the first, of a series of obstacles vote of 31 in the affirmative to 19 in the negain the path of the President. tive, and another form of expression was intr0o 572 duced into the second section which is mani- the subject of removal that the clause was festly in harmony with the views expressed by struck out by an amendment. The House reMr. Sherman and those who entertained cor- fused to concur, however, and the Senate, by responding opinions, the casting vote of the Vice President, receded The second section is in these words: from the amendment. " SEC. 2. And be itfurther enacted, That there shall All this shows that the doctrine of the right be in the said Department an inferior officer, to be of removal by the President survived the deappointed by-the said principal officer, and to be em- bate only as a limited and doubtful right at ployed therein as he shall deem proper, and to be called the chief clerk of the Department of Foreign most. Affairs, and who, whenever the said principal officer The results reached by the Congress of 1789 shall be removed from office by the President of the oncluve upo following points: that United States, or in other case of vacancy, shall, are c n the following points: that during such vacancy, have the charge and custody that body was of opinion that the power of of all records, books, and papers appertaining to said removal was not in the President absolutely, Department."-United 2States9.tatyte-at-Large, vol 1 to be exercised at all times and under all cirIt will be seen thatthe phrase here employed, cumstances; and secondly, that during the ses" whenever the said principal officer shall be sions of the Senate the power of removal was removed from office by the President of the vested in the President and Senate, to be United States," is not a grant of power to the exercised by their concurrent action; while President; nor is it, as was asserted by the thedebateand thevotesindicatethatthepower counsel for the respondent, a legislative inter- of the President to remove from office during pretation of a constitutional power. But it is the vacationof the Senate was, at best, a merely at most a quasi recognition of a power doubtful power under the Constitution. in the Constitution to be exercised by the Pres- becomes us next to consider the practice ident, at some time, under some circumstances, of the Government, under the Constitution, and subject to certain limitations. But there ist no statement or declaration of the time when Congress, by virtue of which the President now no statement or declaration of the time when claims an absolute, unqualified, irresponsible such power could be exercised, the circum- claims an absolute, unqualified, irresponsible Stances under which it might be exercised, or power over all public officers, and this without the advice and consent of the Senate or the the limitations imposed upon its exercise. All these matters are left subject to the op ernment of an the early years of the Goveration of the Constitution and to future legis- In the removal of a public of the Governlation. This is in entire harmony with the the removal of a public officer by the decla ration made by Mr. White, of Norwi the President was a rare occurrence, and it was Carolina, in the debate of 1789. He says: usually resorted to during the session of the Senate, for misconduct in office only, and ac"Let us then leave the Constitution to a free oper- complished by the appointment of a successor ation, and let the President, with or without the consent of the Senate, carry it into execution. Then, through the advice and consent of the Senate. if any one supposes himself injured by their determ- Gradually a practice was introduced, largely ination, let him have recourse' to the law, and its through the example of Mr. Jefferson of redecision will establish the true construction of the efferson, of reConstitution." moving officers during the recess of the SenMr. Gerry. of.Massachusetts, also said: ate and filling their places under commissions "Hence all construction of themeaning of the Con- to expire at the end of the next session. But stitution is dangerous or unnatural, and therefore it cannot be said that this practice became comought to be avoided. This is our doctrine, that no mon until the election f Genral Jackson, in power of this kind ought to be exercised by the Legis-on of General Jackson, in lature. But we say, if we must give a construction 1828. During his administration the practice to the Constitution, it is more natural to give the con- of removing officers during the recesses of the struction in favor of the power of removal vesting in Senate was largely and n the year the President, by and with the advice and consent of Senate was largely increased, and in the year the Senate; because it is in the nature of things that 1832, on the 18th of September, General Jackthe power which appoints removes also." son removed Mr. Duane from the office of SecAgain, Mr. Sherman said, speaking of the retary of the Treasury. This occurred, howwords which were introduced into the first ever, during a recess of the Senate. This act section and finally stricken out: on his part gave rise to a heated debate in " I wish, Mr. Chairman, that the words may beleft Congress and an ardent controversy throughout of the bill, without giving up the question either out the country, many of the most eminent way as to the propriety of the measure." men contending that there was no power in The debate upon the bill relating to the De- the President to remove a civil officer, even partment for Foreign Affairs occurred in the during the recess of the Senate. The triumph month of June, 1789; in the following month of General Jackson in that controversy gave a of August Congress was engaged in consider- full interpretation to the words which had been ing the bill establishing the Treasury Depart- employed in the statute of 1789. ment. This bill originated in the House, and 1But, at the same time, the limitations of that contained the phrase now found in it, being power in the President were clearly settled, the same as that containedin the bill establish- both upon the law and upon the Constitution, ing the State Department. that whatever might be his power of removal The Senate was so far satisfied of the impol- during a recess of the Senate, he had no right icy of making any declaration whatever upon to make a removal during a session of the Sen 573 ate, except upon the advice and consent of that practice, it is also true, for stronger reasons, body to the appointment of a successor. This that Mr. Johnson was bound by his oath of was the opinion of Mr. Johnson himself, as office to adhere to the practice of his predestated by him in a speech made in the Senate cessors in other particulars, none of whom had on the 10th of January, 1861: ever ventured to remove a civil officer from "Imeant that the true way to fight the battle was his office during the session of the Senate and for us to remain here and occupy the places assigned appoint a successor, either permanent or ad to us by the Constitution of the country. Why did I interim, and authorize that successor to enter make that statement? It was because on the 4th day an thorize that successor to enter of March next we shall have six majority in this upon the discharge of the duties of such office. body; and if, as some apprehended, the incoming The case of Timothy Pickering has been exAdministration shall show any disposition to make plained and it constitutes no exception. As encroachments upon the institution of slavery, en- plained and it constitutes no exception. As croachments upon the rights of the States or any far as is known to me the lists of removals and other violation of the Constitution, we, by remaining appointments introduced by the respondent do in the Union and standing at our places, will have t sustain the the power to resist all these encroachments. How? no claim of the answer in regard We have the power even to reject the appointment to the power of removal. of the Cabinet officers of the incoming President. Hence it is that the act of 1789 is no security Then should we not be fighting the battle in the to this respondent, and hence it is that we hol Union by resisting even the organization of the Ad-to this respondent, and hence it is that we hold ministration in a constitutional mode, and thus, at him guilty of a violation of the Constitution and the very start, disable an Administration which was of his oath of office under the first and third likely to encroach on our rights and to violate the articles of impeachment ehibited against him Constitution of the country? So far as appointing ar impeachment exhibited against him even a minister abroad is concerned, the incoming by the House of Representatives, and this withAdministration will have no power without our con- out availing ourselves of the provisions of the sent if we remain here. It comes into office hand- tenure-of-office act of March 2, 1867. cuffed. powerless to do harm. We, standing her. tenure-of-office act of March 2, 1867. hold the balance of power in our hands; we can resist I respectfully ask that the views now subit at the very threshold effectually, and do it inside mitted in reference to the act of 1789, may be of the Union and in our house. The incoming Ad- nsidered n connection with the rgume ministration has not even the power to appoint a consere n connection with the argument I postmaster whose salary exceeds $1,000 a year with- have already offered upon the true meaning out consultation with, and the acquiescence of, the of the provisions of the Constitution relating Senate of the United States. The President has not to the appointment of civil officers. even the power to draw his salary, his $25,000 per annum, unless we appropriate it."-Conaressional I pass now to the consideration of the act Globe, vol.-, page-. of the 13th of February, 1795, on which the It may be well observed that, for the pur- President relies as a justification for his apposes of this trial, and upon the question pointment of Lorenzo Thomas as Secretary of whether the President is or is not guilty under War ad interim. By this act it is provided: the first three articles exhibited against him by "In case of vacancy in the office of Secretary of the House of Representatives, it is of no con- State, the Secretary of the Treasury, or of the Secsequence whether the President of the United retary of the Department of War, or of any other officer of either of the said Departments whose apStates has power to remove a civil officer dur- pointment is not in the head thereof, whereby they ing a recess of the Senate. The fact charged cannot perform the duties of their said respective and proved againstthe President, and on which, offices, itshallbe lawfulforthePresidentoftheUnited States, in case he shall think it necessary, to authoras one fact proved against him, we demand his ize any person or persona, at his discretion, to perconviction, is, that he attempted to remove form the duties of the said respective offices until a Mr. Stanton from the office of Secretary of successor be appointed or such vacancy be filled: Provided, That no one vacancy shall be supplied War during a session of the Senate. It can- in manner aforesaid, for a longer term than six not be claimed with any propriety that the act months."-1 Statutes-at-Large, p. 415. of 1789 can be construed as a grant of power The ingenuity of the President and his countolhe President to an extent beyond the prac- sel has led them to maintain that the phrase tice of the Government for three quarters of "in case of vacancy," used in this statute, a century under the Constitution and under relates to any and every vacancy, however pro-'the provisions of the law of 1789. None of duced. But the reading of the entire section, the predecessors of Mr. Johnson, from General whether casually or carefully, shows that the Washingtoi to Mr. Lincoln, although the act purpose of the law was to provide a substitute of 1789 was in existence during all that period, temporarily in case of vacancy whereby the had ever ventured to claim that either under person in office could not perform the duties that act or by virtue of the Constitution the of his office, and necessarily applied only to President of the United States had power to those contingencies of official life which put it remove a civil officer during a session of the out of the power of the person in office to disSenate without its consent and advice. The charge the duties of the place; such as sickutmost. that can be said is, that for the last ness, absence, or inability of any sort. And forty years it had been the practice of the Ex- yet the President and his counsel contend that ecutive to remove civil officers at pleasure dur- a removal by the President is a case of vacancy ing the recess of the Senate. While it may be contemplated by the law, notwithstanding the urged that this practice, in the absence of any limitation of the President in his power of direct legislation upon the subject, had become appointing an officer temporarily as to those the Common law of the country, protecting the cases which render it impossible for the duly Executive in a policy corresponding to that commissioned officer to perform the duties of 574 his office. When it is considered,, as I have then the appointment of General Thomas Secshown, that the President had no power-and retary of War ad interim is without authority this without considering the tenure-of-office act or the color of authority of law. of March 2, 1867-to create a vacancy during The fact is, however, that the statute of 1795 a session of the Senate, the act of 1795, even is repealed by the operation of the statute of upon his construction, furnishes no defense the20th ofFebruary, 1863. (Statutes-at-Large, whatever. But we submit that if he had pos- vol. 12, p. 656.) sessed the power which he claims by virtue of If Senators will consider the provisions of the act of 1789, that the vacancy referred to in the statute of 1863 in connection with the power the act of 1795 is not such a vacancy as is of removal under the Constitution during a sescaused by the removal of a public officer, but sion of the Senate, by and with the advice and that that act is limited to those vacancies which consent of the Senate, and the then recognized arise unavoidably in the public service and power of removal by the President during a without the agency of the President. But there recess of the Senate to be filled by temporary is in the section of the act of 1795, on which appointments, as was the practice previous to the President relies, a proviso which nullifies March 2, 1867, they will find that provision absolutely the defense which he has set up. was made by the act of 1863 for every vacancy This proviso is that no one vacancy shall be which could possibly arise in the public service. supplied in manner aforesaid (that is, by a The act of February 20, 186g, providestemporazry appointment) foraloqnger term "than_ "Tht in case of the death, resignation, absence six months. from the seat of Government, or sickness of the head Mr. Johnson maintains that he suspended of an executive Department of the Government, or Mr. Stanton from the office of Secretary of War of any officer of either of the said Departments whose r.Stantonfromtheoffice fSecretaryofWar appointment is not in the head thereof, whereby they on the 12th of August last, not by virtue of the cannot perform the duties of their respective offces, it tenure-of-office act of March 2, 1867, but under shall be lawful forthe President of the United States, a power incident to the general and unlimited in case he shall think it necessary, to authorize the bead of any other executive Department or other power of removal, which, as he claims, is vested officer in either of said Departments whose appoint-'in the President of the United States, and that, ment is vested in the President, at his discretion, to from the 12th of August last, MPr. Stanton has perform the duties of the said respective offices until a successor be appointed, or until such absence or innot been entitled to the office of Secretary for ability shall cease: Provided, That no one vacancy the Department of War. If he suspended Mr. shall be supplied in manner aforesaid for a longer Stanton as an incident of his general power of term than sixmonths. removal, then his suspension, upon the Presi- Provision was thus made by the act of 1863 dent's theory, created a vacancy such as is'for filling allvacancieswhich could occur under claimed by the President under the statute of any circumstances. It is a necessary rule of 1795. The suspension of Mr. Stanton put him construction that all previous statutes making in such a condition that he " could not perform other and different provisions for the filling of the duties of the office."' The President claims vapanciesare repealed by the operation of more also to have appointed General Grant Secretary recent statutes; and for the plain reason that of War ad interim on the 12th of August last, it is inconsistent with any theory of governby virtue of the statute of 1795. The proviso ment that there should be two legal modes in of that statute declares that no one vacancy existence at the same time for doing the same shall be supplied in manner aforesaid (that is, thing. by temporary appointment) for a longer term If the view I have presented be a sound one than six months. If the act of 1795 were in it is apparent that the President's conduct force, and if the President's theory of his rights finds no support either in the Constitution, in under the Constitution and under that act were the act of 1789, or in the legislation of 1795, a valid theory, the six months during which on which he chiefly relies as a justification for the vacancy might have been supplied tempo- the appointment of Thomas as Secretary of rarily expired by limitation on the 12th day of War ad interim. It follows, also, that if the February, 1868, and yet on the 21st day of tenure-of-office act had not been passed the February, 1868, the President appointed Lo- President would have been guilty of a high renzo Thomas Secretary of War ad interim to misdemeanor, in that he issued an order for the same vacancy, and this in violation of the the removal of Mr. Stanton from office during statute which he pleads in his own defense. It the session of the Senate, in violation of the is too clear for argument that if Mr. Stanton Constitution and of his own oath of office; was lawfully suspended, as the President now that he was guilty of a high misdemeanor in claims, but not.suspended under the tenure-of- the appointment of Lorenzo Thomas as Secoffice act, then the so-called restoration of Mr. retary of War ad interim, and this whether Stanton on the 13th January was wholly illegal. the act of the 13th of February, 1795, is in But if the statute of 1795 is applicable to a force, or whether the same has been repealed vacancy created by suspension or removal, then by the statute of 1863. His guilt is thus fully the President has violated it by the appoint- proved and established as charged in the first, ment of General Thomas Secretary of War ad second, and third articles of impeachment interim. And if the statute of 1795 is not ap- exhibited against him by the House of Repreplicable to a vacancy occasioned by a removal, sentatives, and this without considering the 575 requirements or constitutionality of the act the power of removing the members of the regulating the tenure of certain civil offices. Cabinet, he felt it to be his duty to disregard I pass now to the consideration of the tenure- its provisions; and the question is now put of-office act. I preface what I have to say by with feeling and emphasis whether the Prescalling to your attention that portion of my ident is to be impeached, convicted, and argument already addressed to you, in which removed from office for a mere difference of I have set forth and maintained, as Iwas able, opinion. True, the President is not to be the opinion that the President had no right to removed for a mere difference of opinion. If make any inquiry whether an act of Congress he had contented himself with the opinion that is or is not constitutional; that, having no right the law was unconstitutional, or even with the to make such inquiry, he could not plead that expression of such an opinion privately or offihe had so inquired and reached the conclu- cially to Congress, no exception could have sion that the act inquired about was invalid. been taken to his conduct. But he has atYou will also bear in mind the views presented, tempted to act in accordance with that opinion, that this tribunal can take no notice of any and in that action he has disregarded the reargument or suggestion that a law deemed quirements of the statute. It is for this action unconstitutional may be willfully violated by that he is to be arraigned, and is to be conthe President. The gist of his crime is'that victed. But it is not necessary for us to rest he intentionally disregarded a law, and, in the upon the doctrine that it was the duty of the nature of the case, it can be no excuse or de- President to accept the law as constitutional fense that such law, in his opinion, or in the and govern himself accordingly in all his official opinion of others, was not in conformity with doings. We are prepared to show that the law the Constitution. is in truth in harmony with the Constitution. In this connection I desire to call your at- and that its provisions apply to Mr. Stanton as tention to suggestions made by the President, Secretary for the Department of War. and by the President's counsel-by the Presi- The tenure-of-office act makes no change in dent in his message of December, 1867, and the powers of the President and the Senate, by the President's counsel in his opening argu- during the session of the Senate, to remove a ment —that if Congress were by legislation to civil officer upon a nomination by the Presiabolish a department of the Government, or dent, and confirmation by the Senate, of a to declare that the President should not be successor. This was an admitted constitutional Commander-in-Chief of the Army or the Navy, power from the very organization of the Govthat it would be the duty of the President to ernment, while the right now claimed by the disregard such legislation. These are extreme President to remove a civil officer during a cases and not within the range of possibility. session of the Senate, without the advice and Members of Congress are individually bound consent of the Senate, was never asserted by by an oath to support the Constitution of the any of his predecessors, and certainly never United States, and it is not to be presumed, recognized by any law or by any practice. This even for the purpose of argument, that they rule applied to heads of Departments as well would wantonly disregard the obligations of as to other civil officers. Indeed, it may be their oath, and enact in the form of law rules said, once for all, that the tenure by which or proceedings in plain violation of the Con- members of the Cabinet have held-their places stitution. Such is not the course of legisla- corresponds in every particular to the tenure tion, and such is not the character of the act by which other civil officers have held theirs. we are now to consider. The bill regulating It is undoubtedly true that, in practice, memthe tenure of certain civil offices was passed bers of the Cabinet have been accustomed to bya constitutional majority in each of the two tender their resignations upon a suggestion Houses, and it is to be presumed that each from the President that such a course would Senator and Representative who gave it his be acceptable to him. But this practice has support did so in the belief that its provisions never changed their legal relations to the Preswere in harmony with the provisions of the ident or to the country. There was never a Constitution. We are now dealing with prac- moment of time, since the adoption of the Contical affairs, and conducting the Government stitution, when the law or the opinion of the within the Constitution; and in reference to Senate recognized the right of the President measures passed by Congress under such cir- to remove a Cabinet officer during a session cumstances, it is wholly indefensible for the of the Senate, without the consent of the SenPresident to suggest the course that, in his ate given through the confirmation of a sucopinion, he would be justified in pursuing if cessor. Hence, in this particular, the tenureCongress were openly and wantonly to disre- of-office act merely enacted and gave form to gard the Constitution and inaugurate revolu- a practice existing from the foundation of the tion in the Government. Government-a practice in entire harmony It is asserted by the counsel for the-President with the provisions of the Constitution upon that he took advice as to the constitutionality that subject. The chief change produced by of the.tenure-of-officc act, and being of ovpin- the tenure-of'office act had reference to reion.that it was unconstitutional, or so much movals (luring the recess of the Senate. Preof it at least as attempted to deprive him of vious to the 2id of March, 1867, as has been 576 already shown, it was the practice of the Pres- has been appointed by and with the advice and conident during the recesses of the Senate to re- sent of the Senate, and every person who shall hereMove civil officers and to grant commissions after be appointed to any such office, and shall bemove civil officers and to grant commissions..........come duly qualified to act therein, is, and shall be to other persons under the third clause of the entitled, to hold such office until a successor shall. second section of the second article of the have been in like manner appointed and duly qualiConstitution. This power, as has been seen, fled, except as herein otherwise provided." was a doubtful one in the beginning. The Omitting for the moment to notice the exceppractice grew up under the act of 1789, but tion, there can be no doubt that this provision the right of Congress by legislation to regulate would have applied to the Secretary of War, the exercise of that power was not questioned and to every other civil officer under the Govin the great debate of that year, nor can it ernment; nor can there be any doubt that the reasonably be drawn into controversy now. removal of Mr. Stanton during a session of the The act of March 2, 1867, declares that the Senate is a misdemeanor by the law, and punPresident shall not exercise the power of re- ishable as such under the sixth section of the moval, absolutely, during the recess of the act, unless the body of the section quoted is so Senate, but that if any officer shall be shown, controlled by the proviso as to take the Secreby evidence satisfactory to the President, to be tary of War out of its grasp. The prQviso is dilty of misconduct in office, or of crime, or in these words: or any reason shall become incapable or legally "That the Secretaries of State, of the Treasury, of disqualified to perform his duties, the President War, of the Navy, and of the Interior, the Postmaster may suspend him from office and designate General, and the Attorney General shall hold their offices respectively for and during the term of the some suitable person to perform temporarily President by whom they may have been appointed the duties of such office until the next meeting of and one month thereafter. subject to removal by and the Senate and the action of the Senate thereon. with the advice and consent of the Senate." By this legislation the removal is qualified We maintain that Mr. Stanton, as Secreand is made subject to the final action of the tary of War, was, on the 2d day of March, Senate instead of being absolute, as was the 1867, within and included under the language fact under the practice theretofore prevailing. of the proviso, and was to hold his office for It is to be observed, however, that this feature and during the term of the President by whom of the act regulating the tenure of certain civil he had been appointed, and one month thereoffices is not drawn into controversy by these after, subject to removal, however, by and with proceedings, and therefore it is entirely unim- the advice and consent of the Senate. We portant to the President whether that provision maintain that Mr. Stanton was then holding of the act is constitutional or not. I can, how- the office of Secretary of War for and in the ever, entertain no doubt of its constitutionality. term of President Lincoln, by whom he had The record of the case shows that Mr. Stanton been appointed; that that term commenced was suspended from office during the recess, on the 4th of March, 1865, and will end on the but was removed from office, as far as an order 4th of March, 1869. The Constitution defines of the President could effect his removal, dur- the meaning of the word "term." When ing a session of the Senate. It is also wholly speaking of the President, it says: immaterial to the present inquiry whether the "He shall hold his office during the term of four suspension -of Mr. Stanton on the 12th of years, and, together with the Vice President, chosen August, 1867, was made under the tenure-of- for the same term, be elected as follows." office act, or in disregard of it, as the President Now, then, although the President first now asserts. It being thus clear that so much elected may die during his term, the office and of the act as relates to appointments and re- the term of the office still remain. Having movals from office during the session of the been established by the Constitution, it is not Senate is in harmony with the practice of the in any degree dependent upon the circumstance Government from the first, and in harmony whether the person elected to the term shall with the provisions of the Constitution on which survive to the end or not. It still is a presithat practice was based, and it being admitted dential term. It still is in law the term of the that the order of the President for the removal President who was elected to the office. The of Mr. Stanton was issued during a session of Vice President was chosen at the same time the Senate, it is unnecessary to inquire whether and elected for the same term. But it is the the other parts of the act are constitutional or term of a different office from that of Presinot, and also unnecessary to inquire what the dent-the term of the office of Vice President. provisions of the act are in reference to the Mr. Johnson was elected to the office of Vice heads ofthe several Executive Departments. I President for the term of four years. Mr. Linpresume authorities are not needed to show coin was elected to the office of President for that a law may be unconstitutional and void in the term of four years. Mr. Lincoln died in some of its parts, and the remaining portions the second month of his term, and Mr. Johncontinue in full force. son succeeded to the office. The body of the first section of the act regu- It was not a new office; it was not a new lating the tenure of certain civil offices is in term. He succeeded to Mr. Lincoln's office, these words: and for the remainder of Mr. Lincoln's term of Every person holding any civil office to which he office. He is serving out Mr. Lincoln's term 577 as President. The law says that the Secre- removal of Mr. Stanton from the office of Sectaries shall hold their offices respectively for retary for the Department of War, the Senate and during the term of the President by whom of the United States being then in session. they may have been appointed. Mr. Lincoln's In support of the view I have presented I term commenced on the 4th of March, 1865. refer to the official record of the amendments Mr. Stanton was appointed by Mr. Lincoln; made to the first section of the tenure-of-office lie was in office in Mr. Lincoln's term, when act. On the 18th of January, 1867, the bill the act regulating the tenure of certain civil passed the Senate, and the first section thereof offices was passed; and by the proviso of that was in these words: act he was entitled to hold that office until one "That every person [excepting the Secretaries month after the 4th of March, 1869, unless he of State, of the Treasury, of War, of the Navy, and should'be sooner removed therefrom, by and of the Interior, the Postmaster General, and the Attorney General] holding any civil office to which with the advice and consent of the Senate. he has been appointed by and with the advice and The act of March 1, 1792, concerning the consent of the Senate, and every person who shall succession, in case the office of President and hereafter be appointed to any such office, and shall become duly qualified to act therein, is, and shall be. Vice President both become vacant, recognizes entitled to hold such office until a successor shall the presidential term of four years as the con- have been in like manner appointed and duly qualistitutional term. Any one can understand that fied, except as herein otherwise provided." in case of vacancy in the office of President On the 2d of February the House passed and Vice President, and in case of a new elec- the bill with'an amendment striking out the tion by the people, that it would be desirable words included in brackets. This action shows to make the election for the remainder of the that it was the purpose of the House to include term. But the act of 1792 recognizes the im- heads of Departments in the body of the bill, possibility of this course in the section which and subject them to its provisions as civil provides that the term of four years for which a officers, who were to hold their places by and President and Vice President shall be elected -with the advice and consent of the Senate, and (that is, in case of a new election, as stated,) subject, during the session of the Senate, to shall in all cases commence on the 4th day of removal by and with the advice and consent March next succeeding the day on which the of the Senate only; but subject to suspension votes of the electors shall have been given. under the second section during a recess of It is thus seen that by an election to fill a the Senate as other civil officers, by virtue of vacancy the Government would be so far the words at the close of the section, "except changed in its practical working that the sub- as herein otherwise provided." At the time sequent elections of President, except by an the bill was pending between the two Houses amendment to the Constitution, could never there was no proviso to the first section, and ag'ain occur in the years divisible by four, as at the phrase " except as otherwise herein propresent, and might not answer to the election vided" related necessarily to the second and of members to the House of Representatives, to the subsequent sections of the bill. On the for the presidential elections might occur in 6th of February the Senate refused to agree the years not divisible by two. The Congress to the House -amendment, and by the action of 1792 acted upon the constitutional doctrine of the two Houses the bill was referred to a that the presidential term is four years and committee of conference. The conference cannot be changed by law. committee agreed to strike out the words in On the 21st of February, 1868, while the brackets agreeably to a vote of the House, but Senate of the United States was in session, Mr. as a recognition of the opinion of the Senate Jobipson, in violation of the law-which, as we the proviso was inserted which modified in have already seen, is in strict harmony in this substance the effect of the words stricken out, particular with the Constitution and with the under the lead of the House, only in this, that practice of every Administration underthe Con- the Cabinet officers referred to in the body of stitution from the beginning of the Govern- -the section as it passed the House were to hold ment —issuQd an order for the removal of Mr. their offices as they would have held them if Stanton from his office as Secretary for the the House amendment had been agreed to Department of War. If, however, it be claimed without condition, with this exception: that that the proviso does not apply to'the Secretary they were to retire from their offices in one of War, then he does not come within the only month after the end of the term of the Presiexception made in the statute to the general dent by whom they might have been appointed provision in the body of the first section already to office. The object and effect of this qualiquoted; and Mr. Stanton, having been ap- fication of the provision fot which the House pointed to office originally by and with the contended was to avoid fastening, by operaadvice and consent of the Senate, could only tion of law, upon an incoming President the be removed by the nomination and appoint- Cabinet of his predecessor, with no means of ment of a successor by and with the advice relieving himself from them unless the Senate and consent of the Senate. Hence, upon either of the United States was disposed to concur in theory, it is plain that the President violated the their removal. tenure-of-office act in the order which he issued In short, they were to retire by operation of on the 21st of February, A. D. 1868, for the law at the end of one month after the expiraC. I. —37. 578 tion of the term of the President by whom they ent. The charge made by the honorable Senhad been appointed; and in this particular their ator from Wisconsin, which the honorable tenure of office was distinguished by the pro- Senator from Ohio was refuting, seems to have viso from the tenure by which other civil offi- been, in substance, that the first section of the cers mentioned in the body of the section were bill and the proviso to the first section of the to hold their offices, and their tenure of office bill 1had been framed with special reference to is distinguished in no other particular. Mr. Johnson, as President, and to the existing The counsel who opened the cause for-the condition of affairs. In response to this the President was pleased to read from the Globe honorable Senator from Ohio said: the remarks made by Mr. SCHENCK in the "I say that the Senate have not legislated with a House of Representatives, when the report of view to any persons or any President, and therefore the conference committee was under discussion. he commences by asserting what is not true. Wedo not legislate in order to keep in the Secretary'of War, But he read only a portion of the remarks of the Secretary of the Navy, or the:Secretary of State." thatgentleman, and connected with them obser- It will be observed that this language does vations of his own, by which he may have led not indicate the opinion of the honorable Senthe Senate into the error that Mr. SCHENCK ator as to the effect of the bill; but it is only entertained the opinion as to the effect of the a declaration that the object of the legislation proviso which is now urged by the respondent; was not that which had been intimated or albut, so far from this being the case, the state- leged by the honorable Senator from Wisconment made by Mr. SCHENCK to the House is sin. This view of the remarks of the honorexactly in accordance with the doctrine now able Senator from Ohio is confirmed by what maintained by the Managers on the part-of-the, he afterward said in reply to the suggestion House of Representatives. After Mr. SCHENCK that members of the Cabinet would hold their had made the remarks quoted by the counsel places against the wishes of the President, for the respondent, Mr. Le Blond, of Ohio, rose when he declares that under such circumstances and said: - he, as a Senator, would consent to their re"I would like to inquire of the gentleman who has moval at any time, showing most clearly that charge of this report whether it becomes necessary that the Senate shall concur in all appointments of he did not entertain the idea that under the executive officers, and that none of them can be re- tenure-of-office act it would be in the power of moved after appointment without the concurrence the President to remove a Cabinet officer without the advice and consent of the Senate. And ThatMr. SCHENcaseC; s tays, in reply: ofoffice we all agree that in ordinary times, and under "That is the case; but their terms of office is lim- rdnary circumstances, it would not onl be ited, (as they are not now limited by law,) so that they expire with the term of service of the President just and proper for a Cabinet officer to tender who appoints them, and one month after, in case of his resignation at once, upon the suggestion death or other accident, until others can be substi- of the President that it would be acceptable, tuted for them by the incoming President." of the P resident that it would be acceptabe, Mr Le Blond, continuing, said: but we also agree that it would be the height Mr. Le Blond, continuing, said: of personal and official indecorum if he were "I understand, then, this to be the effect of the report of the committee of conference: in the event to hesitate for a moment as to his duty in that of the President finding himself with a Cabinet offi- particular. But the justification of Mr. Stancer who does not agree with him, and whom he ton, and his claim to the gratitude and encomdesires to remove, he cannot do so, and have a Cabinet in keeping with his own views, unless the Senate iums of his countrymen, is, that when the shall concur." nation was imperiled by the usurpations of a To this Mr. SCHENCK replies: criminally-minded Chief Magistrate, he as" The gentleman certainly does not need that in- serted his constitutional and legal rights to the formation from me, as this subject has been fully office of Secretary for the Department of War, debated in this House." and thus by his devotion to principle, and at Mr. Le Blond said, finally: great personal sacrifices, he has done more "Then I hope the House will not agree to the than any other man since the close of the rereport of the committee of conference." rbellion to protect the interests and maintain Thls debate in the House shows that there the rights of the people of the country. was there and then no difference of opinion But the strength of the view we entertain between Mr. SCHENCK, who represented the of the meaning and scope of the tenure-of' friends of the bill, and Mr. Le Blond, who office act is nowhere more satisfactorily demrepresented the opponents of the bill, that its onstrated than in the inconsistencies of the effect was to confirm the Secretaries who were argument which has been presented by the then in office in their places until one month learned counsel for the respondent in support after the expiratioi of Mr. Lincoln's term of of the Presidelt's positions. He says, speakoffice, to wit, the 4th day of March, 1869, un- ing of the first section of the act regulating the less, upon the nomination of successors, they tenure of certain civil offices: should be removed by and with the advice and should be removed by and with the advice and Here is a section, then, the body of which applies consent of the Senate. Nor does the language to all civil officers, as well to those then in office as used by the honorable Senator from Ohio, who to those who should thereafter be appointed. The reported the -result of the conference to the body of this section contains adeclarationthatevery Senate, justify the inference which has been such officer'is,' that is, if he is now in office, and Senate, justify the in~ference which has been'shall be,' that is, if he shall hereafter be appointed drawn from it by the counsel for the respond- to office, entitled to hold until a successor is appointed 5X9 and qualified in his place. That is the body of the veto message that that intention was expressed sectopn." with sufficient clearness to enable him to comThis language of theeminent counsel is not. prehend and state it. In his veto message of only an admission, but it is a declaration that the 2d of March, 1867, after quoting the first the Secretary for the Department of War, be- sect;ion of the bill to regulate the tenure of cering a civil officer, as is elsewhere admitted in tain civil offices, he says: the argument of the counsel for the respondent, "In effectthebill provides that the President shall is included in and covered and controlled by not remove from their places any civil officers8whose t~he language of the body of this section. It terms of service are not limited by law without the the languageofthebody e of thissctio. advice andconsentof the Senate of the United States is a further admission that in the absence of the The bill, in this respect, conflicts, in my judgment, proviso the power of the President over the with the Constitution of the United States." Secretary for the Department of War would His statement of the meaning of the bill correspond exactly to his power over any other relates to all civil officers, to the members of civil officer, which would be merely the power his Cabinet as well as to others, and is a declarato nominate a successor whose confirmation tion that, under that bill, if it became a law, by the Senate, and appointment, would work none of those officers could be removed without the removal of the person in office. When the the advice and consent of the Senate. He counsel for the respondent, proceeding in his was, therefore, in no doubt as to the intention argument, enters upon an examination of the of Congress as expressed in the bill submitted proviso, he maintains that the language of that to him for his consideration, and which afterproviso does not include the Secretary for the ward became the law of the land. He said to Department of War. If he is not included in the Senate, " If you pass this'bill, I cannot the language of the proviso, then upon the ad- remove the members of my Cabinet." The mission of the counsel he is included in the Senate and the House in effect said, "We so body of the bill, so that for the purposes of intend," and passed the bill by a two-thirds this investigation and trial it is wholly imma- majority. There was then no misunderstandterial whether the proviso applies to him or ing as to the meaning or intention of the act. not. If the proviso does not apply to the Sec- His offense, then, is not, that upon an examinaretary for the Department of War, then he tion of the statute he misunderstood its meanholds his office, as in the body of the section ing and acted upon a misinterpretation of its expressed, until removed therefrom by and true import, but that understanding its meanwith the advice and consent of the Senate. If ing precisely as it was understood by the Conhe is covered by the language of the proviso, gress that passed the law, precisely as it is then a limitation is fixed to his office, to wit: understood by the House of Representatives tothat it is to expire one month after the close day, precisely as it is presented in the articles of of the term of the President by whom he has impeachment, and by the Managers before this been appointed, subject, however, to previous Senate, he, upon his own opinion that the same removal by and with the advice and consent was unconstitutional, deliberately,willfully, and of the Senate. intentionally disregarded it. The learned coun- I have already considered the question of sel say that he had a right to violate this law for intent on the part of the President, and main- the purpose of obtaining a judicial determinatained that in the willful violation of the law he tion. This we deny. The constitutional duty discloses a criminal intent which cannot be of the President is to obey and execute the controlled or qualified by any testimony on the laws. He has no authority under the Constitupart of the respondent. tion, or by any law, to enter into any schemes The counsel for the respondent, however, or plans for the purpose of testing the validity has "dwelt so much at length on the question of of the laws of the country, either judicially or intent, and such efforts have been made during otherwise. Every law of Congress may be the trial to introduce testimony upon this point, tested in the courts, but it is not made the duty that I am justified in recurring to it for a brief of any person to so test the laws. It is not consideration of the arguments and views bear- specially the right of any person to so test the ing upon afd relating to that question. If a laws, and the effort is particularly offensive in law passed by Congress be equivocal or am- the Chief Magistrate of the country to attempt biguous in its terms, the Executive, being called by any process to annul, set aside, or defeat the upon to administer it, may apply his own best laws which by his oath he is bound to execute. judgment to the difficulties before him, or he Nor is it any answer to say, as is suggested by may seek counsel from his official advisers or the counsel for the respondent, that " there other proper persons; and acting thereupon, never could be a judicial decision that a law is without evil intent or purpose, he would be unconstitutional, inasmuch as it is only by disfully justified, and upon no principle of right regarding a law that any question can be raised could he be held to answer as for a misde- judicially under it." If this be true, it is no meanor in office. But that is not this case. misfortune. But the opposite theory, thatitis The question considered by Mr. Johnson did the duty or the right of the President to disrenot relate to the meaning of the tenure-of- gard a law for the purpose of ascertaining judioffice act. He understood perfectly well the cially whether he has a right to violate a law, intention of Congress, and he admitted in his is abhorrent to every just principle of govern 580 ment, and dangerous in the highest degree to and that he did this with intent so to do; and the existence of' free institutions. thereupon we demand his conviction under But his alleged purpose to test the law in the first of the articles of impeachment exhibthe courts is shown to be a pretext merely. ited against him by the House of RepresentUpon his own theory of his rights he could atives. have instituted proceedings by information in We have charged and proved that Andrew the nature of a quo warranto against Mr. Stan- Johnson, President of the United States, vioton on the 13th of January, 1868. More than lated the Constitution and his oath of office three months have passed, and he has done in issuing an order for the removal of Edwin nothing whatever. When by Mr. Stanton's M. Stanton from the office of Secretary for the action Lorenzo Thomas was under arrest, and Department of War during the session of the proceedings were instituted which might have Senate, and without the advice and consent tested the legality of the tenure-of-office act, of the Senate, and this without reference to Mr. Cox, the President's special counsel, the tenure-of-office act; and thereupon we demoved to have the proceedings dismissed, al- mand his conviction under the first of the though Thomas was at large upon his own re- articles'of impeachment exhibited against him cognizance. Can anybody believe that it was by the House of Representatives. Mr. Johnson's purpose to test the act in the We have charged and proved that Andrew courts? But the respondent's insincerity, his Johnson, President of the United States, did duplicity, is shown by the statement which he issue and deliver to one Lorenzo Thomas a made to General Sherman in January last. letter of authority in writing authorizing and Sherman says, "I asked him why lawyers empowering said Thomas to act as Secretary could not make a case, and not bring me, or of War ad interim, there being no vacancy in an officer, into the controversy? His answer said office, and this while the Senate of the was,'that it was found impossible, or a case United States was in session, and without the could not be made up;'' but,' said he,' if we advice and consent of the Senate, in violation can bring the case to the courts it would not of the Constitution of the United States, of his stand half an hour.'" He now says his object oath of office, antof the provisions of an act was to test the case in the courts. To Sher- entitled "An act regulating the tenure of cerman he declares that a case could not be made tain civil offices," and all this with the intent up, but if one could be made up the law would so to do; and thereupon we demand his connot stand half an hour. When a case was viction under the second of the articles of immade up which might have tested the law he peachment exhibited against him by the House makes haste to get it dismissed. Did ever of Representatives. audacity and duplicity more clearly appear in We have charged and proved that Andrew the excuses of a criminal? Johnson, President of the United States, in This brief argument upon the question of the appointment of Lorenzo Thomas to the intent seems to me conclusive, but I shall office of Secretary of War ad interim, acted incidentally refer to this point in the further without authority of law and in violation of the progress of my remarks. Constitution and of his oath of office; and this The House of Representatives does not de- without reference to the tenure-of-office act; mand the conviction of Andrew Johnson un- and thereupon we demand his conviction unless he is guilty in the manner charged in the der the third of the articles of impeachment articles of impeachment; nor does the House exhibited against him by the House of Repreexpect the Managers to seek a conviction ex- sentatives. cept upon the law and the facts considered with At this point the honorable Manager yielded Judicial impartiality. But I am obliged to for an adjournment. declare that I have no capacity to understand Mr. CONKLING. I move that the Senate those processes of the human mind by which sitting for this trial adjourn. this tribunal, or any member of this tribunal, The CHIEF JUSTICE. The Senator from can doubt, can entertain a reasonable doubt, New York moves that the Senate sitting as a that Andrew Johnson is guilty of high misde- court of impeachment adjourn until to-morrow meanors in office, as charged in each of the at eleven o'clock. first three articles exhibited against him by the The motion was agreed to; and the SenHouse of Representatives. ate sitting for the trial of the impeachment We have charged and proved that Andrew adjourned. Johnson, President of the United States, issued an order in writing for the removal of Edwin THURSDAY, April 23, 1868. M. Stanton from the office of Secretary for the Department of War while the Senate of the The Chief Justice of the United States took United States was in session, and without the the chair. advice and consent of the Senate, in violation The usual proclamation having been made of the Constitution of the United States and by the Sergeant-at-Arms, of his oath of office, and of the provisions of The Managers of the impeachment on the an act passed March 2, 1867, entitled " An act part of the House of Representatives and the regulating the tenure of certain civil offices," counsel for the respondent, except Mr. Stan 581 bery, appeared and took the seats assigned law, but it is alleged that the parties charged to them respectively. did unlawfully conspire. It is very well known The members of the House of Representa- that conspiracies are of two kinds. Two or tives, as in Committee of the Whole, preceded more persons may conspire to do a lawful act by Mr. E. B. WASHBURNE, chairman of that by unlawful means; or two or more persons committee, and accompanied by the Speaker may conspire to do an unlawful act by lawful and Clerk, appeared and were conducted to the means. By the common law of England such seats provided for them. conspiracies have always been indictable and The CHIEFJUSTICE. TheSecretary will punishable as misdemeanors. The State of read the minutes of yesterday's proceedings. Maryland was one of the original thirteen The Journal of the Senate sitting yesterday States of the Union, and the common law of for the trial of the impeachment was read. England has always prevailed in that State, Mr. GRIMES. Mr. Chief Justice, I ask leave except so far as it has been modified by statute. to offer an order which will lie over if there be The city of Washington was originally within any~ objection made to it. the State of Maryland, but it was ceded to the The CHIEc JUSTICE. The Secretary will United States under the provisions of the Constitution. By a statute of the United States, read the order proposed by the Senator from stitution. By a statute of the United States Iowa. Cifpassed February 27, 1801, (Statutes-at-Large, The Chief Clerk read as follows: vol. 2, p. 103,) it is provided: OrderedE, That hereafter the hour for the meeting ""That the laws of the State of Maryland, as they now exist, shall be and continue in force in that part of the Senate sitting for the trial of the impeach- of the said district which was ceded by that State to ment of Andrew Johnson, President of the United the United States, and by them accepted as aforeStates, shall be twelve o'clock meridian of each day said." except Sunday. Thexcept Sunday. ob-By force of this statute, although probably The CHIEF! JUSTICE. Is~ there any ob- the law would have been the same without jection to the present consideration of the the law would have been the same without jection to the present considerati~on of the legislation, the English common law of crimes pr.oSUMNER. I object. prevails in the city of Washington. By anTer. SUMNER. U I ojCE.. Objectio madeother statute entitled "An act for the punishThe CHIEFi` JUSTICE. Objectionis made, zment of crimes in the District of Columbia, and it will lie over. Mr. Manager BOUTWELL ent of crimes in the District of Colubia," will please proceed with his argument. (Statutes-at-Large, vol. 4, p. 450,) approved March 2, 1831, special punishments are affixed Mr. ManagerBOUTWELL. Mr. President, to various crimes enumerated when commitSenators, the learned counsel for the respond- ted in the District' of Columbia. But conent seems to have involved himself in some spiracy is not one of the crimes mentioned. difficulty concerning the articles which he lhe fifteenth section of that act provides: terms the conspiracy articles, being articles "That every other felony, misdemeanor, or offense four, five, six, and seven. The allegations con- not provided for by this act may and shall be puntained in articles four and six are laid under ished as heretofore, except that in all cases where the act of Jly 31, 1861, known as the con- whipping is part or the whole of the punishment, the act of July 31, 1861, known as the con- except in the cases of slaves, the court shall substispiracy act. The remarks of the learned coun- tute therefor imprisonment in the county jail for a sel seem to imply that articles five and seven period not exceeding six months." are not based upon any law whatever. In this And the sixteenth section declareshe greatly errs. An examination of articles "That all definitions and descriptions of crimes, four and five shows that the substantive allega- all fines, forfeitures, and incapacities, the restitution ur and five shows that the substantive of property, or the payment of the value thereof, and tion is the same in each,'the differences being every other matter not provided for in this act, be that& article four charges the conspiracy with and the same shall remain as heretofore." intent, by intimidation and threats, unlawfully There can then be no doubt that, under the to hinder and prevent Edwin M. Stanton from English common law of crimes, sanctioned and holding the office of Secretary for the Depart- continued by the statutes of the United States ment of War. The persons charged are the in the District of Columbia, the fifth and sevrespondentand Lorenzo Thomas. And it is enth articles set forth offenses which are punalleged that this conspiracy for the purpose ishable as misdemeanors by the laws of the set forth was in violation of the Constitution District. of -the United States and of the provisions of Article six is laid under the statute of 1861, an act entitled "An act to punish certain con- and charges that the respondent did unlawspiracies," approved July 31, 1861. The fifth fully conspire with Lorenzo Thomas, by force, article charges that the respondent did unlaw- to seize, take, and possess the property of the fully conspire with one Lorenzo Thomas, and United States in the Department of War, and with other persons, to prevent the execution of this with intent to violate and disregard the the act entitled "An act regulating the ten- act entitled "An act regulating the tenure of ure of certain civil offices," and that in pur- certain civil offices." The words used in the suance of that conspiracy they did unlawfully conspiracy act of 1861 leave room for arguattempt to prevent Edwin M. Stanton from ment upon the point raised by the learned holding the office of Secretary for the Depart- counsel for the respondent. I admit that the ment of War. It is not alleged in the article District of Columbia is not included by spethat this conspiracy is against any particular cific designation; but the reasons for the law 582 and the natural interpritation of the lainuage doubting that the Senate will find that the justify the view that the act applies to the Dis- charge of conspiracy is sufficiently laid under trict. I shall refer to a single authority only existing laws in all the articles, I proceed to upon- the point. an examination of the evidence by which the The internal-duties act of August 2, 1813, charge is supported. (Statutes, vol. 3, p. 82) subjects, in express It should always be borne in mind thatrthe terms, the " several Territories of the United evidence in proof of conspiracy will generally, States and the District of Columbia" to the from the nature of the crime, be circumstantial; payment of the taxes imposed; upon which and this case in this particular is no exception the question arose whether Congress has power to the usual experience in criminal trials. We io impose a direct tax on the District of Co- find, in the first place, if the allegations in the lUimbia, in view of the fact that by the Consti- first, second, and third articles have been tution it is provided that " representiation and established, that the President was engaged in direct taxes shall be apportioned among the an unlawful act. If we find Lorenzo Thomas Several States which may be included within or any other person cooperating with him upon thie Union according to their respective num- an agreement or an understanding or an assent bets." on the part of such other person to the proseIn the case of Loughborough vs. Blake the cution of such unlawful undertaking an actual Supreme.Court of the United States unani- conspiracy is proved. The. existence of the mously decided, in a brief opinion by Chief conspiracy being established, it is then compeJustice Marshall, that although the language tent to introduce the statements and acts of the of the Constitution apparently excepts the Dis- parties to the conspiracy, made and done wbile trict of Columbia from the imposition of direct the conspiracy was pending, and in furtherance taxes,-yet the reason of the thing requires us to of the design; and it is upon this ground that consider the District as being comprehended, testimony has been offered and received of the in this respect, within the intention of the Con- declarations made by Lorenzo Thomas, one of stitution. (Loughborough vs. Blake, 5 Whea- the parties to the conspiracy, subsequent to the ton, p. 317.) 18th of January, 1868, or perhaps to the 13th The reasoning of the Supreme Court and its of January, 1868-the day on which he was conclusion in this case were satisfactory to the restored to the office of Adjutant General of the bar and the country, and no person has deemed Army of the United States by the action of the it worth while to raise the question anew under President, and which appears to have been an the direct tax act of tugtlst 5, 1861, (Statutes initial proceeding on his part for the purpose 12, 296,) which also comprehends the Territo- of accomplishing hi-s unlawful design —-the reries and the District of Columbia. moval of Mr. Stanton from the office of Sere-, But the logical rules of construction applica- tary for the Department of War. The evidence ble to an act of Congress are the same as those of agreement between the respondent and applicable to the Constitution. An act of Cono- Thomas is found in the order of the 21st of gress and the Constitution are both laws-noth- February, 1868, appointing Thomas, and in the ing more, nothing less-except that the latter is conversation which occurred at the: time the of superior authority. And if, in the construc- order was placed in Thomas's hands. The tion of the Constitution, it may be satisfactorily counsel for the respondent at this point was maintained that the District of Columbia is to involved in a very serious difficulty. If he had be deemed, because of the reason of things, to admitted (which he took care not to do) that be comprehended by a provision of the Con- the order was purely' a military one, he foresaw stitution which in words, and in their super- that the respondent would be involved in the ficial construction, excludes it, must hot the crime of having issued a military order which same rule of construction produce the same did not pass tlrough the General of the Army, result in the determination of the legal intent ii-d thus would be liable to impeachment and and import of an act of Congress, when an removal from office for violating the law of the obscurity exists in the latter and for the same 2d of March, 1867, entitled "An act making cause? appropriations for the support of the Army for The seventh article is laid upon the common the fiscal year ending June 80, 1868, and for law, and charges substantially the same offenses other purposes." as those charged in the sixth article. The re- If he had declared that it was not a military sult then is that the fifth and seventh arttcies, order, then the transaction confessedly was in which are based upon the common law, set the nature of au agreement between the Presforth substantially the Same offenses which are ident and Lorenzo Thomas; and if the act conset forth in the fourth and sixth articles, which templated by that agreement was an unlawful are laid upon the statute of July 31, 1861; and act, or if the act were unlawful, and the means as there can be no doubt of the validity of the employed for accomplishing it were unlawful, fifth and seventh.articles, it is practically im- then clearly the charge of conspiracy would be material whether the suggestion made by the maintaine:d. Hence he was careful to Say, in counsel for the respondent, that the conspiracy denying that the order was a military order, act of 1861 does not include the Distrtit of that it nevertheless "invoked that spirit of milCol'umbiaj is a valid suggestion or not., Not itary obedience which constitutes the strength. 583 of the service." And further, he says- of case it becane a law I should not have hesitated a Thomas, that, as $ faithful Adjutant General moment as to his removal." of the Army of the United States, interested When, in the summer of 1867, the respond:personally, professionally, and patriotically to ent became satisfied that Mr. Stanton not only have the office of Secretary of the Department did not enter into the President's schemes but of War performed in a temporary vacancy, was was opposed to them, andl he determined upon it not his duty to accept the appointment un- his suspension and final removal from the office less he knew that it was unlawful to accept it? of Secretary for the Department of War, he The admissions and statements of the learned knew well that the confidence of the people in counsel are to the effect, on the whole, that Mr. Stanton was very; great, and that they the order was not a military order, nor do we would not accept his removal and an appointclaim that it was a military order, but it was a ment to that important place of any person of letter addressed to General Thomas, which he doubtful position, or whose qualifications were could have declined altogether without sub- not known to the country. Hence he sought, jecting himself to any punishment by a mili- through the suspension of Mr. Stanton and the tary tribunal. This is the crucial test of the appointment of General Grant as Secretary of character of the paper which he received, and War ad interim, to satisfy the- country for the on which he proceeded to act. Ignorance of moment, but with the design to prepare the the law, according to the old maxim, excuses way thereby for the introduction into the War no man; and whether General Thomas, at the Department of one of his own creatures. At first interview he had with the President on the that time it was supposed that the suspension 18th of January, 1868, or at his interview with of Mr. Stanton and the appointment of Gen. him on the day when he received the letter of eral Grant were made under and by virtue of appointment, knew thatithe President was then the act regulating the tenure of certain civil engaged in an unlawful act, is not material to offices; and although the conduct of the Presithis inquiry. The President knew that his dent during a period of nearly six months: in purpose was an unlawful one, and he then and reference to that office was in conformity to there induced General Thomas to cooperate the provisions of that act, it was finally dewith him in the prosecution of the unlawful clared by him that what he had done had been design. If General Thomas was ignorant of done in conformity to the general power which the illegal nature of the transaction, that fact he claims under the Constitution, and that he furnishes no legal defense for him, even though did not in any way recognize the act as conmorally it might be an excuse for his conduct. stitutional or binding upon him. His message But certainly the President, who did know the to the Senate of the 12th of December was illegal nature of the proceeding, cannot excuse framed apparently in obedience to the tenurehimself by asserting that his coconspirator was of-office act. He charged Mr. Stanton with at the time ignorant of the illegal nature of the misconduct in office, which, by that act, had business in which they were engaged. been made a ground for the suspension of a. It being proved that the respondent was en- civil officer; he furnished reasons and evidence gaged in an unlawful undertakingin his attempt of misconduct which, as he alleged, had been to remove Mr. Stanton from the office of Sec- satisfactory to him, and he furnished such rearetary for the Department of War, that by an sons and evidence within twenty days after the agreement or understanding between General meeting of the Senate next following the day Thomas and himself they were to coiperate in of suspension. carrying this purpose into execution, and it All this was in conformity to the statute of:bing proved, also, that the purpose itself was March 2, 1867. The Senate proceeded to conunlawful, all the elements: of a conspiracy are sider the evidence and reasonsfurnished by the fully established; and it only remains to ex- President, and in conformity to that act passed amine the testimony in order that the nature a resolution, adopted on the 13th of January, of the conspiracy may more clearly appear 1868, declaring that the reasons were unsatisand the jneans by which the purpose was factory to the Senate, and that Mr. Stanton to be accomplished may be more fully under- was restored to the office of Secretary for the stood. Department of War. Up to that time there The statement of the President in his mes- had been no official statement or declaration sage to the Senate under date of 12th. of De- by the President that he had not acted under cember, 1867, discloses the depth of his feel- the tenure-of-office act; but he now assumed ing and the intensity of his purpose in regard that that act had no binding force, and that Mr. to the removal of Mr. Stanton. In that roes- Stanton was not lawfully restored to the office sage he speaks of the bill regulating the tenure of Secretary f6r the Department of War. of certain civil offices at the time it was before Upon the adoption of the resolution by the him for consideration. He says: Senate General Grant at once surrendered the "The bill had not then become a law; the limit- office to Mr. Stanton. This act upon his part ation upon the power of removal was not yet im- filled the President with indignation toward posed, and there was yet time to make any changes. both General Grant and Mr. Stanton, and from f any one of those gentlemen [meaning the mem- that d he seems to have been under the influ bers of his Cabinet] had then said to me that he that day he seems to have been under the infiu would avail himself of the provisions of that bin in: ence of a settled and criminal purpose to de. 584 stroy General Grant and to secure the removal of Lorenzo Thomas. This man, as you have of Mr. Stanton. During the month following seen him, is an oldman, a Vroken man, a vain the restoration of Mr. Stanton the President man, a weak man, utterly incapable of perattempted to carry out his purpose by various forming any important public service in a and tortuous methods. First he endeavored manner creditable to the country; but possessto secure the support of General Sherman. On ing, nevertheless, all the qualities and charactwo occasions, as is testified by General Sher- teristics of a subservient instrument and tool man, on the 27th and 31st of January, he ten- of an ambitious, unscrupulous man. He readily dered him the position of Secretary of War ad accepted the place which the President offered interim. It occurred very naturally to General him, and there is no doubt that the declaraSherman to inquire of the President whether tions which he made to Wilkeson, BURLEIGH Mr. Stanton would retire voluntarily from the and Karsner were made when he entertained office; and also to ask the President what he the purpose of executing them, and made also was to do, and whether he would resort to force in the belief that they were entirely justified by if Mr. Stanton would not yield. The Presi- the orders which he had received from the dent answered, "Oh, he will make no objec- President, and that the execution of his purtion; you present the order and he will retire." pose to seize the War Department by force Upon a doubt being expressed by General would be acceptable to the President. That Sherman, the President remarked, "I know he threatened to use force there is no doubt him better than you do; he is cowardly." The from the testimony, and he has himself conPresident knew Mr. Stanton too well to enter- fessed substantially the truth of the statements tain any such opinion of his courage as hegave made by all the witnesses for the prosecution in his answer to General Sherman; the secret who have testified to that fact. of the proceeding, undoubtedly, was this: he These statements were made by Thomas on desired in the first place to induce General and after the 21st of February, when he reSherman to accept the office of Secretary of ceived his letter of authority, in writing, to take War ad interim upon the assurance on his part possession of the War Department. The agreethat Mr. Stanton would retire willingly from ment between the President and Thomas was his position, trusting that when General Sher- consummated on that day. With one mind man was appointed to and had accepted the they were then and on subsequent days engaged place of Secretary of War ad interim he could and up to the present time they are engaged in be induced, either upon the suggestion of the the attempt to get possession of the War DePresident or under the influence of a natural partment. Mr. Stanton, as the Senate by its disinclination on his part to fail in the accom- resolution has declared, being the lawful Secplishment of anything which he had undertaken, retary of War, this proceeding on their part to seize the War Department by force. The was an unlawful proceeding. It had in view President very well knew that if General Sher- an unlawful purpose; it was therefore in conman accepted the office of Secretary of War templation of the law a conspiracy, and the ad interim he would be ready at the earliest President is consequently bound by the declamoment to relinquish it into the hands of the rations made by Thomas in regard to taking President, and thus he hoped through the possession of the War Department by force. agency of General Sherman to secure the Thomas admits that on the night of the 21st it possession of the Department for one of his was his purpose to use force; but on the mornfavorites. ing of the 22d his mind had undergone a change During the period from the 13th day of Jan- and he then resolved not to use force. We do uary to the 21st of February he made an at- not know precisely the hour when his mind tempt to enlist General George H. Thomas in underwent this change, but the evidence disthe same unlawful undertaking. Here, also, closes that upon his return from the supreme he was disappointed. Thus it is seen that from court of the District, where he had been arAugust last, the time when he entered system- raigned upon a complaint made by Mr. Stanatically upon his purpose to remove Mr. ton, which, according to the testimony, was Stanton fiom the office of Secretary for the twelve o'clock or thereabouts, he had an interDepartment of War, he has attempted to se- view with the President; and it is also in evicure the purpose he had in view through the dence that at or about the same time the Prespersonal influence and services of the three ident had an interview with General Emory, principal officers of the Army; and that he has from whom he learned that that officer would met with disappointment in each case. Under not obey a command of the President unless these circumstances nothing remained for the it passed through General Grant, as required respondent but to seize the office by an open, by law. willful, defiant violation of law; and as it was The President understood perfectly well that necessary for the accomplishment of his pur- he could neither obtain force from General pose that he should obtain the support of some Grant nor transmit an order through General one, and as his experience had satisfied him Grant for the accomplishment of a purpose that no person of capacity or respectability or manifestly unlawful; and inasmuch as General patriotism would unite with him in his unlaw- Emory had indicated to him in the most disful enterprise, he sought the assistance arid aid tinct and emphatic manner his opinion that 585 the law requiring all orders to pass through that when the President issued his order for the headquarters of the General commanding the removal of Mr. Stanton, and his letter of was constitutional, indicating also his purpose authority to Lorenzo Thomas, on the 21st of to obey the law, it was apparent that at that February, he had any purpose of appointing moment the President could have had no hope Mr. Ewing Secretary of War? Certainly not. of obtaining possession of the Department of On the afternoon of the 21st he informs his War by force. It is a singular coincidence in Cabinet that Stanton was removed and that the history of this case that at or about the Thomas had possession of the office. He then same time General Thomas had an interview so believed. Thomas had deceived or misled with the President and came to the conclusion him. On the 22d instant he had discovered that it would not be wise to resort to force. that Stanton held on to the place, and that The President has sought to show his gobd Emory could not be relied upon for force. intention by the fact that, on the 22d or the What was now his necessity? Sifhply a 24th of February, he nominated Hon. Thomas resort to his old policy. He saw that it was Ewing, senior, as Secretary for the Department necessary to avoid impeachment if possible, of War. Mr. Ewing is not an unknown man. and also to obtain the sanction of the Senate He has been a member of the Senate and the to a nomination which would work the re-. head of the Treasury Department. His abil- moval of Mr. Stanton, and thus he would triities are undoubted, but at the time of his nom- umph over his enemies and obtain condona-. ination he was in the seventy-ninth year of his tion for his crimes of the 21st of February. age, and there was no probability that he would A well-laid. scheme, but destined to fail and to hold the office a moment longer than his sense furnish evidence of his own guilty purposes. of public duty required. It was the old game With the office in the possession of Mr. Ewing of the President-th-e office in the hands of his he foresaw that for the prosecution of his own own tool or in the hands of a man who would plans the place would always be vacant. gladly vacate it at any moment. This was the Thus has this artful man pursued the great necessity of his position, and throws light upon purpose of his life. Consider the other cirthat part of his crime which is set forth in the cumstances. On the 1st of September last eleventh article. General Emory was appointed to the comFor, in fact, his crime is one-the subversion mand of the department of Washington. He of the Government. From the nature of the has exhibited such sterling honesty and vigcase we are compelled to deal with minor acts orous patriotism in these recent troubles and of criminality by which he hoped to consum- during the war that he can bear a reference to mate this greatest of crimes. his previous history. He was born in MaryIn obedience to this necessity he appointed land, and in the early part of the war the pub. Grant, hoping to use him and his influence with lie mind of the North questioned his fidelity the Army, and failing in this, to get possession to the Union. His great services and untarnof the place and fill it with one of his own ished record during the war are a complete satellites. Foiled and disappointed in this defense against all suspicion, but is it too much scheme, he sought to use, first, General Sher- to believe that Mr. Johnson entertained the man, then General George H. Thomas, then hope that General Emory might be made an Hon. Thomas Ewing, senior, knowing that instrument of his ambition? Nobly has Genneither of these gentlemen would retain the eralEmoryundeceivedthePresidentandgained office for any length of time. There were men additional renown in the country. In General in the country who would have accepted the Lorenzo Thomas the President was not deUffice and continued in it and obeyed the Con- ceived. His complicity in recent unlawful prostitution and the laws. Has he named any such ceedings justifies the suspicions entertained by person; has he suggested any such person? the country in 1861 and 1862 touching his loy-:is appointments and suggestions of appoint- alty. Thomas and the President are in accord. ments have been of two sorts-honorable men, In case of the acquittal of the President, they who woud not continue in the office, or dis- are to issue an order to General Grant putting honorable, worthless men, who were not fit to Thomas in possession of the reports of the Army hold the office. to the War Department. The name of General Cox, of Ohio, was Is there not in all this evidence of the Presimentioned in the public journals; it was men- dent's criminal intention? Is not his whole tioned, probably, to the President. Did itmeet course marked by duplicity, deception, and with favor? Did he send his name to the fraud? "All things are construed against the Senate? No. wrong-doer" is the wise and just maxim of General Cox, if he had accepted the office the law. Has he not trifled with and deceived at all, would have done so with the expecta- the Senate? Has he not attempted to accomtion of holding it till March, 1869, and with plish an unlawful purpose by disingenuous, the purpose of executing the duties of the tortuous, criminalmeans? His criminal intent trust according to the laws and tht Constitu- is in his willful violation of the law, and his tion. These were purposes wholly inconsist- criminal intentis, moreover, abundantly proved ent with the President's schemes of usurpa- by all the circumstances attending the violation tion. But is it to be presuzred or imagined of the law. 586 His final resort for safety was the Senate, spoken in Washington, Cleveland, and St. praying for the confirmation of Mr. Ewing. Louis, We do not arraign him for the words On the 21st of February he hoped that Stan- spoken; but the charge in substance is, that a town would yield willingly or that Emory could man who could utter the words which as is be used to remove him. On the 22d he knew proved were uttered by him is unfit for the that Stanton was determined to remain, that office he holds. We claim that the common Emory would not furnish assistance, that it law of crimes, as understood and enforced by was useless to appeal to Grant. He returns to Parliament in cases of impeachment, is in subhis old plan of filling the War Office by the stance this: That no persons in office shall do appointment of a man who would yield the any act contrary to the good morals of the place at any moment; and now he asks you to office; and that, when any officer is guilty of accept as his justification an act which was the an act contrary to the good morals of the office last res'ort of a criminal attempting to escape which he holds, that act is a misdemeanor for the judgment due to his crimes. Upon this the purpose of impeachment and removal from view of the law and the facts we demand a office. conviction of the respondent upon articles Judge Chase was impeached and escaped fbur, five, six, and sevenr exhibited againstb hint conviction by four votes only for words spoken hy'the House of Representatives. from the bench of the circuit court sitting itn The evidenee introduced tending to show a Baltimore; words which are decorous and repconspiraey between Johnson and Thomas to utable when compared with the utterances of get possession of the War Department tends Mr. Johnson. Judge Humphreys was convicted dlso, connected with other facts, to show the and removed' from office for words spoken purpose of the Preside-t to obtain possession treasonable- in character, but not as much calof the Treasury:Department. Bearing in mind culated to weaken and bring the Government his claim that he can suspend or remove from of the Unitedf States into contempt as were office, without the advice and consent of the the the words uttered by Mr. Johnson in his speech Senate, any civil officer, and bearing in i-iniid, of the 18th of August, 1866. Judge Hfunalso, that the present Secretary of the Treasury phreys Was convicted by the unanimous vote s-pports this claimi, and every obstacle to the of the Senators, nineteen of whom now sit' doi possession of the Treasury Department is re- this trial. If a magistrate can ever be guilty, moved. If the Secretary should decline to for words spoken, of an impeachable misdecooperate it woild only be necessary for the meanor, there can be no doubt that Mr. JohnPresident to remove him from office and place son is so guilty. thi Treasury Department in the hands o one I ask you to consider in comparison, or in of: his' Ot creatures. contrast, the nature of the language used by Upon the appointment of Thomas as Secre- Chase, Iumphreys, and Johnson, as set forth tat4 of War ad ~interm the President~ ca~used in the articles of impeachment preferred in the sotiee to be given thereof to the Secretary of several cases. thoTreasury, accompanied with the direction, he eight artice in te case of C atder the President's own hand, to that offi- ese worght artle n the case of Chase eer to govern himself accordingly. It s- alothese words proved that on the 22d day of, December Mr. "And whereas mutual respect and confidnee bejl Johnson appointed Mr. Cooper, who had been tween the Government of the United States andthose hbi Private Secretary and intimate friend, As- of the individual States,- and between the people and ethose governments respectively, are hlighly condusistant Secretary of the Treasury. cive to that public harmoiywithout which there can The evidence fully sustains the statements be no public happiness, yet the said Samuel Chase made in the opening' argument of Manager disregarding the duties and dignity of his judicia character, did, at the circuit court for the district of BUTLER in support of article nine. The facts lMa'ytnd, held at Baitimorb in the month of May, in regard to General Emory's interview with 1803, pervert his official right and. duty to address thle the'President were then well known to the gran jury then and there assembled on the matters coming within the province of the said jury, for the,M-nagers, and the argument and view pre- purpose of delivering to the: said grand jury an ingented in the opening contain all that is- nteqes temperate and inflammatory political harangue, with sary to be said upon th article. intent to excite the fears and resentment of the said sary to be said upon that article, grand jury and of the good people of Maryland The learned counsel who opened the case against their State government and constitution, a fdr the; President seems not to have compre- conduct highly censurable in any, but peculiarly iwn hende the nature of the offens set fort in decent and unbecoming in a judge of the Supreme iende~d the nature of the offense set forth in Court of the UnAited States; and, moreover, that the tenth artidle. His remarks upon that arti- the said Samuel ChaIse, then and there, under pre6le proceeded uponr the idea that the IHouse of tence of exercising his judicial right to address th, resentatlves rrin the President foslan said grand jury as aforesaid, did, in a manner highly twstatarrartable, endeavor to excite the odium of the de ring or libeling the Congress of the United said- griad jury anid of the good people of Marylsand ~States;, no s~uch offense is cha~rg~edj nor is it against the Government of the United States, by de. ws d b pis- livering opinions which, even if the judiciary were claimed by the Managers that it would be pos- conmpetent tq their expression on a suitable occasion sible for Mr. Johnson or any obther person to and in a proper manner, were at that time, and as libel or slafider tek Governiment.~ It is for no delivered by him, highly indecent, extra-jsudicial,: and merpose~ of protctiont or ipneility or punish- tending to prostitute the high.judiclal character with W hhich he Was invested to the low purpose of an eleoment that we arraign Mr. Johnson for words ioire-eing rtrtisa*." The first artide against Himphireys was as oie of ththisg Seniate; snd the forner easi foiotws:: c'onviction by four votes only. These woidse. "That, regardless of his, duties as a citizen of the" ie of gihver import, riotimerely in the circui United States, and ufniindful of the duties of his said stance that they assail a departmentof the GovW office, and in violation of the sacred obligation of his- efnment but in the circumstance that they wOrd official oath,'to administer justice without respect to. persons,' and faithfully and impartially dischargetttered b tie President of the Unted StateS a1l the duties incumbent uipon hlim as' judge of the in the Executive Mansion, and~ in his capacity district courtof the United States for the several- dis- as-President of the United States, when receisV' tricts of the State of Tennessee, agreeable to the Con- the stitution and laws of the United States,' the said West H. Humphreys, on the 29th day of December, of the people of the country, tenderedi to himi A. D. 1860, in the city of Nashville, in said State,. tie in hisoffice as Chief Magistrate. Judge-Chaise, said West H. Humphreys then being a citizen of the although h ofier of the Governnient, was United States, and owing allegiance thereto, and a, then and there being judge of the district court of without political influence and without patf6'iA the United Statesfor theseveral districts ofsaid:Stat4, age; his personal aid official relations * at a:public meeting on the day and year last afore- limited, and his rea wr aresas tei said, held in said city of Nashville, and in the hearing of divers persons then- and there present, did: en- grand jury of a judicial district of the eountzry deavor by public speech to incite revoltandrebellion lipereWt. within said State against the Constitution and Gov- J - ernment of the United States, and did then and there publicly declare that it was the right of the pe6pleo knoawn; andalthough his words were' daieciatled Of said State, by an ordinance of secession,to absolve to excite the citizens of Tennessee, and indue themselves from all allegiance to the Government of the'united States, the Constitution, and laws thereof," e to ge In iionstitional undertak-.ngs, his influenee was limniitid ieasubhly: t The offense with which: Humphreys is eharged: the peole of that State.in this article was committed on the 29th day M Johnson addressed the whole countiyf of December, 1860, before the fall of Sumter, and holding; in his hands the immense patronw and when only one State had passed an ordi- age and infiuence belongig to toh; et.ic, df uanceofsecession. Thedeclaration wasmerely President, he wasi able to give practical effeet a declaration in a public speech that the State to the declarations he then made. The nature of Tennessee had the right to secede from. the of the respoiden-t's offense is illustrated by the Union. law in; ietbrenee to the duty iof offieis i"m The President, in- his speech of the 18th of soldiers'of the Army, although the law is not August, 1866, at Washington, says: applicable to thb President: "We have witnessed in one department of the Got- "Any office or soldier who shall is coitesiiptiroa9 eminent every effort, as it were, to prevent the res- or disteslpectfuI woris aga*iest the:Pretiddet of th# toration of peace; harmony, and union; we have'nited States, against the Vice President thereof, seen, as it were, hanging upon the verge of the Gov- against the Congress of the United States shall be emrnment, as it were, a body calling or assuming to cashiiered or otherwise punished, as a cout-ri-artial be the Congress of theUnited States, when it was but shall dirde&t' —cata8acdt-La'ge; - vol. 2,- p. 360, April a: Congress of a part of the States; we have seen Con- 10,1806, gress assuming to be for the Union when every step Moreoer, in th cas of Judge Chas, as is they took was to perpetuate dissoluition d k oe oerf the easM o ege a, as is dissolution permanent. We have seen. every step stated by Mr.. Dame i his "IAbridgment7' that has been taken, instead of bringing about rec- (vol. 7, ehap. 222:) onciliation and harmony, has been legislation that took the character of penalties, retaliation, and re- "Ot the lwhle tsidenke It remained in doubtwhald tenge. This has been the course; this has- been te wored he. did- tter. The proof of seditious inte4 policy of one department of your Goverament;" rested solely on the words themselves;- and as the words Weree not dIdarty pro0ed t/6 intenit *as iM Thesewordshave been repeated sofrequently1 doubt." aid the public ear is so much accustomed to In the case of Mr'.. J6hnso t;-lere i's Io doubt them, that they have apparently lost their in- about th-e words utte'; they have been fully fluence upon the public mind. But it houldft and explicitly proved. Indeed, they are ot1 bo Observed that these words, as has been denied by the respondent. The enl~awful inproved by the experience of two years were tent with Which he; uttered the words not dIly but the expression of a fixed purpose of the appears from the ehifaetedt of the languad President. His design was to impair, to under- emp-yoed, but it is proved by the histyq o6fmine, andi if possible, to destroy the influence his Administration. In his message of the 22d of Congress in the country. Having aecom- of JuneI 186N relating to: the eoustitutional plished this result, the way would thefn have been anienadlieot in his nndial mes sage of Decei open to him for the prosecution of his ctin- ber, 1866, and in nimtrous other declaratidsife inal design to reconstruct the Government int he has questioned and substantially deniied ~tie the interest of the rebels, and, through his infiu legality of the Congress of the United States. ence with them, to secure his owni election to In tie trial of Judge Chase it was ifAdtitted the Presidency in 1868. It must, however, be by the espondent " that for a jufge to utter apparent that the words in the speech of Mr. seditious sentiments with intent to excite sedi, Johnson are of graver import than the words tionWouidbeani'ipeachable offese." (Dane's wihich were spoken by Judge Chase to the grand Abridgment, vol. 7, chap. 222.): And this Nrot Jiry at Baltimore, or those uttered by Judge underi th act known as thie "sedition a ct;,' Humrphreystothe people of Tennessee. And for that had been previously repealed; bit yet the latter was convicted by a aniaimous tpon the geferal prieciple thatan oficer thoge -588 duty it is to administer the law has no right to that proclamation was followed by other procuse language calculated to stir up resistance to lamations, issued during the next four months, the law. If this be true of a judge, with for the government of the several States which stronger reason it is true of the President of had been engaged in the rebellion. Upon the the United States, that he should set an exam- death of Mr. Lincoln Mr. Johnson entered le of respect for all the departments of the upon the office of President in a manner which Uovernmentand of reverence forand obedience indicated that, in his judgment, he had been to the laws of the land. long destined to fill the place, and that the The speeches made by the Presidentat Cleve- powers of the office were to be exercised by land and St. Louis, which have been proved him without regard to the other departments and are found in the record of the case, con- of the Government. In his proclamation of tain numerous passages similar in character to the 29th of May, and in all the proclamations that extracted from his speech of the 18th of relating to the same subject, he had assumed August, 1866, and all calculated and designed that in his office as President he was the to impair the just authority of Congress. While " United States," for the purpose of deciding these declarations have not been made the whether, under the Constitution, the governbasis of substantive charges in the articles of ment of a State was republican in form or not; impeachment, they furnish evidence of the un- although by a decision of the Supreme Court lawful intent of the President in his utterance it is declared that this power is specially vested of the 18th of August, and also of the fact that in the two Houses of Congress. In these procthat utterance was not due to any temporary lamations he assumed, without authority of excitement or transient purpose which passed law, to appoint, and he did appoint, Governors away with the occasion which had called it of the several States thus organized. In fine, forth. It was a declaration made in accord- between the 29th of May, 1865, and the assemance with a fixed design, which had obtained bling of Congress in December of that year, such entire control of his nature that whenever he exercised sovereign power over the terrihe addressed public assemblies he gave expres- tory and people of the eleven States that had sion to it. The evidence which has been sub- been engaged in the rebellion. mitted by the respondent bearing upon the On the assembling of Congress in the month tenth article indicates a purpose, in argument, of December he informed the Senate and House to excuse the President upon the ground that of Representatives that the Union was restored, the remarks of the people stimulated, irritated, and that nothing remained for the two Houses and excited him to such an extent that he was but severally to accept as Senators and Reprenot wholly responsible for what he said. If sentatives such loyal men as had been elected this were true, it would exhibit great weaaknes by the Legislatures and people of the several of character; but as a matter of fact it is not States. Congress refused to ratify or to recogtrue. The taunts and gibes of the people served nize those proceedings upon the part of the only to draw from him those declarations.which President as legal or proper proceedings, and were in accord with the purposes of his life. from that time forward he has been engaged in This is shown by the fact that all his political various projects for the purpose of preventing declarations made at Cleveland and at St. Louis, the reconstruction of the Union on any other though made under excitement, are in entire plan than that which he had inaugurated. It harmony with the declarations made by him in the execution of this design he attempted to the East Room of the Executive Mansion, on deprive Congress of the confidence of the peothe 18th of August, 1866, when he was free ple of the country; hence it was that, among from any disturbing influence, and expressed other things, on the 18th day of August, 1866, himself with all the reserve of which his nature at the city of Washington, as set forth in the is capable. tenth and eleventh articles, he did in a public The blasphemous utterances at St. Louis speech declare and affirm in substance that the cannot be aggravated by me, nor can they be Thirty-Ninth Congress of the United States _extenuated by anything which counsel for the was not a Congress authorized by the Constirespondent can offer. They exhibit the char- tution to exercise legislative power under the acter of the speaker. same; but, on the contrary, was a Congress Upon these facts thus proved and the views of only a part of the States. presented we demand the conviction of the In the further execution of his purpose to respondent of the misdemeanors charged in prevent the reconstruction of the Union upon the tenth article. any plan except that which he had inaugurated, Article eleven sets forth that the object of the he attempted to prevent the ratification by the President in most of the offenses alleged in the several States of the amendment to the Conpreceding articles was to prevent the execution stitution known as article fourteen. By the of the act passed March 2, 1867, entitled, "An Constitution the President has no power to act forthe more efficientgovernment of the rebel participate in amendments or in propositions States." It is well known, officially and pub- for amendments thereto; yet, availing himself licly, that on the 29th of May, 1865, Mr. Johnson of the circumstance of the passage of a resoluissued a proclamation for the reorganization tion by the House of Representatives on the of the government of North Carolina, and that.13th day of June, 1866, requesting the Presi. 589 dent to submit to the Legislatures of the several who had participated in the rebellion, and-who States the said additional article to the Con- are now hoping for final success through his stitution of the United States, he sent to the aid. They have looked to him as their leader, Senate and House of Representatives a message by whose efforts and agency in the office of in writing, in which he says: President of the United States they were either "Even in ordinary times any question of amend- to accomplish the objects for which the war ing the Constitution must'be justly regarded as of was undertaken, or at least to secure a restoparamount importance. This importance is at the tion to the U present time enhanced by the fact that the joint rao n to the Unon under such circumstances resolution was not submitted by the two Houses for that, as a section of the country and an inthe approval of the President, and that of the thirty- terest in the country, they should possess afd six States which constitute the Union eleven are ercise that p excluded from representation in either House of ex ower which the slaveholders Congress, although, with the single exception of of the South possessed and exercised previous Texas, they have been entirely restored to all their to the rebellion. These men have been bound functions as States, in conformity with the organic to him by the strong bonds ofhope, fear, and law of the land, and have appeared at the national Capitol by Senators and Representatives who have ambition. The corruptions of the public serapplied for and have been refused admission to the vice have enriched multitudes of his adherents vacant seats. Nor have the sovereign people of thened and strengthened the passion nation been afforded an opportunity of expressing and quickened and strengthened the passion their views upon the important questions which the of avarice in multitudes more. These classes amendment involves. Grave doubts, therefore, may of men, possessing wealth and influence in naturally anisd jin harosenys ith the sentiments of many cases, have exerted their power to close the people, and whether State Legislatures, elected up every avenue of information. Hence the without reference to such an issue, should be called efforts of the committees of the House of upon by Congress to decide respecting the ratification Representatives and the efforts of the Manof the proposed amendment." Representatives and the efforts of the ManHe also says: agers to ascertain the truth and to procure tesHeA prlsope sappeitonotimony which they were satisfied was in exist"A proper appreciation of the letter and spirit of ence have been defeated often by the devices the Constitution, as well as of the interests of national order, harmony, and union, and a due defer- and machinations of those who in the North ence for an enlightened public judgment, may at and in the South are supposed to be allied to this time well suggest a doubt whether any amend- the President. There can, however, be no ment to the Constitution ought to be proposed by Congress and pressed upon the Legislatures of the doubt that the President in every way open to several States for final decision until after the ad- him used his personal and official influence mission of such loyal Senators and Representatives to defeat the ratification of the constitutional of the now unrepresented States as have been, or as to defeat the ratification of the constitutional may hereafter be, chosen in conformity with the Con- amendment. Evidence of such disposition and stitution and laws of the United States." of the fact also is found in the telegraphic This message was an extra-official proceed- correspondence of January, 1867, between Mr. ing, inasmuch as his agency in the work of Johnson and Lewis E. Parsons, who had been amending the Constitution is not required; previously appointed Governor of Alabama by and it was also a very clear indication of an the President. It is as follows: opinion on his part that, inasmuch as the eleven MNTGOMERY, ALABAMA, January 17, 1867. States were not represented, the Congress of Legislature in session. Efforts making to recolnthe United States had no power to act in the sider vote on constitutional amendment. Report matter of amending the Constitution. from Washington says it is probable an enabling act The proposed amendment to the Constitu- will pass. We do not know what to believe. I find nothing here. LEWIS E. PARSONS, tion contained provisions which were to be Exchange Hotet, made the. basis of reconstruction. The laws His Excellenfcy ANDREW JOHNSON, President.. s bsequently passed by Congress recognize the aiendment as essential to the welfare and safety UNITED STATES MILITARY TELEGRAPH of the Union. It is alleged in the eleventh arti- WASHINGTON, D. C., January 17, 1867. cle that one of the purposes of the -President What possible good can be obtained by reconsiderin the various unlawful acts charged in the ing the constitutional amendment? I know of nonein several articles of impeachment, and proved the present posture of affairs; and I do not believe the execution o the people of the whole country will sustain any set against him, was to prevent the execution of of individuals in attempts to change the whole charthe act entitled " An act for the more efficient acter of our Government by enabling acts or othergovernment of the rebel States," passed March wise. I believe, on the contrary, that they will eventually uphold all who have patriotism and courage to 2, 1867. In the nature of the case it has not stand by the'Constitution and who place their confibeen easy to obtain testimony upon this point, dence in the people. There should be no faltering on nor upon any other point touching the miscon- the part of those who are honest in their determinadupon andyc e ofthe President. His declarao- tion to sustain the several coiordinate departments duct and crimes of the Government in accordance with its original tions and his usurpations of power have rendered design. ANDREW JOHNSON. a large portion of the officeholders of the country Hon. LEWIS EPARSONS, Montgomery, Alabama. for the time being subservient to his purposes; This correspondence shows his fixed purpose they have been ready to conceal and reluctant to defeat the congressional plan of reconstructo communicate any.evidence calculated to im- tion. Pursuing the subject further it is easy plicate the President. His communications to discover and comprehend his entire scheme with the South have been generally, and it of criminal ambition. It was no less than this: may be said almost Exclusively, with the men to obtain command of the War Department 590 and of the Army, and by their combined power Under these circumstances it was not irobto control the elections of 1868 in the ten States able merely, but it was as certain as anything not yet restored to the Union, The congres- in the future could be, that he would secure, sional plan of reconstruction contained as an first, the nomination of the Democratic party essential condition the extension of the elective in the national nominating coavention; and franchise to all loyal male citizens, and the secondly, that he would secure.the electoral exclusion from the franchise of a portion of votes of these ten States. This being done, he those who had been most active in originating had only to obtain enough votes from the States and carrying on the rebellion. The purpose now represented in Congress to make a maQo Mr. Johnson was to limit the elective fran- jority of electoral votes, and he would defy the chise to white male citizens, and to permit the House and Senate should they attempt to reject exercise of it by.allsuch persons without re- the votes of the ten States, and this whether gard to their disloyalty. If he could secure those Stateshad been previously restoredto the the control of the War Department and of the Union or not. In a contest with the two Houses Army it would be entirely practicable, and not he and his friends and supporters, including only practicable but easy, for him in the coming the War Department, the Treasury Department, eiectlons quietly to inaugurate apolicythrough- and the Army and Navy, would insist that he oUt the ten States by which the former rebels, had been duly elected President, and by the strengthened by the support of the Executive support of the War Department, the Treasury here, and by the military forces distributed Department, the Army, and the Navy, he would over the South, would exclude from the polls have been inaugurated on the 4th of March every colored man and permit the exercise of next President of the United States for four the elective franchise by every white rebel. years. By.these means he would be able to control That the President was and is hostile to Mr. the entire vote of the ten rebel States; by the Stanton, and that he desired his removal from samemeans, or indeed by the force of the facts, office, there is no doubt; but he has not ashe would be able to secure the election of dele- sumed the responsibility which now rests upon gates to the Democratic.national convention him, he has not incurred the hazard of his favorable to his own nomination to the Presi- present position, for the mere purpose of gratdency. The vote of' these ten States in the ifying his personal feelings toward Mr. Stalrconvention, considered in connection with the ton. He disregarded the tenure:of-office act; fact that he and his friends could assure dele- he first suspended and then removed Mr. Stangates from other sections of the country that, ton from the office of Secretary for the Deif he were nominated, he could control beyond partment of War; he defied the judgment of peradventure the electoral vote of these ten and the advice and authority of the Senate; States, would have secured his nomination. he incurred the risk of impeachment by the This he confidently anticipated. Nor, indeed, House of Representatives, and trial and concan there be much doubt that this scheme viction by this tribunal, under the influence of would have been successful; but it was apparent an ambition unlimited and unscrupulous, which that there was no possibility of his obtaining dares anything and everything necessary to its the control of the War Department and of the gratification. For the purpose of defeating the Army unless he could disregard and break congressional plan of reconstruction he has down the act regulating the tenure of certain advised and encouraged the people of the civil offices, passed March 2, 1867. If, how- South in the idea that he would restore them ever, he could annul or disregard or set aside to their former privileges and power; that he the provisions of that act, then the way was would establish a white man's Government; open for the successful consummation of his that he would exclude the negroes from all plan. With thousands and tens of thousands participation in political affairs; and, finally, of office holders, scattered all over the coun- that he would accomplish in their behalf what try, depending'upon him for their offices -and they had sought by rebellion, but by rebellion for the emoluments of their offices, he would had failed to secure. Hence it is through his be able to exert a large influence, if not abso- agency and by his influence the South has lutely to control the nominations of the Demo- been given up to disorder, rapine, and bloodcratic party in every State of the Union. With shed; hence it is that since the surrender of the War Departmentinhis hands, and the ten- Lee and Johnston thousands of loyal men, ure-of-office act broken down, he would be black and white, have been murdered in cold able to remove General Grant, General Sher- blood or subjected. to cruelties and tortures man, General Sheridan, or any other officer, such as in modern times have been perpetrated high or low, who, in his opiniofi, or upon the only by savage nations and in remote parts of facts, might be an obstacle in his way. With the world; hehce it is that twelve million peothe Army thus corrupted and humiliated, its ple are without law, without order, unprotected trusted leaders either driven from the service in their. industry or their rights; hence it is or sent into exile in distant parts of the coun- that ten States are -without government and try, he would be able to wield the power of unrepresented in Congress; hence it is that that vast organization for his own personal the people of the North are even now unceridvantage. tain whether the rebellioni vanquished in the 591 field, is not finally to be victorious in the coun- and by virtue of the Constitution in all matters dils and in the Cabinet of the country;, hence pertainingtoappointments tooffice; and, by tle it is that the loyal people of the entire Union universal practice of the country, as well belook upon Andrew Johnson.as their worst fore the passage of the tenure-of-office act as enemy; hence it is that those who participated since, no removal of any. officer whose appointin the rebellion, and still hope that its power ment was by and with the advice and consent may once more be established in the country, of the Senate, has been made during a session look upon Andrew Johnson as their best friend, of the Senate, with your knowledge and saneand as the last and chief supporter of the views tion, except by the nomination of a successor, which they entertain. whose nomination was confirmed by and with The House of Representatives has brought the advice and consent of the Senate. Mr. this respondent to your bar for trial, for con- Johnson, in presence of this uniform constituviction, and for judgment; but the House of tional practice of three: quarters of a century Representatives, as a branch of the legislative and against the express provisions of the tendepartment of the Government, has no special ure-of-office act, made in this particular in interest in these proceedings. It entered upon entire harmony with that practice,. asserts now, them with great reluctance, after laborious and absolutely, the unqualified po.wer to remove continued investigation, and only.upon a con- every officer in the country without the advice viction that the interests of the country were or consent of the Senate. in peril, and that there was no way of relief Never in the history of any free government except through the exercise of the highest has there been so base, so gross, so unjustificonstitutional power vested in that body. We able an attempt upon the -part of an executive, do not appeal to this tribunal because any spe- whether emperor, king, or President, to destroy cial right of the House of Representatives has the just authority of another department of been infringed, or because the just powers of the Government. or the existence of the House are in danger, The House of Representatives has not been except as that body must always participate indifferent to this assault; it has not been in. the good or ill fortune of the country. They unmindful of the danger to which you have have brought this respondent to your bar, and been exposed; it has seen, what you must adhere 4demand his conviction in the belief, as mit, that without its agency and support you the. result of much investigation, of much de- were powerless to resist these aggressions, or liberation, that the interests of this country to thwart, in any degree, the purposes of this are no longer safe in his hands. usurper. Inthe exercise of their constitutional But the House of Representatives, repre- power of impeachment they have brought him senting the people of the country, may very to your bar; they have laid before you the eviproperly appeal to this tribunal, constituted, dence showing conclusively the nature, the as it is, exclusively of Senators representing eyxtent, and the depth of his guilt. You hold the different States of this Union, to maintain this great power in trust, not for yourselves the constitutional powers of the Senate. To merely, but for all your successors in these be sure, nothing can injuriously:affect the high places, and for all the people of this counpowers -and the rights of the Senate which try. You cannot.fail to discharge your duty; does not affect injuriously the rights of the that duty is clear. On the one hand it is your House of Representatives, and of the people duty to protect, to preserve, and to defend your of the whole country; but it may be said with own constitutional rights, but it is equally your great truth that this contest is first for the duty to preserve the laws and institutions of preservation of the constitutional powers of the country. It is your duty to protet. and this branch of the Government. By your defend the Constitution of the United States, votes and action, in concurrence with the and the rights of the people under it; it.is your House of Representatives, the bill " regulating duty to preserve and to transmit unimpaired to the tenure of certain civil offices"' was passed your successors in these places all the constiand became a law, and this notwithstanding tutional rights and privileges guarantied to the objections of the President thereto and his this body by the form of government.under argument against its passage. On a subse- which we live. On the other hand, it is your quent occasion, when you considered the sus- duty to try and conviqt the accused, if guilty, pension of Mr. Stanton and the messageof the and to pronounce judgment upon the respondPresident, in which, by argument and by state- ent, that all his successors, and all men who ments, he assailed the law in question, you aspire to the office of President in time to asserted its validity and its constitutionality come, may understand that the House of Repby refusing to concur in the suspension of Mr. resentatives and the Senate will demand the Stanton. On a more recent occasion, when strictest observance of the Constitution; that he attempted to remove Mr. Stanton from they will hold every man in the presidential office, you, by solemn resolution, declared office responsible for a rigid performance of his that his action therein was contrary to the public duties. laws and to the Constitution of the country. Nothing, literally nothing, can be said in From the beginning of the Government this defense of this respondent. Upon his own body has participated under the Constitution admissions he is guilty, in substance, of the 592. gravest charges contained in the articles of that it was the duty of magistrates to obey the impeachment exhibited against him by the law, that they did not hesitate, to convict him House of Representatives. In his personal and remove him from office. conduct and character he presents no quality The Earl of Macclesfield was impeached and or attribute which enlists the sympathy or the convicted for the misuse of his official powers regard of men. The exhibition which he made in regard to trust funds, an offense in itself of in this Chamber on the 4th of March, 1865, by a grave character, but a trivial crime compared which the nation was humiliated and repub- with the open, wanton, and defiant violation lican institutions disgraced, in the presence of of law by a Chief Magistrate whose highest the representatives of the civilized nations of duty is the execution of the laws. the earth, is a truthful exhibition of his char- If the charges preferred against Warren acter. His violent, denunciatory, blasphemous Hastings had been fully sustained by the testideclarations made to the people on various mony, he would be regarded in history as an occasions, and proved by the testimony sub- unimportant criminal when compared with the mitted to the Senate, illustrate other qualities respondent. Warren Hastings, as governor of his nature. His cold indifference to the general of Bengal, extended the territory of the desolation, disorder, and crimes in the ten British empire, and brought millions of the States of the South exhibit yet other and natives of India under British rule. If he exdarker features. ercised power in India for which there was no Can any one entertain the opinion that Mr. authority in British laws or British customsJohnson is not guilty of such crimes as justify if in the exercise of that power he acquired his removal from office and his disqualifica- wealth for himself or permitted others to accution to hold any office of trust or profit under mulate fortunes by outrages and wrongs perthe Government of the United States? Wil- petrated upon that distant people, he stillacted liam Blount, Senator of the United States, in his public policy in the interest of the Britwas impeached by the House of Representa- ish empire and in harmony with the ideas and tivesand declaredguiltyofahighmisdemeanor, purposes of the British people. and though not tried by the Senate the Senate Andrew Johnson has disregarded and viodid, nevertheless, expel him from his seat by lated the laws and Constitution of his own a vote of 25 to 1, and, in the resolution of ex- country. Under his administration the Govpulsion, declared that he had been guilty of a ernment has not been strengthened, but weakhigh misdemeanor. The crime of William ened. Its reputation and influence at home Blount was that he wrote a letter and partici- and abroad have been injured and diminished. pated in conversations, from which it appeared He has not outraged a distant people bound probable that he was engaged in an immature to us by no ties, but those which result from scheme to alienate the Indians of the South- conquest and the exercise of arbitrary power west from the President and the Congress of on our part; but through his violation of the the United States; and also, incidentally, to laws and the influence of his evil example disturb the friendly relations between this upon the men of the South, in whose hearts Government and the Governments of Spain the purposes and the passions of the war yet and Great Britain. This, at most, was but an linger, he has brought disorder, confusion, arrangement, never consummated into any and bloodshed to the homes of twelve millions overt act, by which he contemplated, under of people, many of whom are of our own blood possible circumstances which never occurred, and all of whom are our countrymen. Ten that he would violate the neutrality laws of States of this Union are without law, without the United States. security, without safety; public order everyAndrew Johnson is guilty, upon the proof in where violated, public justice nowhere repart and upon his own admissions, of having spected; and all in consequence of the evil intentionally violated a public law, of usurping purposes and machinations of the President. and exercising powers not exercised nor even Forty millions of people have been rendered asserted by any of his predecessors in office. anxious and uncertain as to the preservation Judge Pickering, of the district court of of public peace and the perpetuity of the instiNew Hampshire, was impeached by the House tutiqns of freedom in this country. of Representatives, convicted by the Senate, There are no limits to the consequences of and removed from office, for the crime of hav- this man's evil example. A member of his ing appeared upon the bench in a state of in- Cabinet in your presence avows, proclaims, toxication. I need not draw any parallelbetween indeed, that he suspended from office indefiJudge Pickering and this respondent. nitely a faithful public officer who was apJudge Prescott, of Massachusetts, was im- pointed by your advice and consent; an act peached and removed from office for receiving which he does not attempt to justify by any illegal fees in his office to the amount of $10 70 law or usage, except what he is pleased to only. Judge Prescott belonged to one of the call the law of necessity. Is it strange that in oldest and most eminent families of the State, the presence of these examples the ignorant, and he'was himself a distinguished lawyer. the vicious, and the criminal are everywhere But such was the respect of the Senate of that swift to violate the laws? Is it strange that state for the law, and such the public opinion the loyal people of the South, most of them 593 poor, dependent, not yet confident of their the weak, encouraged the strong, and lifted newly-acquired rights, exercising their just from the southern people the burdens which privileges in fear and trembling, should thus now are greater than they can bear. be made the victims of the worst passions of Travelers and astronomers inform us that in men who have freed themselves from all the the southern heavens, near the Southern Cross, restraints of civil government? Under the there is a vast space which the uneducated call influence of these examples good men in the the hole in the sky, where the eye of man with South have everything to fear, and bad men the aid of the powers of the telescope has been have everything to hope. unable to discover nebulae, or asteroid, or Caius Verres is the great political criminal comet, or planet, or star, or sun. In that of history. For two years he was preotor and dreary, cold, dark region of space, which is the scourge of Sicily. The area of that country only known to be less than infinite by the evidoes not much exceed ten thousand square dences of creation elsewhere, the Great Author miles, and in modern times it has had a popu- of celestial mechanism has left the chaos which lation of about two million souls. The re- was in the beginning. If this earth were spondent at your bar has been the scourge of a capable of the sentiments and emotions of juscountry many times the area of Sicily and tice and virtue, which in human mortal beings containing a population six times as great. are the evidences and the pledge of our divine Verres enriched himself and his friends; he origin and immortal destiny, it would heave seized the public paintings and statues and and throe, with the energy of the elemental carried them to Rome. But at the end of his forces of nature, and project this enemy of two brief rule of two years he left Sicily as he had races of men into that vast region, there forfound it; in comparative peace, and in the ever to exist in a solitude eternal as life, or as possession of its industries and its laws. This the absence of life, emblematical of, if not respondent has not ravaged States nor enriched really, that " outer darkness" of which the.himself by the plunder of their treasures; but Saviour of man spoke in warning to those who he has inaugurated and adhered to a policy are the enemies of themselves, of their race, which has deprived the people of the blessings and of their God. But it is yours to relieve, of peace, of the protection of law, of the just not to punish. This done and our country is rewards of honest industry. A vast and im- again advanced in the intelligent opinion of portant portion of the Republic, a portion mankind. In other Governments an unfaithful whose prosperity is essential to the prosperity ruler can be removed only by revolution, vio*of the country at large, is prostrate and help- lence, or force. The proceeding here is judicial, less under the evils which his Administration and according to the forms of law. Yourjudghas brought upon it. When Vetres was ar- ment will be enforced without the aid of a raigned before his judges at Rome, and the policeman or a soldier. What other evidence exposure of his crimes began, his counsel aban- will be needed of the value of republican instidoned his cause and the criminal fled from the tutions? What other test of the strength and city. Yet Verres had friends in Sicily, and vigor of our Government? What other assurthey erected a gilded statue to his name in the ance that the virtue of the people is equal to streets of Syracuse. This respondent will look any emergency of national life? in vain, even in the South, for any testimonials The contest which the House of Representto his virtues or to his public conduct. All atives carries on at your bar is a contest classes are oppressed by the private and public in defense of the constitutional rights of the calamities which he has brought upon them. Congress of the United States, representing Tbhy appeal to you for relief. The nation waits the people of the United States against the in anxiety for the conclusion of these proceed- arbitrary, unjust, illegal claims of the Execuings. Forty millions of people, whose interest tive. in public affairs is in the wise and just admin- This is the old contest of Europe revived in istration of the laws, look to this tribunal as a America. England, France. and Spain have sure defense against the encroachments of a each been the theater of this strife. In France criminally-minded Chief Magistrate. and Spain the executive triumphed. In EngWill any one say that the heaviest judgment land the people were victorious. The people which you can render is any adequate punish- of France gradually but slowly regain their ment for these crimes? Your office is not rights. But even yet there is no freedom of punishment, but to secure the safety of the Re- the press in France; there is no freedom of the public. But human tribunals are inadequate legislative will; the emperor is supreme. to punish those criminals who, as rulers or Spain is wholly unregenerated. England magistrates. by their example, conduct, policy, alone has a free Parliament and a government and crimes, become the scourge of communi- of laws emanating from the enfranchised peoties and nations. No picture, no power of the ple. These laws are everywhere executed, imagination can illustrate or conceive the suf- and a sovereign who should willfully interpose fering of the poor but loyal people of the South. any obstacle would be dethroned without deA patriotic, virtuous, law-abiding Chief Magis- lay. In England the law is more mighty than trate would have healed the wounds of war, the king. In America a President claims to soothed private and public sorrows, protected be mightier than the law. C. I.-38. This result in England was reached by slow provided by the Constitution. The cause of movements, and after a struggle which lasted the Republic is in your hands. Your verdict through many centuries. John Hampden was of guilty is peace to our beloved country. lnot the first nor the last of the patriots who Mr. JOHNSON. Mr. ChiefJustice,I under-.resisted executive usurpation, butnothing could stand from the counsel for the President who have been more inapplicable to the present cir- is next to address the Senate that he would be cumstances than the introduction of his name very much obliged to the Senate if they would as an apology for the usurpations of Andrew take their usual recess now, he being anxious Johnson. to make a continuing argument. I move, there"No man will question John Hampden's fore, that the court take a recess for fifteen patriotism or the' propriety of his acts when minutes. he brought the question whether ship-money The motion was agreed to; and at the exwas within the constitution of England before piration of the recess the Chief Justice resumed the courts;" but no man will admit that there the chair. is any parallel between Andrew Johnson and John Hampden. Andrew Johnson takes the Hon. THOMAS A. R. NELSON, counsel place of Charles I, and seeks to substitute his for the respondent, addressed the Senate, as own will for the laws of the land. In 1636 follows: John Hampden resisted the demands of an Mr. CHIEF JUSTICE and SENATORS: I have usurping and unprincipled king, as does Edwin been engaged in the practice of my profession M. Stanton to-day resist the claims and de- as a lawyer for the last thirty years.'I have mands of an unprincipled and usurping Pres- been concerned in every variety of cause which ident. can be tried under the laws of the State in The people of England have successfully which I reside. I have, in the course of my resisted executive encroachments upon their somewhat lengthy professional life, argued rights. Let not their example be lost upon us. cases involving life, liberty, property, and charWe suppressed the rebellion in arms, and we acter. I have prosecuted and defended every are now to expel it from the executive coun- species of criminal cause, from murder in the cils. This done, republican institutions need first degree down to a simple assault. But in no further illustration or defense. All things rising to address you to-day I feel that all the then relating to the national welfare and life causes in which I ever was concerned sink into are made as secure as can be any future events. comparative insignificance when compared with The freedom, prosperity, and power ofAmer- this; and a painful sense of the magnitude of ica are established. The friends of constitu- the case in which I am now engaged, and of tional liberty throughout Europe will hail with my inability to meet and to defend it as it joy the assured greatness and glory of the new should be defended, oppresses me as I rise to Republic. Our internal difficulties will rapidly address you; and I would humbly invoke the disappear. Peace and prosperity will return great Disposer of events to give me a mind to to every portion of the country. In a few conceive, a heart to feel, and a tongue to exweeks or months we shall celebrate a restored press those words which should be properly Union upon the basis of the equal rights of and fitly expressed on this great occasion. I the States, in each of which equality of the would humbly invoke that assistance which people will be recognized and established. This comes from on high; for when I look at the respondent is not to be convicted that these results which may follow from this trial; when things may come, but justice being done, these I endeavor to contemplate in imagination how things are to come. it is to affect our country and the world, I - At your bar the House of Representatives start back, feeling that I am utterly incapable demand justice-justice for the people, justice of comprehending its results, and that I cannot to the accused. Justice is of God, and it can- look into the future and foretell them. not perish. By and through justice comes obe- I feel, Senators, that it will be neeessary dience to the law by all magistrates and peo- upon this occasion for me to notice many things pie. By and through justice comes theliberty which, as I suppose, have but little bearing of the law, which is freedom without license. upon the specific articles of impeachment which Senators, as far as I am concerned, the case have been presented. In doing so, to borrow is now in your hands, and it is soon to be closed the language of Mr. Wirt upon the trial of Judge by my associate. The House of Representa- Peck, " If we pursue the opening arguments tives have presented this criminal at your bar of the honorable Managers more closely than with equal confidence in his guilt and in your may seem necessary to some of the court, it disposition to administer exact justice between will be remembered that it would be presumphim and the people of the United States. tuous in us to slight any topic which the learned His conviction is the triumph of law, of and honorable Managers may have deemed it order, of justice. I do not contemplate his important to press on the consideration of the acquittal-it is impossible. Therefore I do not court." look beyond. But, Senators, the people of It has been charged that the President was America will never permit an usurping Exec- "trifling " with the Senate. Scarcely had we utive to break down the securities for liberty entered upon this trial before charges were made against him of seeking, and improperly sure of this Senate, but a whip should be put seeking, to gain time; to effect an unworthy and in every honest hand to lash him around the improper procrastinationm I shall dwell but a world as a man unworthy of the notice of genmoment on that. We supposed thatthere was tlemen and unfit for the association of any of no impropriety in our asking at the hands of his race; he should be pointed at everywhere the Senate a reasonable indulgence to prepare and shown as a monster; he should be banfor our defense, when the subject of impeach- ished from society; his very name should bement had been before the House of Repre- come a word to frighten children with throughsentatives in some form or other for more than out the land from one end of it to the other, a twelvemonth, and when the worthy and able so that when one should meet him his sight Managers who have been selected to conduct would cause — it in this Senate were armed at all points and "Each particular hair to stand on end ready to contest the cause on the one hand, Like quills upon the fretful porcupine." and we, upon the other, were suddenly sum- If he be a man such as is represented on the moned from our professional pursuits; we, other side, then, Senators, we agree that neither who are not politicians, but lawyers engaged I, nor any of those who' are associated with in the practice of our profession, were sum- me, can defend him. moned here to measure arms with gentlemen But who is Andrew Johnson? Who is the who are skilled in political gladiation and are man that you have upon trial now, and in rewell posted upon all the subjects that may be. gard to whom the gaze not of little Delaware, involved in this investigation. but of the whole Union and of the civilized But it is not merely the complaint as to time world is directed at the present moment? and as to trifling with the Senate that it will Who is Andrew Johnson? That is a question become my duty to notice. A great many which a few years ago many of those whom I things have been said, Senators, and among now address could have answered, and could the rest an effort has been made to draw "a have answered with pleasure and delight and picture of the President's mind and heart;" joy. Who is Andrew Johnson? Go to the he has been stigmatized as a "usurper," as a town of Greenville but a few short years ago, "traitor to his party," as " disgracing the a little village situate in the mountains of East position held by some of the most illustrious Tennessee, and you will see a poor boy enterin the land," as "a dangerous person, a crim- ing that village a stranger, without friends, inal, but not an ordinary one," as "encour- without acquaintances, following an humble aging murders, assassinations, and robberies mechanical pursuit, scarcely able to read, all over the southern States;" and finally, by unable to write, butyet industrious in his callway of proving that there is one step between ing, honest and faithful in his dealings, and haythe sublime and the ridiculous, he has been ing a mind such as the God of heaven had imacharged with being " a common scold " and a planted within him, and which it was intended "'ribald, scurrilous blasphemer, bandying epi- and designed should be called into exercise thets and taunts with a jeering mob." and displayed before the American people. Such are some of the many accusations which He goes there, and I may say, almost in the have been made here from time to time in the language of Mr. Clay in reference to the State progress of this protracted investigation. Noth- of Kentucky, he enters the State of Tennessee ing or next to nothing has been said in vindi- an orphan, poor,.penniless, without the favor cation of the President against these'charges. of the great; " but scarce had he set his foot It will be my duty, Senators, to pay some upon her generous soil when he was seized atteition to them to-day. We have borne and embraced with parental fondness, caressed it long enough, and I prppose before I enter as though he had been a favorite child, and upon the investigation of the articles of im- patronized with liberal and unbounded munifipeachment to pay some attention to these cence." In the first instance he applies to accusations which have been heaped upon us the people of his county to honor him by givalmost every day from the commencement of ing him a seat in the lower branch of the State the trial and which have hitherto passed un- Legislature. That wish is granted. Next he answered and unnoticed on the side of the is sent to the State Senate; then to the House President of the United States. of Representatives of the American Congress; If it be true, as alleged, that the President then, by the voice of the people in two hard is guilty of all these things, or if he has been fought contests, he was elected Governor of guilty of one tithe of the offenses which have the State; then he was sent to the Senate of been imputed to him in the opening argument, the United States, and his whole career thus and which have been iterated and reiterated in far was a career in which he had been honored the argument of to-day, then I am willing to and respected by the people, and it has only confess that he is- been within some, two or three years that "A monster of such frightful mien charges have been preferred against him such As to be hated needs but to be seen." as those which are presented now. I am willing to admit that if he is guilty of Never since the days of Warren Hastings, any of the charges which have been made ay, never since the days of Sir Walter Raleigh, aainst him he is not only worthy of the coa has anyman been stigmatizedwith more severe ,596. reprobation than the President of the United come back to the Capitol, and are intended, if States. All the powers of invective which the possible,to influencethe judgment of Senators! able and ingenious Managers can command Who is Andrew Johnson? Not a man who have been brought into requisition to fire your is disposed to betray any trust that. had been hearts and to prejudice your minds against him. reposed in him; but a man who, whenever he A perfect storm has been raised around him. has been before the people who know him All the elements have been agitated. best, has upon all occasions been sustained — "Far along, sustained by his neighbors, sustained by his From peak to peak the rattling crags among State, sustained by his country-and who on Leaps the live thunder! I Not from one lone cloud, all occ has shown himself worthy of the But every mountain now hath found a tongue, occasions has shown himself worthy of the And Jura answers through her misty shroud, high confidence and trust that have been reBack to the joyous Alps, who call to lber aloud I " posed in him. The storm is playing around him; the pitiless I know, Senators, that when I state these rain is beating upon him; the lightnings are things in your presence and in your hearing flashing around him; but I have the pleasure they may excite a smile of derision among to state to you, Senators, to-day, and I hope some of those who differ with him in opinion. that my voice will reach the whole country, I know that an unfortunate difference of opinthat in the midst of it all he still stands firm, ion exists between the Congress of the United serene, unbent, unbroken, unsubdued, unawed, States and the President, and I feel, in atunterrified, hurling no words of threat or men- tempting to address you in his behalf upon ace at the Senate of the United States, threat- some of' the very questions about which this ening no civil war to deluge his country with difference exists, that, in the language of MV. blood; but feeling a proud consciousness of Adams, I am walking in the midst of burning his own integrity, appealing to heaven to wit- plowshares; but I pray Almighty God to ness the purity of his motives in his public ad- direct me and to lead me aright, for I believe ministration, and calling upon you, Senators, in His presence this day that my distinguished in the name of the living God, to whom you have client is innocent of the charges that are premade an appeal, that you will do equal and im- ferred against him; and I hope that God's partial justice in this case according to the Con- blessing, that has followed him thus far in life, stitution and the laws, to pronounce him inno- will follow him now, and that he will at the cent of the offenses which have been charged end of this trial come out of the fiery furnace against him. through which he is passing without the smell Who is Andrew Johnson? Are there not of fire upon his garments. Senators here who are well acquainted with Who is Andrew Johnson? Why, Senators, him? Are there not men here whose minds when the battle of Manassas, as we called it in go back to the stirring times of 1860 and 1861, the South, or of Bull Run, as I believe it is when treason was rife in this Capitol, when called in the North, was fought, when our men's faces turned pale, when dispatch after troops were defeated, when they rushed in hot dispatch was sent from this Chamber and from haste and awful confusion to this capital, when the House of Representatives to the people men's faces turned pale and their hearts grew of the southern States to " fire the southern faint, where was Andrew Johnson then, this heart," to prepare the southern mind for that traitor, this usurper, this tyrant? Again he revolution which agitated our country and was heard in his place in the Senate, and he which cost the lives and the treasure of the rises with a resolution in his hand, undisnation to such an alarming extent? Where mayed, unfaltering, believing in the justice of was Andrew Johnson then? Standing here, the great cause in which the country was enalmost within ten feet of the place in which I gaged, and once more his voice was heard stand now, solitary and alone, in this magnif- proclaiming to the whole land and to all the cent Chamber, when "bloody treason flour- world the objects and purposes of the war and ished over us," his voice was heard arousing the determination of the Congress of the Unithe nation. Some of you heard it. I only ted States, in the fear of God and in the conheard its echoes as they rolled along from one fidence of the justice of their cause, to pursue end of the. land to the other, to excite and it to an honorable and a safe conclusion. Then arouse the patriotism of our common country. it was that his voice was heard, and again the Yes, he stood "solitary and alone," the only plaudits of hundreds and thousands shook the member from the South who was disposed to very walls. of this Capitol in his favor, as they battle against treason then; and he now is had done on former occasions when he stood called a traitor himselfI He who has periled here and vindicated the American Constituhis life in a thousand forms to put down trea- tion and proclaimed the determination of the son; he who has been reckless of danger; he Government to uphold and to maintain it. who has periled his life, his fortune, and his One word more, Senators, in regard to the sacred honor to save this land from destruction President of the United States. It is admitted and ruin —he now is stigmatized and denounced upon all hands that we are addressing gentleas a traitor; and from one end of the country men of the highest intelligence and position in to the other that accusation is made, and it the land, many of whom, as has been repeatrings and rings again until the echoes even edly said, are judges and lawyers well skilled 597 in the law. What has been your rule of con- try most solemnly, that I make notsuch calduct either as judges or lawyers when you culation. No such unworthy investigation has came to pronounce judgment upon the conduct for a moment agitated my mind. No, Senaof a fellow-man? You endeavored to place tors; I would not do a thing so unworthy of the yourselves in his position; you endeavored to lofty position which you hold in the land. I look at things from his stand-point; yQu en- say to you, and I say to the whole country, that deavored to judge of them as he judged of whatever others may think, whatever they may them; and when you thus act you are enabled believe, I for one do not believe that impeachunderstandingly to determine whether the par- ment is a foregone conclusion. If I thought ticular act in question be right or wrong. I so, humble as I am, and exalted as you are, only ask you here to-day, if it be possible for I would scorn the idea of addressing myself you to do so, to place yourselves in Andrew to this honorable court; but I do not believe Johnson's position, and to look from his stand- it. No, sirs, no; nothing but a result which point, and judge in the manner in- which he I trust in God never will happen will bring judged. I know, Senators, that this is asking me to the conclusion that any such state of a great deal at your hands. I know it is ask- things exists with honorable men, the rep, ing a great deal of men who have fixed opinions resentatives of the sovereignty of the States; uponi subjects like these to review their own for, Senators, we all know enough about the opinions and to consider them, especially where history of our country to know that it requires they arq different from those of the man whose no ordinary talent, no ordinary character, no conduct they are endeavoring to judge. But ordinary experience to get to this Chamber in I feel, when I am addressing you here to-day, which you are acting as the representatives that I am not addressing a Senate such as the of the States. It requires standing, character, honorable Managers spoke of the other day; I age, talent, to enable men to come here and am not addressing mere politicians. I feel to occupy the positions that you now occupy; that I am addressingjudges-the most eminent and, for the honor of our common country, for judges known to the laws and the Constitution the honor of American Senators, for the honor of our country-judges sitting upon the great- of our noble ancestors who framed this tribuest trial known to the Constitution; judges nal with a view to do equal and impartial who have prescribed an oath for themselves; justice, I cannot for one moment credit such and while I know, while we all feel, the power things. I would say now, as I have seen it of passion and of prejudice and preconceived said on some few occasions, I wdold say now opinion, and know the difficulty of laying them as ever to the American people, place no conaside, yet, Senators, I would humbly and re- fidence in these things; believe that the Senaspectfully invoke you this day, in the name tors of the American nation are all honest and of that God to whom you have appealed, to honorable men; and in every time of trial and make one honest, faithful effort to banish from of danger, when the billows of excitement roll your mind, as far as possible, all precon- high, when human passions are aroused and ceived opinions; to sink the politician in the, agitated in the highest degree, look to the Senjudge; to rise to the dignity and majesty of ate; look with hope and with confidence; look this great Occasion; and, though it be like to those men who-are in some degree elevated cutting off a right arm or plucking out a right above dependence upon mere popular clamor eye, I ask you, Senators, to rise to that super- and hasty and temporary excitement; look to human, God-like effort which shall enable the Senate; look to it with confidence, and you to banish these opinions and to do that thus looking your hope shall not be in vain. equal and impartial justice which you have Thus it is, Senators, that I shall endeavor sworn to do. to address you on this occasion. It is with Some people think that this cannot be done.'this hope and with this confidence that I apIt is impossible to close our eyes against what proach the consideration of some of the other is takThg place out of doors: It is impossible topics which have been raised in this cause. I not to know that the newspapers have dis- asked you a moment ago, if possible, to place cussed this case. The press of this country yourselves in the condition of the President of is now the most tremendous power that be- the United States, to divest yourselves, so far longs to it, a power greater than the power of as you can, of all preconceived opinions-and Presidents and Senators and Representatives, I admitted that it is an almost superhuman the mightiest power known to the land. It is effort to do so-and to place yourselves, as far impossible for us to close our eyes against the as you can, in his position, to look at his acts fact that this case has been discussed and dis- in the manner in which he looked at them. cussed over and over again in every form by And now trace the history of his life in another those who favor impeachment and by those view, his life as a politician. who are opposed to it, and all manner of Who is the President of the United States? opinions have been expressed. Some have A Democrat of the straightest of strict consaid that they can calculate just exactly what structionists; an old Jacksonian, Jeffersonian is to be the result of this trial. Senators, I Democrat; a man who proclaimed his Demochave made no such calculation. I declare to racy in the very letter of acceptance which he you here most -solemnly, I declare to this coun- wrote at the time when he was nominated for 598 the Vice Presidency; a man who told you and There is the chart that has guided the Presiwho told the whole:country in that letter that dent of the United States in the discharge of he was a Democrat, and who endeavored to his official duty; there is the platform on which arouse the old Democracy to what he called he has stood; and if he has not viewed it in the pure and correct Democracy of the coun- the light in which others regarded it, still, Sentry to rally around the national flag, and to ators, we ask you if it is not capable of being sustain the country in the great conflict through regarded in the lightin which he viewed it? If which it was passing. Now, when you look it is, then, as I shall maintain, we deprive this at this, and when you consider all the public prosecution of all improper motive. I declare speeches that he ever made, examine the rec- here to you to day that in view of all the testiords of Congress, examine your debates every- mony which has been offered on the other side, where, look to any question in which an in- in view of all that is known to the history of quiry into the Constitution of the United States the country, with the exception of one solitary was ever involved, where do you find the Pres- cireumstance, the President ofthe United States ident? You find him under all circumstances has stood up in letter and in spirit to what a strict constructionist of the Constitution, he believed to be the terms of this resolution adhering with tenacity to the principles of that which was adopted with something approachparty faith in which he had been trained and ing unanimity in both Houses of Congress in educated; and when you look at the great dif- 1861. In the progress of the war he felt that ference of opinion that exists between him and it was necessary for -him to yield the question yourselves and him and the House of Repre- of slavery so far as he had any influence in the sentatives upon the great questions that are State or section of country in which he resided. agitating the country, while you may differ He did yield, and he went as far as the farthest from him in opinion, while you do differ with to proclaim emancipation in the Sitate over him in opinion, yet, Senators, I ask you if- which he had been placed as military govhe may not honestly entertain an opinion dif- ernor; but in all other respects he has enferent from yours? Do accord to him some- deavored to carry out the terms of this resoluthing of those motives that you accord to every tion, which was introduced by himself in the other human being upon a trial; accord to Senate, and into the other House by the venhim at least what the laws of the land grant to:eraable Crittenden, known to you all, who now the meanest criminal who ever was arraigned is no more, but whose memory will be cherat the bar oT justice; accord to him the benefit ished with veneration,and respect so long'as of the legal presumption that he shall be pre- America shall have a name. So long as talent sumed innocent until the contrary appears. and genius-and independence and faithfulness Look at his motives, look at the mannier in and firmness shall be venerated and respected, which he has acted; and if there has been, as the name of that great and good man will be there is, an unfortunate difference of opinion honored in our own and all other lands between him and the Congress of the United Do not misunderstand me, Senators. It is States upon great constitutional questions, why, not my purpose to enter to-day upon any disSenators, attribute that difference, if you please, custion of the differences of opinion between to the training, to the education, to the habits the Congress of the United States and the -of thoughtof his whole life; but do not, in the President in regard to the different reconstrucabsence of proof, attribute it to unworthy, tion policy which has been pursued by each. base, mean, dishonorable motives, as you are I only advert to it for the purpose of showing asked to do on the other side. that there was a pledge that the dignity, equalI beg leave, Senators, to remind you of the ity, and rights of the States should be pretesolution to which I adverted a few moments served; and in 1860 and in 1861, when the ago; for, in the view which Itakeofthiscase, galleries of this Senate rang with shouts and that resolution furnishes a key to the whole applause of the multitude, when fair women conduct of the President in the controversy and brave men were not ashamed to Fpress out of which this unfortunate prosecution has their admiration for and gratitude to him who arisen. How was that resolution of 1861? It is now on trial before you, he advocated a docis familihr to you all: trine which was exceedingly obnoxious to the "Resolved, That the present deplorable civil war people of the southern States. What was that -has been forced upon the country by the disunioeists doctrine? It was that the Congress of the of the southern States now in revolt against the con- ited s the power to compel oestitutional Government and in arms around the capi-wer to compel - tal; that in this national emergency Congress, bas- dience to the Constitution and laws of the ishing all feelinug of mere passion cr resentment will United States. He denounced the doctrine recollect onlyits duty to thewhole country: that this f ecessio Hedenied that any tate had war is not prosecuted on our part in any spirit of of secesion He denied tht any State had oppression, nor for any purpose of conquest orsub- the right to withdraw from the Union without jugation. nor for the purpose of overthrowing the the consent of all the States. He insisted that rights or establishedinstitutions of those States,.'t the whole powr of tbi -Government shotld be to defend and maintain the supremacy of:the Constitution and all laws -made in pursuance thereof, and brought into requisition to keep those States to preserve the Union with all the dignity, equality, within the Union. and rights of the several States unimpaired; that as eoon as these objects are accomplished the war ought He faithfully maintained his principles dur0to cease." ing the war. When the war was over; when 599 Lee surrendered suddenly and unexpectedly; capacity, from a simple justice of the peace up when the Governmen, was cast upon him by an to the Chief Justice of the highest court in the act beyond his control; when all its responsibil- United States, is protected by the laws of the. ities were devolved upon him, and in the sud- land in the faithful and honest exercise of the den emergency in which he was called upon to judgment that is conferred upon him. act it was necessary for him to act promptly, You have heard a great dual, Senators, about to act hastily, to act speedily, so as to bring the doctrine of implied powers. I may have the state of hostilities to a final termination as occasion to speak of that again in another pa/ soon as possible, Senators, what did he do? of my observations to you; but now let me There was no time to call Congress together, put one plain, simple question to this Senate no time to. assemble the representatives of the and to the whole country: can any man put nation, for the situation of the country, upon his finger upon any sentence or clause in the Lee's surrender, demanded immediate and Constitution of our country which says who is prompt action. What did the President do? to restore the relations of peace in the land. According to the testimony of Mr. Stanton when they have been disturbed by a civil war? himself, which is now known and familiar You have the power to suppress rebellion; but through all the land, the President of the Uni- the very moment you go. beyond the language ted States undertook to carry out what he be- of the Constitution you launch out into implied lieved to be the policy of his lamented prede- powers. The very moment you depart from cessor. He undertook this in good faith. He the language of the Constitution you are obliged retained the Cabinet which Mr. Lincoln left. to resort to the doctrine of implication, and the He manifested no desire to segregate himself very moment you admit the doctrine of implifrom the party by whom he had been elevated to cation then I maintain that that doctrine is power. Heendeavoredfaithfullytocarryoutthe just as applicable to the President of the provisions of the resolution of 1861 to preserve United States as it is to any Senator or to any the dignity, equality, and rights of the States, Representative. and not to impairthem in the slightest degree. I know to whom I am addressing myself; I And now the question which I put before this know the intelligence and the high respectaSenate and before the whole country is this: bility of this great tribunal; but I put the suppose he committed an error; suppose he is question with fearless confidence to every Senwrong; suppose Congress is right; in the name ator, where do you get the power in the Conof all that is sacred, I ask can you predicate stitution to pass your reconstruction laws? guilt of any acts like these? In the name of Where do you get it unless you get it under the all that is sacred, I ask can any one say that he power to suppress insurrection? Where do you is a traitor to his principles, or a traitor to the get it unless you obtain it under those general party that elected him? It is a mere difference powers by which the war was carried onl, andof opinion, an unfortunate, a very unfortunate under which it was declared that a Government one, between him and the Congress of the has an inherent right to protect itself against United States; but who can say in the spirit dissolution? Where do you get-the powerelseof candor and truth that he was not endeavor- where? In the name of law and order and ing and did not in all his acts strive to carry justice that you have inscribed upon the tablet out what he believed to be the policy of the over the door that enters into this magnificent party by whom he was elevated to power? Chamber, and which I trust will be inscribed When he did everything that he thought it was in characters of living light upon the mind necessary to do; when, following the exam- and the heart of every Senator I address tople of Mr. Lincoln in regard to'Arkansas and day, I ask you, Senators, where do you get this Lbuisiana, and certainly following the spirit of power if you do not get it by implication? Mr. Lincoln's proclamations and efforts, he The Constitution is silent. It does not say sought to restore the other southern States to that Congress shall pass laws to reconstruct the relations which they had maintained to our States that have been in rebellion. It does common Union before the civil warcommenced, not say that the President of the United States I ask who can say that there was guilt in all shall do.this. You are obliged to resort to imthis? You may differ with him in opinion; plication. He is the Commander-in-Chief of you may think he was wrong; I have no doubt your armies. The country was in a state of that a large majority of the Senators whom I war; peace had not been declared when these address do conscientiously and honestly believe measures of his were undertaken. It was that he was wrong; but still, Senators, does necessary to protect the.country'against disathe mere fact that you think he was wrong dis- banded armies, against the ravage and the robe this case of that part of our defense which ruin that were likely to follow in the wake of rests upon the honesty and the integrity of the thousands upon thousands of soldiers who were Judgment which he exercised? In the name discharged and turned loose upon the country. of all that is sensible I ask, is a judge to be I repeat, there was no time to falter, no time tried because he mistakes the law in a charge to hesitate, no time in which even to ask the to a jury? I need not turn to authorities; I judgment and the aid of the Congress of the need not read law books to satisfy the honor- United States. He was forced to act; and if, able Senate that every man acting in a judicial in the construction of the powers and duties 600 that belong to him as President of the United tory of our country without undertaking to disStates, as Commander-in-Chief of your Army, cuss the merits of the difference of opinion as the principal executive officer in the land, between Congress and the President. I only your President mistook his powers, if he miscon- allude to it for the purpose of relieving him ceived them, if he fell into the error into which from the charge of being a usurper, a traitor, a you may say that #r. Lincoln, his lamented tyrant, a man guilty of every crime known predecessor, had fallen, I ask you, gentlemen, under the heavens I isthere to be no charity, no toleration, no Mr. Lincoln, in his proclamation of July 8, license, no liberality for a difference of opin- 1864, stated that he had failed to approve the ion? Have we gone back two hundred years first reconstruction bill passed by Congress on in the history of the world to the period when, the 2d of July, 1864, and had expressed an as you all know, it was customary, especially unwillingness to set aside the constitutions of in regard to religious opinions, to burn at the Arkansas and Louisiana. In his proclamation stake for differences in opinion; or do we live of December 8, 1863, he had invited-mark in the midst of the light of the nineteenth cen- my language-he had invited the people of tury, when the Gospel is spread abroad, when the rebellious States to form new constitutions, a liberal and enlightened spirit characterizes to be adopted by not less than one tenth of the the age, when the human mind has been devel- voters who had voted at the presidential elecoped in such form and to such extent as the tion of 1860, each of whom should take the world never witnessed before? I ask you, Sen- oath of amnesty prescribed by his proclamaators, is he to be judged in the spirit of the tion. President Johnson, as you know, when dark and the Middle Ages; are you to go back he came into power, recognized Governor Peirto the history of the midnight of mankind in point's government in Virginia, a government, order to find a rule for his conduct; or areyou if I am correctly informed as to its history, to judge him with a liberal, enlightened, patri- actually embracing only a few counties of the otic judgment, and give his conduct the weight State of Virginia during the war; but which to which it is entitled? the Congress of the United States thought, I maintain on this great subject that the and rightfully thought, was sufficiently well President in his position as the chief executive organized to justify it in consenting to the officer of the land was entitled to form a judg- formation of a new State, now known as the ment; that he was compelled to form it; and State of West Virginia. that even if his actions were erroneous and con- This is the correct statement of the case, if I trary to the Constitution, if he was governed am not misinformed as to the facts of history; by honest and correct and upright motivQs, his and, Senators, you will pardon me if I should honesty and integrity of motive in this court fall into errors on these subjects,.because, as or any court under the heavens is a shield and I have stated to you, I am no politician. It is a protection to him against all the darts that like carrying coals to Newcastle or telling a may be leveled at him from any quarter, high thrice-told tale for any of us to argue these or low. The servant that knew his master's questions before Senators and Representatives *ill and did it not was punished; but never who are amuch more familiar with them than the servant who did not know his master's will we are, and if I should fall into any errors I or who erred, and honestly erred, in the exer- beg you to believe that they are errors of ignocise of the best judgment and reason he pos- rance and not of design. I know the great sessed. superiority that the gentlemen who are ManSenators, I maintain that this cursory glance agers in this cause have over us in their knowlat the history of the country and of the differ- edge of these matters, because each member ence of' opinion that exists between Congress of the House of Representatives and every Senand the President is sufficient to show that he ator in reference to these subjects may say of was animated by upright and correct motives, himself "parsfu6;" you have all been conand that he ought not to be judged in the cerned in them and they are much more familiar spirit in which the honorable Managers ask to you than they are to me. Still, Senators, I beg'that he shall be judged; his acts ought not to leave to remind you that President Johnson be condemned; but you ought to give him at recognized the Peirpoint government. That least the merit of having had reason to act in government was recognized as the State govthe manner in which he did act. ernment of Virginia under an election held by Without dicussing the questions, but merely the people of that State, and under that elecfor the purpose of recalling the attention of tion West Virginia was formed into a new Senators to certain dates, I beg leave to re- State, and all this was done, if I am not mismind you, as I have already done, that, accord- informed, without any act of reconstruction ing to Mr. Stanton's own testimony in another being passed by the Congress of the United investigation, which has been published under States. the authority of Congress, the President of the When President Johnson came into power, United States endeavored to carry out what he and saw that the Congress of the United States believed to be the policy of Mr. Lincoln; and had recognized the existence of the State of after referring to some few dates and circum- Virginia and had formed West Virginia into a stances I shallpass from this part of the his- new State within her jurisdiction, was he not 001 justified in the belief that by recognizing the judges to pronounce; if you pronounce that eirpointgovernment he was pursuing not only cool, calm, dispassionate judgment which must the policy of Mr. Lincoln and the party that be exercised by every one of you who intends elevated him to power, but the policy of the faithfully to redeem the pledge which he has Senate and House of Representatives of the made to God and the country, I think, SenaUnited States? Surely so; and if he com- tors, you will surely acqui4him of many of the mitted an error it was an error of the head and accusations that have been made against him. not an error of the heart, and it ought not to be One other thought before I leave this branch made a matter of railing accusation against of the subject. On the 20th of August, 1866, him. the President of the United States proclaimed The President when he came into office was the rebellion at an end, and *the 2d of March, guided by these precedents, and, if you allow 1867, an act was approved entitled " An act to me to coin a word, by the unapproved act of provide for the temporary increase of the pay 1864, (Mr. Davis's bill,) which recognized the of officers in the Army of the United States," right of the President to appoint military gov- by the second section of which it is enacted: ernors. Now, without dwelling upon that "That section one of an act entitled'An act to point I simply recall to your recollection the increase the pay of soldiers in the United States fact that by a proclamation he recognized Army, and for other purposes,' approved June 20 1864. be, and the same is hereby, continued in full Francis H. Peirpoint as Governor of Virginia force and effect for three years from" — on the 9th of May, 1865. Between the 29th Mark the languageof May and the 18th of July, 1865, he ap- "from and after the close of the rebellion as anpointed provisional governors for North Car- nounced by the President of the United States by olina, Mississippi, Georgia, Texas, Alabama, proclamation bearing date the 20th day of August, South Carolina, and Florida. In October, 186." 1865, he sent dispatches to Governor Perry, of There is a legislative, a congressional recogSouth Carolina, and others, urging the adoption nition of the fact that the war is at an end; of the anti-slavery amendment. And on the there is a recognition of the President's power 4th of December, 1865, he communicated his so to proclaim it, and without discussing the action to Congress, denying that secession had question, (for I have said I will not enter upon segregated the rebellious States fromthe Union, the discussion of it, though I am invited to it, and leaving it to each a House to judge of the I might almost say by the repeated remarks elections, qualifications, and returns of its own which have been made by the honorable Manmembers. agers,) I maintain that this legislative recogNow, Senators, let me pause a moment and nition of the President's proclamation anask you the question here, up to that time, up nouncing the termination of the civil war, the to the assembling of the Congress of the Uni- close of the rebellion, was a recognition of the ted States in December, 1865, who was there fact that the southern States were not out of in all this broad land, from one end of it to the Union and that it goes far to extenuate, if the other, that dared to point "the slow, un- not to justify, the view which the President moving finger of scorn" at Andrew Johnson of the United States took in reference to the and say that he was a traitor to his party, or restoration of these States to their harmonious say that he had betrayed any trust reposed in relations with the Government of the country.. him? He was faithfully carrying out what I And now, Senators, having disposed to some repeat he believed to be the policy of Congress extent, but not entirely, of these personal and of his predecessor. He was anxious that charges which have been made against the this Union should be restored. He was anx- President, having reviewed briefly and imperious to pour oil upon the troubled waters and fectly something of his personal and political heal the wounds of his distracted and divided history, I invite you to look back upon the co,untry. If he erred in this it was almost a record of his whole life, and in his name I ask divine error. If he erred in this it was a noble you, and I ask the country to-day, as Samuel error. 4 was an error which was intended to asked the people of Israel in the olden time: restore peace and harmony to our bleeding "Behold, here I am: witness against me before country. It was an error which was designed the Lord and before His anointed, whose ox have I taken? or whose ass have I taken? or whom have to banish the recollection of the war. It was I defrauded? whom have I oppressed? or of whose an error which was intended to bring into fra- hand have I received any bribe to blind mine eyes ternal embrace the fathers and the sons, the therewith? and I will restore it to you." brothers and the sisters, the husbands and the And Itrust that the answer of this Senate, wives who had been separated through that and the answer of the whole country, will be awful calamity which overshadowed our coun- such as the people of Israel gave; fortry and that terrible civil war which drenched "They said. thou hast not defrauded us, nor opthe land in human gore. pressed us; neither hast thou taken aught of any say that if he comnmitted an error in this, man'shand. Andhesaiduntothem,theLordiswitness against you and His anointed is witness this day it is not an error that should be imputed as a thatyehave not found augjt in my hand. Andthey crime; and however greatly you may differ answered. he is witness." from him, if you will pronounce upon his con- The President appeals with proud confidence duct that judgment which I invoke elevated to the Senate and the whole country to attest the purity and integrity of his motives; and topics, becauseto us it seems these are questionsnot while he does not claim that his judgment is of form, but of substance. If this body here is a while he does not claim that he may court in any manner as contradistihguished from the infallible, while he does not claim that he may Senate, then we agree that many, if not all, the not have committed errors-and who in his analogies of the procedures of courts must obtain:; position may not have committed great and that the common-law incidents of a trial in court must have place; that you may be bound in your grievous errors —while he claims no such at- proceedings and adjudication by the rules and pretributes as these, he does claim, before this cedents of the common or statute law." Senate and before the world, that he is an * * * * * * * * * * honest man, that he is a man of integrity, that "We claim and respectfully insist that this tribunal has none of the attributes of a judicial court he is a man of pure and upright motives; and as they are commonly received and understood. Of notwithstanding t*e clamor that hasbeen raised course, this question must be largely determined by against him, he -feels it, and he appeals to the the express provisions of the Constitution, and in it against h h feli, ndeapeasoethere is no word, as is well known to you, Senators, jtudgment of this Senate and of the world to which gives the slightest coloring to the idea that vindicate him in it. this is a court, save that in the trial of this particular Mr. ChiefJustice and Senators, one of the first respondent the Chief Justice of the Supreme Court questions which, as I respectfully think, is of im-must preside." portance in this cause is a question which I have That position has been affirmed again in barely touched in passing along but have not argument by others; and treatises, I had almost attempted to consider. That question is, what said volumes, have been written upon this sort of tribunal is this? Is this a court or is subject. Able and learned arguments have it not? Some votes have been taken, Sen- been presented to the Senate, and through the ators, as you know, in the progress of this newspapers to the public, upon this question. cause upon this question. It has not been dis- Gentlemen in their researches have gone back cussed according to my recollection by any of to the black-letter learning of the English law the counsel for the President. At an early books and the English Parliament to search period of the trial you retired to your Chamber for precedents, to search for authorities in refto consider of it. What debates you had there erence to this great question; and the position I know not. Whether they have been pub. which they have assumed and most learnedly lisked I know not. Your votes were announced and persistently insisted upon is that this high by the Chief Justice, but whether the discus- court of impeachment possesses all the powers sions in the secret session of the Senate have of a court of impeachment in England; that it been published I confess I am ignorant. All is to be governed by the same rules and the, that I have to say is that if they have been same regulations; that you are not to go to the published I have not seen them. While I do common law for precedents or principles to not know to what extent the opinion of Sen- guide your judgment, but that you are, in the ators may be fixed and formed upon this ques- language of two of the ablest gentlemen.on the tion, I ask, as a matter of right, whether you other side, "a law unto yourselves." Let us consider yourselves as having decided it or consider this position for a moment. I have not, that you will allow me to address myself but one answer to make to it. for a short time to the consideration of this It is not my purpose to follow the industri. which I regard as one of the greatest questions ous and careful and diligent and learned Man. that ever has been presented since the forma- agers on the other side, and I do not utter these tion of our Government. I think I am not as words of vain and empty compliment, for asking too much at the hands of the Senate they have bestowed a degree of labor, industry, when I ask to be heard upon this subject; for and research in the investigation of this cause even if you have decided the question, if you that is in the highest degree creditable to their follow the analogy furnished from courts of talents and to the integrity and fidelity with law and equity, where a rule for a new trial which they are endeavoring to discharge the may be entered at nisi prius or a petition for trust that has been reposed in them by the a rehearing may be filed in a court of chan- House of Representatives. But, with the greatcery, or a bill of review or a reargument or est respect for, the ability and learning which,'anything that a judge may deem proper to be have been displayed upon the other side, I beg heard upon a subject that is before him, itwill leave, Mr. Chief Justice and Senators, to subnot be asking too much for me to request you mit to your consideration one or two arguments to.hear me for a fewar moments upon this subject. which it strikes me are pertinent and appro. It was argued by the honorable Manager who priate. opened this cause that this is a mere,Senate; In the first place, I deny that;you are to go that it is not acourt. I will caltyour attention to the law of Parliament, the lex parliamentao to a single paragraph or two in the learned ar- ria, for the authority which is to guide and gument of the able gentleman who has managed govern and control in this great trial; and why this cause with such consummate tact and do I say so? Because I maintain that this ability on the side of the prosecution, and from tribunal is different from any tribunal that the whom we have had so many fine examples of world ever saw. No such tribunal is known the decency and proprety of speech. He says: in history. It never had a parallel. It never "I trust, Mr. President and Senators, I may be had an existence until it sprang into being, pa-daned for mraling some suggestions upon these full-armed, like Minerva from the brain of 603 Jove, under the creative hand of those who subject. I do not consider that it is necessary framed the Constitution of the United States. for me to bring in volumes here and to read You are to interpret it, as I maintain, not by page after page to the Senate upon this subject. the lights of English history alone, but by the I take it for granted that Senators are informed, light of the circumstances under which the Con- and no doubt a great deal better informed stitution of the United Stites was adopted. upon it than I am. All that I deem it material I do not say, Mr. Chief Justice, that you are and important to do is to refresh your recolto ignore history. I do not say that you are to lection in regard to some of the circumstanceS ignore a knowledge of the decisions that have connected with the incorporation of this probeen made in Parliament or that have been vision into the Constitution of the United made in the courts of justice of England. I States. You will recollect, Senators, that grant that upon some subjects it is perfectly when the Constitution was about to be formed right and proper to go to English history, to various plans of government were offered, examine English law books, to investigate Eng- Without bringing in the volumes or taking up lish causes, with a view of interpreting phrases the time of the Senate to read at length the and terms that were known to our fathers, and different plans of government which were prothat have been incorporated into the Consti- posed by different members of the Convention tution of the country; but none of them afford that formed the Constitution. I only call your any clue to this investigation, none of them attention to so much as I think is pertinent afford any light upon this subject; and why? to this question. You remember that ColonelBecause, I repeat, this tribunal has no exem- Hamilton introduced what was called a plano plar in the Iistory of the world. It is the tri- of government, and in the ninth section of that banal of the American Constitution, and we it was provided thatmust look to the language of the American " Governors, Senators, and all officers of the United Constitution inorder to ascertain what it means; States to he liable to impeachment for mal and corHonor will not take rupt conduct, and upon conviction to be removed and I ask, and I hope your Honor will not take from office and disqualified from holding any place any offense at my using phraseology which I am of trust or profit; all impeachments to be tried by a' sure is not intended to give any, I respectfully court." ask this Senate, whether it was the intention of Mark the proposition, for it is in the light the framers of the Constitution that the Chief of these propositions that I maintain we are to Justice of the United States should be called arrive at a true and correct interpretation of down from the most elevated tribunal upon the the Constitution itself: face of the earth to preside over your deliber- "All impeachments to be tried by a court, to eon; ations, and that when he comes here he shall sist of the chief or senior judge of the superior courthae- o or pwe ta a odiarseae of law in each State: Provided, That such judge hold, have no more polwer than an ordinary speaker his place during good behavior, and have a permaof an ordinary House of Representatives, and nent satary." hardly so much; that he shall be a mere autom- That was introduced on the 18th of June, aton, a machine, a conduit through whom the 1787, and will be found in 1 Eliot's Debates votes of the Senate are to pass to the records on the Federal Constitution, page 180. Mr. of the country? Randolph had a plan of government; and the I insist that there was an object, a high ob- thirteenth propoRtion contained in Mr. Ranject and purpose jn the framers of the Consti- dolph's plan was in these words: tution when they called the Chief Justice from "Resolved, That the jurisdiction of the national his lofty position to preside over the delibera- judiciary shall extend to cases which respect the tions of the Senate. There was an object and collection of the national revenu impehment of any officer, and questions which involve the national a purpose, an object such as never had been peace and harmony." attained in English history; an object such as;That was introduced on the 19th of June, was unknown to the British constitution; for, and is set out in 1 Eliot's Debates may it please your Honor, under the British page 182. In Mr. Charles Pinckney's plan, constitution, as I understand its history, Par introduced on the 19th of May, 1787 four liaument did not consider themselves bound by days after the Convention was organized, it' the judgment of the judges, although they often was provided thatconsulted them upon legal questions. I main"consulted them upon legal questions. I main- The jurisdiction of the court to be termed the tain that instead of that fact furnishing an Supreme Court should extend to the trial or imargument, as they have attempted to use it peachmeat of oficers of the United States." on the other side to prove that it was the in- That is set out in the first volume of the tention of the framers of the Constitution that Madison Papers, page 131. Mr. Madison prethe Chief Justice should be a mere automaton ferred the Supreme Court for the trial of ilmor cipher in this trial, when you Jook to the peachments, or rather a tribunal of which that history of the formation of the Constitution should form a part. (See the Supplement to every intendment is to be' taken to the con- Eliot and 5 Madison Papers. p. 528.) Mr. trary. Jefferson, in his letter of tie 22d of FebNow, without taking up too much time, Sen- ruary, 1798, to Mr. Madison, alludes to Mr. ators, on this question, interesting and im- Tazewell's attempt to have a jury trial of important as it is, I beg leave to remind you of peachments. That will be found in the fousrth some facts connected with the history of this volume of Jefferson's Works, page 215. 604 Mr. Hamilton, in the Federalist, No. 65, intelligence of the judges were essential elesays: ments to a fair determination. I think that is " Would it have been an improvement of the plan one of the most important considerations in to have united the Supreme Court with the Senate in the investigation of this great question. You the formation of the court of impeachments? This have seen that one of the plans was to have union would certainly have been attended with several advantages; but would they not have been over- impeachment tried ber a court to be constituted balanced by the signal disadvantage already stated, of judges from each of the States; another plan arising from the agency of the same judges in the was to have them tried by the Supreme Court double prosecution to which the offender would be liable? To a certain extent the benefits of that of the United States; and another plan was to union will be obtained from'making the Chief Jus- have the Supreme Court associated with the tice of the Supreme Court the president of the court Senate uponthe trial. Mark you, every one of of impeachments, as is proposed to be Aone in the plan of the convention; while the inconveniences of these plans of impeachment looked to judicial an entire incorporation of the'former into the latter aid and assistance in the trial of the cause; will be substantially avoided. This was perhaps the and when the Convention finally determined prudent mean." that the Chief Justice should preside, I mainMessrs. Madison, Mason, Morris, Pinckney, tain, Senators, they determined that he should Williamson, and Sherman discussed the im- come here as a judge, that he should come peachment question, and in lieu of the words here clothed as he is in his robes of office, that "bribery and maladministration," Colonel he should declare the law and pronounce a Mason substituted the words " other high crimes judicial opinion upon any question arising in and misdemeanors against the State," as is the cause. And while, sir, I know it is for shown in 5 Eliot's Debates, and Madison your Honor to determine what coVrse you will Papers, 528, 529. On the same day a com- pursue, while I do not presume to dictate to mittee of style and arrangement was appointed, this honorable court or to the Chief Justice consisting of Messrs. Johnson, Hamilton, Mor- who presides over it-it is my province to ris, and King. On Wednesday, the 12th of argue; it is your province, sir, to decide and September, 1787, Dr. Johnson reported a digest to determine-I yet respectfully insist before of the plan. On Monday, the 17th of Septem- the Senate and the world that I have the right, ber, 1787, the engrossed Constitution was read as one of the counsel for the President of the and signed, as will be seen in 6 Madison United States, to call, as I do call, upon the Papers, page 553. venerable Chief Justice who presides over your So far, Senators, as I have examined this deliberations for an expression of his judgment question it does not appear when or how the and opinion upon any question of law which words "when the President of the United may arise in this case. States is tried the Chief Justice shall preside," And how, in the name of common sense, now in the Constitution, were inserted. No does this doctrine of mine trench in the slightdoubt you are much better informed upon this est degree upon any right or privilege of the subject than myself. I have, however, seen it American Senate? Does it conflict with any stated that they must have been introduced duty or with any power that is imposed upon upon a compromise in a committee, and that you by the Constitution of our common counthis fact is shown by Mr. Madison's writings; try? Senators, learned as you are, respectbut in the researches which I have been able able as is your standing at hQme, high as is the to make in the comparatively short time dur- position which the States that have placed ing which this investigation has been going on you here have conferred upon you, you may I have not been able to ascertain whether that still derive instruction from the opinions of a reference is correct or not. I have not had gentleman learned in the law and holding the the long period of twelve months' incubation highest judicial office in the land. Does it inwhich the gentlemen on the other side have vade any privilege or any prerogative-though had within which to prepare myself upon this I do not like to use that word-or any power great subject. But so far as I do comprehend of the American Senate to say that we ask that or understand it I maintain the following prop- they may be guided in their deliberations by ositions, to which I ask the attention of the the profound and dispassionate judgment of Chief Justice and of the Senate; I shall not one who is presumed to hold the scales ofjusdwell upon them at any great length; it will tice in an unfaltering and untrembling hand, be for you, Senators, and for him, to judge and one who holds his office independent of popudecide whether any, and if any, how many of lar excitement and popular commotion, one them are founded in sound reason. who has been elevated to his high and lofty I say that the law of Parliament furnishes position because of his learning, his integrity, no satisfactory exposition as to the office and his talents,, his character? Is it, I ask, any duty of the Chief Justice on an impeachment disparagement even to the American Senate, trial. The interpretation must have been to respectfully request of him that he shall found in the light of the circumstance under deliver an opinion to you upon any of the which the provision was inserted. The anx- questions that may arise in this cause? iety of many members of the Convention to Then, Senators, it will be for you to judge intrust impeachment to a judicial tribunal and determine for yourselves, under such opinproves that they believed the learning and ion, what may be the duty that you have to 605 perform in this case. I insist that so far from over others; to preside over an assemblage." this being an argument in disparagement either "Trial" is not used, as I say, in the sense of of the power or of the intelligence of the Sen- temptation or suffering, but to convey the idea ate, it is an argument which in its nature is of ajudicial proceeding similar to a court and calculated to aid the Senate as a court in ar- jury. And I insist that when the term " Chief riving at a correct conclusion; and that no Justice" is used as it is the term " Chief Jusman who regards the Constitution and the laws tice" is itself a technical word. What does it of the land, no man who is in search of jus- mean? It means a judicial officer. The Constitice, no man who is willing to see the laws tution does not say in so many words that there faithfully and honestly and impartially ad- shall be a judicial tribunal in which there shall ministered, can for one moment deny the right be a chief justice. It authorizes Congress to of this great civil magistrate, clothed in his create judicial tribunals. It took it for granted judicial robes and armed with all the power that there would be a court; it assumed that and authority of the Constitution, to declare in that court there would be a chief justice, what he believes to be the law upon questions and that he should be a judge; and when it arising in this cause. assumed that it assumed that he should act in I hope you will pardon me for dwelling on the capacity which I have insisted upon. this point for a few moments, as it has not Without dwelling upon this argument furbeen discussed, I believe, by any of the gen- ther, I can only say that in the views which I tlemen who are counsel for the President. entertain of the question I conceive it to be one Indeed, I do not know that I represent the of the most important questions that ever were opinion of any gentleman who is counsel for presented for consideration in this or any other the President except myself; but I think that country. So far, we all know, Senators, that as one of his counsel I have a right to submit this is the first cate under the American Conany views or opinions that I entertain in refer- stitution in which the Senate has been called ence to the case to the consideration of the upon as a court of impeachment to try the Chief Justice and the Senators. When you Chief Magistrate of the land. If our Governlook to the clause of the Constitution under ment survives the throes of revolution, if our which this power is conferred I say that every Government continues as it is, undiminished, word in it is a technical word. The Senate unimpaired in the hands of posterity, the preshall try an impeachment. I do not quote the cedent which you are to form now will last for words literally, and it is not necessary to turn a thousand years to come, and the decision to them. They are familiar to you all. The which is made now is a decision that will be Senate is to try an impeachment; and upon quoted in after ages and that will be of the very this trial the Senators shall be upon oath or utmost and highest importance; and I mainaffirmation; and when the President is tried tain that in the view which has been presented the Chief Justice shall preside. we have a right to call upon the Chief Justice What is the meaning of the word " trial?" to act not merely as presiding officer, but to It is unnecessary for me to enter into any elab- act as a judge in the conduct and management orate definition of it. It is enough for me to of this trial. say that it is not used in the Constitution in I have already referred to some startling and the sense of suffering; it is not used in the extraordinary propositions which are made by Constitution in many of the senses that it is the Managers; I must notice some others. Mr. used in common parlance; but it is used in Manager BINGHAM says-I quoted the expres. the sense of a judicial proceeding, and here, as sion awhile ago-that you are "a rule and a I have admitted, you must go to the fountains law unto yourselves." Mr. Manager BUTLER of the English law, you must go to the terms proclaims that, "a constitutional tribunal, you that were in existence at the time when the areboundbynolaw, either statute orcommon." Constitution was adopted, for the purpose of He says, further, that " common fame and curascertaining and determining what is the mean- renthistory may berelied on to prove the facts;" ing of th2 word " trial." It is a word dear to that is, to prove the President's course of adevery Englishman; it is a word dear to every ministration; and, further, that " the momentAmerican. The idea of a judicial trial, a trial ous question" is raised " whether the presiin which a judge is to preside, a trial in which dential office ought in fact to exist." a man skilled in the law and supposed to be a Senators, in the whole progress of American man of integrity and independence is to pre- history I have never read or heard or seen three side, is a proceeding that is dear to every Eng- such startling propositions as these which are lishman and dear to every American; because insisted upon by the honorable Managers on for centuries it has been regarded in England, the other side. They are dangerous to liberty. and ever since the formation of our own Gov- They are dangerous to the perpetuity of the ernment here, as essential to the preservation Constitution and the American Government. of the liberty of the citizen that a trial is to be They would overthrow every principle ofjustice conducted with all the aid of judicial interpret- and of law which is known to the civilized ation that can be afforded. world if they were carried out to the extent Mr. Worcester defines " preside"' to be "' set which the honorable gentlemen insist upon. aside or placed over others; to have authority In this land of liberty, this land of law, this 606 land where we have a written Constitution, that high consideration which we were formerly who ever heard or dreamed that such doctrines accustomed to bestow on it. would be asserted here? " Common fame " you are to resort to I Is If I do not misunderstand the language of it possible that we have come to this? Is it the honorable gentleman-who opened the case, possible that this great impeachment trial has he thinks that this Senate has the power to set reached so "lame and impotent a conclusions' aside the Constitution of the United States as this, that the honorable Manager is driven itself. Many opf the most eminent and learned to the necessity of insisting before you that writers in England and our own country, in common fame is to be regarded as evidence by treating on the subject of the distribution of Senators? I hope it will not grate harshly powers between the three departments of the upon your ears when I repeat the old and Government, the executive; the legislative, and familiar adage that " common fame is a comthe judicial tribunal, have sounded a note of mon liar." Are the Senators of the United warning that the danger is to be apprehended States to try the Chief Executive Magistrate from the executive; it is not to be apprehended upon rumor, the most dangerous, the most from the judicial department, but it is to be uncertain, the most unreliable, the most fatal apprehended from the encroachments of the and destructive proof that ever was offered Legislature, from the popular branch of the under the sun? Why, the glory and boast of Government; and now we hear a learned, able, the English law and of the American Constiand distinguished leader of the House of Rep- tution are that we have certain fixed principles resentatives, the chief Manager in thisimpeach- of law, fixed principles of evidence that are to ment trial, boldly assuming, as I understand guide, to govern, to control in the investigatioa his argument before the American Senate, that of causes; and one of the beauties, one of the you have the right to judge dbd determine for greatest perfections of the system of American yourselves whether the American Constitution jurisprudence, is that when you go into a court shall last. of justice nothing scarcely is taken by intent, Senators, such a notion is not in conformity There sits the judge; there are the jury; here to the heathful doctrines of the American Con- are the witnesses who are called upon to stitution. The real true sovereignty in this testify; they are not allowed to give in evidence land is not in you; it is not in the President; any rumor that may' have been afloat in the it is not in the Chief Justice; it is in the Amer- country; they are compelled to speak of facts ican people, and they, and they only, can alter within their own knowledge. The case is intheir Constitution. No Senate, no House of vestigated slowly, cautiously, deliberately. The Representatives, no judge, no Congress can truth is arrived at, not by any hasty conclusion, alter the American Constitution. I know that but it is arrived at upon solemn trial and upon now-a-days it excites almost ridicule with some patient and faithful investigation; and when to hear anything said in behalf of the Ameri- the result is attained it commands the concan Constitution. On one occasion since the fidence of the country, it secures the approbacommencement of this trial, when a witness tion of the world, and that result is acquiesced spoke of the President of the United States, in by the citizen; and if it be in a higher saying that he intended to support the Consti- court it passes into the history of law and goes tution of the country, it excited a universal down to posterity as a precedent to be folsmile in the Senate and in the gallery. That lowed in all time to come; and herein, Senvenerable instrument which was established by ators,. is the great security of the liberty that the wisdom of some of the bravest and best the American people enjoy. men that the world ever saw, that noble instru- I hope you will pardon me for giving utterment which was purchased with the blood and ance to one thought in this connection. I the treasure of the Revolution, and which we shall not say that it is original, but it is a have been accustomed to regard with sacred thought which I have often cherished and in,reverence, seems to have been so often tram- dulged in. It is this: that the liberty of the pled upon and violated in this land that when American peopleis notthatliberty merelywhich one dares to mention it with something of the is defined in written constitutions; it is not reverence of ancient times, something of the that liberty which is enforced by congressional respect which we have been accustomed to enactment; but, little as the American people cherish for it, it excites a smile of derision and think of it-and would to God that they would laughter in the land. God grant that a more think of it a thousand times more intensely than healthful sentiment may animate and inspire they do-the only liberty that we have now or the hearts of the American people, and that ever have had, so far as the American citizen we shall return, now that this war has passed is concerned, is that liberty which is enforced away, to something of our former veneration and secured in the judicial tribunals of the and respect for the American Constitution, and country. We talk about our social equality. that we shall teach our children who are to We talk about all being free and equal. It is come after us to love and revere it, as was an idle song, it is a worthless tale, it is a vain taught in times past, as the political bible of and empty expression unless that liberty and the country; that it is not to be treated with that equality are enforced in a court of justice. aught but that respect and that reverence and There it is; I have seen it there, and so have 607 you. It is the only place that I ever did see American people-and remove from office any it. The poor man, the humblest man upon the man who might be displeasing to you, to set face of the earth, I have seen come there as a at naught their election, and to engross into plaintiff or a defendant; I have seen a thou- your own hands all the power of the Constitusand times the impartial judge, sitting blind to tion. Senators, I can conceive of no despotall external emotions and impressions, declare ism worse than this. I can conceive of no the law and try the cause and administer jus- danger menacing the liberties of the Ameritice to this poor, ignorant, unfortunate man can people more awful and fearful than the against the richest and the most powerful of danger that menaces them now, if this docthe land. There is your law, there is your trine finds any sort of favor in the mind or justice, there is the only liberty that is worthy the heart of any Senator to whom it is adof enjoyment; and to talk about common fame dressed. I repeat, in regard to this, as I did and common rumor being admitted before the in regard to some other matters awhile ago, highest tribunal known to the Constitution as that I do not believe the American Senat a criterion of judgment would be, if admitted, will, for one moment, cherish any such doeto overthrow the Constitution itself, and to trine or act upon it in the slightest degree. destroy the liberty which has thus far been The doctrine would prostrate all the ramparts enjoyed in the land. of the Constitution, destroy the will of the "A law unto yourselves I" Senators, if this American people, and it would engross into be so our Constitution has been written in vain. the hands of the Congress of the United States If this be so, all the volumes that swell the all those powers which were intended to be public libraries of the country and the private confided to the other departments and dislibraries of lawyers and statesmen have been tributed among them. written and published in vain. "A law unto Mr. Chief Justice, in considering the case yourselves!" That carries us back almost in now before us, there is a preliminary question imagination to the days of the Spanish Inqui- underlying it which is of very considerable inisition, to some of those dark, secret, unknown terest; and it is, what are crimes and misdetribunals in England, in Venice, in the Old meanors under the Constitution? But, before World, whose proceedings were hidden from I pass to that, I desire, while considering some mankind and whose judgments were most aw- of the extraordinary arguments that have been ful and terrible and fearful in their results. presented by the honorable Managers on the No, sirs; no. I deny that you are a law unto other side, to remind the Senate and the Chief yourselves. I maintain that you have a Con- Justice of one proposition which was paraded stitution. I insist that you must look not to at an early day of this trial. Iregretted almost parliamentary history for the reasons that I the moment I took my seat, after it was anhave already stated, but look to the common nounced, that I had not answered it then; but law, not as an authoritative exposition of all it is in your record, and it is not too late to give the duties which are incumbent on you, but as a passing remark to it now. a guide to enlighten your judgments and your The honorable Manager [Mr. BUTLER] made understandings, and that you must be governed use of the expression that " The great pulse by those great eternal principles of justice and of the nation beats perturbedly, pauses fitfully of reason which have grown up with the growth when we pause, and goes forward when we go of centuries and which lie at the very founda- forward." And you have been told time and tion of all the liberty we enjoy. This, Sen- again that the honorable Managers are acting ators, is what I insist is the true doctrine of for " all the people of the United States." I the American Constitution; and that this wild, may have something to say about that, Senalatitudinarian, unauthorized interpretation of tors, before I close the remarks I have to make the honorable Manager can find no lodgment to you; but I shall postpone the consideration anywhere in view of the correct and eternal of that for the present. principles of justice that are incorporated into Yes, the public pulse beats perturbedly; it the American Constitution and form part of pauses when you pause; it goes forward when the law in every State. you go forward; and you have been told time If that be so, if you are governed by no law, and again that the people out of doors are if you are "a law unto yourselves," if the Con- anxious for the conviction of the President of stitution has nothing to do with it, if "cornm- the United States. Will you permit me, Senmon fame" and " common rumor" are to gov- ators, to be guilty of the indecorum almost of ern and control here, then the very oath that saying one word about myself, and I only say you have solemnly taken is an extra-judicial it by way of stating an argument. In the whole oath, not binding upon the conscience, not course of my professional career, from the time binding according to the laws of the land, and I first obtained, as a young man, a license to it would invest the most dangerous power in practice law, down to the present moment, I the Senate of the United States that ever was never had the impudence or the presumption invested in any tribunal upon the face of the to talk to a judge out of court about any case earth. It would enable the Senate of the in which I was concerned. My arguments United States, under the pretext of being " a before him have always been made in court, law unto yourselves," to defeat the will of the always made in public. I have had sufficient 608 respectfortheindependenceofthejudgesbefore [m Pent of posterity. There sat the judge, one whom I have had the honor to practice my of the illustrious predecessors of the distinprofession to take it for granted that they were guished gentleman who presides over your demen of honor, men of intelligence, and that liberations now. There he sat calm, unmoved, they would not hear any remarks that I would unawed, unmindful of the beating of the pubattempt to infuse into their understandings out lie pulse, the very impersonation of Justice, of doors and not in the presence of my having no motive under heaven except to adadversary. minister the law and to administer it faithfully; But the doctrine here is that the public and he had the nerve and the firmness to depulse beats in a particular direction. Have dare the law in the fear of God rather than in we come to this? Is this case to be tried by the fear of man; and although the criminal was the greatest court in Christendom, not upon acquitted, and although there was some populaw, not upon evidence, not under the instruc- lar clamor in regard to the acquittal, the judgtions of the Chief Justice of the United States, ment of posterity has sanctioned the course of Tat tried upon common rumor; and is it to the judicial determination, and every Ameribecome interesting or cease to be interesting can citizen who has any regard for his country, just according to the beating of the public every judge and every lawyer who has any repulse? Why, Senators, if it were not that I spect for judicial independence and integrity, do not intend to say one word that is designed looks back with veneration and respect to the to be offensive to any of the gentlemen on the name and to the conduct of John Mfarshall. other side or to any Senator, I would say that So long as judicial independence shall be I would almost regard this as an insulting admired, so long as judicial integrity shall be argument to them; but I shall not make use of respected, the name of John Marshall will be that expression. It is not my intention, in any- esteemed in our own country and throughout thing I have said or may say, to wound the the civilized world as one of the brightest lusensibilities of any one or to give any just cause minaries of the law, as one of the most faithful of offense to anybody who is in any way con- judges that ever presided in a court. It is true nected with this case. But you are to try it ac- that clouds and darkness gathered around him cording to the public pulse I What an argument for the moment, but they soon passed away to advance to the American Senate I What an and were forgottenargument to put forth to the American nation! As some tall cliff that lifts its awful form, All history teems with examples of the gross, Swells from the vale and midway leaves the storm, outrageous injustice that has been done in Thoughroundits breasttherollingeloudsarespread, criminal trials, high and low, in parliament- Eternal sunshine settles on its head." ary tribunals, and in the courts of justice; and Such was the name and such the fame of I am afraid that our own country is not entirely John Marshall, and God grant that his spirit exempt from some notableinstances ofit,where may fall, like the mantle of Elijah, upon the popular clamor was allowed to influence the illustrious magistrate who presides and every judgment of judges; and those instances judge who sits here, that you may catch its which are recorded in history, those instances inspiration, Senators, and thatyou may throw of blood and of murder and of outrage and to the moles and bats all appeals to your preof wrong that have been perpetrated in the judices, all appeals from without, and that name of justice, are an admonition to us that you may discharge your whole duty in the fear the public pulse should have nothing to do of thatGod towhomyou appealed. IfI might with your judgment. propose such a low, groveling, contemptible Senators, regarding every man whom I ad- consideration on the minds of Senators here, dress as a judge, as a sworn judge, allow me if I might be pardoned for alluding to it, (for for one moment to call your attention to one the very thought almost makes me shrink back great trial in this country which I hope in with horror from myself.) I would say to you some of its principles will be a guide to you; that if you were to rise above these prejudices, and I do not think it will be an unworthy guide cast these clamors away from your thoughts, in the investigation which you have to make do your duty like Marshall did, in the fear of here. There was a case which occurred in the God, even in a low, pitiful, contemptible party early history of the American nation where point of view, it would make you stand higher there was a great political trial. The waves with your own party and with the world than of popular excitement ran high. It was under- you would stand doing an act of gross injustice. stood that the President of the United States Forgive me, though, for mentioning such a himself desired the conviction of the offender. consideration, for I really think it is beneath The public pulse beat fitfully then. It went the dignity of the Senate to entertain it for a forward as the judge went forward, and it went moment. No, sirs; I treat you as judges; I backward as the judge went backward. It was treat you as honorable men; I treat you as a great occasion. It was one of the most illus- sworn officers of the law; and thus treating trious trials that ever occurred in English or you, I say that I banish all such thoughts from American jurisprudence. - my mind, and I come before you as an imThere was the great crimrinal, morally guilty partial tribunal, believing before God and my no doubt, for so he has been held in the judg- country that you will try to do your duty in 609 this case irrespective of popular clamors and judges of the present day. "Crimes and misregardless of opinions from without. demeanors" are the offenses for which imSuch, I trust, will be the judgment of the peachment may be resorted to. You all know whole land; and when you and I and all of that in one passage of his work he says that us shall pass away from the scene of human crimes and misdemeanors are almost synonyaction, when the memory of the stirring events mous words; but in another and further exwhich now agitate the public mind shall almost position of it he undertakes to show, and does be forgotten, I trust that the after ages will show, that the word "crime" is used in the look back with wonder and admiration and sense of charging higher offenses such as usulove and respect and honor to the American ally fall within the denomination of felonies Senate for the manner in which they shall have and the word " misdemeanors." and those discharged their duty in this case. I trust, trivial and lighter offenses which are not punSenators, that the result will be such as' will ishable with death, but by fine and imprisoncommand the approbation not only of your own ment, or either, or both. consciences, not only of the States that you What is the rule of interpretation? It is have the honor to represent, but the approba- unnecessary for me to turn to authorities on tion of Him who is a greater judge than you this question. You are to construe words in are, and the approbation of posterity who are the connection in which they are used; you are to come after you. to construe them in the sense of their being of Now, Mr. Chief Justice, I desire briefly to the same kind or nature of other words. Now, present to your consideration and that of the if I correctly apprehend the law at the date of Senate this proposition: while we cannot go the American Constitution, treason by the law to the British constitution or thbe British Par- of England was a felony punishable with death; liament or British law to ascertain the mean- bribery was a misdemeanor not punishable ing of a court such as they never had, con- with death, but punishable by fine and imprissisting of a Senate and Chief Justice, yet onment. When the word "crimes," therefore, "treason, bribery, or other high crimes and is used in the Constitution, the argument that misdeameanors" were words well known and I make is, and it has been made by one of the defined at the date of the adoption of the learned Managers, I think, in a much more able Constitution; and in order to ascertain their manner than I can present it-I am willing to meaning a most excellent rule of interpretation say I borrow it from the gentleman-that the was adverted to by Chief Justice Marshall in word " crimes" is to be construed in the same the trial to which I have referred. In Burr's sense as the word " treason;" it is to be undertrial, speaking of the term "levying war," stood as embracing felonious offenses, offenses used by the Constitution in the definition of punishable with death or with imprisonment in treason, he says: the penitentiary where they have penitentiaries "But the term is not for the first time applied to in the different States. The word "misdetreason by the Constitution of the United States. It meanors" has reference to other and different is a technical term. It is used in a very old statute offenses altogether. Itdoesnot mean asimple of that country whose language is our language, and of the Constitution whose laws form the substratum of our law. It is assault, for the expression of the Constitution scarcely conceivable that the term was not employed is " high crimes and misdemeanors"-" "high by the framers of our Constitution in the sense crimes" referring, of course, to such crimes which had been affixed to it by those from whom wea rwith death borrowed it. So far as the meaning of any terms, as are punishble wit h death; high misdeparticularly terms of art, is completely ascertained, meanors referring to such misdemeanors as those by whom they are employed must be consideredisonentand as employing them in that ascertained meaning, un- o uch let the contrary be proved by the context. It is, not to such simple misdemeanors as an assault. therefore, reasonable to suppose, unless it beincom- What, then, is the argument from that? I patible with other expressions of the Constitution, know.there is a great difference of opinion on that the term "levying war" is used in that instru-apd if I correctly aprehendMr. ment in the same sense in which it was understood this question, and if I correctly apprehendMr. in England and in this country, to have been used Story's treatise on it in his admirable work in the statute of the 25th of Edward III. from which upon the Constitution, he regards it as au open it was borrbwed'."-Bzu-r' TrialE, p. 308. question to this day, or at least to the day at The words I"treason, liberty, or other high which he wrote, what is the true meaning of crimes and misdemeanors" were words just as the term ", crimes and misdemeanors" as emfamiliar to the framers of the Constitution as ployed in the Constitution of the United States. they are to us. One of the honorable Man- One party of constructionists, if I may soexagers mjade an argument here, if I understood press myself, hold that you are not to look to it, to show that because Dr. Franklin was in the common law to ascertain the meaning of London about the time of Warren Hastings' the words "crimes and misdemeanors," but trial, that had a great deal to do with the proper you are to look to the parliamentary law in mode of construing the American Constitution order to ascertain it. So far as I have any on the subject of the powers of the Chief Jus- knowledge on the subject, the parliamentary tice. ButBlackstone's Commentariesno doubt law does not define and never did undertake were as familiar to the lawyer at the date of to define what is the meaning of " crimes and the formation of the American Constitution misdemeanors." What did the parliamentary as that venerable work is to the lawyers and law undertake to do? It undertook to punish C. I. —39. 610 not only office-holders but citizens for offenses I would be much obliged to the Senate, if it which were regarded as offenses against the would not interfere with their duties, for an Government. Often, without turning the of- adjournment at this time; but if they do not fender over to the courts, the party-was im- choose to do so I will go on. It is my wish to peached or attainted by a proceeding in Par- conform exactly to the will of the Senate, liament; but there is no definition there, so far whatever it may be. as I know, of " crimes and misdemeanors;" Mr. YATES. I submit the motion. they were, to use the language of the gentle- The CHIEF JUSTICE. The Senator from men, in great part " a law unto themselves." Illinois moves that the Senate, sitting as a court But when the framers of the Constitution of impeachment, adjourn until to-morrow at incorporated these words into our charter, did eleven o'clock. they borrow them from the parliamentary law The motion was agreed to; and the Senor did they get them from Blackstone and from ate, sitting for the trial of the impeachment, Hale, and from other writers upon criminal adjourned. law in England? Where did they obtain these words, "crimes and misdemeanors?" They FRIDAY, April 24, 1868. got them from the common law of England and not from the law of Parliament, as I insist; The Chief Justice of the United States took and then the proposition follows as a corollary the chair. from the premises I have laid down, if the The usual proclamation having been made premises be correct-it follows inevitably if the by the Sergeant-at-Arms, proposition which I have assumed be a correct The Managers of the impeachment on the one, that the words " crimes and misdemean- part of the Hbuse of Representatives and the ors" are used in the sense in which they were counsel for the respondent, except Mr. Stanemployed by writers upon criminal law in bery, appeared and took the seats assigned to England at the date of the Constitution, that them respectively. nothing is an impeachable offense under the The members of the House of RepresentaAmerican Constitution except that which was tives, as in Committee of the Whole, preceded known as a crime or misdemeanor within the by Mr. E. B. WASHBURNE; chairman of that definition of those words under the British law committee, and accompanied by the Speaker and that which may be created as such by the and Clerk, appeared, and were conducted to Constitution of the United States. I doubt the seats provided for them. even-and I submit that to the consideration of The CHIEF JUSTICE. The Secretary will Senators, I respectfully submit it as a doubt, read the Journal of yesterday's proceedings. and one well worthy of your consideration- The Journal of yesterday's proceedings of whether the Congress of the United States, the Senate, sitting for the trial of the impeachwithin the meaning of the American Constitu- ment, was read. tion, has a right to create a new crime, a new The CHIEF JUSTICE. The first business misdemeanor, something that was not known this morning is the order proposed by the Senas a crime or as a misdemeanor at the date of ator from Iowa, [Mr. GRIMES,] changing the the adoption of the Constitution? hour of meeting. The Clerk will read the I think it is a matter of great doubt, to say order. the least of it; and in entertaining this opinion The Chief Clerk read as follows: I at least am warranted by the doubts which Ordered, That hereafter the hour for the meeting have been thrown on the subject by some of of the Senate, sitting for the trial of the impeachment the ablest text-writers upon the American Con- of Andrew Johnson, President of the United States, shall be twelve o'clock meridian of each day except stitution. It is, Mr. Chief Justice, upon this and Sunday. upon kindred questions-no matter whether the Mr. WILSON. Mr. President, I ask for the views I have presented are right or wrong- yeas and nays upon that. that I submit that we have the right respect- The yeas and nays were ordered; and being fully to demand at the hands of your Honor a taken, resulted-yeas 21, nays 13; as follows Judicial exposition of the meaning of the Con- YEAS-Messrs. Anthony, Davis, Doolittle, Ferry, stitution. It will, as I said before, be for you, Fessenden, Fwler, Grimes, Hendrics, Johnson, errc sir, under your sense of duty, under your own Creery, Morgan, Morrill of Vermont, Norton, Patterconstruction of the powers that are conferred son ofTennessee, Ramsey, Saulsbury, Trumbull, Van upon you by the Constitution of our common Winkle. Vickers, Willey, and Yates-21. upon you by the Constitution of our common ANAYS —Messrs. Conkling, Conless, Cragin, Edcountry-it will be for you, in the discharge munds, Harlan, Howe, Pomeroy, Sprague Stewart, of your duty, to decide for yourself whether Sumner. Thayer. Tipton, and Wilson-13. this respectful request will be answered or not. NOT VOTING.-Messrs. Bayard, Buckalew, Camthis respectful request will be answered or not. eron, Cattell, Chandler, Cole, Corbett, Dixon, Drake, Mr. YATES. If the gentleman does not Frelinghuysen, Henderson, Howard, Morrill of desire to finish his speech to-night, I will move Maine, Morton, Nye, Patterson of New Hampshire, that the Senate, sitting for this trial, adjourn.Ross, Sherman, Wade, and Williams-20. Mr. NELSON. It is my business and dutj, So the order was adopted. of course, to be governed and controlled alto- Mr. EDMIUNDS. Mr. President, I offer gether by the pleasure of the Senate. I-am the following order. free to say that I feel somewhat fatigued, and The CHIEF JUSTICE. The order pro 611 posed by the Senator from Vermont will be House of Representatives beyond the range of inread. dictable offenses. Indeed, the terms'crime' and The Chief Clerk read as follows:'misdemeanor' are, in their general sense, synonymous, both being such violations of law as expose Ordered, That after the arguments shall be con- the persons committing them to some prescribed puncluded, and when the doors shall be closed for delib- ishment: and, although it cannot be claimed that eration upon the final question the official reporters all crimes are misdemeanors, it may be properly said of the Senate shall take down the debates upon the that all misdemeanors are crimes." final question, to be reported in the proceedings. Adopting that deInition of the honorable Mr. SUMNER. object. Manager, [Mr. WILSON,] the point which I The CHIEF JUSTICE. The order will lie endeavor to make in argument is, that the defiover if objected to. Mr. Nelson, of counsel nition given by the honorable Manager who for the respondent, will please proceed. opened the argument [Mr. BUTLER] is not a Mr. NELSON. Mr. Chief Justice and Sen- correct definition. That opening, as the Sen. ators, in the progress of my remarks yesterday ate will remember, is accompanied by a very I alluded to certain opinions expressed by one carefully prepared and elaborate argument on of the honorable Managers [Mr. WILSON] in the part of Mr. LAWRENCE, who agrees in the a report to which his name is affixed made to following definition given by the honorable the House of Representatives. Lest any misun- Manager: derstanding should arise from that reference " We define, therefore, an impeachable high crime I desire to state that while I shall read a part or misdemeanor to be one in its nature or consequences subversive of some fundamental or essential of the report-that portion of it which I adopt principle of government, or highly prejudicial to the as my argument-I do not consider that there public interest, and this may consist of a violation is any inconsistency in the position which the of the Constitution, of law, of an official oath, or of::s any icsisteny in teposition widuty, by an act committed or omitted, or, without honorable Manager assumed in his report to violating a positive law, bythe abuse of discretionary the House of Representatives and the position powers from improper motives or for any improper which he has assumed here in argument. If I purpose." correctly understand the honorable Manager's If you go to the law of Parliament for a defiposition, while he insists, as I insist in this case nition of " treason, bribery, or other crimes that you are to look to the common law, and and misdemeanors," as I have already said, you not merely to the law of Parliament, in order will not find it. If you go to the law of Parto ascertain the meaning of the words "crimes liament for the purpose of ascertaining what is and misdemeanors" in the Constitution, yet an impeachable offense, then you go to a law he insists that it is competent for Congress to which is not in force in our country at all. create a crime or misdemeanor under the Con- Every species of offense which the Parliament stitution by legislation, and that such crime or chose to treat as such, whether it was declared misdemeanor is an impeachable offense. I by statute or not, was the subject-matter of imhope neither that honorable gentleman nor the peachment by the Commons before the House Senate will misunderstand me with this ex- of Lords. Their frame of government is difplanation when I call attention only to those ferent from ours. Persons were tried in Engparts of the argument contained-in his report land for very slight and very trivial offenses, which I rely upon, and because the definitions and very severe punishments were inflicted in which he gives are in more appropriate lan- various instances in the progress of English guage than any which I can furnish. In his history upon the persons who were supposed report, at page 60, he says: to have been guilty of offenses. This process "As was very pertinently remarked by Hopkinson of impeachment is such that we have no very on the trial of Chase,'The power of impeachment accurate account of it in history, so far as I have is with the House of Representatives, but only for been able to examine the authorities upon the impeachable offenses. They are to proceed againstIt is true, as the gentleman said, that the offense, but not to create the offense, and make subject. any act criminal and impeachable at their will and nearly five hundred years ago the subject was pleasure. What is an offense is a question to be de- intrduced in the English Parliament, and that cided by the Constitution and the law, not by the they considered opinion of At single branch of the Legislature, and they considered it there and claimed that the when the offense thus described by the Constitution House of Lords had jurisdiction over it in or the law has been committed then, and not till consequence of the law of Parliament; but then, has the House of Representatives power to im- how that law of Parliament arose, whence it peach the offender."' "how that law of Parliament arose, whence it The honorable Manager proceeds: originated, neither the House of Lords nor Mr. Burke in his elaborate report and argument in "A civil officer may be impeached for a high crime, the House of Commons undertook to state. It What is a crime? It is such a violation of some known law as will render the offender liable to be arose from what they assumed to be usage; prosecuted and punished.'Though all willful vio- and if you go to the parliamentary law in brder lations of rights come under the generic name of to determine that usage in this country, then wrongs, only certain of those made penal are called ou will be obliged to punish anthing as an crimes. you will be obliged to punish anything as an crimes."' In another passage he says: offense that might be said of any person or of any authority whatever. In Stephen's History "All that has been said herein concerningthe term of the English Constitution, page 347, he says crimes' may be applied with equal force to the term that-'misdemeanors,' as used in the Constitution. The latter term in nowise extends the jurisdiction of the "The revival of impeachment is a remarkable 612 event in our constitutional annals. The earliest in- Constitution was adopted. In other words, I stance of parliamentary impeachment or of a solemn respectfully maintain that Congress has no accusation of any individual by the Commons at the bar of the Lords was that of Lord Latimer, in the power to create a crime or misdemeanor in its year 1376." nature different from crimes and misdemeanors Which, as I understood the honorable Man- as known and understood at the time of the ager's argument, is the period to which he adoption of the Constitution. refers. Feebly and imperfectly as this argument has been presented, I will not undertake to dwell " The latest hitherto was that of the Duke of Suf- been presented, I will no folk, n 1449." upon it further. I desire, although it is not exactly in the And, as the honorable Manager told the Sen- order which I had prescribed for my remarks, ate, he states that this practice of impeachment to call the attention of the Senate now to some had for a long time given way to attainder. In observations made by the honorable gentlethe same work Mr. Stephen comments on man who addressed the Senate yesterday, [Mr. Floyd's case as a proof of "the disregard which Manager BOUTWELL,] and in order that there popular assemblies entertain for principles of may be no misunderstanding as to the obserJustice when satiating their reckless appetites vations to which I desire to call your attention for revenge." He says, in describing Floyd's I will read a paragraph from the gentleman's case, "that a few words spoken as to being speech of the day before yesterday: pleased with the misfortunes of the Elector "The President is a man of strong will, of violent Palatine and his wife" were the offense which passions, of unlimited ambition, with capacity to he had committed; and the punishment that employ and use timid men, adhesive men, subservient men and corrupt men, as the instruments of was inflicted upon him was to ride from the his designs. It is the truth of history that he has Fleet to Cheapside without a saddle and hold- injured every person with whom he has had confiing by the horse's tail, two hours in the pillory dential relations, and many have escaped ruin only toby withdrawing from his society altogether. He has to be branded with the letter K in the forehead, one rule of life: he attempts to use every man of another ride and pillory to be taken in four power, capacity, or influence within his reach. Sucdays, with the words on a paper in his hat ceeding in hisattempts,they are in time, andusually in a short time, utterly ruined. If the considerate showing his offense; that he was to be whipped flee from him, if the brave and patriotic resist his at the cart's tail from the Fleet to Westminster schemes or expose his plans, he attacks them with Hall; that a fine of ~5,000 and imprisonment all the enginery and patronage of his office and pursues them with all the violence of his personal for life at Newgate were imposed upon him. hatred. He attacks to destroy all who will not beIf there be anything in the argument that come his instruments, and all who become his inyou are to look to the parliamentary law for struments are destroyed in the use. He spares no the definition of the phrase " high crimes and one." misdemeanors," and for the definition of im- The particular sentence to which I desire peachable offenses, then an offense such as to call your attention is in the close of that was attributed to him, or an offense such as was paragraph: attributed to other parties afterwards who were "Already this purpose of his life is illustrated in tried for making speculations in the public the treatment of a gentleman who was of counsel for tried for malingt spec-ulations in the pulic the respondent, but who has never appeared in his revenue, would be the subject-matter of im- behalf. peachment in this country; but, as I maintain, It is to me, Senators, a source of much emthis is limited by the Constitution, and you can barrissment how to speak in reply to the accuonly look to the common law for the purpose sation which has thus been preferred against of ascertaining the definition of crimes and the President of the United States. The honmisdemeanors. Mr. Story, I know, says in his orable Manager treats him as if he were a work upon the Constitution that in one case it political leper, and as if his very touch would was settled in this country that the term communicate contagion, and as if almost the "crimes and misdemeanors'" did not have the very sight of him would produce death. But signification which I insist upon; but at the I respectfully insist that upon a statement of same time in his treatise he asserts that there facts, which I will make to you in a moment, is a contrariety of opinion on the subject, one and which I deem to be called for by the accuset of interpreters of the Constitution holding sation which he has made in reference to Judge the doctrine to be one way, and another and a Black, it will appear that injustice has been different set holding it to be a different way; done, no doubt unintentionally, by the honorand, as I understand him, he does not regard able Manager, in the remarks which he has the question as being by any means finally and made. I regret that this topic has been introauthoritatively settled. So then I recur to the duced here; but, as it is brought forward, I proposition with which I set out, that in order must meet it. I am not aware that I ever saw to ascertain what are impeachable crimes and Judge Black in my life until I met him in conmisdemeanors it is necessary to go to the com- sultation in the President's council chamber. mon law for the definition, and when you go In the few interviews which we had there our to the common law for the definition nothing intercourse, though brief, was pleasant and is impeachable in this country within the mean- agreeable; and it is with a feeling of embaring of the Constitution except a crime or mis- rassment that, under those circumstances, I demeanor known as such at the time when the deem it necessary to say anything upon this 613 subject at all. In order that you may under- Executive did not long since assert the rights stand what I have to say about it I desire to of the Government and sustain the rightful refer the Senate to a brief statement which I claims of its citizens to the possession of the have prepared on account of the delicacy of island in the most forcible manner consistent the subject; and,although I have not had time with the dignity and honor of the nation. to write it out as I would have desired to do, This letter was concurred in and approved it will be sufficient to enable you to compre- of by JOHN A. LOGAN, J. A. GARFJELD, W. H. hend the facts which I am about to state. You KOONTZ, J. K. MOORHEAD, THADDEUS STEVENS, will understand, Senators, that I do not pur- J. G. BLAINE, and JOHN A. BINGHAM, on the port to give a full history of what I may call same day, 9th March, 1868. the Alta Vela case, as to which a report was The letter expressing the opinion of Generals made to the Senate by the Secretary of State BUTLER, LOGAN, and GARFIELD was placed in upon your call. A mere outline of the case the hands of the President s'y Chauncey F. will be sufficient to explain what I have to say Black, who, on the 16th March, 1868, addressed in reference to Judge Black. a letter to him in which he inclosed a copy of *Under the guano act of 1856, William T. the same with the concurrence of THADDEUS Kendall on the one side, and Patterson and STEVENS, JOHN A. BINGHAM, J. G. BLAINE, Marguiendo on the other, filed claims in the J. K. MOORHEAD, and WILLIAM H.'KOONTZ. Secretary of State's office to the island which After the date of this letter, and while Judge is claimed by the Government of St. Domingo. Black was the counsel of the respondent in this (Report, pp. 2, 3.) cause, he had an interview with the President, On the 17th of June, 1867, the examiner of in which he urged immediate action on his part claims submitted a report adverse to the claim and the sending an armed vessel to take posfor damages against the Dominican Govern- session of the island; and because the Presiment. On the 22d of July, 1867, 1MiE. Black dent refused to do so Judge Black, on the 19th addressed a letter to the President, (page 10,) March, 1868, declined to appear further as his and another on the 7th August, 1867. On page counsel in this case. 13 it is said that Patterson and Marguiendo Such are the facts in regard to the withacquiesce in the decision. On page 13 it is drawal of Judge Black, according to the best shown that other parties are in adverse posses- information I can obtain. So far as the Presision. On page 15 it is asserted that the con- dent is concerned,' "the head and front of his test is between citizens of the United States, offending hath this extent, no more." and can be settled in the courts of the United It is not necessary to my purpose that I States. The contest now seems to be between should censure Judge Black or make any reflecPatterson and Marguiendo and Thomas B. tion upon or imputation against any of the Webster & Co. (Report, p. 15.) honorable Managers. On the 14th December, 1859, Judge Black, The island of Alta Vela, or the claim for as Attorney General, rejected the claim of W. damages, is said to amount in value to more J. Kendall to an island in the Caribbean sea, than a million dollars, and it is quite likely called Cayo Verde, (page 24,) and Mr. Seward that an extensive speculation is on foot. I seems to regard the two cases as resting on the have no reason to charge that any of the Mansame principle in his-report of 17th of Jan- agers are engaged in it, and presume that the uary, 1867. letters were signed, as such communications On the 22d July, 1867, Judge Black ad- are often signed by members of Congress, dressed a letter to the President inclosing a through the importunity of friends. bFief, (page 53.) On the 7th August, 1867, Judge Black no doubt thought it was his he addressed another communication to the duty to other clients to press this claim; but President, (page 55.) On the 7th February, how did the President view it? 1868, an elaborate and able communication Senators, I ask you for a moment to put was sent to the President, signedJ. W. Shaffer, yourself in the place of the President of the attorney for Patterson & Marguiendo, and United States, and as this is made a matter of Black, LAmon & Co., of counsel, in which they railing accusation against him, to consider how criticised with severity the report of Mr. Sew- the President of the United States felt it. I ard and asked the President to review his am willing that the facts in this case shall be decision. (Report, p. 65.) spread not only before the Senate, but before These citations are made from Executive the whole country, and that his enemies shall Document No. 39, Fortieth Congress, second be the judges of the purity of his conduct and session. motives in regard to it. According to the best information I can There are two or three facts to which I deobtain I state that on the 9th March, 1868, sire to call the attention of the Senate and the General BENJAMIN F. BUTLER addressed a let- country in connection with these recommendter to J. W. Shaffer, in which he stated that ations. They are, first, that they were all gothe was "' clearly of opinion that, under the ten up after this impeachment proceeding was claim of the United States, its citizens have the commenced against the President of the Uniexclusive right to take guano there," and that ted States. Keep the dates in mind, and you he had never been able to understand why the will see that such is the fact. Every one of 614 them was gotten up after this impeachment quences, he was determined not to do an act proceeding was commenced against him. which he believed to be wrong. He was deAnother strong and powerful fact to be no- termined not to employ the whole power of ticed in vindication of the President of the the United States in a war againsta little Power United States, in reference to this case which down here that had no capacity of resistance. has been so strongly preferred against him, is He was determined not, under these painful that while I have not made, and will not make, and difficult circumstances, to be used as an any imputation whatever upon the honorable instrument in the hands of anybody, or any set Managers in the cause, these recommendations of men under heaven, to carry on a speculawere signed by four of the honorable gentle- tion which he believed might be carried on men to whom the House of Representatives with dishonor to the Government or with dishave intrusted the duty of managing this great grace to himself if he consented to be conimpeachment against him. cerned in it. Now, let me present to you in my plain lan- And I ask you, Senators, to weigh his eonguage a single idea, Senators, in regard to this duct; let the impartial judgment of the world matter. If the President went to war with a look this statement of facts in the face and weak and feeble Power to gain the island, it pronounce upon it as you have to pronounce would seem that he had done so in fear of the upon this impeachment; and when you come, Managers and in the fear of losing, the highly in the cool moments of calm deliberation, to valued services of Judge Black. If he failed look over the President's conduct and these to do the thing which he was called upon to do articles of impeachment that are preferred by his eminent and distinguished counsel, there against him, I think you will find that, like the was danger that he would exasperate Judge grave charge which was presented by the honBlack and his friends, and their influence would orable Manager the day before yesterday, these be turned against him on the trial. It was charges vanish away, under these delicate circumstances that this "And, like the baseless fabric of a vision, petition was presented to the President of the Leave not a rack behind." United States. He was between Scylla and Such, I trust, Senators, will be the result; Charybdis. In forminghis own determination, such, I trust, will be the conclusion of this no matter which way it might be formed, his trial; and, although the President is now passmotives might be impugned and his integrity ing through the fiery furnace, although now might be assailed; but they know little of the every act and every motive of his public life is President of the United States, far less than being investigated, yet he fears it not. He your humble speaker knows, who imagine that challenges the utmost scrutiny; he challenges they can force or drive or compel him, under the strongest investigation that may be made any imaginable state of circumstances, to do into his conduct; and while, as I said yesterwhat he believes to be wrong. He is a man of day, he hurls no defiance at the Senate, and peculiar temperament and disposition. By does not authorize me to say one word that careful management and proper manipulation will be offensive to his judges, yet he defies his he may, perhaps, be gently led; but it is a enemies now as he has always defied them; pretty difficult thing to do that. But with his and he appeals to the purity and honesty of temperament and his disposition, no man, no his own motives and of his own principles to power under the heavens can compel him to go shield him against this charge, as he does one inch beyond what he believes to be right; against every other of the charges that have and although he knew that in rejecting this been preferred.. No, Senators, instead of this claim in the peculiar situation in which he was being a matter of accusation against the Presplaced he might raise up enemies against him, ident of the United States, in the view which although he was well aware that a powerful I entertain of it, and in the view which I think influence might be brought to bear against him every honorable and high-minded man will in this trial, and that it would be trumpeted entertain of it, it will elevate him a head and abroad from one end of the Union to the other shoulders taller than he ever stood before in that Judge Black had become disgusted with the estimation of his friends; and it will be his cause and dissatisfied with it, and had de- regarded as one of the proudest and noblest serted it and abandoned it on account of his acts of his life that he could not be coaxed or full conviction of his guilt-although the Pres- driven to do what he believed to be a wrong in ident, I say, knew this, and although he knew the name of the Government of the United that a black cloud would be raised against him, States. This is preferred here as if the Presiyet his feeling was that dent had done some wrong to Judge Black. "Although that cloud were thunder's worst, What wrong did he do? How did any polluAnd charged to crush him-let it burst." tion result from Judge Black's contact with And he acted like a noble-hearted man, as him as counsel? Did he discard Judge Black he is; he acted like a sentinel placed, if I may and tell him he did not want him to appear as so express myself, upon the watch-tower of his counsel any more in the cause? No, sir; the Constitution, faithful to the rights of the it was upon his own voluntary motion that he people who had exalted him to that lofty posi- withdrew from the case. If the President of tion; unmindful of self, regardless of conse- the United States has done him any injury the 615 President knows it not; his counsel know it Cabinet, unnecessary for us to introduce their.not; and I leave it to the judgment of the testimony to sustain these statements, when world to determine upon this statement how these statements are not impugned in the slightmuch of justice there is in the accusation which est degree by any evidence which is offered by was so strongly made against him. the other side. What does the President say Senators, allow me to call your attention to in that message? I read from page 138 of the another paragraph in the speech of the honor- record of the trial: able Manager who last addressed you. It is "This was not the first occasion in which Mr. Stannot my purpose or intention to undertake the ton, in discharge of a public duty, was called upon to duty at present of answering at length that able consider the provisions of that law. That tenure-ofoand carefully-prepared argument which the ffice law did not pass without notice. Like other and carefully-prepared argument which the acts, it was sent to the President for approval. As honorable Manager has made. I must leave is my custom, I submitted its consideration to my the notice of it to those who are to follow me Cabinet for their advice upon the question whether in the arogument on the side of the President. I should approve it or not. It was a grave question in the argument on the side of the President. of constitutional law, in which I would of course rely But there is another paragraph which reads in most upon the opinion of the Attorney General and this language: of Mr. Stanton, who had once been Attorney General." " Having indulged his Cabinet in such freedom of Now, you see, to use the elegant word of the opinion when he consulted them in reference to the honorable Manager on the other side, he calls constitutionality of the bill, and having covered him- these serfs around him to see what these serfs self and them with public odium by its announcement, he now vaunts their opinions, extorted by will say in reference to the constitutionality of power and given in subserviency, that the law itself the law which he has under consideration: may be violated with impunity." may be violated with impunity." "Every member of my Cabinet advised me that You remember how elegantly the honorable the proposed law was unconstitutional. All spoke gentleman introduced the dialogue between without doubtor reservation; but Mr. Stanton's conHamlet and Polonius, when speaking upon demnation of the law was the most elaborate and emphatic. He referred to the constitutional prothis subject, and you may remember that he visions, the debates in Congress, especially to the goes on and says: speech of Mr. Buchanan when a Senator, to the de"This, says the President, is the exercise of my cisions of the Supreme Court, and to the usage from d"This, says the President, is the exercise of my the beginning of the Government through every succonstitutional right to the opinion of my Cabinet. cessive Administration, all concurring to establish I. says the President, am responsible for my Cabinet. the right of removal as vested by the Constitution in Yes, the President is responsible for the opinions the President. To all these he added the weight of and conduct of men who give such advice as is de- his own deliberate judgment, and advised me that manded, and give it in fear and trembling lest they it was my duty to defend the power of the President be at once deprived of their places. This is the from usurpation, and to veto the law." President's idea of a Cabinet, but it is an idea not in harmony with the theory of the Constitution." There is in the "plain, unvarnished" stateAnd in another place, I believe, the gentle- ment of the President of the United States, man spoke of the members of the Cabinet uncontradicted by any witnesses called here, a'being serfs: statement that we offered to verify by the in"It was the advice of serfs to their lord, of servantos troduction of the members of the Cabinet as to their master, of slaves to their owner." witnesses. We offered to prove every word, I desire, Senators, to refresh your recollec- at least the substance of every word that is tion by reading a single paragraph from the contained in that paragraph of the message, message of the President of the -United States and had the members of the Cabinet here, and which was put in evidence upon the side of were ready and willing to put them upon oath;'the prosecution, the famous message dated but their testimony was not admitted; and so, December 12, 1867; and lest I. should forget to in view of the two things, first that this mesoesent the idea to your consideration, I wish sage was offered in evidence upon the side of to state now, in reference to this message, as the prosecution, and second that we offeredto well as in reference to all other documents prove the truth of the statements contained signed by the President of the United States here, I assume as an indisputable fact in the which they have introduced upon the other case that Mr. Stanton, about whom the whole side as eyidence against him, that if any rule world seems to be set on fire now, did give to of law is to obtain in this high and honorable the President the advice that this civil-tenure tribunal, when they put these documents in bill, about which such a great cry has been evidence before the Senate they make them, so raised in the land, was an unconstitutional law. to speak, their witnesses, and they cannot dis- and that it was his duty to veto it. While I credit them. They have not undertaken to dis- never saw Mr. Stanton to, my knowledge, and credit them at all. When we offered to intro- have no sort of personal acquaintance with duce the members of the Cabinet as witnesses him, I think that if I were in his place I to prove cdrtain statements which were made should exclaim as somebody exclaimed-I forby the President in these messages, the Senate get who it was, but I know these honorable refused to do so, and while at the moment I Senators will remember it a great deal better regretted the decision of the Senate, yet upon than I do-" Save me from my friends, and I sober second thought I was inclined to the will take care of my enemies." Ithink if ever opinion that the Senate had probably settled a man on the face of the earth had reason to the question exactly right, that it was unneces- exclaim "Save me from my friends," Mr. Stansary for us to introduce the members of the ton has reason to exclaim "Save me from the 616 description which is given here of a Cabinet short years a gentleman of whom the Secreofficer, and of the mean, low, debasing, mer- tary of War spoke in the highest terms of cornm-. cenary motive by which a Cabinet officer is mendation which I have read should become supposed to act." But this is a sort of family the monster, the tyrant, the usurper, the wicked quarrel, and I shall not undertake to interfere man that he is represented to be upon the ill it. other side. Mr. Stanton rins through this One other thing in this connection about Mr. whole trial; his name is almost everywhere. Stanton. Mr. Stanton as one of the Presi- Mr. Stanton's name is, at least, substantially dent's Cabinet ad-vised him to veto the civil embodied in the charges that are contained in tenure-of-office bill; but before Mr. Johnson these articles. Here you have Mr. Stanton in became President Mr. Stanton placed on record two positions indorsing the President of the an opinion which I think it proper for me to United States: first, when he ceased to hold read under existing circumstances; and it is the office of military governor of Tennessee an opinion which does not stand in the cate- and was elevated to the high position of Vice gory of the action of Mr. Stanton as one of President-elect, you have him saying — the members of President Johnson's Cabinet. "'That you may be spared to enjoythe newhonors On the 3d of March, 1865, Mr. Stanton ad- and perform the high duties to which you have been dressed the following letter to "' His Excellency called by the people of the United States is the sincere wish of one who in every official and personal Andrew Johnson, Vice President-elect:" relation has found you worthy of the confidence of WAR DEPARTIMENT, the Government and the honor and esteem of your WASHINGTON CITY, March 3, 1865. fellow-citizens." SIR: This Department has accepted your resigna- That is Mr. Stanton's indorsement in 1865; tion as brigadier general and military governor of Tennessee. and then you have Mr. Stanton's act as one of Permit me on this occasion to render to you the the President's advisers when the civil tenure thanks of this Department for your patriotic and bill was passed in February, 1867. You have able services during the eventful period through which you have exercised the high trusts committed him then indorsing the action of the President to your charge. in both forms up to the time that the civil tenIn one of the darkest hours of the great struggle ure bill was passed; and if a difference of for national existence against rebellious foes the Government called you from the Senate. and from opinion afterward grew up between them, if the comparatively safe and easy duties of civil life, unkind feelings existed between them, if there to place you in the front of the enemy, and in a aa con position of personal toil and danger perhaps more hazardous than was encountered by any other citi- President, and if their relations toward each zen or military officer of the United States. became less harmonious than they had been With patriotic promptness you assumed the post, before, all that I have to say about it is that it and maintained it under circumstances of unparalleled trial, until recent events have brought safety furnishes no ground of impeachment that should and deliveranceto your State and to the integrity of in the slightest degree affect his character or that constitutional Union for which you so long and his motives. so gallantly periled all that is dear to man on earth. That you may be spared to enjoy the new honors There is one other thing, before I come to and perform the high duties to which you have been the consideration in detail of the various arcalled by the people of the United States is the sin- tides of impeachment, that I desire, Senators, cere wish of 0-ie who, in every official and personal relation, has found you worthy of the confidence of to call your attention to, and that is to this the Government and the honor and esteem of your same proceeding which was had in the House fellow-citizens. EDWIN.kreM. STANTONf War. of Representatives upon the subject of imHis Excellency ANDREW JOhNSON, peachment. I know not how it has struck the Vice President-elect. minds of Senators; I know not how it has Mr. Chief Justice and Senators, but three impressed'the minds of the people of the short years have elapsed since that letter of United States; but one of the strangest anomindorsement was written by Mr. Secretary alies in the political history of our GovernStanton to the present President of the United ment is that these articles of impeachment States; and I read it for a twofold purpose: should have been gotten up against the Presi-,first, to show that when I spoke to you yester- dent of the United States after twelve months' day in regard to the services of the President examination, and that some of the leading of the United States in behalf of the Union I charges against him, of which I will speak after did speak the words of truth and soberness, awhile, should be founded upon acts which and I show you, out of the mouth of Mr. Stan- were done in reference to the Thirty-Ninth ton himself, that he deserved all the encomiums Congress. If the President of the United which I endeavored to pass upon him in the States is the guilty culprit that they represent progress of my remarks yesterday for his faith- him to be on the other side, if he has defamed'ul devotion to the Union and for having ex- and slandered Congress, if he has done acts posed himself in the hour of danger in its which are worthy of impeachment, is it not behalf; and, second, to show that in three passing strange that the Thirty-Ninth Congress short years it is scarcely possible, in the nature took no notice of them, and that after that of things, that the President of the United Congress is defunct, after it has passed out of States should be so suddenly changed as they existence, after its name and its memory have insist he is in behalf of the prosecution. It is gone into history, another Congress should take hardly conceivable that in a period of three up offenses against that Congress and make 617.them matter of grave accusation against the look, and may look with propriety-for they President of the United States? I will read do not come before you, Senators, like those one of the charges investigated by that Con- articles which were preferred against Warren gress. This is rather by anticipation and a Hastings in England, and which were the sublittle out of the order that I had designed; but ject of long and earnest debate in the House as I have the book before me I will read it now. of Commons before they were presented. They One of the grounds of accusation then pre- were prepared in hot haste after the President sented against him by the committee in the had renmoved Mr. Stanton; they were passed House of Representatives-and they had seven- upon very brief debate in the House of Repreteen of them-the last of the file was this: sentatives, and thus they come here. If the "That he has been guilty of acts calculated, if not H ouse has acted, as I hope it has, hastily, Senintended, to subvert the Government of the United ators, it is your province and your duty, as I States, by denying that the Thirty-Ninth Congress maintain most respectfully, to look to that was a constitutional body, and fostering a spirit of disaffection and disobedience to the law and rebel- fact, and not to give the same importance to lion against its authority, by endeavoring, in public accusations made under such circumstances as speeches, to bring it into odium and contempt." you would to those which were made under I have in my possession the actual vote more careful deliberation, and especially when which was taken in the House of Representa- the House of Representatives, but a very short tives upon the subject. My memory may fail time before, had acquitted the President of a me; I may have been misinformed about it; large number of the charges which were prebut I have been informed and believe, and you ferred against him in the able and ingenious know much better than I do how the fact is, report presented by its Judiciary Committee. that the House of Representatives, by a consid- Surely, under these circumstances, it will be erable majority, refused to entertain these no disparagement of the House, it will be no accusations as ground of impeachment against disparagement to you to look to the fact that the President of the United States by a solemn these charges were hastily presented, and if, vote. And if there were any law in this tribu- upon sober review here, you should believe nal (and the gentlemen say there is not unless that these charges come to you in at least a it be that mysterious and wonderful law of questionable shape, so far as the swift circumParliament which they rely upon, and which stances under which they were adopted are after all the definitions they give to it amounts concerned, it will be no reflection upon the at last to no law at all) or any application by House any more than it would upon an indianalogy of the principles of law, I would avail vidual. I trust that, as the House of Repremyself of the doctrine of estoppel which was sentatives is composed of men, at least men of so learnedly insisted upon by one of the honor- flesh and blood like yourselves, it will be no able Managers on the other side, and I would disparagement to them to say that even a House insist, with all due deference and respect, that of Representatives, composed of honorable the House of Representatives, after having voted men, acting under the impulses of feeling, and down this charge that the President of the acting hastily and without any great amount United States had slandered and maligned the of deliberation, acting, as it were, in passion, Thirty-Ninth Congress, was estopped from may do a thing which, upon "sober second making any accusation of that kind against thought," they would not do over again. We the President now. all know human nature well enough, at least But I hope I may say without offense, and in our own persons and in our own characters, before proceeding to notice some of the charges to know that when we act in passion, when we More specifically that have been preferred here, act in haste, when we act in excitement, we that I think the Senate of the United States, are apt to do things which, upon reflection, we sitting as a judicial tribunal, can look to the have reason to regret; and those actions, while circumstances under which these charges are they are in a great measure excusable, on acpreferred without any disrespect whatever to the count of the haste and passion in which they House ot Representatives; and when you come are committed, are yet actions which do not to look at the circumstances under which these command the same power and influence in charges were preferred, after the President of society that they would do if they were the the United States had been virtually acquitted result of grave and careful and deliberate and in the House of Representatives, you have at mature consideration. least evidence that it was done without any Now, Senators, I shall have to call your great amount of deliberation in the House, pos- attention to the articles of impeachment somesibly under the influence of that excitement what in detail; and though it is rather a diswhich legislative assemblies as well as individ- agreeable duty to tread this mill-horse round, uals are liable to; and that very circumstance, to go to these articles of impeachment and without imputing any wrong or improper mo- take them up one by one and make brief comtive to the House of Representatives, is one to ments on them, as it is my purpose to do; which I maintain that this Senate, this assem- though I know that the subject is becoming bly of grave and reverend seniors, who are irm- stale and weary, not only to the Senate, but to paneled, as it were, here under the Constitu- those who are gathered around to hear this intion to try these articles of impeachment, may vestigation; yet I cannot, in accordance with 618 my sense of duty in this case, take my seat until the first section; that notwithstanding responaI offer some considerations to the Senate on ent's opinion on that subject, he was anxious each one of the articles of impeachment. Al- that Stanton's removal should be acquiesced though it must necessarily be to some extent in by the Senate or that the question should be a tedious business, yet I do so because, Sen- judicially determined; that the right of susators, if you follow the precedents which we pension is provided for by the tenure-of-office have had in other cases, you will be required law in the second section, and that Mr. Stanton to vote upon each one of the article' of im- was not suspended until the next meeting or peachment separately, and you will have to action of the Senate, but indefinitely and at form your judgment and opinion upon each in the President's pleasure; that a vacancy thus a separate way. existing General Thomas was appointed ad In regard to the first article of impeachment interim under the act of 13th February, 1795; it may not be out of place to look to that arti- that the purpose to obtain a judicial decision cle as it is presented, and to state very briefly was made known at or near the date of this the article itself and the answer to it. I do order; that, not intending to abandon his rights not propose to go through all the verbiage of as President, but anxious to avoid any question, that article, nor to repeat in detail all the the respondent did send his message to the facts stated in the answer; but the article Senate on the 12th of December, 1867; that charges in substance that on the 21st of Feb- his hopes not being realized, the respondent, ruary, 1868, the President unlawfully issued in order to raise the question for judicial dean order for the removal of Edwin M. Stan- cision, and to that end only, issued the order ton, without saying anything in this part of removing Stanton and appointing Thomas ad the article about the Senate being or not being interim on the 21st of February, 1868. There in session. It alleges that on the 12th of is besides an answer to each specific allegation. August, 1867, during the recess of the Senate, Now, Senators, allow me to present one he suspended Mr. Stanton; that on the 12th thought before entering upon the consideration of December, 1867, and within twenty days of this first article, which. as I conceive, is after the meeting of the Senate, he reported applicable to all the articles; indeed, much the suspension and his reasons, and that the of what we have to say upon the first article Senate refused to concur in the suspension; applies to all the other articles, and it involves that Stanton, by virtue of the act "regulating to some extent a necessary repetition to conthe tenure of certain civil offices," forthwith sider them in detail, but I shall endeavor, as resumed the office; and that on the 21st of far as I can possibly do so, to avoid such repFebruary, 1868, the President issued the order etition. of removal to Stanton, and that this was done, All the articles of impeachment, or nearly first, in violation of the "act regulating the all of them, charge a removal. One of the tenure of certain civil offices," passed March Managers spoke a good deal, and very much 2, 1867; and second, in violation of the Con- to the purpose, upon the subject of technical stitution, and without the consent of the Sen- law. I did not understand the gentleman as ate, then in session; and that it was a high making any objection to it. He regarded it as misdemeanor in office. a proper means of enforcing the rights of parWithout going into all the details the answer ties and as a legitimate portion of legal science. substantially states that Mr. Stanton was ap- Well, although I know that technical rules are pointed Secretary during pleasure by Mr. Lin- not to be observed in this Senate, if you folcoln on the 15th of January, 1862; that the low the precedents of trials of impeachment office was created by the act passed on the 7th which we have already had in the United of August, 1789; that Stanton became one of States, and especially if you follow the decisthe advisers of the President and subject to ions in the British Parliament, yet there ought his general control; that the respondent suc- to be something at least substantial in the articeeded to the Presidency on the 15th of April, cles that are preferred against a man. Now, 1865, and Mr. Stanton continued to hold the what is it that is provided for by the civil-tenoffice; that the respondent being satisfied that ure bill? Before I comne to consider that bill he could not let Mr. Stanton continue in office at all in its details, let me ask what is provided without detriment to the public interest he for there? It is the removal of a person; and decided to suspend him on the 5th of August, that is the thing which is charged in each one 1867. The invitation to Mr. Stanton to resign of what I may, for want of a better word, call his office is set out in the answer; also his reply the counts of this indictment, each one of the declining to do so. It is further stated that the articles that is preferred here. Senators, if respondent required and acted upon the opinion you follow the law and the rules of law that as to the civil tenure-of-office act of each princi- have been adopted in other cases, if at any pal officer of the Executive Departments; that rate you look to them as being a guide to some this action was made known to the Senate extent, although not binding and obligatory to on the 2d of March, 1867; that although he all intents and purposes as judicial decisions, believed the tenure-of-office act was void the what is a familiar rule of law? There is not respondent, in his capacity as President, formed a judge or a lawyer in this Senate who does the opinion that Stauton's case was in fact by not know that in every law-book which has 619' been written in two hundred years a distinction of the United States, I feel myself constrained is taken between a crime and an attempt to to remind you of certain things which occurred commit a crime. The. distinction is just as in the debate of 1789. Although I know they broad and as wide as Pennsylvania avenue. are familiar probably to every Senator I adAccording to statutory regulations almost dress, yet I regard these things as material and everywhere, and even according to the common important to our defense, and at the expense law, murder is one thing, an attempt to cor- of telling "a thrice-told tale," and of wearymit murder is another and a different thing. ing the patience of the honorable Senate, I Burglary is one thing; an attempt to commit must ask the privilege of presenting as briefly that offense is another and a different thing. as I can the Views which 1 entertain upon that Now, I ask, and I ask in all earnestness, of subject. this Senate as lawyers and judges, when these In the House debate which occurred on the articles of impeachment charge the President 16th of June, 1789, on the bill to establish the with the removal of Mr. Stanton is it not a Department of Foreign Affairs, Mr. White solecism in language that they should ask moved to strike out the words "to be removathis Senate on their oaths to say that the Pres- ble from office by the President of the United ident of the United States is guilty of a viola- States." He advocated this because the Sention of the civil-tenure bill, or guilty of either ate had the joint power of appointment. His of the offenses that are charged here? That views were sustained, as you recollect, in that there was an attempt to remove there is no argument by Messrs. Smith of South Carolina, sort of question; but if the doctrine contended Huntington, White, Sherman, Page, Jackson, for by the learned Managers be the true doc- Gerry, and Livermore, and were opposed by trine, if this civil-tenure bill be a constitutional Messrs. Vining, Madison, Boudinot, and Ames, law, as they insist it is, if the President has no as is seen in Gales & Seaton's Debates in power to remove except on the advice and con- Congress, old series, volume one, page 473 to sent of the Senate of the United States, then, 608. Mr. Madison said in that debate: Senators, I ask you how is it that he can be " It is evidently the intention of the Constitution found guilty of removing Mr. Stanton from that the first magistrate should be responsible for the office, taking the premises of the honorable executive department; so far, therefore, as we do not make the officers who are to aid him in the duties gentlemen to be correct, when there was no of that department responsible to him, he is not reremoval at all? If their doctrine be the true sponsible to his country." doctrine, there was no removal from office at He placed the discussion mainly on the conall; you do not bring it within the civil-tenure stitutional provision thatbill unless you have a case of removal, and even " The executive power shall be vested in the Presiunder the civil-tenure bill it is not a. case of dent."-Ibid., 481. removal; but if either construction be the true Mr. Sedgwick said: one it is a case of an attempt to remove a per- "If expediency is at all to be considered, gentleson from office; sq that it seems to me it is men will perceive that this man is-as much an instruutterly impossible for the honorable Managers ment in the hands of the President as the pen is the - the dilemma in which the nature of nstrument of the Secretary in corresponding with to escape the dilemma in which the nature of foreign courts. If, then, th e Secretary of Foreign their accusation places them. Affairs is the mere instrument of the President, one Upon the first article, Mr. Chief Justice and would suppose, on the principle of expediency, this I desire to maintain briefly three officer should be dependent upon him. It would Senators, I desire to maintain briefly three seem incongruous and absurd that an officer, who, propositions. in the reason and nature of things, is dependent on First. That the tenure-of-office bill is uncon- his principal and appointqd merely to execute such ldd Gentlemenhaeintimat business as is committed to the charge of his superior, stikutionalandvoid. Gentlemenhaveintimated (for the business, I contend, is committed solely to a doubt whether the Senate ought to hear any his charge) I say it would be absurd, in the highest argument upon that subject, but for the reasons degree, to continue such person in office contrary to indicated yesterday that a court at nisi pu the will of the President, who is responsible that the indicated yesterday that a court at nisi prius business be conducted with propriety and for the genwould hear an argument on a rule for a new trial,. eral interests of the nation."-1 Debates in Congress, or that a qhancery court will allow a bill of old series, 542. review on a petition for a rehearing, while I In that same debate Mr. Sedgwick seems to do not intend to argue the question at any have anticipated just.such a state of affairs as great length, I respectfully ask the Senate to existed between the President and Mr. Stanhear what we have to say on this subject, as it ton. A part of Mr. Sedgwick's remarks is is material and important to our defense. copied in one of the President's messages to Second. That if the civil-tenure bill is not Congress; but I desire to read the whole parconstitutional, it does not embrace such a case agraph from which the President in his message as the removal of Mr. Stanton. took the extract that was submitted to ConThird. That if both these propositions are gress. He discussed the subject in an admirerroneous, the President acted from laudable able and unanswerable manner. And when and honest motives, and is not, therefore, guilty you keep it in mind, as has been, I believe, of any crime or misdemeanor. already stated in argument, that this debate Upon the first proposition as to the unconsti- was had soon after the adoption of the Constitutionality of the civil-tenure act, as it has not tution, that several gentlemen who had particibeen done already in behalf of the President pated in the formation of the Constitution were 620 members of Congress, and among them Mr. what a wretched situation might not our public Madison, one of the ablest writers who ever councils be involved in? Suppose the President has wrote upon that subject, not evenexcepting Secretary in whom he discovers a great degree of wrote upon that subject, not even excepting ignorance, or a total incapacity to conduct the busiAlexander Hamilton himself; when you take ness he has assigned him; suppose him inimical to the it into consideration that this discussion was at President"that early period and by persons who were con- There Mr. Stanton looms right up and he is cerned in the formation of the Constitutidn the very man that this political prophet had in itself, the opinions which they expressed are his mind when he was making this argument deserving of the very highest consideration. before the House of Representatives: And if there be anything in the doctrine of the "Or suppose any of the greatvariety of cases which law which is applied to every other case; if would be good cause for removal, and impress the propriety of such. a measure strongly on the mind there be anything in the idea that when a de- of the President, sithout anyu other evidence than what cision upon a legal question is once made that exists in his owen ideas from a contemplation of the decision should stand; if there be anything in man's conduct and character, day by day, what, let me ask, is to be the consequence if the Senate are to the doctrine of stare decisis, then, Senators, I be applied to? If they are to do anything in this maintain that an opinion which so far as I know business, I presume they are to deliberate, because anything of our history as a Government has they are to advise and consent. If they are to deliberate, you put them between the o.fcer and the Prestnever been seriously controverted at any time dent"you put them between the oicer and the Presiexcept during the administration of Jackson, Just as the Managers of the impeachment and the decision of which at that time was in and the mpeachment itself are mpting to favor of the view that we entertain now, is to d th e impeachment itself are attempting to be considered as entitled to respect. If anuire into the causes of reopinion that was acquiesced in for nearly eighty moval; the President must produce his testimony. years is not an authority to a man for doing an How is the question to be investigated? Because, I act, then I can conceive of nothing that is suf- presume, there must be some rational rule for conducting this business? Is the President to be sworn ficient authority. to declare-the whole truth and to bring forward facts; If, according to the English law, a man would or are they to admit suspicion as testimony; or, is be protected in an action as to real property the word of the President to be taken at all events? by sixty years' possession, if according to the If so, this check is not of the least efficacy in nature." statute law of the State in which I reside seven And then Mr. Sedgwick goes on with this years' adverse possession under a color of title paragraph, which is quoted in the message to would give him an absolute title to his tract which I have referred: of land, if these healing statutes which have " But, if proof be necessary, what is then the conbeen passed from time to time, both in Eng- sequence? Why, in nine cases out of ten, where the case is very clear to the mind of the President that land and in our own country, and which are the man ought to be removed,-the effect cannot be intended for the repose of society to secure produced, because it is absolutely impossible to produce the necessary evidence. Are the Senate to protitles to property, are administered every day, ceedwithoe t evidence? Some gentlemen contend as they are, I presume, in all the courts of the not. Then the objectwill be 1ast. Shall a man, under United States, why may we not argue, and these circumstances, be addled upon the President, who has been appointed for no other purpose but to argue with propriety before the American Sen- aid the President in performingcertain duties? Shall ate, that when a question was settled eighty he be continued, I ask again, against the will of years ago, and when the decision was never thePresident? If he is, where is the responsibility? Are you to look for it in the President, who has no controverted until the present time except on control over the officer, no power to remove him if the occasion to which I have referred, the con- he acts unfeelingly or unfaithfully? Without you elusion at which Congress then arrived is upon make him responsible, you weaken and destroy the e gress~~~~ tstrength and beauty of your system. What is to be principle binding and obligatory upon this done in cases which can only be known from a long Senate, and that you should follow it upon the acquaintance with the conduct of an officer?" same principle that the judges are in the habit Never did more sensible remarks proceed of following judicial determinations in regard from the lips of mortal man than the observato the rights of property that have been long tions which I have read in your hearing, Senacquiesced in and have become rules of law. ators, and which are just as descriptive as it If Mr. Sedgwick had been a prophet, if he is possible for language to be of the circumhad been Daniel, or Isaiah, or Jeremiah, or stances under which the removal of Mr. Stan-' any one of the old prophets, and had under- ton occurred. This is extracted from the same taken to describe the difference between the authority, 1 Debates in Congress, old series, President of the United States and Mr. Stan- page 543. ton, he could not have done it better than he Now, I ask your special attention to the next has done in the language which I'am about to step. Mr. Benson, of New York, moved to read to you: amend by inserting in place of the words " to "The President is made responsible, and shall he be removable from office by the President of not judge of the talents, ability, and integrity of his the United States" the words "that the chief instruments? Will you depend on a man who has cler imposed upon the President and continue him in clerk, whenever the said principal officer shall office when he is evidently disqualified unless he can be removed from office by the President of the be removed by impeachment? If this idea should United States, as in any other case of vacancy, prevail-which God forbid-what would be the result? Suppose, even, that he should be removable shall, during such vacancy, have the custody by and with the advice and consent of the Senate, and charge of all records, books, and papers." -621 This was carried by a vote of yeas 30, nays of it is not; but I read you the whole para18. (1 Debates, old series, 601, 602, 603.) graph. Judge Story, in his Commentaries, volMr. Benson now moved (page 604) to strike ume three, section fifteen hundred and thirtyout of the first clause the words " to be re- seven, says: movable by the President;" which was car- " The public, however, acquiesced in this decision; ried-yeas 31, nays 19. and it continues, perhaps, the most extraordinary The honorable Manager who opened the dase in the history of the Government. of a power conferred by implication on the Executive by the cause made an argument, as I remember —I assent of a bare majority of Congress. which has not shall not take time to turn to it-that this de- been questioned on many other occasion'." bate occurred in' Committee of the Whole, and That much is enacted in the President's that what transpired in the House is not shown message. But what does Judge Story say furin any report of the debates. If that be so, ther in the same connection and in the saime does it in the slightest degree affect the force paragraph? and validity of the argument itself? Is it not "Even the most jealous advocates of State rights to be presumed that the very same men who seem to have slumbered over this vast reach of auhad adopted this principle in Committee of the thority, and have left it untouched as the neutral ground of controversy, in which they desired to reap Whole would, when they came to act in the harvest, and from which they retired without House proper, vote under the same views which leaving any protestations of title or contest." they had expressed in committee? It will thus be seen that although the FedMr. Benson said that his objection to the' eralist opposed the power of removal, Mr. clause arose from an idea that the power of Madison and Judge Story and Chancellor removal by the President hereafter might ap- Kent regarded it as firmly settled and estabpear to be exercised by a legislative grant only, lishedl; and now, Senators, if authority is worth and consequently be subjected to legislative anything, if precedent is worth anything, if instability, when he was well satisfied in his the opinions of two of the ablest judges we own mind it was fixed by a fair legislative con- ever had in this country are worth anything, I struction of the Constitution. (Ibid., 603.) maintain that it follows inevitably that the civil Mr. Madison's reasons for sustaining the tenure bill is unconstitutional, and that the motion to strike out were, "First, altering the President was justified in exercising his veto mode of expression tends to give satisfaction power against it. to those gentlemen who think it not an object Whether, however, that view of the case be of legislative discretion; and second, because correct or not, there is still another view of it. the amendment already agreed to fully con- If the President were wrong; if he were errotains the sense of this House upon the doc- neously advised by his'Cabinet; if he came to trine of the Constitution, and therefore the an improper conclusion; if the view which was words are unnecessary as they stand here." taken by Congress on this subject were the Now, indulge me, if you please, while I call correct view, still this argument is pertinent your attention and refresh your recollection and appropriate as to the question 6f intention, by the remarks of Chancellor Kent upon this because, as I have already said, in each of general subject. He quotes the following words' these articles an unlawful intention is charged from the act creating the Treasury Depart- against the President of the United States; ment: "That whenever the Secretary shall and upon whose opinions, I respectfully ask, be removed from office by the President of could this Senate, sitting as judges, rely with the United States, or in any other case of greater confidence than upon the opinions vacancy," &c., and says, "This amounted to of two of the most eminent jurists that our a ltgislative construction,"' &c., as _quoted by country has ever produced, Kent and Story? the President in his message; and Kent con- They are names familiar to every judge and tinues: every lawyer in the United States as house"This question has never been made the subject hold words; and not here alone are these of judicial discussion, and the construction given to names distinguished. Far across the sea, in the Constitution in 1789 has continued to rest on this Westminster Hall, in that country from whence loose, incidental, declaratory opinion of Congress and the sense and practice of the Government since we borrowed our laws, the names of Kent and that time." Story are almost as familiar as they are in the You see, from these remarks, that Chancel- Chamber where his Honor presides as Chief lor Kent, if the question had been presented Justice of the United States. Their works are to him as an original question, if he had been quoted by British judges, by British lawyers, called upon to determine it as a judge, would and by text-writers, and no two names in Enghave said that he thought this construction lish or American jurisprudence stand higher rested on groundaltogether too loose to justify than the names of these two distinguished cithim as a judge in giving that opinion; but izens of our country. If they are not a suffiwhat does he say as to the effect of the settle- cient authority to settle in the mind of the ment thus made? He says: Senate, as they probably would not be in view " It may now be considered as firmly and definitely of your action hitherto on the subject, that the settled, and there is good sense and practical utility law is unconstitutional, yet I ask you, Senainthe construction."-Kent'8 Commentaries, p. 310. tors, if the advice of two such distinguished Part of this is quoted by the President, part men as these might not well guide the action 622 of the President of the United States, and re- the view which I entertain of the act of 1789 lieve him from the criminality which is im- I insist that they should be as operative and puted to him in these articles of impeachment? effectual in this high and honorable court as I hope you will allow me, Senators, to call a judicial decision of respectable authority your attention to some other opinions than would be in the court over which your Honor these. This subject of appointments to and usually presides. Why do I say so? I will tell removals from office has been a matter of you. Unless I have misread the Constitution investigation in various forms by Attorneys of the United States there is no provision there General of the United States. The learned declaring that the decisions of the Supreme Manager who opened the cause was well aware Court of the United States shall be final and of this;, and how did he meet it? Nobody is conclusive and authoritative upon questions of more astute than him in the management of a law. There is no such provision in the Consticause. I will do him the justice to say that, tution; if there is, it has escaped me. The although I do not exactly agree with him in framers of the Constitution assumed that there his notions about decency and propriety of was a certain state of things at the time they speech, I have not seen a gentleman in my made it. They assumed that the history of the life who manages a cause with more skill and world would be before the country. They asart and ability than he has managed this prose- sumed that the history of English jurisprudence cution from the very commencement ofit. With would be known or could be known to Amerithat astuteness for which he has distinguished can citizens. In other words, they assumed himself in the investigation of this cause, when that there was and would continue to be a cerhe came to speak of the opinions of the At- tain amount of knowledge and information in torney General he made use of an observa- the world, and therefore that it was not necestion to this effect-I shall not undertake to sary for them td provide in the Constitution quote him litdrally-that after that office had that the decisions made by the members df the become political he did not consider it a Supreme Court of the United States should be matter of any very great importance to quote binding upon their successors in office. They the opinions of its incumbents. I had a slight knew just as well as you know that the pracsuspicion-I hope the gentleman will for- tice of English judges had been for centuries give me if it were an erroneous one-that to regard a decision by a judicial tribunal in a possibly the authority of the Attorneys Gen- case carefully considered, and especially in a eral might not be just exactly the kind of au- case that had continued for any length of time, thority he wanted; and so, although I did not as an authority from which it was not safe in know much about the subject, and had never the administration of the law to depart. had occasion to examine the opinions of the Now, the argument I make before you is, Attorneys General, I concluded that I would that as the Constitution of the United States look into them, and I find several opinions does not specify that the decision of the judges there to which I wish to call your attention. shall have. all the binding force of authority in Before I do this let me invite you, Senators, the land-and yet it has that force-this act of to consider the provision in the Constitution Congress, although it does not say so in referof the United States that the President may ence to the opinions of the Attorneys General require the opinion in writing of the principal any more than the Constitution does in referofficer of each of the Executive Departments ence to the decisions of the judges of the Suupon any subject relating to the duties of their preme Court of the United States, yet, upon respective offices, and to the act of September any fair construction, upon any legal intend24, 1789, which provides that the Attorney ment; under this act of 1789, the opinion of General shall give his advice upon questions the Attorney General may be regarded by the of law when required by the President. It President, and by all others who have anything may be that I place an exaggerated construc- to do with that opinion, as a valid authority, tion upon this provision of the Constitution and and that it is sufficient to justify his action in upon the act of 1789. It will be for you as any given case that may be covered by that judges to decide how that is. I will state my opinion. proposition before I read the section in extenso, What is the provision of the act of Septemand I will state it in such manner as to direct ber 24, 1789, section thirty-five? (1st volume your attention to the point which I am endeav- Statutes-at-Large, page 93, and 1st volume of oring to demonstrate. Brightly's Digest, page 92.) It is provided by I maintain, in view of the proper construc- that sectiontion of the act of 1789, that it is a matter of "That there shall be appointed an Attorney Genperfect indifference whether the President of eral for the United States, who -shall be sworn or the United States is advised by the particular affirmed to a faithful execution of his office, whose duty it shall be to prosecute and conduct all suits in Attorney General who may belong to his Cab- the Supreme Court in which the United States shall inet in reference to a particular act or not. be concerned, and to give his advice and opinions I maintain that the opinions delivered by the upon questions of law when required by the Presidelnt of the United States, or when requested by Attorney General are in the nature of judicial the heads of any of the Departments touching any decisions. I do not say that they are to all matters that may concern their Departments," &c. intents and purposes judicial decisions; but, in When you take the two provisions together; 623 first, the provision of the Constitution that the the right to issue such a commission, he has on the President may call upon the principal officer in face of that commission the power of removal and the each executive department for advice and opin- authority to reappoint." ion, and second, the provision of the act of 1789 In the second volume of Opinions of Attorthat he may call upon this officer of the law, neys General, page 333, will be found an opinthe Attorney General for advice and ion of Mr. Berrien, given on the 2dApril, 1830, I maintain that when that advice and opinion in which he held thatare given they are by virtue of the Constitu- "The appointment of a navy agent during the tion and the law binding upon the President recess of thle Senate, made in the case of a vacancy tion and the law binding upon the President occurring during the recess, is in the exercise of the of the United States; and that even if they constitutional power of the President, and not by were not given in reference to the particular force of the act of 3d March, 1809; and the constitutional limitation of such appointment is to the end removal of Mr. Stanton, yet if they were given of the succeecing session of Congress, unless it be in any case on all fours with his, if they were sooner determined by the acceptance of a new comgiven in any similar case, these opinions are mission made, under an appointment by and with in the nature of judicial opinions, and they are the advice and consent of the Senate." a perfect shield and protection to the President, Mr.Legar6, in an opinion, on the 22d Octoif I can bring his act in this particular case ber, 1841, declared thatwithin the spirit and meaning of any of them. "The Constitution authorizes the President to fill within thprtadmaigonvacancies that may happen during the recess of the Now, without commenting on these opinions Senate, even though a vacancy should occur after a or detaining the Senate by reading them at session of the Senatehas intervened. The executive length, I will present a few without comment; power of removal from office, as indicated in the argument of Mr. Madison, delivered in the First for if I were to undertake to comment upon Congress, drawn from the character of executive each opinion as to the power of appointment power and executive responsibility and the irresistand te power of removal might take up ible necessity of the case, has been acquiesced in by and the power of removal it might take up the whole country." more time than would be advisable. Trusting Again, in the fourth volume of Opinions of to and believingin the intelligence and discrim- Attorneys General 8, will be founthe ination of the Senate, I will give them the Attorney General John Nelson, substance of the positions assumed, as I under- opinion th of Attorney General John Lieutenant stand, by the different Attorneys General who on the 9th of August, 1843, in Lieutenant sthave given their opinions upon the question. Coxe's case, where the applicant was heard by have given their opinions upon the question. In the first volume of the Opinions of the counsel, a proceedings as I suppose, somewhat hl the first volume oi the Aptntons of the Attorney General, page 631,rare in the Attorney General's office. In that Attorney General, page 631, it will be seen that opinion he declared, referring to the case of General Swartwout' s commission (under the Marbury vs. Madison, thatact of May 15, 1820, to limit the tenure of ceract of May ", 1820, to limit the tenure of cer- Even after confirmation by the Senate the Presitain offices) as navy agent at New York ex- dent may, in his discretion, withhold a commission pired during the preceding session of the Sen- from the applicant; and until a commission to signify ate, and Mr. Wirt, Attorney General, gave an that the purpose of the President has not been opinion, on the 22d of October, 1823, addressed changed the appointment is not fully consummated." to the Secretary of the Navy, in which he held All of these cases, without stopping to comthat the words in the Constitution, "happen ment upon them, you will see have more or during the recess of the Senate "-and this, I less bearing on the question under considerathink, will be a good answer to a portion of the tion. Now indulge me, if you please, while I argument offered by the honorable Manager read extracts from an opinion of Mr. Crittenwho spoke yesterday-are equivalent to the den, to be found in the fifth volume of the words " happen to exist," and that "' the Presi- Opinions of the Attorneys General, page 290. dent has power to fill during the recess of the It is infinitely a better argument than any which Senate, by temporary commission, a vacancy I can present. You will see that he necesthat occurred by expiration of a commission sarily travels over the same beaten path that during a previous session of that body." we are compelled to travel over in this case; and I think it is a matter of very great conseIn the same volume, page 213, will be found another opinion of MIr. Wirt. The register quence that in this case we do show that the of wills held his office under a commission path i well known and so much traveled during the pleasure of the President. Mr. Wirt that there can be no mistake about it. in his opinion, delivered on the 15th of June, UponthequestionsubmittedbythePresident whether he had authority to remove from office 1818, held that where an act of Congress gives whether he had authority to remove from ffice the President the power to appoint without the chief justice of the Territory of Minnedesignating the tenure by which the office is sota, erected by the act of March 3, 1849, who had been appointed for four years, Mr. Critto be held it is during the pleasure of the Pres-had been appoin ted for four years, Mr. Critident. Thatisthe advice and opinion of one of tenden, in his opinion of the 23d of January, the most eminent lawyers, and one of the most 1851, after referring to Chief Justice Marshall's gifted orators, that ever lived in the United opinion in the American Insurance Company States. He says: vs. Canter, (1 Peters, 546,) where it was held that these were not constitutional but legisla" If the President had no right to issue such a com- tive courts, created in virtue of the general mission the commission is void, the office vacant, and the President has now aright to commission another right of sovereignty which exists in the Govperson anew.' If, on the contrary, the President had ernment, said what I will nowread. I propose 624 to give you the language of Mr. Crittenden, one I vouch for the correctness of the extract which of the ablest statesmen who ever sat in these I am about to read: Halls, a man without fear and without reproach, "It is his [the President's] duty to do all he has a man of a splendid, gigantic intellect, "faithful lawful power to do when the occasion requires an among the faithless" under all circumstances; exercise of authority. To do less on such an occasion would bepro tanto to abdicate his high office. one whose opinions, as I respectfully think, are The Constitution is the supreme law-ate law sugperior entitled to the highest degree of credit. This and paramount to any other. If any law be repugopinion was delivered in the meridian of his nant to the Constitution it is void." life, when he was in the full possession of his This bears not only on the civil-tenure bill, mental powers, and when there could be no but it is square up to all the questions the genmistake as to the force and effect to which any tlemen on the other side have argued in conproduction of his mind was entitled. He said: nection with it. Here is the opinion of the "Being civil officers appointed by the President adviser of the President's predecessor, a man by and with the advice and consent of the Senate, whose opinion was on file, a man in whose and commissioned by the President, they are not ex- judgment he had the right to confide, for be it cepted from that executive power which, by the Con- known and always kept in remembrance that stitution, is vested in the President of the United States over all civil officers appointed by him, and the President of the United States is not himwhose tenures of office are not made by the Consti- self a lawyer; he never studied the legal protution itself more stable than during the pleasure of the President of the United States. That the Presi- fession; he has no claims or pretensions to dent of the United States has, by the Constitution of know anything about it; but in the discharge the United States, the power of removing civil offi- of his official duties he has the right to consult cers appointed and commissioned by him, by and the legal adviser who is placed there to guide with the advice and consent of the Senate, where the ega who is placed there to guide Constitution has not otherwise provided by fixing and direct him upon questions of law by the the tenures during good behavior, has been long Constitution of the country and by the act of since settled, and has ceased to be a subject of con- 89 troversy or doubt. In the great debate which arose 89. If he finds an opinion on file in his upon that question in the House of Representatives office, or if he finds it recorded in any reported shortly after the adoption of the Constitution, Mr. volume of the opinions of the Attorneys GenMadison is reported to have said'it is absolutely eral, it is, andis properly, a guide, apreceden necessary that the President should have the power eral, it is, and i properly, a guide, a precedent of removing from office; it will make him, in a pecu- which he may safely follow; and it is such an liar manner, responsible for their conduct and sub- opinion as will protect him against any impuject him to impeachment himself if he suffers them onawl to perpetrate, with impunity, high crimes or misde- tations of unlawful or improper motives. Parmeanors against the United States, or neglects to don me for reading this again, so that you may superintend their conduct, so as to check their ex- have the whole of it in unbroken connection: cesses. On the constitutionality of the declaration I have no manner of doubt.' And the determination "It is his duty to do all he has lawful power to do of Congress was in accordance with his views and has when the occasion requires an exercise of his authorsince been invariably followed in practice by every ity. To do less on such an occasion would be, pro President of the United States." tanto, to abdicate his high office. The Constitution is the supreme law-a law superior and paramount And in the same opinion (page 291 of the to any other. If any law be repugnant to the Consame volume) Mr. Crittenden said: stitution, itis void; in other words, it is no law." " The power of removal is vested by the Constitu- And, Mr. Chief Justice, if you see proper tion in the President of the United States to promote in the discharge of your duty to comply with the the public welfare; to enable him to take care that the laws be faithfully executed; to make him responsi- respectful request which has been presented ble if he suffers those to remain in office who are to you to deliver an opinion upon any of the legal manifestly unfit and unworthy of public confidence." questions which are involved in this case, I most Again, Mr. Cushing in the 8th volume of respectfully ask you to consider this opinion Opinions, page 233, in an elaborate opinion in of the Attorney General, and to declare that it regard to the Navy efficiency act of the 28th is sound doctrine " that if any law be repugFebruary, 1855, held- nant to the Constitution it is void; in other "That the President of the United States possesses words, it is no law." Now, allow me, Mr. constitutional power to dismiss officers of the Army Chief Justice, to call your attention to the or Navy coextensive with his power to dismiss exec-e of this oinion of r. Seed utive or administrative officers in the civil service of closing sentence of this opinion of Mr. Speed, the Government." which I think is the very essence of the law: Again, Mr. Speed, in his opinion of April "Itis thepeculiar province of the judicial depart25, 1865, addressed to Secretary McCulloch, ment to say what the lawis in particular cases. But before such case arises, and in the absence of authordeclaring that the act of 1865, vesting the power itative exposition of the law by that department, of appointment of assistant assessors in the it is equally the duty of the officer holding the execrespective assessors is unconstitutional, argues utive power of the Government to determine for the purposes of his own conduct and action as well the that it is the duty of the President to make the operation of conflicting laws as the unconstitutionappointment; and I ask you, Senators, to pay ality of any one." special attention to this opinion, for I suppose There is an opinion from an Attorney Genthat Mr. speed stands very high in some quar- eral who is not a member of the Cabinet, not ters of the United States. This opinion is not a " serf"' of the President, who gave his opinin any of the printed volumes of opinions; I ion before or about the time the present incumhave a certified copy of it which I placed in bent came into the presidential office. There the possesion of Mr. Stanbery, and which can is his opinion placed upon the records of one be atanytimeproducedbeforetheSenate; but of the departments of this Government, to. 625 stand and to stand forever, so far as his opin- record goes, it is in favor of the power and ion will go, as a guide to the highest executive authority which I have argued for. There can officer in the Government, declaring that if a be no controversy in regard to this. law is unconstitutional in the view of the Pres- Now let us see how far we have progressed ident it is no law at all, and he is not bound to in this argument. I have shown you the opinfollow it. He declares that the President has ions of Mr. Madison and Mr. Sedgwick and the right, in the absence of any judicial expo- others in the debate of 1789. I have shown sition, to construe the law for himself. I need you the opinions of Kent and Story, two of not tell this Senate that this is no new doctrine. our ablest American commentators. I have Senators, within your day and mine there was shown you opinions of Attorneys General, emian executive officer of the United States who nent in their profession and standing high in was, as they say the present incumbent is, a the confidence of the country. I have shown man of strong will, a man not possessing any you the action of the American Senate in the great advantages of education or of mental expunging resolution. I thus present to you culture, but still a man of strong intellect and what I may call, in the language of Judge of determination just as strong as his intellect. Story, an unbroken current of authority in You all remember Andrew Jackson, a name favor of the proposition that not only the civilthat was once potent'in the United States. No tenure bill is unconstitutional, but that the name was ever more powerful in this Govern- President has the right to remove from office. ment of ours from the time of its foundation I mean to say that the principles maintained by down to the present day than the name of them would lead to that result, that he has the Andrew Jackson. "There were giants in power of removal which he claims in his answer. those days" when Andrew Jackson was at the And I maintain, Senators-forgive the repehead of the Government of the United States. tition-that whether he is right or wrong in Andrew Jackson exercised the power of re- this, this current of authority for near eighty moval, and his right to do so was called in years is sufficient to throw protection around question by some of the ablest men who ever him; and when I showyou, as I have done from sat within the Senate of the United States. It the opinion of Mr. Speed, that in the absence was discussed and learnedly discussed; and of any judicial determination it is the sworn yet he persevered in his determination. He and bounden duty of the President of the Unimaintained the power and authority of the ted States to judge of a constitutional question President of the United States to remove from for himself, I do not present to the Senate any office and to make appointments, and you all novel doctrine. It isnot for me tosay whether recollect the scene that occurred and which the doctrine is right or wrong. My opinions made the history of this body memorable. are of no sort of consequence in this Senate. A resolution was introduced into the Sen- If my arguments are well founded, and if they ate-I believe it was occasioned, in part at are well supported, they will have weight andi least, by the removal of Mr. Duane-to the influence with you; if not, they will be rejected. effect that the President of the United States, So it is not necessary for me to say what I in his late proceedings, had violated the Con- think upon these questions; but I maintain that;, stitution of the United States. That resolution this is nota novel doctrine in the United States.: passed the Senate; but a gentleman who is now I told you yesterday that the present President; no more, one whose name is well known in the is a Democrat of the straightest sect. I told: political history of the United States, Mr. you that he was really nominated as a DemoBenton, took up that subject. I have not re- crat in the convention that nominated Mr. Linc.rred to the history of the debates with suffi- coln and himself for President and Vice Presicient accuracy to tell how long it was that he dent. That was nota Democratic convention,. continued to agitate the question, but my recol- Iknow. Itwas a convention composedofUnion lection is that it was for several years; and I men without any reference to the old lines ofremember, as all these Senators will remem- demarkation between Whigs and Democrats. ber, the remarkable expression which Mr. That was a convention which had assembled toBenton used: "Solitary and alone I set this getherforthepurposeofsustaining Mr. Lincoln,. ball in motion." He determined that that res- and whose view and opinion was that by sustainolution censuring the President of the United ing Mr. Lincoln and the measures of his admin-. States should be expunged from the records istration they would sustain the strong armtof the Senate; and he debated it time and of the Government in putting down the rebelagain with tremendous energy and power, until lion, which had not then been brought to a conat last the resolution was expunged from the elusion. In his letter accepting the nominaJournal of the Senate of the United States. tion, as I told you yesterday, President John, So far as there is any recorded judgment within son remarked that he was a Democrat I my knowledge that is the last record. It is a Senators, I will read to you the opinions of record in favor of the power of removal. There Mr. Jefferson and General Jackson presently; was " the sober, second thought" of the Sei- but before I do that let me call your attention ate. There was a recision of a resolution that to the effect of this political training of the reflected upon the character and upon the ac- President of the United States. You must tion of General Jackson; and, so far as that always bear that in mind. You must go to his C. I. —40. 626, stand-point and look at things as he looked at arise in such case, and produce inconvenience. This them and judge of them as he judged of them, is possible, and is a necessary failing in all human for you are now in search of motive; that is proceedngs." what you are trying to determine in this case. He goes on to show, in this letter to Mr. You.are in search of the question of inten- Torrance, that such contradictory decisions tion; and when you judge of his conduct in that had arisen and no special harm had resulted; way, and when you remember that he is a Demo- but I do not deem it material to occupy your crat of the Jeffersonian ind Jacksonian school, time with reading at length. In the seventh if I can show you, as I will presently show you, volume of Mr. Jefferson's Works, page 135, that Mr. Jefferson and General Jackson under- he says, in a letter to Judge Roane: took to construe the Constitution of the United "My construction of the Constitution is very difStates for themselves, and claimed that as ex- ferent from that you quote." ecutive officers they had the right to do so, I I do not read the rest, because there is so show you that according to the political train- much reading necessary to be done in the ing and education of the President of the United argument of the case that I am really fearful States it is a doctrine in whien he might well of wearying your patience, and I take it that it believe; and especially when you have Mr. tnecessaryfo Speed's opinion that I have read confirmatory mere mention of this letter will call it up to of that doctrine, it furnishes a sufficient vindica- the recollection of Senators, and you will retion and protection of the President as to th e r the connection. I only read so much exercise of his judgment. of it as bears upon the point which I am enLet us see what Mr. Jefferson and General deavoring to illustrate: Jackson said on this subject. Mr. Jefferson, if I understand him correctly, carried his doc- " construction oftheConstitutionisverydifferif I understand him correctly, carried his doc- ent from that you quote. It is that each department trine much further than the present President is truly independent of the others, and has an equal of the United States carries it. I will refer right to decide for itself what is the meaning of the to the sixth volume of Mr. Jefferson's works, Constitution in the cases submitted to its action; and especially where it is to act ultimately and without page 461, and I will read a part of a letter appeal. I will explain myself by examples which, of his there to be found, from which you having occurred while I was in ofice, are better will see he goes a bar's length beyond the known to me, and the principles which governed present President of the United States in the views that he entertains. The President has I deem it unnecessary to read further from told you that he was anxious to have the ques- this letter. The point is, that in this letter he tion between him and Congress settled by the asserts that "each department is truly indejudicial department. But what were Mr. pendent of the others, and has an equal right Jefferson's views? He, as you all very well to decide for itself what is the meaning of the know, and the world knows, was the author Constitution in thecasessubmitted toitsaction; of the Declaration of Independence and one and especially where it is to act ultimately and of the greatest of the revolutionary minds. In without appeal." If that doctrine be correct the letter to which I have referred, to Mr. the President of the United States had the Torrhence, he said:. right to decide this question for himself, inde"The second question, whether the judges are in- pendent of any intention or design to have a vested with exclusive authority to decide on the con- case made and prepared for the adjudication of stitutionality of a law, has been heretofore a subject the judicial tribunals of the country. But, of consideration with me in the exercise of official even if that be not correct, it certainly goes far duties. Certainly there is not a word in the Consti- to e i if not tution which has given that power to them morethan to explain, if not to justify, the action of the to the executive or legislative branches. Questions President of the United States in the removal of property, of character, and of crime being ascribed of Mr. Stanton. to the judges, through a definite course of legal pro- Although it is not precisely in connection. ceedings, laws involving such questions belong, of course, to them; and as they decide on them ulti- with this point, yet, as it may have a bearing mately and without appeal, they, of course, decide upon the question, I will quote a sentence from or themselves. The constitutionalvalidityofthelaw General Jackson's Maysville road bill veto. or laws again prescribing executiveaction, and tobe administered by that branch ultimately and without Of course that can be found anywhere and appeal, the executive must decide for themselves also everywhere in your records; but for the sake whether under the Constitution they arevalid or not. So also as to laws governing the proceedings of the of convenience I.quote it from the Statesman s Legislature, that body mustjudgefor itself theconsti- Manual, volume two, page 726: tutionality of the law, and equally without appeal or control from its coordinate branches. And, in gen- "When an honest observance of constitutional eral, that branch which is to act ultimately and with- compacts cannot be obtained from communities like out appeal on any law is the rightful expositor of the ours it need not be.anticipated elsewhere; and the validity of the law, uncontrolled by the opinions of cause in which there hits been so much martyrdorn, the other coordinate authorities." and from which so much was expected by the friends of liberty, maybe abandoned and thedegrading truth, So tlhat, if I correctly apprehend Mr. Jeffer- that man is unfit for self-government, admitted. And son' s meaning in this letter, he goes a bar's this will be the case if ecpediency be made a rule of construction ininterpretingthe Constitution. Power length beyond the right asserted by Mr. John- in no Governmentcould desire a bettershield for the son in his answer in this case: insidious advances which it is ever ready to make upon the checks that are designed to restrain its. "It may be said that contradictory decisions may action." 62-7 On page 772, in General Jackson's veto of obnoxious to me." Now, I maintain, Senators, the bank bill, he said: that there was nothing wrong in this; nothing " If the opinion of the Supreme Court covered the illegal in it. whole ground of this act, it ought not to control the Oh, but it is argued on'the other side that coiordinate authorities of this Government." after the President of the United States has I want you, now, to notice these assertions, vetoed a bill, and after it has been again passed for you will see that such great men as Jeffer- by two thirds of both Houses of Congress, it son and Jackson went beyond the present is then placed in such a situation that he has President of the United States in their asser- no right to put any construction upon it dif-: tions, for they denied the right of the Supreme ferent from that which Congress has placed' Court even to adjudge a question: upon it. I cannot see the logic of the differ"The Congress, the Executive, and the court must ence between the two cases. A law, when each for itself be guided by its own opinion of the passed by Congress and approved by the PresConstitution. Each public officer who takes an oath to support the Constitution swears that he will sup- ident of the United States and placed upon the port as he understands it, and not as it is understood statute-book, is nothing more than a law. If' by others." the President of the United States exercises I remember very well that there was a great his veto power and attempts to prevent the deal of criticism at that day about this princi- passage of a law, or, in other words, refuses ple asserted by General Jackson in his veto of that assent which the Constitution empowers the bank bill; but it is enough for me to show him to give or to withhold, and the Congress that he asserted the power. of the United States passes it over the veto " It is as much the duty of the House of Repre- and it goes upon the statute-book,.is it anysentatives, of the Senate, and of the President to thing more than a law? Has it any greater decide upon the constitutionality of any bill or res- r more binding force in the one ase than it olution which may be presented to them for passage or more binding force in the one case than it or approval as it is of the supreme judges when it has in the other? And if the President of the may be brought before them for judicial decision. United States has any power of judgment, and The opinion of the judges has no more authority especially of judgment in cases where duties over Congress than the opinion of Congress has over especiall y of t he re duti es the judges; and on that point the President is in- are confided to him by the Constitution and dependent of both. The authority of the Supreme where it is his business to act, may he not Court must not, therefore, be permitted to control xert in the one case just as much as in th the Congress or the Executive when acting in their legislativecapacities, but to haveonlysuchinfluence other? I cannot for the life of me see the as the force of their reasoning may deserve." force of the distinction which the learned and& That was prerogativeI We have heard a honorable Managers are attempting to take in great deal of talk here about prerogative. this case. That was prerogative when General Jackson Senators, there are questions peculiarly beasserted that he had the right to construe the longing to the executive department which the Constitution of the United States for himself, President of the United States of necessity andlindependent of the judicial tribunals of the must have the right of determining for himcountry. If General Jackson and Mr. Jeffer- self. Specious and ingenious as the argument son asserted this extraordinary power while of the honorable Manager yesterday was, that they were filling the executive office, how there may be an implication in favor of Conmuch more may Andrew Johnson, the present gress as to the exercise of its powers enumerPresident of the United States, say, "Here is ated in the Constitution, and that there can be a question about which there is a difference of no implication in favor of the President as to opinionbetween the Congress of the United the duties that are imposed upon him by the States and myself; here is a question that is same instrument, it still has no foundation in distracting and dividing the country; I desire sound reason or in any authority known to the to have this question settled; I do not wish to law. The very term "executive power' is, settle it by my own strong hand; I desire to like most of the other terms employed in the submit it to the judicial tribunals of the coun- Constitution, a technical phrase. I have shown try; and in order to do that I will exercise a you how Mr. Madison understood it-in the depower whIich has been exercised from the bate of 1789. I have shown you what a wide foundation of the Government; I will remove latitude of interpretation he took in giving a Mr. Stanton; I will place this question in a meaning to the words " executive power," and condition in which it can be settled by the that he held that in virtue of those very words judicial tribunals of the United States; I will the President was responsible for the action endeavor to do this; I will invoke the action of the Cabinet that he had called around him. of the highest judicial tribunal in the country." If you can get from the Constitution an Of course this idea was involved: "If the implication in any case; if you can derive from Supreme Court of the United States decide this the words "executive power," or from the question in favor of the view which Congress words "he shall take care that the laws be has presented I will acquiesce in and submit faithfully executed," or from his oath, or from to the decision; if the Supreme Court decide any other words in the Constitution relating to the question the other way.I will persevere in his functions, any power by implication in any'the determination to appoint some one else in case, the doctrine of implication arises as to the place of an officer in my Cabinet who is all other powers that may be conferred upon 628 him; and I can see no reason why you may read so much bf it as I think is pertinent to not imply anything that is necessary to be done the question before you. as much in favor of the President as you may Mr. JOHNSON. Who is the letter to? To imply it in favor of Congress. When you take Mr. Coles? the Constitution of the United States and look Mr. NELSON. It is not stated, sir; it is to the enumerated powers, there is not one of blank. It is dated 1834, and will be found on them that tells how any power is to be exe- page 349 of the fourth volume of his works. cuted. Congress may create a Navy; Con- The letter is not very long, and is as follows: gress may declare war; Congress may levy " DEAR SIR: Having alluded to the Supreme Court taxes. It does not say how you are to create of the United States as a constitutional,resort in a Navy; it does not say whether you are to do decidingquestions of jurisdiction between the United that particular act by taxation or not; it does States and the individual States, a few remarks may be proper, showing the sense and degree in which not prescribe whether your vessels are to be that character is more particularly ascribed to that iron-clad vessels or sail vessels; it does not department of the Government. prescribe how much tonnage they shall have. "Asthelegislative, executive, and judicial departments of the United States are cotirdinate, and each All these and a thousand other things are equally bound to support the Constitution, it follows left to the discretion of Congress. You derive that each must, in the exercise of its functions, be the power which you have exercised time and guided by the text of the Coiistitution according to its own interpretation of it, and, consequently, that again, from the foundation of the Government, in the event of irreconcileable interpretations, the in regard to the Army and the Navy and every prevalence of the one or the other Department must depend on the nature of the case, as receiving its other branch of the public service, as a neces- final decisiend on from the one or the other, and passing sary incident under the general provision of from that decision into effect without involving the the Constitution to do anything that may be functions of any other." necessary and proper to carry any ofthe granted The argument upon the other side is that powers into effect. Now, if this doctrine of the President of the United States, under the implication which is absolutely necessary and Constitution, is a mere man in buckram; that he essential to the legitimate and proper exercise has no power or authority to decide anything; of the powers conferred on Congress by the that he can do nothing on the face of the earth Constitution has been acquiesced in and prac- unless it is nominated in the bond; that he ticed on from the foundation of the Govern- must be the passive instrument of Congress; mentby Congress, why may it not be acquiesced and that he must be subjected to the governin as to the President of the United States? ment and control of the legislative department There is no force, as I maintain, in the distinc- of the Government. The argument which we tion which the honorable Manager insists make is- that under the Constitution there are upon. living, moving, acting powers and duties vested Mr. JOHNSON. Mr. Chief Justice, I move in and imposed upon the President of the Unithat the court take a recess of fifteen minutes. ted States, and that he must, of necessity, have The motion was agreed to; and at the expira- the right, in cases appropriately belonging to tion of the recess the Chief Justice resumed his department of the Government, to exercise the chair and called the Senate to order. something like judicial discretion; that he must Mr. NELSON. Mr. Chief Justice and Sen- act upon his own authority and upon his own ators, I have been reminded of one thing which construction of the Constitution; and when he I should have stated to you before; and before thus acts in reference to the removal of an I proceed further I desire to call your attention officer or anything else, I maintain that it is to it. I have not had opportunity to consult the different from the action of a private individworks upon the subject, but I presume the fact ual. A private individual, if he violates the is well known to the Senate that Mr. Clay and laws of the land, is amenable for their violaMr. Webster, in the progress of the debate tion under the principle that "ignorance of upon General Jackson's conduct in reference the law excuseth no man;" but the President to the removal of Mr. Duane and the removal of the United States having the executive of the deposits,. conceded the power of the power vested in him by the Constitution has President to remove the Secretary, but their the right to exercise his best judgment in the opposition to his course was founded mainly situation in which he is placed, and if he exupon objections growing out of the law upon ercises that judgment honestly and faithfully, the subject of the Treasury Department. This, not from corrupt motives, then his action canif I am correctly informed, and I believe I am, not be reviewed by Congress or by any other is an additional and very strong opinion in tribunal than the tribunal of the people in the favor of the proposition for which I have con- presidential election should he be a candidate tended before you. before them again, and he is protected by the Upon the question on which I was address- powers imposed by the Constitution. Mr. Mading you, I have not only the opinion of Mr. Jef- ison proceeds: ferson and General Jackson, but I have the "It is certainly due from the functionaries of the high authority of Mr. Madison himself. In the several departments to pay much respectto the opinfourth volume of EMadison's Works, page 349, ions of each other; and, as far as official independis a letter which was written by him in 1834, ence and obligation will permit, to consultthe means is a letter which was written by him in 1834. of adjusting differences and avoiding practical emWithout reading the whole letter, I will only barraisments growing out ofthem, as must be done in 629 like cases between the different coordinate branches for the entire action of the executive department, it of the legislative department. was but reasonable that the power of appointing, "But notwithstanding this abstract view of the overseeing, and controlling those who execute the coordinate and independent right of the three de- laws-a power in its nature executive-should repartments to expound the Constitution "- main in his hands. Itis, therefore, not only his right, but the Constitution makes it his duty, to'nominMark his phraseology there. One of the t b diththedvcend cnentof the ate, and by and with the advice and consent of the makers of the Constitution, hoary with age, ven- Senate, appoint' all'officers of the United States erable at the time when this letter was written, whose ppointments are not in the Constitution etivme wep to leaer t trity, otherwise provided for,' with the proviso that the having no motive except to leave to posterity. appointment of inferior officers may be vested in the the mature judgment of a patriot in regard to President alone, in the courts of justice, or in the the true and proper construction of that sacred heads of Departments. instrument which "The executive power vested in the Senate is instrument which he had an agency in making, neither that of' nominating' nor'appointing.' Mr. Madison says: You will see that General Jackson, with "But notwithstanding this abstract view of the characteristic energy and courage, stood up codrdinate and independent right of the three de- fitlfully in vindicaton of his executive wer partments to expound the Constitution, the judicial tithfully in vindication of his executive power department most familiarizes itself to the public at- while he was President of the United States: tention as the expositor by the order of its functions in relation to the other departments, and attracts "The executive power vested in the Senate is most the public confidence by the composition of the neither that of' nominating' nor' appointing.' It is tribunal, merely a check upon the executive power of appoint"It isbthe judicial department in which questions ment. If individuals are proposed for appointment of constitutionality, as well as of legality, generally the President, by them deemed incompetent or find their ultimate discussion and operative decision; unworthy, they may withhold their consent and the and the public deference to and confidence in the appolntmenteannotbemade. Theycheckthe action judgment of the body are.peculiarly inspired by the of the Executive, utheannot in relation to these qualities implied in its member, by the gravity and very subjects act themselves nor direct him. Selecdeliberation of theirproceedings, and by the advan- tions are still made by the President; and the negatage their plurality gives them over the unity of the tive given to the Senate, without diminishing his executive department, and their fewness over the responsibility, furnishes an additional guarantee to multitudinous composition of the legislative depart- the country that the subordinate executive, as well the country that the subordinate executive, as well multitudinous composition of the legislative depart- as the-judicial offices, shall be filled withworthy and ment. "Without losing sight, therefore, of the coordinate competent men. relations of the three departments to each other, it The whole executive Power being vested in the may always be expected that the judicial bench, President, who is responsible for its exercise, it is a when happily filled, will, for the reasons suggested, necessary consequene thathe should have a rightto most engage the respect and reliance of the public as employ agents of his own choice to aid him in the the surest xposntor of the Constitution, aswellin performance of his duties, and to discharge them questionswithin itscognizanceconcerningthe bound- when he is no longer willing to be responsible for aries between the several departments of the Gov- acts." ernment as in those between the Union and its The very idea that one of the Senators I now members." address, Senator SHERMAN, must have had in And it was, as I said before, to that depart- his mind at the time when he made those rement that the President of the United States marks which were quoted by Judge Curtis in desired that an appeal should be made. But the opening upon our side: you will observe here that the idea is distinctly "In strict accordance with this principle the power presented by this venerable and patriotic man of removal, which, like that of appointment, is an that the coordinate and independent depart- original executive power, is left unchecked by the Constitution in relation to all executive officers for ments of the Government have the right, each whose conduct the President is responsible, while it for itself and each within its appropriate sphere is taken from him'in relation to judicial officers for and in relation to its own appropriate duties, whoseactsheisnotresponsible. IntheGovernment from which manyofthe fundamental principles of our to construe the Constitution. If this view be systemarederived the head of the executive departcrrect the President of the United States had ment originally had power to appoint and remove the right to construe the Constitution for him- at will all officers, executive and judicial. It was to take the judges out of this general power of reself, notwithstanding the passage of the civil- moval, and thus make them independent of the Exectenure bill, and he had the right to act under utive that the tenure of their offices was changed to it in the manner in which he did, and you can- good behavior. Nor is it conceivable why they are placed in our Constitution upon a tenure different not makea crime, you cannot make an offense from that of all other officers appointed by the Exout of such an action. You cannot justify it ecutive, unless it be for the same purpose." in the view of the American people; you can- Now, Senators, at the hazard of some repenot justify it to the civilized world; Senators, tition, allow me at this point to sum up as far I maintain that. you cannot justify it to your as I have gone. I have shown you that in the own consciences to place such a construction debate of 1789 some of thie ablest men this as that upon the act of the President, and to country ever produced, and some of the very deny him the powers which he has attempted men who bad an agency in framing the Constito exercise in this case. tution itself, conceded the power of removal, Now, let me call your attention to the famous as claimed by the President. I have shown protest of General Jackson, and you will see you that for nearly eighty years, with the single that the same doctrine is carried out there: exception of the struggle which took place in "By the Constitution the'executive power is General Jackson's time, that power has been vested inthe President of theUnitedStates.' Among acquiesced in. I have shown you that two of the duties imposed upon him, and which he is sworn to perform, is that of'taking care that the laws be the most eminent writers on American jurisfaithfully executed.' Being thus made responsible prudence, Kent and Story, have treated the 630 question as settled. I have shown you, from | was not an intention to commit a crime; for examthe opinions of some of the ablest Attorneys ple: a man embarks on board a ship at New York General who have ever been in office in this for the purpose of going to New Orleans; if he went General who have ever been in ofce in this with an intention to perform a lawful act he is percountry, that the power of removal existed in fectly innocent; but if his intention was to levy war the manner in which it was exercised by the against the United States he is guilty of anovert act President. I have shown you that,' from this of treason." opinion and practice during the long period Mr. Bishop, in his work on criminal law, of time to which I have adverted, it was con- section 252, says: ceded that the power of removal belonged to "Intent is not always inferable from the act the President in virtue of the Constitution, and done." that the Senate had no constitutional right or I maintain that, there being no unlawful or power to interfere with him. Having shown improper intention there can be no crime or you all this, I have now a few words to say in misdemeanor; and although I did not read this regard to the President's act in removing Mr. yesterday I substantially cited it; but having Stanton and in further answer to the first ar- it here I ask your indulgence to repeat it again tide against him. in the language of the book itself. I refer to As you have observed, the first proposition Wharton's Criminal Law, page 733, and Roswhich I have endeavored to demonstrate is, coe's Criminal Evidence, page 804, to sustain Athat the civil-tenure bill is unconstitutional this proposition: land void; for if the doctrines be correctwhich "An indictment against an officer of justice for I have endeavored to maintain before you, and misbehavior in office must charge that the act was I have endeavored to maintain before you, and.done with corrupt, partial, malicious, or improper'if this long chain of authority is entitled to the motives, and, above all, with a knowledge that it slightest degree of respect, it follows inevitably was wrong." that Congress had no power to pass the law; In Wharton, page 269, and 2 Russell, 732, and it follows, furthermore, that the President this principle is stated: had the right to exercise a judgment in regard "As to acts of an official nature, everything is to retaining or removing one of the councilors presumed to be rightfully done until the contrary whom the Constitution had placed around him appears." for the purpose of aiding him in the adminis- Again, Mr. Bishop, in his Criminal Law, tration of public affairs. section 80, says-: But the other view in which I wish to argue "A case of overwhelming necessity (as to intent) the case-and it has already been indicated or honest mistake of fact will be excepted out of a in various statements from time to time made general statute." -by me in the progress of my remarks-is Now, Senators, if these are the rules that -this: suppose that the proposition I have en- prevail in courts of'law-and they are rules deavored to maintain before you is erroneous; founded in wisdom, in common sense, in justice suppose that Congress are right and that the -if these rules obtain in criminal trials every President is wrong; suppose that Congress had day in courts of law, what is there to prevent.the power to pass the civil-tenure bill; sup- them from being enforced in this court, and pose that he had no right to act contrary to what is there to prevent them from shielding that; then the question comes up whether or this respondent from the imputation which is npot he is guilty upon any of these articles of made upon him? How can it be said that he impeachment. The first eight articles charge had any wrongful or unlawful intent when the in different forms an intent to violate the Con- Constitution gave him the power to judge for stitution of the United States, or to violate the himself in reference to the particular act? How civil-tenure bill, or to violate the conspiracy can it be said that he had any wrongful or unact of 1l61. Every one of those articles con- lawful intent when the practice of the Governtains a charge of an unlawful intention; they ment for the long period of time to which I -do not charge an unlawful act simply, with the have adverted was sufficient to justify him in exception of the fifth article, which says exercising the power which he attempted to nothing about the intent. Now, recurring to exercise? How can it be said that there was what I have already said on this subject, I de- any wrongful or unlawful intent when he had sire to sustain what I have said by a reference all these opinions of the Attorneys General:to to some of the decisions or some of the opin- guide and lead and direct him? How can it ions in the law books, and I ask the question be said that there was any unlawful intent when how can any unlawful intent be predicated of he had the very opinions of the Senators and his act? According to Foster and Hale and, Representatives at the time when the law was other writers upon criminal law, and I quote this passed as a guide to lead and direct him in the from 1lBouvier'sDictionarypage647, whocites performance of his duty? It does seem to me Foster and Hale and others for the definition: that it beggars all belief to say that the Presi" Every crime must have, necessarily, two constit- dent intended anything wrong. It outrages our ucnt parts, namely, an act forbidden by law and an ideas of common justice and of common sense -intention." to say that there was any purpose or intent And that is as applicable, I take it, to a upon his part either to violate the Constitution high misdemeanor as it is to a high crime. or to violate the civil-tenure bill. If Mr. Speed "The act is innocent or guilty just as there was or is correct, and if the other writers are correct, -631,and the President believed that the law was un- between you and me; there is no war here:constitutional, then, until the question at least when we. have this liquor on hand;" and not was adjudicated by the highest court in the only divided that spoonful, but he felt so good TIlnited States, the President had the right to after he took that that he sent out and got a exercise his judgment, and you cannot hold bottle full more. [Laughter.] I suspect, Senathat he was guilty of any criminal intention. tors-I do not know how the fact is-but I susWas ever such a case presented? How bald, pect that old friend Thomas not only felt a how naked do these charges appear when you little elevated by the idea of being Secretary look at the proof! I will not take up time, of War ad interim, after having served his Senators, to turn to the evidence of witnesses country in a somewhat inferior capacity fora which you all have fresh in your recollection. good'while, but I imagine the old man took Was there ever such a scene in the history of so much of that good liquor on that occasion the world among men claiming to have intel- that he felt his spirits very much elevated, and ligence, among -persons in the exercise.o.f or- was disposed to talk to Mr. Karsner and all dinary reason and judgment as the scene thdt these other men in the manner in which he occurred in reference to Mr. Stanton's removal did talk. and the attempt to bring the question before And yet they tell you this was force I Oh, the courts of justice. There is old General yes, force; attempting forcibly to eject Mr. Thomas, whom they stigmatize a good deal on Stanton from the office of Secretary of Warthe other side; but I take him to be a plain, by drinking a spoonful of liquor and helping simple-hearted, honest old gentleman, who to divide a bottle with him I Was there ever has been forty years in the military service of such an idea of force before? This is the the country. If there were any suspiciops 1" lame and impotent conclusion" of the proabout him, such as the gentleman [Mr. Man- ceeding which we have upon the other side. ager BOUTWELL] alluded to yesterday, as to Well, they conclude that they will depart whether he was in favor of the rebellion or from that neutral ground. After they got out against it, it is a very extraordinary thing that of the building Mr. Stanton goes along and:Mr. Stanton should send him down to the he'wakes up Mr. Meigs in the dark hours of southern States, and that he should organize the night-he or some of his friends. It is some seventy or eighty thousand negroes there idem sonans; it is the same:thing, I reckon. to fight the battles of the Union. He is a Whatever he did by others he did by himself. plain, simple-hearted, honest old man, whose His friends go and arouse Mr. Meigs in the very countenance is a recommendation to dark hours of the night, as if some felony were him before anybody under the heavens hears about to be committed. They go there as if him speak. Perhaps his vanity was a little they were attempting to raise the hue and cry. tickled by the idea of being appointed Secre- They wake him from the slumbers of the night tary of War. No doubt the old man felt very and require him to go to his office to make out comfortable at that elevation for a little while. a warrant against old mlan Thomas for trying But who that heard his testimony in this court to violate the civil-tenure bill. He'rises and can doubt for a moment his intention to speak goes to his office with hot haste, something the truth in regard to everything he said? He like the haste in which this impeachment progoes to the War Department, and you have that ceeding was gotten up. He goes to his office. wonderful scene atthe timewhenhe attempts to He issues his warrant with all proper gravity takepossessionoftheofficeof Secretaryof War. and decorum, and it is placed in the hands of This he was going to do with force and vio- an officer, and poor old Thomas, with about a lence I Was there ever such a thing since the pint or a quart of liquor in him, [laughter,] is world began, such an act of force as you had arrested and taken before a judge to be tried for there between Mr. Thomas and Mr. Stanton this great offense of violating the civil-tenure when this proceeding was going on? They bill! He is placed in the custodyof an officer met together like twin brothers. They almost as if he had committed some horrible outrage, embraced each other. I believe he said Mr. some terrible offense. The officer follows him Stanton did hug him, or something like that. over to the President's. He sticks to him like [Laughter.] He came very near it, if he did not a leech, closer a good deal than a brother.,actually do it; and in the fullness of his heart [Laughter.] He follows him over there, and Mr. Stanton became exceedingly kind and will not allow poor old Thomas to get out of liberal upon the occasion, and he called for his sight at all. "Oh, you have committed a liquor, and had it brought out, and there was terrible offense; you have violated the civil-.that great dram, containing about one spoon- tenure bill; you are liable to fine and liable to ful, fairly, honestly, equally divided between imprisonment, and I cannot permit you, sir, to these two aspiring Secretaries, and done in a escape out of my clutches." But at last the spirit of fraternity and of love such as I suppose old man gets a lawyer and comes along before never was witnessed in a forcible contest on the judge. The lawyers get to discussing the theface of the earth before. [Laughter.] question before the judge, and strange to say An attempt was made to have this question this terrible offense which it took a midnight settled. Stanton puts his arm around him warrant to reach, this terrible offense which it and says, I" This is neutral ground, Thomas, required a marshal or some other officer with' 632 his tipstaff to take care should not be committed to the public if precedents were not duly regarded with impunity, and to hold on to the person of and implicitly followed. It is by the notoriety and stability of such rules that professional men can give Thomas so that he could not escape —when safe advice to those who consult them. and people in these lawyers came to argue it before the judge, general can venture with confidence to buy and trust and they began to find out there was some idea and to deal with each other. If judicial decisions of taking the thing up to the Supreme Court, were to be lightly disregarded, we should disturb of taking the thing up to, the Supreme Court, and unsettle the great landmarks of property. When the tune was changed. "A change came o'er a rule has been once deliberately adopted and dethe spirit of their dream," and this offense, clared, it ought not to be disturbed unless by a court which was so terrible a few hours before sinks, of appeal or review, and never by the same court which was so terrible a few hours before, sinks except for very cogent reasons and upon a clear ihto insignificance, and old than Thomas is dis- manifestation of error, and if the practice were othercharged, as the judge discharged the turkey at wise it would be leaving us in a state of perplexing the table that had been there for a week, upon uncertainty as to the law, his own recognizance. [Laughter.] No case And the very same thing can be said about is to be permitted to be made out for the settle- the construction of the Constitution and the ment and adjudication of the Supreme Court acts of the Executive for a long time. of the United States. Mr. Secretary Stanton's great warrant re- The language of Sir William Jones is exceedingly forcible on this point.'No man,' says he,' who is minds me of an anecdote, Senators. I am a not a lawyer would ever know how to act. and no very poor hand at telling one, but I believe I man who is a lawyer would, in many instances, know' will try it. I do not know whether I shall what to advise unless courtswere bound by authority as firmly as the pagan deities were supposed to be succeed in telling it or not. It is one I used bound by the decrees of fate.'" to hear a gentleman in our State of Tennessee tell about two Irishmen. They came over I shall not repeat, Senators, what I esteem to this country and were very ignorant of our t6 be the unanswerable argument of Judge habits and manners and customs, and particu- Curtis, that the removal of Mr. Stanton is not larly in reference to the "varmints" that a case embraced, or intended to be embraced, belonged to the United States. They were the tenure-of-civil-office bill according to walking along one day, and they saw a little the terms of the bill itself. It is enough for ground squirrel run up on a stump and then go me to refer you to that argument without re down into the hollow of the stump. One of' peating it. the Irishmen concluded he would catch him And so, having on this branch of the case and see what kind of a "' baste" it was. So considered the three propositions with which I he put his hand down in the hollow, and the set out, having endeavored to demonstrate other one said to him, " Have you got him, upon the first article, first, that the civil-tenure Pat?" "No," he replied, " by the powers, act is unconstitutional; second, that the action he has got mel" [Laughter.] Andthat was of the President was not a violation of the just exactly the way, Senators, with Mr. Stan- terms of the civil-tenure bill itself, because, ton and this great warrant. Instead of get- from what occurred at the time that bill was ting Mr. Thomas, they found he was likely passed it is manifest that it was not intended to get them, and therefore he was discharged to embrace the Secretaries, as Judge Curtis upon his own recognizance, and we hear noth- showed in his extracts from the remarks that ing more of his great offense. Whoever heard were made at the time when the bill was passed; of such a proceeding as this intended to be and having shown, third, that if both these converted into a grave and terrible and awful propositions be incorrect, still there was no charge against the President of the United intent, so as to maintain the accusation that is States "or any other man?" [Laughter.] made upon the first article. I pass to the second Before I pass, Senators, from this view of article, and will endeavor to make my argument. the case, allow me to read an authority here, as brief as possible upon it. without comment, in support of a proposition The second article charges, in substance, which I assumed before you awhile ago as to that the President was guilty of a high misdethe force and effect of the long-continued usage meanor in office by delivering the letter of and practice of the Government and the uni- authority to General Thomas while the Senate versal interpretation of the Constitution. I was in session, without its advice and consent, should have read it before. Chancellor Kent, when there was no vacancy, and contrary to in the first volume of his Commentaries, page the tenure-of-civil-office act. In our answer 528, says: we show that a vacancy existed when the letter " A solemn decision upon a point of law arising in of authority was delivered; that the appointany given case becomes an authority in a like case, ment ad nterim was justified by long usage, becauseitis the highest evidencewhich we can have of the law applicable to the subject, and.the judges are though the Senate was in session; that the bound to follow that decision so long as it stands un- tenure-of-civil-office act was not violated, even misunderstood or miunless it ian be shown that tpartie law was if it is a constitutional law, because the notifiIf a decision has been made upon solemn argument cation to the Senate of the removal and the and mature deliberation,the presumption is in favor appointment of Mr. Ewing shows that there of its correctness, and the community have a right was no criminal intent, no design to prevent to regard it as a just declaration or exposition of the law and to regulate their actions and contracts by the Senate from the exercise of its concurrent it. It would, therefbre, be extremely inconvenient power in the appointment of a successor to 633 the man who was attempted to be remoied by be done or that any one should be defrauded the President. or injured. (1 Bouvier, 281,' 282.) The third article sets out the letter to Thomas, 2. The act entitled "An act to define and charges that he was appointed during the ses- punish certain conspiracies," approved July sion when there was no vacancy, and that this 31, 1861, was passed soon after the rebellion was a high misdemeanor in office. In our commenced. It provides-I am not reading answer we rely on the answer to the first arti- the act; for the sentences of these acts are cle; deny that Thomas was. "appointed" in very long, as are the sentences of most of the the sense of the term used there, and insist acts of Congress that I have read; I only read that he was only temporarily designated; that in connection the phraseology that pertains, as there was no intent to violate the Constitu- I think, to the particular matter charged-it tion or make a permanent appointment; and provides thatwe deny that there was no vacancy. Mr. Story " If two or more persons, within any State or Tersays, in the third volume of his CoIymmentaries, ritory of the United States, shall conspire together" saysectin 1,th th the Senate ar hisadtoave* *~ * by force, to prevent, hinder, or section 1553, that the Senate are said to have delay the execution of any law of the United States," protested against the creation and appointment * * * * "each and every person so offendof ministers to Ghent, made during recess; ing shall be guilty of a high crime," &c. that on the 20th of April, 1822, they held that On this statute and the fourth article-for I the President could not create the office of wish to run over them as rapidly as I can-I minister and make appointments during the remark, recess, and that- 1. That it is doubtful whether the word "By vacancies they understood to be meant vacan- Territory," as was argued by Judge Curtis, cies occurringfrom death, resignation, promotion, and embraces the District of Columbia acquired removal. The word'happen' had relation to some after the Constitution, according to Scott vs. casualty not provided for by law." Sandford, 19 Howard, 615 - 2 Story on the ConIf the Senate are in session when an office is stitution, 196; the United States vs. Gratiot, created and no nomination is made, the Presi- 14 Peters, 537. dent cannot fill the vacancy (for there is none) 2. The Constitution, article one, section during the'recess; and upon that question eight, clause seventeen, confers the power to there is, as already shown, some difference of acquire a district not exceeding ten miles opinion. square, and does not use the word " Territory," The fourth article charges the President with so far as I know, in reference to the District conspiring with Thomas and other persons of Columbia, or the district that was to be unknown with an intent, by intimidation and acquired under that provision of the Constithreats, unlawfully to hinder and prevent Stan- tution. ton from holding the office, contrary to the act 3. The article does not charge that the act of July 31, 1861, and the Constitution, and was done "by force," but uses the words "incharges that in this he was guilty of a " high timidation and threats," without setting out crime in office." It is not necessary for me to the threats. Although we d6 not insist here do more than to refer to the answers in con- upon the technicality that it is required in a nection with these charges, and make an declaration or an indictment, yet upon any occasional passing remark upon some of them. principle of correct pleading there ought to be The answer contains a general and specific enough alleged at least to show what is the denial; protests that Mr. Stanton was not Sec- offense that the party is charged with, and to retary; that the act was done to try Mr. Stan- bring the offense within the terms of the stattQn's right; that there was no intimidation or ute, which, as I say, is not done. threats, either to prevent Stanton or to induce 4. It charges that the obiect was to prevent Thomas, by such means, to obtain the office; Stanton from holding the office of Secretary that Mr. Thomas proceeded in a peaceful of War, but does not allege how this was done manner; that Stanton still retains undisturbed to prevent, hinder, or delay the execution of possessinl; and that the fourth article charges any law of the United States. It does not set no agreement with Thomas to use threats, and out or refer to the tenure-of-civil-office act. does not state the threats. 5. I maintain, without dwelling upon the Upon this article I have to say: 1. "Con- argument, that there is no proof of conspiracy spiracy at common law is an agreement between so as to let in Thomas's declarations, accordtwo or more persons to do an unlawful act, or ing to the principle stated in Roscoe, 414, 417. an act which may become in the combination 6. There is no proof of intimidation and injurious to others." (1 Bouvier, 281.) "The threats to Stanton. indictment must show that it was intended to 7. There is no pretense of a high crime in effect an unlawful purpose, or a lawful purpose office as charged in this fourth article. by unlawful means." (Wharton, 669; Roscoe, 8. Sergeant Talfourd says a conspiracy is 406.) In 3 Burrowe, page 1321, it was held that more difficult to be ascertained precisely than conspiracies may endanger public health, vio- any other offense for which an indictment late public morals, insult public justice, destroy liesthe public peace, or affect public trade or busi- "An indictment against an officer ofjustice "ness. It is not necessary that any act should And this is a mere repetition, with slightly `234 -different phraseology, of a principle I relied 7.'A mere conspiracy to prevent the execuon a while ago — tion of the act of 1861 is not indictable. It "'An indictment against an officer of justice for must be a forcible conspiracy, or a conspiracy -misbehavior in office must charge that the act was to act by force.,done with corrupt, partial, malicious, or improper r'he sixth article, which I shall consider motives, and, above all, with aknowledge that it was briefy, charges that the President did unlaww:rong."- Wharton, 733; Roscoe, 804.Lorezo Thomas by force The fifth article charges an unlawful con- to seize, take, and possess the property of the spiracy with Thomas and others unknown to United States in the Department of War, then -hinder and prevent the execution of the tenure- in the custody of Stanton, contrary to the act.of-civil-office act, and attempting to prevent of July 31, 1861, and with intent then and there Stanton from holding the office of Secretary to violate " an act regulating the tenure of cerof War. In our answer we deny the charge tain civil offices," and that he was thereby in its own terms; -refer to the answer to the guilty of a "!high crimein office." The:denial tfourth article; deny that Stantori was Secre- to this article is brief and general. It denies.tary; and except to the sufficiency of the fifth that Stanton was Secretary; denies the conarticle as not showing by what means or what spiracy and unlawful intent; and refers to ~agreement the alleged conspiracy was formed former answers. Thefirstsection of the conspirtor carried out. acy act of 1861 declares that — In regard to this fifth article I maintain: "If two or more persons within any State or Terri1. As to indictments for conspiracy, one tory of the United States shall conspire together " * person cannot be convicted. It must be by * * * by force to seize, take, or possess unless charg ed "wit persons u n any property of the United States againstthe will or'two, unless charged' with persons unknown;" contrary to the authority of the United States," o and for that I refer to Wharton, 693, though * * * "each and every person so offending that proposition is doubted by Roscoe in his shall be guilty of a high crime," &c. Criminal Evidence, 418. He says that the On this act and article I argue: record of acquittal of one is evidence for 1. That the President is not "a person" another. within the meaning of the act, ant that official 2. The tenure-of-civil-office act of March 2, delinquency is always.appropriately designated. 1867, contains no provision as to " conspiracy." 2. He is Commander-in-Chief of the Army 3. The fifth section makes it a high misde- and Navy, may recommend laws, command the imeanor to accept or hold any employment con- Army and Navy and the militia when called trary to its provisions, &c. And the sixth see- into active service, require opinions in writing tion makes every removal, appointment, or from his Cabinet officers, and he is required to employment contrary to the provisions of the take care that the laws be faithfully executed. act a high misdemeanor. 3. From these powers it results that the De4. No force is:charged in this article under partment of War and the Secretary are under the act of 1861. his control, and that hecannot be charged with.5. We say that no conspiracy is proved. seizing a thing which he had the right to take There is no agreement between the President or to control by means of his authority over and General Thomas to do any unlawful act the Secretary of War. whatever. The President, in virtue of his 4. The article does not charge that he atpower as President, appoints Mr. Thomas, or tempted to seize, take, and possess the property attempts to appoint him, to the office of Secre- "against the will or contrary to the authority tary of War ad interim. He does not direct of the United States," so as to bringthe crime that any force shall be used. He does not within the definition of the act of 1861. direct that any unlawful act shall be done. The seventh article charges the President All that he does is simply to make the appoint- with conspiring with Thomas unlawfully to ment, and he does it with a view, as you may seize, take, and possess the property of the infer from all the testimony in the case, of United States in the. Department of War in having the question judicially settled. the custody of Stanton, Secretary for the DeSomething was said by one of the Managers partiment, with intent to violate the act reguabout General Sherman's testimony in this lating the tenure of certain civil offices, as a connection. General Sherman, in his testi- "high misdemeanor in office." The answer.ony, spoke of the thought of.force having denies.and negatives the terms of the charge, crossed his own mind when he was reflecting refers to former answers, and alleges that the about what it might.be necessaryfor him to do; allegations are insufficient. but when he was examined the second time, he I scarcely think any argument is necessary distinctly and explicitly acquitted the Presi- upoqn this seventh article, though I will say dent of the United States of ever having inti- briefly that I do not see any violation of the mated-to him any design or purpose whatever President's oath of office in this or any other.to employ force in the ejection of.Mr. Stanton case; that, for the.reasons already indicated, -from the office of Secretery of War. in view of the authorities which have already 6. We say on this fifth article that if the been read, there was no conspiracy; that the tenure-of-office act is unconstitutionalno mis- intent to seize, take, and possess the property demeanor can arise out of it. in the W ar Depwatment is not.an offense within 635 the tenure-of-civil-office act; that Thormas's and that that would be a sufficient protection declarations are no evidence of the conspiracy, to him. as shown in Roscoe, 414, 417. Mr. Starkie The ninth article takes us into a somewhat says that mere detached declarations and con- different field; and I believe when we get there fessions of persons not defendants, not made we part for a season at least with Mr. Stanin the prosecution of the objects of the con- ton. The ninth article charges the Presidernt spiracy, are not evidence even to prove the with instructing Brevet Major General Emory existence of a conspiracy. thatapart of the act passed March 2, 1867, In reference to the eighth article, which entitled "An act making appropriations," &c., charges that the President committed and was and especially the second section thereof, guilty of a high misdemeanor in issuing and directing that all orders from the President deliveringto Thomas a letter of authority "with shall be issued through the General of the intent unlawfully to control the disbursements Army, which had been promulgated:by general of the moneys appropriated for the military orders for the government of the Army of the service.and for the Department of War," con- United States, was unconstitutional, with intent trary to the act regulating the tenure -of certain to induce Emory, as commander of the departcivil offices, without the consent of the Senate, ment of Washington, to violate the provisions while the Senate was in session, and there of said act, and to obey the orders of the Presbeing no vacancy, the answer admits the issu- ident, and also with intent to violate the act ance of the letter of authority, but denies any regulating the tenure of civil offices, and to unlawful intent; insists that there was a va- prevent Stanton from holding the office of Seecancy, and that his object was to bring the retary of War. question to a decisionbefore the Supreme!Court. The answer to this ninth article sets out, in Upon this article, I remark: 1. There is no substance, the note of the 22d of February, provision in the tenure-of-civil-office act against requesting Emory to call, the object being to "an intent unlawfully to control the disburse- be advised as to the military changes made ments of the moneys appropriated for the mil- in the department of Washington which had itary service and the Department of War," not been brought to the respondent's notice. and no offense can be lawfully imputed of-such Emory called respondent's attention to the an intention. second section of the appropriation act.. Re2. Under the constitutional provision that spondent said it was not constitutional. The the President shall " take care that the laws conversation is stated, and you.have seen that be faithfully executed," the President may there is no substantial difference, as I undermake and repeal Army rules and regulations stand it, between the conversation as set out as to pay for extra service, there being no in the President's answer and the conversalegislation on the subject, and he may law- tion as stated by General Emory himself. The fully exercise a general supervision and con- President says that he did not order or request trol over the acts of the Secretary and other Emory to disobey any law; that he merely exsubordinates as to the disbursement of moneys, pressed an opinion that the law was in conas was determined by the Supreme Court of fiict with the Constitution; and General Emory the United States in the case of the United sustairs that to all intents and purposes, for, States vs. Eliason, 16 Peters, 291,; 14 Cur- when the subject was introduced, General Emtis, 304. ory interrupted the President, and called:his *3. The President's powers, as declared by attention to this appropriation act. the Supreme Court of the United States, time I have to say in reference to this-ninth article, andl again, are such as we maintain that no that the -Constitution, article two, section two, offense can be predicated of these acts. With- with which you are all familiar, provides that out citing all the decisions, I refer to the case " the President shall be Commander-in-Chief of.of Wilcox vs. Jackson, 13 Peters, 498, where the Army and Navy ofrthe United States and of it is said that the President acts in many cases the militia ofthe several States when called into through the heads of Departments, and the the actual service of the United States." The Secretary of War, having directed a section of object of this provision, without turning to the land to be reserved for military purposes, the cases and taking up your time in reading them, court presumed it to have been done by direc- as is stated in 1 Kent, 283; 8 Eliot's Debates, tion of the President, and held it to be:by law 103; Story on the Constitftlon, sections 1491, -his act; which, by the way, if I deemed -it 1492; and 5 Marshall's Life of Washington, necessary, would be a very good authority te pages 583 to 588, was to give the exercise:df comment upon, in answer to the argument of -power to a single hand. In Captain Meigs's cash the honorable Managers, that no implication Mr. Attorney General Black-and I presume results.in favor of the powers which are con- from the eulogy passed upon Mr. Attorney Getferred upon the President under the Constitu- eral Black by the honorable Manager yesterday, tion. There is a case where, to all intents and his opinion now, at any rate, ought to be a very purposes, the Supreme Court enforced the doc- authoritative opinion-in 9 Opinions, 468, says: trine of implication in his favor,-and held that "As Commander-in-Chief of the Army. it is your it would be presumed that the Secretary had right to decide, according to your.judgment. what,acted by direction of the President himself, officer shall perform any particular duty, and as the 636 supreme Executive Magistrate you have the power I have not brought in newspapers here, of appointment. Congress could not, if it would, Senators, and I do. not intend to bring them take away from the President, or in any wise dimin- ish the authority conferred on him by the Constitu- in, acts that I am about to state tion." are so fresh in your recollection. Without Mr. Story, in his Commentaries, volume three, going into any minutie'of detail, it is enough section fourteen hundred and eighty-five, quot- for me to say, in general terms, that on the ing from the Federalist, No. 74, says that- manifestation of this unfortunate difference, "Of all the cases and concerns of Government, for, no matter who is right or who is wrong the direction of war most peculiarly demands those about it, it is an unfortunate thing that there qualities which distinguish the exercise of power by is a difference of opinion between the Chief a single hand. Unity of plan. promptitude, activity, Executive of the nation and the Congress, or and decision are indispensable to success; and thesengress, or can scarcely exist except when a single magistrate is or any part of the Congress, of the United intrusted exclusively with the power." States; it is a matter to be regretted that such In section fourteen hundred and eighty-six, a difference of opinion exists among you; but he says: when this correspondence occurred, when these " The power of the President, too, might well be resolutions were offered in the Senate and in deemed safe, since he could not of himself declare the House, if my memory does not fail me, war, raise armtes, or call forth the militia, or appro- and I do not think it possible it can in the priate money for the purpose; for these powers all short interval of time hat has elapsed, the belong to Congress." short interval of time that has elapsed, there Chancellor KIlent, in his Commentaries, page was telegram upon telegram, offer upon offer, 282, says: made on the one side to Congress to support " The command and application of the public force them, and on the other side to support the to execute law, maintain peace, and resist foreign President. invasion, are powers so obviously of an executive The Grand Army of the Republic-the' G. nature and require the exercise of qualities so char- A R."-seemed to be figuring upon a large acteristical of this department that they have always been exclusively appropriated to it in every well- scale, and if there had not been the exercise organized Government upon the earth." of a very great prudence on the part of ConHe shows the absurdity of Hume's plan of gress and very great prudence on the part of giving the direction of the army and navy to the President of the United States himself we one hundred Senators; of Milton's, of giving should have had this country enveloped in the the whole executive and legislative power to a flames of civil war. I hope, Senators, no matsingle permanent council -of senators; and ter what opinion you may entertain upon that Locke's, to a small oligarchical assembly. subject; no matter who you may think was the In the case of the United States vs. Eliason, strongest-and God forbid that the country already cited, (16 Peters, 291,) it is said: should ever have any occasion to test who has " The President has unquestioned power to estab- the greatest military power at its command, lish rules for the government of the Army, and the the Congress of the United States or the PresSecretary of War is his regular organ to administer ident of the United States-I say, without the military establishment of the nation, and rules and orders promulgated through him must be re- entering upon such a question as that, which we ceived as the acts of the Executive, and as such are all ought to view with horror, do give to the binding on all within the sphere of his authority." President of the United States the poor credit Senators, I maintain that there is no proof of believing that he has some friends in this here to show, in the first place, that there was country, that there are persons in the different any unlawful or improper conversation between States who would have been willing to rally the President and General Emory. Mr. Man- around him. If an unfortunate military conager BUTLER, with that fertility of invention test had occurred in the country, how it would which he has so eminently displayed at every have resulted the Great Being above us only stage of this proceeding, argues that it was knows. either to bring about a civil war by resisting a All that I claim for the President of the law of Congress by force, or to recognize a United States is that whether he had few or Congress composed of rebels and northern many forces at his command, your President, sympathizers, that this conversation was had. as I told you upon the first day I came here, Now, let us look to the circumstances under has manifested a degree of patriotic forbearwhich the conversation toolkplace. Mark you, ance for which the worst enemy he has on the an angry correspondence with General Grant face of the earth ought to give him credit. If had occurred from the 25th of January to the he was a tyrant, if he was a usurper, if he had 11th of February, 1868. The President had the spirit of a Csesar or of a Napoleon, if his charged, or intimated, at least, in the course object was to wrest the liberties of this counof that correspondence, that he regarded Gen- try, your President could very easily have eral Grant as manifesting a spirit of insubor- sounded the tocsin of war, and he could have dination. The removal of Mr. Stanton took had some kind of a force, great or small, perplace on the 21st of February. The Senate's haps to rally around him. But, instead of doing resolution of the 21st of February, disapproving that, he comes here through his counsel before of the removal of Stanton, was sent to the Pres- the Senate of the United States; and although ident and the President sent a formal protest he and his counsel, or at least I as one of or message in response on the 24th of February. them-I do not undertake to speak for the 637 other gentlemen-honestly believe that under scope of the powers conferred upon him by the Constitution of the United States organiz- the Constitution, that he should send for this ing the Senate and the Hopcse of Representa- officer, that he should inquire what was the tives, the House of Representatives as at pres- meaning of these new troops that were brought ent constituted, with fifty Representatives from into the city of Washington. ten of the southern States absent, has no power He had a right to do it, and the fact that he to present articles of impeachment; and al- did do it is no evidence of any unlawful intenthough he believes, as I do most conscientiously, tion or design upon his part; but it proves that that the Senate, as at present constituted, with he was endeavoring to understand, as it was twenty Senators absent from this Chamber who his duty to understand as the Commander-inhave a right to be here, has no power to try Chief of the Army of the United States, what this impeachment, he makes no objection to was the meaning of the introduction of these your proceeding to try him. I shall not argue forces. How did he know but that General the question I have just suggested, for, in view Grant in the progress of this quarrel might of the almost unanimous vote against the res- attempt to assume the powers of a military olution of Senator DAvIs, I think it would be dictator? How did he know but that General an idle consumption of time to do so. I only Grant might be endeavoring to envelop, to advert to it so that I may place upon record surround him by troops, and to have him arthis fact. rested? Had he not a right to send for an I say that, although the President and one, officer? Had he not a right to inquire into at least, of his counsel entertained this opin- the introduction of these military forces here? ion, and doubt whether the House of Repre- When he found that it was only a trivial force, sentatives, as organized, has the right to pre- when he found that there was no particular sent the charges, or the Senate, as organized, design on the part of anybody to violate the has the right to try them under the Constitu- Constitution of the United States, his inquiry tion, which says that " no State shall be de- stopped; no effort was made upon his part to prived of its equal suffrage in the Senate," yet gather an Army or to rally a force to go to war the President, instead of resorting to war, the with the Congress of the United States, but he President, instead of resorting to any of those retains counsel, comes here'by his counsel, acts of arbitrary tyranny and oppression which and in a peaceful manner submits himself to are resorted to by the ambitious man such as the judgment of the American Senate. I said he is described to be, has come here; and it to you on the first day that his counsel apwhile he states the objection, through me, at peared here, that the history of the whole least, as one of his counsel, yet, in a peaceable world does not furnish anything in moral submanner, in a quiet manner, he submits this limity and grandeur surpassing the trial in question, as well as all others, to be judged which you are now engaged. by the Senate of the United States in its pres- I said then, and I repeat it now, that I was ent organization. And will you not at least delighted and rejoiced to see that this unforgive him credit for some degree of forbear- tunate controversy was taking this turn. I reance? When gentlemen talk of his being a gretted that any such controversy had origintyrant and a usurper, when they talk of his ated, regretted that there was any such unhappy object and purpose in sending for General difference of opinion between the Congress of Emory, Senators, do they prove any improper the United States and the President; but in design upon his part? None on the face of view of these red-hot dispatches that were pourthe earth. - ing in upon both sides from every quarter of kn this state of things, when the whole coun- the United States, I did felicitate my country try was agitated and excited; when men's and I felicitated you upon the thought that the minds were aroused everywhere in the unfortu- President of the United States had come here -nate division of parties in the United States to through his counsel and that he was willing to such an extent that they were offering troops abide the arbitrament of the American Senate, on the one hand to sustain Congress and troops the sworn men of the Constitution, the judges on the other hand to sustain the President, and of your own constitutional powers. You judge when the General of the Army and the Presi- as any other court judges that undertakes to dent had differed in their opinions, I maintain determine the question of its jurisdiction. Let that the very fact that the President has done you judge for yourselves whether you have the nothing of a military character shows that h6 constitutional power to try him. He comes had no intention to do the acts which are im- before you in this peaceable and quiet mode; puted to him. But when he saw these dis- and I maintain, Senators, that he is not justly patches, when he knew that there was a differ- chargeable with the imputations that are made ence between General Grant and himself, when against him, and that his conduct is a full he knew that there were persons sending dis- answer to the entire argument that has been patches through the newspapers, Governors, it made by the gentlemen upon the other side. was said, and leading men in the various States, They may impute motives; they may say just as to how they would stand up to the Congress as much as they please about the conversation of the United States in this controversy, it was with General Emory or anybody else; the natural, right, proper, within the legitimate President has brought no force here; he has 638 not attempted in any manner whatever to over- speech, and to tolerate the licentiousness of awe Congress; he has not attempted in any the press, than it is to impose such restrictions manner whatever to plunge this country into a as are imposed in other countries. Public revolution; he has acted peaceably and quietly, opinion, as a general rule, will regulate and con-. and the imputations that are made against him, trol the indecency of speech, and it will reguas I insist, have no just foundation in the facts late and control the licentiousness of the press. of the case. All the testimony shows-I shall If public opinion does not do it as a general not go into it in detail-that the President of rule, in a great many cases the arm of the law the United States had it in view to have this is long enough and it is strong enough to apply question settled in a peaceable and amicable any corrective that may be necessary. mode, that he contemplated no force, but de- But the American people love to exercise the signed that it should go before the Supreme freedom of speech; and let it be known and Court. remembered always that great as the powers of The tenth article charges the President with Congress may be, great as the powers of the making intemperate, scandalous, and inflam- President of the United States are, there isin matory harangues and uttering loud threats a technical sensea body of men who have ever and bitter menaces against Congress and the been admitted by all politicians and public men laws of the United States, which are particu- in the United States to be the sovereigns, the larly indecent and unbecoming in the Chief masters of both; that is, the people; they are MIagistrate of the United States, and have the common constituents of Congress and of brought the high office of President into con- the President. Members of Congress have the tempt, ridicule, and disgrace. The charge is right to speak and to talk with perfect freedom that he did this and was guilty of a high mis- of the conduct of the President, and, as we demeanor in office; and the article specifies maintain, the President in turn has the right three speeches-one at the Executive Mansion, to- "I carry the war into Africa," and to speak one at Cleveland, and one at St. Louis. about Congress whenever he is assailed; and A great deal of testimony has been taken if he does this in his private intercourse with about those speeches. I might make an argu- the citizens of the United States, not in official ment as to whether they are faithful represent- intercourse, he has just the same right to do it ations of what the President said or not. I that any other citizen has in our Government; shall not weary your patience after having and whenever you destroy the right of the delayed you so long with any argument upon President of the United States to defend himthat point. self against charges that may be made against The answer says that the first amendment him either in Congress or out of Congress, then of the Constitution provides that " Congress you put the President at the feet of Congress shall make no law abridging the freedom of and you destroy that independence which was speech or of the press."' Freedom" is de- intended by the Constitution to be secured to fined to be personal and private; I liberty" each of the coordinate departments of the Govto be public. We say, therefore, that this is ernment in their appropriate sphere. a personal right in the President as a citizen. It was intended that the legislative departI say further that his speeches were not offi- ment should be independent here and within cial, like his communications to Congress, but the circle of its appropriate duties; that the were private and personal and in answer to-the judicial department should be, in like manner, call of his fellow-citizens. independent in: the exercise of the functions Ten years ago it would have struck the and powers properlyand appropriately belongAme'rican people with astonishment that such ing to it, and that the President of the United a charge should be preferred against the Pres- States, as to all executive matters, should be ident of the United States. Almost from my equally independent, both of the judiciary and boyhood down to the commencement of the of the Congress of the United States; and to war I have heard politicians talking time and hold otherwise is to enable Congress, as've again about what was known as the old sedition insist, to monopolize all the powers of the law; and if there ever was anything that stunk Constitution and to become ultimately a desin the nostrils of the American people it was potism such as never was contemplated by the what was called the sedition law, the object of fathers. which was to prevent the publication of matter Now, Senators, I do not intend to go mithat might affect the President or the Govern- niutely into this question, for I desire to close ment of the United States. We in this coun- my remarks this evening, if you will have the try like to exercise the freedom of speech. Our patience to hear me to a close, and I shall try fathers guarantied it to us in the Constitution, to close them at as early a period as I can. I do and, like the liberty of the press, which is also not intend to go minutely into the discussion another cherished right dear to every Am erican of this question; but I have to say in regard citizen, we like to have the largest liberty in to the President of the United States just as I the exercise of the-right. The American peo- said in regard to the House of Representatives: ple have been accustomed to it ever since they he is a mortal man; he is made of flesh and were a nation; and it is a great deal better to blood. The President of the United States tolerate even impropriety and indecency b6t has temper, passion, just like any other man. 639 When things are said about him in Congress or people, who are the common constituents of anywhere else, pray let us know why it is that both? Who would deny to any Senator or he may not defend himself. I believe it was any Representative the right when he goes the 31st of January, 1866, but I may be mis- home, or when he goes anywhere else within taken in the date, when the venerable leader, the limits of the magnificent territory that now as he is called, of the House of Representa- constitutes the United States of America-who tives, who had opposed the President s nomin- would have the assurance and the presumption ation at Baltimore, and who, if I am not mis- to deny the power of any one of you, either in taken in the history of the country, had insisted what is ordinarily called a stump speech or in there that the President was out of the United any other mode of communication, to assail the States, who never did favor him under any conduct of the President of the United States. circumstances whatever, spoke in the House Why, Senators, this very thing of the freedom of Representatives of Charles I. of discussion, although in heated political conThis was a few days before the President tests it is often carried to an improper extent, made one of the speeches that he has made in is the very life and salvation of the Republic. the course of this controversy. The President This thing of having parties in our land, almade a speech at the Executive Mansion on though party spirit seems to have culminated the 22d of February, 1866, in which he alluded in some of those dangers which were appreto-that, and in which he treated it as a sort of hended by Washington in his Farewell Adinvitation to assassination. That imputation, dress, and having parties a little more equallyso far as I know, Was never noticed by the divided than they have been within the last venerable Manager in the House of Represent- three or four years in the United: States, is atives at all. Other members of Congress essential to the preservation. of the- liberty of assailed him. You had the right to do it, a the American citizen. When parties are nearly perfect right to do it, in the exercise of that equally. balanced they watch each other; and freedom of speech and of that power of delib- they are sedulously cautious in regard to anyeration that belonged to you, a perfect right to thing that may violate the Constitution of the say anything you pleased of the President of United States. the United States. I will not, as I have said, go: minutely into But when these things were said by members the testimony on this matter; but I believe it of Congress, when they were published and has been proved, in regard to every one of those circulated all over the land, spread broadcast occasions, that it was an occasion sought not in the newspapers, what is there in the Con- by the President, but.by others. It is fresh in stitution,. what is there in the position of the your recollection that-when Mr. Senator JOHiNPresident of the United States, that ties his SON and others called upon the President at the hands and prevents him from exercising the Executive Mansion they called upon him in ordinary right of self-defense that belongs to their character of citizens, and he replied to any other citizen of the land? I admit that them as he had a right to reply to them. When the President of the United States in a cornm- he went to Cleveland the proof shows that he did munication made officially to Congress ought not desire to do anything more than to make a to observe proper decorum, that he ought to brief salutation to the people and leave them, observe that amenity of expression, if I may but he was urged, by his: friends to do more; use such a phrase, as should be employed in and I think it very likely, Senators, from my the intercourse between one department of the knowledge-and I am appealing to your own Government and another; but I maintain that knowledge of the manner in which things are when Andrew Johnson makes a tour from done in our country-I think it very likely, from W'ashington city to Chicago and Cleveland and the circumstances which are detailed here in St. Louis and Cincinnati, and returns to the evidence, and especially from the report of the city of Washington1 he is nothing but a private speech itself, that there was a mob there at citizen. Cleveland, ready cut and dried, and prepared To be sure, he is President of the United to insult and to assail the President of the States; but nothing in the Constitution, noth- United States in the manner they did do and ing in the laws of the land, undertakes to reg- to prevent him, if possible, from being heard. ulate his movements under such circumstances. So, when they gave him provocation, he reHe goes as a private citizen; and when he plied just as any other man would do and just goes, if he is called out to make a speech as as any other man had the right to do; and if he was called out to make it by the people, he did make use of strong expressions in reand he chooses to answer the call, and if some gard to the Congress of the United States, his severe philippics have been uttered against him expressions were not stronger than he had the by members of Congress, and he chooses to right to use. Without discussing the question answer themn; if members of Congress have who was right or who was wrong, and insisting insisted in the strongest sort of terms on their as I do upon the freedom of speech, I maintain right to hold this doctrine or that doctrine or this. So when he went to St. Louis he was the other doctrine, why may not the President again urged by his friends, according to the of the United States answer these things in testimony, to go out and address the people. the same way, appealing as he does to the He had no desire to do so; he was urged 640 and urged again by his friends, under whose entitled to a judgment or verdict of not guilty control he had placed himself, to go there and upon this. But we say that none of the acts answer their call; and is it not natural in a charged amount to a high crime or misdefree Government like ours that the President meanor; that he had the right to deny the of the United States should associate with the authority of Congress as he had previously people; and when they make a call on him to done in his messages. I have them here, but address them is there anything improper and I shall not turn to them. unreasonable in his doing it? Andif when he Time and again the President, in his veto addresses them a prepared mob Intends to in- messages especially, has asserted, in his comsult him i if they excite his passions, as the munications to Congress, his views and opinpassions of any man would be excited under ions as to the rights of the southern States the circumstances, and he answers them a little that are excluded from representation; and intemperately and somewhat in their own way, although the phraseology is a little more courtly speaks about the Congress of the United States and elegant in the messages than it was in the pretty freely, pray tell us what sort of treason several speeches which have been referred to, is committed? Does the Congress of the United yet, so far as the substance is concerned, the States hold itself up so far above the Presi- President, in almost every one of those comdent and the people of the United States as to munications, has asserted his belief that the say that your acts are not subject to criticism southern States are entitled to representation, either by the President or by anybody else that and that they ought not to be excluded by Conchooses to criticise them? Itell you, Senators, gress. we have not got that far yet. The President, We say that none of the acts charged amount any citizen of the United States of America, to a high crime or misdemeanor; that he had from the President down to the humblest citi- the right to deny the authority of Congress as zen, has the right to criticise any act of Con- he -had previously done in his messages; that gress that he chooses to criticise, and he has he had the right, as President, to instruct Genthe right to speak of any act of Congress in eral Grant, who is his subordinate, bound to any mode that he sees proper to speak; and obey his commands, to disobey a law which he if the people will tolerate it there is no law believed to be unconstitutional, or test its vaand nothing in the Constitution to prevent it; lidity in the courts of law; that he had the right and if this power of free speech, as I said be- to remove Stanton and to order Thomas to fore, is improperly exercised, then the correct- take possession of the War Office; that he had ive must be in the people themselves. So I the right to differ in opinion with Congress, say that one of the greatest rights secured to and to answer the telegraphic dispatch of Govthe people under the Constitution of this coun- ernor Parsons as he did. try would be invaded if this article was sus- I ask, have not members of Congress during tained. all Administrations, commencing with the AdThe eleventh article charges that on the 18th ministration of General Washington, been acof August, 1866, the defendant asserted that the customed to assail the measures of every PresThirty-Ninth Congress was'not a lawful Con- ident, both in Congress and out of it? And gress, denied that it had the right to recom- may not the President vindicate and endeavor mend constitutional amendments, and in pur- to sustain his own views before the people in suance thereof removed Stanton on the 21st opposition to Congress? And can he not with of February, 1868, to prevent the execution of propriety say to members of Congress when the tenure-of-civil-office act, and to prevent they oppose his views, "You are assailing the the execution of the Army appropriation bill, executive department," with just as much pro. and prevent the execution of the act for the priety as they can say that he is assailing the more efficient government of the rebel States. legislative department? The obligation to supThe honorable Manager, Mr. BUTLER, referred port the Constitution is equally obligatory on to the President's admission that he attempted both, and both have the right under this and to prevail on General Grant to disobey the all other circumstances to appeal to their comlaw, to his admission that he intended from mon sovereigns, the people, with a view of the first to oust Mr. Stanton, his order to Grant procuring a final and authoritative settlement not to recognize Stanton, his order to Thomas of the controversy. to take possession, &c. In answer to all this Senators, I had intended to notice, and I will I have to say that the honorable Manager ad- now, with your indulgence, very briefly notice, mits that if the Senate shall have decided that one or two of the observations of the honorall the acts charged in the preceding articles able Manager who last addressed you. He said are justified by law, then so large a part of the that the President's object was to obtain conintent and purpose with which the respondent trol of the Army and Navy, and regulate the is charged in this article would fail of proof elections of 1868 in the ten southern States, so that it would be difficult to say whether he as to let the rebels exercise the elective fran: might not with equal impunity violate the laws chise and exclude negroes from voting. What known as the reconstruction acts; and as we authority in the proof in this case had the honhave shown that the President is entitled to an orable gentleman upon which to make that acquittal on the other charges, he must be assertion? He said that the South had been 641 given up to rapine, bloodshed and murder by States, is familiarwiththe fact thata greatmany the President's policy. Why,'Senators, under cases are put in the law books, and especially whose control is the South? Is not the South in works on evidence, rather as a caution to under the control of Congress? Is it not under judges and jurors than anything else, as to imthe control of Army officers appointed by the proper and unjust verdicts that have been renPresident of the United States in pursuance of dered in times past. Every lawyer knows that an act of Congress which he had attempted to cases are reported in the books where men, veto? And who was responsible for this? I especially upon circumstantial evidence, have live in the South; and the statement which'I been tried and executed for murder and other am about to make will go just for what you offenses, and who it afterward appeared upon a think it is worth, much or little; but my ob- more careful investigation, were not guilty of servation ever since the close of the war is, the offenses imputed.to them. These cases are that although there has been a bad state of not put in the books for the purpose of frightthings in some portions of the southern States, ening judges and juries from their propriety, nine tenths of the murders and assassinations but they are put in for the purpose of causing that have been reported in the newspapers and them to exercise a salutary degree of caution in talked about here in Congress are made to the powers which are conferred upon them. So order, got up for political effect, with a view without going oveAhese things in detail, I may of keeping up agitation and excitement, and say that I think even the Senate of the United that there is no warrant or foundation for the States may look back upon the history of the charge that the President has given up the world for the purpose of deriving the same inSouth to any such condition of affairs. structive lessons that are intended in law books It has been said, Senators, that the Presi- to be impressed upon the courts and juries of dent takes the place of Charles I and Stanton the land. Without undertaking to travel along the place of John Hampden, I am glad that the whole course of history, some three or four the Manager did some justice to Mr. Stanton examples have occurred that are not unworthy before he got through. He-placed him in the of a passing notice before I take my seat. condition of a " serf," as I stbwed you awhile Without going into the details, every Senator ago, and I am glad that he wound up with Mr. is fully informed of the account which has Stanton by showing or asserting that he was been transmitted to us in history of the murentitled to the reputation of John Hampden; der of Caesar by Brutus; and for nearly twenty but as to the President being Charles I, or as centuries it has been a question whether that' to his assuming any powers that are not war- act was an act of patriotism, and whether it ranted by the Constitution of the country, I.was justified or not. The execution of Charles have endeavored in my feeble and imperfect I is another of the' historical problems which way to show you that he is not guilty. have probably not been settled, and never will Senators, many other things might be said; be satisfactorily settled in the opinions of manbut I have already occupied your time much kind. Some regard Cromwell as a patriot, as longer than I had designed to do, or would a man animated by the purest and most corhave done if I had had a little more notice rect motives; others look upon him as being beforehand that I should be permitted to ad- an ambitious man, who designed to engross dress you at all. I stated to you when I asked power improperly into his own hand. That for the privilege of addressing you that I had question still remains open. But these deeds no written speech, nothing but notes and mem- of violence which have been done in the world oranda which I had not an opportunity even have not always been followed by peace or to regulate or to put into something like order quiet to those who have done them. A few to address you. Therefore, what I have said short years after the execution of Charles I, has been said under some disadvantages. I the bodies of Cromwell and Bradshaw, and only regret that it has not been more worthily one or two others who were concerned in that said. Now, before I take my seat let me say execution, were, in consequence of a change to you., you, have this whole case before you. of public sentiment in England, taken from I say to you now toward its conclusion, as I their graves and they were hung in terror and said at its commencement, that a high and sol- in hate and execration by the party that came emn duty rests upon you, Senators of the into power. United States. I have the same faith now that Louis XVI was executed by the people of I have expressed ever since I undertook this France. Did that act give peace and quiet to case and that I expressed so fully yesterday. the French kingdom? No; it was soon folI do believe that confidence ought to be reposed lowed by deeds of bloodshed such as the world in the American Senate. I do believe that men never saw before. The guillotine was put in of your character and of your position in the motion, and the streets of Paris, it is said, litworld have the ability to decide a case impar- erally ran with human gore. Most of those tially and to set aside all party considerations who were concerned in the trial of Charles I in its determination. I believe it, and I trust were executed. Three of them came to Amerthat the result will show that the country has a ica and sought refuge in the vicinity of New right to believe it. Haven. They were compelled to hide themEvery lawyer, every judge in the United selves in caves. Their graves were not known C. 1. —41. 642 to those in whose midst they lived, or are but a moment, the bright escutcheon of the Amerilittle known. can Senate. Tke honorable Manager who These deeds of violence, done in times of addressed you on yesterday [Mr. BOUTWELL1 high party and political excitement, are deeds referred in eloquent terms to Carpenter's histhat should admonish you as to the manner in torical painting of emnancipation.- Following which you discharge the duty that devolves at an humble distance his example, may I be upon you here. This thing of being rid of the permitted to say that I have never entered the Chief Magistrate of the land in the mode that Rotunda of this magnificent and gorgeous Capis attempted here may be fraught with conse- itol when I have not felt as if I were treading quences that no man can foresee. I have no upon holy ground; and I have sometimes wished idea that it will be fraught with such conse- that every American sire could be compelled quences as those I have described; and yet by law and at the public expense to bring his deeds that are done in excitement often come children here, at least once in their early years, back in future years, and cause a degree of and to cause them to gaze upon and to study feeling which it is not, perhaps, proper for the statuary and paintings which, at every enme, on this occasion, to describe; it has been trance and in every hall and chamber and done a great deal better by a master hand, niche and stairway, are redolent with the hiswho tells us: e tory of our beloved country. Columbus study" But ever and anon of grief subdued, ing the unsolved problem of a new world, and There comes a token like a scorpion's sting, the white man and Indian as types of the march Scarce seen, but with fresh bitterness imbued, of civilization, arose attention and reection And slight withal may be the things which bring of civlization, aro se attention and reflection Back on the heart the weight which it would fling at the threshold. Within, the speaking canAside forever: it may be a sound- vas proclaims the embarkation of the Pilgrim A tone of music-summer's eveh-or spring-h Fathers; their sublime appeal to the God of A flower, the wind, the ocean which shall wound, Striking the electric chain wherewith we are darkly oceans and of storms; their stern determinabound; tion to seek a "faith's pure shrine" among And how and why we know not, nor can trace the "sounding aisles of the dim woods," and Home to its cloud this lightning of the mind, But feel the shock renewed-nor can efface " freedom to worship God;" and the divine, The blight and blackening which it leaves behind." the angelic countenance of Rose Standish as God grant that the American Senate shall she leans, with woman's love, upon the shoulnever have such feelings as these. God grant der of her husband, and looks up, with wothat you may so act in the discharge of your man's faith, for more than mortal aid and duty here that there shall be no painful re- guardianship, so fixes and rivets attention, membrance, Senators, to come back on you inyourdyinghour. God grantthatyou may * That, as you gaze upon the vermil cheek, n your dying hour. God grant that you may The lifeless figure almost seems to speak." so act that you cannot only look death, but eternity in the face, and feel that you have And there is the grand painting that repredischarged your duty and your whole duty to sents Washington, the victor, surrendering God and your country. And if you thus act, his sword after having long before refused a you will, I am sure, act in such manner as to a crown-one of the sublimest scenes that command the approbation of angels and of earth has ever seen, presenting, as it nobly men, and the admiration and applause of the does, to all the world the greatest and best world and of posterity who are to come after us. example of pure and unselfish love of counMr. Chief Justice and Senators, you and try. Not to speak of other teeming memories each of you, personally and individually, have which everywhere meet the eye and stir the struggled through life until you have reached soul, as I sat a few days since gazing upward the positions of eminence you now occupy. It upon the group (Washington and the sisterhood has required time and study and labor and of early States) who look down from the topdiligence to do so; but, after all, the fame most height of the Dome, methought I saw which you have acquired is not your own. It the spirits of departed patriots rallying in misty belongs to me; it belongs to others. Forty throngs from their blissful abode and clustermillion American citizens are tenants in com- ing near the wondrous scene that is transpiring mon of this priceless property. It is not owned now; and as I sat, with face upturned, I seemed alone by you and your children. We all have to see the shadowy forms descend into the builda direct and immediate interest in it. What- ing and arrange themselves with silent but ever strife may have existed among us as a stately preparation in and around this gorgeous people; whatever of crimination and recrim- apartment. I have seen them, in imagination, mnation may have been engendered amid the ever since. I see them now I Above and all fierceness of party passion, yet in the cool mo- around us. There in the galleries, amid those ments of calm reflection every true patriot livingforms of lovelinessandbeauty, areMartha loves his country as our common mother, and Washington and Dolly Madison and hundreds points with just pride to the hard-earned repu- of the maids and matrons of the Revolution, tation of all her children. Let me invoke you, looking down with intense interest and anxious therefore, in the name of all the American expectation, and watching with profoundest people, to do nothing that may even seem to be solicitude the progress of the grandest trial of a stain upon the judicial ermine, or to dim, for the nineteenth century. And there, in your 643 very midst and at your sides, are sitting the to me the patient attention which I had little shades of Sherman and Hamilton, Washing- reason to expect, and I cannot, Senators, take ton and Madison, Jefferson and Jackson, Clay my seat without returning my thanks to you, and Webster, who in years that are past bent whether it be according to the usage of a court every energy and employed every effort to like this or not. build our own great temple of liberty, which On motion of Mr. TIPTON, the Senate, sitting has been and will continue in all time to be the for the trial of the impeachment, adjourned. wonder, the admiration, and the astonishment of the world. If there be joy in heaven over one sinner that repenteth, and if the shades of Dives and Lazarus could commune across the The Chief Justice of the United States took great gulf with each other, it is no wonder that the chair. the spirits of departed patriots are gathered to The usual proclamation having been made witness this mighty inquest, and that they are by the Sergeant-at-Arms, now sitting with you upon this, the most sol- The Managers of the impeachment on the emn of all earthly investigations. Behind the part of the House of Representatives and the Chief Justice I see the grave and solemn face counsel for the respondent, except Mr. Stanof the intrepid Marshall; and above, among, bery, appeared and took the seats assigned and all around us are the impalpable forms to them.respectively. of all the artists of our former grandeur!' Mr. The members of the House of RepresentaChief Justice and Senators, if you cannot tives, as in Committee of the Whole, preceded clasp their shadows to your souls, let me en- by Mr. E. B. WASHBURNE, chairman of that treat you to feel the inspiration of their sacred'committee, and accompanied by the Speaker presence; and as you love the memory of de- and Clerk, appeared and were conducted to the parted greatness; as you revere the names of seats provided for them. the patriot fathers; and as you remember the The CHIEF JUSTICE. TheSecretarywill thrilling tones of the patriot voices that were read the Journal of yesterday's proceedings. wont to speak "the thoughts that breathed and The Journal of yesterday's proceedings of the words that burned " with deathless love for the Senate, sitting for the trial of the impeachour institutions and our laws, so may you be ment, was read. enabled to banish from your hearts every vestige The CHIEF JUSTICE. The first business of prejudice and of feeling, and to determine this morning is the order proposed by the Senthis great issue in the lofty spirit of impartial ator from Vermont, [Mr. EDMUNDS.] The justice, and with that patriotic regard for our Clerk will read the order. present and future glory that ever prompted the Mr. EDMUNDS. Mr. President, at the reaction of the purest and best and greatest names quest of several Senators who desire to conthat, in adorning our own history, have illumin- sider the question, I move that the considerated the history of the world. And when the ation of the order be postponed until Monday day shall come-and may it be far distant- morning. when each of you shall " shuffle off this mortal Mr. DRAKE. Mr. President, I move that coil," may no thorn be planted in the pillow of the order be indefinitely postponed. death to embitter your recollection of the scene Mr. SUMNER. That is better. that is being enacted now; and when the time Mr. DRAKE. And on that motion I call shall come, as come it may, in some future age, for the yeas and nays. when your own spirits shall flitamongthe hoary Mr. EDMUNDS. So do I, Mr. President. col umns and chambers of this edifice, may each The CHIEF JUSTICE. The motion for inof you be then enabled to exclaim- definite postponement takes precedence of the " Here I faithfully discharged the highest duty of motion to postpone to a day certain; and upon earth; here I nobly discarded all passion, prejudice, that question the yeas and nays are demanded. and feeling; here I did my duty and my whole duty, The yeas and nays were ordered. regardless of consequences; and here I find my own Mr. CONKLING. I wish to inquire what name inscribed in letters of gold, flashing and shining, upon the immortal roll where the names of all was the motion of the Senator from Vermont? just men and true patriots are recorded 1" The CHIEF JUSTICE. The Senator from I do not know, Mr. Chief Justice, that it is Vermont moved to postpone until Monday; exactly in accordance with the etiquette of a the Senator from Missouri moves to postpone court of justice for me to do what I propose indefinitely; and the question now is upon to do now; but I trust that you and the Senate the indefinite postponement. will take the will for the deed, and if there is Mr. SHERMAN. I should like to have the anything improper in it you will overlook it. I order read. cannot close, sir, the remarks which I have to The CHIEF JUSTICE. The Clerk will make in this case, without returning my pro- read the order. found thanks to the Chief Justice and the Sen- The Chief Clerk read as follows: ators for the very kind and patient attention Ordered, That after the arguments shall be conwith which they have listened to me on this eluded, and when the doors shall be closed for deliberation upon thefinal question, the official reportoccasion. Imperfect as the argument has been, ers of the Senate shall take down the debates upon and lengthy as it has been, you have extended the final question, to be reported in the proceedings. ______ -~~~644 The question being taken by yeas and nays- that I am not so well to-day as I should like to on Mr. DRAKE'S motion, resulted —yeas 20, be; but I know the desire of the Senate to get nays 27; as follows: on with this argument, and I have, therefore, YEAS-Messrs.Cameron, Chandler, Conkling, Cor- preferred to come here this morning in the bett, Drake. Ferry, Harlan, Howard, Morrill ofMaine, condition I am and attempt to present an outMorrill of Vermont, Morton, Nye, Pomeroy, Ram- line, at least, of the views I have formed of sey, Ross, Stewart, Sumner, Thayer, Tipton, andof the views I have formed of Yates-20. the respondent's case. NAYS-Messrs. Anthony, Buckalew, Cragin, Davis, Since the organization of our Government Dixon, Doolittle, Edmunds, Fessenden, Fowler, Fre- we have had five trials of impeachment-one linghuysen, Grimes, Henderson, Hendricks, Howe,achmentJohnson, McCreery, Morgan, Norton, Patterson of of a Senator, and four of judges, who held their Tennessee Saulsbury, Sherman, Trumbull, Van office by appointment and for a tenure that Winkle, Vickers, Willey, Williams, and Wilson-27. lasted duringlife or good behavior. It has NOT VOTING —Messrs. Bayard, Cattell, Cole, Conness, Patterson of New Hampshire, Sprague, and not been the practice, nor is it the wise policy, Wade —7. of a republican or representative Government So the order was not indefinitely postponed. to avail itself of the remedy of impeachment The CHIEF JUSTICE. The question re- for the control and regulation of its elective curs on the motion of the Senator from Ver- oficers. Impeachment was not invented for mont to postpone the order pntil Monday. that purpose, but rather to lay hold of offices: The motion was agreed to. that were held by inheritance and for life. Mr. SUMNER. Mr. President, I send to And the true policy of a republican Governthe Chair an order which I desire to have read. ment, according to my apprehension, is to The CHIEF JUSTICE. The Secretary will leave these matters to the people. They are read the order. the great and supreme tribunal to try such quesThe Chief Clerk read as follows: tions, and. they assemble statedly with the single object to decide whether an officer shall Ordered, That the Senate, sitting for the trial of single object to decide whether an officer shall Andrew Johnson, President of the United States, will proceed to vote on the several articles of im- from office. peachment at twelve o'clock. on the day after the I may be allowed, Senators, to express my close of the arguments. regret that such a case as this is before you; Mr. SUMNER. If the Senate is ready to Mr. SUMNER. If the Senate is ready to but it is here, and it must be tried, and thereact on it fore I proceed, as I promised at the outset, to The CHIEF JUSTICE. The order is. for say what I may feel able to say in behalf of present consideration, unless objected to. the respondent. Mr. JOHNSON. I object. In the argument of one of the Managers the The CHIEF JUSTICE. Beingobjectedto question was propounded it lies over. Mr. SUMNER. Mr. President, I send to "IIs this body, now sitting to determine the accusation of the House of Representatives against the the Chair two additional rules, the first of President of the United States, the Senate of the which is derived from the practice of the Sen- United States or a court?" ate on the trials of Judge Chase and: Judge The argument goes on to admit: Peck. "If this body here is a court in any manner as conThe CHIEF JUSTICE. The Secretary will tradistinguished from the Senate, then we agree" read both of the additional rules proposed. * * * * "that the accused may claim the The Chief Clerk read as follows: benefit of the rule in criminal cases, that he may only be convicted when the evidence makes the case RULE 23. In taking the votes of the Senate on the clear beyond reasonable doubt." articles of impeachment the presiding officer shall call each Senator by his name, and upon eacharticle In view of this statement, and in view of proose the following question, in the manner fol- the effort that has been made by the Managers owmng: " Mr. -, how say you, is the respondent, in this cause, Ik, Senators, your atention,guiltyor not guilty as charged in the - article of impeachment?" whereupon each Senator shall to the. question, in what character do you sit rise in his place and answer "guilty" or " not guilty." on this trial? We have heard labored and,RULE 24. On Pi conviction by the Senate it shall be the duty of the presiding officer forthwith to pro- protractea discussion to show that you did not nounce the removal from office of'the convicted per- sit as a~ court; and the Managers have even son according to the requirement of the Constitu- taken offense at any such recognition of your tion. Any further judgment shall be on the orderr some reason I will not allude of the Senate. 3 - - character. For some reason I will not allude to they have done- even more, and claimed for for the consideration of these rules now? - this body the most extraordinary jurisdiction. Mr, JOHNSON. I object. Admitting that it was a constitutional tribunal, The CHIEF JUSTICE. Objection is made; they have, yet claimed that it knew no law, they will lie over. [After a pause.] Gentle- either statute or common; that it consulted no men of counsel for the President, you will please precedents save those of parliamentary bodies; men of counsel forthe President, you willplease. thatit was a law unto itself; in a word, proceed with the argument in his defense. that as a law unto itself; in a word, that its jurisdiction was without bounds; that Hon. WILLIAM. S. GROESBECK, on it may impeach for any cause, and there is behalf of the respondent, addressed the Senate no appeal from its judgment. The Constituas follows: tion would appear to limit somewhat its jurisMr. CHIEF JUSTICE andSENATORS: Iamsorry- diction, but everything this tribunal may deem 645 impeachable becomes such at once, and when "treason, bribery, or other high crimes and the words "high crimes or misdemeanors" are misdemeanors"-no malpractice, no neglect used in that instrument they are without signifi- of duty, nothing that left the jurisdiction open. cation and intended merely to give solemnity The jurisdiction is shut and limited by any fair to the charge. construction of -this language; and it was inTo sustain this extraordinary view of the tended to be shut. It is impossible to observe character of this tribunal we have been referred the progress of the deliberations of the Convento English precedents, and especially to early tion upon this single question, beginning with the English precedents, when, according to -my broadest and most open jurisdiction and ending recollection, impeachment and attainder and in a jurisdiction defined in these technical terms bills of pains and penalties labored together of law, without coming to the conclusion that in the work of murder and confiscation. Sen-:it was their determination that the jurisdiction ators, I do not propose to linger about these should be circumscribed and limited. English cases. We have cases of our own But in what character, Senators, do you sit -upon this subject; we have teachings of our here? You have heard the argument of the own. This we know: our fathers, in framing Managers; you have heard their frequent disthe Constitution, were jealous of delegating cussions upon this subject all through the protheir power, and tried to make a limited con- gress of the cause, appealing to English prestitutional Government; tried to enumerate all cedents to maintain the position that you sit the power they were willing to intrust to any here not as a court, but as an inquest of office department of it. The executive department or as some nameless tribunal with unbounded is limited; the judicialdepartment is limited; and illimitable jurisdiction. Now. we have and the legislative department, we have sup- precedents, we have our-own precedents upon posed, was also limited; but according to the th'is subject; and let me call your attention to argument made here on this'trial it is other- them for a few moments. wise, and it has in its service and at its com- But, before doing so, I desire to say:that it mand an institution that is above all law and has been heard for the first time in this trial acknowledges no restraint; an institutionworse that this tribunal, sitting as you are sitting, than a court-martial, in that it'has a broader was anything else than a court. I challenge and more dangerous jurisdiction. Senators, the gentlemen in all the investigations they I cannot believe for one moment that there is may have made of the action of the constitulying in the heart of the Constitution any such tional Convention, of the utterances of jurists, tribunal as this; and I invite your attention to or of anything that has been said or done to a brief examination of our own authorities and throw light upon this inquiry, to produce anyof our own teachings upon this subject. thing calculated to make the impression that It was with much doubt and hesitation that the tribunal that tried impeachment was anythe jurisdiction to try impeachment at all was thing else than a court. intrusted to the Senate of the United States. Let us look, Senators, to our own precedents. The grant of this power to this body was We have had five trials of impeachment in the deferred to the last moment of time. Nor was United States. The first was the case of Blount. your jurisdiction overlooked. Allow me to What was the language of the tribunal in that call your attention very'briefly to the proceed- trial —not of counsel, but of the tribunal itself? ings of the Federal Convention upon this sub- What was its language upon this identical quesject as recorded in the Journal of that body. tion? Hear it. When they came to give their In the first report that was presented it was final decision they did it in this language: proposed to allow impeachment for " malpoposed to allow impeachmentfo "The court is of opinion that the matter alleged in practice or neglect of duty." It will be oh- the plea of the defendant is sufficient in law to show served that this was very English-like and very that this court ought not to hold jurisdiction of the'broad in the jurisdiction proposed to be con- -said impeachment, and that the said impeachment ferred. There is not necessarily any crime in the jurisdiction here proposed to be conferred. That is good authority. It is good AmeriIn the next report it was proposed to allow the can precedent upon this question. It is the tribunal jurisdiction for "treason, bribery, and deliberate opinion of the Senate of the United corruption." It will be observed that they States in the first trial in which it sat in this began to get away from the English prece- capacity, declaring itself, in the most solemn dents and to approach the final result at which language it uttered throughout the trial, its final they arrived. The jurisdiction here proposed decision, to be a court and not an inquest of was partly criminal and partly broad and open, office or some nameless thing that by reason not necessarily involving penal liability. In of its mystery is calculated to frighten, or at the next report it was proposed that impeach- least to confuse. -ment should be allowed for "treason or What was the next case.? The Pickering bribery" —nothing else. It will be observed case. I am referring now to the appendix to that here was nothing but gross, flagrant crime. volume three of the Senate Journal. On pages This jurisdiction was considered too limited 489 and 507 the language of the body will be and was opened, and that gives us the juris- found on this subject in the following form:,diction we have in the present. onstitution, in its.process, its own language, it styles itself 646'"the Senate sitting in their capacity of a court oath which you took when you entered this of impeachment," and the last action of the Chamber as Senators was a political, legislabody, their decision, was upon the question in tive oath. The oath that is now upon you is this form: purely judicial, to do impartial justice. "Is the court of opinion that John Pickering be We are, then, Senators, in a court. What removed?" are you to try? You are to try the charges So, too, in the next, the Chase trial. The contained in these articles of impeachment, President in that case styles the body a and nothing else. Upon what are you to try " court," and, more fortunate than the Chief them? Not upon common fame; not upon the Justice in this, escaped all censure from the price of gold in New York, or upon any quesManagers of the House of Representatives. tion of finance; not upon newspaper rumor; In the next, the case of Peck,, the tribunal not upon any views of party policy; you are to itself took the final vote under its own resolu- try them upon the evidence offered here and tion in this language: nothing else, by the obligation of your oaths. " Resolved, That this court will now pronounce What is the issue before you? Allow me to judgment in the case of James H. Peck, judge of the say it is not a question whether this or that United States court for the district of Missouri." thing were done. You are not here to try a In the case of Judge Humphreys, in 1862, mere act. By the very terms of the Constituthe Senate styled itself in all its proceedings tion you can only try in this tribunal crime. "the high court of impeachment." Let me repeat the jurisdiction: Senato(rs, I have gone over every precedent Senators, I have i r gone over every u uprecedenti, " Treason, bribery, and other high crimes and miswe have in our own history upon this question, demeanors." and I show that in every instance the body, The jurisdiction is shut within that language, the Senate, in those trials solemnly declafed and the issue that this court can try is only the itself to be a court. If we are to go for pre- issue of crime or no crime. What is crime? cedents let us take our own rather than the cedents let us take our own rather than the In every grade of it, Senators, there must be precedents from abroad which have been so unlawful purpose and intention. Where these liberally quoted by the Managers on this occa- are wanting there cannot be crime. There sion. must be behind the act the unlawful purpose In what spirit, Senators, should you try this case?.llowme toreferyquupon.hlssi-. Dprompting its commission; otherwise there can case? Allow me to refer you upon this sub- be no crime. ject to the language of Story in his Commenta- Let me illustrate. Suppose a crazy man ries on the Constitution, to be found on page should burst into this Chamber and kill one of 216, section seven hundred and forty-three. us He has committed the act of homicide; I beg your attention to this language of Justice h has not committed a cme. Story upon the question which I have just pro- Let me put the case in a different form. * * * thpounded: seSuppose a President should become deranged, "The great objects to be attained in the selection and while in that condition should plot treaof a tribunal for the trial of impeachments are impartiality, integrity, intelligence, and independence. son, attempt to bribe, and break law upon law, If either of these be wanting the trial must be would you impeach him? You have no jurisradically imperfect. To secure impartialitythebody diction to try him upon impeachment. must be in some degree removed from poqular power and passions, from the influence of sectional Let me put another case not supposititious. prejudice, and from the more dangerous influence President Lincoln claimed and exercised the of party spirit. To secure integrity there must be a lofty sense of duty and a deep responsibility to power of organizing military commissions, future times and to God. To secure intelligence under which he arrested and imprisoned citithere must be age, experience, and high intellectual zens within the loyal States. He had.no act powers as well as attainments. To secure independ- ence there must be numbers as well as talents, and of Congress warranting it; and the Supreme a confidence resulting at oncea from permanency of Court has decided that the act was against the place, dignity of station, and enlightened patriot- express provisions of the Constitution. Now On the next pagism." he adcomes the question, and I beg your attention to it: suppose he did violate the express pro"Strictly speaking, the power"- visions of the Constitution, according to the That is, the power of imipeachment- gentlemen on the other side he must be con"partakes of a political character; and on this ac- victed. I beg to read from the argument of count it requires to be guarded in its exercise against one of the Managers upon that subject. Says the spirit of faction, the intolerance of party, and the Manager who addressed you on the day the sudden movements of popular feeling." before yesterday before yesterday: Senators, this is not my language; it is the "Nor can the President prove or plead the motive language of a distinguished jurist whom you by which he professes to have been governed in his all respect. While it is not mine, I affirm, by violation of the laws of the country." * * all our own authorities, by our own teachings * * "The necessary, the inevitable presumption in law is, that he acted under the influence of on this subject, that it is a true and faithful bad motives in so doing, and no evidence can be inportraiture of what is meant in the Constitu- troduced controlling or coloring in any degree this tion by the tribunal which tries impeachments. necessary presumption of the law. "Having, therefore, no right to entertain any moAnd for this very purpose you have been sworn tive contrary to his constitutional obligation to exeanew to prepare you for this new duty. The cute the lawshecannot pleadhis motive. Inasmuch 647 as he can neither plead nor prove his motive, the 2. Had he the right to issue the letter of presumption of the law must remain that in violat- authority to Thomas? jn his oath of office and the Constitution of the I propose, as well as I a able in my co Jtnited States he was influenced by a bad motive." I propose, as well as I am able in my condition, to examine these two questions. The gentleman seems to acknowledge that Taking up the questions in their order, first, there must be motive. There can be no crime had the President the right to remove Edwin without motive. But when the party comes M. Stanton? I propose to examine that quesforward and offers to prove it his answer is,tion in the first instance in connection with'"You shall not prove it." When he comes the act regulating the tenure of certain civil forward and offers to prove it from his warm, offices. It is claimed on the one side that by living heart, the answer is, "We will make the operations of this law Mr. Stanton was up your motive out of the presumptions of law, withdrawn from his previous position and covand conclude you upon that subject; we will ered and protected here. It is claimed upon not hear you." The command is "Isilence" the other side that the law does not apply to when you propose to prove the exact motive his case; and if it do not, I think it will be by which you were prompted in the act. acknowledged by the Senators that the PresiNo, Senators; the jurisdiction of this body is dent had the right to remove him. Allow me to try crime. There is no crime without un- to call your attention, therefore, to one seclawful intention and purpose. You cannot get tion of this law in which the question is preit Wvithout the unlawful intent or purpose be- sented: hind the act prompting its commission. Why, "That everypersonholdinganyciviloffice to which what is the judgment that you shall render in he has been appointed by and with the advice and conthis case? Not did the President do this or sent of the Senate. and every person who shall herethat act; that is not your inquiry; but was he after be appointed to any such office, and shall become duly qualified to act therein, is, andshall be, entitled guilty of a high misdemeanor in the purpose to hold such office until a successor shall have been with which he did the act? in like manner appointed and duly qualified, except With these preliminary observations, I pro- as herein otherwise provided: Provided. That the Secretaries of State, of the Treasury, of War, of the pose to proceed to a brief examination of the Navy, and of the Interior, the Postmaster General, merits of the case. and the Attorney General, shall hold their offices reYou are now all of you, Senators, familiar spectively for and during the term of the President by whom they may have been appointed, and for one with the articles of impeachment, and I need month thereafter, subject to removal by and with the not attempt to go over them article by article. advice and consent of the Senate. " I have this to say, and you will all concur with Now, gentlemen, let me state a few facts me instantly upon making the statement: the before we proceed to the consideration of the first eight articles are built upon two acts of construction of this section. The first fact to the President; the one, the removal of Stan- which I call your attention is that the act was ton, the other the letter of authority given passed on the 2d of March 1867. I further call to Thomas. Now, if you will take up these your attention to the fact that Stanton's comeight articles, and then the last, the eleventh, mission is dated on the 15th of January, 1862. and notice the substantial part of them, around It is a commission given to him by President which they throw their charges of bad intent Lincoln, by which he was to hold the office of and their averments, you will see that in the Secretary for the Department of War " during whole eight articles there are but these two acts, the pleasure of the President of the United the removal of Stanton and the letterof author- States for the time being. " Mr. Johnson beity to Thomas, so that we have only to inquire in came President on the 15th of April, 1865. He reference to these two acts in order to ascertain has not in any manner commissioned Mr. StanXhe merits of this case upon these eight articles, ton. Upon these facts, Senators, I claim it is and in fact I may say the eleventh also. clear that Mr. Stanton is not protected by If the President of the United States had this bill. Let us inquire. The law proposed the right to remove Edwin M. Stanton, then to grant to the Cabinet officers, as they are these eight articles are without support. If, in called, a term that shall last during the term additiof to that, he had the right to give that of the President by whom they were appointed, letter of authority to Lorenzo Thomas, the and one month thereafter. Mr. Johnson has eight articles fall in ruins instantly. There is not appointed Mr. Stanton. He was appointed no Senator who has studied this case who will during the first term of Mr. Lincoln. He was not see the accuracy of this statement at once; not appointed at all during the current presand it relieves us from the necessity of going idential term. He holds his office by a comthrough them, article by article, and step by mission which would send him through Adminstep. Give me these two propositions, the istration afterAdministration until it is recalled. right to remove Stanton and the right to issue Now, what is the meaning of this language, the letter of authority to Thomas, and the arti- "he shall hold his office during the term of the cles fall instantly; there is nothing left of them. President by whom he was appointed?" and So that we have at last, in the consideration he was not appointed during the present term. of these articles, but two inquiries to make: I think that is enough. It' does seem to me 1. Had the President the right to remove that that simple statement settles this quesStanton? tion. 648 The gentleman has saidthis is Sir. Lincoln's denominated the Department of War; and there term. The dead have no ownership in office shall be a principal officer therein to be called the or estate of any kind. Mvr. Johnson is the Secretary for the Department of War, who shall perfolrm and execute such duties as shall from tini President of the United States with a term, to time be enjoined on or intrusted to him by the and this is his term. But it would make no Presidentof the United States, and the said principal difference if Mr. Lincoln were living to-day; officer shall conduct the business of the said Departdifference if Mr. incoln were living to-day; ment in such manner as the President of the United if Mr. Lincoln were the President to-day he States shall from time to time order and instruct. could remove Mr. Stanton. Mr. Lincoln would " There shall be in the said Department an inferior officer, to be appointed by said principal officer, to be not have appointed him during this term. It employed therein as he shall deem proper, and to be was during the last term that Mr. Stanton re- called the chief clerk of the Department of War; ceived his appointment and not this; and an and whenever the said principal officer shall be removed from office by the President of the United appointment by a President during one term, States, and in any other case of vacancy, shall, durby the operation of this law will not extend ing the same, have charge of the records, books," &c. the appointee through another term because This is the law to which we are referred, that same party may happen to be reelected unless the act to regulate the tenure of certo the Presidency. Stanton, therefore, holds tain civil offices covers the case of Mr. Stanunder his commission, and not under the law. ton. By the terms of. this law, by the comAgain, Senators, his tenure of office cannot mission that was issued to Mr. Stanton to hold be extended. or changed from his commission " during the pleasure of the President of the to the law. What is the proposition of this United States for the time being" framed uVon law? Mr. Stanton held, before its passage, this law, by the uniform construction of it,' during the pleasure of the President for the as I shall show, the President had the right to time being." This law proposes to give him, remove Mr. Stanton according to his pleasure. in place of a term at pleasure, a term of years Mr. FESSENDEN. Mr. President, the and one month thereafter. By what authority counsel will excuse me. I wish to observe, if can the Congress of the United States extend I may be permitted to do so, that the counsel the term in this manner? That office can only is evidently laboring under very severe diffibe held by the appointment of the President. culty in endeavoring to go on, and if he finds His nomination and his arppointment must himself very much oppressed I feel disposed cover the whole. term which the appointee to move an adjournment unless one of the claims. On any other theory the Congress of Managers wishes to occupy the day. the United States might extend the offices of Mr. GROESBECK. I am very much obliged persons who had been appointed indefinitely to the Senator, if he will allow me to answer through years and years, and thus defeat the him. I thank him for the suggestion; but I constitutional provision that the President shall came here indisposed this morning, and I have nominate and shall appoint for the office, for apprehensions that I shall not be any better if the whole termof the office. Thereisno other this matter is postponed. Hence I do not construction that can be put upon it. know but that I had better go on as best I And in this view of it, it appears to me, Sen- can. I shall be very thankful for the attention ators, that the law we have under consider- of the Senate to what I shall say in the condiation cannot be made to apply to any offices tion in which I find myself. which were occupied at the time of its passage. But we are told, Senators, by the gentlemen Take the case of a general office held at pleas- who argue this cause on the other side that there ure. What is the character of that tenure? has been no such case as the removal of a head The lowest tenure known to the law is a tenure of a Department without the coiperation of the at pleasure, at suifrance, at will. To convert Senate, and that the construction which we that into a tenure for a fixed term is to enlarge claim as applicable to this law is unsound. it, to extend it, to increase it, to make it a Allow me, upon that subject, to call your atlarger estate than it was before. If the office tention to pages 357 and 359 of the proceedbe one that cannot be filled without presi- ings. I now refer to the letter of John Adams, dential nomination and appointment it does written under one of these three laws that were,seem to me, whatever may be the office, it can- passed in the First Congress under the Connot be extended as to those who were in office stitution. I give you the letter: at' the time. If this be a right construction of the act of March 212, 100.867, and I amcompelled Sthe act of March 2, 1867, and I amcmpelled Si: Divers causes and considerations, essential to leave it with this brief examination, Mr. to the administration of the Government, in my Stanton is left where he was before its pas- judgment, requiring a change in the Department of State, you are hereby discharged from any further sage. service as Secretary of State. It is further to be observed that the act of JOHN ADAMS, March 2, 1867, has no repealing clause. We President of the United States. are, therefore, remitted to the previous laws That was the act of John Adams, by whose applicable to his case, and thist refers us to the casting vote the bill of 1789 was passed; that Constitution and the act of August 7, 1789. act was done according to the construction By the provisions of this law it is provided that was given to the bill; and it is an outamong other things that- right removal during the session of tbe Senate "There shall be an executive Department to be without the coiperation of the Senate. The 649 letter is addressed to the Secretary of State in law is in full force. There' is no attempt to his office, declaring him removed; and when repeal it in the act of March 2, 1867. That act Mr. Adams comes to communicate with the in fact has no repealing clause. What then? Senate he sends his communication nominat- What becomes of the first eight articles of this ing John Marshall, not "in place of Mr. Pick- case-? ering, to be removed with your assent," but Let us stand at this point and look over the "in place of Mr. Pickering, removed by my case; it is an excellent point of observation will, and according to the law and the language from which to look at it. We have removed of his commission. Why, Senators, there one difficulty; we have ascertained one fact: is no doubt about it. If John Adams, who Edwin M. Stanton could be removed by the passed this law in the Senate by his casting President. I should like to linger on this quesvote, had had the least idea that the power of tion longer. I should like, if I had voice and removal was not, as it is said to be in the law, health to-day, to call your attention to many in his own hand, do the gentlemen suppose other points which I had intended to present in that he would have taken the course he did, this discussion. I should like to read to you and that he would not have taken some such the language of your own Senators upon this course as this: "Senators, I propose, with your question, especially the pertinent language of consent, to remove Timothy Pickering and the Senator who from the conference commitappoint John Marshall in his place." That tee reported this bill for your consideration. I was not the right construction of the law. His should like to read that language, for it was the act is the true construction according to his last utterance in this Chamber before the bill own interpretation and according to' the'in- was passed; and it was received with no disterpretation that has been given from that day senting voice. Itwasthetruesound, accepted to this, down to the passage of the act of March construction of the law. 2, 1867, done in session, done by himself, done But I:pass on. We have torn down the main without consultation or cooiperation with the structure of these eight articles. Take out Senate; and that very form which he adopted the question of the power to remove Stanton when he did remove, as a distinct and inde- from these eight articles and they are without pendent act, has been followed from that day support. All you have left to consider is the to this. single. question of the right to confer the ad Senators, let me call your attention, to interim authority uponLorenzo Thomas. Senwhile I am upon this subject, and lest I forgt ators, we see more-than that,:if this be so. All it, to the language of John Marshall in the case these questions of intent-all these questions of Marbury vs. Madison. He was there dis- of force-all -these questions of whether -we cussing the question when an appointment was intended to go into court-all these questions made, "when it was complete, so that it was that occupied us so-much in the course of this withdrawn from the control of the President; investigation, vanish out of sight; for if we had and he held in the decision of that case that it this authority, Edwin M. Stanton was a treswas complete when the commission was made passer; we had theright to -remove him, and out; but in the course of his decision he goes we were not bound to go to court to ascertain on to remark: that right. " Wh en the officeris removalat the will of theExe'- But, Senators, let me ask you still one other utive the circumstance with completes his appoint- question before-I proceed. Suppose Mr. Stanment is of no concern, becanse the act is at any time ton is -within the tenure-of-office act-what rthen? The inquiry then comes for your conSo it was always held and so it has been sideration whether the President is criminal always understood, " removable by the Pres- in acting upon the supposition that he was not ident;" that is the language; so the commis- within it. This inquiry does-not challenge the sion runs, " removable at the pleasure of the -:constitutionality of the law. It is a question President for the time being." When? In of construction of a doubtful law. Is there a recess? no, at'his pleasure; in session? no, at Senator here who will not admit, whatever his his pleasure, is the language of the commission view maybe upon this subject, that it was a-law and the authority given by the commission and about which any one might reasonably adopt by the law. Who will attempt to construe a this construction? I believe that-the majority commission in such language, holdingat pleas- of the Senators in this Chamber are of the ure, into a commission that he may remove opinion that itdoes not applyto the case of Mr. this month or that month or the next month, or Stanton; and even if it did, there is no majorin recess or in session? It is, Senators, at ity of Senators, intelligent Senators asyou are, pleasure; so it has always been understood and who would say that there was not room for construed. doubt in the construction of the law. -What If I am right in the view which I have very thehl? Letme inthis connection referyou~to the briefly taken of the operations of this law, Mr. act creating the office of Attorney General. It Stanton was not covered by it, and he is sub- is to be found on gage 93 of 1 Statutes-atject to removal under the commission which Large, and reads as follows: he received from Mr. Lincoln and under t] e "'And there shall also be appointed a meet person, law of 1789. I beg you to observe that that learned in the law, to act as Attorney General foi 650 the United States, who shall be sworn or affirmed to tions of law, the President, acting upon the a faithful execution of his office; whose duty it shall consultation that occurred in his presence, had be to prosecute and conduct all suits in the Supreme the right to do wh edd in ts isa Court in which the United States shall be concerned, the right to do what he did in this instance; and to give his advice and opinion upon questions and even, as I said, if the law covers Mr. of law when required by the President of the United Stanton, it being a question of construction, the respondent is protected. I need not read any further. Here was a In this view I desire to repeat that we get law, the tenure-of-office act, construe it as you rid of a large portion of this cause, and therewill, about which no Senator will differ as to'fore it is that I would like to linger at this the fact thatit might be reasonably interpreted point; for it seems to me that it is the most as not covering Mr. Stanton by its, provisions. important point in the cause. But I pass on. And now suppose that the President of the Suppose, Senators, that the view which I United States did take counsel upon this sub- have been presenting is not correct, and that ject, and did construe the law as Senator SHER- the law does apply to Mr. Stanton, what then? MAN and other Senators in this Chamber have The next inquiry is whether that act be consticonstrued it; I am putting this case now upon tutional, or rather let me say, if it be constituthe theory that it covered Mr. Stanton; yet a tional, whether the conduct of the President law of doubtful construction as it is, if the in the removal of Mr. Stanton was criminal. President availed himself of the counsels of I am aware, that very many of you particithis officer, who is designated for this special pated as legislators in the passage of that very duty, he is harmless by this impeachment, goes law, and that you have affirmed its constituacquit of all charge of lawlessness, and cannot tionality. In the unfortunate condition of this be censured for following such counsel. case the law makers become the judges, and What is the testimony on that subject? We therefore I would not be understood as arguing have a little. It was offered by the Managers the point that I now propose to present with a themselves. You remember, Senators, when view to change your opinions or to show that we were introducing the testimony in this cause, the law was unconstitutional. It is not that; it was offered by the defense to give you the but I beg you to observe that my whole object fullest measure of light upon all these ques- is to present this inquiry to your consideration, tions. The Managers shut it out. You con- I whether, in the condition of this question and sented that the evidence which we proposed in the condition of the President, he had the to offer of consultations that were held in the right to take the steps that he did take withpresence of the Presidentby his Cabinet, where out incurring the charge of criminality? every word was an act, business consultations, And now, passing as I shall, although I had not idle conversations, but consultations for intended to take it up, all discussion Pf this as the purpose of deciding upon these grave and an original question; passing by the inquiry important matters; consultations which, if ycu what is the right interpretation of the Constiindividually were to undertake to investigate tution as to the place where this power of rethis question of motive and what was done, you moval is lodged, I proceed to consider the could not pass by-when we offered to bring question in the aspect which I have suggested. these in and they were excluded we thought 1 start from this point. The question is at for a time we were without any light on this least doubtful; and from that point of view question. But, Senators, I will refer you to I propose to examine it as it stood on the some evidence bearing on this very point and 2d of March, 1867, or at the time the President to a meeting of the Cabinet, as set forth in acted in this dase, to ascertain the question evidence offered by the Managers, where all of criminality on his part in the act which he the members of the Cabinet were present, and did. where it appears that this subject came up for Our Government is composed of three deconsideration, and it was "taken for granted partments, which, according to the theory of that as to those members of the Cabinet who their structure, are to last through all time had been appointed by Mr. Lincoln their and under all trials and are to be preserved in tenure of office was not fixed by the provis- their entireness and integrity. The power has ions of the act. I do not remember, says the been carefully divided and distributed among President, that the point was distinctly stated; them with a view to preserve each one in its but I well recollect that it was suggested by separateness and independence. They are each one member of the Cabinet who was appointed independent of the other. No one is responby Mr. Lincoln and that no dissent was ex- sible to the other. They are responsible to pressed." the people or to the States. All this is careThe Attorney General was there; the' entire fully set down in the Constitution. Those who Cabinet was there; and this subject was con- have charge of these various departments, by sidered; this very question of construction the theory and structure of the Government, came up, and the opinio.n was expressed that are enjoined each to take care of its own preMr. Stanton was not included. So that even rogative, if I may use such a word, and to if the law covered him, yet by the authority of protect itself against all possible encroachthe statute appointing an Attorney General ment from the others. This they do, each and and requiring him to give advice upon ques- every department, by observing with the utmost 651 fidelity the provisions of the written Constitu- Just possiblytion. "when a case duly arises. be annulled in its unconAt the head of one of these departments, the stitutional features by the Supreme Court of the executive, stands the President of the Lhnited United States. The repeal of the law is a legislative act; the declaration by the court that it is unconstiStates. He is sworn by an oath, the most sol- tutional is a judicial act; but the power to repeal emn and obligatory that could be administered, or to annul or to set aside a law of the United States "faithfully to execute the office of President isn noaspectofthecase an executive power. It is made the-duty of the Executive to take care that the of the United States, and to preserve, protect, laws be faithfully executed —an injunction wholly and defend the Constitution of the United inconsistent with the theory that it is in the power States." This is not an oath merely to exe- of the Executive to repeal or annul or dispense with This is not an oath merely to exe- the laws of the land. To the President in the percute the laws. The laws are not Aamed in it. formante of his executive duties all laws are alike. The first part of this oath, " faithfully to exe- He can enter into no inquiry as to their expediency cute the office of President," would cover his or constitutionality. All laws are presumed to be constitutional, and, whether in fact constitutional or obligation to execute the law and his obliga- not, it is the duty of the Executive so to regard them tion to discharge all other executive duties while they have the form of law." imposed upon him. There would seem to be That is the last congressional theory I have something more than this; and he is required, heard. Let me read further: in addition to this oath that covers his ordiin addition to this oath that covers his ordi- "Hence it follows that the crime of the President nary executive duties, to swear to the best of is not, either in fact or as set forth in the articles of his ability to preserve, protect, and defend impeachment, that he has violated a constitutional the Constitution of the United States. That law, but his crime is that he has violated a law, and oath is administered to the President alone of law is constitutional."iry can be made whether the all the officers of the Government. I do not say, Senators, that it has any extraordinary So that, according to the reasoning of the significance; but I do say that there is enough Manager, if now here on this inquiry you in it for admonition, at least; there is enough should be of the unanimous opinion that the in it for constant caution as a duty of the Pres- law for the alleged violation of which the'President in reference to thy Constitution. It does ident is impeached was unconstitutional, yet seem to me that the terms of such an oath you would have to go on and convict him of solemnly imposed upon him would impress him the commission of a crime in the fact that he with the idea, or any of us with the idea, that- did not execute what was not law. I desire to it was the first paramount duty that he should read a little further on this question. Hear ever, in all his executive conduct, keep his the Manager: eye upon the Constitution of the United States; "The Senate, for the purpose of deciding whether in all trial that he should look to it; in all doubt the respondent is innocent or guilty, can enter into that he should lean toward it; in all difficulty no inquiry as to the constitutionality of the act, that he should lean toward it; in all difficulty which it was the President's duty to execute, and that he should take shelter under it. which, upon his own answer, and by repeated official I heard the eloquent argument of the Man- confessions and admissions, he intentionally, willager [Mr. BOUTWELL] who addressed us but afully, deliberately set aside and violated." ager [Mr. BOUTWELL] who addressed us but two days ago. I heard what he said about the Let me read again: executive department. I should be pleased if "With deference I maintain still further that it is I had strength of voice to answer it. The not the right of any Senator in this trial to be govsu-ndsbtac f twa ht h reiet erned by any opinion he may entertain of the consum and substance of it was that the President stitutionality or expediency of the law in question. of the United States is but the constable of For the purposes of this trial the statute which the Congress; no more; that he is put into his President, upon his own confession, has repeatedly - ~~~~~violated is the law of the land. His crime is that he place merely to execute the laws of Congress. violated the law." Why, Senators, this is not the right interpret- I wish to read one other passage from this ation of the Constitution. He is the Chief Magistrate of this nation, having charge of one speech, to show the startling doctrines which of its great departments; and he is faithless to the Manager has put forth, and upon which it his trust if he do not protect the powers con- seems the President is to be convicted, accordferredbythe Constitutionuponthatdepartment. ilg to his theory I Hear this: But without delaying upon this' question, let "If the President or Vice President, or any other But ithuttelainguponthi qestonletcivil officer, violates a law, his peril is that he may me proceed at once to what is more vital to be impeached by the House of Representatives and the matter in hand. Shall he disregard law? convicted by the Senate. This is precisely the reNever. He should never in mere wantonness sponsibility which the respondent has incurred; and it would be no relief to him for his willful violation disregard any law of Congress that may be of the law, in the circumstances in which he is now passed. Shall he execute all law? Let me placed, if the court itself had pronounced the same answer that question by referring you to the to be unconstitutional." argument of the gentleman whom I have just Senators, in answering the question whether named. I refer to pages 814, 815, and 817; the President shall execute all law, I beg to be and I beg leave to say that I take issue with understood as differing in toto ccelo from the the Manager in the positions whichhe has taken gentleman from whose argument I have just on this subject, almost entirely. He says: read. If a law be declared by the Supreme "If a law be in fact unconstitutional it may be Court, the third department of this Governrepealed by Congress, or it may, possibly"- ment, and, by the very terms of the Constitu 652 tion itself, the highest and final interpreter of Departments of the Government gives force the constitutionality of congressional enact- to any interpretation. (15 Maryland Reports, ments, to be unconstitutional, the President is p. 458.) untrue. to his position if he execute. it in letter Let me state another. It may be a grave or in spirit, or one jot or tittle of it. Let me question whether a first interpretation is right.; tell the gentleman, in answer to his long argu- but long acquiescence in it, if it be a statute, mentation upon this point, that he makes no makes another statute necessary to change it; distinction between law whatever, that if an act if it be a constitution it would require an of Congress be unconstitutional it is no law; it amendment of the Constitution to. change it. never was:law; it never had a particle of valid- (4 Gill and Johnson, p. 345.) ity, although it went through the forms of con- Let me give you another. A long and unigressional enactment; from the beginning ab form interpretation becomes a fixed.interpretinitio it was null and void,. and to execute it ation. When a constitution early undergoes is to violate that higher law, the Constitution legislative interpretation, and a series of acts of the United States, which declares that to be are passed according to such interpretation, no law which is in conflict with its provisions. covering say seventy years, even if it were What shall I say, then, in answer to this ar- doubtful, such constant, long and uniform ingument? Shallhe execute alllaw? No. If terpretation should remove the doubt. (1 Mary-a lawbe declared by the Supreme Court un- land Reports, p. 351.) constitutional he should not execute it. If the I desire to refer you to one. other rule before law be upon its very face in fiat contradiction I pass to the argument, to be found in 1 Story,:to plain express provisionsof the. Constitution, section four hundred and eight: as if a law should forbid the'President to grant..a pardon in any case, or if alaw should~ declare "orAnd, after all, the mos8t unexceptional source of a pardon inany case, or if alaw should declare collateral interpretation is from the practical exposi-:that he should not be Commander-ln-Chiif, tion of the Government itself in its various.Departo-r if a law should declare that he should ments upon particular questions discussed and settake iio part in the making of a treaty, I say tled upon: their own single merits. These approach tak'h~~~~e no~~part ithe -aynearest in their own nature to'judicial: exposi-:the President without going to the Supreme tions, and have the same, general recomnmendation that Court of the United States, maintaining the belongstothelatter. Tbeyaredecideduponsolemn integrity of his department, which for the time rgument, e ataupon a dpsenebt raised, uportance and mota,:upona deep sense of their importance and being is intrusted to him, is bound to execute difficulty,:in the face of the nation, with a view- to.no such legislation, and he is cowardly and *present action, in the midst of jealous interests, and th-esosbiiis fhioito f by; men capable of urging or repelling the grounds of untrue to the responsibilities of hisposition:if argumentbytheirgenius, their comprehensive learn-.heshould execute it. ing, or their deep meditation upon the absorbing But, Senators, the difficulty is not here. The topic." difficulty arises in doubtful cases, in cases where With these preliminary observations, I de-.the powers are not plainly and expressly stated sire that you will bear with me while I prein the Constitution; and here it is that we sent-the question in this form-not the quescome to the question in inquiry between us in tion of the constitutionality of your tenure-ofthis case. Suppose an act of Congress inter- office act; I will not challenge its constitutionpret the Constitution in a doubtful case for the ality here in your very faces; you have affirmed first time, shall the President execute it? I it. I beg you to notice, however, that the say yes. Suppose an act, instead of giving an question which I propose to consider is what interpretation for the first time in a doubtful was right and proper for the President, the con-case, contradicts a long accepted:previous dition of this question and his.own conditionat interpretation-in this supposition we are ap- the time he did the act which is set forth in preaching the case before us-what is to be these articles. Observe, before I start upon done? To follow the Constitution is the first this inquiry, the law of March 2, 1867, is conand paramount duty of the President, -and to stitutional interpretation. BythatlawofMarch maintain the integrity of his department is also 2, 1867, you interpreted the Constitution that a duty;.and if an act of to-day is contrary to the power of removal was lodged in the Presia long established interpretation of the Consti- dent and Senate. The previous law/that was tution upon a questionof power, and a fit case.passed in 1789, was also, as we know from presents itself where he is required to act, it the frequent utteraices of those who particiis-right and proper in a peaceable way, with a pated in its passage, constitutional interpreta. due regard to the public welfare, to test the tion;~ and the question before us is what was the accuracy of the new interpretation in the forum condition of this question at the period of time which is the highest:and final interpreter of to which we are calling your attention, when such questions. the President acted. Observe the purpose for Senators, with this preliminary observation which I have cited these rules. A long acquiI propose to examine the condition of this ques- escence by the people and the Departments of tion at the timethe President performed these the Government in any interpretation becomes acts; but before I do so allow me to call your a fixed interpretation; a long and uniform.inattention to afew rules of interpretation. They terpretation of the Constitution for a period are these: of seventy years, even if it were a doubtful Acquiescence by the people and the various question, removes the doubt; gnd it is in the 653' light of those rules of interpretation that I pro- occasion, for it is a complete answer to the pose to make the inquiry; and I will briefly take argument of the Manager the day before yesterit up in all the departments of the Government. day in regard to the right interpretation of the How stands the question in the judicial de: debate of 1789. Marshall says: partment? I admit, Senators, that we have "partment? I admit, Senators, that we have After an ardent discussion, which consumed sevno res adjudicata upon this question; the ex- eral days, the committee divided, and the amendment act question has never been presented to the was negatived by a majority of thirty-four to twenty. Supreme Court of the United States; but we The opinion thus expressed by the House of Reprehave opinions from the Supreme Court which sentatives did not explicitly convey their sense of have opinions from the Supreme Court, which the Constitution. Indeed, the express grant of the I proceed now to read. power to the President rather implied a right in the In 1839, in the case of ex parte Hennen, it Legislature to give or withhold it at, their discretion. To obviate any misunderstanding of the prinwas declared by the court, Mr. Justice Thomp- ciple on which the question had been decided, Mr. son delivering the opinion: Benson moved in the House, when the report of the Committee of the'Whole was taken up, to amend "No one denied the power of the President and the second clause in the bill so as clearly to imply Senate jointly to remove where the tenure of the the power of removal to be solely in the President. office was not fixed by the Constitution, which was a He gave notice that if he should succeed in this he full recognition, of the principle that the power of would move to strike out the words which had been removal was incident to the power of appointment; the subject of debate. If those words continued, he but it was very early adopted as a practical construc- said, the power of removal by the President might tion of the Constitution that this power was vested hereafter appear to be exercised by virtue of a legisin the President alone, and such would appear to lative grant only, and consequently be. subjected to have been the legislative construction of the Consti- legislative instability; when he was well satisfied in tution, for in the organization of the three great his own mind that it was by fair construction fixed in Departments of State, War, and Treasury, in 1789, the Constitution. The motion was seconded by Mr. provision:was made for the appointment of a subor- Madison,- and both amendqaents were adopted." dinate officer~ by the head of the Department, who should have charge of the records, books, and papers Now, let me give you Marshall's own words appertaining to the office when the head of the De- as to the result of:that debate: partment should be removed from office bythe President of the United States. When the Navy Depart- "As the bill passed into a law it has ever been ment was established, in the year 1798, provision was considered as a full expression of the sense of the made for the charge and custody of the books, rec- Legislature on this important part of the American ords, and documents of the Department in case of Constitution." vacancy in the office of Secretary, by removal or Thatis Marshall to whom McLean referred otherwise, It is not here said:'by removal of the hat is Marshall to whom McLean referred President,' as is done with respect to the heads of in his dissenting opinion; that is his own lanthe other Departments; yet there can be no doubt guage. I have no other references to make that he holds his office with the same tenure as the directly to the Supreme Court or to the judges other Secretaries, and is removable by the President. directly to the Supreme Court or to the judges The change of phraseology arose probably from its of that court; but while I am upon the judicial having become the settled and well-understood con- aspect of the question allow me also to refer struction of the Constitution that the power of removal was vested-in the President alone in such ou the op of hancellor Kent to be cases, although the appointment of the officer is by found in 1 Kent, page 310. There, treating. ofthe President and Senate."-13 Peters, p. 139. the act of 1789, he says: This is a voice at least, an opinion at least, " This amounted to a legislative construction of from the Supreme~ Court upon this question~ *the Constitution, and it has ever since been acquiu esced in and acted upon as of decisive authority inL not an adjudication, I acknowledge, but an the case. It applies equally to every other officer of opinion, in reference to which we might have the Government appointed by the President and the right to say that it was pronounced with Senate whose term of duration is not specially declared. It is supported by the weighty reason that the concurrence of the other -members of the the subordinate officers in the executive Departnfent bench. ought. to hold at the pleasure of the head of that I*et me call:your attention- to another case department, because he is invested generally with Pwhere we have an utterance from one of the the executive authority, and every participation in where we have an utterance from one of the that authority by the Senate was an exception to a justices of the Supreme Court. I refer to the general principle, and ought to be taken strictly. case of the United States vs. Guthrie. (17 The President is the great responsible officer for the Hoardf, 2e 4ithe caSe wte rn. offhupon an- faithful execution of the law, and the power of reHoward, 284.) The case went off upon- an- moval was incidental to that duty, and might often other point, but in the course of his dissenting be requisite to fulfill it." opinion Mr. Justice McLean said he thought Senators, you observe I call your attention "the construction"' (the one referred to and the to the condition of this question at the time in one claimed in behalf of the respondent in this the court; I give you two utterances from the case) "wrong, and that the late Supreme Court bench of the court; I give you the opinion of so thought, with Marshall at its head." He Marshall; I give you the opinion of Kent upon adds, however, and to this I call special atten- the point whether, doubtful as the question tion: "But this power- of removal has been, was, it had been interpreted and fixed at the perhaps, too long established and exercised to time they gave those utterances. Now, let me be now questioned." refer to the action of the executive DepartIt will be observed that Judge McLean refers ment. to Marshall. Let us see what Marshall. him- From the beginning of the Government to self says. I refer you to 2 Marshall's Life of March 2, 1867, this has been the uniform conWashington, page 162-the second, or Phila- struction and practice of every Administration. delphia edition, as it is called. I ask Senators Washington approved the bill; Adams's vote to observe the language of Marshall upon this passed it; Jefferson maintained the same posi 654 tion; Madison drew the bill; Monroe and should be constructed and the number of DeJackson and the Presidents that followed them partments that should be created. Mr. Madall maintained the same construction, and ison moved with him in this matter, and I every President, including President Lincoln, think it was his pen that drew the bills that through all our history of eighty years and were afterward vitalized into the laws estabtwenty Administrations, maintained this con- lishing the Departments of Foreign Affairs, struction upon the question of where the power of War, and of the Treasury. I need scarcely of removal is lodged? Observe the judicial state to the Senators here present, who must department every time its voice has been all of them have examined this debate, the heard on this question, from the foundation of principles upon which those bills were conthe Government until now, as far as it has structed and eventually vitalized. I must be expressed itself, has affirmed that the power allowed, however, in this connection, to refer is lodged by the Constitution in the President. to the argument of the Manager [Mr. BOUTThe executive department, from Washington, WELL] on the day before yesterday, in which who put his name to the bill that affirmed it, he undertakes to state the results which were through Adams, who helped to pass it, and reached in the Congress that passed these laws, Madison, who drew it; through all the Presi- and he states them in this language: dents we have had from the very start of the "The results reached by the Congress of 1789 are Government under the Constitution down to conclusive upon the followingpoints: that that body the present hour, every one has acted upon was of opinion that the power of removal was not in this construction and affirmed this practice the President absolutely, to be exercised at all times and under all circumstances: and secondly, that durfrom the beginning until now. ing the sessions of the Senate the power of removal I now take you, gentlemen, into the legis- was vested in the President and Senate, to be exerlative department of the Government. The cised by their concurrent action, while the debate and the votes indicate that the power of the President First Congress assembled under the present to remove from office during the vacation of the SenConstitution on the 4th day of March, 1789. ate was, at best, a doubtful power under the ConstiThe Constitution provided, you will remem- tution. ber, for Executive Departments, and asso- I must be allowed also to express my astonishciated them with the President as councilors ment at this summing up of the results of that and advisers. It became the duty of this Con- debate in 1789. I have read to you the langress to organize them. Very early in the guage of John Marshall as to the purpose of session Mr. Boudinot rose in his place and thatdebate. I have read to you theutterances called the attention of Congress to the fact that of Justice Thompson from the bench of the the Executive Departments under the old Con- Supreme Court as to the results of that debate. federation had come to an end; that it was I have cited you also to the opinions of Story necessary now to organize new and correspond- and of Kent as to the results of that debate. ing ones under the new Constitution, and he And I here say, with all respect to the honsuggested in the first instance that before they orable Manager, that the statement of its legislated on the subject they should in debate results which he presents in his argument fix the principles and determine the number is not authorized (allow me to say it with of the Departments which it was necessary to entire respect) by anything that occurred. I create. They at once entered upon the subject, say here in the presence of the Senate, all of and they agreed to establish three Depart- whom have examined more or less that great ments. debate running through a period of seven or If the Senate intends to go into recess, I eight days upon the single question where is would be pleased if it would do so now. the power of removal lodged, that the only point Mr. CONKLING. I make the ordinary which was discussed and finally settled was this: motion. is this power lodged in the President alone, or Mr. SUMNER. I move that the Senate take is it lodged in the President and Senate; and a recess for fifteen minutes. they closed the debate deciding that the power The motion was agreed to; and at the ex- was in the President alone, and changed the piration of the allotted time the Chief Justice phraseology of the bills as they were originally resumed the chair and called the Senate to drawn so that all appearance of grant from the order. Legislature might be avoided, and from the face Mr. GROESBECK. When the Senate went of the bills it would appear that the Legislature into recess it will be remembered that I had intended to express themselves as recognizing just begun to present the condition of this the power to be by the Constitution directly in questipn in the legislative department of the the President, and therefore- not necessary to Government. It was brought to the attention be conferred by legislative grant. of Congress in the first session that was held I have stated accurately, Senators, the subunder the Constitution. Very early in that stance of that debate. I challenge all contrasession Mr. Boudinot, of New Jersey, rose and diction from anything that transpired or from presented the question for consideration, and anything that Was said. expressed his desire, as I have intimated, that What passed? They passed the three bills before the bills should be passed the House establishing three Departments with these feashould settle the principles upon which they tures incorporated into each and all of them. 655 They called them Executive Departments; they I pass on to the Interior Department, created madeaprincipalofficercalledtheSecretary,who in March, 1840. We find in that law language was to perform such duties as should " from time like this: to time be enjoined on him or intrusted to him by "Who [the Secretary] shall hold his office by the the President" and should I" conduct the busi- same tenure and receive the same salary as the Seeness of the Department in such manner as the retaries of the other Departments." President should from time to time order and Under that language, also, he was removable instruct." They provided a chief clerk, who, at pleasure. He held his office by the same " when the said principal officer should be re- tenure as the other Secretaries, and could be moved from office by the President," should removed in the same way. take charge of the books, papers, &c. This is Let me call your attention to the seventh the general tenor of the bills in reference to Department, if I may call it that, the Attorthosethree Departments. Suchwasthe action ney General's Department. That office was of the First Congress of the United States, a established on the 24th day of September, Congress divested of all party animosity, of 1789, and in the law establishing it there is all party view, I may say comparatively dis- not one word said upon the subject of removal interested, at the very opening of the Govern- or vacancy. The law is as silent as the grave; ment just starting under the new Constitution. and yet, under the interpretation given to these Such was the action of the Congress who in-. laws from the beginning until now, the Attortended to fix for all time, as far as they might ney General has taken his commission "' durfix it, the policy upon which this particular ing the pleasure of the President for the time power should be regulated in the future; and being," and has been subject to removal by in the language of Marshall, as he expressed the President, just as any other of the heads of it in the quotation which I read, in order " to these Executive Departments. avoid legislative instability" upon this very I have now gone through the legislation esquestion, they took care to so frame the bills tablishing the seven Executive Departments, as that they should not take the form of grant ranging from 1789 down to 1849, a period of from the Legislature, and so that it might ap- sixty years. But this is not all. I might cite pearasconstitutionalinterpretationonly. They you to numberless other offices, assistants to passed three laws during that session as I have these, revenue officers, postmasters, and I referred to them. Thpse laws are in force to know not what, established all through this this day. They are professedly an interpret- period from Congress to Congress, with differation of the Constitution, so declared by the ent terms; some at pleasure, some for a fixed Supreme Court, as I have read to you, not in term unless sooner removed, some indefinitely; a res adjudicata utterance, but in an opinion and yet all regarded as removable bythe Presupon an incidental question, so declared and ident under phraseology like this. treated by all the Presidents we have had, so Now, what shall we say of all this legisladeclared by that Congress which passed them, tion? I began with the First Congress that met and so regarded by every subsequent Con- under the Constitution; I come down with you gress down to the Thirty-Ninth. to the Thirty-Ninth Congress that passed the Senators, I will now pass on nine years, to civil-tenure act; and I point you, by the way, 1798. They then framed anqther executive from Congress to Congress. to laws that were Department called the Navy Department; and passed by these Congresses affirming-every they recognized the power of removal in that law of this kind being an affirmance-the conunder this phraseology: "'In case of vacancy struction that was started in 1789, that the by,removal or otherwise,"' not " by the Presi- power of removal was lodged by the Constitudent;" still more strongly conveying the idea tion in the President of the United States. I that it was a power lodged by the Constitution say here by virtue of imperfect examination in the President, and needing no legislative myself, but of information upon which I rely, interference. Upon that theory they framed that if you were to gather the laws of Congress the fourth Department, the Navy Depart- from 1789 to March, 1867, which expressly ment. affirm this construction, they would average I now step down twenty-seven years, to the some two or three to every Congress. creation of the Post Office Department; and Now, how stands the question? What have in that law they recognized this arrangement we? Here is a question of constitutional inin language. like this: "provided, that in case terpretation. I beg the Senate to observe that of death, resignation, or removal from office these laws which I have read are in force; they of the Postmaster General," without saying by are constitutional interpretations. The civilwhom; but they had all these laws before them, tenure act of 1867 may be in force. That, too,. and others to which I shall refer which had re- is constitutional interpretation. Now, wecome ceived construction, and in reference to which to the question of duty on the part of the Presiit was distinctly understood that they were in- dent in that condition of legislation. Every terpretations of the Constitution, acknowledg- department of the Government had been down ing the power to be lodged in the President, to March, 1867, of that opinion; all the Presiand, therefore, itwasnotnecessarythatitshould dents, the Supreme Court to the extent I have be conferred by express grant. stated, and every Congress. I probably ought 656 to modify that statement, but there were some I think: you would all agree to that. In two seventy or eighty laws upon this subject be- hundredyears? Yes. In one hundred? Well, tween 1789 and 1867 affirming the same doe- it had run on this very question seventy-eight trine by the form in which they acknowledged years of the history of the United States; in the power of removal. All this occurred; fact, the whole of its politicalexistence. Stare this was -the condition of the question; and decisis, if we are to have any stability in refnow I submit it to you Senators. The law erence to our Constitution. There is not of March, 1867, is constitutional interpreta- one half of it written. Stare decisisis the rule tion; all these other laws are constitutional that has preserved the English Government, interpretation. May not human reason pause that has no written constitution. In this rule here? May not human judgment doubt? it has found firm anchorage through century What is the condition of the question? All after century and through revolution after revothe Presidents, every revered name that ever lution. Are we to have any stability whatever filled the office, affirming this doctrine; the in our institutions? Stare decisis is the rule Supreme Court uttering itself upon this doc- we must adopt and adhere to; and on this rule trine; thirty-eight Congresses affirming this this question stands. doctrine; this on one side, and one Congress The Thirty-Ninth Congress alone-very solion the other. May not human reason pause? tary in the midst of all this array-has given May not human judgment doubt? With this is interpretation to the Constitution. Was it great preponderance of testimony and of con- any better than that of 1789? Say it was as struction running through a period of nearly good; I do not propose to institute any comeighty years, was it criminal to stand with this parison; I do not say that it was not just as great mass of precedents around him and be- dispassionate, just -as cool, in just as good a lieve as the thirty-eight Congresses had be- condition as the other; but it was no better lieved, as all the President's had believed, as than the Congresses which preceded it. all that had gone before him had believed; And this brings me now to the question: is was it criminal, I say, that he, too, believed this Senate prepared to drag a President in in that way, and thought that it was a proper here and convict him of crime, because he case, it being simply a question of constitu- believed as every other President believed, as tional interpretation, to pass to that tribunal the Supreme Court believed, as thirty-eight of which has a right higher than the Executive the thirty-nine Congresses believed? That is and higher than Congress upon the subject the question. Senators, that is the state of of interpretation? the question, and in the condition of Andrew Do you believe, Senators-this is the ques- Johnson you can find no criminality in what he. tion which I desire to propound to you-that did. I have put the question to myself, putting Andrew Johnson at the time I have referred to myself in his place, with the views which I honestly thought that the Constitution lodged entertain of the President's duty, not to lie this power of removal in the hands of the Pres- down with his hand on his mouth, and his ident? Look back upon what he had before mouth in the dust before Congress, but to stand him upon which to form the opinion, and I put up as the Chief Magistrate of a nation whose again the question to you, do you believe he walls are the shores of a great continent, and honestly thought it was so? Your law was maintain the integrity of his department. He before him; these other laws were before him; shall execute your laws; he shall execute even and what did he propose to do? Just this: to the doubtful laws; but when you bring to him take up your law as it was and go to that tribu- a question like this; when he has all this prenal that could inform him finally and effectually cedent behind him and around him, all these how the question stood. voices sounding in his ears, as to what is the But what, Senators, shall be the effect upon rightinterpretation ofthe Constitution, and only the very question, admitting it as an original one the other way, I say you are going too far question to be one of doubt, of this long line to undertake to brand him with criminality of interpretation in every department of the because he proposed to go to the Supreme Government? I read you the rule that a long Court and ascertain how it is. To go there is and uniform interpretation makes a fixed inter- peaceable, is constitutional, is lawful. What pretation. A long anduniform interpretation, is that tribunal there for? For this very pursay for seventy years, of a doubtful question pose. under the - Constitution, would remove the I did not state the entire case in what I have doubt. What rule shall we apply? We are said. I should have referred you also to the now upon the subject of a power not expressed, President's care, to the proprieties of his conand yet we want stability in reference to these duct in reference to consulting those who, by powers just as much as if they were expressed. long usage, are the advisers and councilors of Stare decisis, that is the rule; and without it the President. You shut out many of those your Government has no stability whatever. inquiries. You would not hear from the deCan you fix the interpretation of one of these fense upon these questions. Suppose this: powers by construction? When shall it be ac- uppose it to have been brought to your attencomplished? In five hundred years? I think tion, Senators, that upon a question of moment ~youwouldallsaythat. Infourhundredyears? like this, a serious question, in which you 657 yourselves were interested, the President of ing provision ad interim, for that office; that he had the United States disregarded all the usages the right under the law; he claimed to have the that had prevailed in the conduct of the Ad- right, and his purpose was to have the office adminthat had prevailed in the conduct of the Ad- istered in the interest of the Army and of the counministration among other Presidents, turned try; and he offered me the office in that view. He his back upon his Cabinet, held no consulta- did not state to me then that his purpose was to tions, but going alone in willfulness and dis- bring it to the court directly, but for the purpose of tions, but going alon e in willfulness and dis- having the office administered properly in the interregard of those aruund him, did the act; it est of the Arcpy and of the whole country." would have been a sorry thing for President That was the condition of things. Here was Johnson if that proof could have been made a Cabinet officer who refused all intercourse. upon him; and yet the fact that he could prove Observe, Senators, I do not intend to go into just the contrary was shut out. Is not that a any inquiry as to right or wrong. I merely matter to be considered in determining, not state the naked fact. He refused all interupon the constitutionality of the law, but upon course. He carried oa the Department withthe question of guilt, for that is the question out communication with the President; a sort we have before this tribunal? of secondary executive. The unity of the CabNow, what was Mr. Johnson's condition? inet was gone. In that condition of things the He had a Cabinet officer who was unfriendly President felt it to be his duty, as Chief Magisto him. personally and politically. All the con- trate, to make a change in that Department. fidential relations between them were broken I see before me here this afternoon more than up. That Cabinet officer himself tells you, in one man who, if he were in that executive a letter to Congress, dated as late as 4th of chair, would not tolerate such a condition of February —I read from page 235 of the pro- things in his Cabinet. It is utterly impossible ceedings —that he " has had no correspondence to administer the executive part of the Govwith the President since the 12th of August ernment with division and wrangling and conlast;" -and he further says that since he re- troversy and want of confidence between all sumed the duties of the office he has continued the members of it; and in this necessity it was to discharge them' without any personal or that Mr. Johnson moved to procure a change written communication with the President;" in that Department. That was the case, his and he adds: own case, a case pressing upon him, not sought; " N.o orders have been issued from this Depart- and in executing the duty, as he conceived it to ment in the name of the President, with my know- b to effect that change he came in conflict. tedge, ard I ave received no orders from him." with this law, and proposed to have its constiIt thus appears that this Cabinet officer was tutional validity tested. really a new Executive, repudiating the Presi- But, says the gentleman, Mr. d.UTWE dent, having no official h says the gentleman, [Mr. BOUTWELL,] him, and proposing to communication with did not. I answer that he did. The petih~m, ansing the duties of his haen administer- tion for a writ of quo warranto was prepared; ing the duties ofhis Department without recog- and if these proceedings had not been instituted' nizing even the President's name; his enemy. t would have been filed. But how would he I will not. canvass the merits of these officers; have been laughed at, how would he have but the relation of confidence was gone which been ridiculed if he were now conducting in you will acknowledge should exist; for it not the Supreme Court proceedings on quo war-i unfrequentlyhappens, I may venture to say, that ranto, a termination of which could be reached you ask for what takes place in those Cabinet by no possibility for about a year, when at the consultations if the President is willing to re- time this thing was inaugurated it was reported move the seal of secrecy; I think such a request that he was to be impeached and evicted within. as that has been made within six months from ten, twenty, or thirty days? The case was th lower House, if not from the upper; but we brought here. He did prepare, but he had no know this, that it is a confidential relation, and opportunity to put it to a constitutional test. that when the confidence is gone the relation Mr. Stanton brought a suit against Mr. Lorenzo is destroyed. That was the President's con- Thomas. He had him arrested. Therewas dition. Here was a Cabinet officer, in fact, opportuni. By eason of that he could who was a'sort of executive running the office reach h e decision instantly, and how the could reach the decision instantly, and how the Presin his own name, not even proposing to com- ident snatched at it; and how it was snatched municate with the President. In this con- away from him that he might hot have the opdition of things Mr. Johnson found it to be his duty, as he communicated it to General Sher- portunity of testing the constitutionality of the duty, as he communicated it to General Sherto make a change in that Department law! So that the President stands fairly on man, to make a change in that Department. this question. Let me refer to General Sherman's language Talk of force here I here is the force on that subject. General Sherman says on on that subject. 1General Sherman says onWhere is even one single bitter personal interpage 519, in answer to a question that was put view in all this transaction? Not a quarrel of to him: words anywhere. And this is the performance "I intended to be very precise and very short; but of the Executive who started off to take posit appeared to me necessary to state what I began to state, that the President told me that the relations session of one of the Departments under his between himself and Mr. Stanton, and between Mr. charge by force! Well, Senators, we have Stanton and the other members of the Cabinet, were force in the pictures that might easily be drawn such that he could not execute the office which he filled as President of the United States without mak- of the termination of this transaction. Force C. I.-42. 658 isexhibited, if I may so express myself, in that take it. Did the President run then after cordial embrace of Thomas and Stanton, when somebody that was mischievous, somebody the one stood with his arm around the other, that would excite your apprehensions, and and ran his fingers affectionately through his give reason to fear that mischief might come silver locks. That is the force, the concentra- out of the movement? No. The next applition of " force, intimidation, and threats I" cation was to Major General Thomas. It And that is about all you can make of it. seemsthat the President picked out the three We offered to bring in here the' Cabinet to men of all others in the nation who should testify as to what their advice was upon that command your favor in regard to the pursubject, and you would not hear that. Al- poses he had in view. No; you cannot make though it was res gestce, if there were such a his conduct mischievous. He had one purthing to be found in any transaction, although pose, and that was to change that War Dethey had consulted upon this very question, partment, and it would have delighted him although their words were deeds, yet you would to make the change and to put there permanot hear them; you shut their mouths, and nently any competent man whom you would remitted us to the man from Delaware and the select; anything to get rid of the poisoned conempty utterances and boastings of Lorenzo dition of his Cabinet, and that he might have Thomas. What great truth-searchersare these unity and peace restored to it. Managers in this case I They want us to find But, say the gentlemen, he executed this force, to find this evil intent in the utterances law in other respects; he changed the forms of this man from Delaware and in the idle of his commissions; he reported suspensions conversations at an evening reception, or a under this law. So he did; and, Senators, it midnight masquerade, of a man " dressed in is one of the strongest facts in this case. He a little brief authority;" and yet they will did not take up this law and tear it to pieces. not hear the deliberations, the consultations That is lawlessness. He did not trample it that are held upon this very question, when under his feet. That is lawlessness. He took the transaction is hot in the mind of the party it up to have it interpreted in the case that who is about to perform it. There is no rescu- pressed upon him individually, and in all other ing this trial from the manifest imperfection respects he executed it without the surrender of the testimony on that point. of his own convictions. It was said in the Now, what was the President's purpose? suspension of Mr. Stanton, forinstance, that he Why did the President-I put the question to acted under your law. He did. I can adjust myself while this matter was in progress-ap- that suspension to the terms of your law: I can point-no; it is not an appointment-why did adjust it also to his own views; and instead of he give this letter of authority to Lorenzo seizing upon that as a subject of censure, I tell Thomas? He had to do it, Senators; there you it was an overture from the President, I was no other way he could adopt by which he know, to get out of this difficulty, and to concould put the case in condition to test the law. ciliate you in the hope that you would relieve If he had nominated to you the office would and let him have a Cabinet such as any of you have remained in the exact condition in which would demand if you were in his place. it was without a nomination; and therefore it Look at that suspension; look at the meswas necessary, by an arrangement of this kind, sage of suspension. He tells you, " My Cabto get some one who could represent the Gov- inet-and Mr. Stanton is the most emphatic ernment on that question; and that was the of all of them —believe this law is unconstituwhole purpose of it. What was his intention tional." Mr. Stanton was the one who was in all these movements? Just to get rid of this selected, as he tells you in the letter, to draw defiant, unfriendly Secretary. Allow me to use the veto. I wish he had not had a lame arm this expression without conveying any personal and he could have drawn it. It would have censure; but that was the relation in which he been sharper than the one you received. But stood to the President? he tells you in that act of suspension what What did he do? In the first place he ap- his views were about the law. He goes on plied to General Grant; and the honorable and tells you further, in that very message, Manager had the assurance to interpret that "We had this matter up in Cabinet meeting; as a mischievous movement-selecting a man one of the Secretaries appointed by Mr. Linwhom the country delights to honor, in whom coin said it did not apply to him, or to any it has the utmost confidence; ay, in whom the one of those who held over from the previous gentleman himself intends to express, erelong, term, and there was no dissent." All those still greater confidence. Selecting such a man opinions were in his mind. He communicated as that is to be regarded as a mischievous trans- them in the very message where you say he action. surrendered himself utterlyto the terms of the What next? The very next step he took was, tenure-of-civil-office bill. He did all that; and not to get a dangerous man, not to get a man in it is to his credit that he has not rushed into whom you had no confidence. The next man heedless and reckless controversy with the was GeneralSherman. Who darecharge wick- law, but has suffered it to be executed until edness or bad purpose upon such movements? the question of its constitutionality is in some What next? General Sherman would not way determined. 659 Now, gentlemen, I oannot believe-I have tary of the Department of War, or of any officer of been sitting here and listening to the evidence either of the said Departments whose appointment presented n ths ase r a long time and read- s not in the head thereof, whereby they cannot perpresented in this case for a long ti m anredform the duties of their said respective offices, it ing more or less about it, and I have never been shall be lawful for the President of the United able to come to the conclusion that, when all States, in case he shall think it necessary, to authorthese matters were laid before the Senate and yze any person or persons, at his discretion, to perform the duties of the said respective offices until a understood, they could convict the President successorbe appointed or such vacancy be filled: Proof criminality for what he has done. There is vided, That no one vacancy shall be supplied, in no force. Whfere is it Wh.here is the threat? manner aforesaid, for alonger termthansix months." Where is the intimidation? Nowhere. He did You will be pleased to observe that all postry to get into the courts. That we know. He sible conditions of the Departments requiring did his best to get there; ran after a case by temporary supply are expressed under the which he could have carried it there. Where single word " vacancy." It covers removal; is his criminality'? Is he criminal because he it covers the expiration of the term of office; did not surrender the convictions of his mind it covers a resignation; it covers absence; it on the constitutionality of the act of March 2, covers sickness; it covers every possible con1867? So was General Washington criminal; dition of the Department in which it may be so was Adams criminal. The voices of all necessary ad interim to supply the service. these Presidents sustain him; the voices of all This law was passed February 13, 1795. There the Congresses behind him sustain him; the has been another act passed, partly covering whole history of the Government sustains him the same ground, under the date of February in the position which he took. How, then, 20, 1863. The question is now, does the act can you find criminality in his conduct? of February 20, 1863, repeal the act of FebBut I will hurry on to the second question. ruary 13, 1795? Let us go back a moment before I go forward. Senators, allow me to call your attention to Return with me for an instant to the end of a few rules of interpretation in reference to that brief examination which I made of the statutes before I compare these. right construction of the tenure-of-civil-office 1. The law does not favor repeals by impliact. I told you then that if Stanton were not cation. Again, if statutes can be construed included the first eight articles of this impeach- together they are to stand. Further, a latter ment substantially fell; and, even if he were statute, in order to repeal a former one by imincluded, there could be no criminality if the plication, must fully embrace the whole subjectPresident acted upon a question of law under matter of it. Still again, to effect an entire the advice of the Attorney General, who was repeal, all the provisions of the previous statofficially designated for the very purpose of ute, the whole subject-matter of it, must be giving him that advice. So that from that point covered. of view the great portion of the case falls. I Let me illustrate. Suppose the reach of a have been examining it, however, in this other statute extended from myselfto yonder door, aspect. Suppose Stanton were under the law if I might illustrate it in that way; if a subseand we had not observed it. I then presented quent statute were passed which reached half the question, where is the power of removal way, it would repeal as much of the former lodged? Although you have your own opin- statute as it overlaid and leave the balance in ions,Senators, upon the question, differing from force. What lies beyond is legislative will, that of the President, I see around me gentle- still unrecalled, and is just as binding as the men who argued upon it ably. There is yet new statute. thQiother question which I have presented, and Now, we come to the comparison of these which must be met; and will you, can you, con- statutes. The statute of 1795 I have read. demn as criminal the President because with The statute of February 20, 1863, (12 Statutessuch light-as he had he thought differently, at-Large, p. 656,) provides for the case of and acted as I have described? "death, resignation, absence from the seat of I come qow to the next question, about the Government, or sickness." Death, resignaad interim appointment; and I beg you to ob- tion, absence, and sickness are the only cases serve that if you shall come to the conclusion covered by this statute. There are two cases that the President had the right to make an ad that are not provided for by it, and they are interim appointment, then there is a great ship- covered by the statute of 1795-removal, exwreck of this impeachment; it nearly all tum- piration of term. We are advised by this simbles into ruin. I beg you again, when you ple'statement that the reach of the statute of come to examine these articles, to see how 1795 was beyond that of the statute of Febmany of them are built upon the two facts, ruary 20, 1863, and so much as lies outside, the removal of Stanton and the ad interim beyond the latter statute, is still valid legislative letter given to Thomas. Now, had he the will by all fair rules upon the subject of the right to make that temporary appointment? repeal of statutes. He made it under the act of February 13, With these few remarks upon that subject I1 1795. Allow me to read it: come to the consideration of the ad interim "Thatin case of vacancy in the officeof Secretary question, and I will endeavor to consider it of State, Secretary of the Treasury, or of the Seere- very briefly. From the foundation of the Gov 660 ernment, as you have been advised by my col- page 583 of our proceedings. I will read the league [Mr. Curtis] and others, it has been message: the policy of the Government to provide for "To the Senate if the United States: these ad interim necessities. They are not ap- "In compliance with the resolution of the Senate, pointments. No commission goes. There is passed on the 10th instant, requesting me to inform no commission issued under the seal of the that body, if not incompatible with the public inno commission issued under the seal of the terest,'whether John B. Floyd, whose appointment United States in such cases. There is a mere as Secretary of War was confirmed by the Senate on letter of authority. Such appointees are not the 6th of March, 1857, still continues to hold said considered as filling the office. I will state a office and if not, when and how said office became vacant; and further to inform the Senate how and case to illustrate the character of an ad in- by whom the duties of said office are now discharged; tertinm appointment and the hold it takes upon and if an appointment of an acting or provisional the offic hen M. Ushur ws klled in Secretary of War has been made, how, when, and by the office. When Mr. Upshur was killed in what authority it was so made, and why the fact of 1844 an ad interim appointment was made to said appointment has not been communicated to the supply the vacancy occasioned by that accident, Senate,' I have to inform the Senate that John B. and soon afterward the President nominated to Floyd, the late Secretary of the War Department, and soon afterward the President nominated to resigned that office on the 29th day of December last, the Senate a gentleman to fill the place per- and that on the 1st day of January instant Joseph manentlyr. Holt was authorized by me to perform the duties of snanWh~~~ently.~~~~~.h~ mthe said office until a successor should be appointed When he made that nomination he nomin- or the vacancy filled. Under this authority the ated Mr. Calhoun in the place of Mr. Upshur, duties of the War Department have been performed deceased, not even noticing the ad interim by Mr. Holt from the day last mentioned to the appointee. That fairly illustrates the condi- presenttime." tion of an ad interim occupant of an office. It I call your attention, Senators, to this case has been the policy of the Government from especially, for this single reason, and it is imthe beginning to furnish these supplies to the portent: the Senate itself took the matter necessities of the Departments for sickness, tinder consideration, and inquired of the Presfor absence, for resignation, for any of these ident what he had done, why he had done causes. An officer at the head of a Depart- it, and by what authority he had done it. In ment dies; the President may wish to appoint other words, in the case of Holt the Senate some one at a distance; he may wish to inquire went into an actual investigation of the quesbefore he finally selects the person who is to tion, and that's the reason why I linger upon fill the place. He waits, and in the mean it. The Senate asked the President, "Why time the Department —say the Treasury Depart- did you do it, and why did you not report to ment, and others I might name, must be car- us?" Full inquiry was made bythe Senatein ried on, and the ad interim appointee steps in that case into this ad interim question, and and carries it on. This occurs just as well Mr. Buchanan replied as follows: during the session of the Senate as in the re-'The power to carry onthebusiness of the Governcess. There is not one particle of difference ment by means of a provisional appointment when a vacancy occurs is expressly given by the act of Febbetween a sessio# and a recess in the applica- ruary 13, 1795, which enacts'that in case of vacancy tion of this policy. The law makes no differ- in the office of Secretary of State, Secretary of the ence. Take the law of February 20, 1863; it War, or of the Secretary of thei Departmentof does not say in the recess you may act, but at whoseappointmentisnotintheheadthereofwhereby any time according to the necessity you may they cannot perform the duties of their said respectact. That is the rule, ive offices, it shall be lawful for the President of the act. That is the rule. United States, in case he shall think it necessary, to Now, Senators, I will dismiss this part of authorize any person or persons, at his discretion, to the subject by calling your attention to ad in- perform the duties of the said respective offices until a successor be appointed or such vacancy be filled: terim appointments that have been made dur- Provided, That no one vacancy shall be supplied: ing the session of heads of Departments. In in manner aforesaid for a longer period than six the first place I give you the case of Mr. months."' Nelson, who was appointed ad interim Secre- He replies that he did it under the law of tary of State during the session of the Senate. 1795, Senators will observe. He communiI give you the case of General Scott, who was cated that fact to the Senate. The Senate reappointed ad interim Secretary of War during ceived his communication, and were satisfied. the session of the Senate. I give you the case That is good res adjudicata on this question. of Mr. Moses Kelly, who was appointed ad The Senate took up on that occasion this identiinterim Secretary of the Interior Department cal question of ad interim appointments during during the session of the Senate. I give you the session, investigated it thoroughly, received the case of Mr. Holt, who was appointed dur- Mr. Buchanan's reply that he did it under the ing the session of the Senate Secretary of War very law under which we acted, and the Senate ad interim; but I intend to linger a little at concurred. There was no censure. If the the case of Mr. Holt. I call the attention of Senate did not censure that act, will they drag the Senate especially to that case, for it is PresidentJohnson here as a criminal and brand worthy of especial attention and considera- him with crimeforhisact? Ithinknot. The tion. The case is presented in a message cases are identical. You cannot discriminate communicated to the Senate by President between them. Both were done under the Buchanan on the 15th of January, 1861, which same law, both done during the session, both b.as been put in evidence and will be found on exactly alike. The one was not censured. 661 Shall the other be made the ground of criminal But I do not propose to discuss it. I wish to condemnation of President Johnson? present to you, Senators, a little history which I proceed now to glance at the Emoryarticle, article ten very forcibly suggests to my mind. and I shall simply glance at it, Senators. I In 1798 some good people in the country do not intend to linger upon such a charge as seem to have been operated upon very much this. It makes a great noise in the articles; as the Managers, or rather the House of Repbut it is very harmless in the proof. What is resentatives were in this instance, and they took the proof to sustain it? The President had it into their heads to get up what is called a an interview with General Emory, and in the sedition law, whichl is very like article ten. I course of that interview General Emory in- propose to read it. The act of July 14, 1798, formed him of the passage of a certain law by provided: which he as Commander-in-Chief was divested " That if any person shall write, print, utter or of the authority to issue commands directly, publish, or shall cause or procure to be written,:but they must pass through the General-in- printed, uttered orpublished, or shall knowingly and willingly assist or aid in writing, printing, uttering, Chief. They had a conversation upon the or publishing any false, scandalous, and malicious subject, and the President remarked in the writing or writings against the Government of the course of that conversation that the law was United States, or either House of the Congress of the United States, or the President of the United States,.unconstitutional. He had said it to you; he with intent to defame the said Government, or either did not say anything more to Emory; and House of the said Congress, or the said President, or -that is the enormous crime he committed un- to bring them, or either of them, into contempt or disrepute, or to excite against them, or either or any der article nine. He!said the law was uncon- of them, the hatred of the good people of the United,stitutional. What of that? It is in evidence States, or to stir up sedition within the United before you, and uncontradicted. Secretary States, or to excite any unlawful combinations therein, for opposing or resisting any law of the UniWelles tells you that the President had been ted States, or any act of the President of the United.informed that there were unusual movements States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the of troops going on in the city the night before, United States, or to resist, oppose, or defeat any such and Secretary Welles called upon the Presi- law or act, or to aid, encourage or abet any hostile dent to advise him of that fact, and the Presi- designs of any foreign nation against the United dent said he would inquire about it. He did. States, theirpeopleor Government, then such person, Genea d.Emory being thereof convicted before any court of the UniHe sent a note to General.Emory; General ted States having jurisdiction thereof, shall be punEmory waited upon him and gave him the in- ished by afinenotexceeding$2,000, and byimprisonformation. That is all. Is it not explained mentnotexceedingtwo years." why he sent for General Emory? Does any- I need not explain, Senators, the purpose of body contradict it? No. The time, the oc- this act. It expired by its own limitation. It casion, everything in the transaction, adjusts was the most offensive law that has ever been itself to that explanation and to no other. passed since the Government was organized. Here was a President whom you had subordi- So offensive was it that the people would not nated to an inferior officer-I mean to the ex- rest under it, although it was passed to last but tent of requiring him to pass his orders through three years. They started, as it were, the hue an inferior officer-who having heard these and cry against everybody who defended it or rumors of military movements going on, and was concerned in it, and hunted them to a being called upon by one of his Cabinet officers political death. But it was a good law comto look into it responded, " Iwill inquire;" pared with article ten. The sedition law of and he did. That is all there is of article nine. 1798 condemnedwhat? Itcondemnedtheact I will not delay upon it any longer. of cooly and under no provocation or excite4I now come to article ten. I shall leave the ment preparing and publishing a libel against labored discussion of this article to my col- the Government or aniy department thereof; league [Mr. Evarts] who is to come after me. but so clamorous and indignant were the peoBut I wish to say just a few words about it. I plo over such legislation that they broke it refer you in reply to this whole, article to the down; and the consequence has been, so unconstitutional provision bearing upon this sub- popular was it, that Congress has not ventured ject, denying to Congress the right to abridge to pass a law upon the subject of libel against the freedom of speech. Are there any limita the Government or any department from that tions to this privilege? Does it belong only to day to this. It has been reserved forthe House the private citizen? Is it denied to officers of of Representatives, through its Managers, to the Government? May not tlieExecutivefreely renew the practice in a more objectionable canvass the measures of any other department? form. And I take it upon myself to suggest May Congress set itself up as the standard of that before we are to be condemned in a court good taste? Has it authority to prescribe the of impeachment we shall have some law upon rules of presidential decorum? Will it not be the subject; and I have ventured to draw up, quite enough if Congress will preserve its own and I shall close my examination of this pardignity? Shall it dictate the forms of expres- ticular question by presenting to you the draft sion in which it may be referred to? Can you of a bill which I have made on article ten of punish in the forum of impeachment what Con- this impeachment. It should have a preamble gress cannot forbid in the form of law? These of course. I will proceed to read it: are pertinent questions bearing upon article ten. Whereas it is highly improper for the President of the United' States or any other officer of the execu- Now, Senators, I have gone over this case as tive department or of any department to say any- far as I intend to do in my condition, though thing tending to bring ridicule or contempt upon not so far as I pro the Congress of the United States, or to impair the not so far as I proposed to do when I prepared regard of the good people of the United States for my brief. But I know I am to be followed by the Congress and the legislative power thereof, a gentleman who will go over it step by step (which all officers of the Government ought inviolably to preserve and maintain;) and whereas (quot- article by article, in all probability, and thereing in part from an' argument of the Managers) the fore I feel the more safe in omitting a part of dignity of station, the proprieties of position, the what I have prepared to say and what under courtesies of office, all of which are a part of the common law of the land, require the President of other circumstances I should have been glad the United States to observe that gravity of deport- to say. I stand now beyond article eleven, bement, that fitness of conduct, that appropriateness of demeanor, and those amenities of behavior which yond al the articles, and I ask you to look are a part of his high official functions; and whereas back with me upon the case. What questions he stands before the youth of the country as the are involved in it? I am happy to be able to exemplar of all that'is of worth in ambition, or that say that there is no politicalquestion; that there is to be sought in aspiration, and before the men ofno political question; that there the country as a grave magistrate, and before the is no party question. I was glad, the defense world as the representative of free institutions; and was glad, the counsel were glad of the opportuwhereas it is the duty of Congress, and especially of nity of relieving you from the embarrassment the House of Representatives, as the fountain of national dignity, to lay down rules of decorum, and of any such questions. The questions presented to regulate the manners and etiquette proper for are these: this and every other high officer of the Government: 1. Where s the power of removal lodged Therefore, Be it enacted, &c., That if the President or any other by the Constitution? officer shall say anything displeasing to Congress, or 2. Is Stanton covered by the civil-tenure act? either branch thereof, or shall it any addresses, ex- 3. Could the President make an ad interim temporaneous or written, which he may be required appointment? to make in response to calls from the people, say appointment? anything tending to impair the regard of the people 4. Did he do anything mischievous in his for Congress, or either branch thereof, or if he shall interview with General Emory? use any unintelligible phrases, such as that "Congress is a body hanging as it were on the verge of the And then there is this matter of the libert Government," or say that it is " a Congress of only a of speech, which, I apprehend, nobody intends part of the States," because ten States are not repre- to take on his back and carry as a heavy load sented therein; or if he shall charge it in such addresses with encroaching upon constitutional rights, for the rest of is life, so that we have no however he may think; or if he shall misquote or political questions here. I am glad it is so. carelessly quote the sacred Scriptures, or in any of They are dry questions of practice and of law; said extemporaneous addresses use bad grammar, then, and in either of such cases, he shall be guilty one of them the oldest question in the history of a high misdemeanor, and upon trial and conviction of the Government. And on this statement thereofshall befined in anysumnotexceeding$10,000, of the case, when you strip it of all the verbior imprisoned not exceeding ten years. [Laughter] age ad rumor and talk of eery kind, stand age and rumor and talk of every kind, standThat is article ten. [Laughter.] ing almost naked upon a few technical propoThe next, and last, is article eleven. Sen- sitions, upon such a case we ask your judgment ators, I have discussed article eleven already of acquittal. We are entitled to it beyond all with the exception of one single feature, andthat peradventure. It almost shocks me to think is the part of it which charges obstruction or that the President of the United States is to be interference with the law for the reconstruc- dragged out of his office on these miserable tion of the rebel States. That is the only fea- little questions, whether he could make an ture in article eleven I have not fully answered ad interim appointment for a single day, or in the remarks I have made in connection with whether in anything he did there was so great other articles. Now, what shall I say of that? a crime that you should break the even flow I am glad, Senators, that I have nothing to say of the Administrations of the country, disturb upon the subject. What testimony has the the quiet of the people,&and impair their conprosecution offered in support of that charge? fidence in a great degree inthe stability of their They offer this single testimony, and no other: Government; that you should, in a word, take a telegram from Parsons, and a reply from the possession of the Executive, and, what is worse President, dated in the January preceding the and most unfortunate in the condition of things, March when the law was passed. Need I pause empty the office and fill it with one of your upon such proof of the violation or obstruction own number. Not on this case. Surely not of a thing not in esse when the act was done? on this case, Senators. I cannot understand We heard a magnificent oration from one how such a thing can possibly be done. How of the honorable Managers two days ago; but miserable is this case I An ad interim appointthe defect of it was, it had nothing to sup- ment for a single day, an attempt to remove port it. He made his magnificent oration, Edwin M. Stanton, who stood defiantly, and, sounding with sonorous sentences through right or wrong, had destroyed the harmony and this Hall, for about three hours, on that tele- unity of the Cabinet. I do not speak in censure gram of January 15, 1867, which was sent two of Mr. Stanton-such is the fact. That is all! months before the law was passed. That is all Senators, we have been referred to a great the proof: If we intend tojuidge this case upon many precedents. I heard one of the honorproof here presented, that is all the proof he able Managers talk two days ago about Charles had for a large portion of his speech. I, and we have had abundance of precedents 663 submitted on the subject of expediency and full of honest, patriotic sentiments; when rethings like that; policy, if you please, as if viled he should not revile again, when smitten this were a measure and not a trial. We have upon one cheek he should turn the other. nothing to do with measures in the high court But, says the gentleman who spoke last on of impeachment. You are trying the defend- behalf of the Managers, he tried to defeat paant on the charges set forth in these articles cification and restoration. I deny it in the and upon the proof offered from the witness- sense in which he presented it-that is, as a stand, and upon nothing else. I, too, can criminal act. Here, too, he followed precepoint to those precedents to which the gentle- dent and trod the path on which were the footmen have called your attention-the miserable prints of Lincoln, and which was bright with precedents which they have brought up on the the raldiance of his divine utterance, "charity subject of impeachment, even from centuries for all, malice toward none." He was eager back; and they are to me, as they should be for pacification. He thought that the war was to all of us, not examples for imitation, but ended. The drums were all silent; the arsenals "beacon lights to warn us from the dangerous were all shut; the roar of the cannon had died rocks on which they are kindled." Let us away to the last reverberations; the armies shun all unnecessary violence. As we sow, so were disbanded; not a single enemy confronted shall we reap; like begets like; violence, vio- us in the field. Ah, he was. too eager, too forlence, and the practice of to-day shall be the giving, too kind. The hand of conciliation precedent for to-morrow. was stretched out to him and he took it. It What shall be your judgment? What is to may be he should have put it away, but was it be your judgment, Senators, in this case? a crime to take it? Kindness, forgiveness a Removal from office and perpetual disqualifi- crime? Kindness a crime? Kindness is omnipcation? If the President has committed that otent for good, more powerful than gunpowder for which he should be ejected from office it or cannon. Kindness is statesmanship. Kindwere judicial mockery to stop short of the ness is the high statesmanship of heaven itself. largest disqualification you can impose. It The thunders of Sinai do but terrify and diswill be a heavy judgment. What is his crime. tract; alone they accomplish little; it is, the in its moral aspects, to merit such a judgment? kindness of Calvary that subdues and pacifies. Let us look at it. What shall I say of this man? He is no He tried to pluck a thorn out of his very theorist; he is no reformer; I have looked heart, for the condition of things in the War over his life. He has ever walked in beaten Department, and consequently in his Cabinet, paths, and by the light of the Constitution. did pain him as a thorn in his heart. You fas- The mariner, tempesttossedatmid-sea,'does not tened it there, and you are now asked to pun- more certainly turn to his star forguidance than ish him for attempting to extract it. What does this man in trial and difficulty to the star more? He made an ad interim appointment of the Constitution. He loves the Constituto last for a single day. You could have term- tion. It has been the study of his life. He is inated it whenever you saw fit. You had only not learned and scholarly, like many of you; to take up the nomination which he sent to he is not a man of many ideas or of much you, which was a good nomination, and act speculation; but by a law of the mind he is upon it and the ad interim appointment van- only the truer to that he does know. He is a ished like smoke. He had no idea of fastening patriot, second to no one of you in the measure it upon the Department. He had no intention of his patriotism. He loves his country; hemay to do anything of that kind. He merely pro- be full of error; I will not canvass now his posed that for the purpose, if the opportunity views; but he loves his country; he has the should occur, of subjecting this law to a con- courage to defend it, and I believe to die for it stitutional test. That is all the purpose it was if need be. His courage and his patriotism to answer. It is all for which it was intended. are not without illustration. The thing w'as in your hand from the beginning My colleague [Mr. Nelson] referred the to the Ind. You had only to act upon the other day to the scenes which occurred in this nomination, and the matter was settled. Chamber when he alone of twenty-two SenSurely that is no crime. ators remained; even his State seceded, but I point you to the cases that have occurred he remained. That was a trial of his patriotof ad interim appointment after ad interim ism, of which many of you, by reason of your appointment; but I point especially to the locality your and life-long association, know case of Mr. Holt where the Senate in its legis- nothing. How his voice rang out in this Hall lative capacity examined it, weighed it, de- in the hour of alarm for the good cause, and in cided upon it, heard the report of the Presi- denunciation of the rebellion. But he did not dent, and received it as satisfactory. That is, remain here; it was a pleasant, honorable, for the purposes of this trial, before the same safe, and easy position; but he was wanted tribunal res adjudicata, I think, and it will be for a more difficult and arduous and perilous so regarded. service. He faltered not, but entered upon it. What else did he do? He talked with an That was a trial of his-courage and patriotism officer about the law. That is the Emory arti- of which some of you who now sit in judgment cle. He made intemperate speeches, though on more than his life know nothing. 1 have 664 often thought that those who dwelt at the MONDAY, April 27, 1868. North, safely distant from the collisions and The Chief Justice of the United States took strife of the war, knew but little of its actual, the chair. trying dangers. We who lived on the border The usual proclamation having been made know moe.Ou orzo asalay edwih The usual proclamation having been made know more. Our horizon was always red with by the Sergeant-at-Arms, its flame; and it sometimes burned so near us The Managers of the impeachment on the that we could feel its heat upon the outstretched part of the House of epresentatives and the part of the House of Representatives and the hand. But he was wanted for greater peril, counsel for the respondent, except Mr. Stanand went into the very furnace of the war, and bery, appeared and took the seats assigned to there served his country long and well,'Who bery, appeared and took the seats assigned to there served his country long and well. Who themrespectively. of you have done more? Not one. There isers of the HouseofRepresentaone here whose services cannot be over-esti- he members of the House of Representa tives, as in Committee of the Whole, preceded paisonted, as well know,and I withdrawall com- by Mr. E. B. WASHBURNE, chairman of that. n,,..committee, and accompanied by the Speaker But it is enough to say that his services were committee, and accoand by the Speaker it seems hard, it seems and Clerk, appeared and were conducted to great and needed; and itthe seats provided for thems cruel, Senators, that he should be dragged here eats pro or em. as a crimiagged here The Journal of last Saturday's proceedings as a criminal, or that any one who served his of the Senate sitting for the trial of impeachcountry and bore himself well and bravely through that trying ordeal, should be con- The CIEFJUSTICE. The firstbusiness demned upon miserable technicalities. demned upon miserable technicalities, in order is the consideration of the order subIf he has committed any gross crime, shock- mitted by the Senater from Vermont, [Mr. mitted by the Senater from Vermont, [Mr. ing alike and indiscriminately the entire public EDMUNDS.] The Secretarywill read the order. mind, then condemn him; but he has rendered service to the country that entitles him to kind and respectful consideration. He has prece- Ocdered, That after the arguments shall be concluded, and when the doors shall be closed for dedents for everything he has done, and what liberation upon the final question, the officialreportexcellent precedents I The voices of the great ers of the Senate shall take down the debates upon dead come to us from the grave sanctioning his the final question, to be reported in the proceedings. course. All our past history approves it. How Mr. WILLIAMS. Mr. President, I propose can you single out this man now, in this condi- an amendment to the resolution, which I send tion of things, and brand him before the world, to the Clhair. put your brand of infamy upon him because he The Chief Justice readthe amendment, which made an ad interim appointment for a day; was to add to the proposed order the following and possibly may have made a mistake in at- words: tempting to remove Stanton? I can at a glance But no Senator shall speak more than once, nor to put my eye on Senators here -who would not exceed fifteen minutes, during such deliberation. endure the position which he occupied. You Mr. JOHNSON. Mr. Chief Justice. I ask do not think it is right yourselves. You framed for the reading of the rule in relation to the this civil-tenure law to give each President his time Senators are permitted to speak. I think own Cabinet, and yet his whole crime is that it is fifteen minutes upon each article. he wants harmony and peace in his. The CHIEF JUSTICE. The Secretary will Senators, I will not go on. There is a great read the rule. a deal that is crowding on my tongue for utter- The Chief Clerk read rule twenty-three, as ance, but it is not from my head; it is rather follows: from my heart; and it would be but a repeti- "XXIII. All the orders anddecisions shall e made tion of the vain things I have been saying the and had by yeas and nays, which shall be entered past half hour. But I do hope you will not on the record, and without debate, except when the drive the President out and take possession of doors shall be closed for deliberation, and in that case no member shall speak more than once on one his office. I hope this not merely as counsel question, and for not more than ten minutes on an for Andrew Johnson-for Andrew Johnson's interlocutory question, and for not more than fifteen administration is to me but as a moment, minutes on the final question, unless by consent of the Senate, to be had without debate; but a motion and himself as nothing in comparison with the to adjourn may be decided without the yeas and possible consequences of such an act. No nays, unless they be demanded by one fifth of the good can come of it, Senators, and how much members present." will the heart of the nation be refreshed if at Mr. JOHNSON. That is upon each article, last the Senate of the United States can, in its as I supposed. judgment upon this case, maintain its ancient Mr. EDMUNDS. No, sir; it is not. dignity and high character in the midst of storm The CHIEF JUSTICE. The question is on and passion and strife. the amendment proposed by the Senator from Mr. GRIMES. Mr. Chief Justice, I move Oregon, [Mr. WLLLIAMS.] that the Senate, sitting as a court of impeach- Mr. HOWARD. I move to amend the nent, adjourn. amendment by adding after the words " fifThe motion was agreed to; and the Sen- teen minutes"' the words "on one question.'" ate, sitting for the trial of the impeachment, The CHIEF JUSTICE. The question is on adjourned. the amendment proposed by the Senator from 665 Michigan to the amendment of the Senator Hon. THADDEUS STEVENS, one of the from Oregon. Managers on behalf of the House of RepreMr. SUMNER called for the yeas and nays, sentatives, addressed the Senate as follows: and they were ordered; and being taken, re- Mr. Chief Justice, may it please the court, sulted-yeas 19, nays 30; as follows: I trust to be able to be brief in any remarks, YEAS-Messrs. Bayard, Buckalew, Davis, Dixon, unless I should find myself less master of Doolittle, Fessenden, Fowler, Frelinghuysen, Grimes, the subject which I propose to discuss than Hendricks, Howard, Johnson, MCreery, Norton, ihope. Experience has taught that nothing Patterson of Tennessee, Saulsbury, Trumbull, Vickers, and Nrilley-19. is so prolix as ignorance. I fear I may prove NAYS-Messrs. Cameron, Cattell, Chandler, Conk- thus ignorant, as I had not expected to take ling, Corbett, Cragin, Drake, Edmunds, Ferry, Harlan, Henderson, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye,' Patterson of New I shall discuss but a single article-the one Hampshire, Pomeroy,Ramsey, Ross, Sherman. Stew- that was finally adopted upon my earnest art, Sumner, Thayer, Tipton, Van Winkle, Williams, s Wilson, and Yates-30.' solicitation, and which, if proved, I considered NOT VOTING-Messrs. Anthony, Cole, Conness, then, and still consider, as quite sufficient for Sprague, and Wade-5. the ample conviction of the distinguished reSo the amendment to the amendment was spondent and for his removal from office, rejected. which is the only legitimate object for which The CHIEF JUSTICE. The question re- this impeachment could be instituted. curs on the amendment offered by the Senator During the very brief period which I shall from Oregon. occupy I desire to discuss the charges against Mr. BAYARD. I move to amend the the respondent in no mean spirit of malignity amendment by striking out "fifteen'" and or vituperation, but to argue them in a manner inserting "thirty;" and on that I ask for the worthy of the high tribunal before which I -yeas and nays. appear and of the exalted position of the The yeas and nays were ordered; and being accused. Whatever may be thought of his taken, resulted-yeas 16, nays 34; as follows: character or condition, he has been, made respectable and his condition has been dignified Dixon, Doolittle, Fessenden Fowler, Grimes, end- by the action of his fellow-citizens. Railing ricks, Johnson, McCreery, Norton, Patterson of Ten- accusation, therefore, would ill become this nessee, Saulsbury, and Vickers-16. occasion, this tribunal, or a proper sense of lerNAYS-onkling, raginthonyrake, Edrmunds, CattFellrry,Chnd- the position of those who discuss this question linghuysen, Harlan, Henderson, Howard, Howe, Mor- on the one side or the other. gan, Morrill of Maine, Morrill of Vermont, Morton, To see the chief servant of a trusting comNye, Patterson of New Hampshire, Pomeroy. Ram- munity arraiged before the bar of public sey,Ross, Sherman, Stewart, Sumner, Thayer, Tipton, munity arraigned before the bar of public Trumbull, Van Winkle, Willey, Williams, Wilson, justice, charged with high delinquencies, is and Yates-34. interesting. To behold the Chief Executive NOT WVOTING-Messrs. Cole, Conness, Sprague, Magistrate of a powerful people charged with an.So the ame-4 dment to the amendm nt was the betrayal of his trust, and arraigned for high So the ametidment to the amendment was crimes and misdemeanors, is always a most rejected.. interesting spectacle. When the charges against The CHIEF JUSTICE. The question re- such public servant accuse him of an attempt curs on the amendment of the Senator from to betray the high trust confided in him and Oregon. usurp the power of a whole people, that he may Mr. MORTON. I move the postponement become their ruler, it is intensely interesting to of the further consideration of this subject millions of men, and should be discussed with Until after the argument is concluded by the a calm determination, which nothing can divert counsel and the Managers. and nothing can reduce to mockery. Such is Mr. HOWARD. I second that motion. the condition of this great Republic, as looked The motion to postpone was agreed to. upon by an astonished and wondering world. The CHIEF JUSTICE. The next business The offices of impeachment in England and in orderls the consideration of the proposed America are very different'from each other in new rules submitted by the Senator from Mas- the uses made of them for the punishment of sachusetts, [Mr. SUMNER.] The first one of offenses; and he will greatly err who underthem will be read. takes to make out an analogy between them, Mr. SUMNER. Mr. Presidpnt, I ask that either in the mode of trial or the final result. those propositions, which were moved by me In England the highest crimes may be tried on Saturday, may go over until after the close before the high court of impeachment, and the of the argument. severest punishments, even to imprisonment, The CHIEF JUSTICE. If there be no fine, and death, may be inflicted. objection the proposition of the Senator from When our Constitution was framed all these Massachusetts will be considered as agreed to, personal punishments were excluded from the and the proposed rules will go over. Gentle- judgment, and the defendant was to be dealt men Managers on the part of the House of with just so far as the public safety required, Representatives, you will please proceed with and no further. Hence it was made to apply the argument. simply to political offenses —to persons holding 666 political positions, either by appointment or On the 2d day of March, 1867, Congress election by the people. passed a law, over the veto of the President, Thus it is apparent that no crime containing entitled "An act to regulate the tenure of cermalignant or indictable offenses higher than tain civil offices," the first section of which is misdemeanors was necessary either to be al- as follows: leged or proved. If the respondent was shown "Be it enacted by the Senate and House of Representto be abusing his official trust to the injury of atives of the United States of America in Congress asthe people for whom he was discharging pub- semnbled That every person holding any civil office the people r whom he was discharging pub to which he has been appointed by and with the adlic duties, and persevered in such abuse to the vice and consent of the Senate, and every Person who injury of his constituents, the true mode of may hereafter be appointed to any such office and dealing with him was to impeach him for crime shall become duly qualified to act therein, is and dealing wthiwatoiprcrimes shall be entitled to hold such office until a successor or misdemeanors, (and only the latter is neces- shall have been in like manner appointed and duly sary,) and thus remove him from the office qualified, except as herein otherwise provided: Prowhich he was abusing. Nor does it make a vided, That the Secretaries of State. of the Treasury, of War, of the Navy, and of the Interior, the Postparticle of difference whether such abuse arose master General, and the Attorney General, shall from malignity, from unwarranted negligence, hold their offices respectively for and during the term or from depravity, so repeated as to ake his of the President by whom they may have been apor from depravity, so repreated as to make his pointed, and fQr one month thereafter, subject to continuance in office injurious to the people removal by and with the'advice and consent of the and dangerous to the public welfare. Senate." The punishment which the law, under our The second section provides that when the Constitution, authorizes to be inflicted fully Senate is not in session, if the President shall demonstrates this argument: that punishment deem the officer guilty of acts which require upon conviction extends only to removal from his removal or suspension, he may be susoffice, and if the crime or misdemeanor charged pended until the next meeting of the Senate; be one of a deep and wicked dye the culprit and that within twenty days after the meeting is allowed to run at large, unless he should be of the Senate the reasons for such suspension pursued by a new prosecution in the ordinary shall be reported to that body; and, if the courts. What does it matter, then, what the Senate shall deem such reasons sufficient for motive of the respondent might be in his re- such suspension or removal, the officer shall peated acts of malfeasance in office? Mere be considered removed from his office; but if mistake in intention, if so persevered in after the Senate shall not deem the reasons sufficient proper warning as to bring mischief upon the for such suspension or removal, the officer shall community, is quite sufficient to warrant-the forthwith resume the functions of his office. removal of the officer from the place where he and the person appointed in his place shall is working mischief by his continuance in power. cease to discharge such duties. The only question to be considered is: is On the 12th day of August, 1867, the Senate the respondent violating the law? His perse- then not being in session, the President sus3 verance in such a violation, although it shows pended Edwin M. Stanton, Secretary of the a perverseness, is not absolutely necessary to Department of War, and appointed U. S. his conviction. The great object is the re- Grant, General, Secretary of War ad interim. moval from office and the arrest of the public On the 12th day of December, 1867, the Seninjuries which he is inflicting upon those with ate being then in session, he reported, accordwhose interests he is intrusted. ing to the requirements of the act, the causes The single charge which I had the honor to of such suspension to the Senate, which duly suggest I am expected to maintain. That took the same into consideration. Before the duty is a light one, easily performed, and Senate had concluded its examination of the which, I apprehend, it will be found impossible question of the sufficiency of such reasons he for the respondent to answer or evade. attempted to enter into arrangements by which When Andrew Johnson took upon himself he might obstruct the due execution of the the duties of his high office he swore to obey law, and thus prevent Edwin M. Stanton from the Constitution and take care that the laws be forthwith resuming the functions of his office faithfully executed! That, indeed, is and has as Secretary of War, according to the provisalways been the chief duty of the President of ions of the act, even if the Senate should the United States. The duties of legislation decide in his favor. and adjudicating the laws of his country fall And in furtherance of said attempt, on the in no way to his lot. To obey the commands 21st day of February, 1868, he appointed one of the sovereign power of the nation, and to Lorenzo Thomas, by letter of authority or comsee that others should obey them, was his mission, Secretary of War ad interim,. without whole duty-a duty which he could not escape, the advice and consent of the Senate, although and any attempt to do so would be in direct the same was then in session, and ordered him violation of his official oath; in other words, (the said Thomas) to take possession of the a misprision of perjury. Department of War and the public property I accuse him, in the name of the House of appertaining thereto, and to discharge the duRepresentatives, of having perpetrated that ties thereof. foul offense against the laws and interests of We charge that, in defiance of frequent his country. warnings, he has since repeatedly attempted to carry those orders into execution, and to sion would have been a misdemeanor in itself. prevent Edwin M. Stanton from executing the But if he held a valid commission, whose cornlaws appertaining to the Department of War mission was it? Not Andrew Johnson's. Then and from discharging the duties of the office. in whose term was he serving, for he must have The very able gentleman who argued this been in somebody's term? Even if it was in. case for the respondent has contended that Johnson's term, he would hold for four years Mr. Stanton's case is not within the provisions unless sooner removed, for there is no term of the act regulating the tenure of certain spoken of in the Constitution of a shorter civil offices, and that therefore the President period for a presidential term than four years. cannot be convicted of violating that act. His But it makes no difference in the operation argument in demonstrating that position was of the law whether he was holding in Lincoln's not, I think, quite equal to his sagacity in dis- orJohnson'sterm. Wasitnotin Mr. Lincoln's covering where the great strength of the prose- term? Lincoln had been elected and reelected, cution was lodged. He contended that the the second term to commence in 1865, and the proviso which embraced the Secretary of War Constitution expressly declared that that term did not include Mr. Stanton, because he was should be four years. not appointed by the President-in whose term By-virtue of his previous commission and the acts charged as misdemeanors were per- the uniform custom of the country, Mr. Stanton petrated; and in order to show that, he con- continued to hold during the term of Mr. Lintended that the term of office mentioned dur- coln, unless sooner removed. Now, does any ing which he was entitled to hold meant the one pretend that from the 4th of March, 1865, time during which the President who ap- a new presidential term did not commence? pointed him actually did hold, whether dead For it will be seen upon close examination that or alive; that Mr. Lincoln, who appointed the word "term" alone marks the time of the Mr. Stanton, and under whose commission he presidential existence, so that it may divide was holding indefinitely, being dead, his term the different periods of office by a well recogof office referred to had expired, and that Mr. nized rule. Instead of saying that the Vice Johnson was not holding during a part of that President shall become President upon his term. That depends upon the Constitution and death the Constitution says: the laws made under it. By the Constitution, "In ease of theremoval ofthe Presidentfrom office, the whole time from the adoption of the Gov- or of his death, resignation, or inability to discharge ernment was intended to be divided into equal the powers and duties of the said office, the same shall presidential periods, and the word " term," devolve on the VioePresident." was technically used to designate the time of What is to devolve on the Vice President? each. The first section of the second article -Not the presidential commission held by his of the Constitution provides- predecessor, but the "duties" which were "That the executive power shall be vested in a incumbent on him. If he were to take Mr. President of the United States of America. He shall Lincoln's term he would serve for four years, hold his office during the term of four years, and for term is the only limitation to that office together with the Vice President, chosen for the same term, be elected as follows," &c. defined in the Constitution, as I have said Then it provides that-.- before. But the learned counsel has contended that the word "term" of the presidential office "In cases of removal from office, or of his death, means the death of the President. Then it resignation, or inability to discharge the duties of wuld have been better expressed b said office, the same shall devolve on the Vice Pres- would have been better expressed by saying ident, and Congress may by law provide for the case that the President shall hold his office during otE removal, death, resignation, or inability both the term between two assassinations, and then of the President and Vice President, designating the assassination of the Preident would mar what officer shall then act as President, and such the assassination of the President would mark officer shall act accordingly until the disability be the period of the operations of this law. removed or a President shall be elected." If, then, Mr. Johnson was serving out one The learned counsel contends that the Vice of Mr. Lincoln's terms, there seems to be no President who accidentally accedes to the argument against including Mr. Stanton within duties of President, is serving out a new pres- the meaning of the law. He was so included idential term of his own, and that, unless Mr. by the President in his notice of removal, in Stanton was appointed by him, he is not *ithin his reasons therefor given to the Senate, and in the provisions of the act. It happened that his notification to the Secretary of the TreasMr. Stanton was appointed by Mr. Lincoln ury; and it is too late, when he is caught vioin 1862 for an indefinite period of time, and lating the very law under which he professes was still serving as his appointee, by and with to act, to turn round and deny that that law the advice and consent of the Senate. Mr. affects the case. The gentleman treats lightly Johnson never appointed him, and, unless he the question of estoppel; and yet really nothing held a valid commission by virtue of Mr, Lin- is more powerful, for it is an argument by the coln's appointment, he was acting for three party himself against himself, and although years, during which time he expended billions not pleadable in the same way is just as potenof money and raised hundreds of thousands of tial in a case in pais as when pleaded in a case men, without any commission at all, To per- of record. mit this to be done without any valid commis- But there is a still more conclusive answer. 668 The first section provides that every person had himself made issue on its constitutionality holding civil office who has been appointed and been defeated. No pretext, therefore, any -with the advice and consent of the Senate, and longer existed that such right was vested in every person that hereafter shall be appointed the President by virtue of his office. Hence. to any such office, shall be entitled to hold such the attempt to shield himself under such pracoffice until a successor shall have been in like tice is a most lame evasion of the question manner appointed and duly qualified, except at issue. Did he "take care that this law -as herein otherwise provided. Then comes the should be faithfully" executed? He answers proviso which the defendant's counsel say does that acts that would have violated the law, had not embrace Mr. Stanton, because he was not it existed, were practiced by his predecessors. appointed by the President in whose term he How does that justify his own malfeasance?:was removed. If he was not embraced in the The President says that he removed Mr. proviso, then he was nowhere specially pro- Stanton simply to test the constitutionality of vided for, and was consequently embraced in the tenure-of-office law by a judicial decision. the first clause of the first section, which de- He has already seen it tested and decided by clares that every person holding any civil office the votes, twice given, of two thirds of the not otherwise provided for comes within the Senators and of the House of Representatives. provisions of this act. It stood as a law upon the statute-books. No The respondent, in violation of this law, ap- case had arisen qnder that law, or is referred -pointed General Thomas to office, whereby, to by the President, which required any judiaccording to the express terms of the act, he cial interposition. If there had been, or should was guilty of a high misdemeanor. But what- be, the courts were open to any one who felt -ever may have been his views with regard to aggrieved by the action of Mr. Stanton. But the tenure-of-office act he knew it was a law, instead of enforcing that law he takes advanand so recorded upon the statutes. I disclaim tage of the name and the funds of the United all necessity in a trial of impeachment to prove States to resist it, and to induce others to resist the wicked or unlawful intention of the re- it. Instead of attempting, as the Executive spondent, and it is unwise ever to aver it. of the United States, to see that that law was In impeachments, more than in indictments, faithfully executed, he took great pains and the averring of the fact charged carries with it perpetrated the acts alleged in this article, not all that it is necessary to say about intent. In only to resist it himself, but to seduce others indictments you charge that the defendant, to do the same. He sought to induce the Gen"instigated by the devil," and so on; and you eral-in-Chief of the Army to aid him in an might as well call on the prosecution to prove open, avowed obstruction of the law as it stood the presence, shape, and color of his majesty, unrepealed upon the statute-book. He could as to call upon the Managers in impeachment find no one to unite with him in perpetrating to prove intention. I go further than some, such an act until he sunk down upon the'unand contend that no corrupt or wicked motive fortunate individual bearing the title of Adjuneed instigate the acts for which impeachment tant General of the Army. Is this taking care is brought. It is enough that they were official that the laws shall be faithfully executed? Is violations of law. The counsel have placed this attempting to carry them into effect, by great stress upon the necessity of proving that upholding their validity, according to his oath? they were willfully done. If by that he means On the other hand, was it not a high and bold that they were voluntarily done I agree with attempt to obstruct the laws and take care him. A mere accidental trespass would not be that they should not be executed? He must sufficient to convict. But that which is volun- not excuse himself by saying that he had tarily done is willfully done, according to every doubts of its constitutionality and wished to honest definition; and whatever malfeasance test it. What right had he to be hunting up is willingly perpetrated by an office-holder is a excuses for others, as well as himself, to viomisdemeanor in office, whatever he may allege late this law? Is not this confession a miswas his intention. demeanor in itself? The President justifies himself by asserting The President asserts that he did not rethat all previous Presidents had exercised the move Stanton under the fenure-of-office law. same right of removing officers, for cause to Thisois a direct contradiction of his own letter be judged of by the President alone. Had to the Secretary of the Treasury, in which. as there been no law to prohibit it when Mr. he was bound by law, he communicated to that Stanton was removed the cases would have officer the fact of the removal. This portion been parallel, and the one might be adduced of the answer may, therefore, be considered as as an argument in favor of the other. But, disposed of by the non-existence of the fact, since the action of any of the Presidents to as well as by his subsequent report to the which he refers, a law had been passed by Senate. Congress, after a stubborn controversy with The following is the letter just alluded to, the Executive, denying that right and prohib- dated August 14, 1867: iting it in future, and imposing a severe pen- SIR: In compliance with the requirements of the alty upon any executive officer who should act entitled "An act to regulate the tenure of certain civil offices," you are hereby notified that on the exercise it; i and that, too, after the President 12th instant Ron, Edwin M. Stanton was suspended 669 from his office as Secretary of War, and General U. S. place to my possession, but, according to your own: Grant authorized and empowered to act as Secretary statement, placed yourself in a position where, could ad interim. I have anticipated your action, I would have been Hon. SECRETARY OF THE TREASURY. compelled to ask of you, as I was compelled to ask of your predecessor in the War Department, a letter Wretched man I A direct contradiction of of resignation, or else to resort to the more disagree-! his solemn answer! How necessary that a able expedient of suspending you by a successor." man should have a good conscience or a good He thus distinctly alleges that the General memory! Both would not be out of place. had a full knowledge that such was his delib-' How lovely to contemplate what was so assid- erate intention. Hard words and injurious uously inculcated by a celebrated Pagan into epithets can do nothing to corroborate or to' the mind of his son:."Virtue is truth, and injure the character of a witness; but if Antruth is virtue." And still more, virtue of drew Johnson be not wholly destitute of truth every kind charms us, yet that virtue is strong- and a shameless falsifier then this article and est which is effected by justice and generosity. all its charges are clearly made out by his own Good deeds will never be done, wise acts will evidence. never be executed, except by the virtuofis and Whatever the respondent may say of the the conscientious. reply of U. S. Grant, General, only goes to May the good people of this Republic remem- confirm the fact of the President's lawless at-' ber this good old doctrine when they next meet tempt to obstruct the execution of the act to select their rulers, and may they select only specified in the article. the brave and the -virtuous. If General Grant's recollection of his con-: Has it been proved, as charged in this ar- versation with the President is correct, then ticle, that Andrew Johnson in vacation sus- it goes affirmatively to prove the same fact pended from office Edwin M. Stanton, who had stated by the President, although it shows that been duly appointed and was then executing the President persevered in his course of deterthe duties of Secretary of the Department of mined obstruction of the law, while the General War, without the advice and consent of the refused to aid in its consummation. No difSenate; did he report the reasons for such ferences as to the main fact of the attempt to suspension to the Senate within twenty days violate and prevent the execution of the law from the meeting of the Senate; and did the exist in qither statement; both compel the Senate proceed to consider the sufficiency of conviction of the respondent, unless he should such reasons? Did the Senate declare such escape through other means than the facts reasons insufficient, whereby the said Edwin proving the article. He cannot hope to escape M. Stanton became authorized to forthwith by asking this high court to declare the "law for resume and exercise the functions of Secretary regulating the tenure of certain civil offices" of War, and displace the Secretary ad interim, unconstitutional and void; for it so happenswhose duties were then to cease and terminate; to the hopeless misfortune of the respondentdid the said Andrew Johnson, in his official that almost every member of this high tribunal character of President of the United States, has more than once —twice, perhaps three attempt to obstruct the return of the said Ed- times-declared upon his official oath that law win M. Stanton and his resumption forthwith constitutional and valid. The unhappy man is of the functions of his office as Secretary of in this condition: he has declared himself dethe Department of War; and has he continued termined to obstruct that act; he has, by two to attempt to prevent the discharge of the several letters of authority, ordered Lorenzo duties of said office by said Edwin M. Stanton, Thomas to violate that law; and he has issued Secretary of War, notwithstanding the Senate commissions during the session of the Senate decided in his favor? If he has, then the acts without the advice and consent of the Senate, in violation of law, charged in this article, are in violation of law, to said Thomas. He must full and complete. therefore either deny his own solemn declaraThe proof lies in a very narrow compass, tions and falsify the testimony of General and depends upon the credibility of one or two Grant and Lorenzo Thomas, or expect that witnesses, who, upon this point, corroborate verdictwhose least punishment is removal from each other's evidence. office. Andrew Johnson, in his letter of the 31st of But the President denies in his answer to the January, 1868, not only declared that such was first and the eleventh articles (which he inhis intention, but reproached U. S. Grant, Gen- tends as a joint answer to the two charges) eral, in the following language: that he had attempted to contrive means to' You had found in our first conference'that the prevent the due execution of the law regulating President was desirous of keeping Mr. Stanton ou the teure of certain civil offices, or had vioof office, whether sustained in the suspension or not.'had vioYou knew what reasons had induced the President lated his oath "to take care that the laws be to ask from you a promise; you also knew that in faithfully executed. " Yet while he denies such case your views of duty did not accord with his own attempt to defeat the execution o the laws, in convictions it was his purpose to fill your place by another appointment. Even ignoring the existence his letter of the 31st of January, 1868, he asof a positive understanding between us, these con- serts, and reproaches General Grant by the' clusions were plainly deducible from our various con- that versations. Itis certain, however, that even under these circumstances you did not offer to return the was to prevent Edwin M. Stanton from forth 670 with resuming the functions of his office, not- this moment waiting to take the oath of office, withstanding that the Senate-might decide in as President of the United States, " that he his favor; and the President and U: S. Grant, would obey the Constitution and take care that General, in their angry correspondence of the the laws be faithfully executed. " Having been date heretofore referred to, made an issue of sworn on the Holy Evangels to obey the Converacity-the President asserting that the Gen- stitution, and being about to depart, he turns eral had promised to aid him in defeating the to the person administering the oath and says, execution of the laws by preventingthe imme- "Stop; I have a further oath. I do solemnly diate resumption of the functionsof Secretary swear that I will not allow the act entitled'An of War by Edwin M. Stanton, and that the act regulating the tenure of certain civil offices,' General violated his promise; and U. S. Grant, just passed by Congress over the presidential General, denying ever having finally made such veto, to be executed; but I will prevent its promise, although he agrees with the President execution by virtue of my own constitutional that the President did attempt to induce him to power." make such promise and to enter into such an How shocked Congress would have beenarrangement. what Could the country have said to a scene Now, whichever of these gentlemen may have equalled only by the unparalleled action of this lost his memory, and found.in lieu of the truth same official, when sworn into office on that the- vision which issues from the Ivory Gate- fatal 6th day of March which made him the though who can hesitate to choose between the successor of Abraham Lincoln I Certainly he words of a gallant soldier and the pettifogging would not have been permitted to be inauguof a political trickster?-is wholly immaterial, rated as Vice President or President. Yet, so far as the charge against the President is such in effect has been his conduct, if not under concerned. That charge is, that the President oath at least with less excuse, since the fatal did attempt to prevent the due execution of the day which inflicted him upon the people of the tenure-of-office law by entangling the General United States. Can the President hope to in the arrangement; and unless both the Pres- escape if the fact of his violating that law be ident and the General have lost their memory proved or confessed by him, as has been done? and mistaken the truth with regard to the Can he expect a sufficient number of his tryers promises with each other, then this charge is to pronounce that law unconstitutional and made out. In short, if either of these gentle- void —those same triers having passed upon men has correctly stated these facts of at- its validity upon several occasions? The act tempting the obstruction of the law the Presi- was originally passed by a vote of 29 yeas to dent has been guilty of violating the law and 9 nays. of misprision of official perjury. Subsequently the House of Representatives But, again, thePresident alleges his right to passed the bill with amendments, which the violate the act regulating the tenure of certain Senate disagreed to, and the bill was afterward civil offices, because, he says, the same was referred to a committee of conference of the inoperative and void as being in violation of two Houses, whose agreement was reported to the Constitution of the United States. Does the Senate by the managers and was adopted it lie in his mouth to interpose this plea? He by a vote of 22 yeas to 10 nays. had acted under that law and issued letters of After the veto, upon reconsideration of the authority, both for the long and short term, to bill in the Senate, and after all the arguments several persons under it, and it would hardly against its validity were spread before that lie in hjs mouth after that to deny its validity body, it passed by a vote of35 yeas to 11 nays. unless he confessed himself guilty of law- The President contends that by virtue of the breaking by issuing such commissions. Constitution he had the right to remove heads Let us here look at Andrew Johnson accept- of Departments, and cites a large number of ing the oath "to take care that the laws be cases where his predecessor had done so. It faithfully executed." must be observed that all those cases were beOn the 2d of March, 1867, he returned to the fore the passage of the tenure-of-offibe act, Senate the " tenure-of-office bill"-where it March 2, 1867. Will the respondent say how, originated and had passed by a majority of the having done an act when there was no law more than two thirds-with reasons elaborately to forbid it justifies the repetition of the same given why it should not pass finally. Among act after a law has been passed expressly prothese was the allegation of its unconstitution- hibiting the same. It is not the suspension or ality. It passed by a vote of 35 yeas to 11nays. removal of Mr. Stanton that is complained of, In the House of Representatives it passed by but the manner of the suspension. If the more than a two-thirds majority; and when the President thought he had good reasons for vote was announced the Speaker, as was his suspending or removing Mr. Stanton, and had custom, proclaimed the vote, and declared in done so, sending those reasons to the Senate, the language' of the Constitution, " that two- and. then obeyed the decision of the Senate in thirds of each House having voted for it, not- their finding, there would have been no comwithstanding the objections of the President, it plaint; but instead of that he suspends him in has become a law." direct defiance of the tenure-of-office law, and I am supposing that Andrew Johnson was at then enters into an arrangement, or attempts 671 to do so. in which he thought he had succeeded, sustained, and few of the almost innumerable to prevent the due execution of the law after offenses charged'to this wayward, unhappy the decision of the Senate. And when the official. I have alluded to two or three others Senate ordered him to restore Mr. Stanton which I could have wished to have had time to he makes a second removal by virtue of what present and discuss, not for the sake of punhe calls the power vested in him by the Con- ishment, but for the benefit of the country. stitution. One of these was an article charging the PresThe action of the Senate on the message of ident with usurping the legislative power of the the President, communicating his reasons for nation, and attempting still his usurpations. the suspension of E. M. Stanton, Secretary of With regard to usurpation, one single word War, under the act entitled " An act to regulate will explain my meaning. A civil war of the tenure of certain civil offices," was as fol- gigantic proportions, covering sufficient terrilows: tory to constitute many States and nations, IN EXECUTIVE SESSION, broke out, and embraced more than ten milSENATE OF THE UJanuary 13A 1868. lions of men, who formed an independent govResolved, That having considered the evidence and ernment, called the Confederate States of reasons given by the President in his report of De- America. They rose to the dignity of an incember 12, 1867, for the suspension from the office of dependent belligerent, and were so acknowlSecretary of War of Edwin M. Stanton, the Senate do edged by all civilied ntions, as wel not concur in uch suspension. edged by all civilized nations, as well as y ourselves. After expensive and bloody strife And the same was duly certified to the Pres-s. After expensive and bloody strife ident, in the face of which he, with an impu-we conquered them, and they submitted to our ident, in the face of which he, with an lmpu- arms. By the law of nations, well understood dence and brazen determination to usurp the powers of the Senate, again removed Edwin and undisputed, the conquerors in this unjust NI. Stanton, and appointed Lorenzo Thomas war had the right to deal with the vanquished Secretary ad interim in his stead. The Sen- as to them might seem good, subject only to ate, with calm manliness, rebuked the usurper the laws of humanity. They had a right to by the following resolution: confiscate their property to the extent of inby the following resolution: demnifying themselves and their citizens; to SENTE OF TE UNITED SESSITATESON, annex them to the victorious nation, and pass February 21,1868. just such law8 for their government as they Whereas the Senate has received and considered might think proper. the communication of the President stating that he This doctrine is as old as Grotius, and as had removed Edwin M. Stanton, Secretary of War, fresh as the Dorr rebellion. Neither the Presiand had designated the Adjutant General of the Army to act as Secretary of War ad interim: There- dent nor the judiciary had any right to interfere, fore, to dictate any terms, or to aid in reconstrucResolved by the Senate of the United States That frther tha under the Constitution and laws of the Uniteder than they were directed by the States the President has no power to remove the Sec- sovereign power. That sovereign power in this retary of War and to designate any other officer to Republic is the Congress of the United States. perform the duties of that ofice ad interim. Whoever, besides Congress, undertakes to creYet he continued. him in office. And now ate new States or to rebuild old ones, and fix this offspring of assassination turns upon the the condition of their citizenship and union, Senate, who have thus rebuked him in a con- usurps powers which do not belong to him, and stitutional manner, and bids them defiance. is dangerous or not dangerous, according:to the How can he escape the just vengeance of the extent of his power and his pretensions. Anlaw? Wretched man, standing at bay, sur- drew Johnson did usurp the legislative power rounded by a cordon of living men, each with of the nation by building new States, and rethe ax of an executioner uplifted for his just constructing, as far as in him lay, this empire. punishment. Every Senator now trying him, He directed the defunct States to come forth except such as had already adopted his pqlicy, and live by virtue of his breathing into their voted for this same resolution, pronouncing nostrils the breath of life. He directed them his solemn doom. Will any one of them vote what constitutions to form. and fixed the qualifor his acquittal on the ground of its uncon- fications of electors and of office-holders. He stitutionality? I know that Senators would directed them to send forward members to venture to do any necessary act if indorsed by each branch of Congress, and to aid him in an honest conscience of an enlightened pub- representingthenation. WhenCongresspassed lie opinion; but neither for the sake of the a law declaring all these doings unconstituPresident nor of any one else would one of tional and fixed a mode for the admission of them suffer himself to be tortured on the gib- this new territory into the nation he proclaimed bet of everlasting obloquy How long and it unconstitutional, and advised the people not dark would be the track of infamy which must to submit to it nor to obey the commands of mark his name, and that of his posterity I Congress. I have not time to enumerate the Nothing is therefore more certain than that. it particularactswhich constitute his high-handed requires no gift of prophecy to predict the fate usurpations. Suffice it to say that he seized of this unhappy victim. all the powers of the Government within these I have now discussed but one of the numer- States, and, had he been permitted, would have ous articles, all of which I believe to be fully become their absolute ruler. This he perse. 672.: vered in attempting notwithstanding Congress dollars annually, without ever having been declared more than once all the governments charged or suspected with the malappropriawhich he thus created to be void and of none tion of a single dollar; and when victory effect. crowned his efforts he disbanded that immense But I promised to be brief, and must abide Army as quietly and peacefully as if it had been by the promise, although I should like the judg- a summer parade. He would not, I suppose, mlent of the Senate upon this, to me, seeming adopt the personal *views of the President; vital phase and real purpose of all his mnisde- and for this he was suspended until restored meanors. To me this seems a sublime spec- by the emphatic verdict of the Senate. Now, tacle. A nation, not free, but;as nearly ap- if we are right in our narrative of the conduct proaching it as human institutions will permit of these parties and the motives of the Presiof, consisting of thirty millions of people, had dent, the very effort at removal was a highfallen into conflict,' which among other people handed usurpation as well as a corrupt misdealways ends in anarchy or despotism, and had meanor for which of itself he ought to be imlaid down their arms, the mutineers submitting peached and thrown from the place he was to the conquerors. The laws were about to abusing. But he says that he did not remove regain their accustomed sway, and again to Mr. Stanton for the purpose of defeating the govern the nation by the punishment of treason tenure-of-office law. Then he forgot the truth and the reward of virtue. Her old institutions in his controversy with the General of the were about to be reinstated so far as they were Army. And because the General did not aid applicable. according to the judgment of the him, and finally admit that he had agreed to conquerors. Then one of their inferior ser- aid him in resisting that law, he railed upon vants, instigated by unholy ambition, sought him like a very drab. to seize a portion of the territory according to The counsel for the respondent allege that the fashion of neighboring anarchies, and to no removal of Mr. Stanton ever took place, convert a land of freedom into a land of slaves. and that therefore the sixth section of the act This people spurned the traitors, and have put was-not violated. They admit that there was the chief of them upon his trial, and demand an order of removal and a recision of his comjudgment upon his misconduct. He will be mission; but as he did not obeyit, they say it was condemned, and his sentence inflicted without no removal. That suggests the old saying that turmoil, tumult, or bloodshed, and the nation it used to be thought that " when the brains will continue its accustomed course of freedom were out the man was dead." That idea is and prosperity without the shedding any further proved by learned counsel to be absolutely of human blood andwith a milder punishment fallacious. The brain of Mr. Stanton's comthan the world has been accustomed to see, or mission was taken out by the order of removalperhaps than ought now to be. inflicted. the recision of his commission-and his head Now, even if the pretext of the President was absolutely cut off by that gallant soldier, were true and not a mere subterfuge to justify General Thomas, the night after the masquethe chief act of violation with which he stands rade. And yet, according to the learned and charged, still that would be such an abuse of delicate counsel, until the mortal remains, the patronage of the Government as would everything which could putrify, was shoveled demand his impeachment for a high misde- out and hauled into the muck-yard there was meanor. Let us again.for a moment examine no removal. But it is said that this took place into some of the- circumstances of that act. merely as an experiment to make a judicial Mr. Stanton was appointed Secretary of War case. Now, suppose there is anybody who, by Mr. Lincoln in 1862, and continued to hold with the facts before him, can believe that this under Mr. Johnson, which, by all usage, is was not an afterthought, let us see if that palconsidered a reappointment.'Was he a faith- liates the offense. ful officer, or was he removed for corrupt pur- The President is sworn to take care that the poses?'.After the death of Mr. Lincoln, An- laws be faithfully executed. In what part of drew Johnson had changed his whole code of the Constitution or laws does he find it to be politics and policy, and instead of obeying the -his duty to search out for defective laws that will of those who put him into power he de- stand recorded upon the statutes in order that termined to create a party for himself to carry he may advise'their infraction? Who was out his own ambitious purposes. For every aggrieved by the tenure-of-office bill that he honest purpose of Government, and for every was authorized to use the name and the funds honest purpose for which Mr. Stanton was ap- of the Government to relieve? Will he be so pointed by Mr. Lincoln, where could a better good as to tell us by what authority he became man be found? None ever organized an army the obstructor of an unrepealedlaw instead of of a million of men and provided for its sub- its executor, especially a law whose constitusistence and efficient action more rapidly than tionality he had twice tested? If there were Mr. Stanton and his predecessor. nothing else than his own statement he deIt might, with more propriety, be said of this serves the contempt of the American people, officer than of the celebrated Frenchman, that and the punishment of its highest tribunal. If he " organized victory." He raised and by he were not willing to execute the laws passed his requisitions distributed more than a billion by the American Congress and unrepealed, 673 let him resign the office which was thrown fallen upon the scaffold; but in two single inupon him by a horrible convulsion and retire stances only, as I think, have the formalities of to his village obscurity. Let him not be so law been ostensibly invoked to give a coloring swollen by pride and arrogance, which sprang of order and of justice to the bloody tragedy. It from the deep misfortune of his country, as to is only in this free land that a constitutional triattempt an entire revolution of its internal bunal has been charged for the first time with machinery, and the disgrace of the trusted the sublime task of vindicating an outraged servants of his lamented predecessor. law against the highest of its ministers, and The gentleman [Mr. Groesbeck] in his pero- passing judgment upon the question whether ration on Saturday implored the sympathy of the ruler of a nation shall be stripped, under the Senate with all the elegance and pathos of the law and without shock or violence, of the a Roman Senator pleading for virtue; and it is power which he has abused. to be feared that his grace and eloquence turned This great occasion was not sought by us. the attention of the Senate upon the orator The world will bear the Representatives of the rather than upon the accused. Had he been people witness that they have not come here pleading for innocence his great powers would for light and transient causes, but for the reason have been well exerted. Had he been arguing only that this issue has been forced upon them with equal eloquence before a Roman Senate by a long series of bold assumptions of power for such a delinquent, and Cato, the Censor, on the part of the Executive, following each had been one of the judges, his client would other with almost the blazing and bling ding' have soon found himself in the stocks in the continuity of the lightning of the tropics, and middle of the forum instead of receiving the culminating at last in a mortal challenge, which sympathy of a virtuous and patriotic audience. in the defense of their constitutional power [Mr. Manager STEVENS read a portion of as a branch of the American Congress, and as his argument standing at the Secretary's desk; faithful sentinels over the liberties of the peobut after proceeding a few minutes, being too ple, it was impossible for them to decline. feeble to stand, obtained permission to take a With the first, open defiance of the legislative seat, and having read nearly half an hour from will they were left, of course, with no alternaa chair until his voice became almost too weak tive but to abdicate their rule or to vindicate to be heard, handed over his manuscript to Mr. their right to make the law and see that it was Manager BUTLER, who concluded the reading.] obeyed. To this imperious necessity the people, in whose iiame they speak-a branch of Hon. THOMAS WILLIAMS, one of the that race whose quick sensibility to publia Managers on behalf of the House of Repre- danger has ever kept a sleepless vigil over its sentatives, next addressed the Senate as fol- liberties-have yielded at last with a reluclows: tance which nothing but the weariness of civil Mr. PRESIDENT AND SENATORS OF THE UNI- strife, the natural longing for repose, the apTED STATES: Not unused to the conflicts of prehensive sense that it was "better, perthe forum I appear in your presence to-day haps, to bear the ills we had than fly to others in obedienceto the command of the Represent- that we knew not of" —the reflection that this atives of the American people, under a sense Administration must have an end, and above of responsibility which I have never felt before. all, perhaps, the delusive hope that its lawThis august tribunal whose judges are the elect defying head himself would ultimately submit of mighty provinces —the presence at your bar to a necessity which was as strong as fate, of the Representatives.of a domain that rivals could have brought about, otwould have, perinextent the dominion of the Caesars, and of a haps, excused. He has misunderstood their civilization that transcends any that the world reasons, as his counsel show that they do now, has ever seen, to demand judgment upon the mistaken their temper, and presumed upon high delinquent whom they have arraigned in their forbearance. He has forgotten that there the name of the American people for high was a point at which the conflict must end in crimes and misdemeanors against the State, the shock of two opposing forces, and the overthe dignity of the delinquent himself, a king throw of one or other of the antagonistic elein everything but the name and paraphernalia ments. It was necessary, perhaps, in the order and inheritance of royalty, these crowded gal- of Providence that he should reach that point leries, and, more than all, that greater world by striking such a blow at the public liberties outside which stands on tiptoe as it strains its as should awaken the people as with an earthears to catch from the electric messenger the quake shock to'the consciousness that the first tidings of a verdict which is either to send toleration of usurpation brings no security to a thrill of joy through an afflicted land, or to nations. rack it anew with the throes of anarchy and To show, however, how much they have the convulsions of despair, all remind me of borne and forborne, perhaps forgiven, for the the collossal proportions of the issue you are sake of peace, and how much they now pass assembled to try. I cannot but remember, over for the sake of a speedy solution of the too, that the scene before me is without ex- impending trouble which has impeded the onample or parallel in human history. Kings, it is ward and upward movement of this great Govtrue, have beenuncrowned, and royal headshave ernment, and spread confusion and disorder C.. -43. 674 through many of its Departments, and what, now to inquire as to scenes enacted on this floor moreover, is the true import and significance so eloquently rehearsed by the counsel for the of the acts for which the President is now President, with two pictures of so opposite a arraigned, I must be allowed, with your indul- character before me, or even to inquire whether gence, to take up for a moment the key which his resistance to the hegira of the southern Senis required to unlock the mysteries of the posi- ators was not merely a question, himself being tion. The man who supposes that this is but the witness, as to the propriety and wisdom of a question of the removal of an obnoxious such a step at that particular time. The opporofficer, a mere private quarrel between two tunity occurs just here to answer it as it is put, belligerents at the other end of the avenue, byshowingwhoAndrewJohnson is, andwhathe wherein it is of no great national consequence hasbeen since the unhappy hour of thatimproviwhich of the opposing parties shall prevail, dentandunreflectinggift. Eheu I quantummutahas no adequate apprehension of the gravity tus ab illo I Alas, how changed, how fallen from of the case, and greatly disparages the position that high estate that won for him the support and the motives of the high accusers. The of a too conjldingpeoplel Would that it could House of Representatives espouses no man's have been said of him as of that apostate spirit quarrel, however considerable he may be. It who was hurled in hideous ruin and combushas but singled out from many others of equal tion down from Heaven's crystal battlements, weight the facts now charged, as facts for the that even in his fall he " had not yet lost all his most part of recent occurrence, of great noto- originalbrightness nor appeared less than Archriety, and of easy proof, by way of testing a angel rained." much greater question without loss of time. The master-key to the whole history of his The issue here is between two mightier antag- administration, which has involved not a mere onists, one the Chief Executive Magistrate of harmless difference of opinion, as one of his this nation and the other the people of the counsel seems to think, on a question where United States, for whom the Secretary of War gentlemen might afford to disagree without a now holds almost the only strong position quarrel, but one long and unseemly struggle by of which they have not been dispossessed. It the Executive against the legislative power, is is but a renewal on American soil of the old to be found in the fact of an early and persistbattle between the royal prerogative and the ent purpose of forcing the rebel States into the privileges of the Commons, which was closed Union by means of his executive authority, in in England with the reigns of the Stuarts-a the interests of the men who had lifted their struggle for the mastery between a temporary parricidal hands against it, on terms dictated Executive and the legislative power of a free by himself, and in defiance of the will of the State over the most momentous question that loyal people of the United States as declared has ever challenged the attention of a people. through their Representatives. To accomplish The counsel for the President, reflecting, of this object, how much has he not done and how course, the views of their employer, would have much has a long-suffering people not passed you to believe that the removal of a depart- over without punishment and almost without mental head is an affair of State too small to be rebuke? Let history, let your public records, worthy of such'an avenger as this which we pro- which are the only authentic materials of hispose..Standing alone, stripped of all the at- tory, answer, and they will say thattendant circumstances that explain the act and For this, instead of convening the Congress show the deadly animus by which it was in- in the most momentous crisis of the State, spired, it is not improbable that there are some he had issued his royal proclamations for the who might have been induced to think, with assembling of conventions and the erection of them, that a remedy so extreme as this was State governments, prescribing the qualificamore than adequate. It is only under the light tions of the voters, and settling the conditions shed upon the particular issue by antecedent of their admission into the Union. facts which have now passed ipto history that For this he had created offices unknown to the giant proportions of this 5ontroversy can the law, and filled them with men notoriously be fully seen, if they are not made sufficiently disqualified by law, at salaries fixed by his own apparent now by the defiant tone of the Presi- mere will. dent and the formidable pretensions set up by For this he had paid those officers in conhim in his thoughtfully considered and pain- temptuous disreguard of law, and paid them, fully elaborated plea. too, out of the contingent fund of one of the The not irrelevant question " Who is An- Departments of the Government. drew Johnson?" has been asked by one of For this he had supplied the expenses of his counsel, as it has often been by himself. his new governments by turning over to them and answered in the same way, by show: the spoils of the dead confederacy, and authoring who he awas and what he had done before izing his satraps to levy taxes from the conthe people of the loyal States so generously quered people. intrusted him with that contingent power which For this he had passed away unnumbered was made absolute only for the advantage of millions of the public property to rebel raildefeated and discomforted treason by the mur- road companies without consideration, or sold derous pistol of an assassin. I will not stop it to them. in clear violation of law, on long 675 credits, at a valuation of his own and without the law-making power whenever they came any security whatever. to him. For this he had stripped the Bureau of Freed- For this he had deliberately and confessedly men and Refugees of its munificent endow- exercised a dispensing power over the test-oath ment, by tearing from it the lands appropriated law, by appointing notorious rebels to importby Congress to the loyal wards of the Republic, ant places in the revenue service, on the and restoring to the rebels their justly forfeited avowed ground that the policy of Congress, in estates after the same had been vested by that regard, was not in accordance with his' law in the Government of the United States. opinions. For this he had invaded with a ruthless hand For this he had obstructed the settlement the very penetralia of the Treasury, and plun- of the nation, by exerting all his influence to dered its contents for the benefit of favored prevent the people of the rebel States from rebels by ordering the restoration of the pro- accepting the constitutional amendment or ceeds of sales of captured and abandoned organizing under the laws of Congress, and improperty which had been placed in its custody pressing them with the opinion that Congress by law. was blood thirsty and implacable, and that For this he had grossly abused the pardoning their only refuge was with him. power conferred on him by the Constitution For this he had brought the patronage of in releasing the most active and formidable of his office into conflict with the freedom of electhe leaders of the rebellion with a view to their tions, by allowing and encouraging his official service in the furtherance of his policy, and retainers to travel over the country, attending even delegated that power for the same objects political conventions and addressing the peoto men who were indebted to its exercise for ple in support of his policy. their own escape from punishment. For this, if he did not enact the part of a For this he had obstructed the course of Cromwell, by striding into the Halls of the Reppublic justice not only by refusing to enforce resentatives of the people and saying to one the laws enacted for the suppression of the re- man, " You are a hypocrite;;" to another, " You bellion and the punishment of treason, but by are a whoremonger;" to a third, " You are going into the courts and turning the greatest an adulterer;" and to the whole, "You are no of the public malefactors loose, and surrender- longer a Parliament;" he had rehearsed the ing all control over them by the restoration of same part substantially outside, by traveling their estates. over the country, and, in indecent harangues, For this he had abused the appointing power assailing the conduct and impeaching the moby the removal on system of meritorious pub- tives of its Congress, inculcating disobedience lie officers for no other reason than because to its authority by endeavoring to bring it into they would not assist him in his attempt to disrepute, declaring publicly of one of its memoverthrow the Constitution and usurp the legis- bers that he was a traitor, of another that he lative power of the Government. was an assassin, and of the whole that they For this he had invaded the rightful privi- were no longer a Congress. leges of the Senate by refusing to send in For this, in addition to the oppression and nominations of officers appointed by him dur- bloodshed that had everywhere resulted from ing the recess of that body, and after their his known partiality for traitors, he had winked adjournment reappointing others who had at, if not encouraged, the murder of loyal city been rejected by them as unfit for the places izens in New Orleans by a confederate mob by for which they had been appointed. holding correspondence with its leaders, defor this he had broken the privileges of, and nouncing the exercise of the right of a politinsulted the Congress of the United States by ical convention to assemble peacefully in that instructing them that the work of reconstruc- city as an act of treason proper to be suption belonged to him only, and that they had pressed by violence, and commanding the milno legislative right or duty in the premises, itary to assist, instead of preventing, the exebut only to register his will by throwing open cution of the avowed purpose of dispersing their doors to such claimants as might come them. there with commissions from his pretended For this, it is not too much to say, in view governments, that were substantially his own. of the wrong and outrage and the cry of sufferFor this, on their refusal to obey his im- ing that have come up to us upon every southern'perial rescript, he had arraigned them publicly breeze, that he had in effect reopened the war, as a revolutionary assembly and not a Con- inaugurated anarchy, turned loose once more gress, without the power to legislate for the the incarnate devil of baffled treason and unStates excluded, and as "traitors, at the other appeasable hate, whom, as we fondly thought, end of the line," in actual rebellion against our victories had overthrown and bound in the people they had subdued. chains, ordained rapine and murder from the For this lie had grossly abused the veto Potomac to the Gulf, and deluged the streets power, by disapproving every important meas- of Memphis as well as of New Orleans, and ure of legislation that concerned the rebel the green fields of the South, already ddtted States, in accordance with his public decla- with so many patriot graves, with the blood of ration that he would veto all the measures of martyred citizens. 676.*., And because for all he has not been called and in defiance of the will of the loyal people to render an account, for the reasons that have of the United States. been already named, it is now assumed and The specific offenses charged here, which argued by his counsel that he stands acquitted are but the culminating facts, and only the last by a judgment which disapproves its truth, of a long series of usurpations, are an unlawful although it rests for the most part on record evi- attempt to remove the rightful Secretary of dence, importing that "absolute verity" which War and to substitute in his place a creature is, of course, not open to dispute. This ex- of his own, without the advice and consent of traordinary assumption is but another instance the Senate, although then in session; a conof that incorrigible blindness on the part of spiracy to hinder and prevent him from resumthe President in regard to the feelings and ing or holding the said office after the refusal motives of Congress that has helped to hurry of the Senate to concur in his suspension, and him into his present humiliating predicament to seize, take, and possess the property of tho as a criminal at your bar. United States.in said Department; an attempt But all these things were not enough. It to debauch an officer of the Army from his wanted one drop more to make the cup of for- allegiance by inculcating insubordination to bearance overflow — one other act that should the law in furtherance of the same object; the reach the sensorium of the nation, and mnake attempt tg set aside the rightful authority of even those who might be slow to comnprehend a Congress and to bring it into public odium principle, tounderstand thatfurtherforbearance and con-tempt, and to encourage resistance to was ruin to us all; and that act was done in the its laws by the open and public delivery of attempt to seize by force or stratagem on that indecent harangues, impeaching its acts and Department of the Government through which purposes and full of threats and menaces itsarmies were controlled. Itwas buta logical against it and the laws enacted by it, to the sequence of what had gone before-the last of great scandal and degradation of his own high a series of usurpations, all looking to the same office as President; and the devising and con, great object. It did not rise, perhaps, be- triving of unlawful means to prevent the exeyond the height of many of the crimes by which cution of the tenure-of-office, Army appropriit was ushered in. But its meaning could not ation, and. reconstruction acts of March 2, be mistaken. It was an act that smote upon 1867. thenerveof the nation in such a.way as to render To all of these which relate to the attempted it impossible that it could be either concealed, removal of the Secretary of War the answer is: disparaged, or excused, as. were the muffled 1. That the case of Mr. Stanton is not within blows of the pick-ax that had been so long the meaning of the. first section of the tenure. 3ilentlyundermining the bastions of the Repub- of-office act. lie. It has been heard and felt through all our Second. That if it be, the act is unconstituwide domain like the.reverberation of the guns tional and void so far as it undertakes to that opened their iron throats upon our flag at abridge the power claimed by him of" removSumter; and it has stirred the loyal heart of the ing at any and all times all executive officers people again with the electric power that lifted for causes to be judged of by himself alone," it to the height of the sublimest issue that ever as well as of suspending them indefinitely at led a martyr to the stake or a patriot to the his sovereign will and pleasure; and, battle-field. That people is hereto-day, through Third, That whether the actbe constitutional its Representatives on your floor and in your or otherwise, it was his right, as he claims it galleries, in the persons alike of the veterans to have been his purpose, to disobey and viowho have been scarred by the iron hail of battle, late it with a view to the settlement of the quesand of the mothers and wives and daughters tion of its validity by the judiciary of the Uniof those who have died that the Republic might ted States. live, as well as of the commissioned expo- And first, as to the question whether the nents of the public will, to demand the rewards present Secretary of War was intended to be of their sacrifices and the consummation of their comprehended within the first section of the triumph in the award of a nation's justice upon act referred to.. this high offender. The defendant insists that he was not, for the And now as to the immediate issue, which I reason that he derived his commission from propose to discuss only in its constitutional Mr. Lincoln, and not being removed on his and legal aspects. accession, continued by reason thereof to hold The great crime of Andrew Johnson, as al- the office and administer its duties at his pleasready remarked, running through all his ad- ure only, without having at any time received ministration, is that he has violated his oath any appointment from himself: assuming, as of office and his constitutional duties by the I understand, either that under the proviso to obstruction and infraction of the Constitution the first section of this act the case was not and the laws, and an endeavor to set up his provided for, or that by force of its express own will against that of the law-making power, language, his office was determined by the exwith. a view to a settled and persistent purpose piration of the first term of the President who of forcing the rebel States into Congress on appointed him. his own terms, in the interests of the traitors,, The body, or enacting clause of this sectiont 677 provides that every person then holding any tion to the language in favorem libertatis, in civil office who had been appointed thereto by order to repress the mischief and advance the and with the advice and consent of the Senate, remedy; taking the words used in their ordior who should be thereafter appointed to any nary and familiar sense, and varying the mdansuch office, should be entitled to hold until a ing as the intent, which is always the polar successor is appointed in the like manner. star, may require. Testing the case by this - It is clear, therefore, that its general object rule what is to be the construction here? was to provide for all cases, either then exist- The old law was-notthe Constitution-but a ing or to happen in the future. vicious practice that had grown out of a preIt is objected, however, that so much of this cedent involving an early and erroneous conclause as refers to the heads of Departments is struction of that instrument, if it was intended substantially repealed by the saving clause, so to operate. The mischief was that this pracwhich is in the following words: tice had rendered the officers ofthe Government, "Provided, That the Secretaries of State, of the and among them the heads of Departments, the Treasury, of War, of the Navy and of the Interior, most powerful and dangerous of them all, from the Postmaster General, and the Attorney General, their assumed position of advisers of the Presshall hold their offices respectively for and during ident, by the very dependency of their tenur the term of the President by whom they may have been appointed, and for one month thereafter, sub- the mere ministers of his pleasure, and the ject to removal by and with the advice and consent slaves of his imperial will, that could at any moment, and as the reward of an honest anid This proviso was the result of a conference independent opinion, strip them of their emon the disagreeing votes on the amendment of ployments, and send them back into the ranks the House striking out the exception in favor of the people. The remedy was to change of the heads of Departments, and was sug- them from minions and flatterers into men, by gested-if he may be excused the egotism-by making them free, and to secure their loyalty the individual who now addresses you, and to to the law by protecting them from the power whom, as the mover and advocate of the that might constrain their assent to its violaw. amendment, was very naturally assigned the tion. To accomplish this object it was necesduty of conducting the negotiation on the part sary that the law should cover all of them, of the IIouse, for the purpose of obviating the high and low, present and prospective. That objection taken in debate on this floor by one it could have been intended to except the most of the Senate managers, that the effect of the important and formidable of these functionamendment would be to impose on an incom- aries, either with a view to favor the present ing President a Cabinet that was not of his own Executive, or for the purpose of subjecting the selection. I may be excused for speaking of only head of a Department who had the conits actual history, because that has been made fidence of Congress to his arbitrary will, is as the subject of comment by the learned counsel unreasonable and improbable, as it is at vari; who opened this case on behalf of the Presi- ance with the truth of the fact and with the dent. If it was intended or expected that it obvious general purposes of the act. should so operate as to create exceptions in For the President of the United States to favor of an officer whose notorious abuse of say, however, now, after having voluntarily power was the proximate cause, if not the im- retained Mr. Stanton for more than two years pelling motive for the enactment of the law, I of his administration, that he was there only did not know it. It will be judged, however, by sufferance, or as a mere movable, or heirby itself, without reference either to the par- loom, or incumbrance that had passed to him titular intent of him who may have penned it, with the estate, and not by virtue of his own or to any hasty opinion that may have been ex- special appointment, if not " paltering with the pressed in either House as to the construction people in.a double sense," has very much the of which it might be possibly susceptible. appearance of a not very respectable quibbl4 The argument of the defendant rests upon The unlearned man who reads the proviso —s the meaning of the word "appointed." That they for whose perusal it is intended will read word has both a technical and a popular one. it-and who is not accustomed to handle the In the former, which involves the idea of a metaphysic scissors of the professional casuists nomination and confirmation in the constitu- who are able "to divide a hair'twixt north tional way, there was no appointment certainly and northwest side," while he admits the inby Mr. Johnson. In the latter, which is the genuity of the advocate, will stand amazed, if sense in which the people will read it, there he does not scorn the officer who would stoop unquestionably was. What, then, was meant to the use of such a subterfuge. by the employment of this word? Assuming, however, for the sake of argoIt is a sound and well-accepted rule in all merint, that the technical sense is to prevail, the courts, in exploring the meaning of the what is to be'its effect? Why only to make the law-giver, especially in cases of remedial stat- law-giver enact a very unreasonable and imposutes, as I think this is, if it is not rather to be sible thing, by providing in words of the future considered as only a declaratory one in this par- tense, that the commission of the officer shall ticular, to look to the old law, the mischief expire nearly two years before the passage of and the remedy, and to live a liberal onstruc- the law, which is a construction that the gen 678 eral rule of law forbids I To test this let us term. If not, he holds subject to removal like substitute for the general denominational other officers under the enacting clause. It phrases of "Secretary of War, of State, and has been so often asserted publicly as to have of the Navy," the names of Messrs. Seward, become a generally accredited truth, that the Stanton, and Welles, and for that of the special purpose of the act was to protect him. President who appointed them, the name of I do not affirm this, and do not consider it Lincoln, and the clause will read: " Provided, necessary that I should, or important to the That Messrs. Steward, Stanton, and Welles, case whether he favored the passage of the law shall hold their offices respectively for and dur- or not. It will be hardly pretended, however, ing the term of Abraham Lincoln, and for one by anybody, that he was intended to be exmonth thereafter." The effect will then be to cluded entirely from its operation. put you in the position of having enacted not Nor is the case helped by the reference to only an absurdity, but an impossibility. But the fourth section of the act, which provides on this there are at least two rules of inter- that nothing therein contained shall be conpretation that start up in the way of the solu- strued to extend the term of any office the tion. The first is that it is not respectful to duration of which is limited by law. The ofthe Legislature to presume that it ever intended fice in question was one of those of which the to enact an absurdity, if the case is suscepti- tenure was indefinite. The construction inble of any other construction; and the second sisted on by me does not extend it. The only that- effectl is to take away the power of removal "Acts of Parliament that are impossible to be fromr the President alone and restore it to the performed are of no validity; and if there arise parties by whom the Constitution intended that out of them collaterally any absurd consequences it should be exercised. manifestly contradictory to common reason, they it should be exercised. are, with regard to these collateral consequences. Assuming, then, that the case of Mr. Stanton void."-1 Blaclcstone's Commentaries, 91. is within the law, the' next question is as to If the effect of the proviso,'however, upon the validity of the law itself. And here we something analogous to the doctrine of cy pres, are met, for the first time in our history as a or, in other words, of getting as near to its mean- nation, by the assertion, on the part of the ing as possible, was to determine the office President, of the illimitable and uncontrolat the time of the passage of the law, then, lable power under the Constitution, in accordon the other hand, the retention of the officer ance, as he insists, with the judicial opinion, by the President for five months afterward, the professional sentiment, and the settled and through an intervening Congress, without a practice under the Government of removing commission or even a nomination, was a breach at any and all times all executive officers whatof the law, and therefore a misdemeanor in it- ever, without responsibility to anybody, and as self; which he could hardly plead, and would included therein the equally uncontrollable scarcely ask you to affirm, against the general power of suspending them indefinitely and presumption of the faithful performance of offi- supplying their places from time to time by cial duty for the purpose of sheltering him from appointments made by himself ad interim. the consequences of still another violation of If there be any case where the claim has herethe law.. tofore extended, even in theory, beyond the Assuming again, however, that, as is claimed mere power to create a vacancy by removal by the defense, the case of Mr. Stanton does during the recess of the Senate, I do not know not fall within the proviso, what, then, is the it. If there be any wherein the power to susresult? Is it the predicament of a casus omissus pend indefinitely, which goes even beyond this, altogether? Is he to be hung up, like Ma- has been asserted, it is equally new to me. homet's coffin, between the body of the act and This truly regal pretension has been fitly rethe proviso, the latter nullifying the.former on served for the first President who has ever the pretext of an exception, and then repudiat- claimed the imperial prerogative of founding ing the exception itself as to the particular governments by proclamation, of taxing withcase; or is the obvious and indisputable pur- out a Congress, of disposing of the public pose of providing for all cases whatever, to be property by millions at his own will, and of carried out by falling back on the general en- exercising a dispensing power over the laws. acting clause which would make him irremov- It is but a logical sequence of what he has able by the President alone, and leaving him been already permitted to do with absolute outside of the provision as to tenure, which impunity and almost without complaint. If was the sole object of the exception? There he could be tolerated thus far. why not conis nothing in the saving clause which is at all summate the work which was to render him inconsistent with what goes before. The pro- supreme, and crown his victory over the legisvision that takes every officer out of the power lative power by setting this body aside as an of the President is not departed from in that advisory council, and claiming himself to be clause. All it enacts is that the tenure shall the rightful interpreter of the laws? The debe a determinate one in cases that fall within fense made here is a defiance, a challenge to it. If Mr. Stanton was appointed by President the Senate and the nation, that must be met Johnson within the meaning of the proviso, he and answered just now in such a way as shall holds, of course, until the expiration of his determine which, if any, is to be the master. 679 If the claim asserted is to be maintained by may be described as the rule of the Constituyour decision, all that will remain for you will tion. be only the formal abdication of your high The exceptions are: trust as part of the appointing power, because 1. That in the cases of inferior offices the there will be then absolutely nothing left of it Congress may lodge this power with the Presithat is worth preserving. dent alone or with the courts or the heads of But let us see what there is in the Constitu- Departments; and tion to warrant these extravagant pretensions, 2. That in cases of vacancy happening or. to prevent the passage of a law to restore during the recess of the Senate he may-not the practice of this Government to the true appoint-but fill them up by granting commistheory of that instrument. sions to expire at the end of the next session I do not propose to weary you with a pro- of that body. tracted examination of this question. I could From which it appearsnot add to what I have already said on the 1. That the President cannot, as already same subject in the discussion in the House of stated, in any case, appoint alone without the the bill relating to removals from office in De- express authority of Congress, and then only cember, 1866, to which I would have ventured in the case of inferior offices. to invite your attention, if the same point had 2. That the power to supply even an accinot been so fully elaborated here. You have dental vacancy was only to continue until the already passed upon it in the enactment of the Senate was in a condition to be consulted and present law by a vote so decisive and over- to advise and act upon the case; and whelming, and there is so little objection on 3. As a corollary from these two proposithe part of the counsel for the President to the tions, that if the power to remove in cases validity of that law, that I may content myself where the tenure is indefinite be, as it is with condensing the arguments on both sides solemnly conceded by the Supreme Court of into a few general propositions which will corn- the United States in re Heenan (13 Peters) an prehend their capital features. incident to-the power to appoint, it belongs to The case may be stated, as I think, analytic- the President and Senate, and not to the Presally and synoptically thus: ident alone, as it was held in that case to be The first great fact to be observed is, that in the judge who made the appointment. while the Constitution enumerates sundry offi- The argument upon which this implied and ces, and provides the manner of appointment merely inferential power, not of " filling up," in those cases, as well as in " all others to be but of making a vacancy during the recesscreated by law," it prescribes no tenure except which is now claimed to extend to the making that of good behavior in the case of the judges, of a vacancy at any time-has been defended, and is entirely silent on the subject of removal isby any other process than that of impeachment. Iirst. The possible necessity for the exerFromcthis the inferences are: cise of such a power during the recess of the 1. That the tenure of good behavior, being Senate, or, in other words, the argument ab substantially equivalent to that for life, the inconvenienti. office must in all other cases be determinable Second. That the power of removal is a at the will of some department of the Govern- purely executive function, which, passed by ment, unless limited by law; which is, how- the general grant in the first section of the ever, but another name for the will of the law- second article of the Constitution, would have makerhimself. And this is settled by authority. carried the power to appoint, if unprovided ~ 2. That the power of removal at will, being for, and is to be considered in him in all cases an implied one only, is to be confined to those wherein it has not been expressly denied or cases where the tenure is not ascertained by lodged in other hands; while the association law; the right of removal in any other form of the Senate, the same not being an executhan by the process of impeachment depending tive body, is an exception to the general prinentirely Qn the hypothesis of a will of which ciple, and must be taken strictly so as not to the essential condition always is that it is free extend thereto. toact withoutreason anrid without responsibility. Third. That it is essential to the President 3. That the power of removal, being im- as the responsible head of the Government, plied as a necessity of state to secure the de- charged by his oath with the execution of the pendence of the officer on the Government, is laws, that he should control his own subornot to be extended by construction so as to dinates by making their tenure of office to take him out of the control of the Legislature, depend upon his will, so as to make a unit of and make him dependent on the will of the the Administration. Executive. The answer to the first of these propositions The next point is that the President is by is that there is no necessity for the exercise of the terms of the Constitution to "nominate, the power during the recess, because the case and by and with the advice and consent of the supposed may be provided for by CongressSenate appoint," to all offices, and that with- as it has been by the act now in questionout this concurrence he appoints to none ex- under its express constitutional authority " to cept when authorized by Congress. And this make all laws which shall be necessary or 680 proper for carrying into execution all powers commentators, in the enlightened professional vested in the Government, or in any Depart- and public sentiment of the nation, and in a ment thereof," a power which, by the, way is legislative practice and construction that are very strangely claimed by one of the Presi.dent's coeval with the Government,and have continued counsel to be an implied one. without interruption until the present time. To the second the answer is that whether an A little inquiry, however, will show thatthere executive power or not depends on the struc- is no altar of sanctuary, no city of refuge here, ture of the Government, or, in other words, on to shelter the greatest of the nation's malefacwhat the Constitution makes it; that the clause tors from the just vengeance of a betrayed and in question is but a distributive one; that if all indignant people. executive power is in the President, then by And first, as to judicial authority. There parity of reason all legislative power is in Con- are but three cases, I think, wherein these quesgress without reference to the Constitution; tions have ever come up for adjudication bethat the Senate is not only associated with the fore the Supreme Court of the United States, President in the general appointing power, but and in all of them the decisions have been that the power itself may be withdrawn by directly in conflict with the theory and preCongress almost entirely from both, under the tensions of the President. provision in regard to inferior offices, which The first was the familiar one of Marbury would involve a repugnancy to the general vs. Madison, 1 Cranch, 256, made doubly memgrant relied on, if the power be an executive orable by the fact that it arose out of one of one; that if no provision had been made for the so-called midnight appointments made by appointment in the Constitution the power to the elder Adams-the same, by the way, whose supply the omission would have resulted to the casting vote as an executive officer turned the law-maker under the authority just quoted, to scale in favor of the power to which he was make "all laws that might be necessary or destined to succeed in the First Congress of proper for carrying into execution all powers 1789, on the eve of his retirement-under a law vested in the Government or any department which had been approved only the day before thereof," which carries with it the power to authorizing the appointment of five justices of create all offices; and that, moreover, this power the peace for the District of Columbia, to Serve of removal, in the only case wherein it is respectively for the term of five years. The referred to, is made a judicial one. commission in question had been duly signed To the third the answer is- and registered, but was withheld by his suc1. That however natural it may be for the cessor (Jefferson) on the ground that the act President, after an unchecked career of usurp- was incomplete without a delivery. It was not ation for three long years, during which he claimed by him that the appointment was rehas used his subordinates generally as the vocable if once consummated. If it had been, slavish ministers of his will, and dealt with the the resistance would have been unnecessary,and affairs of this nation as if he had been its the assertion of the right to the office an idle master also as well as theirs, he greatly mis- one. Chief Justice Marshall, in delivering the takes and magnifies his office, as has been opinion of the court, holds this language: already shown in the fact that under the Con- "Where an officer is removable at the will of the stitution he may be stripped at any time by Executive, the circumstance which completed his Congress of nearly the whole of the appoint- appointment is of no consequence, because the act is ing power; and, at any time revocable. But where the officer is not ing, powt the r; p i and, abremovable at the will of the Executive, the appoint2. That the responsibility of the President ment is not revocable and cannot be annulled. is to be graduated by, and can be only com- Having once made the appointment his power over mensurate with, th power that is assigned the office is terminated in all cases where by law the officer is not removable by him. Then, as the law to him; that the obligation imposed on him is creating the office gave the right to hold for five to take care that the laws are faithfully exe- years independent of the Executive, the appointcuted, and not his will, which is so strangely ment was not revocable, but vested in the officer legal castumed, to be the only law of the exalted rights that are protected by the laws of his country.",asSumed to be the only law of the exalted functionaries who surround him; and that it The point ruled here is precisely the same as is not only not essential to the performance of that involved in the tenure-of-office act, to wit: their duty under the law that the heads of De- that Congress may define the tenure of any partments should be the mere passive instru- office it creates, and that once fixed by law it ments of his will, but the very contrary. is no longer determinable at the will of anyUpon this brief statement of the argument body-the act being a mere substitution of the it would seem as if there could be no reason- will of the nation for that of the Executive, able doubt as to the meaning of the Constitu- by giving that will the form of law, which is, tion. But the high delinquent who is now on indeed, the only form that is consistently adtrial, feeling that he cannot safely rest his case missible in a government of law. The present here, and shrinking from the inexorable logic Executive insists-as Jefferson did not-that he that rules it against him, takes refuge in the has the power under the Constitution to remove past, and claims to have found a new Constitu- or suspend at any and all times any executive tion that suits him better than the old one, in officer whatever for causes tb be judged of by the judicial authorities, in the opinion of the himself alone; and that, in the opinion of his 681 advisers, this power cannot be lawfully re- The next and last case is that of the United strained; which is in effect to claim the power States ex relatione vs. Guthrie, reported in 17 to appoint without the advice and consent of Howard, 284, which was an application for a the Senate, as he has just now done, as well as mandamus to the Secretary of the Treasury to to remove. compel him to pay the salary of a territorial The next case in order is that of ex parte judge in Minnesota, who had been removed by Heenan, reported in 13 Peters, which involved the President before the expiration of his term, a question as to the right of the judge of the dis- which was fixed by law at four years. The trict court of Louisiana to remove, at his dis- case was dismissed upon the doctrine that the cretion, a clerk appointed by him indefinitely proceeding was not a proper one to try the under the law. The court say there-Thomp- title to an office, and therefore the question of son, Justice, delivering the opinion-that- the power to remove was not disposed of or "All offices, the tenure of which is not fixedt by the discussed, except by Justice McLain, who disConstitution or limited by law, must be held either sented on the. main point and felt called upon) during good behavior or at the will and discretion of some department of the Government, and subject of course, to pass upon the other. I refer to to removal at pleasure." his opinion mainly for the purpose of borrowAnd again that- ing, with a part of the argument, an important " In the absence of all constitutional provisions or statement in relation to the views of the bench statutory regulation it would seem to be a sound and that was almost coeval with the Constitution necessary rule to consider the power of removal as itself on this question He says, on pe 306: "There was great contrariety of opinion in ConThey add, however- gress on this power. With the experience we now "But it was very early adopted as the practical have in regard to its exercise there is great doubt construction that the power was vested in the Presi- whether the most enlightened statesman would not dent alone, and that such would appearto have been come to a different conclusion." the legislative construction, because in establishing The power referred to was that of the rethe three principal Departments of State., War, and moval by the President of the heads of the Treasury, they recognized the power of removal in e the President, although by the act of 1798, establish- principal Departments of the Government, as ing the Navy Department, the reference was not by conceded by the acts of 1789. name to him." ~~~~name to him." " ~"The Attorney General calls this a constitutional The result was that upon the principles thus power. There is nO such power given in the Constienunciated, involving the exception as to cases tution. It is presumed to be in the President from where the tenure was limited by law, as laid the power of appointment. This presumption, I Mherbur vs. Madirsons lmthedby de slared think, is unwise and illogical. The reasoning is: down in Marbury vs. Madison, they declared The President and Senate appoint to office; therethe power of removal to have been well exer- fore the President may remove from office. Now, the cised by the judge who made the appointment argument would be legitimate if the power to remove were inferred to be the same that appoints. under the law, for the reason only that it was "It was supposed that the exercise of this power an incident thereto. by the President was necessary for the efficient disIt is well worthy of remark, however, in this charge of executive duties; that to consult the Sen- ate in making removals the same as making appointconnection, that although what is thus gratui- ments would be too tardy for the correction of abuses. tously said as to the practical construction in By a temporary appointment the public service is opposition to- the rule there recognized does now provided for in-case of death; and the same provision could be made where immediate removals are not conflict in any way with the doctrine of necessary. The Senate, when called upon to fill the Marbury vs. Madison, it is entirely at variance, vacancy, would pass upon the demerits of the late as seems to be confessed, with the decision incumbenThis I have never doubted. was the true - itself, which, on the doctrine of Mr. Madison struction of the Constitution; and I am able to say is the debate of 1789, that the power of removal it was the opinion of the late Supreme Court with was a strictly executive one, and passed by Marsh&llatitshead." the general grant of the Constitution, unless And again: expressly denied or elsewhere lodged, musthave "If the power toremove from office may be inferred been inevitably the other way, because in that from the power to appoint, both the elements of the appointing power are necessarily included. The case it must have resulted, not to the judge, Constitution has declared what shall be the exeoubut to the President. Whether a mere per- tive power to appoint, and, by consequence, the same missive, sub silentio, exercise of a power like power should be exercised in a removal." this, or even a temporary surrender on grounds It will be said, perhaps, that all this is qualiof personal confidence or party favor, where it flied by the remark that " this power of removal perhaps violated no cbnstitutionalinterdict, and has been, perhaps, too long established and was, in point of fact, authorized as to all but exercised to be now questioned." It is enough, the superior offices, can raise a prescription however, to refer to the observation which folagainst a constitutional right, or how many lows, that "the voluntary action of the Senate laws it will require to abrogate the fundamental and the President would be necessary to change law, I will not stop now to inquire. It is suffi- the practice," to show what was meant by him, cient for my purpose that the case decides thalt Such events as our eyes have witnessed, and the power of removal is but an incident to the such a conjuncture of affairs following fast upon power of appointment, and that, of course, it their heels as would leave the Executive with can be exercised only by the same agencies, as all his formidable patronage and all the prestige the tenure-of-office act exactly provides, of his place, without even the meager support 682 of a third in either House, were scarcely within that where the appointment is in the head of'a the range of human probability. When he Department the power of removal belongs to remarks, therefore, that it was "perhaps too him; that where it is lodged by Congress in late to question it," he means, of course, "to the President alone it is in him only;and where question it successfully," as the context shows. it is in the President and Senate conjointly If he had meant otherwise he would not have there it is in both; which is precisely the docreferred to a voluntary change of practice as trine maintained by the minority in the Conoperating a corresponding change of the Con- gress of 1789. It ought to be a sufficient anstitution. He was too good a lawyer and too swer, however, that no such distinction was large a statesman to affirm that the fundamental taken by Justice Thompson in the Heenan law of a great State could be wrested from its case, although he referred to the departure *true construction either by the errors of the from this rule in the practical construction Legislature, or the toleration of a mischievous which'had assigned the power to the President practice and a monster vice for less than eighty alone. years. The judicial opinion having thus signally It is apparent, then, from all the cases, that failed to support the dangerous heresies of the the judicial opinion, so far from sustaining the President, the next resort is to that of the view of the President, settles at least two statesmen, lawyers, and publicists who have points which are fatal to his pretensions: first, from time to time illustrated our history. And that Congress may so limit the tenure of an here, too, it will be found that the great crimoffice as to render the incumbent irremovable inal who is at your bar has no better support except by the process of impeachment; and than he has found in higher quarters. second, that the power to remove, so far as it I am not here to question the doctrine which exists, is but an incident to the power to has been so strongly urged, upon the authority appoint. of Lord Coke, that contemporaneous exposiNor is it any answer to say, as has been tion is entitled to great weight inlaw. Taking claimed in debate on this floor, that these were it to be sound, however, it will hardly be precases of inferior offices where, under the Con- tended, I suppose, that there is anything of stitution, it was within the power of Congress this description which will compare in value to regulate them at its discretion: There is with the authoritative, and, I might almost say, nothing in the provision as to inferior offices oracular utterances of the Federalist, which to distinguish them from others beyond the was the main agent, under Providence, in semere article of appointment. This is a ques- curing for the Constitution the support of the tion of tenure, and that is equally undefined people of the several States, and has since as to both, except in the few cases specially occupied the rank of a classic in the political enumerated therein. It was equally within the literature of America. And yet, in the seventypower of Congress to regulate in one case as seventh number of that series, which is ascribed in the other. The right to regulate is a neces- to the pen of Alexander Hamilton, himself sary result of the right to create. When it perhaps "the first among his peers" in the establishes an office, as it has established the Convention which framed that instrument, it departmental bureaus, by lawi, it has, of neces- is assumed as an unquestionable proposition sity, the right to prescribe its duties and say and that, too, in the way of answer to the objechow long it shall be held and when it shall tion of instability arising from frequent changes determine. When it does say so, it can hardly of administration, that inasmuch "as the Senate be maintained with any show of reason that a was to participate in the business of appointpower which is only implied from the fact that ments, its consent would therefore be necesthe tenure of office has been left indefinite in sary to displace as well as to appoint." Nor the Constitution which has vested the estab- was it considered even necessary to reason out lishment of offices in Congres, shall be held to a conclusion that was so obvious and inevitaoperate to defeat its will and shorten the life ble. It does not seem to have been supposed of its own creature in cases where its legisla- by anybody that a power so eminently regal tion is express. could ever be raised in the executive of a And so, too, as to the doctrine that the limited Government out of the mere fact of the power of removal is but an incident to the silence of the Constitution on that subject and power to appoint. That is settled upon the failure to provide any other mode of regrounds of reason, as a general principle, moval than by the process of impeachment. which has no more application to inferior If the conclusion, however, was not a sound offices than to superior ones. The idea is that one, then it was no better than a false prethe power of removal wherever it exists is in tense, which those at least who concurred in the very nature of things but part and parcel its presentation were morally estopped from of the power to appoint, and that as a conse- controverting. And yetit is to one of the disquence the power that makes; and none other, t6nguished authors of these papers, in his qualmust unmake; and on this idea it was ruled in ity of a legislator, that the nation is mainly the particular case that the power to remove indebted for the vote which inaugurated and was in the judge, because the authority to ap- fastened so long upon it the mischievous and point was there. It equally rules, however, anti-republican doctrine and practice which it 683 has cost a revolution to overthrow. It does question as the safety of the Government and of the not seem, however, to have effected any change Constitution may require." in the opinions of the distinguished author, as Mr. Calhoun was equally emphatic in his we find him insisting in a letter written ten condemnation of the power and speaks of pre: years afterward to James McHenry, then Sec- vious cases of removal as "rather exceptions retary of War, that even the power to fill vacan- than constituting a practice." cies happening during the recess of the Senate The like opinion was obviously entertained is to be confined to "such offices as having been by both Kent and Story, the two most distinonce filled have become vacant by accidental guished of the commentators on the Constitucircumstances." tion, and certainly among the highest authorFrom the time of the settlement of the policy ities in the country. The former, after referring of the Government on this subject by its first to the construction of 1789 as but " a loose, Congress downtill-the accession oftheyounger incidental, and declaratory opinion of ConAdams in 1826, a period of nearly forty years, gress," is constrained to speak of it as "a the question does not seem to have been agi- striking fact in the constitutional history of our tated, for the very satisfactory reason that the Government that a power so transcendent as patronage was so inconsiderable, and the cases that which places at the disposal of the Presiof abuse so rare, as to attract no attention on dent alone the tenure of every executive officer the part of public men. In the last named appointed by the President and Slenate, should year, however, a committee was raised by the depend on inference merely, and should have Senate, headed by Mr. Benton, and composed been gratuitously declared by the First Congress of nine of the most eminent statesmen of that in opposition to the high authority of the Fedday, to consider the subject of restraining this eralist, and supported or acquiesced in by some power by legislation. That committee agreed of those distinguished men who questioned or in the opinion that the practice of dismissing denied the power of Congress to incorporate a from office was a dangerous violation of the national bank." (1 Kent's Commentaries, sec. Constitution, which had in their view been 16, p. 308.) The latter speaks of it with equal " changed in this regard by construction and emphasis as "constituting the most extraorlegislation," which were only another name for dinary case in the history of the Government legislative construction, and reported sundry of a power conferred by implication in the bills for its correction not unlike in some re- Executive by the assent of a bare majority in spects to the present law. Those bills failed Congress which has not been questioned on of course, but with the public recognition of the many other occasions." (2 Commentaries, sec. new and alarming doctrine which followed the 1543.) accession of the next Administration, that the The same opinion, too, is already shown public offices, like the plunder of a camp, were upon the testimony of Judge McLain, as cited the legitimate spoils of the victorious party, above, to have been shared by "the old Suthe subject was revived in 1835 by the appoint- preme Court, with Marshall at its head." It ment of another committee, embracing the seems, indeed, as though there had been an ungreat names of Calhoun, Webster, and Benton, broken current of sentiment from sources such for the same object. The result of their labors as these through all our history against the exwas the introduction of a bill requiring the istence of this power. If there be any apparPresident in all cases of removal to state the ently exceptional cases of any note but the reasons thereof, which passed the Senate by a equivocal one of Mr. Madison, they will be found vote of 31 to 16, or nearly two thirds of that to rest only, as I think, upon the legislation of bo4y. In the course of the debate on that 1789 and the long practice that is supposed to bill, Mr. Webster, whose unsurpassed, and, as I have followed it. I make no account of the think, unequaled ability as a constitutional opinions of Attorneys General, although I lawyer will be contested by nobody, held this might have quoted that of Mr. Wirt, in 1818, emphatic language. to the effect that it was only when Congress "After considering the question again and again had not undertaken to fix the tenure of the within the last six years I am willing to say that, in office that the commission could run during my deliberate judgment, the original decision was the pleasure of the President. Theybelong to wrong. I cannot but think that those who denied the power in 1789 had the best of the argument. It the same category as those of Cabinet officers. appears to me, after thorough and repeated and con- It may not be amiss, however, to add just here seientious examination that an erroneous interpre- that although this question was elaborately tation was given to the Constitution in this respect by the decision of the First Congress." argued by myself upon the introduction of the And again': bill to regulate removals from office in the House of Representatives, which was substan" I have the clearest conviction that they (the Con- tially the same as the present law, which was vention) looked to no other mode of displacing an depending at that time, no voice but one was officer than by impeachment or the regular appoint-. depending at that time, no voice but one was meant of another person to the same place." lifted up in the course of a protracted debate And further: against the constitutionality of the measure itself. gress to reverse the decision of 1789, and I mean to What, then, is there in the legislation of hold myself at liberty to act hereafter upon that 1789, which is claimed to be not only a con 684 temporary but an authoritative exposition of privilege of dispensing with the Senate in the the meaning of the Constitution, and has no matter of appointments, and no limitation value whatever except as the expression of an whatever upon its power over the office itself opinion as to the policy of making the heads in the one case more than in the other. of Depaptments dependent on the President, And now let me ask what did the decision unless the acts of that small and inexperienced amount to, supposing it had even ruled the Congress are to be taken as of binding force question at issue, but the act of a mere Legisupon their successors and as a sort of oracular lature with no greater powers than ourselves? outgivingupon the meaning of the Constitution? Is there anything in the proceedings of the Whatever may have been the material pro- Congressof 1789toindicate thatit ever assumed visions of the several acts passed at that session, to itself the prerogative of setting itself up as for the establishment of these Departments, it an interpreter of the fundamental law? The is not to be supposed that it was intended to men who composed it understood their funcaccomplish a result so clearly not within the tions better than to suppose that it had any province of the law-maker as the binding set- jurisdiction over questions of this sort. If it tlement of the sense of that instrument on so had, so have we, andjudgments may be reversed grave a question. The effectof these acts has, on a rehearing, as constitutions cannot be. But I think, been greatly misunderstood by those if it did exist whence was it derived? How who rely on them for such a purpose. All that was the Congress to bind the people by alterthey amount to is the concession to the Presi- ing the law to which it owed its own existence, dent, in such a form as was agreeable to his and all its powers? It could not bind its sucfriends, of a power of removal which the ma- cessors by making even its own enactments jority was disposed to accord to him in cases irrepealable. If it had a right to give an opinwhere the tenure of the officer was left indefi- ion upon the meaning of the Constitution, why nite, and the office was therefore determinable may we not do the same thing? The Presiat will, but which those friends declined to dent obviously assumes that they were both accept as a grant, because they claimed it as a wiser and better than ourselves. If the respect right. The result was but a compromise, which which he professes for their opinions had anievaded the issue by substituting an implied mated him in regard to the Congresses which grant for an express one, and left the question have sat under his administration, the nation in dispute just where it found it. The record would have been spared much tribulation and shows, however, that even in this shape the we relieved of the painful necessity'of arraignbill finally passed the House by a vote of only ing the Chief Magistrate of the Republic at 29 to 22. In the Senate, however, where the your bar for his crimes against order, and libdebate does not appear, it was carried only by erty, and his open defiance of law. the casting vote of the Vice President, not However it may be with others, I am not properly himself a legislative but an executive one of those who think that all wisdom and officer, who had a very direct interest in the virtue have perished with our fathers, or that decision. they were better able to comprehend the imThe case shows, moreover, as already sug- port of an instrument with whose practical gested, that there was no question involved as workings they were unfamiliar than we who to the duration of the office. Whether it are sitting under the light of an experience of could be so limited, as has been done in the eighty years, and suffering from the mistakes tenure-of-office law, was not a point in con- which they made in regard to the future. They troversy, and is not, of course, decided. That made none greater than the illusion of supposit might be so, is not disputed as to the "in- ing that it was impossible for our institutions.ferior" offices. The thing itself was done, to throw up to the surface a man like Andrew and the right to do it acquiesced in and af- Johnson; and yet it was this mistake-perhaps firmed, as shown already in the case of Mar- no other-that settled the first precedent, which bury vs. Madison) as early as 1801.- It can- was so likely to be followed, in regard to the not be shown, however, that there is any dif- mischievous power of removal from office. But ference between the cases of inferior and if twenty-nine votes in the House at that day, superior offices in this respect. There is no making a meager majority of only seven, and word in the Constitution to require that the nine only in a Senate that was equally divided, latter shall hold only at pleasure. Both are in the first hours of constitutional life, and with created by law, and Mr. Madison himself ad- such a President as Washington, to fling a rosdmits, in the debate of 1789, that " the legisla- colored light over the future of the Republic, tive power creates the office, defines the power, had even intended to'give, and did give, a limits its duration, and annexes the compen- construction to our great charter of freedom, Sation." All that the Constitution contains is what is to be said of 138 votes to 37, constitutthe exception from the general power of ap- ing more than three fourths of one House, and pointment in the authority to Congress to vest'of 35 to 11, or nearly a like proportion of the that power in inferior cases in the President other, in the maturity of our strength, with a alone, in the courts of law, or in the heads of population of nearly forty millions, and under Departments. But there is nothing here as to the light of an experience which has proved tep power of removal-nothing but as to the that even the short period of eighty years was 685 capable of producing what our progenitors vest him with unlimited command; and'it was supposed to be impossible even in the long but natural, as it was certainly highly conventract of time? ient, that the exercise of that will, which was But there is one other consideration that to determine the life of the officer, should be presents itself just here, and it is this: it lodged with him. It was so lodged.' does not strike me by any means as clear that But is there anything remarkable in the fact there was anything in the act of 1789, aside that the precedent thus set should have been from any supposed attempt to give it the force followed up in the practice of the Government? of an authoritative exposition of the Constitu- It would have been still more remarkable if it tion, that was necessarily inconsistent with the had been otherwise. It was a question of pat. view of that instrument which I have been en- ronage and power-of rewarding friends, and deavoring to maintain.- Taking the authority punishing enemies. A successful candidate for lodged by it with the President as a mere gen- the Presidency' was always sure to bring in with eral grant of power, there was nothing cer- him a majority in the popular branch at leapt, tainly in its terms to prevent it. So far at along with a host of hungry followers flushed least as regarded the inferior officers, it re- with their victory and hungering after the spoils. sulted from the express authority of Congress Was it expected that they should abridge his to vest the power of appointment in the Presi- power to reward his friends, or air their own dent alone, that they might have even left the virtue by self-denying ordinances? That would power of removal in the same hands also as an hgve been too much for men, and politicians, incident. And so, too, as to the superior ones. too. -No. Though the wisest statesmen of the The power to remove in any case was but an im- country had realized and deplored for forty plied one. If it was necessary, as claimed, to years at least the giant vice which had been enable the Executive to perform his proper gnawing into the very entrails of the state, and functions under the Constitution, instead of threatened to corrupt it in all its members, raising the power in himself by the illogical there was no remedy left, but the intervention inference, that it must belong to him qua Ex- of that Providence which has purified the heart ecutive, it presented one of the very cases for of the nation through the blood of its children, which it is provided expressly that Congress and cast down the man who " but yesterday shall "make all laws that shall be necessary might have stood against the world," so low, and proper for carryinginto execution all power that with all his royal patronage there are none vested by the Constitution in the Government left —no, I think not one-" so poor as to do of the United States, or in any Department or him reverence." officer thereof." To infer in the face of such It is not even true, however, that the prea provision as this, that any or all powers cedent of the Congress of 1789 has been folnecessary to either department of the Govern- lowed invariably and without interruption since ment belong to them, of course, because they thattime. The history of ourlegislation shows are necessary, is a reflection on the under- not only repeated instances wherein the tenure standings of the framers of the Constitution, of office has been so precisely defined as to and is in effect to nullify the provision itself, take the case entirely out of the control of the by enabling the other Departments of the Gov- Executive, but some in which even the power ernment to dispense entirely with the action of removal itself has been substantially exerof the law-maker. cised by Congress, as one would suppose it But, admitting the act of 1789 to import, in might reasonably be, where it creates and may its full extent, all that it is claimed to have Ae- destroy, makes and may unmake, even the subci4ed, it is further insisted that this: untoward ject of controversy itself. precedent has been ripened into unalterable The act of 1801, already referred to in conlaw by a long and uninterrupted practice in nection with the case of Marbury and Madison, conformity with it. If it were even true, as assigning a tenure of five years absolutely to stated, there would be nothing marvelous in the officer, involves a manifest departure the fact tlhat it has been followed up by other from it. legislation of a kindred character. It is not The five several acts of August 14, 1848, to be doubted that a general opinion did pre- March 3, 1849, September, 1850, and May 3, vail for many years that all the offices of the 1854, providing for the appointment of judges: Government not otherwise provided for in the in the Territories of Oregon, Minnesota, New Constitution ought to be held at will, for the Mexico, Kansas, and Nebraska, and fixing obvious reason, among others, that it rendered their terms of office at four years absolutely, the process of removal easy by making an im- are all within the same category. peachment unnecessary. The only question in The act of 25th February, 1863, followed by dispute was in whose hands this power could that of June 3, 1864, establishing the office of be most appropriately lodged. It so happened, Comptroller of the Currency, defining his term however, that the first of our Presidents brought and making him irremovable except by and with with him into the office an elevation of char- the advice and consent of the Senate, and upon acter that placed him above all suspicion, and reasons to be shown, is another of the same assured to him a confidence so unbounded that description. it would have been considered entirely safe to The act of March 3, 1865, which authorizes 686 any military or naval ofier who has been dis- spectator of this great drama, a veteran statesmissed by the authority of the President to man, known by fame, and perhaps personally, demand a trial by court-martial, and in default to all of you, whose years go back behind your of its allowance within six months, or of a Constitution itself. But what is a century but sentence of dismissal or death thereby, avoids the briefest hour in the life of a State? How the order of the Executive; and the act of is a mere non-user for seventy-five of its infant July 13, 1866, which provides that no officer years to be set up either to bar a fundamental. in time of peace shall be dismissed except in right, or to prove that it never existed? It pursuance of a sentence of a court-martial, required six centuries of struggle with the preare both examples of like deviation of the rogative to settle the British constitution firmly strongest kind, for the double reason that the upon the foundations of Magna Char-a, and no President is, under the Constitution, the Comn- hostile precedent of the reigns of either the mander-in-Chief of the Army and Navy of the Plantagenets or Tudors was allowed to stand in Uinited States, and none but civil officers are the way of the onward movement that culamenable to the process of impeachment, and minated in the revolution of 1688. And yet it that the officer dismissed is absolutely restored, is gravely urged on us, that the conduct of our awakened into new life, and raised to his national life is to be regulated by the mistakes feet by the omnipotent fiat of the legislative of its childhood, and that the grand patrimony power. of the Revolution has been squandered beyond And, lastly, the act of 15th May, 1820, (3 recovery by the thoughtless improvidence, or Statutes, 582,) which dismisses by wholesale too generous and trustful prodigality of an a very large and important class of officers at earlier heir who had just come to his estate. periods specially indicated therein, not only And now I may venture to say, I think, that fixes the tenure prospectively, but involves a it has been shown abundantly that all the reclear exercise of the power of removal itself sources of the President on this point have on the part of the Legislature. failed him. The awards of reason, the judgFurther developments in the same direction ments of the courts, the opinions of stateswould no doubt reward the diligence of the men, lawyers, and publicists, the precedent of more pains-taking inquirer. That, however, 1789, and the practice of the Government, are would only be a work of supererogation. all against him. Enough have been shown to demonstrate be- Mr. MORRILL, of Vermont, (at four o'clock yond denial that the practice relied on has and five minutes p. m.) I understand that the been anything but uniform. Manager is extremely ill to-day, and would To establish even a local custom or pre- not be able to finish his argument if he were scription the element of continuity is as im- well. I therefore move that the Senate, sitting portant as that of time. Any break in that as a court, adjourn until to-morrow. continuity by an adverse entry or even a con- The motion was agreed to; and the Sentinual claim, would arrest the flow of a statute ate, sitting for the trial of the impeachment, of limitations against the rightful owner of a adjourned until to-morrow at twelve o'clock. tenement. An interruption of the enjoyment would be equally fatal to a prescription. But are we to be told that a case which in this viewESDAY, April 28, 1868. would not even be sufficient to establish a com- The Chief Justice of the United States took position for tithes, or a trifling easement as be- the chair. tween individuals, is sufficient to raise a pre- The usual proclamation having been made scription against a constitutional right or to by the Sergeant-at-Arms, abrogate the fundamental law of a nation and The Managers of the impeachment on the bar the inappreciable inheritance of its peo- part of the House of Representatives and the ple? The very statement of the proposition counsel for the respondent, except Mr. Stanwould seem to furbish its own refutation. bery, appeared and took the seats assigned to But this is not all. If the case had even been them respectively. one of uninterrupted continuity, how is it as to The members of the House of Representathe element of time? To settle a custom, either tives, as in Committee of the Whole, preceded public or private, it must have the hoar of an- by. Mr. E. B. WASHBURNE, chairman of that tiquity upon it; its origin must be traced far committee, and accompanied by the Speaker back into the night of time, so far that no living and Clerk, appeared, and were conducted to memory can measure it, and no man can say the seats provided for them. that he has drunk at its head-springs or stood The Journal of yesterday's proceedings of beside its cradle. What is the case here? It is the Senate, sitting for the trial of the impeacha question of the fundamental law of a people ment, was read. whose dominions embrace a continent, and Mr. SUMNER. Mr. President, I send to whose numbers are multitudinous as the stars the Chair an amendment to the rules of the of heaven. A little more than three quarters of Senate, sitting for the trial of impeachments. a century will measure the career that they have When that has been read, if there be no obths far run. What a mere span is this? Why jection, I will ask that it go over until the I have seen on this floor, a not uninterested close of the arguments, to take its place with 687 the other matters which will come up for con- pleasant to hear the witness on the stand at sideration at that time. least, discourse of constitutional law. If the The CHIEF JUSTICE. The Secretary will public interest has not suffered, the public read the proposed rule for information. curiosity has at least been balked by the denial The Chief Clerk read as follows: of the high privilege of listening to the lumiWhereas it is provided in the Constitution of the nous expositions which some of these learned United States that on trials of impeachment by the Thebans, whose training has been so high as to urenate no person shall he onvcted without the con.- warrant them in denouncing us all-the legisthe person so convicted shallbe memoved fromesent, and lators of the nation-as no better than " Conbut this requirement of two thirds is not extended stitution tinkers," would have been able to to any further judgment, which remains subject to hel us th the general law that a majority prevails; therefore, l w in order to remove any doubt thereupon: It is a large part of the defense of the PresiOrdered, That after removal, which necessarily dent, as set forth in his voluminous special follows conviction, any question which may arise plea, and elaborated in the argument of the with regard to disqualification or any further judg-plea, and elaborated in the argument of the ment shall be determined by a majority of the mem- opening counsel, not only that his Cabinet bers present. agreed with him'in his views as to the law but Mr. DAVIS. I object to the consideration that if he has erred, it was under the advice of it. received from those whom the law had placed TheCHIEF JUSTICE. The proposed order around him. It is not shown, however, and will lie over. That is the disposition proposed was not attempted to be shown, that in regard by the Senator from Massachusetts. Mr. Man- to the particular offense for which he is now ager WILLIAMS will proceed on the part of the arraigned before you they were ever consulted House of Representatives.. by him. But to clear this part of the case of all possible cavil or exception, I feel that it Mr. Manager WILLIAMS. Mr. President will not be amiss to ask your attention to a and Senators, I have to thank you for the in- few remarks upon the relations of the Presidulgence which you were kind enough to ex- dent with this illegitimate body, this excrestend to me yesterday at a time when I very cence, this mere fungus, born of decay, which much wanted it.' I shall endeavor, however, has been compounded in process of time out to testify my gratitude by not abusing it. of the heads of the Departments, and has shot Before I closed yesterday I was referring to up within the last few years into the formidable the position taken by me, and, as I thought, proportions of a directory for the general govsufficiently demonstrated, that the President ernment of the State. had failed in all his supports; that the reason The first observation that suggests itself is of the thing, the natural reason, the cultivated that this reference to the advice of others proreason of the law, the judicial sentiment, the ceeds on the hypothesis that the President opinions of commentators, the precedent of himself is not responsible, and is therefore at 1789, and even the practice, were all against war with the principal theory of the defense, him; but then I suggested that there was one which is that he is the sole responsible head resource still left, and to that I now come, and of the executive department, and must therethat is in the opinion of whatis sometimes called fore, ex necessitate, in order to the performance his Cabinet, the trusted counselors whom he is of his appropriate duties, have the undisputed pleased to quote as the advisers whom the right to control and govern and remove them Constitution and the practice of the Govern- at his own mere will-as he has just done in ment have assigned to him. If all the world the case.of Mr. Stanton-a theory which preha. forsaken him, they, at least, are still faith- cludes the idea of advice in the fact that it ful to the chief whom they have so lorg accom- makes the adviser a slave. What, then, does panied, and so largely comforted and encour- the President intend? Does he propose to aged through all his manifold usurpations. abandon this line of defense? He cannot do it It is true that these gentlemen have not been without surrendering his case. allowed to. prove, as they would have desired Is it his purpose, then, to divert us from the to do, that maugre all the reasoning of judges, track by doubling on his pursuers, and leading lawyers, and publicists, they were implicitly them off on a false scent, or does he intend the of the opinion, and so advised the President, offer of a vicarious sacrifice? Does he think that the tenure-of-office law, not being in ac- to make mere scapegoats of his counselors by cordance with his will, was, of course, uncon- laying all his multitudinous sins upon their stitutional. It may be guessed,. I suppose, backs? Does he propose to enact the part of without damage to our case, that if allowed another Charles, by surrendering another Straftheywould haveprovedit. Withlarge oppor- ford to the vengeance of the Commons? We tunies for information I have not heard of any must decline to accept the offer. We want no occasion wherein they have ever given any opin- ministerial heads. We do not choose in the ion to the President, except the one that was pursuit of higher game to stoop to any ignobler wanted by him, or known to be agreeable to quarry either on the land or on the sea. It his will. If there had been time I should have would be anything but magnanimous in us to been glad to hear from some of these function- take, as it would be base in him to offer, the aries on that question. It would have been heads of those whom our own past legislation has degraded into slaves. When Caesar falls likely that he may have consulted them as to his counselors will disappear along with him. appointments, and other matters of executive: Perhaps he thinks, however, that nobody is duty that involved anything like discretion. responsible. But shall we allow him to justify They may have met occasionally in after times in one breath the removal of Mr. Stanton on upon the special invitation of the President. the ground that under the law he was his mas- It was not, however, as I think, until the period ter, and then in another, when arraigned for of the war, when the responsibilities of the Presthis, to say that he is not responsible because he ident, as Commander-in-Chief of the armies, took advice from those who are but mere au- were so largely magnified as to make it necestomata-only his "hands and voice," in the sary that he should take counsel from day to language of his counsel-and no more than the day, that they crystallized into their present mere creatures of his imperial will? This form, as a sort of institution of state; and not would be a sad condition, indeed, for the people till the accession of Andrew Johnson, that they of a Republic claiming to be free. We can all began to do the work of Congress, in a condiunderstand the theory of the British constitu- tion of peace, by legislating for the restoration tion. The king can do no wrong. The person of the rebel States. From that time forward, of majesty is sacred. But then the irresponsi- through all that long and unhappy interregnum bility of the sovereign is beautifully reconciled of the law-making power, while the telegraph with the liberty of the subject, by holding the was waiting upon the action of those mysterious ministry responsible, and thus taking care that councils, that dark tribunal which was erecting he shall get no bad advice from them. But States by proclamation, taxing the people, and what is to be our condition, with no recourse surrendering up the public property is to keep between the two, to either king or minister? them on their feet, and exercising a dispensing It will be not unlike whatis said in the touching power over the laws, had apparently taken the plaint of the Britons, " The barbarians drive us place of the Congress of the nation, with powers to the sea, and the sea drives us back again on quite as great as any that the true Congress has the barbarians." ever claimed. To say that the acts of this mere But who made these men the advisers of cabal, which looked for all the world, like some the President? Not the Constitution, cer- dark conclave of conspirators plotting against tainly; not the laws, or they would have made the liberties of the people, were the results them free. The Constitution has given to him of free consultation and comparison of views, no advisers but the Senate, whose opinion he is to speak without knowledge. I for ctne scouts at and defies, because he cannot get from mistrusted them from the beginning, and, it the advice he wants, and would obtain, no if I may be excused the egotism again, it doubt, if it were reduced to the condition of was under the inspiration of the conviction that of imperial Rome. All it provides in that they could not have held together so long regard to the heads of Departments is that he under an imperious, self-willed man like the may require the opinion in writing of each of present Executive, without a thorough submisthem upon any subject relating to the duties sion to all his views, that I was moved to of his own special office, and no more. He introduce and urge, as I did, through great cannot require it as to other matters, and by discouragements, but, thank God, successfully, the strongest implication it was not intended the. amendment to the tenure-of-office bill, that that he should take it on any matter outside of brings about this conflict. It has come sooner their own respective offices and duties. He than I expected, but not too soon to vindicate, has undoubtedly the privilege which belongs by its timely rescue of the most important of to other men, of seeking for advice wherever the Departments of the Government from the he may want it; but if he is wise, and would be grasp of the President, the wisdom of a meashonestly advised-as he does not apparently ure which, if it had been the law at the time wish to be-he willgo to those who are in a con- of Mr. Johnson's accession, would, in my ndition to tell him the truth without the risk of humble judgment, have set his policy aside, being turned out of office, as Mr. Stanton has and made his resistance to the will of the loyal been. for doing so. No tyrant who has held the people, and his. project of governing the nation lives of those around himnin his hands, has ever without a Congress, impossible. The veil has enjoyed the counsels of any but minions and been lifted since the passage of this law, and sycophants. If it had been the purpose of the those who wish, may now read in letters of framers.of the Constitution to provide a coun- living light the great fact, that during the cil for the President, they would have looked progress of 411 this usurpation that has conto it that he was not to be surrounded with vulsed the nation, and keptthe South in anarchy creatures such as these. for three long years, there was scarce a ripple But then it is said that the practice of hold- of dissent to ruffle the stagnant surface of those ing Cabinet councils was inaugurated by Presi- law-making and law-breaking cabals, those dent Washington, and has since continued mere beds of justice, where, in accordance without interruption. It is unquestionable that with the theory of the President himself, there he did take the opinions in writing ofallthe heads was but one will. that reigned undisputed and of Departments, on bills that were submitted supreme. to him in the constitutional way, and not un- To insist, then, that any apology is to be found. 689 for the delinquencies of the President, in the ad- and acted with him in the Congress of 1789. vice of a Cabinet, where a difference of opinion No man there who asserted the power of rewas considered treason to the head, and loyalty moval to be in the President, or concurred in to the law, instead of to the will of the Presi- bestowing it on him for the occasion, ever supdent, punished by dismissal, is, as it seems to posed that its exercise was to be a question of me, on his part, the very climax of effrontery. mere caprice, or whim, or will. To the objecWhat adequate cause does the President now tion that this would be the effect of the doctrine assign for the removal of Mr. Stanton? His of removal, it was answered by Mr. Madison counsel promised us in their opening, that they himself in these words: would exhibit reasons to show that it was im- "The danger consists merely in this: that the Prespossible to allow him to continue to hold the ident can displace from office a man whose merits office. They have failed to do it. They have require that he should be continuedin it. What will obe the motive which the President can feel for such not even attempted it. Was it because he had abuse of his power, and the restraints that operate to failed to perform his duties, or had in any way prevent it? In the first place he will be impeached offended against the law? The President al- by the House before the Senate for such an act of maladministration; for I contend that the wanton leges nothing of the kind. Was it even a per- removal of meritorious officers would subject him to sonal quarrel? Nothing of this sort is pre- impeachment and removal from his own high trust." tended either. All that we can hear of, is that And it was, no doubt, mainly on this arguthere was a "want of mutual confidence;" ment that the power of removal was embodied that "his relations to Mr. Stanton were such in the law. as to preclude him from resorting to him for What, then, have the President and his counadvice," (Heaven save the markl) and that sel to say in answer to this? Is the President he did not think he could be any lcnger safely impeachable on his own case, or does he exresponsible for him. His counsel say that Mr. pect to realize the fruits of the argUment, and Stanton is a thorn in his side. Well a thorn in then repudiate the very grounds on which the the flesh is sometimes good for the spirit. But so alleged construction rests? Was Mr. Stanton are Grant and Sherman and Sheridan, and so a meritorious officer? Did his merits require is Congress, and so is every loyal man in the that he should be continued in the place? No country who questions or resists his will. The loyal man, I think, disoutes that they did, and trouble is, as everybody Jknows, that Mr. Stan- this Senate has already solemnly adjudged it, in ton does not indorse his policy, and cannot be their decision that, upon the reasons stated by relied on to assist him in obstructing the laws the President, there was no sufficient cause for of Congress; and that is just the reason why his removal, while none other have been since you want this thorn to "stick," and, if need shown by the accused himself. What, then,. be, prick and fester a little there, and must was the motive for this act of maladministramaintain it there, if you would be faithful to tion, as Mr. Madison denominates it? Noththe nation and to yourselves. You cannot let ing that we are aware of, except the fact that Mr. Stanton go, by an acquittal of the Presi- the President cannot control the War Office in dent, without surrendering into his hands the the interests of his policy, so long as he is: very last fortress that you still hold, and arenow there. Was this, then, a wanton removal? It holding only at the point of the bayonet. was something more-it was a wicked one. And' But there is a point just here that seems to are we to be told now that he is bound to show have been entirely overlooked by the counsel no reasons, and cannot be compelled to anfor'the President, to which I desire especially swer for it to the nation, by those who claim, to invite your attention. It seems to have the power of removal for him on the very footbeen assumed by them throughout-if it is not, ing that its abuse would be impeachable? indeed, distinctly asserted in the defendant's But it is further strenuously argued, that alplea-that if they shall be able to succeed in though the law may be constitutional, and the establishing a power of removal in the Presi- case of Mr. Stanton within it, as it has been dent, either under the Constitution or the act already Jeld to be by this Senate, the case was of 1789, erecting the Department now in not so clear a one as to authorize a charge of question, he may exercise that power at his crime against the President, unless it can be mere will and pleasure, without reason and shown that he has willfully misconstrued it; without responsibility; and having failed to and that although wherever a law is passed show any adequate cause, or indeed any cause through the forms of legislation, it is his duty whatever for the act done here, he stands, of to see that it is faithfully executed so long as it course, on this hypothesis. But is this the requires no more than ministerial action on his law? Is there no such thing as an abuse of part, yet, where it is a question of cutting off a power, and a just responsibility as its attend- power confided to him by the Constitution, and ant? Was it intended in either case-whether he alone can bring about a judicial decision the power flowed from one source, or from the for its settlement; if, on due deliberation and other-that it should be exerciseable without advice, he should be of the opinion that the law restraint? That doctrine would be proper in was unconstitutional, it would be no violation a monarchy, perhaps, but is ill suited to the of duty to take the needful steps to raise that genius of institutions like our own. Nor was it question, so as to have it peacefully decided. the opinion of Mr. Madison, or those who voted Allow me to say in answer, that if even ignoC. I. —44. 690 rance of the law, which excuses nobody else, stands them, of course. Thomas is a martinet. can be held to excuse the very last man in the He knows no law, as he confesses, but the order nation who ought to be allowed to plead it, the of his Commander-in-Chief. He has been testimony shows, I think, that he did not mis- taught no argument but arms-no logic but understand its meaning. His suspension of the dialectics of hard kndcks. Instructed Mr. Stanton, which was an entirely new pro- by the President, he hopes to frighten Stancedure, followed, as it was, by his report ofthe ton by his big looks and horrent arms. He case to the Senate within twenty days after its proceeds upon his warlike errand in all the next meeting, is evidence that he did under- panoply of a brigadier, and loftily demands stand the law as comprehending that case, and the keys of the fortress from the stern warder, did not intend to violate it, if he could get rid who only stipulates for twenty-four hours of the obnoxious officer without resorting to to remove his camp equipage and baggage. so extreme and hazardous a remedy. The conquest is apparently an easy one. He But the question here is not so much whether reports forthwith to his chief with the brevity he ignorantly and innocently mistook the law; of a Caesar: "Veni, vidi, vici." They rejoice, as whether in the case referred to of an inter- no doubt, together over the pusillanimity of the fcrence with the power claimed by him under Secretary; and the puissant Adjutant then unthe Constitution, he may suspend the operation bends, and flies for relaxation, after his heroic of a law by assuming it to be unconstitutional, and successful feat, to the delights and mysteand setting it aside until the courts shall have ries of the masquerade; not, however, until he decided that it is a constitutional and valid has "fought his battle o'er again," and invited one. In the case at issue, it was not necessary his friends to be present at the surrender on to violate the law, either by contriving to pre- the following morning, which he advises them vent the incumbent from resuming his place that he intends to compel by force, if necessary. under it, or turning him out by violence after The masquerade opens. " Fair women and he had been duly reinstated by the Senate, if brave men" are there, andhe honestly desired to test its validity in the Music ascends with its voluptuous swell, judicial. forum. All that it was necessary for And eyes look love to eyes that speak again; him to do, was to issue his order of removal, And all goes merry as a marriage bell." and give the officer a notice of that order, and The Adjutant himself is there. The epauits object. If he refused to obey, the next and lette has modestly retired behind the domino. obvious stepwouldhavebeento directtheAttor- The gentleman from Tennessee at least will ney General to sue out a writ of quo warranto, excuse me, if after his own example, I borrow on his own relation. This was not his course. from the celestial armory, on which he draws so The remedy was not summary enough for his copiouslyra little of that light artillery, with uses, as his special counsel, employed only which he blazes along his track, like a Novemafter the arrest of his pseudo Secretary Thomas, ber midnight sky with all its flaming asteroids. testifies, because it would have allowed the law The Adjutant, I repeat, is there. to reign in the meanwhile, instead of creat- "Grim-visaged war hath smoothed his wrinkled ing an interregnum of mere will by which he front, hoped to supersede it. His project was to seize And now, instead of mounting barbed steeds -hoped to supersede it. His project was to seize To fright the souls of fearful adversaries, the place; by craft, if possible; by force, if He capers nimbly in a lady's chamber necessary. For this purpose he claims to have To the lascivious pleasing of a lute." made an arrangement with General Grant for But lo I a hand is laid upon his shoulder, its surrender to himself, in case the judgment which startles him in the midst of the festivof the Senate should restore the officer, and ities, like the summons to " Brunswick's fated now taxes that distinguished officer with bad chieftain" at' the ball in Brussels, on the faith to him individually, for his obedience to night before the battle in which he fell. It is the law. the messenger of the Senate, who comes to warn It stands, therefore, upon his own confession, him that his enterprise is an unlawful one. On that he intended to prevent Mr. Stanton from the following morning he is waited upon again resuming his position, in which case-as he well by another officer, with a warrant for his arrest knew, and as his Attorney General knew, and for threats which looked to a disturbance of must have informed him, there was no remedy the peace. This double warning chills his at law for the ejected officer. Foiled and baf- martial ardor. Visions of impending trouble fled by the integrity of Grant, after full delib- pass before his eyes. He sees, or thinks he eration he issues his order of removal on the sees, the return of civil strife, the floors of the 21st of February, and sends it by his lieutenant, Department dabbled, perhaps, like those of the Thomas, with a commission to himself to act as royal palace at Holyrood, with red spots of Secretary ad interim, and enter upon the du- blood. But, above all, he feels that the hand of ties of the office. He does not fail to suggest to the law-maker and of the law itself, which is him at the same time, that Stanton is a coward, stronger than the sword, is on him, and he and may be easily frightened out of the place puts up his weapon, and repairs, in peaceful with a proper show of energy on his part. He guise, to take possession of his conquest. I do tells him also that he expects him to support not propose, however, to describe the interview -the Constitution and the laws-as he under- which followed. That will be the task of the 691 future dramatist. It will be sufficient for us to there is no objection to his doing it; and inaccompany him back to the White House, where stances the cases of a law to prevent the making he receives the order to " Go on and take pos- of a treaty, or one to declare that he shall not session," which he was so unhappily called back exercise the functions of Commander-in-Chief. to contradict, and which it was then well un- It has been already very fully answered that derstood, of course, that he could not obtain there is no evidence here to show that there except by force; and he continues to be recog- was any honest purpose whatever to bring this nized as Secretary of War, without a portfolio case into the courts, but that, on the contrary, or a cure, while he waits under the direction there is very conclusive testimony to prove of the President, not upon the law, but only to that he intended to keep it out of them. But see, like Micawber, what may turn up here, had he a right to hold this law a nullity until and to be inducted and installed in proper it was affirmed by another tribunal, whether it form, as soon as your previous decision shall was constitutional or not? The Constitution have been reversed, and his title affirmed, by gives to him the power of passing upon the your votes in favor of an acquittal. The idea acts of the two Houses, by returning a bill of a suit, in which direction no single step was with his objections thereto, but if it is afterever taken, is now abandoned, if it -was ever wards enacted by two thirds of both it is proseriously entertained. vided that " it shall become a law." What is The conversation, however, with General a law? Itis a rule of civil conduct prescribed Sherman, who was called as a witness by the by the supreme power of a State. Is there President himself, settles the fact conclusively, any higher power than the Legislature? Is it if not already'demonstrated by all the attendant essential to the operation of a law that it circumstances, that it was not his purpose at should have the approval of the judiciary, as anytimetobringthecaseintothecourtsforadju- well as of the President? It is as obligatory dication. He preferred the dexterous finesse, on th President as upon the humblest citizen. or the strong hand, to a reference which every Nay, it is, if possible, more so. He is its sensible lawyer would have told him could be minister. The Constitution requires that he attended with only one result, and that a judg- shall take care that it be faithfully executed. ment in favor of the law.. It is for others to controvert it, if aggrieved, But in this great strait, instead of a resort in a legal way, but not for him. If they do, to the Attorney General himself, his special however, it is at their peril, as it would be counsel Cox, employed only after the arrest of at his, even in the cases put, where it is asked, TThomas, is called to prove that he advised with great emphasis, whether he would be against the writ of quo warrarto, because of bound to obey? Those cases are extreme ones. " ithe law's delay," and endeavored to seek a But if hard cases are said to make bad preremedy more summary through a habeas corpus, cedents, it may be equally remarked that exin the event of the commitment of the Secre- treme cases make bad illustrations. They are, tary ad interim. Supposing it all true, how- moreover, of express powers, as this is not. ever, the movement came too late to help his But it will be time enough to answer them when employer's case, by showing a desire to put the they arise. It is not a supposable contingency, issue in the way of ajudicial decision upon the that two thirds of both Houses of Congress will law. Nor is it clear by any means that such a flatly violate their oaths in a clear case. Thus process could have achieved the desired results. far in their history, they have passed no law, I With a warrant good upon its face, and charg- believe, that has been adjudged invalid. Whening a threatened disturbance of the peace, or an ever they shall be prepared to do what is now offinse against a statute of the United States, I supposed, constitutions will be useless, faith doubt whether any court would venture to de- will have perished among men, and limited clarethe warrahtvoid, orto dischargeuponsuch representative government become impossiahearing, on thefootingoftheunconstitutional- ble. When it comes to this, we shall have revity of the law, which had received nearly three olution, with bloody conflicts in our streets, fourths of the votes of both Houses, or, indeed, with a dongress legislating behind bayonets, of any law whatever; while I do not see how and that anarchy prevailing everywhere, which even a decision against it, could have had either is already foreshadowed by the aspect of a the effect of ousting Stanton oir putting Thomas Department of this great Government beleagin his place. It is enough, however, for the uered by the minions of despotism, with its present purpose that the prisoner was discharged head a prisoner, and armed sentinels pacing on the motion of his own attorney. before its doors. Who shall say that the PresThe counsel forthe President admits thathe ident shall be permitted to disobey even a cannot in ordinary cases erect himself into a doubtful law, in the assertion of a power that judicial tribunal, and decide that a law is un- is only implied? If he may, why not also set constitutional, because the effect would be that aside the obnoxious section of the appropriathere could never be any judicial decision upon tion bill, upon which he has endeavored unsucit; but insists, as already stated, that where a cessfully to debauch the officers of the Army particular law has cut off a power confided to by teaching them insubordination to the law? him by the Constitution, he alone has the Why not openly disregard your reconstruction power to raise the question for the courts, and acts, as he will assuredly do, if you shall teach 692 him by your verdict here that he can do it with he has desired to carry into another tribunal, impunity? The legal rule is that the presumption without waiting for any extraneous opinion. It is in every case in favor of the law, and that is a has already determined upon the constitutionviolent one, where none has ever been reversed. ality of'the tenure-of-office law, by enacting it The President claims that this presumption over his objections, as it has already passed shall not stand as against him. If it may not upon its meaning, by its condemnation of the here, it cannot elsewhere. To allow this revo- act for which he is now to answer at its bar. lutionary pretension, is to dethrone the law It will say, too, if I mistake not, that whether and substitute his will. To say thathe may hold constitutional or not, it will allow no executive his office, and disregard the law, is to proclaim officer, and much less the Chief Magistrate of either anarchy or despotism. It is but a short the nation, to assume that it is not so, and set step from one extreme to the other. To. be up his own opinion in its place, until its prewithout law, and to leave the law dependent on vious and well-considered judgment upon the a single will, are in effect but one and the same same opinion has been judicially affirmed. thing. The man who can declare what is law, But does it make any difference whetherMr. and what is not, is already the absolute master Stanton's case is within the tenure-of-office act of the State. or not. Had the Executive the power at any But who is to try this case? Tile President time, either during the session or the recess, to insists that it belongs to the jurisdiction of the create a vacancy to be filled up by an appointSupreme Court, where, as he untruly says, ment ad interim, to continue during his own he endeavored to carry it. So it would, if the pleasure; or if he had, could he prolong a question involved were one of merely private vacancy so created beyond the period of six right. But in his eccentric efforts to get into months? one court, by turning his back upon it, he has The Constitution provides-and it required stumbled very unexpectedly into another. It such a provision, in view of the general clause is not the one he sought, but it is the one the which associates the Senate with the President, Constitution has provided for just such delin- and makes their advice and consent necessary in quencies as his, and he cannot decline its cog- all cases of appointment, to authorize it-that nizance. I beg pardon. He has sent you he shall have power to fill up all vacancies word, through the special counsel whom he happening during the recess, by temporary sends here with his personal protest, that he commissions to expire at the end of the next sesmight have declined it, on the opinion still en- sion; and by a necessary implication of course tertained by both of them, that this is no Con- he cannot do it in the same way, or without gress, and you are no court of competent juris- their advice and consent while the Senate is at diction to bring before you and try a President hand to afford it. The word happen, as used of the United States, by the logic of which here, imports accident or casualty only, accordargument he proves equally, of course, that he ing to the best authorities. If this is the coris no President. To avoid a bloody conflict, rect interpretation he cannot, of course, create however, although he has been tendered the a vacancy for that purpose during the recess, necessary aid in men, and inasmuch, I sup- under the Constitution, although he may claim pose, as you have been so indulgent as not to to do so under the law establishing the Deput him to the humiliation of appearing in partment, which places the power of removal person at your bar, he waives his sufficient in his hands. If he does, however, the case plea to the jurisdiction, and condescends, only then falls within the constitutional provision, out of the abundance of his grace, and in a and the vacancy thus created must be filled spirit of forbearance, for which he claims due by a commission to expire at the end of the credit at your hands, to make answer before a next session. tribunal which he might rightfully have defied. He did create a vacancy in this case by the But he is here now by attorney, in what his suspension during the recess, which he pro3ther counsel have taken great pains.to prove ceeded to supply by the appointment of Gento you' to be a court indeed, although they eral Grant as Secretary of War ad interim at insist. not very consistently, in almost the same his pleasure. And this he now defends, not breath, that it has only the functions of a jury. under the provisions of the tenure-of-office I shall not dispute that question with them. I law, which would have authorized it, but which am willing to agree that the Senate, pro hac he expressly repudiates; but upon the footing, vice, is a court, and that, too, of exclusivejuris- in the first place,. of his constitutional power. diction over the subject-matter in dispute, from Nothing is clearer, however, than the propwhich it follows by a necessary logic, as I think, osition, that there was no authority to do this that it is fully competent to try and decide the thing except what is to be found in the act whole case for itself, taking such advice as it which he repudiates. There are no laws and thinks proper as to the law, and then rejecting no precedents, so far as I am advised, to jusit ifit is not satisfactory. Ifit cannot do this, itis tify or excuse it. If he may suspend indefibutthe shadow and mockery of what the defend- nitely, and appoint at pleasure a Secretary ant's counsel claim it to be in force and fact. ad interim, he may not only change the terms But by what name soever it may be called, it of the commission, but strip the Senate of all -will solve for the President the problem which participation in the appointing power. 693 But then he says, again, that he did this during the recess, he could not suspend and under the authority, also, of the act of 13th appoint a Secretary ad interim except by virFebruary, 1795, for filling temporary vacan- tue of the tenure-of-office law, and that it may cies. The tenor of that act is, that in a case be well pleaded in his defense, even though he of vacancy it shall be lawful for the President, may have insisted that he did not refer to, or if he deem it necessary, to authorize any per- follow, or recognize it, I think it cannot be a son or persons to perform the duties until a question among lawyers, that all the acts of a successor is appointed or such vacancy is filled: public officer are to be conclusively presumed with the proviso, however, that no one va- to have been done under the law which aucancy shall be supplied in that manner for a thorized them. But then it will be said, as it longer term than six months; which proves, has been in regard to the proof of changes made of course, that the exigency provided for was in the forms of commissions to make them haronly to be a temporary one. monize with the now disputed law, and of other We maintain that this act has been repealed evidence of a kindred character, that this is by the more recent one of 13th February, 1863, only to set up the doctrine of estoppel, which, which confines the choice of the President to though not unreasonable, has been so often the heads of the other Departments. It is in- characterized as odious in the civil courts, sisted, however, that while the former covers against a defendant in a criminal proceeding. all cases of vacancy, the latter is confined to I am ready to admit that estoppels are odious, some particular instances, not including those because they exclude the truth, but have never of removal, or such as may be brought about supposed that they wereso, when their effect was by efflux of time, and does not, therefore, op- only to shut out falsehood. It was not for this crate as a repeal to that extent. Granting purpose, however, in my view at least, that such this, for the sake of the argument, to be true, evidence was offered; but only to contradict the how is it to apply to a vacancy occuring dur- President's assertions by his acts, and to show ing the recess, without a repeal of the consti- that when he pleads through his counsel, that tutional provision which is intended expressly if the law was valid he honestly believed the for just such cases? Was it intended to contrary, and that if it embraced the case of supersede it, and is it to be so interpreted? Mr. Stanton he innocently mistook its meanThis will hardly be pretended, if it were even ing, and did not intend willfully to misconstrue clear that the Legislature had such a power. it, he stated what was not true. The intent and meaning of the act are so trans- And now, a few words only upon the genparent from the context, from the words of eral question of intent itself, which has been tenure, and from the six iMonths' limitation, made to figure so largely in this cause, under that it is impossible to mistake them, or even the shadow of the multiplied averments in reto doubt, that it was designed for merely acci- gard to it. I do not look upon those averdental and transient cases, that were left un- ments as at all material; and if not material, provided for in the Constitution. The Presi- they are, as every lawyer knows, but mere surdent's claim would perpetuate the vacancy by plusage which never vitiates, and it is never enabling him to refuse to fill it, or to nominate necessary to prove. I do not speak as a crima successor. inal lawyer, but there is no professional man, I If it be even true, however, that he might think, who reads these charges, that will not have appointed General Grant during the re- detect in them something more, perhaps by cess, under the law of 1795, it is equally clear way of abundant caution, than even the techthat he could not continue him in office, or pro- nical nicety of the criminal pleader. I do tract the vacancy beyond six months; and yet not know that even in the criminal courts, he insists, in his special plea in answer to the where an act is charged in clear violation averment of the absence of the condition of of a law forbidding it, and especially if it invacancy on the 21st of February, when he ap- volve the case of a public officer, that it is pointed General Thomas-which was more than any more necessary to allege that he violated six months after the appointment of General the law, with the intent to violate it, than to Grant-that there was a continuing vacancy at aver that he was not ignorant of the law, which that time; intending, of course, that the act of every man is bound to know. The law prethe Senate in refusing to approve his suspen- sumes the intent from the act itself, which is a sion, and his resumption of the duties of the necessary inference, if the law is to be observed office, were to be treated as of no account what- and its infraction punished; and the party comever. From the premises of the President, mittingit,isresponsibleforalltheconsequences, that the civil-tenure act was invalid on consti- whether he intended them or not. It makes no tutional grounds, and did not, at all events, difference about the motive, for wherever a embrace that case, his inference of a continu- statute forbids the doing of a thing, the doing ing vacancy is undeniable, and his appoint- it willfully, although without any corrupt moment of General Thomas, therefore, entirely tive, is indictable. (2 Dwarris, 677; 4 Term unauthorized by the act on which he relies. Rep., 457.) So when the President is solBut there is more in this aspect of the case emnly arraigned to answer here to the charge than the mere failure of the authority. Taking that he has infringed the'Constitution, or disit that, although he might possibly remove obeyed the commandsor violatedany of theprQ, 694 visions of the tenure of office or any other law, either to the quibbles of the lawyer, or the he cannot plead either that he did it ignorantly subtleties of the casuist. I have no patience or by mistake, because ignorance of the law for the disquisitions of the special pleader in excuses nobody, or that he did it only from the a case like this. I take a broader view, one best of motives, and for the purpose of bringing that, I think, is fully sustained by the authorithe.question of its efficacy, or his obligation to ties, and that is, that in cases such as this, the conform to it, to a legal test, even though he safety of the people, which is the supreime law, could prove the fact, as he has most signally is the true rule, and the only rule that ought failed to do in the case before you. The mo- to govern. I do not propose to reargue that tives of men, which are hidden away in their question now, because it seems to me someown breasts, cannot generally be scrutinized, or thing very like a self-evident proposition. If taken into the account, where there is a viola- Andrew Johnson, in the performance of the tion of the law. An old Spanish proverb says, duties of his high office, has so demeaned himthat there is a place-not to be named to ears self as to show that he is no respecter of the polite-whichis "paved with good intentions." laws; that he defies the will of those who make If they, or even bad advice can be pleaded here- them, and has encouraged disobedience to their after, in excuse for either neglect or violation of behests; thtt he has fostered disaffection and duty here, it will be something comfortable to discontentthroughout the lately revolted States; die upon at least, and few tyrants will ever that he is a standing obstacle to the restoration suffer for their crimes. If Andrew Johnson of the peace and tranquillity of this nation; could plead, as he has actually done, in apol- that he claims and asserts the power of a dicogy for his own dispensation wvith the test- tator, by holding one of your great departments oath law, or any other feature of his law-defy- in abeyance, and arrogating to himself the abing policy, that his only aim was to conciliate solute and uncontrollable right to remove, or the rebels and facilitate the work of restora- suspend at his mere will, every executive officer tion, his great exemplar, whom he has so closely of the Government, on the land and on the seas, copied-the ill-advised and headstrong James and to supplytheir places without your agency, II —might equally have pleaded that he did the if, for any or all of these reasons, the Republic very same thing in the interests of universal tol- is no longer safe in his hands; then before erance. The English monarch forfeited his heaven and earth, as the conservators of the throne and disinherited his heirs upon that cast. nation's weal, as the trusted guardians of its It remains to be seen whether our king is to run most invaluable rights, as the depositaries of out the parallel. the most sacred anl exalted trust that has ever I beg to say, however, in this connection, been placed in the hands of man, it becomes that I do not by any means admit, that a case your high and solemn and imperious duty, to like this is to be tried or judged by the rigid see that the Republic shall take no detriment, rules and narrow interpretations of the criminal and to speak peace to a disturbed and suffering courts. There is no question here of the life or land, by removing him from the trust he has liberty or property ofthedelinquent; itis aques- abused, and the office that he has disgraced. tion only ofofficial delinquency, involving, how- There are other points in this case on which ever, the life of a great State, and with it the I would have desired to comment if time and liberties of a great people. If the defendant is strength had been allowed to me -for that purconvicted, he forfeits only his official place, and pose. It is only within the last few days that is, perhaps, disqualified from taking upon him- I have entertained the hope that the Senate self any other, which will be no very severe would so far relax its rule as to enable me to infliction, I suppose, unless the rebels them- obtain what, under the circumstances, is at best selves should be so fortunate as to come once but an imperfect hearing, and I have felt it more into the possession of the Government, necessary, therefore, to confine myself to the and so weak as to trust a man who had been leading arguments connected with the removal untrue to those who had honored him so gen- of the Secretary of War. I wish it to be undererously before. The accusers here are forty stood, however, that I do not underrate the millions of freemen, the accused but one, who value of such of the articles as I have been claims to be their master; the issue, whether obliged to pretermit. There is nothing in the he shall be allowed to defy their will, under whole case, I think, of graver import to the the pretext that he can govern them more nation than the means adopted by the Presiwisely than their Congress, and to take the dent for overthrowing the legislative power by sword, and, in effect, the purse of the nation fostering disobedience to its enactments and into his own hands.. bringing its accepted organ into disrepute. On such an issue, and before such a tribu- To this charge there are three answers. The nal, I should not have hesitated to stand upon first is the supposed constitutional right to the the plain, unvarnished, untechnical narration use of an unbridled tongue, which knows no of the facts, leaving the question as to their difference between licentiousness and liberty. effect upon the interests of the nation, and their The second is the provocation supposed to have bearing upon the fitness of Andrew Johnson been offered in the language used by members to hold the helm of this great State, to be de- of Congress in debate, in what seems to be for-'cided by statesmen, instead of turning it over gotten to be their constitutionalright, which not 695 onlyprotects them from challenge anywhere, but defiant answer that he sends by his Tennessee gives to them the right freely to criticise the pub- counsel, and they will give you the true measure lic conduct of the President, over whom the law of the interests involved. It is not a question has placed them, by making him amenable to only whether or not Andrew Johnson is to be them for all his errors, as they are not to him. allowed to serve as President of the United The third is the harmless jest, in the suggestion States for the remainder of his term. It is the of a law to regulate the speech and manners greater question whether you shall hold so long of the President. If his counsel can find yourselves the power that the Constitution gives food for mirth in such a picture as the evidence you by surrendering the higher one to him of has shown, I have no quarrel with their taste. suspending, dismissing, and appointing at his The President may enjoy the joke, perhaps, will and pleasure every executive officer in himself. I do not think he can afford it, but the Government from the highest to the lowest history informs us that Nero. fiddled while without your consent, and if possible the still Rome was burning. Whether he does or not, higher one of disregarding your laws for the however, I trust that he will find a censor purpose of putting those laws on trial before morum here as stern as Cato, in the judicial they can be recognized. He has made this opinion of this body, that the man who so out- issue with you voluntarily and defiantly. If rages public decency, either in his public or you acquit him upon it, you affirm all his imprivate character, in the pursuit of an object perial pretensions, and decide that no amount so treasonable as his, has demonstrated his ofusurpation will ever bring a Chief Magistrate unfitness longer to hold the high place of a to justice, because you will have laid down at Chief Magistrate of a free, intelligent, and his feet your own high dignity, along with your moral people. I take leave of this unpalatable double function of legislators and advisers, theme by remarking only that even the advocate which will be followed of course by that of your of the people must feel, as a child of the Repub- other, I will not say greater, office as judges.. lie himself, while he is compelled to say thus It will be a victory over you and us which much, that he would rather have turned his will stir the heart of rebeldom with joy, while back, if it had been possible, on such a spec- your dead soldiers will turn uneasily in their tacle, and thrown a mantle over the nakedness graves; a victory to be celebrated by the ex- that shames us all. ultant ascent of Andrew Johnson to the Capi. And now, American Senators, Representa- tol, like the conqueror in a Roman triumph, tives, and judges upon this mighty issue-joint dragging not captive kings, but a captive Senheirs yourselves of that great inheritance of lib- ate at his chariot wheels, and to be crowned erty that has descended to us all, and has just by his reentry into the possession of that Debeen ransomed and repurchased by a second partment of the Government over which this baptism of blood-a few words more, and I great battle has been fought. It is shown in have done. evidence that he has already intimated that he If the responsibilities of the lawyer are such would wait on your action here for that puras to oppress him with their weight how im- pose. Butisthisall? Hugnottoyourbosoms, measurably greater are your own I The House I entreat you, the fond illusion that it is all to of Representatives has done its duty. The rest end there. It is but the beginning of the end. is now with you. While I have a trust in that If his pretensions are sustained, the next head God who went before our hosts, as he did be- that will fall as a propitiatory offering to the fore the armies of Israel, through the fiery conquered South, will be that of the great chief trials that led so many of the flower of our who humbled the pride of the chivalry by beatyouth to distant graves on southern battle-fields, ing down its serried battalions in the field, and which has never failed me in the darkest hour dragging its traitor standard in the dust; to of the nation's agony, I cannot but realize that be followed by the return of the rebel officeHe has placed the destinies of this nation in holders, and a general convulsion of the State your hands. Your decision here will either fall which shall cast loose your reconstruction laws, upon thepublic heart like a genial sunbeam, or and deliver over the whole theater of past fling a disastrous twilight, full of the gloomiest disturbances to anarchy and ruin. Is this an portents of coming evil, over the land. Say exaggerated picture? Look to the history of not that I exaggerate the issue or overcolor the the past and judge. picture. This, if it were true, would be but an And, now, let me ask you, in conclusion, to error of much smaller consequence than the turn your eyes but for a moment to the other perilous mistake of underrating its importance. side of the question, and see what are to be It is, indeed, but the catastrophe of the great the consequences of a conviction-of such a drama which began three years ago with mur- verdict as, I think, the loyal people of this nader-the denouement of the mortal struggle tion, with one united voice. demand at your between the power that makes the law and hands. Do you shrink from the consequences? that which executes it-between the people Are your minds disturbed by visions of impendthemselves, and the chief of their own servants, ing trouble? The nation has already, within who now undertakes to defy their will. What a few short years, been called to mourn the is your verdict to decide? Go to the evidence, loss of a great Chief Magistrate, through the to the plea of the President himself, and to the bloody catastrophe by which a rebel hand has 696 been, unfortunately, enabled to lift this man Mr. Manager BUTLER. This narration is, into his place, and the jar has not been felt as as I say, rendered necessary by what was said the mighty machine of State, freighted with all by Mr. Nelson, of counsel for the President, the hopes of humanity, moved onward in its in his argument on Friday last, contained in high career. This nation is too great to be af- pages 888, 889, and 890 of the record, in relafected seriously by the loss ofany one man. Are tion to Hon. J. S. Black. and the supposed your hearts softened by the touching appeals connection of some of the Managers and memof the defendant's counsel, who say to you that bers of the House with him in regard to the you are asked to punish this man only for his island of Alta Vela. This,explanation bedivine mercy, his exalted charity to others? comes necessary because of the very anomMercy to whom? To the murdered Dostie and alous course taken by the learned counsel in his fellows? To the loyal men whose carcases introducing in his argument what he calls a were piled in carts like those of swine, with the "statement of facts," not one of which would gore dripping from the wheels, in that holo- have been competent if offered in evidence, caust of blood, that carnival of murder which and upon which he founds an attack upon a was enacted in New Orleans? To those who gentleman not present, and from which he deperished in that second St. Bartholomew at duces insinuations injurious to some of the Memphis, where the streets were reddened Managers and other gentlemen, members of with the lurid light of burning dwellings, and the House of Representatives, who are not the loyal occupants, who would have escaped, parties to the issue here, and who have no were cast back into the flames? The divine opportunity to be heard. mercy itself is seasoned by justice, and waits The learned counsel was strenuous in arguonly on contrition. This is no place for such ment to prove that this was a court, and its emotions. If it be, it is mercy to loyalty and proceedings were to be such only as are had in innocence, that cries aloud for the removal judicial tribunals. He therefore ought to have of this bold, bad man. If it be, remember, constrained himself, at least, to act in accordthat while your loyal brethren are falling from ance with his theory. The veriest tyro in the day to day in southern cities by the assassin's law in the most benighted portion of the south-knife, and the reports of the Freedmen's Bu- ern country ought to know that in no court, reau are replete with horrors at which the however rude or humble, would an attack be very cheek turns pale, your judgment here allowed upon the absent or counsel engaged in stains no scaffold with the blood of the vic- a cause upon a statement of pretended facts, tim. No lictor waits at your doors to execute unsupported by oath, unsifted by cross-examyour stern decree. It is but the crown that ination, and which those to beaffected by them falls, while none but the historian stands by to had no opportunity either to verify or dispute. gibbet the delinquent for the ages that are to After extracting the details of a document come. No wail of woe will disturb your slum- sent by his client to the Senate, the counsel bers, unless it comes up from the disaffected proceeds in relation to a dispute concerning and disappointed South,,which will have lost the island of Alta Vela: the foremost of its friends. Your act will be a " According to the best information I can obtain I spectacle and an example to the nations, that state that on the 9th of March, 1868, General BENJAMIN F. BUTLER addressed a letter to J. W. Shaffer, in will eclipse even the triumph of your arms, in which he stated that he was'clearly of opinion that, the vindication of the public justice in the su- under the claim of the United States, its citizens blimer and more peaceful triumph of the law. have the exclusive right to take guano there,' and that he had never been able to understand why the The eyes of an expectant people are uponyou. Executive did not long since assert the rights of the You have but to do your duty, and the patriot Government and sustain the rightful claims of its will realize that the good genius of the nation, citizens to the possession of the island in the most forcible manner consistent with the dignity and honor the angel of our deliverance, is still about us of the nation. and around us, as in the darkest hour of the "This letter was concurred in and approved of by nation' s trial. JOHN A. LOGAN, J. A. GARFIELD, W. H. KOONTZ, J. K. natiJoHn's trialO. MOORHEAD, THADDEUS STEVENS.'J. (G. BLAINE, and Mr. JOHNSON. Mr. Chief Justice, I move JOHN A. BINGHAM, on the same day, 9th March, 1868. that the Senate take a recess for fifteen min- "The letter expressing the opinion of Generals utes. m BUTLER, LOGAN, and GARFIELD was placed in the hands of the President by Chauncey F. Black, who, on The motion was agreed to; and at the expi- thel6thMarch.1868, addressed alettertohiminwhich ration of the recess the Chief Justice resumed he inclosed a copy of the same with the concurrence the chair and called the Senate to order. of THADDEUS STEVENS, JOHN A. BINGHAM, J. G. BLAINE, J. K. MOORHEAD, and WILLIAM H. KOONTZ. Mr. Manager BUTLER. I ask leave of the "After the date of this letter, and while Judge President and Senators to make a short nar- Black was the counsel of the respondent in this cause, ration of facts, rendered necessary by what he had an interview with the President, in which he urged immediate action on his part and the sending fell from Mr. Nelson, of counsel for the Pres- an armed vessel to take possession of the island; and ident, in his speech on Friday last, which will because the President refused to do so Judge Black, be found on pages 888, 889, and 890 of the on the 19th March, 1868, declined to appear further as his counsel in this case. record. "Such are the facts in regard to the withdrawal of The CHIEF JUSTICE. If there be no Judge Black. according to the best information Ican objection the honorable Manager will pro- obtain. So far as the President is concerned,'the head and front of his offending hath this extent-no ceed. more.' 697 "It is not necessary to my purpose that I should tion I can obtain find the facts to be as follows: censure Judge Black or make any reflection upon or that soon after the "opinion" was signed Colimputation against any of the honorable Managers.' The island of Alta Vela, or the claim for dam- onel Shaffer asked Hon. JOHN A. LOGAN to ages, is said to amount in value to more than a mil- examine the same question, presented him his lion dollars, and it is quite likely that an extensive brief of thefacts, and asked him if he could conspeculation is on foot. I have no reason to charge brief of the facts and asked him if he could con that any of the Managers are engaged in it, and pre- cur in the opinion, which, after examination, sume that the letters were signed, as such communi- Mr. LOGAN consented to do, and signed the tions are often signed, by members of Congress, original paper signed by myself. I may here through the importunity of friends. " Judge Black, no doubt, thought itwashis dutyto remark that the recollection of General LOGAN other clients to press this claim: but how did the and Colonel Shaffer concur with my own as to President view it?" * *the time of these transactions. I have learned " There are two or three facts to which I desire to and believe that my t opinion" with the lgcall the attention of the Senate and the country in and believe that my "opinion" with the sigconnection with these recommendations. They are, nature of General LOGAN attached was placed first, that they were all gotten up after this impeach- in the hands of Chauncey F. Black, esq., and mnent proceeding was commenced against the Presi- dent of the United States. Keep the dates in mind, by him handed to the President of the nited and you will see that such is the fact. Every one of States with other papers in the case. Mr. gthem was gottmmence up afteai this impeachmetproceed- Black made a copy of my " opinion," and afterward at his convenience procured a member It cannot fail to be evident, that while the of Congress, a personal friend of his, one of the counsel disclaims any imputation either upon signers, to get the names of other members of Judge Black or the Managers in words, he so Congress, two of whom happened to be Manstates what he claims to be the facts as to con- agers of the impeachment. This was done by vey the very imputation disclaimed. There- a separate application to each without any confore it is that I have felt called upon to notice cert of action whatever, or knowledge or belief the insinuated calumny. that the paper was to be used in any way or for My personal knowledge of matters connected any purpose other than the expression of their with the islahd of Alta Vela is very limited. opinions upon the subject-matter. This copy Some time in the summer of 1867, being in of my "opinion," when so signed, was a very waiting on other business in the office of the considerable time after the original given to the Attorney General, Mr. Stanbery, I was pres- President. I desire further to declare that I ent at an argument by Judge Black in behalf have no knowledge of or interest, directly or of the American citizens claiming an interest indirectly, in any claim whatever arising in any in that island. I there, for the first time, manner out of the island of Alta Vela other learned the facts agreed and in dispute con- than as above stated. cerning it by listening to and incidentally tak- In justice to the other gentlemen who signed ing a part, on being appealed to, in the dis- the copy of the paper, I desire to annex hereto cussion. In February last my attention was the affidavits of Chauncey F. Black, esq., and next drawn to the matter of the spoliation and Colonel J. W. Shaffer, showing that neither imprisonment of American citizens upon the of the- gentlemen signing the paper had any island of Alta Vela by an inquiry of a personal interest or concern in the subject-matter thereof friend, Colonel Shaffer, if I had any acquaint- other than as above set forth. ance'with the question, and if so, would give While I acquit the learned counsel of any him my opinion as a lawyer upon the merits intentional falsity of statement as he makes it of the controversy. To serve a friend simply, to hig "best information," which must have upon recollection of the discussion with the been obtained from Andrew Johnson, yet the Attorney General, I gave him such " opinion," statement contains every element of falsehood, the rough draft of which I hold in my hand, being both the suppressio veri and the sugwhich is without date, and which, being copied, gestio falsi in that it says that on the 9th of I signed and placed in his hands. This I be- March General BENJAMIN F. BUTLER addressed lieve to have been in the early part of Febru- a letter to J. W. Shaffer, and that " this letter ary; certainly before the act was committed was concurred in and approved of by JOHN A. by Andrew Johnson which brought on this im- LOGAN, J. A. GARFIELD, W. H. KOONTZ, J. K. peachment. From that time until I saw my MOORHEAD, THADDEUS STEVENS, J. G. BLAINE,' opinion" published in the New York Herald, and JOHN A. BINGHAM on the same day, 9th purporting to come from President Johnson, March, 1868," when the President knew that never saw it or communicated with either of the names of the five last-mentioned gentlethe gentlemen whose names appear in the coun- men were procured on a copy of the letter long sel's statement attached thereto in any man- after the original was in his hands. ner, directly or indirectly, in regard to it or Again, there is another deliberate falsehood the subject-matter of it, or the island of Alta in the thrice reiterated statement that these Vela, or the claims of any person arising out signatures were procured and sent to him for of it or because of it. Thus far I am able to the purpose of intimidating him into doing an speak of my own knowledge. act after he was impeached, the propriety and Since the statement of the counsel " accord- legality of which was contrary to his judgment, ing to the best information he can obtain," I when, in truth and in fact, the signatures were have made inquiry and from the best informa- I procured and sent to him in order, as he 698 averred, to sustain him in doing what he him- Mr. NELSON. Of course I will not preself declared was just and legal in the premises, sume to proceed without leave of the Chief and which he intended to do. Justice and the Senate. I inferred from their The use made of these papers is character- silence that the Senate were willing to hear me. istic of Andrew Johnson, who usually raises The honorable gentleman speaks as to what issues of veracity with both friend and foe he supposes to be the knowledge and the duty with whom he comes in contact: of a tyro in the law, and animadverts with I, Chauncey F. Black, attorney and counselor-at- some severity upon the introduction of this law, do depose and say that the law firm of Black, foreign subject by him in the course of the inLamont & Co., have been counsel foryears on behalf vestigaon. I beg leave o remind the honof Patterson & Marguiondo to recover their rights vestigation. I beg leave to remind the honin the guano discovered by them in the island of orable Senators that, so far as I am concerned, Alta Vela, of which they had been deprived by force, I did not introduce the topic without having, and the imprisonment of their agents by some of the inhabitants of Dominica. As such counsel we have as I believed, just cause and just reason to do argued the cause to the Secretary of State, and also it; and whatever may be the gentleman's view to the President., before whom the question has been in regard to a tyro in the legal profession, I pending since July 19,186o7. in regard to a tyro in the leg al profession, I pending since July 19, 1867. We have in various forms pressed the matter upon beg leave to say to him, and to this Senate, that his attention, and he has expressed himself fully and I never have seen the day in my life-not from freely satisfied with the justice of the claims of our the earliest moment when my license was clients and his conviction of his own duty to afford signed down to the present time-when a client the desired relief, but had declined to act because signed down to the present time-when a client of the opposition of the Secretary of State. General of mine was assailed, and assailed as I believed J. W. Shaffer having become associated with us in unjustly that I did not feel it the very highest the case and havinglearned that General BUTLER had oe i the e he become acquainted with the merits of the case, pro- professional. duty I owed upon the face of the cured his legal opinion upon it, and also a concur- earth to vindicate and defend him against the renceby General LOGAN. After receiving thisopinion assault. My views nay be, and probably are, I inclosed it to the President. The time when this opinion was received, and whether it was dated, I different from those of the honorable gentledo not recollect. The time that it was presented to man and from the views of others. Without the President by me can be established by the date casting any censure upon my associates, I will of my letter inclosing it. Learning from a mutual friend that it would be desirable for the President to say that if the duty had devolved on me to lead receive the recommendations of other members of and conduct the investigation in this case, as Congress I carried a copy of the opinion to the House it did not devolve, but upon those of longer of Representatives and procured the signatures of some of my personal friends and asked them to pro- and higher standing in the profession than mycure the signatures of others which were attached to self, I would have met the gentleman on every the copy. Some considerable time after I had for- occasion when he made his assaults uon the warded the original I sent this copy so signed to the occasion when he made his assaults uon the President. - These signatures were procured upon President of the United States, and I would personal application to the gentlemen severally, have answered them from time to time as those without any concert of action whatever on their charges were made; and I would not have part, and without any reference to any proceedings then pending in the then present action of Congress permitted one of his insinuations to go unanin regard to the President whatever. swered, so far as an answer could be furnished From my relation to the case of AltaVelI have on our side. When the honorable Manager knowledge of all the rights and interest in it, or inarelation to it, so that I am certain that neither of the I am not alluding to the one who has just adgentlemen who signed the paper or copy have any dressed the Senate, but to the honorable Maninterest in the claim or matter in dispute or in any ager who closed the argument so far as it has part thereof, or arising therefrom in any manner, progre directly or indirectly, or contingently, and that all progressed [Mr. BOUTWELL]-addressed the averment to the contrary from any source whatever Senate on the other side, and saw fit to draw is untrue in fact. CHAUNCEY F. BLACK. in dark and gloomy colors a picture of the Sworn and subscribed before me this 28th day of President of the United States, and of the April, A. 1). 1868. N. CALLAN, [L. 8 ] Notary Public. influence he has over his Cabinet, and when [L.._ B.] - Notary Public he saw fit to represent them as serfs obedient To the best of my knowledge and belief the facts to the control of their master, and to make contained in the above affidavit are true in every allusion to the withdrawal of Judge Black, I,particular. J. W. SHAFFER. deemed that a fitting and proper occasion, and Sworn and subscribed before me this 28th day of so consider it still upon the most calm and April, A. D. 188. N.otary Public. mature reflection, for me, as one of the counsel [L. S.] Notary Public. for the President, to meet and answer it, and With this simple statement of the facts, Mr. nail it to the counter, as I think I have done President and Senators, I am content to leave successfully. the question of the history of Alta Vela. You all know-and if need be I can hunt up Mr. NELSON. Mr. Chief Justice and Sen- the newspapers and can furnish the testimony ators, as you have heard the statement of the -that when Judge Black retired from the Preshonorable Manager, I trust you will permit me ident's cause it was published and proclaimed to make such reply as I deem fitting and ap- in newspapers hostile to the President that propriate to the present occasion. The hon- Judge Black, seeing that the case of the Presorable gentleman speaks ident was a desperate case, had withdrawn The CHIEF JUSTICE. The counsel can from it in disgust; and the very highest proproceed by unanimous consent. If there be no fessional duty that can animate counsel under objection he will proceed. the heavens devolved on me when this impu 699 tation was contained in the address of the hon- able gentleman, and introduced, too, in terms orable Manager and alluded to in the connec- of censure of me, I shall ask the honorable tion in which it was, to vindicate the President Senate to allow me to read those letters. of the United States against the public asper- What is the point? If. there be any point in sionswhich had been made upon him. Itwas connection with this matter, what is it, and for that reason and no other that I spoke of why did I introduce the matter here at all in it, not with any desire to make an assault upon vindication of the President of the United the Managers. States against the imputation that was made While I treated them with civility, while I about Judge Black? Why did I refer to the treated them with kindness, and, as I think, letters at all? It was for the purpose of showwith very great forbearance, the honorable ing, in answer to the honorable Manager, Mr. gentleman to-day has made imputations upon BOUTWELL, this great fact in explanation of me which I hurl back with indignation and the conduct with Judge Black, that the Presiwith scorn-undeserved imputations. I treated dent of the United States had been placed in the gentlemen on the other side with courtesy a dilemma such as no man under accusation and with kindness. He has rewarded me with had ever been placed in before, for the purinsult aAd with outrage in the presence of the pose of showing that, so far as that correspondAmerican Senate. It will be for you, Sena- ence is concerned, it was a correspondence tors, to judge whose demeanor is most proper which arose after the articles of impeachment before you, that of the honorable gentleman had been agreed upon, and probably after they who foully and falsely charges me with insin- had been preferred to the Senate. It was for uating calumny, or my course in vindicating that purpose that I introduced the correspondthe President of the United States in the dis- ence. It has excited, awakened, and aroused charge of my professional duty here. So far the attention of this whole nation that the as any question that the gentleman desires to counsel for the President of the United States make of a personal character with me is con- should abandon his cause, and that the true cerned this is not the place to make it. Let secret of that abandonment has not grown out him make it elsewhere if he desires to do it. of any insult the President of the United States Mr. YATES. Mr. President, I rise to call rendered to the counsel, out of any injury the counselor to order. which he did to them, but hasgrown out of the Mr. NELSON. Mr. Chief Justice and Sen- fact that a claim was pressed to the island reators, I will endeavor to comply with the sug- ferred to under the circumstances stated. Now gestion of the Senator. I do not wish to I will go further than I did the other day, and make use of any language improper in this I will answer for it here and anywhere else; I tribunal, but I hope that-Senators will pardon believe that Judge Black acted improperly, me for repelling the strong remarks made by under those circumstances, in withdrawing his the gentleman on the other side. But let it services from the President of the United pass. What I desire to say to you, Senators, States, according to the best lights I have on and that is much more important than anything the subject. Here is this accusation presented else, is this: when I made the statement which against him, and here is this astonishing claim I did to the Senate, I made it with a full presented to him, signed by four of the Manknowledge, as I believed, of what Iwas doing. agers of this impeachment, presented at this It may be possible, Senators, that I may have extraordinary period of time, presented when committed an error as to the date of the paper this impeachment was hanging over him; and which was signed by Messrs. LOGAN and the I maintain still that I had the right, and that other Managers. My recollection is that that it was my solemn and bounden duty, to vinpaper is without date, and I took it fopgranted dicate him against the charge that was prethat it was signed on the same day, the 9th of ferred. March, that was mentioned by the honorable Mr. Manager BUTLER. Does the gentlegentleman; but that is an immaterial error, man know what he is saying; "a claim signed if it be one. I had the letters in my posses- by four of the Managers?" sion on the day I addressed you, and if the Mr. NELSON. I meant to say letter. If gentleman had seen fit to deny any statement I said "'claim " I meant to say there was an contained in those letters upon that day I had indorsement. I am glad the gentleman has them here ready to read to the Senate. I had corrected me. What I mean to say, Senatorsno knowledge that this subject would be called I may have used some word I did not intend up to-day until the honorable gentleman told to use-the idea that I intend to convey is that me during your adjburnmentof a few minutes. a letter was in the first instance signed by the Since that notification I have sent for the honorable Manager, General BUTLER, that there letters. I was fearful, however, that they was an indorsement of that letter by three would not be here in time for me to read them other members of the House of Representnow; but if it becomes necessary I shall ask atives who are Managers in this case; that this the leave of the Senate to read those letters letter and the indorsement of it had relation to-morrow before my associate shall resume to the Alta Vela claim, that the subject was his argument in the case. I shall have them, brought up.to the consideration of the Presiand as this topic is introduced by the hmnor- dent of the United States pending this im 700 peachment, and that whether the letter in- Mr. NELSON. If you will let me do so, I dorsing General BUTLER'S letter was signed on will say with great pleasure that I had no dethe 9th of March or at a later period is wholly sign to misrepresent any gentleman concerned immaterial. It was signed after this impeach- in the cause; and in order that the matter may ment proceeding was commenced, and Judge be decided I will have the letter brought here. Black endeavored to get the attention of the I may have fallen into an error about the date, President to the claim and to have him decide but my understanding was that it was after the upon it, as I am informed and believe, though impeachment proceedings were commenced; I have no written evidence of that fact; Judge but to obviate all difficulty I will produce the Black urged it upon him after this impeach- letter itself, no matter whether it shows I am ment proceeding commenced and after Judge mistaken or not. If it shows that I am rmisBlack had met some of the other counsel and taken I will bring it here in fairness to the myself in the council chamber of the President. Senate; and if it shows that I am right I will I was not present at that time, but I have it, I bring it again in fairness to the Senate. That may say, from the lips of the President him- is all the gentleman can ask, I am sure. I self, and I believe it to be true, that Judge may possibly be mistaken. Black urged upon him a decision of this claim, Several SENATORS. Let the argument proand that his answer, among others, was that he ceed. did not think it a proper time for him to act The CHIEF JUSTICE. The argument on on the claim, because the Congress of the Uni- the part of the President will proceed. ted States was in session, and that if it was right and proper for a vessel to be sent down there WILLIAM M. EVARTS, esq., of counsel or any act of public hostility to take place, the for the respondent, addressed the Senate as President of the United States answered Judge follows: Black, as I am informed and believe, by tell- I am sure, Mr. Chief Justice and Senators, ing him that Congress was in session, and by that no man of a thoughtful and considerate asking him to call upon Congress to pass any temper would wish to take any part in the sollaw that might be necessary for that purpose, emn transaction which proceeds to-day unless and that it was not proper for him to interfere held to it by some quite perfect obligation of in it. This is all- duty. Even if we were at liberty to confine Mr. GRIMES rose. our solicitudes within the horizon of politics; Mr. NELSON. I will relieve the gentleman even if the interests of the country and of the by stating that I have said as much as I desired party in power, and if duty to the country and to say. I will ask permission, when I receive duty to the party in power, (as is sometimes those letters, in some form to put them before the case, and as public men so easily persuade the Senate, and with this remark I will take themselves is, or may be, the case in any juncmy seat. ture,) were commensurate and equivalent, who Mr. Manager BUTLER. I trust not until will provide a chart and compass for the wide, they are shown not to have been mutilated. uncertain sea that lies before us in the immeMr. NELSON. Sir! diate future? Who shall determine the curMr. Manager LOGAN rose. rents that shall flow from the event of this stuMr. EDMUNDS. Mr. President, Iask that pendous political controversy; who measure the argument in the cause may proceed. This their force; and who assume to control the matter has nothing to do with any question storms that it may breed? before us. But if we enlarge the scope of our responsiThe CHIEF JUSTICE.'The argument on bility and of our vision, and take in the great behalf of the President will proceed. subjects that have been constantly pressing Mr. CAMERON. Mr. President, I trust upon our minds, who is there so sagacious in the Manager from Illinois will be allowed to human affairs, who so confident of his sagacity, be heard. who so circumspect in treading among grave Mr. Manager LOGAN. Mr. President, if responsibilities and so assured of his circumthere is no objection I merely desire to say- spection, who so bold in his forecast of the fuThe CHIEF JUSTICE. The honorable ture, and so approved in his prescience, as to Manager can proceed, if there be no objection. see, and to see clearly, through this day's busiMr. Manager LOGAN. Just a moment. ness? I merely wish to correct the gentleman from Let us be sure, then, that no man should be Tennessee, the counsel for the respondent, by here as a volunteer or lift a little finger to jostle saying that he is mistaken about this letter the struggle and contest.between the great having been signed after the impeachment forces of our Government, of which we are commenced by either General BUTLER or my- witnesses, in which we take part, and which self. I know well when I signed it, and the we, in our several vocations, are to assist in gentleman will find the correction, if he will determining. examine thoroughly, and will certainly be kind Of the absolute and complete obligation enough to make it. I signed the letter long which convenes the Chief Justice of the United before there was anything thought of impeach- States and its Senators in this court for the ment. trialof this impeachment, and of its authentic 701 commission from the Constitution, there can tion against Judge Pickering partook of no be no doubt. So, too, of the deputed authority qualities except of personal delinquency or misof these honorable Managers, and their pres- fortune, and whose result gives us nothing to be ence in obedience to it, and the attendance of proud of, and to constitutional law gives no prethe House of Representatives itself in aid of cedent except that an insane man may be contheir argument and their appeal, there is as victed of crime by a party vote; and the last trial little doubt. The President of the United of Judge Humphreys, where there was no deStates is here, in submission to the same Con- fense, and where the matters of accusation stitution, iri obedience to it, and in the duty I were so plain and the guilt so clear that it was which he owes by the obligation he has assumed understood to be, by accused, accusers, and to preserve, protect, and defend it. The right court, but a mere formality, and we have trials, of the President to appear by counsel of his doubtless of interest, of Judge Chase and of choice makes it as clearly proper, under the Judge Peck. Neither of these ever went for obligations of a liberal profession, and under a moment beyond the gravity of an important the duty of a citizen of a free State of sworn and solemn accusation of men holding dignifidelity to the Constitution and the laws, that fled, valuable, eminent, public judicial trusts; we should attend upon his defense; for though and their determination in favor of the accused no distinct vocation and no particular devotion left nothing to be illustrated by their trials to the more established forms of public service except that even when the matter in imputahovers our presence, yet no man can be famil- tion and under investigation is wholly of periar with the course of the struggles of law, sonal fault and misconduct in office politics of government, of liberty in the world, not to will force itself into the tribunal. know that the defense of the accused becomes But what do we behold here? Why, Mr. the trial of the Constitution and the protection Chief. Justice and Senators, all the political of the public safety. power of the United States of America is here. It is neither by a careless nor capricious dis- The House of Representatives is here as accutribution of the most authentic service to the ser; the President of the United States is here State that Cicero divides it among those who as the accused; and the Senate of the United manage political candidacies, among those who States is here as the court to try him, presided defend the accused, and among those who in over by the Chief Justice, under the special the Senate determined the grave issues of war constitutional duty attributed to him. These and peace and all the business of the State; powers of our Government are here, this our for it is in facts and instances that the people Government is here, not for a pageant or a are taught their Constitution and their laws, ceremony; not for concord of action in any of and it is by fact and on instances that their the duties assigned to the Government in the laws and their Constitutions are upheld and conduct of the affairs of the nation; but here improved. Constitutions are framed; laws es- in the struggle and contest as to whether one tablished; institutions built up; the processes of them shall be made to bow by virtue of conof society go on until at length by some oppos- stitutional authority confided to the others, and ing, some competing, some contending forces this branch of the political power of the United in the State, an individual is brought into the States shall prove.his master. Crime and viopoint of collision, and the clouds surcharged lence have placed all portions of our political with the great forces of the public welfare burst Government at sone disadvantage. The crime over his head. It is then that he who defends and violence of the rebellion have deprived this the accused, in the language of Cicero, and in House of Representatives and this Senate of Our own recognition of the pregnant instances the full attendance of members that might of English and American history, is held to a make up the body under the Constitution of the distinct public service. United States, when it shall have been fully As, then, duty has brought us all here tothis reestablished over the whole country. The august procedure and has assigned to each of crime and violence of assassination have placed us his pqat in it, so through all its responsibil- the executive office in the last stage of its main-'ities and to the end we must surrender our- tenance under mere constitutional authority. selves to its guidance. Thus following, our There is no constitutional elected successor of footsteps shall never falter or be misled; and the President of the United States, taking his leaning upon its staff, no man need fear that power under the terms of the Constitution and it will break or pierce his side. by the authority of the suffrage; and you have The service of the constitutional procedure now before you the matter to which I shall call of impeachment in our brief history as a na- your attention, not intending to anticipate here tion has really touched none of the grave inter- the discussion of constitutional views and docests that are involved in the present trial. trines, but simply the result upon the GovernDiscarding the first occasion in which it was ment of the country which may flow from your moved, being against a member of the Senate, determination of this caise under the peculiar as coming to nothing important, political or circumstances in which, for the first time, too, judicial, unless to determine that a member in the history of the Government, a true politof this body was not an officer of the United ical trial takes place. States; and the next trial, wherein the accusa- If you shall acquit the President of the Uni 702 ted States from this accusation all things will brought us into this situation of solicitude and be as they were before. The House of Rep- of difficulty. resentatives will retire to discharge their usual It will be seen, then, that as this trial brings duties in legislation, and you will remain to the legislative power of the Government conact with them in those duties and to divide fronted with the executive authority, and its with the President of the United States the result is to deprive the nation of a President other associated duties of an executive charac- and to vest the office in the Senate, it is indeed ter which the Constitution attributes to you. the trial of the Constitution; over the head The President of the United States, too, dis- and in the person of the Chief Magistrate who missed from your presence uncondemned, will fills the great office the forces of this contest occupy through the constitutional term his are gathered, and this is the trial of the Conplace of authority, and however ill the course stitution; and neither the dignity of the great of politics may go or however well, the Gov- office which he holds, nor any personal interernment and its Constitution willhave received est that may be felt in one so high in station, no shock. But if the President shall be con- nor the great name and force of these accusers, demned, and if by authority under the Consti- the House of Representatives, speaking for " all tution necessarily to be exerted upon such the people of the United States," nor the aucondemnatin he shall be removed from office, gust composition of this tribunal, which brings there will be no President of the United States; together the Chief Justice of the great court of for that name and title is accorded by the the country and the Senators who have States Constitution to no man who has not received for their constituents, which recalls to us in the suffrages of the people for the primary or the mere etiquette of our address the combined the alternative elevation to that place. A new splendors of Roman and of English jurispruthing will have occurred to us; the duties of dence and power-not even this spectacle the office will have been annexed to some other forms any important part in the watchful solicoffice, will be discharged virtute officii and by itude with which the people of this country the tenure which belongs to the first office. are gazing upon this procedure. The sober, Under the legislation of the country early thoughtful people of this country, never fond adopted, and a great puzzle to the Congress, of pageants when pageants are the proper that designation belongs to this Senate itself thing, never attending to pageants when they to determine by an officer of its own gaining cover real issues and interests, are thinking of the right under the legislation of 1792 to add far other things than these. to his office conferred by the Senate the per- Mr. Chief Justice, it is but a few weeks since formance of the duties of President of the Uni- the great tribunal in which you habitually preted States, the two offices. running along. side, and where the law speaks with authority Whatever there'may be of novelty, whatever for the whole nation, adjourned. Embracing, of disturbance, in the course of public affairs as it does, the great province of international thus to arise from a novel situation, is involved law, the great responsibility of adjusting bein the termination of this cause; and there- tween State and General Government, the confore there is directly proposed to you, as a flicting interests and passions belonging to our necessary result from one determination of composite system, and with determining the this cause, this novelty in our Constitution: limits between the coordinate branches of the a great nation whose whole frame of gov- Government, there is one other duty assigned ernment, whose whole scheme and theory of to it in which the people of the country feel a politics rest upon the suffrage of the peo- nearer and a deeper interest. It is as the ple, will be without a President, and the guardian of the bill of rights of the Constituoffice sequestered will be discharged by a tion, as the watchful protector of the liberties member of the body whose judgment has of the people against the encroachments of sequestered it. law and government, that the people of the I need not attract your attention, long since United States look to the Supreme Court with called to it, doubtless, in your own reflections, the greatest attention and with the greatest'more familiar than I am with the routine, to affection. That court having before it a sub-' what will follow in the exercise of those duties; ject touching the liberty of the citizen finds and you will see at once that the situation, the hamstring of its endeavor and its energy from circumstances for which no man is re- to interpose the power of the Constitution in sponsible, is such as to bring into the gravest the protection of the Constitution cut by the possible consequences the act that you are to sharp edge of a congressional enactment, and perform. If the President of the United States, in its breast carries away from the judgmentelected by the people, and having standing be- seat the Constitution and the law to be dehind him the second officer of the people's termined, if ever, at some future time and choice, were under trial, no such disturbance under some happier circumstances. or confusion of constitutional duties, and no Now, in regard to this matter, the people of such shock upon the feelings and traditions the United States give grave attention. They of the people, would be effected; but, as I have exercise their supervision of the conduct of all said, crime and violence, for which none of the their agents, of whom, in any form and in any agents of the Government are responsible, have capacity and in any majesty, they have not yet 703 learned to be afraid. The people of this coun- preserve, protect, and defend the Constitution try have had nothing in their experience of the of the United States," carried him and carried last six years to make them fear anybody's op- the people following him through the strugpression, anybody's encroachments, anybody's gles, the dangers, the vicissitudes of the rebelassaults, anybody's violence, anybody's war. lion; and that vow, as a legend, now adorns Masters of this country, and masters of every the halls of legislation in more than one State agent and agency in it, they bow to nothing of the Union. This oath of the President, but the Constitution. and they honor every this duty of the President, the. people of this public servant that bows to the Constitution. country do not in the least regard as personal And at the same time, by the action of the to him; but it is an oath and a duty assumed same Congress, the people see the President of and to be performed as their representative, the United States brought as a criminal to your in their interest, and for their honor; and they bar, accused by one branch of Congress, to be have determined, and they will adhere to their tried by the 6ther, his office, as I have said, to determination, that the oath shall not be taken be put in commission and an election ordered. in vain, for that little phrase " to the best of He greatly mistakes who supposes that the my ability," which is the modest form in which people of the United States look upon the office the personal obligation is assumed, means, of President, the great name and power that when conferred upon the ability of the Presirepresents them in their collective capacity, in dent, the ability of the country; and most their united power, in their combined interests, magnificently did the people pour out its rewith less attachment than upon any other of sources in aid of that oath of President Linthe departments of this Government. The coln; and so when the shock comes, not in President is, in the apprehension and in the the form of violence, of war, of rebellion, but custom of the people of the United States, the of a struggle between the forces of the GovMagistrate, the authority for whom they have ernment in regard to constitutional authority, that homage and that respect which belong to the people of the United States regard the the elective office. His oath of office is as President as then bound to the special fidelity familiar to the people of this country as it is to of watching that all the departments of this you, for they heard it during the perils of the Government obey the Constitution as well as war from lips that they revered, and they have that he obeys it himself. seen its immense power under the resources They give him no assumption of authority of this Constitution of theirs and supported by beyond the laws and the Constitution, but all their fidelity to maintain the contest of this the authority and all the resources of the laws Government against all comers to sustain the and the Constitution are open to him, and Constitution and the law. they will see to it that the President of the It has been spoken of here as if the Presi- United States, whoever he may be, in regard dent's oath were simply an oath to discharge to the office and its duty shall not take this faithfully the duties of his office, and as if the oath in vain if they have the power to mainprincipal duty of the office was to execute the tain him in its performance. That indeed the laws of Congress. Why, that is not the Presi- Constitution is above him, as it is above all of ident's oath; that portion of it is the common the servants of the people, as it is above the oath of everybody in authority to discharge the people themselves until their sovereignty shall duties of his office; but the peculiar oath of the choose to change it, they do not doubt. And President, the oath of the Constitution, is in the thus all their servants, President and Congress larger portion of it which makes him the sworn and whatever authority, arg watched by the peowreserver, protector, and defender of the Con- ple of the United States in regard to obedience stitution itself; and that is an office and that is to the Constitution. an oath which the people of the United States And not disputing the regularity, the comhave intrusted and exacted to and from no plete authenticity, and the adequate authority other public servant but the President of the of this entire procedure, from accusation United States. And when they conferred that through trial and down to sentence, the people power and exacted that duty they understood yet claim the right to see and to know that it its tremendous responsibilities, the tremendous is duty to the Constitution observed and felt oppositions it might encounter, and they under- throughout that brings the result, whatever stood their dtity implied in the suffrage that had it may be. Thus satisfied, they adhere to the conferred the authority and exacted the obliga- Constitution, but they do not purpose to change tion to maintain him in it-to maintain him in it. They are converts of no theories of conit as against foreign aggression, as against do- gressional omnipotence. They understand mesticviolence, as against encroachments from none of the nonsense of the Constitution being whatever quarter, under the guise of congres- superior to the law except that the law must sional or whatever authority, upon the true be obeyed and the Constitution not. They vigor of the Constitution of the United States. know their Government, and they mean to President Lincoln's solemn declaration upon maintain it; and when they hear that this trewhlichi he gained strength for himself and'by mendous enginery of impeachment and trial which he gave strength to the people, "I have and threatened conviction or sentence, if the a solemn vow registered in heaven that I will law and the facts will justifyit, has been brought 704 into play, that this power which has lain in the went no further than making the official attiConstitution, like a sword in its sheath, is now tude out of which a judgment of the Supreme drawn, they wish to know what the crime is Court could be got. And. here the Congress that the President is accused of. They under- intercepting again and in reference to this stand that treason and bribery are great of- great office, this great authority of the Governfenses, and that a ruler guilty of them should ment instead of the liberty of the private citibe brought into question and deposed. They zen, recourse to the Supreme Court, has interare ready to believe that, following the law posed the procedure of trial and impeachof that enumeration, there may be other great ment of the President to settle by its own aucrimes and misdemeanors touching the con- thority this question between it and the Execduct of Government and the welfare of the utive. The people see and the people feel that State that may equally fall within the jurisdic- under this attitude of Congress there seems to tion and the duty. But they wish to know what be a claim of right and an exercise of what is the crimes are. They wish to know whether supposed to be a duty, to prevent the Supreme the President has betrayed our liberties or our Court afthe United States interposing its serene possessions to a foreign State. They wish to judgmentin the collisions of Government and of know whether he has delivered up a fortress laws upon either the framework of the Governor surrendered a fleet. They wish to know ment or upon the condition and liberty of the whether he has made merchandise of the pub- citizen. And they are not slow to understand, lie trust and turned authority to private gain. without the aid of the very lucid and very brave And when informed that none of these things arguments of these honorable Managers, that are charged, imputed, or even declaimed about, it is a question between the omnipotence of they yet seek further information and are told Congress and the supremacy of the Constituthat he has removed a member of his Cabinet. tion of the United States; and that is an issue The people of this country are familiar with on which the people have no doubt, and from the removal of members of Cabinets and all the beginning of their liberties they have had persons in authority. That on its mere state- a clear notion that tyranny was as likely to be ment does not strike them as a grave offense exercised by a Parliament or a Congress as by needing the interposition of this special juris- anybody else. diction. Removal from office is not with the The honorable Managers have attracted our people of this country, especially those en- notice to the principles and the motives of the gaged in politics, a terror or a disagreeable American Revolution as having shown a desubject; indeed it may be said that it main- termination to throw off the tyranny of a king, tains a great part of the political forces of this and they have told us that that people will not country; that removal from office is a thing in bend its neck to the usurpations of a Presithe Constitution, in the habit of its admin- dent. That people will not bend its neck to istration. I remember to have heard it said the usurpations of anybody. But the people that an old lady once summed up an earnest of the United States know that their fathers defense of a stern dogma of Calvinism, that if went to war against the tyranny of Parliament, you took away her "total depravity" you took claiming to be good subjects of the king and away her religion, [laughter;] and there are ready to recognize his authority, preserving a great many people in this country that if you their own legislative independence, and against take away removal from office you take away the tyranny of Parliament they rebelled; and, all their politics. So that, on that mere state- as a necessity finally of securing liberty against ment, it does not stjike them as either an un- Parliament, severed their connection with the precedented occurrence or as one involving mother country; and if any honorable member any great danger to the State. of either House will trace the working of the "Well, but how comes it to be a crime?" ideas in the Convention that framed the Conthey inquire. Why, Congress passed a law for stitution of the United States he will discover the first time in the history of the Government that inordinate power which should grow up,undertaking to control by law this matter of to tyranny in the Congress was more feared, removal from office; and they provided that if more watched, more provided against than the President should violate it it should be a any other extravagance that the workings of misdemeanor, and a high misdemeanor; and our Government might be supposed possible now he has removed, or undertaken to remove, to lead to. a member of his Cabinet, and he is to be re- Our people, then, are unwilling that our Govmoved himself for that cause. He undertook ernment should be changed; they are unwillto make an ad interim Secretary of War, and ing that the date of our Constitution's supremyou are to have made for you an ad interim acy should be fixed, and that any department President in consequence I of this Government should grow too strong or That is the situation. "Was the Secretary claim to be too strong for the restraints of the of War removed?" they inquire. No; he was Constitution. If men are wise they will attain not removed, he is still Secretary, still in pos- to what was sagacious, and if obeyed in Engsession of the Department. Was force used? larid might have saved great political shocks, Was violence meditated, prepared, attempted, and which is true for our obedience and for the applied? No; it was all on paper, and all adoption of our people now as it was then. 705 Said Lord Bacon to Buckingham, the arbitrary new stability to the forces of the Government, minister of James I: to cure the rash passions of the people, so "As far as it may lie in you, let no arbitrary power that it may be said of each one of us, a[Rembe intruded; the people of this kingdom love the publicam firmandam et ad stabiliendas vires laws thereof, and nothing will oblige them more than et sanandum populum. omnis ejus purgebat a confidence of the free enjoyment of them; what the nobles upon an occasion once said in Parliament, institutio.'Nolumus leges Angliae mutari,' is imprinted in the Thus acting, thus supported, doubt not the hearts of all the people."-1 Bacon's Works, p. 712. result shall be in accord with these high aspiAnd in the hearts of all the people of this rations, these noble impulses, these exalted country the supremacy of the Constitution and duties; and whether or no the forces of this obedience to it are imprinted. and whatever Government shall feel the shock of this special progress new ideas of parliamentary govern- jurisdiction in obedience to law, to evidence, ment instead of executive authority dependent to justice, to duty, then you will have built up upon the direct suffrage to the people may have the Government, amplified its authority, and been made with theorists or with statesmen, taught the people renewed homage to authority. they have made no advance whatever in the And now, this brings me, Mr. Chief Justice hearts or in the heads of the people of this and Senators, to an inquiry asked very early country. in this cause with emphasis and discussed with I know that there are a good many persons force, with learning, and with persistence, and who believe that a written constitution for this that is, is this a court? I must confess that I country, as for any other nation, is only for a have heard defendants arguing that they were nascent state and not for one that has acquired coram non judice before somebody that was the pith and vigor of manhood. I know that not a judge, but I never heard till now of a it is spoken of as the swathing bands that may plaintiff or a prosecutor coming in and arguing support and strengthen the puny limbs of in- that there was not any court, that his case was fancy, but shame and encumber the maturity coram non judice. Nobody is wiser than the of vigor. This I know, and in either House I intrepid Manager who assumed the first assault imagine sentiments of that kind have been upon this court, and he knew that the only heard during the debates of the last two Con- way he could prevent his cause from being gresses; but that is not the feeling or the judg- turned out of court was to turn the court out ment of the people; and this in their eyes, in of his cause, [laughter;] and if the expedient, the eyes of foreign nations, in the eyes of the succeeds his wisdom will be justified by the enlightened opinion of mankind is the trial of result, and yet it would be a novelty. It is the Constitution, not merely in that inferior said: sense of the determination whether its powers " There is no word in the Constitution which gives the slightest coloring to the idea that this is a court, accorded to one branch or other of the Gov- except that in this particular case the Chief Justice ernment have this or that scope and impression must preside." and force, but whether a Government of a So that the Chief Justice's gown is the only written constitution can maintain itself in the shred or patch of justice that there is within forces prescribed and attributed by the funda- these Halls; and it is only accidentally that that mental law, or whether the immense passions is here owing to the peculiar character of the and interests of a wealthy and powerful and inculpated defendant. populous nation will force asunder all the "This is a Senate to hold an inquest of office upon bonds of the Constitution, and in the struggle Andrew Johnson." of strength and weight the natural forces, un- And I suppose, therefore, to find a vercrbed by the supreme reason of the State, dict of "office found." Certainly, it is sought will determine the success of one and the for. I have not observed in your rule that subjection of the other. each Senator is to rise in his place and say Now, Senators, let us see to it that in this "office found, " or" office not found. " Probtrial and in this controversy we understand ably every Senator does not expect to find it. what is at stake and what is to be determined. Your rules, your Constitution, your habit, Let us seA to it that we play our part as it your etiquette call it a court, assume that there should be played and under the motives and is some procedure here of a judicial nature; for the interests that should control statesmen and we found out finally on our side of this and judges. If, indeed, this, our closely cinc- controversy that it was so much of a court at tured Liberty, is at last to loosen her zone and least that we could not put a leading question her stern monitor, Law, debauched and drunken in it; and that is about the extreme exercise with this new wine of opinion that is crushed of the authority of a court in regard to the condaily from ten thousand presses throughout duct of procedure that we lawyers habitually this land, is to withdraw its guardianship, let discover. us be counted with those who with averted eye The Constitution, as has been pointed out and reverent step backward seek to veil this to you, makes this a court; it makes its proshameless revelry, and not with those who exult ceeding a trial; it assigns a judgment; it and cheer at its excesses. Let us so act as that accords a power of punishment to its procedwhat we do and what we purpose and what ure; and it provides that a jury in all judicial we wish shall be to build up the State, to give proceedings of a criminal character shall be C. I. —45. necessary except in this court and on this form found the strongest marks of tyranny, injustice, of procedure. We may assume, then, that so and oppression. Lord Thurlow continued: far as words go, it is a court and nothing but "I trust your lordships will not depart from recoga court. nized, established laws of the land. The Commons may impeach, your lordships are to try the cause; But it is a question the honorable Manager and the same rules of evidence, the same legal forms says, " of substance and not of form." He which obtain in the courts below, will, I am conficoncedes that if it be a court you must find dent, be observed in this assembly."-Wraxall's upon the evidence something to make out the Memoirs, p. 275. * guilt of the offender to secure a judgment, and But the learned Manager did not tell us what he argues against its being a court, not from this was if it was not a court. It is true he any nice criticism of words or forms, but, as said it was a Senate, but that conveys noidea. he expresses it, for the substance. He has It is not a Senate conducting legislative busiinstructed you, by many references and by an ness; it is not a Senate acting upon executive interesting and learned brief appended to his business; it is not a Senate acting in caucus opening speech, in English precedents and on political affairs; and the question remains, authority to show that it is almost anything if it is not a court what is it? If this is not but a court; and perhaps during the hundreds an altar ofjustice which we stand about, if wee of years in which the.instrument of impeach- not all inisters here ofjustice, to feed its ment was used as a political engine, if you look sacred flame, what is the altar and what do we only to the judgment and the reasons of the do here about it? It is an altar of sacrifice. judgment you would not think it was really if it is not an altar of justice; and to what a very judicial proceeding; but that through. divinity is this altar erected? What but the all the English history, it was a proceeding in vinity of party hate and party rage, a divincourt, controlled by the rules of the court as a ity to which we may ascribe the Greek charcourt, cannot be doubted. acter given of Envy, that it is at once the worst Indeed, as we all know, though the learned. and the justest divinity, for it dwarfs and Manager has not insisted upon it, the presence withers its worshipers. - That, then, is the altar of the trial under the peculiar procedure and that you are to minister about, and that the jurisdiction of impeachment in the House of savage demon you are to exalt here in disLords was but a part of the general jurisdiction placing Justice. of the House of Lords as the great.court of the Our learned Managers, representing the kingdom in all matters civil and criminal; and House of Representatives, do not seem to have one of the favorite titles of the Lords of Parlia- been at all at pains to conceal the party spirit ment in these earlier days was " judges of Par- and the party hate which displayed itself in the liament. " And now the House of Lords in haste, in the record, and in the;paintenance England is the supreme court of that country ofthis impeachment. To show you what progas distinctly as our great tribunal of that name ress may make in the course of thirty years is of this country. in the true ideas of the Constitution, and of But one page of pretty sound authority, I the nature of impeachments, let me read to take it, will put to flight all these dreamy, you what the managers of the impeachment misty notions about a law and procedure of of Judge Peck had to say in this behalf. And Parliament in this country and in this tribunal a pretty solid body of managers they were, that is to supersede the Constitution and the too-Judge Ambrose Spencer, of New York; laws of our country, when I show you what Mr. Henry R. Storrs, of New York; Mr. McLord Chancellor Thurlow thought of that sub- Duffie, of South Carolina; Mr. Buchanan, of ject as prevalent or expected to prevail in Pennsylvania,andMr.Wickliffe,of Kentucky. England. n Hastings's trial, Lord Loughbor- Ambrose Spencer, as stern a politician as he ough having endeavored to demonstrate that was an upright judge, opened the case, and had the ordinary rules of proceeding in crininal a word to say on the subject of party spirit and cases did not apply to parliamentary impeach- party hate. Let ne ask your attention to it: ments, which could not be shackled by. the "There is, however, one cheering and consolatory forms observed in the courtsbelow, Lord Thur- reflection. The House of Representatives, after a patient and full examination, came to the resolution low said: to impeach Judge Peck by a very large majority; "My lords with respect to the laws and usage of and the record will show an absence of all party "My lordswith respect to the laws and usage of such feeling. Could I believe that that baleful influence Parliament, J utterly disclaim all knowledge of such had mingled itself with and predominated in that laws. It has no existence. True it is, in tiles of had mingled itself with and predominated in that laws. It has no existence. True it is, in times of vote no earthly consideration could have prevailed despotism and popular fury, when to impeach an in- on e o earthly considere as on e of th e prosecutors of dividual was to crush him by the strong hand of this impea r here as one not language to express power, of tumult, or of violence, the laws and usage this impahorrence of my soul at the inguage to express of Parliamentwere quoted in order to justify the the abhorrence of my soul at the indulgence of of Parliament were quoted in order to justify the such unhallowed feelings on such a solemn promost iniquitous or atrocious acts. But in these days such unhallowed feelings on such a solemn proof light and constitutional government, I trust that no man will be tried except by the laws of the land, Mr. Manager BUTLER talked to you many a system admirably calculated to protect innocence hours. Did he say anything wiser, or juster,. and to punish crime. or safer for the Republic than that? Judge And after showing that in all the State trials Spencer knew what it was to be a judge and to under the Stuart reigns, and even down to that be a politician. For twenty years while he was of Sachaverel, in every instance were to be on the bench of New York, the great judicial 707 light in the common-law jurisdiction of that of English jurisprudence and parliamentary State, he was a head and leader of a political history? It is a proceeding by the legislature party, vehement and earnest and unflinching as a legislature to enact crime, sentences in support of its measures and in the conduct punishment, all in one. And certainly there of its discipline; and yet no lawyer, no suitor, is no alternative for you if you do not sit here no critic ever ventured to say, or to think, or under law to examine evidence, to be impartial, to feel that Judge Spencer on the bench was a and to regard it as a question of personal guilt politician or carried any trait or trace of party to be followed by personal punishment and feeling or interest there. Judge Spencer was personal consequences upon the alleged dea politician in the House of Representatives linquent, then you are enacting a bill of pains then; but Judge Spencer in the management and penalties upon the simple form that a of an impeachment could only say that if party majority of the House and two thirds of the feeling mingled in it he would have nothing to Senate must concur, and the Constitution and do with it, for his soul abhorred it in relation the wisdom of our ancestors all pass for naught, to so solemn a procedure. Yes, indeed, this Our ancestors were brave and wise, but they divinity of party hate, when it possess a man, were not indifferent to the dangers that attended throws him now into the fire and now into the this tribunal. They had no resource in the water, and he is unsuitable to be a judge until Constitution where they could so well fix this' he can come again clothed and in his right necessary duty in a free Government to hold all mind to hear the evidence and administer the its servants amenable to public justice for the law. public service except to devolve it upon this But to come down to the words of our Eng- Senate; but let me show you within the brief lish history and experience, if this is not a compass of the debate, and the only material court it is a scaffold, and an honorable Man- debate, in the Journal of the Convention that ager. yesterday told you so, that each one of framed the Constitution, how the fears and the you brandished now a headsman's ax to ex- doubts predominated: ecute vengeance, you having tried the offender "Mr. Madison objected to a trial of the Presiden't on the night of the 21st of February already. by the Senate, especially as he was to be impeached wouldn not introduce these bold words that by the other branch of the Legislature; and for any would not introduce these bold words that act which might be called a misdemeanor. The should make this a scaffold, in the eyes of the President, under these circumstances, was mande impeople of this country, and you headsmen properly dependent. He would prefer the Supreme brandishing your axes, but the honorable Man- Court for the trial of impeachments; or, rather, a b-randishing your axes, but the honorable tribunal of which that should form a part. ager has done so, and I have no difficulty in Mr. Gouverneur Morris thought no other tribunal saying to you that if you are not a court, then than the Senate could be trusted. The Supreme y~ou are that ~w~hich2 he described and nothing Court were too few in numbers, and might be warped else. If it be true that on the night of the Executive on the Legislature, considering the legis21st of February, upon a crime committed by lative tyranny the great danger to be apprehended; the President at midday of that date and on an but there could be no dathger that the Senate wouas say untruly, on their oaths, that the President was impeachment moving already forward to this guilty of crimes or facts, especially as in four years Chamber from the House of Representatives, he can be turned out." you did hold a court and did condemn, then That was Gouverneur Morris's wisdom as to you are here standing about the scaffold of the extent to which the Senate might be trusted execution, and the part that you are to play under the sanctions and obligations of judicial is only that which was assigned you by the hon- oaths; butorable Manager, Mr. STEVENS, and he warned "Mr. Pinckney disapproved of making the Senate yotheld by fealty to your own judgments, not the court of impeachments, as rendering the Presito 1blench at the sight of the blood. dent too dependent on the Legislature. If he opNow, to what end is this prodigious effort to poses a favorite law the two Houses will combine Now, to what end is this prodigious effort to against him, and, under the influence of heat and expel from this tribunal all ideas of court and faction, throw him outof office."-5MadisoaPapers; of justice? What is it but a bold, reckless, p. 528. rash, and foolish avowal, that if it be a court There is the sum and substance of the wisthere is no cause here that, upon judicial dom that our ancestors could bring to the subreason, upon judicial scrutiny, upon judicial ject of whether this was to be or oould be a weighing and balancing of fact and of law, can court. It is undoubtedly a very great burden result in a judgment which the impeaching and a very exhaustive test upon a political party here, the Managers and House of Repre- body to turn it into a court for the trial of an sentatives, demand, and constitutionally may executive official in ordinary circumstances. I demand, to be done by this court? At last, to shall hereafter point out to you the very pecunwhat end are the wisdom, and the courage, the liar, the very' comprehensive and oppressive civil prudence and the knowledge of history concurrence and combination of circumstances which our fathers brought to the framing of the as bearing on this trial that require of you to Constitution; of what service this wise, this brace yourselves upon all the virtue that behonest frown in the Constitution upon ex post longs to you and to hold on to this oath for the facto laws and bills of attainder? What is a Divine aid that may support you under this bill of attainder; what is a bill of pains and most extraordinary test of human conduct to penalties in the experience and in thelearning which our Constitution subjects you to-day. 708 Now, what could the Constitution do for us? that you shall not obey a judicial zath, I can A few little words, and that is all-truth, jus- bring against it but a single sentence and a sintice, oath, duty. And what does the whole gle voice; but that sentence is a commandscope of our moral nature and the whole sup- ment and that voice speaks with authority: port we may hope from a higher aid extend to " Thou shalt not take the name of the Lord thy in any of the affairs of life but these? Truth, God in vain, for the Lord will not hold him justice, oath, duty control the fate, life, lib- guiltless that taketh his name in vain." erty, character, and property of every citizen. The moth may consume the ermine of that Truth, justice, oath, duty are the ideas thatthe supreme justice whose robes you wear; rust, Constitution has forced upon your souls to-day. Senators, may corrode the sceptre of your You receive them or you neglect them; which- power; nay, Messrs. Managers, time even shall ever way you turn you cannot be the same devour the people whose presence beating menafterwardthatyou werebefore. Accepted, against the doors of this Senate House you so embraced, obeyed, you are nobler and stronger much love to vaunt and menace, but of the and better. Spurned, rejected, you are worse word that I have spoken "heaven and earth and baser and weaker and wickeder than be- shall pass away and no jot or tittle of it fail." fore. And it is thus that by strong ideas a I have now reached, Mr. Chief Justice and'free Government must always be held to the Senators, a point where an adjournment would path of duty and to the maintenance of its be agreeable, if such is the pleasure of the own authority and to the prevalence of its own Senate. strength for its perpetual existence. Mr. CONKLING. I move that the Senate They are little words, but they have great sitting as a court of impeachment adjourn until power. Truth is to the moral world what to-morrow. gravitation is to the material; it is the prin- The motion was agreedto; and the Senciple upon which it is established and coheres; ate, sitting for the trial of the impeachment, and justice in the adaptation of truth to the adjourned. affairs of men is in human life what the mechanism of the heavens is to the principle that WEDNESDAY, April 29, 1868. sustains the forces of the globe. Etuty is The Chief Justice of the United States took acceptance, obedience to these ideas, and this the chair. once gained secures the operation which was The usual proclamation having been made intended. When, then, you bend submissive to The usual proclamation having been made this oath, that faith among men which, as he aners of te mpeachent on the Burke says, " holds the moral elements of the world together," and that faith in God which part of the House of Representatives and the binds that world to His throne, subdue you to counsel for the respondent, except Mr. Stantrh and justie; ande e- bery, appeared and took the seats assigned to the service of truth and justice; and the ever- them respectively. living guardian of human rights and interests The members of the House of Representadoes not neglect what is essential to the pres- tives, as in Committee of the Whole, preceded ervation of the human race and its advance- by Mr. E. B. WAStURNE, chairma of that meat. The parity of the family and the sanc- committee, and accompanied by the Speaker tity of justice have ever been cared for, and and Clerk, appeared and were conducted to will ever be cared for. The furies of the Greek ea t mythology had charge of the sanctions of an the seats provided for them. Oath. The imaginations of the prophets of The Journal of yesterday's proceeding of the th. The iagnctions the popet of Senate, sitting for the trial of the impeachthe world have sanctioned the solemnity of an ment wasread oath, and peopled the place of punishment Mr. NELSON. r.ChiefJusticeand Senwith oath-breakers; and all the tortures and or.. r. ef Justce and Sen torments of history are applied to public ser- Mr SUMNE. Mr. President, before the vants who, in betrayal of sworn trust, have dis- gentlem.an makes a motion I send an order t obeyed those high, those necessitous obliga-kes a otion I send an order to tions without which the whole fabric of society The ChIEFJUSTICE. TheSecretarywill falls in pieces. read the order. I do not know why or how it is that we are so The Chief Clerk constituted, but so it is. The moral world has hereas Mr. Nelson one of the counsel for the its laws as well as the material. Why a point President, in addressing the Senate, has used disorof steel lifted above temple or dome should derly words, as follows, namely: beginning with perdraw the thunderbolt and speed it safely to the sonalities directed to one of the Managers he proground I know not. How, in ur moral con- ceeded to say,'~So far as any question that the gentleman desires to make of a personal character with me stitution,an oath lifted to heaven can draw from is concerned, this is not the place to make it. Let the great swollen cloud of passion and of inter- him make it elsewhere if he desires to, do it;" and est and of hate its charge I know not, but so whereas such language, besides being discreditable to these proceedings, is apparently intended to proit is. And be sure that loud and long as these voke a duel or to signify awillingness to fight a duel, honorable Managers may talk, although they contrary to law and good morals: Therefore, "al tepOrdered That Mr. Nelson, one of the counsel of speak in the voice of "all the people of the the President, has justly deserved the disapprobaUnited States," with their bold persuasions tion of the Senate. 709 Mr. NELSON. Mr. Chief Justice and Sen- what has occurred, a statement having been ators received from the Managers, I think it proper The CHIEF JUSTICE. The counsel can that the counsel should have permission also to proceed only by unanimous consent. make a statement in explanation; and I move Mr. NELSON. I was just going to ask per- that he have such leave. mission, Mr. Chief Justice. The CHIEF JUSTICE. Senators, you who Mr. SUMNER. I must object, unless it is are in favor in direct explanation. Mr. Manager BUTLER. Is that debatable? Mr. NELSON. All I desire to say this The CHIEF JUSTICE signified thaot it was morning to the Senate not. Mr. SUMNER. I must objeot, unless it is Mr. SUMNER. Mr. President, I wish to in direct explanation. understand the nature of the motion made by Mr. SHERMAN. I object to the consider- the Senator from Illinois. Is it that the counation of the resolution. sel have leave to explain his language of yesMr. NELSON. If you will permit, I will terday, or that he have leave to introduce the simply state this much- letter? Mr. SHERMAN. I have no objection to Mr. JOHNSON. No debate is in order. the explanation, but I object to the consider- The CHIEF JUSTICE. Debate is not in ation of the resolution. order. The CHIEF JUSTICE. I will ask the coun- Mr. TRUMB ULL. It is not in reference to sel whether he proposes to make an explana- letters. My motion is that he have leave to tion. make his explanation; I do not know what it Mr. NELSON. All that I desired to do, Mr. is. Inasmuch as one of the Managers has Chief Justice, this morning was to read the made an explanation, I think it due to the letters as I indicated to the Senate yesterday counsel that he be allowed to make an explathat I should ask permission to do. That is nation. all I desire to do, with a single word of ex- Mr. Manager BUTLER. Do you mean to planation. have the letters read? The CHIEF JUSTICE. The resolution pro- The CHIEF JUSTICE. Senators, you who posed by the Senator from Massachusetts is agree that the counsel shall have leave to make not before the Senate if it is objected to. an explanation to the Senate will say ay; Mr. SHERMAN. I object to its consider- contrary, no. [Putting the question.] The ation now. ayes appear to have it. The ayes have it. Mr. Manager BUTLER. If the President Mr. NELSON. Mr. Chief Justice and Senand Senate will spare me a single word, I ators, I hope you will allow me before I make trust, so far as I am concerned, that anything this explanation to say a single word in answer that arose out of what occurred yesterday may to the resolution offered by the honorable Senbe ended from any language that the learned ator, [Mr. SUMNER,] not for the purpose of counsel used toward me, and I hope that no censuring the Senator, but for the purpose of further action may be taken upon that matter. saying to the Senate that the remarks which I As to the reading of the letters, I propose to made in the Senate yesterday were made under object to that until they can be proved in the the heat of what I esteemed to be very great usual.course of judicial proceedings. provocation. I intended no offense to the Mr. JOHNSON. Mr. Chief Justice, I move Senate in what I said. If anything is to be to lay the resolution offered by the Senator done with the gentleman's resolution I hope from Massachusetts upon the table. the Senate will permit me, before disposing of The CHIEF JUSTICE. It is not before that, to defend myself against this imputation, the Senate. and to show the reason why I indulged in the Mr. NELSON. Senators, will you allow me remarks I did. But as the honorable Manager to say one word? has signified a willingness that this thing shall Mr. SUkNER. Mr. President, I wish to end, 1 meet him in the same way. So far as I inquire whether the gentleman can proceed am concerned, I desire to say nothing more of except by unanimous consent. a personal character whatever. The CHIEF JUSTICE. He cannot. The letters which I desire to readMr. SUMNER. I must object to any person Mr. Manager BUTLER. I object that they proceeding who has used the language in this are not genuine nor proved. Chamber used by that gentleman. Mr. NELSON. I'read them merely as a Mr. TRUMBULL. Mr. President- part of my explanation. The CHIEF JUSTICE. the Chief Justice, Mr. Manager BUTLER. I do not think that perhaps, erred through inadvertence in respond- can be done. ing to the Senator from Massachusetts. The The CHIEF JUSTICE. The Chief Justice Senate undoubtedly can give leave to the is under the impression that the leave does not counsel to proceed if it sees fit; but if any extend to the reading of the letters. If he is objection is made the question whether he have wrong the Senate will correct him. If any leave or not must be submitted to the Senate. Senator chooses to make a motion that leave Mr. TRUMBULL. Mr. President, after be given that will be put to the Senate. 710 Mr. DAVIS. Mr. Chief Justice, I rise to I do not want to make any comment on it a point of order. After the Senate has per- except merely to explain the matter about the mitted one of the counsel to make an explana- dates. tion, I make the question whether a Manager Mr. Manager BUTLER. I have no objeehas any right to interpose an objection. I tion if you allow me to reply to it. concede that a Senator may have such a right; Mr. HOWE. I must object. but I deny that a Manager has any such right Mr. HOWARD. I object to the reading of as that. the letter. The CHIEF JUSTICE. The Chief Justice The CHIEF JUSTICE. It cannot be read understood the motion of the Senator from under the order which has been made. Illinois to be confinedto an explanation of the Mr. NELSON. The fact to which I desire personal matter which arose yesterday, and to call the attention of the Senate, and it is nethat it did not extend to the reading of the cessaryfor me to do so, is, that this letter in the letters which the counsel proposed to submit caption bears date, as I have shown, on the 9th to the Senate; but leave can be -given if the of March, 1868. It is signed here " BENJAMIN Senate sees fit. F. BUTLER." Below the signature of BENJA. Mr. HOWARD. Mr. President, I beg leave MIN F. BUTLER are the words, "I concur in respectfully to object to the reading. of the the opinion above expressed by General BUTletters which are proposed to be read by the LER," signed " JOHN A. LOGAN." Below that ouansel. are the words "And I," signed " J. A. GARThe CHIEF JUSTICE. No debate is in FIELD." There is no other date in that letter order; and no motion is at present before the from beginning to end except the 9th of March, Senate. 1868. Mr. HOWARD. I raise the objection until Mr. JOHNSON. Will the counsel permit after they have been presented to the Managers me to ask whether the handwriting in which for examination. the date is written is the same apparently in Mr. HENDRICKS. Mr. President, I move which the letter is? that the counsel be allowed to read so much Mr. NELSON. The handwriting in which of the letter as will show to the Senate what the date is written is precisely the same handdate it bears. writing as the address and body of the letter; Mr. NELSON. That is all I want. but the signature to the letter, as I take it, is in a Mr. TIPTON. Mr. President, I call for differenthandwritingfromthebodyoftheletter. the regular order of the morning, the defense On the 16th of March, 1868, Mr. Chauncey of the President. F. Black addressed a letter to the President The CHIEF JUSTICE. The regular order stating that he inclosed a copy of the letter to is the motion of the Senator from Indiana, which I have just adverted; and in order that [Mr. HENDRIC:S.1 the Senate may understand that, you will obMr. HOWE. I should like to hear the serve that the copy is, as I believe, identical motion stated. I did not understand it. with the original letter which I have just The CHIEF JUSTICE. The Senator from produced — Indiana will restate his motion. Mr. HOWE. Mr. President Mr. HENDRICKS, The motion which I The CHIEF JUSTICE. The gentleman made is that the attorney for the President be will confine himself exclusively to the dates. allowed to read so much of the letter as will Mr. NELSON. Altogether to the dates; show its date and the place at which it was but I cannot, if your Honor please, explain written. this thing about the dates without this referThe CHIEF JUSTICE. Senators, the ques- ence, as the Senate will see. I am not trying tion is on the motion of the Senator from In- to make an argument; I do not intend to viodiana. late any rule of the Senate knowingly; and The motion was agreed to. your Honor will see in a moment that I am Mr. NELSON. The first letter to which I not trying to make an argument. alluded is a letter bearing date March 9, 1868, Mr. HENDRICKS.' Mr. President, my addressed by BENJAMIN F. BUTLER to " Colonel motion was that the attorney be allowed to J. W. Shaffer, Washington, District of Colum- read so much of the letter as would show the bia." date. I thinks that is all that it is important Mr. JOHNSON. Does that purport to be for the Senate to know in this personal exan original letter or a copy? planation, and I object to an explanation in Mr. NELSON. I understand it to purport regard to the letter going further except so far to be an original letter. My understanding as it is in direct response to the points made is that this is the genuine signature of BENJA- against him. MIN F. BUTLER, and these are the genuine and Mr. NELSON. If the honorable Senate original signatures of JOHN A. LOGAN and J. and the Chief Justice will allow me to say a A. GARFIELD. I am not acquainted with the word there, I cannot explain about the date of handwriting of the gentlemen, but only speak this copy unless I tell you the difference befrom information. If the Senate would allow tween this paper and the other paper which I me to read this letter, it is a very short one; have read. It is impossible for me to explain. 711 the date otherwise. All I can say is that this The CHIEF JUSTICE. The counsel for copy bears the same date as the original, and the President will proceed with the argument. has the additional signatures of Mr. KOONTZ, J. K. MOORHEAD, THADDEUS STEVENS, J. G. Mr. EVARTS. Mr. Chief Justice and SenBLAINE, and JOHNA. BINGhIAM; and that there ators, if indeed we have arrived at a settled is no other date to this letter except the date conclusion that this is a court, that it is govin the caption of the letter. That is the only erned by the law, that it is to confine its atexplanation I can make. You will see that tention to the facts applicable to the law, and the copy is precisely like the original down to regard the sole evidence of those facts to be the words. "And I, J. A, GARFIELD." Then embraced within the testimony of witnesses come in this letter, which as to these names is or documents produced in court, we have an original, the words "I concur. W. H. made great progress in separating, at least, KoONTZ;" followed by the names "J. K. from your further consideration much that MOORHEAD,THADDEUS STEVENS, J. G. BLAINE," has been impressed upon your attention hereand " JOHN A. BINGHAM;" and in that paper, tofore. from beginning to end, there is no date but the If the idea of power and will is driven from 9th of March. That is the explanation I have this assembly, if the President is here no longer to make. exposed to attacks upon the same principle on The CHIEF JUSTICE. The counsel for which men claim to hunt the lion and harpoon the President will please proceed with the -the whale, then, indeed, much that has been argument in defense. said by the honorable Managers, and much that Mr. CAMERON. Before the counsel pro- is urged upon your attention from so many ceeds I desire to submit an order. quarters, falls harmless in your midst. It The CHIEF JUSTICE. The Secretary will cannot be said of this Senate, fertur numeris read the order proposed by the Senator from leges solutis, that it is carried by numbers Pennsylvania. unrestrained by law. On the contrary, right The Chief Clerk read the order, as follows: here is might and power; and, as its servants That the Senate, sitting as a courtof impeachment, and in its investigation and pursuit, your sole shall hereafter hold night sessions, commencing at duty is exhausted. It follows from this that eight o'clock p. m. to-day and continuing until eleven the President is to be tried upon the charges o'clock p. m., until the arguments of the counsel for the President and of the Managers on thepart of the which are produced here, and not upon comHouse of Representatives shall be-concluded. mon fame, and, least of all, is he to be charged Mr. JOHNSON. I object. in your judgment, as he has been inveighed The CHIEF JUSTICE. The present con- against hour after hour in argument, upon sideration being objected to, the order will lie charges which the impeaching authority of the upon the table. House of Representatives deliberately threw Mr. Manager BUTLER. Shall these papers, out as unworthy of impeachment and unsuitMr. President, which have been read be placed able for trial. We, at least, when we have an upon the records of the court now, so that we indictment brought into court and another incan get at them? The originals I desire. dictinent ignored and thrown out are to be The CHIEF JUSTICE. The Chief Justice tried upon the former and not upon the latter. is unable to answer that question. He takes And, if on the 9th of December, of the last it for granted that the counsel will submit year, the House of Representatives, with whom, them to the honorable Managers. by the Constitution, rests the sole impeaching Mr. Manager BUTLER. 1 begyour pardon. power under this Government, by a vote of They were only submitted under insult. one hundred and seven to fifty-seven, threw Mr. NELSON. All I desired to do was this: out all the topics that fill up the declamatory the honorable gentleman asked me to submit addresses of the learned Managers, it is enough the letters to them. I said I would most as- for me to say, that for reasons satisfactory to suredly let them have them if he would return that authority, the House of Representatives, the originals; and I would hand the letters that bill was thrown out and those charges were and copies to them. The gentleman cap take -withheld. them with the understanding that he returns So, too, if it be a trial on public prosecuthem to me. tion, and with the ends of public justice alone The CHIEF JUSTICE. There can be no in view, the ordinary rule of restraint of the further discussion of this matter except with conduct of the prosecuting authorities applies the consent of the Senate. here; and I do not hesitate to say that this Mr. NELSON. Therearethe letters, [send- trial-'to be, in our annals, the most conspicuing the papers to Mr. Manager BUTLER.] ous that our history will present; to be scrutiMr. Manager BUTLER. No, sir; let them nized by more professional eyes, by the attengo on the files. * tion of more scholars at home and abroad; to Mr. NELSON. I will depositthem with the be preserved in more libraries; to be judged Secretary for the present. of as a national trait, a national scale, a naMr. Manager BUTLER. Let them go on tional criterion forever-presents an unexamthe files. pled spectacle of a prosecution that' over[The papers were handed to the Secretary.] reaches judgment from -the very beginning and 712 inveighs and selects and impugns and op- domeshook withinvective. Wretchednessand presses as if already convicted, at every stage, misery and suffering and blood, not included the victim they pursue. The duty, the con- within the record, were made the means of this straint upon a prosecuting authority under a explosive mixture. And here we are surviving government of law pursuing only the public the concussion, and after all reduced to the justice is scarcely less strict and severe than humble and homely method of discussion which that which rests upon the judge himself. To belongs to " attorneys whose intellects have select evidence, having possession of better; been sharpened but not enlarged by the practo exclude evidence, knowing that it bears tice of the law." [Laughter.] upon the inquiry; to restrict evidence, know- In approaching. then, the consideration of ing that the field is thus closed against the true what constitutes impeachable offenses, within point of justice, is no part of a prosecuting the true method and duty of that solemn and authority's duty or power. Whatever may be unusual procedure and within the Constitution, permitted in the private contests of the forum, we see why it was that the effort was to make in the zeal of contending lawyers for con- this an inquisition of office instead of a trial of tending clients, there is no such authority, no personal and constitutional guilt; for if it is an such duty, no such permission by our laws in inquest of office " crowner's questlaw" will do a public prosecution. Much less, when the throughout for us, instead of the more solemn proofs have been thus kept narrow, when the precedents and the more dignified authorities charges are thus precise and technical, is it and duties which belong to solemn trial. Mr. permissible for a prosecuting authority to en- Manager BUTLER has given us a very thorough large the area of declamation and invective. and well-considered suggestion of what constiMuch less is it suitable for a public prosecu- tutes an impeachable offense. Let me ask your tion to inspire in the minds of the court preju- attention to it; and every one of these words dice and extravagance of jurisdiction beyond is underscored by the honorable Manager: the points properly submitted. " We define, therefore, an impeachable high crime It has usually been supposed that upon actual or misdemeanor to be one in its nature or consetrials involving serious.consequences forensic quences subversive of some fundamental or essential rialscsinvolin wa ris thenet ofdealng principle of government, or highly prejudicial to the discussion was the true method of dealing with public interest, and this may consist of a violation of the subject, and we lawyers appearing for the the Constitution, of law, of an official oath, or of President being, as Mr. Manager BOUTWELL duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary has been polite enough to say, "attorneys powers from improper motives or for any improper whose practice of the law has sharpened but purpose." not enlarged their intellects," have confined See what large elements are included in this, ourselves to that method of forensic discussion. the Manager's definition I It must be " subBut we have learned here that there is another versive of some fundamental or essential prinmethod of forensic controversy which may be ciple of government, " highly prejudicial to called the method of concussion. I under- the public interest, " and must proceed " from stand the method of concussion to be to make improper motives " and for an " improper pura violent, noisy, and explosive demonstration pose." That was intended, in the generality in the vicinity of the object of attack, whereas of its terms, to avoid the necessity of actual the method of discussion is fo penetrate the and positive crime; but it has given us in one position and if successful to capture it. The regard everything that is needed to lift the Chinese method of warfare is the method of peccability of these technical offenses of mere concussion, and consists of a great braying statutory infraction out of the region of imof trumpets, sounding of gongs, shouts, and peachable offense. It is not that you may shrieks in the neighborhood of the opposing accuse of a definite and formal crime, and then force, which rolled away and the air clear have outside of your indictment, not covered and calm again the effect is to be watched by charge or admitted for proof or counterfor. But it has been reserved for us in our vailing proof, large accusationsthat touch these,modern warfare, as illustrated during the general subjects, but that the actunder inquiry, rebellion, to present a more singular and charged and proved or refuted by proof, must notable instance of the method of warfare by be of itself such as, within its terms and regconcussion than has ever been known before. ular and natural consequence, thus touches A fort impregnable by the method of discus- vital interests or fundamental principles. sion, that is, penetrating and capturing it, has The fallacy of these general qualifying terms is been on the largest scale attempted by the in making them the substance of the crime inmethod of concussion, and some two hundred stead of the conditions of impeachability. You and fifty tons of gunpowder in a hulk moored must have the crime definite under law and near the stone walls of the fort has been made Constitution, and even then it is not impeachthe means and the occasion of this vast experi- able unless you affect it with some of the pubment. Unsatisfied with that trial and its result lic and general and important qualities that are the honorable Manager who opened this case indicated in this definition of the learned and [Mr. BUTLER] seems to have repeated the ex- honorable Manager. periment in the vicinity of the Senate. [Laugh- We may look, perhaps, at the statement ter.] The air was filled with epithets, the made by the Managers of the House of Repre 713 sentatives on this subject of what constitutes reprove and reprimand him. The crimes of Mr. Hasan impeachable offense in the trial of Judge tings are crimes not only in themselves, but aggraPeck, Mr. Buchanan, of Pennsylvania, chair- vated by being crimes of contumacy. They were crimes not against forms, but against those eternal man of the managers, being the speaker: laws of justice which are our rule and our birthright. His offenses are not in formal, technical language, "What is an impeachable offense? This is a pre- but in reality, in substance and effect, high crimes liminary question which demands attention. It and high misdemeanors."-Burke's Works, vol. 7, pp. must be decided before the court can rightly under- 13,14. stand what it is they have to try. The Constitution nd so the articles charged them of the United States declares the tenure of the judi- And so the articles charged them, not leavcialoffice to be'during good behavior.' Official mis- ing it to the declamation or invention of the behavior, therefore, in a judge is a forfeiture of his orators of that great occasion. I need not office. But when we say this we have advanced only o a small distance. Another question meets us. What insist, in repetition of the very definite, concise, is misbehavior in office? In answer to this question and I must think effective argument of the and without pretending to furnish a definition, Y learned counsel who opened this case for the freely admit we arebound to prove that the respond- respondent, [Mr Curtis, upon the strict conent has violated the Constitution or some known law respondent, [Mr. Curtis,] upon the strict conof the land. This, I think, was the principle fairly stitutional necessity, under the clause -proto be deduced from all the arguments on the trial of hibiting expost facto laws, and under the clause Judge Chase and from the votes of the Senate in prohibing bills of attainder, and under the the articles of impeachment against him."-Peck's prohibiting bills of attainder, and under the Trial, p. 427. clauses that fix the trial as for crime in the That crime, in the sense of substantial guilti- Constitution under the designation in the ness, personal delinquency, moral opprobrious articles of enumeration of "treason" and blame, is included even under the largest and "bribery" alone, the highest great crimes most liberal accusation that was espoused and against the State that can be imagined, tha defended by the managers in Hastings's im- youshouldhaveherewhat is crimeagainstthe peachment, is to be gathered from one of the Constitution and crime against the law, and many splendid passages of Burke's invective then that it should have those public proportions.that are indicated in the definition of the opening Manager, and those traits of freedom "As to the crime which we charge, we first consid- from error and mistake and doubt and difed ered well what it was in its nature, and under all the culty which belong, in the language of Mr. circumstances which attended it. We weighed it culty which belong, in the language of Mr. with all its extenuations and with all its aggrava- Burke, to an arduous public station. And then tions. On that review we are warranted to assert you will perceive that under these necessary that the crimes with which we charge the prisoner at nditions ithe the bar aresubstantial crimes; that they are no errors conditions either this judgment must be arrived or mistakes, such as wise and good men might possi- at, that there is no impeachable offense here bly fall into; which may even produce very perni- which covers and carries with it these concious effects, without being, in fact, great offenses. ditions, or else that the evidence offered on the The Commons are too liberal not to allow for the that the evidence offered on the difficulties of a great and arduous public situation. part of the respondent that was to negative, that They know too well the domineering necessities was to countervail, that was to reduce, that which frequently occur in all great affairs. Theyknow was to refute all these qualifications should the exigency of a pressing occasion which in its pre- to refute all these qualifications should cipitatecareerbears everythingdown before it, which have been admitted; and when a court like does not give time to the mind to recollect its facul- this has excluded the whole range of evidence ties, to rebnforce its reason, and to have recourse to fixed principles, but by compelling an instant and relating to the public character of the accused tumultuous decision too often obliges men to decide and the difficulties of an arduous public situain a manner that calm judgment would certainly tion, it must have determined that the crimes have rejected. We know, as we are to be served by chargeddo not partake of that quality, or else men, that the persons who serve us must be tried as charged do not partake of that quality, or else men, and with a very large allowance indeed to hu- it would have required them to have been Nian infirmity and human error. This, my lords, we affirmatively supported by proofs giving those knew, and we weighed before we came before you. But the crimes which we charge in these articles are qualifications, and permitted them to be renot lapses, defects, errors of common human frailty, duced by countervailing evidence. And when which, as we know and feel, we can allow for. We a court sits only for a special trial, when its charge this offender with no crimes that have not arisen from passions which it is criminal to harbor; proceedings are incapable of review, when with no ofenses that have not their root in avarice, neither its law nor its fact can be dissected, rapacity, pride,insolence, ferocity, treachery, cruelty, even by reconsideration within its own tribunal, malignity of temper; in short, in nothing that does th not argue a total extinction of all moral principle, the necessary consequence is that, when you that does not manifest an inveterate blackness, dyed come to make up your judgment, either you ingrain with malice, vitiated, corrupted, gangren must take as for granted all that we offered to to the very core. If we do not plant his crimes in those vices which the heart of man is made to abhor, prove, all that can fairly be embraced as to and the spirit of all laws, human and divine, to inter- come in, in form, in substance, in color, and diet, we desire no longer to be heard on this occasion. in fact, by the actual production of such proof, Let everything that can be pleaded on the ground so that your judgment may thus proceed or of surprise or error upon those grounds be pleaded so that your judgment may thus proceed; or with success; we give up the whole of those predica- else it is your duty before you reach the irrements. We urge no crimes that are not crimes of vocable step of judgment and sentence to reforethought. We charge him with nothing that he ocable step of judgment and sentence to redid not commit upon deliberation; that he did not sume the trial and call in the rejected evidence. commit against advice, supplication, and remon- I submit it to you that a court without review, strance; that he did not commit against the direct without new trial, without exception, and withcommand of lawful authority; that he did not com- out possible correction of errors, must deal mit after reproof and reprimand,thereproof and rep- out possible correction of errors, must deal rimand of those who are authorized by the laws to with evidence in this spirit and upon this rule. 714 And unless you arrive, as I suppose you must, dition of American life, and by the force of at the conclusion that the dimensions of this their native talents and by the high qualities trial relate to the formal, technical infraction of endurance and devotion to the public setof the statute law that has been adduced in vice, who have lifted themselves into this emievidence here, it will be your duty to reopen nent position, if not the envy the admiration your doors, call the respondent again before of all their countrymen, it is gravely proposed you, and go into the field of inquiry that has to you, some of whom from this elevated posibeen touched in declamation, but has not been tion do not disdain to look upon the Presipermitted in proof. dency of the United States as still a higher, a But, Mr. Chief Justice and Senators, there nobler, a greater office, if not of pride yet of is no better mode of determining whether a duty, that you shall feel and say that it is a crime accorded to a particular jurisdiction little thing to take a President from his public and embraced within a particular prohibition station and strike him to the ground, branded is to be a high crime and misdemeanor, and with high crime and misdemeanor, to be a what a high crime and misdemeanor means, byword and reproach through the long gauntlet and what the lowest level and the narrowest of history forever and forever. In the great limit of its magnitude and of its height must hall of Venice, where long rows of doges cover be, than to look at its punishment. Epithets, with their portraits the walls, the one erased, newly-invented epithets, used in laws do not the one defeatured canvas attracts to it every alter the substance of things. Your legisla- eye; and one who has shown his devotion to tion of the 2d of March, 1867, introducing into the public service from the earliest beginning, a statute law the qualifying word "' high," ap- and you who have attended in equal steps that plied to a misdemeanor, is its first appearance same ascent upward, and now, in the very in the statute law of this country or of the height and flight of your ambition, feel your parent country from whom we draw our juris- pinions scorched and the firm sockets of your prudence. It means nothingtoalawyer. There fight melted under this horrid blaze of imis in the conspiracy act of 1861 the same intro- peachment, are to be told, as you sink forever, duction.of the word "high" as applied to the not into a pool of oblivion but of infamy, and body of the offense there called " a crime." A as you carry with you to your posterity to the " high crime" it is called in this little con- latest generation this infamy, that it'is a trifling spiracy act of 1861, and there in the one in- matter, and does not touch life, liberty, or stance and here in the other an epithet is property! If these arethe estimates of public thrown into an act of Congress. But, Mr. character, of public fame, and of public disChief Justice and Senators, when the legisla- grace by which you, the leaders of this countive authority in its scale of punishment makes try, the most honored men in it, are to record it, as the common sense of mankind considers, your estimate of the public spirit and of the great in its penalty, terrible in its consequences, public virtue of the American State, you have that is a legislative statementof what the qual- indeed written for the youth of this country ity of the crime is. When you put into a stat- the solemn lesson that it is dust and ashes. ute that the offense shall be punished by death Now, what escape is there from this conyou need no epithet to show that that is a elusion, in everytrue.estimate of the character great, a heinous crime; and when the framers of this procedure and of the result that you of this Constitution put into it, as the necessary seek to fasten upon this President if justice result of the trial of the President of the Uni- requires it, to say that it is trifling and trivial ted States and his conviction, that his punish- and that formal and technical crime may lead ment should be deprivation of office, and that to it? Do the people of this country expect to the public should suffer the necessity of a new be called to a presidential election in the midelection, that showed you what they meant by dle of a term, altering the whole calendar, it "high crime or misdemeanor." may be, of the Government, because there has I know that soft words have been used by been an infraction of a penal statute carrying.every Manager here on the subject of the mercy no consequences beyond? It is accidental, to of our Constitution and the smallness of the be sure, that the enforced and irregular election punishment, that it does not touch life, limb, that may follow upon your sentence at this time or property. Is that the sum of penalties? Is concurs with the usual period of the quadrenthat the measure of oppression of punishment? nial election; but it it is merely accidental. Why, you might as well say that when the And yet these, Senators, are gravely proposed mother feels for the first time her new-born to you as trivial results that are to follow from infant's breath, and it is snatched from her a judgment on an accusation of the character and destroyed before her eyes, she has not and of the quality that I have stated in fact, as been deprived of life, liberty, or property. In compared with the quality and the character a Republic, where public spirit is the life and that it should bear in truth. where public virtue is the glory of the State, In reference to this criminality of the infracand in the presence of public men possessing tion of the statute, which in the general regreat public talents, high public passions, and marks that I am making you will see furnishes ambitions, made up, as this body is, of men the principal basis of charge that I am regardsprung, many of them, from the ordinary con- ing, we may see from the statute itself what the 715 measure of criminality there given is, what the you attend to the fact that such formal, technimeasure under indictment would be or might cal crimes when made the subject of convicbe, and then you will see that that infraction, tion and of sentence in obedience to the law if it occurred, and if it were against the law and are, under a principle of our Constitution and punishable by the law under the ordinary of every other just, I will not say merciful, methods and procedures of our common courts Glovernment in the world, made subjects of of justice, furnishes not only no vindication of, pardon; but under this process of impeachbut no support to, thb notion that upon it can ment, with but one punishment, and that the be ingrafted the accusation of impeachment, highest in the public fame and character of the accusation of criminality that is impeach- men that is known or that can be conceived, able, any more than any other topic of com- we have this further, this terrible additional parativel.limited and trivial interest and con- quality, that the punishment is immitigable, cern. The provision is not that there must be immutable, irreversible, unpardonable, and no a necessary penalty of gravity, but that under power whatever can lighten or relieve the load the scale of imprisonment and fine the only with which an impeached and convicted public limit is that it shall not exceed $10,000 of servant goes forth from your Chambers in a pecuniary liability and five years of imprison- just exercise of this power of impeachment ment. Six cents fine, one day's imprisonment, with a punishment heavier than he can bea.r. according to the nature of the offense, within And now, what answer is there to this but the discretion of the court, may satisfy the an answer that will take a load of punishment public justice under indictment in regard to this and of infamy from him and place it someoffense which is claimed as the footing and where else? True it is that if he be unjustly front of the President's fault. convicted, if he be convicted for technical and Nor was this open, unrestricted mercyof the formal faults, then the judgment of the great law unattended to in debate. The honorable nation, of intelligent and independent men, Senator from Massachusetts, [Mr. SUMNER,] stamps upon his Judges the consequences that in the course of the discussion of this section they have failed to inflict upon the victim of of the bill, having suggested that it would be their power. Then it is that the maxim si well, at least, to have a moderate minimum innocens damnatur, judex bis damnatur finds of punishment that would secure something its realization in the terrors of public opinion like substance necessarily in the penal inflic- and the recorded truths of history. tion and having suggested $1,000 or $500 as I have introduced these considerations sim, the lower limit, basing upon this wise intima- ply to show you that these notions that if you tion that some time or other there might be a can prove that a man has stumbled over the trial under this section before a court that had statute it is essential that he should bear these a political bias and the judge might let the man penalties and these consequences find no supoff without any substantial punishment, he was port in reason, none in law, none in the Consti — met by the honorable Senator from Vermont tution, none in the good sense of this high tribu[Mr. EDMUNDS] and the honorable Senator nal, none in the habits and views of the great from Oregon, [Mr. WILLIAMS,] who seemed people whom we represent. Indeed,w6 should to have the conduct of the bill, at least in re- come under the condemnation of the speaker spect to these particular provisions, in the way in Terrence if we were to seek upon this narto which I will attract your attention. Mr. row, necessary view, as it is urged, of law such SVMNER said: consequences as I have stated: Summum jua "Shall we not in this case, where political opinion sope summa est malitia-an extremity of the:my intrude on the bench, make a provision that law is often the extremity of wickedness. shall at least secure a certain degree of punish- And now I am pre meAnd now I am prepared to consider the genMr. EDMUNDS defe"nded the unlimited dis-eral traits and qualities of this offense charged, Mr. EDtion D defended the unlimited dis- and I shall endeavor to pursue in the course retion of punishment. W said: of my argument a consideration, perhaps not BMr. FW1JLIMS said: always formal nor always exactly defined, of "I concur in the views expressed by the Senator three propositions: from'Vermont, for the reason, in the first that Tht the alleged ifractions of these penal this is a new offense created by statute, and it does 1. hat the al not define a crime involving moral turpitude, but statutes are not in themselves, nor in any qualrather a political offense; and there is some ground ity or color that has been fastened upon them to suppose that mistakes may be made under this law by persons in office; and I think that in such by the evidence in this cause, impeachable case there should be a large discretion left to the offenses. court." 2. Having an application to the same conSo much for indictment; so much for the clusion, that whatever else there is attendant, wise reasons of our legislators; and then, that appurtenant, or in the neighborhood of the being the measure and the reason, there is subjects thus presented to your consideration clamped upon this a necessary, an inevitable, they are wholly political and not. the subject an inexorable result that is to bring these vast of jurisdiction in this court or in any court, consequences to the State and to the respond- but only in the great forum of the popular ent. But even then you do not know or un- judgment, to be debated there at the hustings derstand the full measure of discretion, unless and in the newspapers by the orators and the 716 writers to whom we are always so much in- opprobrium may intimate, the fact is that it debted for correct and accurate views on sub- had no other object, had no other plan, would jects presented for such determination. If I have had no other consequences-I mean within shall have accomplished this I shall have the limits of this indictment and of this proofaccomplished everything. I shall have drawn than to substitute for Mr. Stanton some other attention to the true dimensions in a constitu- citizen' of the United States that by and with tional view of the crime alleged even if it has the advice and consent of the Senate should be been committed, and shall have shown by a approved for that high place, or to fill it until reflex application of. the argument that it is that advice and consent should be given by mere error and confusion, perhaps pardonable some legal ad interim holder of the office, not in an impeaching authority, but unpardonable filling it, but discharging its duties. in a court of judgment, to Jconfound things If, then, the removal had been effected, if political with thlings criminal. the effort to assert a constitutional authority And then, third, I shall ask your attention by the President had been effectual, no preto the precise traits and facts as disclosed in tense is made, or can be made, that anything the evidence charged in the articles, and bring would have been accomplished that could be you, I think, to a safe, an indisputable, firm, considered as a turning of the Government or an; thorough conclusion that even the alleged any branch of its service out of the authority infractions of penal law have none of them, in of law. Neither did it in purpose or consefact, taken place. quences involve any change in the policy of the Now, let us look at this criminality in the Executive of the United States in the War point upon which, in the largest view of any Department or in its management. Whatever evidence in support of it given on the part of there might have been of favor or support in the Managers, it must turn. We must sep- public opinion, in political opinion, in the arate, at least for the purpose of argument, wishes and feelings of the Congresses of the the innuendoes, the imputations, the aggra- United States in favor of Mr. Stanton for that vations that find their place only in the ora- post, and however well deserved all that might tory of the Managers, or only in your own be, Senators cannot refuse to understand that minds as conversant with the political situ- that does not furnish a reason why the offense ation and enlisted zealously in the rightful committed by a change of the head of a Departcontroversies which belong to it as a political ment should be exaggerated into a crime against situation, and we are then to treat the subject the safety of the State. in this method: that up to twelve o'clock on But I think we may go further than that, and February the 21st, 1868, the President was in- say that however great may have been the nocent and unimpeachable, and at one o'clock credit with the Houses of Congress and with on the same day he was guilty and impeach- the people or with the men of his own party able of the string of offenses that fill up all the which the Secretary of War, Mr. Stanton, articles except that devoted to the speeches, enjoyed, it cannot be denied that there was a the tenth; for whatever he did was done then general and substantial concurrence of feeling at that point of time, leaving out the Emory in this body, among all the public men in the article, which relates to a conversation on the service of the Government, and among the morning of the 22d, and which I also should citizens in general, that the situation disclosed have excepted from these observations. What to public view and public criticism of an antaghe did was all in writing. What he did was onism betweenthe head of aDepartmentandthe all public and official. What he did was com- President of the United States was not suitable municated to all the authorities of the Govern- to the public service, and was not to be encourment having relation to the subject. There- aged as a situation in the conduct of the execufore you have at once proposed for your con- tive government, and that there was a general sideration a fault, not of personal delinquency, opinion among thoughtful and considerate peonot of immorality or turpitude, not one that ple that however much the politics of the,disparages in the judgment of mankind, not Secretary of War might be regarded as better one that degrades or affects the position of the than the politics of the President, if we would malefactor; it is, as Mr. Senator WILLIAMS uphold the frame of government and recognize truly said, a "new offense," also, an offense the official rights that belong to the two posik"not involving turpitude, and rather of a tions, it was a fair and just thing for the Presipolitical character." dent to expect that the retirement should take Now, too, upon these proofs the offense car- place on the part of the Secretary rather than ries no consequences beyond what its action that he, the President, should be driven to a indicates, to wit: a change in the head of a forced resignation himself, or to the necessity Department. It is not a change of the De- of being maimed and crippled in the conduct partment. It is not an attempt to wrest a of the public service. Iepartment or apply an office against the law, It follows necessarily, then, that the whole contrary to the regulations of the Government, criminality, in act, in purpose, and in conseand turn its power against the safety or peace quence, that in this general survey we can of the State; not in the least. Whatever im- attach to the imputed offense, is a formal conaginations may suggest, whatever invective and travention of a statute. I will not say how 717 criminal that may be. I will not say whether constitutional is no law at all. The learned absolute, undeviating, inflexible, perfect obe- Manager, Mr. BOUTWELL, speaks of a law bedience to every law of the land may not be ing, possibly he says, capable of being annulled exacted under the penalty of death from every- by the judgment of the Supreme Court. Why, body holding public station. That is matter the Supreme Court never annuls a law. There of judgment for. legislators; but nevertheless is not any difference in the binding force of the morality, the policy, the quality of the the law after the Supreme Court has annulled transaction cannot be otherwise affected than it, as he calls it, from what there was before. so far as the actual punishments of the statute The Supreme Court has no political function; are made applicable. When you consider that it has no authority of will or power to annul this new law, thus passed, really " reverses a law. It has the faculty of judgment, to disthe whole action of this Government" in the cern what the law is, and what it always has language of Senators and Representatives who been, and so to declare it. spoke in its behalf during its passage; that in Apply it to an indictment under this very the language of the same debaters it " revolu- statute, and supposing the law is unconstitutionizes the practice of the Government;" and tional for the purpose of argument, what is the when you consider that the only person in the result? Is the man to be punished because he United States that this law, in respect to re- has violated the law and the Supreme Court moval from office, was intended or by its terms has not as yet declared it unconstitutional? could affect was the President of the United No; he comes into court and says, "'I have States; that nobody else was subject to the violated no law." The statute is read; the law; that it was made a rule, a control, a Constitution is read; and the judge says, restraint, a mandate, a direction to nobody else "' You have violated no law." That is the in the United States except the President, just end of the matter; and he does not want to as distinctly as if it had said in its terms, " If appeal to the discretion of the court in the the President of the United States shall remove measure of punishment or to the mercy of the from office he shall be punished by fine and Executive in the matter of pardon. He has imprisonment;" and when you know that by done what was right, and he needs to make no at least debated and disputed contests it was apology to Congress or anybody else, and claimed that the President of the United States Congress, in so far as it has not protected the had the right toremove, and that an inhibition public servant, rather owes an apology to him. upon that right was a direct assertion of con- I shall consider this matter more fully heregressional authority aimed at the President in after; and now look at it only in the view of his public trust, duty, and authority of carry- fixing such reduced and necessarily reduced ing on the executive government, you can then estimate of the criminality imputed as makes at once see that by a necessary exclusion and it impossible that this should be an impeachconclusion, however much the act may have able offense. been against the law in fact as on subsequent Much has been said about the duty of the judgment may be held by this or any other people to obey and of officers to execute uncourt, yet it was an act of that nature, for- constitutional laws. I claim for the President bidden under those circumstances, and to be no greater right in respect to a law that operattempted under those obligations of duty, if ates upon him in his public duty, and upon him attempted at all, which give it this quality, and exclusively, to raise a question under theConyou see at once that no rhetoric, that no argu- stitution to determine what his right and what ment, that no politics whatever can fix upon his duty is, than I claim for every citizen in his tl4e offense, completed or attempted, any other private capacity when a law infringes upon his quality than this: a violation of a law, if it constitutional and civil and personal rights; shall be so held, in support of and in obedience for to say that Congress has no right to pass to the higher obligation of the Constitution. unconstitutional laws, and yet that everybody Whenever anybody puts himself in that posi- is to obey them just as if they were constitution, nobody can make a crime of it in the tional and to be punished for breaking them moral judgment, in the judicial determination. just as if they were constitutional, and to be In sentence and measure of punishment, at prevented from raising the question whether least, if not in formal decision and judgment, they are constitutional by penal inflictions that no man can make a crime of it. are to fall upon them whether they succeed in We are treated to the most extraordinary proving them unconstitutional or not, is, of view on the subject of violating what is called course, trampling the Constitution and its dean unconstitutional law. Why, nobody ever fense of those who obey it in the dust. Who violates an unconstitutional law, because there will obey the Constitution as against an act of never is any such obstacle to a man's action, Congress that invades it if the act of Congress freedom, duty, right, as an unconstitutional with the sword of its justice can cut off his laws The question is whether he violates law, head and the Constitution has no power to save not whether he violates a written paper pub- him, and nothing but debate hereafter as to lished in a statute-book, but whether he vio- whether he was properly punished or not? lates law; and the first lessons under a written The gentlemen neglect the first, the necessary Constitution are and must be that a law un- conditions of all constitutional government,, 718 when they press upon us arguments of this the assertion of peaceable and civil claims of nature. right by penal enactments. It is for that reaBut again, the form alleged of infraction of son that our communities and our law-givers this law, whether it. was constitutional or un- have always frowned upon any attempt to constitutional, is not such as to bring any person coerce the right of appeal under any restricwithin any imputation, I will not say of formal tions or any penalties of costs of a character infraction of the law, but of any violent, willful oppressive. Civil rights are rights valuable use and extent of resistance to or contempt of and practical just according as people can avail the law. Nothing was done whatever but to themselves of them,. they keeping the peace-;, issue a paper and have it delivered, which puts and the moment you put the coercion of punthe posture of the thing in this condition and ishment upon the assertion of a right, a claimed nothing else: the Constitution, we will sup- right, in a manner not violating the peace and pose, says that the President has a right to not touching the public safety, you. infringe remove the Secretary of War; the act of Con- one. of the necessary liberties of every citizen. gress says the President shall not remove the Although I confess that I feel great relucSecretary of War; the President says, I" I wiMl tance, and it is contrary to my own taste andissue an official order which will raise: the same judgment very much to mingle what is but a, question between my conduct and the statute low level of illustration and argument with so& that the statute raises between itself and the grave and. general a subject as determining the Constitution." As there is not and cannot be dimensions and qualities of an impeachable and never should be a- reference of a law ab- offense, yet, on the other hand,: day after day it stractly to the revision and determination of is pressed upon you that a formal violation of the Supreme Court or of any other court, which. a statute, although made under the claim of a would be making it a council of revision and constitutional right and duty honestly felt and of superior and paramount political and legis- possessed by the President, is nevertheless alative authority, so when the Constitution and ground of impeachment, not to be impeded or a law are or are supposed to be at variance and prevented by any of these considerations; and inconsistent everybody upon whose right this hence I am induced to ask your attention to inconsistency intrudes has a right under the what is but an illustration of the general prinusual ethical conditions of conduct of good ciple, that penal laws shall not be enforced in citizenship to put himself in a position to act regard to an intent which is governed by a claim under the Constitution and not under the law. of right. And this singular case occurred: And thus the President of the United States, a poacher who had set his wires within the as it is all on paper thus far-the Constitution domain of a lord of the Mnanor had caught a is on paper, the law is on paper-issues an pheasant in his wires; the gamekeeper took order on paper which is but an assertion of the possession of the wires and- of the dead pheas-Constitution and a dehial of the law, and that ant, and then the poacher approaches him by paper has legal validity if the Constitution sus- threats of violence, which would amount to tains it, and is legally invalid and ineffectual, a robbery, not larceny, takes from him the wires mere imbelle telumn, if the law prohibits it and and the dead pheasant, and-the poachersituated the law is conformed to the Constitution. in that way on other's dominions, and thus putTherefore it appears that nothing was done ting himself in a condition where thehumanity but the mere course and process of the exer- of the law can hardly reach and protect him, is cise of right claimed under the Constitution. brought into question and tried for robbery;. without force, without violence, and making and Vaughan, Baron, says: nothing but the attitude, the assertion which, "If the prisoner demanded the wires under the if questioned, might raise the point for judicial honest impression that he had a right to them determination. though he might be liable to a trespass in setting I~~determination. ~them, it would not be a robbery. The gamekeeper Now, Senators, you are not, you cannot be had a right to take them, and when so taken they unfamiliar with the principle of our criminal never could have been recovered from him by th.e prisoner; yet still, if the prisoner acted under the law, the good sense, the common justice of honest belief that the property in them continued in'which, although it sometimes. is pushed. to ex4 himself. I think it is not a robbery. If, however, he tremes, approves itself to every honest mind, used it merely as a pretense, it would be robbery. The question for the jury is, whether the prisoner that criminal punishments, under any form did honestly believe he had a property in the snares of statute definitions of crime, shall never be and pheasant or not."-1 Russell on; Crimes, 872. made to operate upon acts even of force and Thus does the criminal law of a free people violation that are or honestly may be believed distinguish between technical and actual fault; to be done under a claim of right. It is for and what mean the guarantees of the Constithis purpose that the animus, the intent, the tution, and what mean the principles and the animnusfurandi in case of larceny, the malice habits of English liberty, that will not allow prepense in a case of murder, the intent ne- anybody enjoying those liberties to be drawn cessary in every crime, is made the very sub- into question criminally upon any technical or stance of the crime, and nothing is felt to be formal view of the law to be administered by more oppressive, and nothing has fewer prece- hide-bonnd authority or.judges established and. dents in the history of our legislation or. of our devoted to the prosecution of crime; what judicial decisions, than any attempt to coerce mean those fundamental provisions of our lib 719 erty, that no man shall be put on trial on an question whether this act was constitutional accusation of crime, though formally commit- Well, now, he ought to have been impeached! ted, unless the grand jury shall choose to bring He ought to have had the Senate and the court him under inculpation, and that when thus of appeals of New York convened on him and: brought under inculpation he shall not be con- been removed from office I The idea of a canal demned by any judge or magistrate, but the auditor setting himself up against what the warm and living condemnation of his peers learned Manager calls law l He set himself shall be added to the judicial determination, up in favor of law and against its contravenor he shall go free? Surely we have not for- tion, and the question was carried through the gotten our rights and our liberties and upon supreme court of that State, and the supremen what they rest, that we should bring a Presi- court of that State, decided that the law was dent of the United States under a formal ap- constitutional, but upon an appeal to the court paratus of iron operation that by necessity if of appeals that court held it unconstitutional, you set it agoing shall, without crime, without and the $6,000,000 loan was rolled away as- a fault, without turpitude, without moral fault scroll, needing to be fortified by an indemnifyeven of violating a statute that he believed to ing proceeding amending the. constitution and be a statute binding upon him, bring about extending its provisions. this monstrous conclusion-I do not mean in Now, I should like to know if the President any condemnation of it, but monstrous in its of the United States, who has taken an oath to dimensions-of depriving him of his office and preserve, protect, and defend the Constitution the people of the country of an executive head? of the United States, in reference to a law that Mr. CONKLING. Mr. President, I move is made over his head and on his right, and an intermission of fifteen minutes. over and on nothing else in this nation, cannot The motion was agreed to; and at the ex- appeal to the Constitution? And when he does piration of the recess the Chief Justice resumed make the appeal is the Constitution to answer the chair and called the Senate to order. him, through the House of Representatives, Mr. EVARTS. I am quite amazed, Mr. "We admit, for argument, that the law is unconChief Justice and Senators, at the manner in stitutional; we admit it operates on you and which these learned: Managers are disposed to your trust-right, and nothing else; we admit bear down.upon people thatobey the Constitu- that you were going to raise the constitutional tion to the neglect or avoidance of a law. It question, and yet the process of impeachment is the commonest duty of the profession to ad- is the peril under which you do that, and its vise, it is the commonest duty of the profes- ax is to cut off your head for questioning an sion to maintain and defend the violation of a unconstitutional law that operates upon your law in obedience to the Constitution; and in right and contravenes that Constitution which the case of an officer whose duty is ministerial, you have sworn to protect and defend in every whose whole obligation in his official capacity department of the Government, on and for the is to execute or to give free course to a law, Legislature, on and for the judiciary, on and even when the law does not bear at all upon for the people, on and forthe executive power?" him or his rights, the officer may appeal to How will our learned Managers dispose of this the courts if he acts in good faith and for the case of Newell, the auditor, against the people purpose of the public service,.and with a view of the State of New York-a worthy, an upof ascertaining by the ultimate tribunal in right, a useful, a prosperous assertion in the season to prevent public mischiefs, whether the common interest and for the maintenance of Constitution or the law is to be the rule of his the constitution, of a duty to the people? conduct and whether they be at variance. Anid are we such bad citizens when we adLet me ask your attention to a case in Sel- vise that the Constitution of the United States den's Reports in the New York court of ap- may be upheld, and that anybody, without a peals, (3 Selden, page 9,) the case of Newell, breach of thie peace and in an honest purpose, the auditor of the canal department, in error, may make a case that the instance may be against the People. The constitution of the given whereby the judgment of the court may State of N'ew York contains provisions restrict- be had and the Constitution saved from violaive upon the capacity or power of the Legisla- tion? Not long since the State of New York ture to incur public debt. The Legislature, passed a law laying a tax on brokerage sales deeming it, however, within its right to raise in the city of New York of a half or three money for the completion of the canals upon fourths per cent. on all goods that should be a pledge of the canals and their revenues, not sold by brokers, seeking to raise for the reveincluding what may be called the personal nue purposes of the State of New York about obligation of the State, a dry mortgage as it ten million dollars on the brokers' sales of were, not involving debt, but only carrying the merchandise, which sales distribute through pledge, undertook to and did raise a loan of the operations of that emporium the commerce $6,000,000. Mr. Newell, the canal auditor, of the whole country for consumption through when a draft was drawn upqn him in his offi- all the States of the Union. Your sugar, your cial capacity, which it became him as a minis- tea, your coffee that you consume in the valley terial officer, obedient to the law, to honor and of the Mississippi was to be made to pay a tax proceed upon, refused it honor, and raised the in the city of New York, to support the State 720 of New York in its government by that tax; There were various other.acts of this great,, and they made it penal for any broker to sell heroic, good President-the arrest of the memwithout giving a bond and paying the tax. Was bers of the Legislature of Maryland, never jusit very wicked for me when all the brokers tified by any law or any constitution that I were in this distress, to advise them that the know of, but wholly justified by duty to the shortest way to settle that matter was not to country. And it so happens, what every give the bond; and when one of them, one of statesman knows as the experience of governthe most respectable citizens of the city, was ment, that public action.is to be judged by indicted by the grand jury for selling coffee public men and public officers as private acwithout giving a bond, and it came before the tions are to be judged by private men, accordcourts, instead of having, as I supposed when ing to the quality of the act, whether it shall I gave my advice, to come up to the Supreme be impeached or whether it shall be indemniCourt of the United States, to vindicate the fled. Constitution of the United States, I had the I do not seek this argument as going further good fortune to succeed in the court of appeals than to meet the necessity which I understand of the State of New York itself, that court these learned Managers put forth that an inholding that the law was unconstitutional, and fraction of a statute must carry out of office the indictment failed. Was I a bad citizen for any President of the United States who is so saving the Constitution of the United States guilty. Why, the very next statute in the book against these infractions of law? Was the de- before me, after the civil-office-tenure act, on fendant in the indictment a bad citizen for page 232 of the volume, is an act to declare undertaking to obey, the Constitution of the valid and conclusive certain proclamations of United States? Where areyourconstitutional the President and acts done in pursuance decisions-McCulloch vs. Maryland; Brown thereof, or of his orders, for the suppression vs. Maryland; the bank-tax cases-all these of the late rebellion against the United States. instances by which a constitution is arrayed The military commissions had been declared for the protection of the rights which it secures? invalid by the Supreme Court, and we have an It is always by instances, it is always by acts, act of indemnity covering a multitude of forand the only ethical condition is that it shall mal, technical sins by indemnity and protecbe done without a breach of the peace and in tion to have the same effect as if the law had good faith. been passed before they were performed. So, How is it with people in office that violate, therefore, this dry, dead interpretation of law sometimes, the law? Is it true that they must and duty by which act, act, act, unqualified, necessarily be punished for it? Mr. Lincoln, unscrutinized, unweighed, unmeasured, is to before the "invasion" or " insurrection' broke form the basis of necessary action of the guilout, had raised the case of the Constitution lotine of impeachment, disappears wholly unfor the suspension of the habeas corpus, un- der the clear, bright, and honest light which dertook to arrest a mischief that was going on true statesmanship sheds upon the subject. at Key West, where, through the forms of I may as conveniently at this point of the peace, an attack was made upon the Govern- argument as at any other pay some attention to ment fort there through the habeas corpus. the astronomical punishment which the learned An excellent way to take a fort! I do not and honorable Manager [Mr. BoUTWELL]thinks know whether the honorable Manager, [Mr. should be applied to this novel case of imBUTLER,] who is so good a lawyer, tried that in peachment of the President. Cicero, I think it all his military experience or not, [laughter;] is, who says that a lawyer should know everybut the habeas corpus was resorted to down in thing, for sooner or later there is no fact in Florida to empty that fort of all its soldiers, history, in science, or of human knowledge that and was succeeding admirably. A judge issued will not come into play in his arguments. the habeas corpus; the soldier was brought Painfully sensible of my ignorance, being deout, and then he was free: and so the fort voted to a profession which "sharpens and would have been taken by habeas corpus. does not enlarge the mind," [laughter,] I yet President Lincoln suspended the habeas cor- can admire without envy the superior knowlpus, violating the law, violating the Constitu- edge evinced by the honorable Manager. Intion. Should he have been impeached? Is it deed, upon my soul, I believe he is aware of necessary that a man should be impeached? an astronomical fact which many professors of What did he do? He suspended it by procla- that science are wholly ignorant of. But nevermation of the 10th of May, 1861, to be found in theless, while some of his honorable colleagues volume twelve Statutes-at-Large, page 1260; were paying attention to an unoccupied and and at the opening of the next session he re- unappropriated island on the surface of the ferred to the fact that the legality of the meas- seas, Mr. Manager BOUTWELL, more ambitious, ures was questioned, and said they were ven- had discovered an untenanted and unapprotured upon under a public necessity, and sub- priated region in the skies, reserved, he would mitted to the judgment of Congress whether have us think, in the final councils of the there should be legislation or not. That is Almighty, as the place of punishment for confound on pages 12 and 13 of the Senate Journal, victed and'deposed American Presidents. first session7 Thirty-Seventh Congress, 1861. [Laughter.] 721 -~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ At first I thought that his mind had become test which reflects the hardest upon the other? so80 " enlarged" that it was not "sharp" enough [Laughter.] to observe that the Constitution had limited If I have been successful at all in determin. the punishment; but on reflection I saw that ing the general latitude of the imputed offense he was as legal and logical as he was ambitious as not bringing it, under the circumstances and astronomical, [laughter,] for the Consti- which this evidence attaches to it, to the quality tution has said " removal from office," and and grade of impeachable offenses, I may noz has put no limit to the distance of the removal, be prepared, and I hope with some commend[laughter,] so that it may be, without shed able brevity, to notice what I yet regard as imding a drop of his blood, or taking a penny of portant to the course of my argument, and his property, or confining his limbs, instant what I assigned as the second topic of it, to removal from office and transportation to the show that all else is political; but I wish to skies. [Laughter.] Truly, thls is a great un- draw your attention also to what I think is a dertaking; and if the learned Manager can matter of great moment, a matter of great cononly get over the obstacles of the laws of nature cern and influence for all statesmen, and for the Constitution will not stand in his way. He all lovers of the Constitution and of the councan contrive no method but that of a convul- try-to the particular circumstances under sion of the earth that shall project the deposed which the two departments of the Government President to this infinitely distant space; but now brought in controversy are placed. X a shock of nature of so vast an energy and for speak not of persons, but of the actual constiso80 great a result on him might unsettle even tutional possession of the two departments. the footing of the firm members of Congress. The office of President of the United States, We certainly need not resort to so perilous a in the view of the framers of the Constitution, method as that. How shall we accomplish it? and in the experience of our national history, Why, in the first place, nobody knows where and in the esteem of the people, and in the that space is but the learned Manager him- ambition of all who aspire to that great place self, and he is the necessary deputy to execute by worthy means, is an office of great trust thejudgmentofthe court. [Laughter.] and power. It has great powers. They are Let it then be provided that in case of your not monarchical or tending to monarchy, besentence of deposition and removal from office cause the tenure of the office, its source of the honorable and astronomical Manager shall original commission, and its return of the take into his own hands the execution of the trust to those who control it, and its amena sentence. With the President made fast to bility under the Constitution to this process his broad and strong shoulders, and, having of impeachment and the authority of Congress, already essayed the flightbyimagination, better save it from being at all dangerous to the libprepared than anybody.else to execute it in erties of the nation. Yet it is, and is intended form, taking the advantage of ladders as far to be, an office of great authority, and the as ladders will go to the top of this great Capi- Constitution in its coordinate department cantol, and spurning then with his foot the crest not be sustained without maintaining all the of Liberty, let him set out upon his, flight, authority that the Constitution has Intended [laughter,] while the two Houses of Congress for this executive office. But it depends for and all the people of the United States shall its place in the Constitution upon the fact, the sh'out " Sic itur ad astra." [Laulghter.] practical fact, that its authority is committed But here a distressing doubt strikes me; how by the suffrage of the people, and that when will the Manager get back? [Laughter.] IHe this authority is exerted it is not by individual wiU have got far beyond the reach of gravita- purpose or will, or upon the mere strength tioi to restore him, and so ambitious a wing which a single individual can oppose to the as his could never stoop to a downward flight, collective power of the Congress of the United Indeed, ashe passes through the constellations, States. It is because and as the people, who that famous question of Carlyle by which he by their suffrage have raised the President to derides the littleness of human affairs upon his place, are behind him, holding up his hands, the scale'bf the measure of the Heavens, speaking with his voice, sustaining him in his I" What thinks Biotes as he drives his hunting high duties, that the President has the place dogs up the zenith in their leash of sidereal and can maintain it under the Constitution. fire?"' will force itself on his notice. What, This great power is safe, then, to the people indeed, would Biiotes think of this new con- for the reasons I have stated, and it is safe to stellation? [Laughter.] the President because the people are behind Besides, reachingthis space, beyond the power him an'd have just exhibited their confidence of Congress even "to send for persons and bythe suffritgethathas promotedhim. When, papers," [laughter,] how shall he return, and however, alas, our Constitution comes to this how decide in the contest, there become per- trial that one is lifted to the presidential office sonal and perpetual, the struggle of strength who has not received the suffrage of the people between him and thePresident? [Laughter.] for that office, then at once discord, dislocaIn this new revolution, thus established forever, tion, deficiency, difficulty show themselves; who shall decide which is the sun and which is then at once the great powers of the office which the moon? Who determinethe only scientific were consonant with a free Constitution and C. I.-46. with the supremacy of popular will, by the fact ences, even in time of peace and of quiet, had that for a brief term the breath of life of the been urged so far in the Presidency of Mr. continuing favor of the people gave them effi- Tyler, that an impeachment was moved against cacy and strength, find no support in fact. him in the House of Representatives, and had Then it is that in the criticisms of the press, more than one hundred supporters; and yet, in the estimates of public men, in the views of when it was all over, nobody, I think, could the people, these great powers, strictly in trust have dreamed that there was anything in the and within the Constitution, seem to be despotic conduct of Mr. Tyler, in the matter complained and personal. And then, if we will give due of, that was just ground for impeachment. So, force to another difficulty that our system of too, in great part during the incumbency of vicious politics has introduced, and that is that Mr. Fillmore, elevated to the Presidency, his in the nomination for the two offices, selecting action and his course, tempered and moderated always the trueleader of the popular sentiment as it was by some of the personal qualities that of the time for the place of President, we look I have stated, was yet carried on in resistance about for a candidate for the Vice Presidency to the leading ideas of the party that had raised to attract minority and to assuage differences him to power. v and to bring in inconsistent support, and make Then the Opposition, seizing upon this ophim different from the President in political portunity, encourage the controversy, urge on position and in general circumstances for pop- the quarrel, but do not espouse it, and thus it ular support; and couple with the fact that I ends in the President being left without the have spoken of in the Constitution and which support of the currents of authority that underbelongs to it this vice in our politics, then when lie and vivify the Constitution of the United the Vice President becomes President of the States-the favor of the people; and so when United States, not only is he in the attitude of this unfortunate, this irregular condition of the not having the popular support for the great executive office concurs with times of great powers of the Constitution, but he is in the national juncture, of great and serious opprescondition of not having the party support for sion and difficulty of public affairs, then at the fidelity and maintenance of his authority once you have at work the special, the pecuthat are necessary. Then, adhering to his liar, the irregular operation of forces that original opinions, to the very opinions and po- expose the Constitution, left unprotected and litical attitude which form the argument for undefended with the full measure of support placing him in the second place of authority, that every department of the Government he is denounced as a traitor to his party and is should have to resist the other, pressing on to watched and criticised by all the leaders of that dangers and to difficulties that may shake and party. bring down the pillars of the Constitution itself. I speak not particularly in reference to the I suggest this to you as wise men, to underpresent presidential term and its incumbent, stand how out of circumstances for which no and the actual condition of politics here; I man is responsible, attributable to the working speak of the very nature of the case. All the of the Constitution itself, in this effort to propublic men, all the ambitious men, nay, all the vide a successor, and to the inattention paid men interested in the public service, in carry- to it in the suffrages of the people and the selecing on the Government for the purposes and tions of the politicians. how there is a weakwith the views, in the interest of duty, of the ness, and a special weakness, that the Presiparty, have made their connections, and formed dency is as it were an undefended fort, and their views, established their relations with the see to it that the invasion is not urged and President who has disappeared. They then made successful by the temptation thus preare not in the attitude of support, personal or sented. political, that may properly be maintained This exception, weakness of the Presidency among the leaders of a party, and that is im- under our Constitution, is encountered in the plied in the fact that an election has taken present state of affairs by an extraordinary place by the joint efforts, crowning in the final development of party strength in the Conresult the President of the selection of the gress. There are in the Constitution but three people. Then it is that high words are inter- barriers against the will of a majority of Conchanged. Then it is that ambitious men, who gress within the terms of their authority. One had framed their purposes, both for the present is that it requires a two-thirds vote to expel a and for the future, upon the footing of the member of either House; another that a twopresidential predomination that had l4een se- thirds vote is necessary to pass a law over the cured by the election, find these plans dislo- objections of the President; and another, that cated and disturbed; and then it is that if wis- a two-thirds vote of the Senate, sitting as a dom and prudence and the personal qualities court for the trial of impeachment, is requisite of pacification and: of accommodation and of to a sentence. And now how have these two attraction are wanting upon the one side and last protections of the executive office disapthe other, terrible evils threaten the conduct peared from the Constitution in its practical Qf the Government and the peace of the State. working by the condition of parties that has It was thus, as we all know by looking back to given to one the firm possession by a threethe experience of the Whig party, that- differ- fourths vote, I think in both Houses, of the 723 control of the action of each body of the Legis- effort of the President was, when the two-thirds lature? Reflect upon this. I do not touch majorities had urged the contest against him, upon the particular circumstance that the non- to raise a case for the Supreme Court to decide restoration of the southern States has left your and then the Legislature, coming in by its numbers in both Houses of Congress less than special condition of impeachment, intercepts they might under other circumstances be. I the effort and brings his head again within the do not calculate whether that absence dimin- mere power of Congress where the two-thirds ishes or increases the disproportion that there rule is equally ineffectual as between the parwould be. Possibly thei.rpresence might even ties to the contest. aggravate the political majority which is thus This is matter of grave import, of necessary arrayedandthusoverridespracticallyallthecal- consideration, and which, with the people of culations of the presidental protection through this country, with watchful foreign nations, and the guarantees of the Constitution * for, what in the eyes of history, will be one of the determdothe two-thirdsprovisions mean? They meant ining features of this great controversy; for that in a free country, where elections were dif- great as is the question in the estimate of the fused over a vast area,. no Congressman having Managers or of ourselves or of the public in. a constituency of over seventy or eighty thou- telligence of this people, of how great the.sand people, it was impossible to suppose that power should be on one side or the other, with there would not be a somewhat equal division Congress or with the President, that question of parties, or impossible to suppose that the sinks into absolute insignificance compared excitements and zeal of party could carry all with the greater and higher question, the questhe members of it into any extravagance. I tion that has been in the Constitution, that has do not call them extravagances in any sense been in the minds of philosophers, of pubof reproach; I merely speak of them as the licists, and of statesmen since it was founded, extreme measures that parties in politics, and whether it was in the power of a written conunder whatever motives, may be disposed to stitution to draw lines of separation and put adopt. up buttresses of defense between the coordinate Certainly, then, there isground to pause and branches of the Government? And with that consider before you bring to a determination question settled adversely with a determination this great struggle between the coordinate that one can devour, and having the power, branches of the Government, this agitation and will devour the other, then the balances of the this conclusion in a certain event of the ques- American Constitution are lost and lost fortion whether the coordination of the Consti- ever. Nobody can reinstate in paper what tution can be preserved. Attend to these has once been struck.down in fact. Mankind special circumstances and determine for your- are governed by instances, not by resolutions. selves whether under these influences it is best And then, indeed, there is placed before to urge a contest which must operate upon the the people of this country either despair at the framework of.the Constitution, and its future theory of paper constitutions, which have been unattended by any exceptions of a peculiar derided by many foreign statesmen, or else an nature that govern the actual situation. Ah, attempt to establish new balances of power by that is the misery of human affairs, that the which, the poise of the different departments stress comes and has its consequence when the being more firmly placed. one can be safe system is least prepared to receive it. It is the against the other. But who can be wiser than misery that disease, casual, circumstantial, in- our fathers? Who can be juster than they? vades the frame when health is depressed ard Who can be more considerate or more disinthepowers of the constitution to resist it ae terested than they? And if their descendants at the lowest ebb. It is that the gale rises and have not the virtue to maintain what they so sweeps the ship to destruction when there is wisely and so nobly established, how can these no sea-room for it and when it is upon a lee- same descendants hope to have the virtue and shore. And if concurrent with that danger to the wisdom to make a better establishment for the good ship, her crew be short, her helm un- their posterity? settled, and disorder begins to prevail, there Nay, Senators, I urge upon you to consider comes to be a final struggle for the maintenance whether you will not recoil from settling so of mastery against the elements and over the tremendous a subject under so special, so disonly chances of safety, how wretched is the advantageous, so disastrous circumstances as condition of that people whose fortunes are I have portrayed to you in the particular situembarked in that ship of state! ation of these branches of the Government. What other protection is there for the presi- A stronger Executive, with an absolute veto, dential office than these two-thirds guarantees with a longer term, with more permanent posof the Constitution that have disappeared? session and control of official patronage, will The Supreme Court placed there to determine, be necessary for the support of this executive among the remarkable provinces of its juris- department, if the wise and just and considerdiction, the lines of separation and of duty ate measure of our ancestors shall not prove, and of power under our Constitution between in your judgment, sufficient; or, if that be disthe Legislature and the President. Ah! under tasteful, if that be unacceptable, if that be this evidence, received and rejected, the very inadmissible, then we must swing it all over 724 into the omnipotence of Congress, and recur the theory and action of the Constitution, the to the exploded experiment of the Confedera- Government that by peaceful law is to main-' tion, where Congress was executive and legis- tain its authority, the process is simple; but lative, all in one. under our complex Government, according to There is one other general topic, not to be the theory and the practice, the interests and left unnoticed for the very serious impression the feelings, the restored Constitution surthat it brings upon the political situation which renders their domestic affairs at once to the forms the staple-I must say it-of the pressure local governments of the people who have on the part of the Managers to make out a been in rebellion. And then arises what has crime, a fault, a danger that should enlist your formed the staple of our politics for the last action in the terrible machinery of impeach- four years, what has tried the theory, the wisment and condemnation. I mean the very dom, the courage, the patriotism of all. It is peculiar political situation in the country itself how far under the Constitution as it stands the and in the administration of this Government General Government can exercise absolute over the people of the country which has been control in the transition period between war the womb from which has sprung this disorder and absolute restored peace, and how much and conflict between the departments of the found to be thus unmanageable shall be comGovernment. I can, I think, be quite brief mitted to changes of the Constitution. And about it, and certainly shall not infringe upon when we understand that the great controany of the political proprieties of the occasion. versy in the formation of tlie Constitution itThe suppression of an armed rebellion and self was how far the General Government should the reduction of the. revolted States to the be intrusted with domestic concerns, and when power of the Government, when the region the final triumph and the general features of and the population embraced in the rebellion the Constitution that the people of the States were so vast, and the head to which the revolt were not willing, in the language of Mr. Ellshad come was so great, and the resistance so worth, to intrust the General Government continuous, left a problem of as great difficulty with their domestic interests, we see at once in human affairs as was ever proposed to the how wide, how dangerous, how difficult the actions of any Government. The work of arena of controversy of constitutional law and pacification would have been a severe task for of difference of opinion as. to what was or is any Government after so great a struggle, when constitutional, and if it be not of what changes so great passions were enlisted, when so great shall be or ought to be made in the Constituwounds had been inflicted, when so great dis- tion to meet the practical situation. contents had urged the controversy, and so Then when you add to this that'as people much bitterness had survived its formal settle- divide on these questions, and as the practiment; but wonderful to say, with his situation, cal forces on one side and the other are the so difficelt as to surpass almost the powers of loyal masses and the rebel masses, whoever Government as. exhibited in any former in- divides from his neighbor, from his associate, stance in the history of the world, there occurred from his party adherents in that line of cona special circumstance that by itself would stitutional opinion and in that line of governhave tasked all the resources of statesmanship mental action, which seems to press least under even a simple Government. I mean changes upon the Constitution and least conthe emancipation of the slaves, which had trol upon the masses lately in rebellion, will thrown four millions of human beings, not by be suspected and charged and named and the processes of peace but by the sudden blow called an ally of traitors and rebels, you have:of war, into the possession of their freedom, at once disclosed how our dangerous politics.which had changed at once, against their will, have been brought to the head in which these the relation of all the rest of the population to names of "traitor" and of "rebel," which these men that had been their slaves. belong to war, have been made the current The process of adaptation of society and of phrases of political discussion. law to so grave a social change as that, even I do not question the rectitude nor do I when accomplished in peace, and when not question the wisdom of any positions that have disturbed by the operations of war and by the been taken as matter of argument or as matdiscontents of a suppressed rebellion, are as ter of faith or as matter of action in the dismuch as any wisdom or any courage, or any position of this peculiar situation. I only atprosperity that is given to government, can tract your attention to the necessities and expect to ride through in safety and peace. dangers of the situation itself. We were in When, then, these two great political facts con- the condition in which the question of the cur and press upon the Government that is surrender to the local communities of their responsible for their conduct, how vast, how domestic affairs, which the order of the Condifficult, how intractable, and unmanageable stitution had arranged for the peaceful situaseems the posture tion, became impossible without the gravest But this does not represent the measure or dangers to the State both in respect to the even the principal feature of the difficulty. public order and in respect to this changed When the Government whose arms have tri- condition of the slaves. umphed and suppressed resistance is itself, by In English history the Commons were urged, 725 after they had rejected the king from the Brit- une, written under the instructions of this ish constitution and found the difficulty of trial and put with great force and skill. I do making things work smoothly, stare super an- not propose to read it. I bring it here to show tiquas vias; but, said Sergeant Maynard, "It and to say that it is an excellent series of aris not the question of standing upon the an- tides of impeachment against the President cient ways, for we are not.on them." The of the United States within the forum of poliproblem of the Constitution is, as it was then, tics for political repugnancy and obstruction, how to get upon the ancient ways from these and an honest confession that the technical and paths that disorder and violence and rebellion formal crimes included in these articles are of had forced us into; and here it was that the very paltry consideration. That is an excelexasperations and the exacerbations of poli- lent article of impeachment demanding by protics came up mingling with charges of infi- cess suitable to the forum an answer; and for delity to party and with treason, moral treason, the discussions of the hustings and of the elecpolitical treason, I suppose, to the State. How tion, there it belongs; there it must be kept. many theories did we have? But this being a court, we are not to be tried In this Senate, if I am not mistaken, one for that inwhich we are not inculpated. How,very influential and able and eloquent Senator wretched the condition of him who is to be thus was disposed to press the doctrines of the Dec- oppressea by a vague, uncertain shadow which laration of Independence into being working he cannot oppose or resist! If the honorable ~ forces of our constituted liberty, and a sort of Managers will go back to the source of their pre-constitutional theory was adopted to suit authority, if they will obtain what was once dethe logical and political difficulties of the case. nied them, a general and open political charge, In another House a great leader was disposed it may, for aught I know, be maintainable in to put it upon the transconstitutional necessi- law; it may be maintainable in fact; but then ties that the situation itself imposed in perfect it would be brought here; it would be written peace as in absolute and flagrant war. And down; its dimensions would be known and thus it was that minds trained in the old school, understood; its weight would be estimated; attached to the Constitution, unable as rheto- the answer could be made. ricians or as reasoners to adopt these learned And then your leisure and that of the nation phrases and these working theories of pre- being occupied with hearing witnesses about constitutional or transconstitutional authority political differences and the question of politiand obligation, were puzzled among the ruins cal repugnance and obstruction upon the side of society that the war had produced; and of the President, those who should be honored thus, as it seems to me, we find these concur- with his defense in that political trial would at ring dangers leading ever to an important and least have the opportunity of reducing the force necessary recognition by whoever has to deal of the testimony against them and of' bringing with them of the actual and practical influences opposing and contravening proofs; and then, that they have upon the controversy. at least, if you would have a political trial, you And now let me urge here that all this is would have it with name and with substance to within the province of politics; and a free rest upon. But the idea that a President of people are unworthy of their freedom and can- the United States is to be brought into the not maintain it if their public men, their chosen procedure of this court by a limited accusation, servants, are not able to draw distinctions be- found' not guilty" under that, and convicted tween legal and constitutional offense and on an indictment that the House refused to odious or even abominable politics. Certainly sustain, or upon that wider indictment of the it i: so.. Idem sentire de republica, to agree newspaper press, and without an opportunity in opinion concerning the public interest, is to bring proof or to make arguments on the the bond of one party, and diversity from subject, seems to us too monstrous for any those opinions the bond of the other; and intelligence within or without this political where passions and struggles of force in any circle, this arena of controversy, to maintain form of violence or of impeachment as an for a moment. engine of power come into play, then freedom I may hope, somewhat briefly, to draw your has become license, and then party has be- attention to what lies at the basis of the discome faction, and those who do not withhold cussion of thepower and authority that may be their hand until the ruin is'accomplished will rightfully exercised or reasonably be assumed be subject to that judgment that temperance in the action of the President to be exercised, and fortitude and patience were not the ade- even if it should prove erroneous within the quate qualities for their conduct in the situa- premises of this matter between the two tion in which they were placed. Oh, why not branches of the Government. wise enough to stay the pressure till adverse The coordination of the powers of Governcircumstances shall not weigh down the State? ment is not only the greatest effort in the frame Why not in time remember the political of a written constitution, but I think it must be wisdom — conceded that as it occupies the main portion " Beware of desperate steps. The darkest day, of the Constitution itself, so it has been regarded Live till to-morrow, will have passed away." by all competent critics at home and abroad to I hold in my hand an article from the Trib- have been a work most successfully accomr 726 puished by the framers of our Government. of nobility, of the fountain of honor, of time, Indeed, if you will look at the Constitution, you of strength, of inheritance, how under a sufwill find that beyond that very limited though frage and for a brief period to make an Execvery important service, of dividing what belongs utive that is strong enough to maintain itself to Government and what shall be left to the against the contentions of the Constitution? liberties of the people, and then discriminating Under these circumstances, and adjustingthe between what shall be accorded to the General balance as it is found in the Constitution, our Government and what shall be left to the ancestorsdisposedofthequestion. Ithas served domestic governments of the States, the whole us to this time. Sometimes, in the heat of service of the Constitution is to build up these party, the Executive has seemed too strong; three departments of the Government so that sometimes, in the heat of party, Congress has they shall have strength to stand as against the seemed too strong; yet' every contest and every others, and not strength to encroach or over- danger passes away, managed, administered, throw. controlled, protected by the great, superior, preMuch has been said about Congress as being dominant interest and power of the people the great repository of power. Why, of course themselves. And the essence of the Constituit is. It is the repository of power and of will, tion is, that there is no period granted by it of, and there is not any difficulty in making Con- authority to the Senate in their six years' gress strong enough. Congress, that must be term, to the President in his four years' term, intrusted with all the strings of power and to the House of Representatives in their two furnished with all its resources, the effort of years' term, no period that cannot be lived the Constitution is to curb and restrain; and through in patience subordinate and obedient so you will find that a4most all the inhibitions to the Constitution; and that, as was said in of the Constitution are placed upon Con- the debate which I read from the Convention, gress-upon Congress in withholding it from applied to the particular topic of impeachment, power over the people; from Congress in with- there will be no danger when a four years' holding it from power over the States; from recurring election restores to the common Congress in withholding it from power over master of Congress and the Executive the the coordinate branches; and, nevertheless, trust reposed, that there will be a temptation by a necessary and absolute deposit of author- to carry for political controversy and upon ity in Congress, it is left master of the whole. political offense the sword of the Constitution, This power of Parliament in the British con- and make it peremptory and final in the destitution makes the Commons masters of the struction of the office. Government. To what purpose is it to pro- I beg leave, in connection with this subject, vide that the justices of the Supreme Court its delicacy, its solicitudes in the arrangement shall hold their tenure for life, and that their of constitutional power, to read two passages salaries shall not be diminished during the from a great statesman, whose words when he term of their service, when Congress, by an was alive were as good as anybody's, and undoubted constitutional power, may omit and since his death have not lost their wisdom with refuse to appropriate one dollar to the sup- his countrymen; I mean Mr. Webster. In his port of any particular justice during any par- debate upon the Panama mission he said, in ticular year or series of years? Nevertheless, speaking of the question of the confidence of the Government is to be administered by men, Congress in the Executive: and in an elective government the trust is that "This seems a singular notion of confidence. and the selected agents of the people will be faith- certainly is not my notion of that confidence which the Constitution requires one branch of the Governful to their interest and will be endowed with ment to repose in another. The President'is not our sufficient intelligence to protect them. agent but, like ourselves, the agent of the people. But simple as is the constitution of the judi- They have trusted to his hands the proper duties of his office; and we are not to take those duties out of ciary, and needing no care, when you come to his hands from any opinion of our own that we should the executive authority arises the problem execute them better ourselves. The confidence which which has puzzled, does puzzle, will puzzle, all is due from us to the Executive and from the Executive to us is not personal, but official and constituframers of government having no source and tional. It has nothing to do with individual likings no ideas of authority except what springs from or dislikings; but results from that division of power the elective suffrage. You have the balance among departments and those limitations on the of the British constitution between the Crown fauthorityame of our Government. Itwould beunfotunate, and the Parliament, because it rests upon ideas indeed, if our line of constitutional action were to and traditions and experience which have vibrate backward andforward according to ouropinions of persons, swerving this way to-day from undue framed one portion of the Government as attachment, and the other way to-morrow from disspringing up from the people andin their right, trust or dislike. This may sometimes happen from and the other portion of the Government as the weakness of our virtues or the excitement of our descending from Divine authority and in its mended but s trust ihtwful cotr be of olly blreconright; and you have no difficulty in enlarging, duct."- Webster's Works, vol. 3, p. 187. confirming, and bracing up the authority of Again, in his speech on the presidential Parliament, provided you leave standing the protest in the Senate in 1834, he said: authority and majesty of the throne. But "The first object of a free people is the preservahere the problem is, how, without the support tion of their liberty, and liberty is only to be pre — 727 served by maintaining constitutional restraints and The Journal of yesterday's proceedings of Rust division of political power. Nothing is more the Senate, sitting for the trial of the impeachdeceptive or more dangerous than the pretense of a desire to simplify government. The simplest Gov- ment, was read. ernments Are despotisms; the next simplest, limited The CHIEF JUSTICE. The first business monarchies; but all republics, all Governments of in order is the motion of the Senator from law, must impose numerous limitations and qualifi- assachusetts, r. S which the Seecations of authority and give many positive and Massachusetts [Mr. SUMNER,] which the Secmany qualified rights. Ire other words, they must be retary will read. subject to rule and regulation. This is the very es- The Chief Clerk read as follows: sence of free political institutions. The spirit of liberty is, indeed, a bold and fearless spirit; but it Whereas Mr. Nelson, one of the counsel f6r the is also a sharp-sighted spirit; it is a cautious, saga- President, in addressing the Senate, has used disorcious, discriminating, far-seeing intelligence; it is derly words, as follows, namely: beginning with perjealous of encroachment, jealous of power, jealous sonalities directed to one of the Managers he proof man. It demands checks; it seeks for guards; it ceeded to say: " So far as any question that the geninsists on securities; it intrenches itself behind strong tleman desires to make of a personal charnacer with defenses, and fortifies itself, with all possible care, me is concerned, this is not the place to mak.e it. Let against the assaults of ambition and passion. It does him make it elsewhere if he desires to do it;" and not trust the amiable weaknesses of human nature, whereas such language, besides being discreditable and, therefore, it will not permit power to overstep to these proceedings, is apparently intended to proits prescribed limits, though benevolence, good in- yoke a duel or to signify a willingness to fight a duel, tent, and patriotic purpose come along with it. contrary to law and good morals: Therefore, Neither does it satisfy itself with flashy and tempo- Ordered, That Mr. Nelson, one of the counsel of.ary resistance to illegal authority. Far otherwise. the President, has justly deserved the disapprobaIt seeks for duration and permanence; it looks be- tion of the Senate. fore and after; and, building on the experience of ages which are past, it labors diligently for the ben- Mr. JOHNSON. Mr. Chief Justice, I move qofit of ages to come. This is the nature of consti- to lay the resolution on the table. tutional liberty; and this is our liberty, if we will Mr. SUMNER. nthatIask for theyeas rightly understand and preserve it. Every free Government is necessarily complicated, because all such and nays. Governments establish restraints, as well on the The yeas and:nays were ordered; and the power of Government itself as on that of individuals. Chief Clerk called Mr. ANTHONY'S name. If wee will abolish the distinction of branches, and have but one branch; if we will abolish jury trials, Mr. ANTHONY. Before voting on this I and leave all to the judge; if we will then ordain should like to ropose a question to the counthat the legislator shall himself be that judge; and el, and I willo it n writing, or, if the Senate if we will place the executive power in the same se and I wll o it w r, f the Senate hands, we may readily simplify government. We will allow me, I will do it verbally. may easily bring it to the simplest of all possible The CHIEF JUSTICE. If there is no obforms, a pure despotism. But a separation of depart- jection the Sen ments, so far as practicable, and the preservation of on the Senator from Rhode Island can clear lines of division between them, is the funda- propose a question. mental idea in the creation of all our constitutions: Mr. ANTHONY, I wish to ask of the counand, doubtless, the continuance of regulated liberty sel if, in the remeen quoted depends on maintaining these boundaries."- Web- se ark which has been quoted in ster's Work8, vol. 4, p. 122. the resolution, it was his intention to challenge I think I need to add nothing to these wise, the Manager alluded to to a mortal combat? these discriminating, these absolute and per- Mr. NELSON. It is a very difficult quesemptory instructions ofthis distinguished states- tion for me to answer. During the recess of man. The difficulty and the danger are exactly the Senate the day before yesterday the honwhere this Government now finds them in the orable gentleman [Mr. Manager BUTLER] rewithholding of the strength of one department marked to me that he was going to say somefrom working the ruin of another. thing upon the subject of Aita Vela, and deMr. CONKLING. Mr. President, I move sired me to remain. When the gentleman read an adjournment for the day. his remarks to the Senate I regarded them as "The motion was agreed to; and the Sen- charging me with dishonorable conduct before ate, sitting for the trial of the impeachment, the Senate, and in the heat of the discussion adjourned. I made use of language which was intended to signify that I hurled back the gentleman's charge upon him, and that I would answer that ATHURSDAY, pril 30, 1868. charge in any way in which the gentleman deThe Chief Justice of the United States took sired to call me to account for it. I cannot the chair. say I had particularly the idea of a duel in my The usual proclamation having been made mind, as I am not a duelist by profession; by the Sergeant-at-Arms, but, nevertheless, my idea was that I would The Managers of the impeachment on the answer the gentleman in any way in which he part of the House of Representatives and the chose to call upon me for it. I did not intend counsel for the respondent, except Mr. Stan/ to claim any exemption on account of age or bery and Mr. Curtis, appeared and took the any exemption on account of other things that seats assigned to them respectively. are apparent to the Senate. That was all that The members of the House of Representa- I meant to signify, and I hope the Senate will tives, as in Committee of the Whole, preceded recollect the circumstances under which this by Mr. E. B. WASHBURNE, chairman of that thing was done. The Senate has treated me committee, and accompanied by the Speaker and every other gentleman concerned in this and Clerk, appeared and were conducted to the case with the utmost kindness and politeness, seats provided for them. and has given marked attention to what -we 728 have said, and the idea of insulting the Senate eroy, Sherman, Stewart, Sumner; Thayer, Tipton, is a thing that never entered my mind. I had Williams, Wilson, and Yates-17. no such thought or design. I entertain the NOT VOTING-Messrs. Cole, Conness, Henderson, kindest feelings and the most respectful feel- So the order and amendment were laid upon ings toward the Senate, and would be as far the table. as any man upon the face of the earth from he E saying anything which would justly give offense The CHIEF JUSTWE. Mr. Evarts will to the gentlemen of the Senate whom I was proceed with the argument for the President. addressing. Mr. EVARTS. We perceive then, Mr. Chief Mr. SUMNER. Mr. President, I ask that Justice and Senators, that the subject out of theMr. SUMNER. Mr. President, I ask that which this controversy has arisen between the The Chief Clerk read the resolution. two branches of the Government, executive The CHIEF JUSTICE. The Secretary will and legislative, touches the very foundations proceed with the call of the roll on the motion of the balanced powers of the Constitution; to lay on the table., and in the arguments of the honorable Man-.The qestion being taken by yeas and nays, agers it has to some extent been so pressed upon qresulte -yeas35 lays 10* as follows: your attention. You have been made to beresulte-eas o35y,,nays 10; as follows: C lieve that so weighty and important is the YEAS-Messrs. Anthony, Bayard Buckalew, Dixon.Cat- point in controversy as to the allocation of the tell, Chandler, Corbett, Cragin, Davis, Dixon, Doo- r over office included in the function of little, Drake, Edmunds, Ferry, Fessenden, Fowler, power over office included in the function of Frelinghuysen, Grimes, Harlan, Hendricks, Howe, removal that if it is carried to the credit of Johnson, Morrill of Maine, Morton, Norton, Pat- the executive department of this Government terson of New Hampshire. Patterson of Tennessee, kes it a mona Ramsey, Ross, Saulsbury, Sherman, Tipton, Trum- it makes it a monarchy. Why, Mr. ChiefJusbull, Van Winkle, Vickers, and Williams-35. tice and Senators, what grave reproach is this NAYS-o Messrs. Cameron, IH-oward, Morgan, Mor- upon the wisdom and foresight and civil prurill of Vermont, Pomeroy, Stewart, Sumner, Thayer, Wilson, and Yates-10. dence of our ancestors that have left unexamNOT VOTING-Messrs. Cole, Conkling, Conness, ined and unexplored and unsatisfied these Henderson, McCreery, Nye, Sprague, Wade, and doubts or measures of the strength of the ExWillSo the resolution was laid upon the tabley9 ecutive as upon so severe a test or inquiry of So the resolution was laid upon the table. being a monarchy or a free republic? I ask being a monarchy or a free republic? I ask The CHIEF JUSTICE. The next business your attention to a passage from the Federalist, in order is the order proposed by the Senator in one of the papers by Alexander Hamilton, from Pennsylvania, [Mr. CAMERON,] which the who meets in advance these aspersions that Secretary will read. were sought to be thrown upon the establishThe Chief Clerk read as follows: ment of the executive power in a President. Ordered, That the Senate, sitting as a court of im- He there suggests in brief and solid discrimipeachment, shall hereafter hold night sessions, com- nations the distinctions between the Presmencing at eight o'clock p. m. to-day, and continu- idency ing until eleven o'clock p. m., until the arguments y: of the counsel for the President and of the Man- "The President of the United' States would be an agers on the part of the House of Representatives officer elected by the people forfour years; the king shall be concluded. of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment _MTvr. SUMNER. I move to strike out all and disgrace; the person of the other is sacred and after the word "Ordered," and insert what I inviolable. The one would havea qualiJiednegative send to the Chair. upon the acts of the legislative body; the other has rThe CHIEF JUSTICE. The words pr- an absolute negative. The one would have a right to iThe WCHIEF JUSTICE~l. The words pro- command the mili;taryandnaval forces of thenation;: posed to be inserted will be read. the other, in addition to this right, possesses that of The Chief Clerk read as follows: declaqrirg war and of raising and regulating fleets and armies by his own authority. The one would have a That the Senate will sit during the remainder of concurrent power with a branch of theLegislature in the trial from ten o'clock in the forenoon to six the formation of treaties; the other is the sole pos. o'clock in the afternoon, with such briefrecess as may sessor of the power of making treaties. The one be ordered. would have alike concurrent authority in appointing - Mr. SUMNER. On that I should like to to offices; the other is the sole author of all appointMr. SUMNER. On that I should like to ments. The one can confer no privileges whatever; have the yeas and nays. the other can make denizens of aliens, noblemen of Mr. TRUMBULL. Mr. President, I move commoners, can erect corporations with all the rights whole subject on the table incident to corporate bodies. The one can prescribe to lay this whole subject on the table. ino rules concerning the commerce or currency of the Mr. SUMNER. On that I ask for the yeas nation; the otherisin severalrespects the arbiter of and nays. commerce, and in this capacity can establish markets The yeas and nays were ordered; and being and fairs, can regulate weights and measures, can lay The yeas and nays were ordered; and being embargoes for a' limited time, can coin money, can taken, resulted-yeas 32, nays 17; as follows: authorize or prohibit the circulation of foreign coin; YEAS-Messrs. Anthony, Bayard, Buckalew, Cat- The one has no particle of spiritual jurisdiction; the tell, Corbett, Davis, Dixon, Doolittle, Drake, Ferry, other is the supreme head and governor of the naFessenden, Fowler,'Frelinghuysen, Grimes, Hend- tional church I What answer shall we give to thosd ricks, Howe. Johnson, McCreery, Morrill of Maine, who ould persuade us that things so unlike resemMorrill of Vermont, Morton, Nrton, Patterso of ble each other? The same that ought to be given to New Hampshire, Patterson of Tennessee, Ramsey, those who tell us that a Government, th e whole power Ross, Saulsbury, Sprague, Trumbull, Van Winkle, of which would be in the hands of the elective and Viekers, and W'illey-32. periodical servants of the people, is an aristocracy, NAYS-Messrs. Cameron, Chandler, Conkling, amonarchy, and adespotism." Cragin, Edmunda, Harlan, Howard, Morgan, Pomr- But a little closer attention both to the his 729 tory of the framing of the Constitution and to question of the maintenance of official power the opinions that maintained a contest in the in the country, you change wholly the question body of the Convention which should finally of the Constitution; and instead of giving the determine the general character and nature Senate only the advisory force which that of the Constitution will show us that this matter instrument commits to it, and only under the of the power of removal or the control of office, cdnditions that the office being to be filled they as disputable between the Executive and the have nothing to say but who shall fill it, and Senate, touches more nearly one of the' other if they do not concur still leave it to the Execugreat balances of the Constitution; I mean tiveto name another and another and another, that balance between the weight of numbers always proceeding from his original and prinin the people and the equality of States, irre- cipal motion in the matter, you change it to spective of population, of wealth, and of size. the absolute preliminary power of this body to Here it is, if I may be allowed to say so, that say to the Executive of the United States that the opinions to which my particular attention every administrative office under him shall rewas drawn by the honorable Manager, [Mr. main as it is, and these officers shall be over BOUTWELL,] the opinions of Roger Sherman, him and against him provided they be with and had their origin. One of the most eminent for you; and when you add to that the power statesmen of the last generation said to me to say " until we know and determine who the thatit was to Mr. Sherman and to his young col- successor will be, until we get the first move league, Mr. Ellsworth, and to Judge Paterson, by the Executive's concession to us of the sucof New Jersey, that we owed it, more than to all cessor, we Pold the reins of power that the else in that Convention, that our Government office shall not be vacated," you do indeed was made what that statesman pronounced it break down at once the balance between the to be, the best Government in the world, a executive and the legislative power as repreFederal Republic, instead of being what it sented in this body of the latter department would have been but for those members of the of the Government, and you break down the Convention, as this same statesman of the last Federal election of President at once, and comgeneration expressed it, a consolidated empire, mit to the equality of States the partition and the worst Government in the world. distribution of the executive power of this Between these two opinions it was that the country. controversy whether the Senate should be ad- I would like to know how it is that the peomitted into a share of the executive power of ple of this country are to be made to adopt official appointment, the great arm and strength this principle of their Constitution that the of the Government came into play; and as a executive power attributed to the Federal part of his firm maintenance of the equality of members, made up of Senators and Reprethe States Mr. Sherman insisted that this parti- sentatives added together for each State, is to cipation should be accorded to the Senate; go through the formality of the election of a and others resisted as too great a subtraction President upon that principle and upon that from the sum of executive power to be capa- calculation, and then find that the executive ble safely of this distribution and frittering power that they supposed was involved in that away. Mr. Adams, the first President of that primary choice and expression of the public name, I am informed upon authority not will is to be administered and Controlled by a doubted, bringing it to me from the opinion body made up of the equality of States. I of his grandson, died in the conviction that would like to know on what plan our politics even the participation in appointment that the are to be carried on; how can you make the Constitution, as construed and maintained in combinations, how the forces, how the interthe practice of this Government, accorded to ests, how the efforts that are to throw themthe Senate, would be the point upon which the selves into a popular election to raise a presConstitution would fail; that this attraction of idential control of executive power, and then power to comparatively irresponsible and un- find that that executive power is all adminnoticed,administration in the Senate would istered on the principle of equality of States, ultimately so destroy the strength of the Exec- I would like to know how it is that New York utive with the people and create so great dis- and Pennsylvania and Ohio and Indiana and content with the people themselves that the Illinois and Missouri and the great and growExecutive of their own choice upon the Federal ing States are to carry the -force of popular forces and numbers which the Constitution will into the executive chair upon the Fed. gives to that election would not submit to the eral numbers of the Electoral Colleges, and executive power thus bestowed being given to then find that Rhode Island and Delaware a body that had its constitution without any and the distant States unpeopled are to conpopular election whatever, and had its men- trol the whole possession and administration bers and strength made up not by the wealth of executive power. I would like to know and power and strength of the people, but by how long we are to keep up the form of electthe equality of the States. ing a President with the will of the people When you add to that this change which gives behind him and then find him stripped of the to the Senate a voice in the removal from office, power thus committed to him in the partition and thus gives them the first hold upon the between the States without regard to numbers 730 or to popular opinion. There is the grave dis- hold of the question of removals; and now location of the balances of the Constitution; this act, which we are to consider more defithere is the absolute destruction of the power nitely hereafter, does not assume.in terms to of the people over the presidential authority, give the Senate a participation in the distinct keeping up the form of an election, but de- and separate act of an executive nature, the, priving it of all its results. And I would like removal from office. Indeed, the manner that to know, if by law or by will this body thus the Congress has dealt with the subject is quite assumes to itself this derangement of the bal- peculiar. Unable, apparently, to find adeances of the Constitution as between the States quate support for the pretension that the Senand popular numbers, how long New England ate could claim a share in the distinct act of can maintain in its share of executive power, removal or vacating of office, the scheme of. as administered here, as large a proportion as the law is to change the tenure of office, so that belongs to New York, to Pennsylvania, to removability as a separate and independent Ohio, to Indiana, to Illinois, and to Missouri governmental act, by whomever to be exerted, together. is obliterated from the powers of this GovernI must think, Mr. Chief Justice and Sen- ment. Look at that, now, that you do absoators, that there has not been sufficiently con- lutely strike out of the capacity and resources sidered how far these principles thus debated of this Government the power of removing an reach,,and how the framers of the Constitu- officer as a separate executive act; I mean an tion,when they came to debate in the year 1789 executive act in which you participate. You in Congress what was or should be the actual have determined by law that there shall be no and practical allocation of this authority, un- vacation of an office possible, except when and derstood the question perfectly in its bearing as and by the operation of completely filling it. and in its future necessities. And so far have you'carried that principle that True, indeed, Mr. Sherman was always a you do not even make it possible to vacate it stern and persistent advocate for the strength by the concurrence of the Senate and the Presof the Senate as against the power of the Ex- ident; but you have deliberately and firmly ecutive. It was there, on that point, that the determined that the office shall remain full as Senate represented the equality of States; and an estate and possession of the incumbent, he and Mr. Ellsworth, holding their places in from which he can be removed under no stress the Convention as the representatives of Con- of the public necessity except by the fact ocnecticut, a State then a small State, between curring of a complete appointment for permathe powerful State of Massachusetts on the nent tenure of a successor concurred in by one side and New York on the other; and the Senate and made operative by the new Judge Paterson, of New Jersey, the represent- appointee going into and qualifying himself ative of that State, a small State, between the in the office. great State of New York on the one side and This seems at the first sight a very extraordithe great State of Pennsylvania on the other, nary provision for all the exigencies of a Govwere the advocates, undoubtedly, of this dis- ernment like ours, with its forty thousand offitribution of power to the Senate; and, as is cers, whose list is paraded here before you, with well known in the history of the times, a cor- their twenty-one millions of emoluments, to respondence qf some importance took place show -the magnitude of the great prize conbetween the elder Mr. Adams and Mr. Sher- tended for between the Presidency and the man, in the early days of the working of the Senate. It is a very singular provision, doubtGovernment, as to whether the fears of Mr. less, that in a Government which includes Adams that the Executive would prove too under it forty thousand officers there should weak or the purposes of Mr. Sherman that the be no governmental possibility of stopping a Senate should be strong enough were or were man in or removing him from an office except not most in accord with the principles of the by the deliberate succession of a permanent Government. But all that was based upon the successor approved by the Senate and conidea that the concurrence of the Senate, under curred in by the appointee himself going to ihe terms of the Constitution, in appointment, the place and qualifying and assuming its was the only detraction from the supremacy duties. and independence of executive authority. I speak the language of the act, and while Now, this question comes up in this form, the Senate is in session there is not any power the power of removal is, and always has been, of temporary suspension or arrest of fraud or claimed and exercised by the Executive in violence, of danger or menace, in the conduct this Government separately and independently of the subsisting officer. When you are in of the Senate. Until the act of March 2, recess there is a power of suspension given to 1867, the actual power of removal by the the Executive, and we are better off in that Senate never has been claimed. Some con- respect when you are in office than when you structions upon the affirmative exercise ofthe are in session, for we can, by'a peremptory power of appointment by the Executive have and definite and appropriate action, arrest mis. at different times been suggested, and received conduct by suspension. But as I said before, more or less support, tending to the conclu- I repeat, under this act the incumbents of all sior that thus the Senate might have some these offices have a permanent estate until a 731 successor, with your consent and his own, is the Executive of all responsibility by robbing inducted into the office. it of what is the pith of responsibility, discreI do not propose to discuss (as quite unne- tion. eessary to any decision of any matter to be The same honorable Senator proceeds, in passed on in your judgment) at any very great another point of the debate: length the question of the constitutionality of "Iknowthere is room for disagreement ofopinion; this law. A very deliberate expression of but it seemed to me thatif werevolutionize the pracopinion, after a ve~ry~ valuable and thorough tice of the Government in all other respects, we might let this power remain in the hands of the Presdebate, conducted in this body, in which.the ident of the United States"reasons on each side were ably maintained by That is, the Cabinet officers' appointment — your most distinguished members, and a very "that we ought not to strip him of this power, which thorough consideration in the House of Rep- is one that it seems to mne it is necessary and reasonresentatives, where able and eminent lawyers, able that he should exercise."-Ibid., p. 384. some of whom appear among the Managers The honorable Senator from Michigan. [r. to-day, gave the country the benefit of their HOWARD] says: knowledge and their acuteness, have placed "iI agree with him"this matter upon a legislative judgment of con- Referring to the Senator from Indiana [Mr. stitutionality. But I think all will agree that HENDRICKS]a legislative judgment of constitutionality does "that the practical precedents of the Government not conclude a court, and that when legislative thus far lead to this interpretation of the Constitujudgments have differed, and when the prac- tion, that'it is competent for the President during tice of the Government for eighty years has the ecess of the Senate to turn out of office a present incumbent and to fill his place by commissioning been on one side and the new ideas introduced another. This has been, I admit, the practice for are confessedly of reversal and revolution in long years and many generations; but it is to be obthose ideas, it is not saying too much to sa served at the same time that this claim of power on those ideas, it is not saying too much to say the part of the Executive has been uniformly conthat after the expression of the legislative will, tested by some of the best minds of the country."and after the expression of theopinionof the Ibid., p. 407. Legislature implied in their action, there yet And now, as to the weight of mere legislawould remain for debate among jurists and tive construction, even in the mind of a legislawyers, among statesmen, among thoughtful lator himself, as compared with other sources citizens, and certainly properly within the of authoritative determination, let me ask your province of the Supreme Court of the United attention to some other very pertinent observaStates, the question whether the one or the tions of the honorable Senator from Oregon, other construction of the Constitution, so vital [Mr. WILLIAMS: ] in its influence upon the Government, was the "Those who advocate the executive power of recorrect and the safe course for the conduct of moval rely altogether upon the legislative constructhe Government. tion of the Constitution, sustained by the practice the Government. and opinions of individual men. I need not argue Let me ask your attention for a moment upon that the legislative construction of the Constitution two points, to the question as presenting itself has no binding force. It is to be treated withproper to the minds of the Senators, as to whether respect; but few constructions have been put upon to the mindo of the Senators, as to whether r3the Constitution by Congress at one time that have this was or was not a reversal and revolution not been modified or overruled at other or subsequent in the practice and theories of the Government, times; so that, so far as the legislative construction of the Constitution upon this question is concerned, and also as to the weight ofalegislative opinion. it is entitled to very little consideration."-Ibid., In the Senate, the Senator from Oregon [Mr. p. 439. WILLIAMS] said: The point in the debate was that the legislai " This bill undertakes to reverse what has hereto- tive construction of 1789 has worked into the fore been the admitted practice of the Government; bones of the Government by the indurating and it seemed to me that it was due to the exalted process of practice and exercise was a conoffice of the President of the United States, the Chief Magistrate of the nation, that he should exercise struction of powerful influence on the matter; this power; that he should be left to choose his own and yet the honorable Senator from Oregon Cabinet,ind that he should be held responsible a justy pushestion that egislative he will be, to the country for whatever acts tlat stl pseth e proposition that legislative Cabinetmayperform."-Congressional Globe, Thirty- construction per se-that I may not speak disNinth Congress, second session, p. 384. respectfully, I speak his words —"that legisThis Senator touches the very marrow of lative construction is entitled to very little conthe matter, that when you are passing this bill, sideration: "1 that it has "no binding force." which in the whole official service of this coun- Shall we be told that a legislative construction try reverses the practice, you should at least of March 2, 1867, and a practice under it for leave the exception of the Cabinet officers in. one year that has brought the Congress face That was the point; leaving them entirely in, to face with the Executive and introduced the and that, with that exception in, it was a re- swordofimpeachmentbetweenthetwobranches versal of the practice of the Government to all upon a removal from office, raising the precise the rest, and the Cabinet should be left as question that an attempt by the President to they were, because, as he said wisely, the coun- remove a Secretary and appoint an ad interim try will hold the Executive responsible for discharge of its duties is to result in a removal what his Cabinet does; and they will so hold by the Senate of the Executive itself and the him until they find out that you have robbed appointment of one of its own membors to the 732 ad interim discharge of the duties of the Pres- that this Government has ever entertained or idency? That is the issue made by a recent canvassed. And it was a debate in which the legislative construction. civil prudence and forecast of the debaters But the honorable Senator from Oregon, with manifested itself, whichever side they took of great force and wisdom, as it seems to me, the question, in wonderful wisdom, for the proceeded in the debate to say that the courts premises of the Constitution were very narrow. of law, and, above all, the Supreme Court of Most probably the question of removal from the United States, were the place to look for office as a distinct subject had never occurred authoritative, for permanent determinations of to the minds of men in the Convention. The these constitutional questions; and it will be tenure of office as not to be made permanent found that in this he but followed the wisdom except in the case of the justices of the Sushown in the debate in 1789 and in the final preme Court, and the periodicity of the House result of it, in which Mr. Sherman concurred of Representatives, of the Senate, and of the as much as any member of that Congress, that Executive were fixed. Then there was an atit was not for Congress to name or assign the tribution of the whole inferior administrative limits upon executive power by enactment nor official power of the Government to the Exto appropriate and confer executive power by ecutive as being an executive act, with the endowment through an act of Congress, but to single qualification, exceptional in itself, that leave it, as Mr. White, of North CaPolina, said, the advice and consent of the Senate should and as Mr. Gerry, of Massachusetts, said, and be interposed as a negative upon presidential as Mr. Sherman, of Connecticut, said, for the nomination carrying him back to a substitute Constitution itself to operate upon the Foreign- if they should not agree on the first nominee. Secretary act, and let the action be made under The point raised was exactly this, and may it by virtue of a claim of right under the Con- be very briefly stated: those who, with Mr. stitution, and whoever was aggrieved let him Sherman, maintained that the concurrence in raise his question in the courts of law. And removals was as necessary as the concurrence upon that resolution and upon that situation of in appointments put themselves on a proposithe thing the final vote was taken, and the tion that the same power thatappointed should matter was disposed of in that Congress; but have the removal. That was a little begging it was then and ever since has been regarded as of the question-speaking it with all respectan authentic and authoritative determination as to who the appointing power was really of that Congress that the power was in the Presi- under the terms and in the intent of the Con. dent, and it has been so insisted upon, so acted stitution. But, conceding that the connection upon ever since, and nobody has been aggrieved, of the Senate with the matter really made them and nobody has raised the question in the courts a part of the appointing power, the answer to of law. That is the force and the weight of the argument, triumphant as it seems to me, the resolution of that First Congress and of the as it came from the distinguished speakers, practice of the Government under it. Mr. Madison, Mr. Boudinot, Fisher Ames, and In the House of Representatives, also, it was other supporters of the doctrine that finally a conceded point in the debate upon this bill, triumphed, was this: primarily the whole busiwhen one of the ablest lawyers in that body, ness of official subordinate executive action is as I understand by repute, Mr. WILLIAMS, one a part of the executive function; that being of the honorable Managers, in his argument for attributed in solido to the President, we look to the bill, said: exceptions to serve the turn and precise meas"It aims at the reformation of a giant vice in the ure of their own definition, and discard that administration of this Government by bringing its falsest principle of reasoning in regard to laws practice back from a rule of its infancy and inexpe- or in regard to conduct, that exception is to breed exception or amplification of exception. He thought it was a faulty practice, but that The general mass is to lose what is subtracted it was a practice, and that. from its infancy from it by exception, and the general mass is to the day of the passage of the bill it was a to remain with its whole weight not thus sepVice inherent in the system and exercising its arately and definitely reduced. When, therepower over its action he did not doubt. He fore, these statesmen said you find the freedom admits, subsequently, in the same debate that of executive action and its solid authority rethe Congress of 1789 decided, and their suc- duced by an exception of advice and consent cessors for three quarters of a century acqui- in appointment you must understand that that esced in this doctrine. is the limit of the exception, and the executive I will not weary the Senate with a thorough power in all other respects stands unimpaired. analysis of the debate of 1789. Itis, I believe, What, then, is the test of the consideradecidedly the most important debate in the tion? Whether removal from office belongs history of Congress. It is, I think, the best to the executive power, if the Constitution has considered debate in the history of the Govern- not attributed it elsewhere; and then the quesment. I think it included among its debaters tion was of statesmanship, whether this debate! as many of the able men and of the wise men, was important, whether it was vital, whether the benefit of whose public service this nation its determination one way or the other did has ever enjoyed, as any debate or measure affect seriously the character of the Govern 733 ment and its working; and I think all agreed the people themselves, they in their primary that it did, and all so agreeing, and all coming capacity acting through the authentic changes to the resolution that I have stated, what weight, of their Government, by election, brought into what significance is there in the fact that the the Senate, upon this challenge, a majority party that was defeated in the argument sub- that expunged the resolution censuring the mitted to the conclusion and to the practice of action of the Executive. You talk about power the Government under it, and did not raise a to decide constitutional questions by Congress, voice or take a vote in derogation of it during power to decide them by the Supreme Court, the whole course of the Government? power to decide them by the Executive. I But it does not stand upon this. After forty- show you the superior power of all that has five years' working of this system, between the been drawn into the great debate, of public years 1830 and 1835, the great party exacer- opinion and the determination of the suffrage, bations between the Democracy, under the lead and I say that the history of free countries, the of General Jackson, and the Whigs, under the history of popular liberty, the history of the mastery of the eminent men that then filled power of the people, not by passion or by viothese Halls, the only survivor of whom, emi- lence, but by reason, by discretion andpeaceful, nent then himself and eminent ever since, now silent, patient exercise of their power, was does me the honor to listen to my remarks, never'shown more distinctly and more defi[referring to Hon. Thomas Ewing, of Ohio,] nitely than on this very matter, whether it is a then under that antagonism there was renewed part of the executive power of this country or the great debate; and what was the measure of the legislative or senatorial power, that which the contesting party, under the influence removal from office should remain in the Exof party spirit, brought the matter to? Mr. ecutive or be distributed among the Senators. Webster said while he led the forces in a great It was not my party that was pleased or that array, which, perhaps, for the'single instance was triumphant, but of the fact of what the combined the triumvirate of himself, Mr. Cal- people thought there was not any doubt, and houn, and Mr. Clay, that the contrary opinion there never has been since until the new situaand the contrary practice was settled. He tion has produced new interests and resulted in said: "I regard it as a settled point; settled new conclusions. by construction, settled by precedent, settled Honorable Senators and Representatives by the practice of the Government, settled by will remember how in the debate which led to legislation;" and he did not seek to disturb it. the passage of the civil-tenure act it was repHe knew the force of those forty-five years, resented that the authority of the First Congress the whole existence of the nation under its of 1789 ought to be somewhat scrutinized beConstitution upon a question of that kind; and cause of the influence upon their debates and he sought only to interpose a moral restraint conclusions that the great character of the upon the President in requiring him, when he Chief Magistrate, President Washington, might removed from office, to assign the reasons of have produced upon their minds. Senators, the removal.. why can we not look at the present as we look General Jackson and the Democratic party at the past? Why can we not see in ourselves met the point promptly with firmness and with what we easily discern as pssible ith thoroughness, and in his protest against a reso- others? Why can we not appreciate it that lution which the Senate had adopted in 1834, perhaps the judgments of Senators and of RepI think, that his action in the removal of Mr. resentatives now may have been warped or Duane (though they brought it down finally, I misled somewhat by their opinions and feelings!elieve, to the point of the removal of the toward the Executive as it is now filled? I deDosits) had been in derogation of the Consti- apprehend, therefore, that this matter of party tution and the laws, he met it with a defiance uence is one that is quite as wise to conin his protest which brought two great topics sider, and this matter of personal power in of debate up; one the independence of the authority of character and conduct is quite as Executive in its right to judge of constita- suitable to be weighed when we are acting as tional questions, and the other the great point when we are criticising the action of others. that the conferring by choice of the people Two passages I may be permitted to quote upon the President of their representation from this great debate as carried on in the through Federal numbers, was an important Congress of 1789. One is from Mr. Madison part of the Constitution, and that he was not a at page 480 of the first volume of the Annals of man of his own will, but endued and reinforced Congress: by the will of the people. That debate was " It is evidently the intention of the Constitution bythewi of thepeople.Tat debate ws that the first magistrate should be responsible for carried on and that debate was determined by the the executive department. So far, therefore, as we Senate passing a vote which enacted its opinion do not make the officers who are to aid him in the that his conduct had been in derogation of the duties of that department responsible to. him, he is Constitution and the laws; and on this very not responsible to his country. Again, is there no Cnstitut:n and the laws; and on this very danger that an officer, when he is appointed by the point a reference was made to the common concurrence of the Senate, and has friends in that master of them all, the people of the United body, may choose rather to risk his establishment on States and upon a retlection of General Jack- he favor of that branch than rest it upon the disStates; and upon a reelection of General Jack- charge of his duties to the satisfaction of the execuson and upon a confirmation of opinion from tive branch, which is constitutionally authorized t 734 inspect and control his conduct? And if it should dent to remove the person at the head of that bureau happen that the officers connect themselves with the at his pleasure. One party maintained it was an Senate, they may mutually support each other, and absolute right. The other insisted that it was subject for want of efficacy reduce the power of the President to the same restriction of a ratification by the Senate to a mere vapor; in which case his responsibility whichisrequiredwhentheofficerisappointed. After would be annihilated, and the expectation of it un- a long contest in the House of Representatives, termjust. The high executive officers, joined in cabal inating in favor of the unrestricted construction, the with the Senate, -would lay the foundation of discord, bill came up to the Senate for its approbation. and end in an assumption of the executive power, "This case was peculiar and highly important. By only to be removed by a revolution in the Govern- an anomaly in the Constitution, which, upon any ment. I believe no principle is more clearly laid recognized theory, it is difficult to defend, the Senate, down in the Constitution than that of responsibility." which, in the last resort, is made the judicial tribunal Mr. Boudinot, (page 487,) said: to try the President for malversation in office, is like"Neiter. Boudinottis ( pag e 487r) s aid: wise clothed with the power of denying him the "Neith-er this clause [of ipeachment] nor any agents in whom he may choose most to confide for the other goes so far as to say it shall be the only mode faithful execution of the duties of his station, and of removal; therefore, we may proceed to inquire forcing him to select such as they may prefer. If, in what the other is. Let us examine whether it be- addition to this, the power of displacing such as he longs to the Senate and President. Certainly, sir, found unworthy of trust had been subjected to the there is nothing that gives the Senate this right in same control, it cannot admit of a doubt that the express terms; but they are authorized, in express Government must, in course of time, have become words, to be concerned in the appointment. And does an oligarchy, in which the President would sink into thisnecessarily include the power ofremoval? If the a mere instrument of any faction that might happen President complains to the Senate ofthemisconduct to be in the ascendant in the Senate; this, too, at of an officer, and desires their advice and consent to the same time that he would be subject to be tried by the removal, what are the Senate to do? Most cer- them for offenses in his department, over which he tainly they will inquire if the complaint is well could exercise no effective restraint whatever. In founded. To do this they must call the officer be- such case the alternative is inevitable, either that fore them to answer. Who, then, are the parties? he would have become a confederate with that facThe supreme executive officer against his assistant; tion, and therefore utterly beyond the reach of punand the Senate are to sit as judges to determine ighment by impeachment at their hands for offenses whether sufficient cause of removal exists. Does not committed with their privity, if not at their dictathis set the Senate over the head of the President? tion, or else,in case of his refusal, that he would have But suppose they shall decide in favor of the officer, been powerless to defend himself against the parawhat a situation is the President then in, surrounded lyzing operation of their ill-will. Such a state of by officers with whom, by his situation, he is com- subjection in the executive head to the Legislature is pelled to act, but in whom he can have no confi- subversive of all ideas of a balance of powers drawn dence, reversing the privilege given him by the Con- from the theory of the British Constitution, and renstitution, to preventhis having officersimposed upon ders probable at any moment a collision, in which him who do not meet his approbation?" one side or the other, and it is most likely to be the In these weighty words of Mr. Boudinot and Legislature, must be ultimately annihilated. " Yet, however true these views may be in the abMr. Madison is found the marrow of the whole stract, it would scarcely have caused surprise if their controversy. There is no escaping from it. soundness had not been appreciated in the Senate. If this body pursue the method now adopted The temptation to magnify their authority is commonly all-powerful with public bodies of every kind. they,.must be responsible to the country for the In any other stage of the present Government than action of the executive department; and if the first it would have proved quite irresistible. officers are to be maintained, as these wise But throughout the administration of General Washington there is visible among public men a degree statesmen say, over the head of the President, of indifference to power and place which forms one then that power of the Constitution which of the most marked features of that time. More allowed him to have a voice in their selection than once the highest Cabinet and foreign appointallowed him to have a voice n their selection ments went begging to suitable candidates, and is entirely gone; for I need not' say that if it is begged in vain. To this fact it is owing that public to be dependent upon an' instantaneous selec- questions of such moment were then discussed with tion, and thereafter there is to be no space of as much of personal disinterestedness as can probably ever be expected to enter into them anywhere. repentance or no change of purpose on the Yet even with all these flavoring circumstances it part of the Executive as new acts shall de- soon became clear that the republican jealousy of a.velop themselves and new traits of character centralization of power in the President would comvelop themselves and new traits of character bine with the esprit du corps to rally at least half the shall show themselves in the incumbent, it is Senate in favor of subjecting removals to their conidle to say that he has the power of ap- trol. In such a case the responsibility of deciding pointment. It must be the power of appoint- the point devolved, by the termsof the Constitutionu pointment. It must be the power of appoint-4 upon Mr. Adams, as Vice President. The debate ment from day to day; that is the power, of was continued from the 15th to the 18th of July, a appointment for which he should be held re- very long time for that day in an assembly compris-'sponsible, if he is to be responsible at all. I ing only twenty-two members when full, but seldom more than twenty in attendance. A very brief abwish to ask your attention to the opinions ex- stract, the only one that has yet seen the light, is pressed by some of the statesmen who took furnished in the third volume of the present work. part in this determination of what the effect, Mr. Adams appears to have made it for the purpose of framing his own judgment in the contingency and the important effect, of this conclusion of which he must have foreseen as likely to occur. The the Congress of 1789 was. None of them finalvotewastakenonthel8th. NineSenatorsvoted overlooked its importance on one side or the will subject the P ent's power of removal to the will of the Senate: Messrs. Few, Grayson, Gunn, other; and I beg leave to read from the life and Johnson, Izard, Langdon, Lee, Maclay, and Winworks of the elder Adams, at page 448 of the gate. On the other hand, nineSenators voted against first volume, the interesting comments of one, claiming the restriction: Messers. Bassett, Carrolnd Dalton, Elmer, Henry, Morris, Paterson, Head, and himself a distinguished statesman, in whom Strong. The result depended upon the voice of the we all have confidence, Mr. Charlie Francis Vice President. It was the first time that he had been summoned to such a duty. It was the only Adams: time during his eight years of service in that place "The question most earnestly disputedturned upon that he felt the case to be of such importance as to thei power vested by the Constitution in the Presi- justify his assigning reasons for hisvote. These rst 735 sons were not committed to paper, however, and can, were expunged. This has produced discontent, and therefore, never be known. But in their soundness I possibly in the event it will be found disagreement, it is certain that he never had the shadow of a doubt. among those who voted with the majority. His decision settled the question of constitutional " This is in fact a great question, and I feel perfectly power in favor of the President, and, consequently, satisfied with the President's right to exercise the established the practice under the Government, power, either by the Constitution or the authority which has continued down to this day. Although of an act. The arguments in favor of the former fall there have been occasional exceptions taken to it in short of full proof, but in my mind they greatly preargument, especially at momentswhen the executive ponderate. power, wielded by a strong hand, seemed to encroach "You will say th upon the. limits of the coordinate departments, its You dill say that I have expressed mysentiments substantial correctness has been, on the whole, quite with some moderation. You will be deceived. for my generally acquiesced in. And all have agreed that whole hearthas beenengagedinthisdeate. Indeeda no single act of the First Congress has been attended it has ached. It has kept me agitated, and in no small with more important effects upon the working of degree unhappy. I am commonly opposed to those every part of the Government."'who modestly assume the rank of champions of liberty and make a very patriotic noise about the peoIt is thus that this was regarded at the time ple. It is the stale artifice which has duped the that the transaction took place. I beg now to world a thousand times, and yet, though detected,.it call the attention of the Senate to the opinions is still successful. I love liberty as well as anybody. I am proud of it, as the true title of our people to of Fisher Ames, as expressed in letters written distinction above others; but so are others, for they by him concurrently with the action of the have an interest and a pride in the same thing. But Congress to his correspondent, an intelligent I would guard it by making the laws strong enough to protect it. In this debate a stroke was aimed at lawyer of Boston, Mr. George Richards Minot. the vitals of the Government. perhaps with the best In a letter to Mr. Minot, dated the 31st of intentions, but I have no doubt of the tendency to a May, 1789, to be found in the first volume of true aristocracy." the life of Mr. Ames, page 51, he writes: It will thus be seen, Senators, that the states"You dislike the responsibility of the President men whom we most revere regarded this as, so in the case of the Ministerof Foreign Affairs. I would to speak, a construction of the' Constitution as have the President responsible for his appointments; important as the framing of itself had been. and if those whom he puts in are unfit they may be impeached on misconduct, or he may remove them And now, a law of Congress having introduced when he finds them obnoxious. It would be easier a revolution in the doctrine and in the practice for a minister to secure a faction in the Senate or get of the Government, a legislative construction the protection of the Senators of his own State than to secure the protection of the President, whose char- binding no one and being entitled to little reacter would suffer by it. The number of the Sena- spect from the changeableness of legislative tors, the secrecy of their doings, would shelter them, constructions, in the language of the honorand a corrupt connection between those who appoint to office and who also maintain in office and the offi- able Senator from Oregon, the question arises cers themselves would be created. The meddlingof whether a doubt, whether an, act in reference the Senatein appointmentsis one of theleastdefensi- to the unconstitutionality of this law on the ble parts of the Constitution. I would not extend their power any further." part of the executive department is a ground And again, under date of June 23, 1789, page of impeachment. The doctrine of unconsti55 of the same volume: tutional law seems to me-and I speak with "The debate in relation to the President's power great respect-to be wholly misunderstood by of removal from office is an instance. Four days' the honorable Managers in the propositions unceasing speechifying has furnished you with the which they present. Nobody can ever violate merits of the question. The transaction of yesterday may need some elucidation. In the Committee an unconstitutional law, for it is not a rfle of the Whole it was moved to strike out the words binding upon him or anybody else. His con-'to be removable by the President,' &c. This did duct in violating it or in contravening it may not pass, and the words were retained. The bill was reported to the House, and a motion made to insert be at var th other ethical and cvil conin the second clause,'whenever an officer shall be ditions of duty; and for the violation of those removed by the President, or a vacancy shall happen ethical and civil conditions he may be responiR any other way,' to the intent to strike out thefirst words. The first words,'to be removable,' &c., were sible. If a marshal of the Unted States, exesupposed to amount to a legislative disposal of the cuting an unconstitutional fugitive slave bill, power of removal. If the Constitution had vested enters with the process of the authority of law, it in the President, it was improper to use such words it does not follow that resistance may be caras would imply that the power was to be exercised does not follow that resistance m be car by him in virtue of this act. The mover and sup- ried to the extent of shooting the marshal; porters of The amendment supposed that a grant by but it is not because it is a violation of that the Legislature might be resumed, and that as the law; for if it is Constitution had already given it to the President it law; for unconsttutonal there can b was putting it on better ground, and, if once gained no violation of it. It is because civil duty does by the declaration of both Houses, would be a con- not permit civil contests to be raised by force struction of the Constitution, and not liable to future encroachments. Others, who contended against the and violence. So, too, if a subordinate execuadvisory part of the Senate in removals, supposed tive officer, who has nothing but ministerial the first ground the most tenable, that it would in- duty to perform, as a United States marshal elude the latter, and operate as a declaration of the Constitution, and at the same time expressly dispose in the service of process under an unconstituof the power. They further apprehended that any tional law, undertakes to deal with the queschange of position would divide the victors and en- tion of its unconstitutionality, the ethical and danger the final decision in bothHouses. Therewas certainlyweightinthis lastopinion. Yet,theamend- civil duty 6n his part is, as it is merely minment being actually proposed, it remained only to isterial on his part to have his conscience dechoose between the two clauses. I think the latter, termine Whether he will execute it in this minwhich passed, and which seems to imply the legal (rather constitutional) power of the President, is the isterial capacity or whether he will resign his safest doctrine. This prevailed, and the first words office. He cannot, under proper ethical rules, 736 determine whether the execution of the law Again: shall be defeated by the resistance of the appa- "If, then, the courts of justice are to be considered ratus provided for its execution; but if the law as the bulwarks of a limited Constitution, against bears upon his personal rights or official emol- legislative encroachments, this consideration will afford a strong argument for the permanent tenure umnelts, then, without a violation of the peace, of judicial offices, since nothing will contribute so he may raise the question of the law and resist much as this to that indepcndentspirit in the judges, it consis~tently with all civil and ethical duties. which must be essential to the faithful performance of so arduous a duty."-Ibid., 544. Thus we see at once that we are brought face to face with the fundamental propositions, and In the case of Marbury vs. Madison, (1 I ask attention to a passage from the Federal- Cranch, pp. 175, 178,) the Supreme Court of the United States, speaking through the great ist, at page 649, where there is a very vigorous the Unite States speaking through the great discussion by Mr. Hamilton of the question of' Chief Justice Marshall, said: unconstitutional laws; and to the case of Mar- "The question whether an act repugnant to the bury vs. Madison in 1 Cranch. The subject is Constitution can become the law of the land is a question deeply interestingto the United States; but old, but it is there discussed with a luminous happily not of an intricacy proportioned to its interwisdom, both in advance of the adoption of the ests. Itseems onlynecessary torecognizecertain prinConstitution and of its construction by the Su- ciples, supposed to have been long and well estabtablished, to decide it. preme Court of the United States, that may "That the people have an original right to estabwell displace the more inconsiderate and loose lish for their future government such principles as, views that have been presented in debate here in their opinion shall most conduce to their own happiness is the basis on which the whole American In the Federalist, No. 78, page 541, Mr. Ham- fabric has been erected. The exercise of this oriilton says: ginal right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, "Someperplexity respecting the rights of the courts therefore, so established are deemed fundamental, to pronounce legislative acts void, because contrary and as the authority from which they proceed is to the Constitution, has arisen from an imagination supreme and can seldom act they are designed to be that the doctrine would imply a superiority of the permanent. judiciary to the legislative power. It is urged that "This original and supreme will organizes the the authority which can declare the acts of another Government and assigns to different departments void must necessarily be superior to the one whose their respective powers. It may either stop here or acts may be declared void. As this doctrine is of establish certain limits not to be transcended by those great importance in all the American Constitutions, departments. a brief discussion of the ground on which it rests can- "The Government of the United States is of the not be unacceptable. latter description. The powers of the Legislature " There isno position which dependson clearerprin- are defined and limited; and that those limits may ciples than that every act of a delegated authority not be mistaken or forgotten the Constitution is contrary to the tenor of the commission under which written. To what purpose are powers limited, and it is exercised is void. No legislative act, therefore, to what purpose is that limitation committed to contrary to the Constitution, can be valid. To deny writing if these limits may at any time be passed by this would be to affirm that the deputy is greater those intended to be restrained? The distinction than his principal; that the servant is above his between a Government with limited and unlimited master; that the representatives of the people are powers is abolished if those limitsdo not confine the superior to the people themselves; that men acting persons on whom they are imposed, and if acts proby virtue ofpowers may do notonlywhattheirpowers hibited and acts allowed are of equal obligation. It do not authorize, but what they forbid. is a proposition too plain to be contested that the "If it be said that the legislative body are them- Constitution controls any legislative act repugnant selves the constitutional judges of their own powers, to it; or that the Legislature may alter the Constituand that the construction they put upon them is con- tion by an ordinary act. elusive upon the other departments, it may be an- "Between these alternatives there is no middle swered that this cannot be the natural presumption, ground. The Constitution is either a superior, parawhere it is not to be collected from any particular mount law, unchangeable by ordinary means, or it provisions in the Constitution. It is not otherwise s on a level with ordinary legislative acts, and, like to be supposed that the Constitution could intend to other acts, is alterable when the Legislature shall' enable the representatives of the people to substi- please to alter it. tute their will to that of their constituents. It is far "If the former part of the alternative be true, more rational to suppose that the courts were de- then a legislative act contrary to the Constitution is signed to be an intermediate body between the peo- not law; if the latter part be true, then written conple and the Legislature, in order, among other things, stitutions are absurd attempts on the part of the peo-. to keep the latter within the limits assigned to their ple to limit a power in its own nature illimitable. authority. The interpretation of the laws is the "Certainly all those who have framed written proper afid peculiar province of the courts. A Con- constitutions contemplate them as forming tlhe funstitution is, in fact, and, must be regarded by the damental and paramount law of the nation, and, judges as a fundamental law. It therefore belongs consequently, the theory of every such government to them to ascertain its meaning, as well as the mean- must be that an act of the legislature, repugnant to ing of any particular act proceeding from the legis- the constitution, is void. lative body. If there should happen to be an irre- "This theory is essentially attached to a written concilable variance between the two, that which has constitution, and is, consequently, to be considered the superior obligation and validity ought,' of course, by the court as one of the fundamental principles to be preferred; or, in other words, the Constitution of our society. It is not, therefore, to be lost sight ought to' be preferred to the statute, the intention of of in the further consideration of this subject. the people to the intention of their agents. "If an act of the Legislature repugnant to the "Nor does this conclusion, by any means, suppose Constitution is void, does it, notwithstanding its ina superiority of the judicial to the legislative power. validity, bind the courts and oblige them to give it It only supposes that the power of the people is su- effect? Or, in other words, though it be not law, does perior to both, and that where the will of the Legis- it constitute a rule as operative as if it was a law? lature, declared in its statutes, stands in opposition This would be to overthrow in fact what - as estabto that of the people, declared in the Constitution, lished in theory, and would seem, at first view, an the judges ought to be governed by the latter rather absurdity too gross to be insisted on. It shall, howthan the former. They ought to regulate their de- ever, receive a more attentive consideration. cisions by the fundamental laws, rather than by those " It is emphatically the province and duty of the whieh are not fundamental," judicial department to say what the law is. Those 737 who apply the rule to particular cases must of neces- serene reason of the Supreme Court may be sity expound and interpret that rule. If two laws shed upon it, to the end that Congress even conflict with each other the courts musty decide on the operation of each. may reconsider its action and retract its en"So if a law be in opposition to the Constitution; if croachment upon the Constitution. both the law and the Constitution apply to a partic- But Senators will not have forgotten that ular case, so that the court must either decide that case conformably to the law, disregarding the Con- General Jackson, in his celebrated controversy stitution; or conformably tQ the Constitution, disre- with the Whig party, claimed that no departgarding the law. the court must determine which ment of the Government' should receive its of these conflicting rules governs the case. This is of the very essence ofjudicial duty. final and necessary and perpetual exclusion "If, then, thecourtsaretoregardtheConstitution- and conclusion on a constitutional question and the Constitution is superior to any ordinary act from the judgment even of the Supreme Court, of the Legislature-the Constitution, and not such ordinary act, must govern the case to which they both and that under the obligations of each one's apply. oath, yours as Senators, yours as Representa"Those, then, who controvert the principle that tives, and the President's as Chief Executive, the Constitution is to be considered, in court, as a es, and the President's as Chief Executive, paramount law, are reduced to thenecessity ofmain- each must act in a new juncture and in refertaining that courts must close their eyes on the-Con- ence to a new matter arising to raise again stitution and see only the law. the questionof costitutionalauthority. Now, "This doctrine would subvert the very foundation e questionof constitutionalauthority. Now, of all written constitutions. It would declare that let me read in a form which I have ready for an act which, according to the principles and theory quotation a short passage on which General of our Government, is entirely void. is yet, in prac- Jackson in his protest sets this forth. I read tice, completely obligatory. It would declare thath. I read if the Legislature shall do what is expressly forbid- from a debate on the fugitive slave law as conden, such act, notwithstanding the express prohibi- ducted in this body in the year 1852, when the tion, is inreality effectual. Itwould begiving tothe honorable Senator from Massachusetts [Mr. Legislature a practical and real omnipotence with hnr l ato fo a chuir the same breath which professes to restrict their SUMNER] was the spokesman and champion powers within narrow limits. It is prescribing limits, of the right for every department of the Govand declaring that thdse limits may be passed at ernment to judge the constitutionality of law pleasure. "That it thus reduces to nothing what we have and of duty: deemed the greatest improvement on political insti- " But whatever may be the influence of this judgtutions-a written constitution-would of itself be ment"sufficient in America, where written constitutions have been viewed with so much reverence for reject- That is, the judgment of the Supreme Court ing the construction." of the United States in the case of Prigg vs. Undoubtedly it is a question of very grave Pennsylvaniaconsideration how far the different departments "But whatever may be the influence of this judgof the Government, h legislative judnicial, and ment as a rule to the judiciary it cannot arrest our of the Governmentlegislative, judicial, and duty as legislators. And here I adopt with entire executive, are at liberty to act in reference to assent, the language of President Jackson, in his unconstitutional laws. The judicial duty, per- memorable veto, in 1832, of the Bank of the United haps, maybe plain. They wait for a case; they States. To his course was opposed the authority of the Supreme Court, and this is his reply: volunteer no advice; they exercise no supervis- "' If the opinion of the Supreme Court covers the ion. But as between the Legislature and the whole ground of this act it ought not to control the Executive, even when the Supreme Court has coirdinatmeauthorities of this Government. The ConEecutive even when th Supreme Court has gress, the Executive, and the court, must each for passed upon the question, it is one of the gravest itself be guided by its own opinion of the Constituconstitutional points for public men to determ- ton. Each ublic officer who takes an oath to support' ine when and how the Legislature may raise the Constitution swears that he will support it as he in when and how the Legislature may raise understands it, and not as it is understood by others. the question again by passing a law against the It is as much the duty of the House of Representadecision of the Supreme Court, and the Execu- tives, of the Senate, and of the President, to decide tip raise the question again by undertak- un the constitutionality of any bill or resolution tie may.raise the question again by undertak- twhich may be presented to them for passage or aping an executive duty under the Constitution proval as it is of the supreme judges when it may against the decision of the Supreme Court and be brought before them for judicial decision. The against the determination of Congress. We authority of the Supreme Court must not, therefore,. be permitted to control the Congress or the Execuin this case have been accused of insisting tive when acting in their legislative capacities, but upon extravagant pretensions. We have never to have only such influence as the force of their rea-* suggested anyvhing further than this, for the soning may deserve.' suggested anything further than this, for the "With these luthoritative words of Andrew Jackcase only requires it, that whatever may be the son I dismiss this topic."-Appendix to Congressional doubtful or debatable region of the coordinate Globe, Thirty-Second Congress, first session, p. 1108. authority of the different departments of Gov- " Times change and we change with them.:' ernment to judge for themselves of the consti- Nevertheless, principles remain; duties retutionality or unconstitutionality of laws, to main; the powers of Government remain; raise the question anew in their authentic and their coordination remains; the conscience of responsible public action, when the President men remains, and everybody that has taken an of the United States, in common with the hum- oath, and everybody that is subject to the Conblestcitizen, findsalawpassedoverhisright, and stitution without taking an oath, by peaceful binding upon his action in the matter of his means has a right to revere the Constitution right, then all reasons of duty to self, to the in derogation of unconstitutional laws; and public, to the Constitution, to the laws, require any legislative will or any judicial authority that the matter should be put in the train of that shall deny the supremacy of the Constitujudicial decision, in order that the light of the tion in its power to protect men who thus ConC. I.-47. 738 scientiously, thus peacefully raise questions for two Senators answering to their names. A determination in a conflict between the Con- quorum is present. The counsel for the Presstitution and the law, will not be consistent ident will proceed. with written constitutions or with the mainte- Mr. EVARTS. There is but one other nance of the liberties of this people as estab- topic that I need to insist upon here as bearing lished by and dependent upon the preservation upon that part of my argument which is inof written constitutions. tended to exhibit to. the clear apprehension, Now let us see whether upon every ethical, and I hope adoption, of this court, the view constitutional, and legal rule the President of that all here that possesses weight and dignity, the United States was not the person upon that really presents the agitating contest which whom this civil-tenure act operated, not as an has been proceeding between the departments executive officer to carry out the law, but as of our Government, is political and not crimone of the coordinate departments of the Gov- inal, or suitable for judicial cognizance;. and ernment over whom in that official relation the that is what seems to me the decisive test in authority of the act was sought to be asserted. your judgments and in your consciences; and The language is general. "Every removal that is the attitude that every one ofyou already from office contrary to the provisions of this in your public action occupies toward this act shall be a high misdemeanor." Who could subject. remove from office but the President of the The Constitution of the United States never United States? Who had the authority? Who intended so to coerce and constrain the concould be governed by the law but he? And it sciences and the duties of men as to bring them was in an official constitutional duty, not a into the position of judges between themselves personal right, not a matter of personal value and another branch of government in regard or choice or interest with him. to matters of difference between themselves When, therefore, it is said and claimed that and that other branch of government in matby force of a legislative enactment the Presi- ters which concerned wholly the partition of dent of the United States should not remove authority under the Constitution between themfrom office, whether the act of Congress was selves and that other depaxtment of the Govconstitutional or not, thathewas absolutely pro- ernment. The eternal principles of justice are hibited from removing from office, and if he implied in the constitution ofevery court, and did remove from office, although the Constitu- there are no more immutable, no more inevtion allowed him to remove, yet the Constitu- itable principles than these, that no man shall tion could not protect him for removing, but be a judge in his own cause, and that no man that the act of Congress seizing upon him could shall be a judge in a matter in which he has draw him in here by impeachment and sulject already given judgment. It isabhorrent to the him to judgment for violating the law though natural sense of justice that men should judge maintaining the Constitution, and thatthe Con.- in their own cause. It is inconsistent with stitution pronounced sentence of condemnation nature itself that man should assume an oath and infamy upon him for having worshiped its and hope to perform it by being impartial in authority and sought to maintain it, and that his judgment when he has already formed it. the authority of Congress has that power and The crimes that a President may have imputed extent practically, you tear asunder your Con- to him that may bring him into judgment of stitution, and (if on these grounds you dismiss the Senate are crimes against the Constitution this President from this court convicted and or the laws involving turpitude or personal deposed) you dismiss him the victim of. the delinquency. Congress and the martyr of the Constitution They are crimes in which it is inadmissable by- the very terms of your judgment, and you to imagine that the Sedtate should be committhrow open for the masters of us all in the great ted as parties at all. They are crimes which, debates of an intelligent, instructed, populous, however much the necessary reflection of popatriotic nation of freemen the division of sen- litical opinions may bias the personal judgtiment to shakethis country to its center, " the mept of this or that member, or all the memomnipotence of Congress" as the rallying cry bers of the body-an infirmity in the court on one side, and I' the supremacy of the Con- which cannot be avoided-yet it must be posstitution " on the other. sible only that they should give a color or a Mr. CONKLING. Mr. President, I move turn and not be themselves the very basis and an intermission for fifteen minutes. substance of the judgment to be rendered. The motion was agreed to; and after the When, therefore, 1 show you as from the reexpiration of the recess the Chief Justice re- cords of the Senate that you yourselves have sumed the chair and called the Senate to order. voted upon this law whose constitutionality is Mr. GRIMES. Mr. Chief Justice, I move a to be determined, and that the question of call of the Senate. guilt or innocence arises upon constitutionality The motion was agreed to; or judgment of constitutionality, when you have The CHIEF JUSTICE. The Secretary will in your capacity of a Senate undertaken after call the roll. the alleged crime committed, as an act suitable The Chief Clerk called the roll. in your judgmentto be performedby you in your The CHIEF JUSTICE. There are forty- relation to the executive authority and your duty under this Government to pronounces as you ator can think or feel that, as a preiminary did by resolution, that the removal of Mr. Stan- part of the judgment bf a court that was to ton and the appointment of General Thomas end in acquittal or conviction, this proceeding were not authorized by the Constitution -and could be for a moment justified, the laws, you either did or did not regard that The two gravest articles of impeachment as a matter of political action; and if you re- against the weightiest trial ever introduced into garded it as a matter of political action, then this court, those on which as large a vote of you regarded it as a matter that could notpos- condemnation was gained as upon any others, sibly be brought before you in your judicial were the two articles against Judge Chase, one capacity for you to determine upon any per- of which brought him in question for coming sonal consequences to the Executive. How to the trial of Fries, in Pennsylvania, with a was it a matter for political action unless it was formed and pronounced opinion; and another, a matterof his political action and the contro- the third, was for allowing a juryman to enter versy was wholly of a political nature? If you, the box on the trial of Callender, at Richmond, on, the other hand, had in your minds the pos- who stated that he had formed an opinion. sibility of this extraordinary jurisdiction being I would like to see a court of impeachment brought into play by a complaint to be moved that regards this as great matter that a judge by the House of Representatives before you, should come to a trial and pronounce a conwhat an extraordinary spectacle do you pre- demnation of the prisoner before the counsel sent to yourselves and to the country? No; are heard, and should allow a juryman to enter the controlling, the necessary feeling upon the box who excused himself from having- a which you acted must have been that "it is a free mind on the point discussed as he had stage and a step in governmental action con- formed an opinion, and yet that should tell us cerning which we give this admonition and that you having formed and expressed an opinthis suggestion and this reproof. " ion are to sit here judges on such a matter as In 1,834, when the Senate of the United this. What is there but n answer ofthiskind States was debating the question of the resolu- necessary? the Constitution never brings a tion condemnatory of General Jackson's pro- Senate into an inculpation and a condemnation ceedings in reference to the deposits and Mr. of a President upon matters in whioh.and of Duane, the question was raised, "Can you, which the two departments of the Government will you, should you pronounce opinion-upon a in their political capacities have formed and matter of this kind when possibly it may be expressed political opinions. It is of other made the occasion, if your views are right, of matter and of other fault, in which there are an impeachment and of a necessary trial?" no parties and no discriminations of opinion. The answer of the great and trusted statesmen It is of offense, of crime, in which the common of the Whig party of that day was, "If there rules held by all of duty, of obligation, of was in the atmosphere a whisper, if there was excess, or of sin, are not determinable upon in the future a menace, if there was a hope or political opinions formed and expressed in a fear, accordingly as we may think or feel, debate. that impeachment was to come, debate must But the other principle is equally contrabe silenced and the resolution suppressed." vened, and this aids my argument that it is But they recognized the fact that it was mere political and not personal or criminal; it is political action that was being resorted to, and that you are to pass judgment of and concernthat was or was to be possible; but the com- ing the question of the partition of the offices plexion of the House, and the sentiment of the of this Government between the President and tipe House, and the attitude of the Senate as yourselves. The very matter of his fault is claiming it only to be matter of political dis- that he claims them; the very matter of his cussion and determination, absolutely rejected condemnation is that you have a right to them; the notion of impeachment, and labored, there- and you, aided by the list furnished by the fore, the debate a political debate and the con- Managers, of forty-one thousand in number elusion a political conclusion.. and $21,000,000 of annual emolument, are to There is but 6ne proposition that consists sit here as judges whether his false claim and with the truth of the case and with the situa- his appeal to a common arbiter in a matter of tion of you, Senators, here, and that is that this kind is to be imputed to him as personal you regarded this as political action and polit- guilt and followed by personal punishment. ical decision, not by possibility a matter of How would any of us liketo be tried before judgment on a subject to be introduced for a judge who, if he condemned us, would have judicial consideration. It is not true that that our houses, and if he acquitted us we should resolution does not cover guilt; it only ex- have his? So sensitive is the natural sense of presses an opinion that the state of the law and justice on this point that the whole country the authority of the Constitution did not cover was in a blaze by a provision in the fugitive the action of the President, but it does not im- slave law that a commissioner should have but pute violence or design or wickedness of pur- five dollars if he set the slave free and ten dolpose, or other than a justifiable difference of lars if he remanded him. Have honorable opinion to resort to an arbiter between you. judges of this court forgotten that crisis of the But, even in that limited view, I takeit no Sen- public mind as to allowing a judge to have an interest in the subject of his judgment? Have of proof all that this country affords, all that they forgotten that the honorable Senator from the power "'to send for persons and papers" Massachusetts in the debate upon this tenure- includes. of-office act thought that political bias might They have none of the risks that attend oraffect a court so that it might give judgment dinary litigants of bringing their witnesses in of but nominal punishment for an infraction of court to stand the test of open examination and the act; and yet you are full of politics. Why? cross-examination; but they can put them unBecause the question is political; and the der the constriction of an oath and an explorawhole point of my reference is as an absolute tion in advance and see what they can prove, demonstration that the Constitution of the and so determine whom they will bring and United States never forces honorable men into whom they will reject. They can take our a position where they are judges in their own witness from the stand already under oath, cause or where they have in the course of their and even of so great and high a character as previous duties expressed a judgment. the Lieutenant General of your armies, and I have omitted from this consideration the out of court ply him with a new oath and a fact that the great office itself, if by your judg- new examination to see whether he will hblp ment it shall be taken from the elected head or hurt them by being cross-examined in court. of this Republic, is to be put in commission Every arm and every heart is at their service, with a member of your own body chosen to-day, stayed by no sense except of public duty to and to-morrow, at any time, by yourselves, and unnerve their power or control its exercise. that you are taking the crown of the people's And yet here is the evidence. The people magistracy and of the people's glory to deco- of this country have been made to believe that rate the honor of the Senate. An officer who all sorts of personal vice and wickedness, that by virtue of your favor holds the place of Pres- all sorts of official misconduct and folly, that ident pro tempore of your body adds the Presi- all sorts of usurpation and oppression, pracdency to its duties by the way; and an officer ticed, meditated, plotted, and executed on the changeable from day to day by you as you part of this Executive, were to be exploredand choose to have a new President pro tempore, exposed by the prosecution and certainly set who by the same title takes from day to day the down in the record of this court for the public discharge of the duties of President of the judgment. Here you have for violence, opUnited States. pression, and usurpation a telegram between When the prize is that, and when the cir- the President and Governor Parsons, long cumstances are as I have stated, Senators must public, two years ago. You have for his dedecline a jurisdiction upon this demonstration sire to suppress the power of Congress the - that human nature and human virtue cannot testimony of Wood, the office-seeker, that when endure that men should be judges in such a the President said he thought the points were strife. Iwill agree your duty keeps you here. important he said that he thought they were You have no right to resign or avoid it; but it minor, and that he was willing to take an office is a duty consistent with judicial fairness, and from the President and yet uphold Congress; only to be assumed as such; and the subject that the President said they were important itself, thus illustrated, snatches from you at and he thought the patronage of the Governonce, as wholly political, the topics that you ment should be in support of those principles have been asked to examine. which he maintained, and Wood, the officeIt will suit my convenience and sense of the seeker, went home and was supposed to have better consideration of the separate articles of said that the President had used some very impeachment to treat them at first somewhat violent and offensive words on the subject, and generally, and then, by such distribution as he was brought here fo prove them, and he seems most to bring us finally to what, if it disproved them. shall not before that time have disappeared, Now, weigh the testimony upon the scale appears to be the gravest matter of considera- that a nation looks at it, upon the scale that tion. foreign nations -look at it, upon the scale that Let me ask you at the outset to see how little history will apply to it, upon the scale that posas matter of evidence this case is. Certainly terity will in retrospect regard it. It depends this President of the United States has been a good deal upon how large a selection a few placed under as trying and as hot a gaze of specimens of testimony could offer. If I bring political opposition as ever a man was or could a handful of wheat marked by rust and weevil, be. Certainly for two years there has been and show it to my neighbor, he will say, no partial construction of his conduct. Cer- "Why, what a wretched crop of wheat you tainly for two years he has been sifted as wheat have had;" but if I tell him "these few kerby one of the most powerful winnowing ma- nels are what I have taken from the bins of chines that I have ever heard of-the House my whole harvest," he will answer, "What a of Representatives of the United States of splendid crop of wheat you have had." And America. Certainly the wealth of the nation, now answer, answer if there is anything wrong certainly the urgency of party, certainly the in this,? Mr. Manager WILSON, from the Judizeal of political ambition, have pressed into Sciary Committee that had examined for more the service of imputation, of inculpation, and than a year this subject, made a report to the 741 House. It is the wisest, the clearest, and also proved here that the speeches charged upon one of the most entertaining views of the whole the President, in substance and in general, were subject of impeachment in the past and in the made. My first difficulty about them is that present that I have ever seen or can ever expect they were made in 1866, and related to a Conto see, and what is the result? That it is all gress that has passed out of existence, and political. All these thunder-clouds are polit- were a subject in the report of the Judiciaryical, and it is only this little petty pattering of Committee to the House, upon which the House rain and these infractions of statutes that are voted that they would not impeach. My next personal or criminal. And "the grand inquest is that they are crimes against rhetoric, against of the nation" summoned to the final determ- oratory, against taste, and perhaps against ination upon the whole array, on the 9th of logic, but that the Constitution of the United December, 1867, votes, 107 to 57, "no impeach- States, neither in itself or by any subsequent ment." If these honorable Managers had amendments, has provided for the government limited their addresses to this court to matters of the people of this country in these regards. that in purpose, in character, in intent, and in It is a novelty in this country to try anybody guilt occurred after that bill of impeachment for making a speech. was thrown out by their House, how much you There are a great many speeches made in this would have been entertained in this cause l I country, and therefore the case undoubtedly have not heard anything that had not occurred would have arisen in the course of eighty years before that. The speeches were made eighteen of our Government. Indeed, I believe, if there months before. The telegram occurred a year is anything that marks us, and to the approval, before. Wood, the office-seeker, came into at least in ability, of other nations, it is that play long before. What is there, then, not any man in this country not only has a right covered by this view? to make a speech, but can make a speech and The honorable Managers, too, do not draw a good one, and that he does some time or together always about these articles. There other in his life actually accomplish it. Why, seem to have been an original production, the very lowest epithet for speech-making in and then a sort of afterbirth that is added to the American public adopted by the newsthe compilation, and as I understand the open- papers is " able and eloquent." [Laughter.] ing Manager, [Mr. BUTLER,] if there is not any- I have seen applied to the efforts of the honthing in the first article you need not trouble orable Managers here the epithet, in advance yourself to think there is anything in the in the newspapers, of."tremendous" [laugheleventh; and Mr. Manager STEVENS thinks ter] before they have been delivered here, of that if there is not anything in the eleventh "tremendous force;" and I saw once an you had better not bother yourself in looking accurate arithmetical statement of the force for anything in the first ten, for he says a of one of them in advance that it contained county-court lawyer, I think, could get rid of thirty-three thousand words. [Laughter.] them. Let me give you his exact words: We are speech-makers; therefore the case "I wish this to be particularly noticed, for I intend must have arisen for a question of propriety; to offer it as an amendment. I wish gentlemen to and now for the first time we begin with the examine and see that this charge is nowhere con- President, and accuse him; we take him betained in any of the articles reported, and unless it fore no ordinar court, but organie a court f be inserted there can be no trialupon it; and if there fore no ordinary court, but organize a court for be the shrewd lawyers, as I know there will be, and the purpose which adjourns the moment it is caviling judges"- over with him, furnishes no precedent, and must He did not state that he felt sure of that- remove him from office and order a new elec" ad without this article they do not acquit him, tion. That is agreat deal to turn on aspeech. they are greener than I was in any case I ever under- Only think of it! To be able to make a speech took before the court of quarter sessions." that should require a new election of a President It will not be too vain in us to think that we tobe heldl Well, if the trial is to take place, let come up perhaps to this estimate on our side the proclamation issue to this speech-making and at thistable of these quarter-session lawyers people, " let him that is without sin among you that woulid be adequate to dispose of these cast the first stone;" and see how the nation articles of impeachment; and they are right on tiptoe waits; but who will answer that dainty about it, quite right about it. If you cannot challenge and who assume that fastidious duty? get in what is political and nothing but polit- We see in advance the necessary requirements. ical, you cannot get hold of anything that is It must be one who by long discipline -has criminal or personal. learned always to speak within bounds, one Now, with that general estimate of the limit whose lips would stammer at an imputation, and feebleness of the proofs and of the charges, whose cheek would blush at a reproach, whose I begin with the consideration of an article in ears would tingle at an invective, and whose regard to which, and the subject-matter of eyes would close at an indecorum. It must be which, I am disposed to concede more than I one who by strict continence of speech and imagine can be claimed fairly in regard to the by control over the tongue, that unruly memother articles, that some proof to the point of ber, has gained with all his countrymen the demonstration has been presented, and that is praise of ruling his own spirit, which is greater the speeches. I think that it has been fairly than one who taketh a city. 742 And now the challenge is answered; and it try. Mr. SUMNER being called to order for this seems that the honorable Manager to whom expression, the honorable Senator from Rhode this duty is assigned is one who would be rec- Island, [Mr. ANTHONY,] who not infrequently ognized at once in the judgment of all as first presides with so much urbanity and so much it war, first in peace in boldness of words, first control over your deliberations, gave this aid in the hearts of all his countrymen that love to us as to what the common law of this trithis wordyintrepidity. [Laughter.] Now, the bunal was on the subject of the harmonies and champion being gained, we ask fobr the rule, and courtesies that should prevail between the legisin answer to an interlocutory inquiry which I lative and the executive departments. He said: had the honor to address to him he said the " It is the impression of the Chair that those words rule was the opinion of the court that was to do not exceed the usual latitude of debate which has try the case. been permitted here." Now, let us see whether we can get any guid- Is not that a good authority, the custom of ance as to what your opinions are on this sub- the tribunal established by the presiding offiject of freedom of speech; for we are brought cer? Mr. SHERMAN, the honorable Senator down to that, having no law or precedent be- from Ohio, said: sides. I find that the matter of charge against "I think the words objected to are clearly in order. the President is that he has been " unmindful Ihave heard similar remarks fifty times without any of the harmony and courtesies which ought to question of order being raised." exist and be maintained between the executive Communis errorfaeit jus. That is the prinand legislative branches of the Government." ciple of this view; and the Senate came to a If it prevails from the executive toward the vote, the opposing numbers of which remind me legislative, it should prevail from the legisla- of some of the votes on evidence that we have, tive toward the executive, upon the same stand- had in this trial; the appeal was laid on the ard, unless I am to be met with what I must table by twenty-nine yeas to ten nays. [Laughregard as a most novel view presented by Mr. ter.] Manager WILLIAMS in his argument the other We shall get off pretty easy from a tribunal day, that as the Constitution of the United whose "'usual latitude of debate" permits the States prevents your being drawn in question legislative branch to call the Executive aa anywhere for what you say, therefore it is a enemy of his country. But that is not all. rule that does not work both ways. [Laughter.] Proceeding in the same debate, after being alWell, that is a remarkable view of personal lowed to be in order, Mr. SUMNER goes on with duty, that if I wore an impenetrable shirt of a speech the eloquence of which I cannot be mail, it is just the thing for me to be drawing permitted to compliment, as it is out of place, daggers against everybody else that is met in but certainly it is of the highest order, and of the street. " Noblesse oblige" seems to be a course I make no criticism upon it; but he belaw which the honorable Manager does not gins with an announcement of a very good think applicable to the Houses of Congress. principle: If there be anything in that suggestion how " Meanwhile I shall insist always upon complete should it guard, reduce, and regulate your use freedom of debate, and I shall exercise it. John of freedom of speech? I have not gone outside Milton, in his glorious aspirations, said, " Give mse.of,freedom of.speech.? Ihavenotgoneoutside..the liberty to know, to utter, and to argue freely of the debates that relate to this civil-tenure above all liberties." Thank God, now that slaveact; my time has been sufficiently occupied in masters have been driven from this Chambersuehis reading all that was said in both Houses on the liberty of an American Senator I Of ooursaithere reading v...........can be no citizen of a Republic too high for exposure, that subject; but I find now a well-recorded as there can be none toolow forprotection. Theexprecedent, not merely in the observations of a posure of the powerful and the protection of the pSing~le Senator, but in a direct determinati~on weak; these are not only invaluable liberties but ngle Senator, but in a direc~t determination commanding duties." of the Senate itself passing upon the question Is there anything in the President's answer what certain bounds at least of freedom of s there anything n the President's answer speech as between the two departments of the G~overnrment pernmitted. The honorable Sen- And if the President is not too high, but that it should be not only an invaluable liberty but ator from Massachusetts, in the course of the debate, using this form of expression in regard a commanding duty to call him an enemy of to the President, said, and on the subject of the country, may not the House of Representthis very laew: sueco atives be exposed to an imputation of a most unintelligible aspersion upon them that they "You may ask protection, against whom? I an- elligihe asperson upon them tGat the swer plainly, protection against the President of the Government?' United States. There, sir, is the duty of the hour. Then the honorable Senator proceeds with a Ponder it well, and do not forget it. There was no style of observation upon which I shall make such duty on our fathers; there was no such duty on our recent predecessors in this Chamber, because no observation whatever, and I feel none, but here was no President of the United States who. had Cicero in Catalinam, in Verrem, et pro Milobecome the enemy of his country."-Congressional nem, does not contain more eloquence against (obe, second session Thirty-Ninth Congress, p. 525. Thirty-Ninth Congress. the objects of his invective than this speech of The President had said that Congress was the honorable Senator.. Here are his words: c;thanging on the verge of the Government; "hanging on the verge of the Government;" "At last the country is opening its eyes to the but here is a direct charge that the President actual condition of things. Already it sees that of the United States is an enemy of the coun- Andrew Johnson, who came to supreme power by a 743 bloody accident, has become the successor of Jeffer- the Congressional Globe for the Fortieth Conson Davis in the spirit by which he is governed and gress, first session: in, the mischief he is inflicting on his country. ItAM. I desire to say, Mr. Chairma sees the president of the rebellion revived in the "Mr BINGHAM. I desire to say Mr. Chirmaecorded President of the United States. It sees that the vio- that it do es not become a gentleman ho recorded lencewhich tookthelifeofhisillustriouspredecessor his vote fifty times for Jefferson Davis, the arch is now by his perverse complicity extending through- traitor in this rebellion, as his candidate for President out the rebel States, making all who love the Union of the United States, to undertake to damage this its victims and filling the land with tragedy. It sees cause by attempting to cast an imputation either that the war upon the faithful Unionists is still con- upon my integrity or my honor. I repel with scorn tinued under his powerful auspices, without any and contempt any utterance of that sort from any distinction of color, so that all, both white and black, man whether he be the hero of Fort Fisher nottken are sacrificed. It sees that he is the minister of dis-her taken." [Laughter.] cord, and not the minister of peace. It sees that, so Now, for the reply: long as his influence prevails, there is small chance "Mr. BUTLER. But if during the war the gentleof tranquillity, security, or reconciliation that the man from Ohio did as much as I did in that direction restoration of prosperityin the rebel States, so much I shall be glad to recognize that much done. But the longed for, must be arrested; that the business of the only victim of the gentleman's prowess that I know whole country must be embarrassed, and that those of was an innocent woman hung upon the scaffoldi conditions on which a sound currency depends must one Mrs. Surratt. And I can sustain the memory of bepostponed. All thesethings the country now sees, Fort Fisher if he and his present associates can susBut indignation assumes the form ofjudgmentwhen tain him in shedding the blood of a woman tried by it is seen also that this incredible, unparalleled, and a military commission and convicted without suffifar-teaching mischief, second only to the rebellion cent evidence in my judgment." itself, of which it is a continuation, is invigorated and extended through a plain usurpation." * * To which, on page 364, Mr. BINGAM rei* ~ "dThe President has usurped the powers of sponds with spirit: Congress on a colossal scale, and he has employed challenge the him here or these usurped powers in fomenting the rebel spirit and awakening anew the dying fires of the rebellion. anywhere n this tribunal, orin any tribunal, to assert Though the head of the executive, he has rapa- that I spoliated or mutilated any book. Why, sir, ciously seized the powerhead of the legislative, and made such a charge, withoutittle of evidence, is only himself a whole Congress in defiance of a cardinal fit to come from a man who lives in a bottle and if principle of republican government that each branch fed with a spoon." [Laughter.] must act for itself without assuming the powers of Now, what under Heaven that means I am the other; and, in the exercise of these illegitimate sure I do not know, [laughter,] but it is within powers, he has become a terror to the good and a the common lan the judgment support to the wicked. This is his great and unpar-w of courtesy in the judgment donable offense, forwhich history mustcondemn him of the House of Representatives. We have ifyou do not. He i ausurper, through whom infinite attempted to show that in the President's ad wrong has beendone to hiscountry. He is ausurper, who, promising to be a Moses. has become a dresses to the populace there was something Pharaoh." —Coongressional Globe, Thirty-Ninth Con- of irritation, something in the subjects, somegress. second session, p. 541. thing in the manner of the crowd that excused And then it all ends in a wonderfully sensi- and explained, if it did not justify, the style of ble —if the honorable Senator will allow me to hisspeech. You might suppose that this intersay so-and pithy observation of the honor- change in debate grew out of some subject that able Senator from Wisconsin, [Mr. HowE:] was irritating, that was itself savage and fero"The Senator from Massachusetts has advanced cious; but what do you think was the subject the idea that the President has become an enemy to these honorable gentlemen were debating upon? his country." * * * * "But I suppose Why, it was charity. [Laughter.] The questhat not only to he the condition of the sentiment in tion of charity to the South was the whole staple this'Senate touching the present President of the of charity h United States, but I suppose we never had a Presi- of the debate; "charity," which "suffereth dent who was not in communication with a Senate long and is kind." "Charity envieth not." divided upon just that question, some thinking that "I Charity vaunteth not itself, is not puffed he was an enemy of the country and others thinkingpu that he was not; and Irespectfully submit, therefore, [Laughter.] Charity "doth not behave itself that the Senator from Massachusetts will be compe- unseemly, seeketh not her own, is not easily tent to try an impeachment if it should be sent here t 7 against the President, as I conceive the Senator from provoked, thinketh no evil; reoiceth not in Maryland would be competent to try that question iniquity, but rejoiceth in the truth, beareth all in spite of the opinions which he has pronounced things, believeth all things, hopeth all things, twfhere."-.1bid., P. Wendureth all things; charity never faileth," That igoodsense. Senatorial license must, But, then, the Apostle adds, which I fear might if it goes so wide as this, sometimes with not be proved here, "Tongues may fail." good-natured Senators be properly described [Laughter.] as a little Pickwickian. Now, to be serious, in a free Republic who We have also a rule provided for us in the will tolerate this fanfaronade about speechHuouse of Representatives, and I have selected making? Quis tulerit Gracchos de seditione a very brief one, because it is one that the hon- querenztes." orable Managers will not question at all, as it Who will tolerate public orators prating gives their standard on the subject. I find that about propriety of speech. Why cannot we there this rule of license in speech, in a very learn that our estimate of others must proceed btief, pithy form, is thus conducted between upon general views, and not vary according to: two of the most distinguished members of that particular passions or antipathies? When body, who can, as well as any others, for the Cromwell in his career through Ireland, in the purpose of this trial, furnish a standard of what name of the Parliament, had set himself down is called by the honorable Manager "Ipro- before the town of Ross and summoned it to surpriety of speech." I read from page 263 of render, exhausted in its resistance this Papist 744 community asked to surrender only upon the I for reconsideration and redetermination, if conditions of freedom of conscience. Crom- necessary, even by the Supreme Court. w'ell replied: "As to freedom of conscience, I But we have here some instances of the meddle with no man's conscience, but if you courtesy prevailing in the different branches of mean by that liberty to celebrate the mass, I the Government in the very severe expression would have you understand that in no place of opinion that Mr. Manager BOUTWELL inwhere the power of the Parliament of England dulged in in reference to the heads of Departprevails shall that be permitted." So, freedom ments. That is an executive branch of the of speech the honorable Managers in their Government; and here you are sitting in these imputation do not complain of; but if anybody Halls, and the language used was as much says that the House of Representatives hangs severer, as much more degrading to that branch upon the verge of the Government we are to of the Government than anything said by the understand that in no place where the power President in reference to Congress as can be of the two Houses of Congress prevails shall imagined. Exception here is taken to the fact that degree of liberty be enjoyed, though they that the President called Congressmen, it is meddle with no man's propriety or freedom of said, in a telegram, "a set of individuals." speech. We have heard of an old lady not well inMr. Jefferson had occasion to give his views structed in long words who got very violent at about the infractions upon freedom of writing being called an individual, because she supthat the sedition law introduced in the Legis- posed it was opprobrious. But here we have' lature of this country, and at the same time an imputation in so many words that the heads some opinion about the right of an Executive of Departments are'"serfs of a lord, servants to have an opinion about the constitutionality of a master, slaves of an owner." And yet in of a law and to act accordingly; and I will ask this very presence sits the eminent Chief' Jusyour attention to brief extracts from his views. tice of the United States, and the eminent Mr. Jefferson, in a letter to Mr. President Senator from Maine, [Mr. FESSENDEN,] and Adams, written in 1804, (Jefferson's Works, the distinguished Senator from Pennsylvania, vol. 3, p. 555,) says: [Mr. CAMERao,] all of whom have held Cabinet' I discharged every person under the punishment offices by this tenure, thus decried and derided; or prosecution under the sedition law, because I and if I were to name the Senators who aspire considered and now consider that law to be a nullity in the future to hold these degraded positions, as absolute and as palpable as if Congress had ordered us to fall down andworship a golden image, I am afraid I should not leave judges enough and that it was as much my duty to arrest its exe- here to determine this cause. [Laughter.l cution in every stage as it would have been to have All know that this is all extravagance. IIEst rescued from the fiery furnace those who should have been cast into it for refusing to worship the image. modus in rebus; sunt certi denique fines." It was accordingly done in every instance, without Thereissome measureinthings. There is asking what the offenders had done or against whom they had offended, but whether the pains they were some limit to the bounds of debate and dissuffering were inflicted under the pretended sedition cussion and imputation. I will agree that law. i th ett h li t e o nothing could be more unfortunate than the lanAraind ingainst this replies to soe obe- guage used by the President as offending the utive about the onstittioit of the lawsxec- serious and religious tastes and feelings of a utive about the constitutionality of laws: community, in the observations which he was "You seem to think it'devolved on the judges to rawn into by a very faulty method of reasondecide on the validity of the sedition law; but nothing in the Constitution has given them a right to de- ing, in a speech that he made at St Louis. The cide for the Executive more than for the Executive difficulty is, undoubtedly, that the President to decide for them. Both magistrates are equally is notfamiliar with the graces taught at schools, independent in the sphere of action assigned to them. The judges believing the law constitutional the costly ornaments and studied contrivances had a right to pass a sentence of fine and imprison- of speech, but that he speaks right on; and ment, because the power was placed in their hands when an obstacle is presented in his path he by the Constitution; but the Executives believing the the law to be unconstitutional, were bound to remit proceeds right over it. But here is a rhetorithe execution of it, because that power had been cal difficulty for a man not a rhetorician. An confided to them by the Constitution. That instru- illusive metaphorical suggestion has been made ment meant that its coirdinate branches should be cheeks on each other; but the opinion which gives that he is a Judas. If anybody-I do not care the judges th'e right to decide what laws are consti- how practiced he is-undertakes to become tutional and what not. not only for themselves in logical with a metaphor, he will get nto troutheir own sphere of action, but for the Legislature and Executive also in their sphere, would render the ble at once; and that was the- President's difjudiciary a despotic branch." ficulty. He looked around with the eye of a We have no occasion and have not asserted logician and said, " Judas's fault was the bethe right to resort to these extreme opinions trayal of all goodness. Where is the goodness which it is known Jefferson entertained. The that I have betrayed?" And the moment, opinions of Madison, more temperate but therefore, that you seek to be logical by introequally thorough, were to the same effect. ducing the name of the Divinity against whom The coordinate branches of the Government he had thus sinned, of course you would promust surrender their coordination whenever: duce that offense and shock to our senses they allow a past rescript to be a final bar to which otherwise would not have been occarenewing or presenting constitutional questions sioned. 745 I am not entirely sure that when you make thing about it; but finally when Secretary allowances for the difference between an extem- Welles said " you had better look into it," he pore speech of the Presidentto a mob, and awrit- did look into it, and there was a conversation ten, prepared, and printed speech to this court, which ended in a discussion of constitutional by an honorable Manager, but that there may law between the President and the General, in be some little trace of fhe same impropriety in which the General, reinforced by Mr. REVERDY that figure of argument which presented Mr. JOHNSON, a lawyer, and Mr. Robert J. Walker, Carpenter to your observation as an inspired a lawyer, actually put down the President enpainter, whose pencil was guided by the hand tirely [Laughter.] Now, if he ought to be of Providence to the apportionment of Mr. removed from office for that and a new elecStanton to perpetual bliss and of Governor tion ordered for that, you will so determinein Seward to eternalpains. [Laughter.] Butall your judgment; and if any other President that is matter of taste, matter of feeling, matter can go through four years without doing someof discretion, matter of judgment. thing worse than that, we shall have to be more The serious views impressed upon you with careful in the preliminary examinations in our so much force by the counsel for the President nominating conventions. [Laughter.] Iunwho opened this cause for us, and supported derstand this article to be hardly insisted by the quotations from Mr. Madison, present upon. this whole subject in its proper aspect to an Then come the conspiracy articles. The American audience. I think that if our news- conspiracy consists in this: it was all compapers would find some more discriminating menced and completed in writing; the docuscale of comment on speeches than to make ments were public; they were immediately the lowest scale "able and eloquent" we promulgated, and that is the conspiracy, if it should have a better state of things in public be one. It is quite true that the honorable addresses. Manager who conducted with so much force Our position in regard to the speeches is and skill the examinations of the witnesses did thatrthe circumstances produced in truth should succeed in proving that besides the written be considered, that words put into the speak- orders handed by the President of the United er's mouth from the calls of the crowd, ideas States to General Thomas, there were a few suddenly raised by their unfriendly and im- words of attendant conversation, and those polite suggestions are to have their weight, and words were, " I wish to uphold the Constituthat without apologizing, for no man is bound tion and the laws," and an assent of General to apologize before the law or before the court Thomas to the propriety of that course. But for the exercise of freedom of speech, it may by the power of our profession the learned be freely admitted that it would be very well Manager made it evident, by the course of his if all men were accomplished rhetoricians, examination, in which he asked the witness if finished logicians, and had a bridle on their he had ever heard those words used before tongues. when a commission was delivered to him and And now, without pausing at all upon the receive for reply that it had not, and that it eleventh article, which I leave to the observa- was not routine, that they.carried infinite tions of the honorable Managers among them- gravity of suspicion I selves to dispose of, I will take up the Emory What is there that we cannot believe in the article. The Emory article is an offense which power of counsel to affix upon innocent and began and ended on the 22d of February, and apparently laudable expressions these infinite is comprised within a half hour's conversation consequences of evil surmise,when we rememlietween the President and a General of our ber how, in a very celebrated trial, "chops and armies. tomato sauce" were to go through the service I dare say that in the rapid and heated course of getting a verdict from a jury on a question of this impeachment through the mouse of ofabreachmof romiseofmarriage? [LaughRepresentatives it may have been supposed ter.] Now, "chops and tomato sauce" do not by rumor, uncertain and amplified, that there import a promise of marriage; there is not the had occurred some kind of military purpose or least savor of courtship nor the least flavor of intention on the part of the President that flirtation, even, in them; but it is in "the hidlooked to the use of force; but under these den meaning." And so "the Constitution proofs what can we say of it but that the Presi- and the laws," by these two men, at midday, dent received an intimation from Secretary and in writing, entering into a conspiracy, Welles that all the officers were being called mean, we are told, bloodshed, civil commotion, away from what doubtless is their principal and war Well, I cannot argue against it. occupation in time of peace, attendance upon Cardinal Wolsey said that in political times levees, were summoned, as they were from the you could get a jury that would bring in a verhalls of revelry at Brussels to the battle of dict that Abel killed Cain; and it may be that Waterloo, and it was'natural to inquire when an American Senate will find that in this alluand where this battle was to take place; and sion to the Constitution and the laws is found the President, treating it with very great indif- sufficient evidence to breed from it a purpose ference, said he did not know anything about of commotion and civil war. General Emory, and did not seem to care any- But the conspiracy articles have but a trivial 746 foundation, to rest upon. Here we have a included an attempt within it, I apprehend is statute passed at the eve of the insurrection not supported by any authority or any view of intended to guard the posession of the offices the law; and I must think that it cannot be supof the United States from the intrusion of in- posed in the high forum of a court of impeach. timidation, threats, and force, to disable the ment as making a high crime and misdemeanor. public service. It is, in fact, a reproduction that the President of the United States, in deof the first section of the sedition act of 1798 termining what his powers and duties were in somewhat amplified and extended. It is a regard to filling offices, should have looked into law wholly improper iq time of peace, for, in the common law of the District of Columbia the extravagance of its comprehension, it may because the offices are inside of the District. include much more than should be made crim- Then, upon the views presented of the coninal except in times of public danger. But spiracy articles, let us see what the evidence the idea that a law intended to prevent rebels is. There was no preparation or meditation at the South, or rebel sympathizers as they of force; there was no application of forces were called at the North, from intimidating there was no threat of force authorized on the officers in the discharge of their public duty, part of the President: and there was no exshould be wrested to an indictment and trial pectation of force, for he expected and desired of a President of the United States and an nothing more and nothing less than that, by officer of the nArmy under a written arrange- the peaceful and regular exercise of authority ment of orders to take possession of and ad- on his part, through the ordinary means of its minister one of the Departments of the Gov- exercise, he should secure obedience, and if, vernment according to law, is wresting a disappointed in that, obedience should not be statute wholly from its application. We are. rendered, all that the President desired or exall familiar with the illustration that Black- pected was that, upon that legal basis thu&s stone gives us of the impropriety of following furnished by his official action, there should be the literal words of a statute as against a neces- an opportunity of taking the judgment of the sary implication, when he says that a statute courts of law. against letting blood in the street could not Now, there seems to be left nothing but those properly support an indictment against a sur- articles that relate to the ad interim appointgeou for tapping the vein of an apoplectic ment of General Thomas and to the removal patient who happened to have fallen on the of Mr. Stanton. I will consider the ad interim sidewalk. And there is no greater perversity appointment first, meaning to assume, for the: or contrariety in this effort to make this statute purpose of examining it as a possible crime, applicable to orderly and regular proceedings: that the office had been vacated and was open between recognized officers of the United States to the action of the Presidenti If the office in the disposition of an office than there would was full, then there could be no appointment be: in punishing the surgeon for relieving the by the authority of the President or otherwise, apoplectic patient. The whole action of the President manifestly I did not fully understand, though I care- was based upon the idea that the office was to fully attended to, the point of the argument of be vacated before an ad interim appointments the learned Manager, [Mr. BOUTWELL,J who, could possibly be made, or was intended to, with great precision and detail, brought into take effect. view the common law of Maryland as adopted The letter of authority accompanied the by Congress for the government in the domes- order of removal and was of course secondary' tie and ordinary affairs of life of the people in and ancillary to the order of removal, and was this District; but if I did rightly understand only to take up the duties of the office and. it, it was that, though therewas nothing in the discharge them if the Secretary of War should pe-nalcode of the District, and although the leave the office in need of such temporary act of 1801 did not attempt to make a penal charge. code for the District, yet somehow or other it I think that the only circumstance we have became a misdemeanor for the President of to attend to before we look precisely at the law the United States, in his official functionsf to governing ad interim appointments: is some do what he did do about this office, because: it suggestion as to any difference between ad in,was against the common law of Maryland as terim appointments during the session of the applied in this Distrint. Senate and during the recess. The honorable I take it that I need not proceed on this sub- Managers, perhaps all of them, but certainly ject any further. The common law has a prina the honorable Manager, Mr. BOUTWELL, has ciple that when the common law stigmatizes: a contended that the practice of the Government mWlum in se and a felony it may be a misde- in regard to removals from office covered only meanor at common law to, attempt it and to the case of removals during the; recess of the use the meam. But the idea that when a stat- Senate. It will be part of my duty and labor ute makes malurn prohibittum, and affixes a when I come to consider definitely the question punishment to it if execu~t.d the common law of the removal of Mr. Stanton to consider that adds to that statutory malumprohibitum and point, but for the purpose of Mr. Thomas's punishment a common law punishment, for appointment no such discrimination needs to atlempting it, when the: statute itself has not be made. The question about the: right of the 747 Executive to vacate an office, as tobe discrim- That is to say, the temporary disability proinated between recess and session, arises out vision of the act of 1792, which covered all of the constitutional distinction that is taken, the Departments then in existence, had never to wit: that he can only fill an office during been extended by law to cover the other Desession by and with the advice and consent of partments, and the President desired to have the Senate, and that he can during the recess that act extended. The act of 1795 did not commissicn-it is not called filling the office, need to be extended, for it covered " vacanor appointing, but commission by authority, to cies " in its terms and was applicable to other expire with the next session. Departments, and vacancies were hot in the But ad interim appointments do not rest mind of the President, nor was there any need' upon the Constitution at all. They are not of a provision of law for them. This message regarded, they never have been regarded as an having been referred to the Judiciary Cornexercise of the appointing power in the sense mittee, the honorable Senator from Illinois, of filling an office. They are regarded as fall- [Mr. TRUMBULL,] the chairman of that coming within either the executive or legislative mittee, made a very brief report; I believe duty of providing for a management of the this is the whole of it, or rather a brief stateduties of the office before an appointment is ment in his place concerning it, in which he or can properly be made. In the absence of said: legislation it might be said that this power be- ".There have been several statutes on the subject longed to the Executive; that a part of his duty and as the lawsnow existthe President of the United was, when he saw that accident had vacated: an States has authority temporarily to fill the office:of waS, when he saw that ac cident ha d vacated ar n Secretary of State and Secretary of War with one of office or that necessity had required a removal, the other Secretaries by calling some person to disunder his general authority and duty to see charge the duties." that the laws are executed, he should provide The other Department was the' Treasury. that the public service should be temporarily "We received communications from the President taken up and carried on. I do not think that of the- United States asking thatthe law be extended& to the other Executive Departments of the Governthat is an inadmissible constitutional conclun- ment, which seems to be proper; and we have framed sion. a bill to cover all of those cases, so that whenever But it might equally well be determined t t there is a vacancy the President may tempo&rsi devolve the duty of one of the Cabinet min'ters on it was a casus omisstu, for which the Con-stitu- another Cabinet minister, or upon the chief officer tion had providedno rules and which the legis- in the Department for the time being." lation of Congress might properly occupy. Here there does not seem to have beenr From the beginning, therefore, as; early as brought to the notice in terms of the Senate or 1792 and 1789, indeed, provision is made for ofthe honorable Senator the act of 1795; nothtemporary occupation of the duties of an office, ing is said of it;- and it would appear, thereand the course of legislation was this: the fore, as if the whole legislation of 1863 proeighth section of the act of 1792, regulating ceeded upon the proposition of extending the three of the Departments, provided that tern- act of 1792 as to disabilities in office, not vacanporary absence and disabilities of the heads of.cies, except that the honorable Senator uses Departments, leaving the office still full, might the phrase " vacancies" and that he speaks of be met by appointments of temporary persons having provided for the occasions that might to take charge. The act of 1795 provided that arise. The act of 1863 does not cover the case in case of a vacancy in the office there might of vacancies except by resignation, and it is be power in the Executive which would inot not, therefore, a vacancy act in full. It does require him to fill the office by the eonstitu- add to the disabilities which the President had tiqnal method but temporarily to provide for a asked to have covered, a case of resignation discharge of its duties. Then came the act of which he did not ask to have covered, andwhich 1863, which in terms covers to a certain extent did not need to be covered by new legislation, but not fully both of these predicaments; and becautse the act of 1794 embraced it. But this I wish to ask your attention to some circum- act of 1863 does not cover all the cases of stances inregard to the passage of that act of vacancy. It does not cover vacancies by re1863. I have said that the eighth section of moval;, if removal could be made, and we gsup the act of 1792 provides for filling temporarily, posed it could in 1863; it does not cover the not vacancies but disabilities. In January; case of expiration of office, which is a case of 1863, the President sent to Congress this brief vacancy provided there are terms to office. message, and Senators will perceive that it Under that additionaI light it seems as if relates to this particular subject: the only question presented of guilt on the part To the Senate and, House of Representatives: of the President in respect to the appointment I submit to Congress the expediency of extending to office ad interim was a question of whether to other Departments of the Government the au- he violated a law, But Senators will remark thority conferred on the Present bthe eighth sec- the very limited form in which that question tion of the act of the 8th of M.aX,!92, to a ppoint a person to temporarily discharge the duties of Secre- arses. It is not pretended that the appointtary of State, Secretaiy of the Treasury, and Secre- ment of Thomas, if the office was vacant, was tary of War, in case of the death, absence from the a violation of the civil-tenure act; that is, it seat of Government. or sickness of either of thqse officers. ABRAHAM LINCOLN. is not pretended in argument, although perEWASHINGTON, January 218633. - haps it may be so charged in the articles-; 748 because an examination of the act shows that it on the basis either that the act of 1795 was the only appointments prohibited there and repealed or upon the basis that there was not a the infringement of which is mde penal is doubt or difficulty or an ignorance upon which appointing contrary to the provisions of that a President of the United States might make act, as was pointed out by my colleague, Judge an ad interim appointment of General Thomas Curtis, and seems to have been assented to in for a day, followed by a nomination of a perthe argument on the other side; that an ap- manent successor on the succeeding day. Truly, pointment prohibited' or an attempt at an indeed, we are getting very nice in our measure appointment prohibited relates to the infrac- and criticism of the absolute obligations and tion of the policy and provisions of that act as of the absolute acuteness and thoroughness of applied to the attempt to fill the cffrces that executive functions when we seek to apply the are declared to be in abeyance under certain process of impeachment and removal to a predicaments. I believe that to be a sound question whether an act of Congress required construction of the law, whether assented to him to name a head of a Department to take or not, not to be questioned anywhere. the vacant place ad interim, or an act of ConVery well, then, supposing that the appoint- gress not repealed permitted him to take a ment of General Thomas was not according to suitable person. You certainly do not, in the law, it is not against any law that prohibits it ordinary affairs of life, rig up a trip-hammer to in terms, nor against any law that has a penal crack a walnut. clause or a criminal qualification upon the I think, Mr. Chief Justice, that I shall be act. What would it be if attempted without able to conclude what I may have to say to the authority of the act of 1795, because that was Senate further within certainly the compass of repealed, and without authority of the act of an hour; and as the customary hour of ad1863, because General Thomas was not an offi- journment has been reached, I may, perhaps, cer that was eligible for this temporary employ- be permitted to say that I feel somewhat sensiment? It would simply be that the President, bly the impression of a long argument. in the confusion among these statutes, had Several SENATORS. Go on, go on. appointed or attempted to appoint an adinterim Mr. HENDERSON. I move that the Sendischarge of the office without authority of ate adjourn. law. You could not indict him very well for The CHIEF JUSTICE. The Senator from it, and I do not think you can impeach him for Missouri moves that the Senate, sitting as a it. There are an abundance of mandatory laws court of impeachment, adjourn until to-morrow upon the President of the United States, and at twelve o'clock. it never has been customary to put a penal The motion was agreed to; and the Senclause in them till the civil-tenure act of 1867. ate, sitting for the trial of the impeachment, But on this subject, the ad interim appoint- adjourned. ments, there is no penal clause and no positive prohibition in any statute. There would be, then, simply a defect of authority in the Pres-. FRIDAY May 1, 1868. ident to make the appointment. What, then, The Chief Justice of the United States took would be the consequence? General Thomas the chair. might not be entitled to discharge the duties The usual proclamation having been made of the office; and if he had undertaken to give by the Sergeant-at-Arms, a certificate as Secretary ad interim to a paper The Managers of the impeachment on the that was to be read in evidence in a court, and part of the House of Representatives and the a lawyer had got up and objected that General counsel for the respondent, except Mr. StanThomas was not Secretary ad interim, and had bery and Mr. Curtis, appeared and took the brought the statutes, the certificate might have seats assigned to them respectively. failed. That is all that can be claimed or The members of the House of Representapretended in that regard. tives, as in Committee of the Whole, preceded But we have insisted, and we do now insist, by Mr. E. B. WASHBURNE, chairman of that that the act of 1795 was in force; and that committee, and accompanied by the Speaker whether the act of 1795 was or was not in force, and Clerk, appeared and were conducted to is one of those questions of dubious interpreta- the seats provided for them. tion of implied repeal upon which no officer, The Journal of yesterday's proceedings of humble or high, could be brought into blame the Senate, sitting for the trial of the impeachfor having an opinion one way or the other. ment, was read. And if you proceed upon these articles to exe- The CHIEFJUSTICE. Senators will please cute a sentence of removal from office of a give their attention. The counsel for the PresiPresident of the United States, you will pro- dent will proceed with the argument. ceed upon an infliction of the highest possible Mr. EVARTS. Mr. Chief Justice and Senmeasure of civil condemnation upon him per- ators, I cannot but feel that notwithstanding sonally, and of the highest possible degree of the unfailing courtesy and the long-suffering interference with the constitutionally elected patience which for myself and my colleagues Executive dependent on suffrage that it is I have every reason cheerfully to acknowledge possible for a court to inflict, and you will rest on the part of the court in the progress'of this _749' trial and in the long argument, you had aithe ties of their respective offices, it shall be lawful for adjournment yesterday reached somewhat of the President of the United States, in case he shall think it necessary, to authorize any person or perthe condition of feeling of a ver y celebrated sons, at his discretion, to perform the duties of the judge, Lord Ellenborough, who, when a very said respective offices until a successor be appointed, celebrated lawyer, Mr. Fearne, had conducted or until such absence or inability by sickness shall an argument upon the interesting subject of cease. contingent remainders to the ordinary hour of I am told, or I understand from the arguadjournment, and suggested that he would ment, that if there was a vacancy in the office proceed whenever it should be his lordship's of Secretary of War by the competent and pleasure to hear him, responded, " The court effective removal of Mr. Stanton by the exerwill hear you, sir, to-morrow; but as to pleas- cise of the President's authority in his paper ure, that has been long out of the question." order, there has come to be some infraction of [Laughter.] law by reason of the President's designating Be that as it may, duties must be done, General Thomas to the ad interim charge of however arduous, and certainly your kindness the office, because it is said that though under and encouragement relieve from all unneces- the act of 1795, or under the act of 1792, Gensary fatigue in the progress of the cause. We eral Thomas, under the comprehension of will look for a moment, under the light which "any person or persons," might be open to the I have sought to throw upon the subject, a presidential choice and appointment, yet that little more particularly at the two acts, the he does not come within the limited and reone of 1795 and the other of 1863, that have stricted right of selection for ad interim duties relation to this subject of ad interim appoint- which is imposed by the act of 1863; and it ments. The act of 1795 provides: seems to have been assumed in the argument "That in case of vacancy in the office of Secretary that the whole range of selection permitted of State, Secretary of the Treasury, or of the Secre- under that act was of the heads of Departtary of the Department of War, or of any officer of nts. But yo either of the said Departments, whose appointment me ur attention is drawn to the is in the head thereof, whereby they cannot perform fact that it permits the President to designate the duties of their said respective offices, it shall be any person who is either the head of a Departlawful for the President of the United States, in case ment, or who holds any office he shall think it necessary, to authorize any person nt, or who holds any office in any Departor persons, at his discretion, to perform the duties ment the appointment of which is from the of the said respective offices until a successor be ap- President; and I would like to know why Genpointed or such vacancy be filled: Provided, That no eral Thomas, Autant General of the armies one vacancy shall be supplied in manner aforesaid era Thomas Ad jutant General of the armies for a longer term than six months." of the United States, holding his position in The act of 1863, which was passed under a that Department of War, is not an officer apsuggestion of the President of the United pointed by the President, and open to his States, not for the extension of the vacancy selection for this temporary duty; and I would act which I have read to the other Departments, like to know upon what principle of ordinary but for the extension of the temporary-dis- succession or recourse for the devolution of the ability provision of the act of 1792, does pro- principal duty any officer could stand better vide as follows: suited to assume for a day or for a week the " In case of the death, resignation, absence from discharge of the ad interim trust than the Adthe seat of Government, or sickness of the head of jutant General of the armies of the United any executive Department of the Government, or of States, being the staff officer of the President, any officer of either of the said Departments whose appointment is not in the head thereof, whereby as the printhey cannot perform the duties of their respective cipal directory and immediate agent of the War offices, it shall be lawful for the President of the Department in the exercise of its ordinary UJhited States, in case he shall think it necessary, to functions? authorize"I cannot but think it is too absurd for me to Not "any person or persons," as is the act argue to a Senate that the removal of a Presiof 1795, but- dent of the United States should not depend "to authorize the head of any other executive upon the question whether an Adjutant GenDepartment or other officer in either of said De- eral was a proper locum tenens or not, or partments whose appointment is vested in the PresIdent, at his discretion, to perform the duties of the whether entangled between the horns of the said respective offices until a successorbe appointed, repealed and unrepealed statutes the President or until such absence or disability by sickness shall ve erred in that on which he hung his cease: Provided, That no one vacancy shall be supplied in manner aforesaid for a longer term than six rightful authority. months." Let me call your attention now to an exerIt will be observed that the eighth section of cise of this power of ad interim appointment the act of 1792, to which I will now call atten- as held in the administration of President Lintion, being in 1 Statutes-at-Large, page 281, coln, at page 582 of the record, before the provides thus: enactment of the statute of 1863. You will " That in case of the death, absencefrom the seat observe that before the passing of the act of of Government, or sickness of the Secretary of State, 1863 there was in force no statutory authority Secretary of the Treasury, or of the Secretary of the for the appointment of ad interim discharge War Department, or of any officer of either of thed interim discharge said Departments, whose appointment is not in the of the offices except the acts of 1792 and 1795, head thereof, whereby they cannot perform the du- which were limited in their terms to the De 760 partments of War, of State, and of the Treas- learned and honorable Manager, [Mr. BouTury. You have, therefore, directly in this WELL:] it is that anyhow and anyway the Presi, action of President Lincoln the question of dent has been guilty of ahigh crime and misdeultra vires, not of an infraction of a prohibit- meanor, however innocent otherwise, because ory statute with a penalty, but of an assump- the six months' ability accorded to him by the tion to make an appointment without the ade- act of 1795 or 1863 had already expired before quate support of an enabling act of Congress he appointed General Thomas. to cover it, for he proceeded, as will be found The reasoning I do not exactly understand; at the very top of that page: it is definitely written down and the words I hereby appoint St. John B. L. Skinner, now have their ordinary meaning, I suppose; but acting First Assistant Postmaster General, to be how it is that the President is chargeable with acting Postmaster General ad interim, in place of having filled a vacancy thus occurring on the Hon. Montgomery Blair, now temporarily absent. ABRAHAM LINCOLN. 21st of February, 1868, if it occurred at all, WASHINGTON, September 22, 1862. by an appointment that he made ad interim The Department of the Post Office was not on that day which was to run in the future, covered by the acts of 1792 or 1795, and the what the suggestion that the six months' right absence of authority in respect to it and the had expired rests upon, I do not understand. other later organized Departments formed the It is attempted to connect it in some way with occasion of the President's message which a preceding suspension.-of Mr. Stanton under led to the enactmentof 1863. I would like to the civil-tenure act, which certainly did not know whether, when President Lincoln ap- create a vacancy in the office as by law it was pointed Mr. Skinner to be Postmaster Gen- prohibited from doing, nor did it create in any eral, without an enabling and supporting act form or manner a vacancy in the office. No.of Congress to justify him, he deserved to be matter, then, whether the suspension was under impeached, whether that was a crime against the civil-tenure-office act or the act of 1795, the Constitution and his oath of office, whether the office was not vacant until the removal; it was a duty due to the Constitution that he and whatever there may have been wanting in should be impeached, removed, and a new authority in that preceding action of the Preselection ordered? ident as not sufficiently supported by his constiI cannot but insist upon always separating tutional authority to suspend, which he claims, from these crimes alleged in articles the guilt and as covered necessarily by the act of 1867, that is outside of articles and that has not been as is argued on the part of the Managers, I proved, and that I have not answered for the cannot see that it has anything to do with respondent nor have been permitted to rebut cutting short the term during which it was comby testimony. I take the thing as it is, and I petent for the President to make an ad interim regard each article as including the whole cor- appointment. pass of a crime, the whole range of imputation, There remains nothing to be considered the whole scope of testimony and considera- except about an ad interim appointment as tion; and unless there be some measure of occurring during a session of the Senate. An guilt, some purpose or some act of force, of effort has been made to connect a discriminaviolence, of fraud, of corruption, of injury, tion between the session and the recess of the of evil, I cannot find in mistaken, erroneous, Senate in its operation upon the right of ad careless, or even indifferent excesses of au- interim or temporary appointments, with the thority, making-no impression upon the fabric discrimination which the Constitution makes of the Government and giving neither menace between the filling of an office during the sesnor injuryto the public service, any foundation sion and the'limited. commission which is perfor this extraordinary proceeding of impeach- mitted.during the recess. But sufficiently, I paent., imagine, for the purposes of conviction in your Am I right in saying that an article is to minds, it has been shown that temporary contain guilt enough in itself for a verdict to appointment does not rest upon the constitube pronounced by the honorable members of tional provisions at all; that it is not a filling the court "guilty" or "not guilty" on that of the office, which remains just as vacant, as article; guilty not of an act as named, but far as the constitutional right and duty remains "guilty of a high crime and misdemeanor as or is divided in the different Departments of charged," and as the form of question adopted the Government, as if the temporary appointin the Peck and Chase trials is distinctly set ment had not been made. When the final down and not the question used in the Pick- appointment is made it dates as from and to ering trial for a particular purpose, which has supply the place of the person whose vacancy. led the honorable Manager [Mr. WILSON] to led to the ad interim appointment. That in denounce it as a mockery of justice, a finding the very nature of things there should be no of immaterial facts, leaving no conclusions of difference in this capacity between recess and law or judgment to be found by anybody. session sufficiently appears, and the acts of There is another point of limitation on the Congress draw no distinction, and the practice authority of the President, as contained both of the Government makes not the least differin the act of 1795 and of 1863, which has been once. made the subject of some comment by the We are able to present to your notice on the 751 pages of this record cases enough applicable to brium which yesterday I divided among three the very heads of Departments to make it members of this court alone. unnecessary to argue the matter upon general But as matter of constitutional right, of principles any further. Mr. Nelson, on the 29th ability of the President to receive aid and diof February, 1844, was appointed ad interim rection from these heads of Departments, it in the State Department during the session of has been presented as a dangerous innovation, the Senate. This is to be found on page 556. of a sort of Star Chamber council, I sup. General Scott was appointed in the War Depart- pose, intruded into the Constitution, that was nient July 23, 1850, page 537, during the ses- to devour our liberties. Well, men's minds sion of the Senate; Moses Kelly, Secretary change rapidly on all these public questions, of the Interior, January 10, 1861, during the and perhaps some members of this honorable session of the Senate, at page 558; and Joseph Senate may have altered their views on that Holt Secretary of War on the 1st of January, point from the time of the date of the paper I 1861, during the session of the Senate, at page hold in my hand, to which I wish to ask your 583. Whether these were to fill vacancies attention. It is a representation that was made or for temporary disabilities makes no dif- to Mr. President Lincoln bya veryconsiderable ference on the question; nor how the vacancy number of Senators as to the propriety of his arose, whether by removal or resignation or having a Cabinet that could aid him in the death. discharge of his arduous executive duties: The question of the ad interim faculty of "The theory of our Government, the early and appointment depends upon no such considera- uniform practical construction thereof, is that the President shouldbe-aidedbyaCabinetcouncilagreetions. They were actual vacancies filled by Peing with him in political principle and general polad interim appointment, and related all, except icy, and that all important measures and appoitthat of Moses Kelly, to Departments that were ments should be the result of their combined wisdom covered by the legislation of 1792 and- 1795. and deliberation. The most obvious and -necessary covered by the legislation of 1792 and1795. condition of things, without which noAdministration That of Moses Kelly to the Department of the can succeed, we and the publio'believe does not ex-'IJnterior was not cov~ered by that legislation, ist; and therefore, such selections and changes in its members should be made as will secure to the and would come within the same principle country unity of purpose and action in all rnaterial with the appointment of Mr. -Skinner which I and essential respects. More especially in the preshave noticed on page 582. ent crisis of public affairs the Cabinet should be ~I~now conewthth tmstcnexclusively composed of statesmen who are cordial, I now come with the utmost confidence, as resolute, unwavering supporters of the principles and having passed through all possible allegations purposes above mentioned." of independent infraction of the statute, to the There are appended to this paper as it comes consideration of the removal of Mr. Stanton as to me the signatures of twenty-five Senators. charged as a high crime and misdemeanor in Whether it was so signed or not I am not adthe first article, and as to be passed upon by vised; but that'it was the action of those Senthis court under that imputation and under ators, I believe, is not doubted, and among them the President's defense. The crime as charged there are some fifteen or more that are memmust be regarded as the one to be considered, bers of this present court. The paper has no and the crime as charged and also proved to date, but the occurrence was, I think, some time be the only one upon which the judgment has in the year 1862 or 1863, a transaction and a to pass. Your necessary concession to these juncture which is familiar to the recollection obvious suggestions relieves very much of any of Senators who took part in it, and doubtless difficulty and of any protracted discussion this of all the public men who I have the honor very simple subject as it will appear to be. now to address. Before taking up the terms of the article'and These honorable Managers in behalf of the the consideration of the facts of the procedure House of Representatives do not hold to these I ask your attention now, for we shall need to ideas at all, and I must think'that the'course use them as we proceed, to some general light of this court in its administration of the laws of to be thrown both upon the construction of evidence as not enabling the President to pro. the act by the debates of Congress and upon duce the supporting aid of his Cabinet, which the relation of the Cabinet as proper witnesses you said be ought to have in all his measures or proper aids in reference to the intent and and views, has either proceeded upon the purpose of the President within the practice ground that his action, in your judgment, did of this Government, and with the latter first. not need any explanation or support, or else Most extraordinary, as I think, views have you had not sufficiently attended to these been presented in behalf of the House of Rep- valuable and useful views about a Cabinet resentatives in relation to Cabinet ministers. which were presented to the notice of PresiThe personal degradation fastened upon them dent Lincoln. Public rumor has said, the by the observations of the honorable Manager truth of which I do not vouch, as I have no [Mr. BOUTWELL] I have sufficiently referred to; knowledge, but there are many who well know but I recollect that there are in your number that the President rather turned the edge of two other honorable Senators, the honorable this representation by a suggestion whether in Senator from Maryland [Mr. JOHNSon] and fact the meaning of the honorable Senators the honorable Senator from Iowa, [Mr. HAR- was not that his Cabinet should agree with LAN,] who must take their share of the oppro- them rather than with him, Mr. Lincoln. How 752 ever that may be, the doctrines are good and by the whole Senate on the question of conare according to the custom of the country and struction of the act as inclusive of Mr. Stanthe law of our Government. ton in his personal incumbency of office or We may then find it quite unnecessary to not. When the conference committee reported refute by any very serious and prolonged argu- the section as it now reads as the result of a ment the imputations and invectives against compromise between the Senate in its firm Cabinet agreement with the President which views and the House in its firm purposes the have been urged upon your attention. honorable Senator from Michigan [Mr. HowAnd now, as bearing both on the question of ARD] asked that the proviso might be explained. a fair. right to doubt and deliberate on the part Now you are at the very point of finding out of the President on the constitutionality of what it means when a Senator gets so far as to this law, the civil-tenure act, and on the con- feel a doubt and wants to know and asks those struction of its first section as embracing or not who have charge of the matter and are fully embracing Mr. Stanton, I may be permitted to competent to advise him. The honorable attract your attention to some points in the Senator [Mr. WILLIAMS] states: debates in the Congress which have not yet "Their terms of office shall expire when the term been alluded to, as well as to repeat some very of office of the President by whom they were appointed brief quotations which have once been pre- expires. sented to your attention. I will not recall the "I have from the beginning of this controversy history of the action of the House on the gen- regarded this as quite an immaterial matter, for I have no doubt that any Cabinet minister who has a eral frame and purpose of the bill, nor the particle of self-respect-and we can hardly suppose persistence with which the Senate, as one of that any man would occupy so responsible an office the advisers of the President in the matters of without having that feeling-would decline to remain in the Cabinet afterthe President had signified appointment as well as a member of the legis- to him that his presence was no longer needed. As lative branch of the Government, pressed the a matter of course the effect of this provision will exclusion of Cabinet ministers from the pur- amount to very little one way or the other; for I presume that whenever the President sees proper view of the bill altogether; but when it was to rid himself of an offensive or disagreeable Cabinet found that the House was persistent also in its minister, he will only have to signify that desire view, the Senate concurred with it on confer- and the ministerwill retire and a new appointment ew, the Senate concurre with it on confer- be made." —Ibid., p. 1515. ence in a measure of accommodation concerning this special matter of the Cabinet which Mr. SHERMAN, one of the committee of conis now to be found in the text of the first sec- ference, states: tion of the act. In the debate on the tenure- "I agreed to the report of the conference commitof-office bill the honorable Senator from Ore- tee with a great deal of reluctance. gon, [Mr. WILLIAMS,] who seems to have had, " I think that no gentleman, no man of any sense of honor, would hold a position as a Cabinet officer with the honorable Senator from Vermont, after his chief desired his removal, and, therefore, [Mr. EDMUNDS,] some particular conduct of the slightest intimation on the part of the President the debate according to a practice apparently would always secure the resignation of a Cabinet otffithe debate according to a practice apparently cer. For this reason I do not wish to jeopard this quite prevalent now in our legislative halls, bill by an unimportant and collateral question." said this: He proceeds further: "I do not regard the exception as of any great practical consequence"- " The proposition now submitted by the conference That is, the exception of Cabinet ministers- committee " because I suppose if the President and any head of And this was in answer to the demand of the a Department should disagree so as to make their re- Senate to know from the committee what they lations unpleasant, and the President should signify had done and what the operation of it was to a desire that that head of Department should retire from the Cabinet, that would follow without any be. The answer of Mr. SHERMAN is: positive act of removal on the part of the Presi- The proposition now submitted by the conference dent. "-tsongre8sional Globe, Thirty-Ninth Congress, committee is that a Cabinet minister shall hold his second session, p. 383. office during the LIFE or TERM of the President who Mr. SHERMAN, bearing on the same point, appointed him. IfthePresidentdiestheCabinetgoes,said:out; if the President is removed for cause by impeach1s~~~~~~aid:~~ ~ment the Cabinet goes out; at the expiration of the "Any gentleman fit to be a Cabinet minister, who term of the President's office the Cabinet goes out." receives an intimation from his chief that his longer continuance in that office is unpleasant to him, This is found at page 1515 of the Globe of would necessarily resign. If he did not resign ittheface of ths can would show he was unfit to be there. I cannot n th ac fts imagine a case where a Cabinet officer would hold we with patience listen to long arguments to on to his place in defiance and against the wishes of show that, in regard to Cabinet ministers situhis chief."-lbid., p. 1046. ated as Mr. Stanton is, the whole object of limBut, nevertheless, this practical lack of im- itation of the proviso and the bill to which the portance in the measure, which induced the Senate was ready to assent becomes nugatory Senate to yield their opinions of regularity of and unprotective of the President's necessary governmental proceedings and permit a modi- right, by a constructive enforcement against fication of the bill, led to the enactment as it him of a continuing Cabinet officer whom he now appears; and the question is how this never appointed at all? And how shall we matter was understood, not by one man, not tolerate this argument that the term of a Presiby one speaker, but, so far as the record goes, dent lasts after he is dead, and that the term in 753 which Mr. Stanton was appointed by Mr. Lin- long to the race of the immortals. Now, sencoln lasts through the succeeding term to which ators, I press upon your consideration the in. Mr. Lincoln was subsequently elected? But evitable, the inestimable weight of this senathat is not the point. You are asked to remove torial discussion and conclusion. I do not a President from office under the stigma of press it upon particular Senators who took impeachment for crime, to strike down the only part in it, especially. I press it upon the conelected head of the Government that the actual curring, unresisting, assenting, agreeing, concircumstances permit the Constitution to have firming, corroborating silence of the whole Senrecourse to, and to assume to yourselves the ate. And I would ask if a President of the sequestration. and administration of that office United States and his Cabinet, having before ad interim upon the guilt of a President in them the question upon their own solution of thinking that Mr. SHERMAN, in behalf of the the ambiguities or difficulties; if there be any, conference committee, was right in explain- and I think there are not, in this section, might ing to the Senate what the conference com- not well repose upon the sense of the Senate mittee had done. Nobody contradicted him; that they would not have agreed to the bill if nobodywantedanyfurtherexplanation; nobody it had any such efficacy as is now pretended doubted that there was no vice or folly in this for it, and the explanation of the committee, act that, in undertaking to. recognize a limited and the acceptance of it by the Senate that it right of the President not to have ministers had no such possible construction or force. retained in office that he had not had some voice Nevertheless, if the President must be conin appointing, gave it the shape, and upon victed of ahigh crime and misdemeanorfor this these reasons, that it bears to-day. concurrence with your united judgments, and And I would like to know who it is in this that sentence proceeds also from your united honorable Senate that will bear the issue of the judgments, we shall have great difficulty in scrutiny of the revising people of the United knowing which of your united judgments is States on a removal from office of the Presi- entitled to the most regard. dent for his removal of an officer that the Sen- In the House this matter was considered in ate has thy declared not to be within the pro- the statements of Mr. SCHENCK, who, with Mr. tection of the civil-tenure act. Agree that, WILLIAMS and Mr. WILSON, now among the judicially, afterward it may be determined Managers, constituted the conference commitanywhere that he is, who will pronounce a tee, Mr. WILLIAMS having been, as is well judgment that it is wrong to doubt? Ego known, one of the principal promoters of the assentior eo, the President might well say in original measure. Mr. SCHENCK states upon deference to the opinion of Mr. SHERMAN, even a similar inquiry made in the House as to what if that judgment of some inferior court, to say they had all done on conference: nothing even of the highest, the Supreme "A compromise was made by which a further Court, or the highest special jurisdiction, this amendment is added to this portion of thebill, so that court, should determine otherwise, the term of office of the heads of Departments shall court, should deterwamine otherwise. tuexpire with the term of thePresident who appointed, But the matter was brought up a little more them, allowing those heads ofDepartments one montli distinctly. Mr. DOOLITTLE having said that longer, in which, in case of death or otherwise, other this proviso would not keep in the Secretary of heads of Departments can be named. This is the whole effect of the proposition reported by the comWar and that that had been asserted in debate mittee of conference." as its object, Mr. SHERMAN, still having charge And again: of the matter, as representing the conference Te commifthettee, asproceeds enting the*conferenc " Their terms of office are limited, as they are not committee, proceeds: now limited by law, so that they expire with the term "fThat the Senate had no such purpose was shown of service of the President who appoints them and by its vote twice to make this exception. That this one month after."-Coslgressional Globe, second sesprovision does not apply to the present case is shown sion Thirty-Ninth Congress, page 1340. by the fact that its language is so framed as not to apply to the present President. The Senator shows Not the elected term, but the termof serthat himself, atid argues truly that it would not pre- vice;" and if removal by impeachment termvent the present President from removing the Sec- inates the term of service, as it certainly does, retary of War, the Secretary of the Navy, and theigher power equally ter Secretary of State. And if I supposed'that either of or death by a higher power equally terminates thesegentlemenwassowantinginmanhood, inhonor, it, upon Mr. SCHENCK'S view, in which apparas to hold his place after the politest intimation by ently Messrs. Managers WILSON and WILLIAMS the President of the United States that his servicesconcurred, the were no longer needed, I, certainly, as a Senator, o the Hous e is presented as coming would consent to his removal, and so would we all." to the same conclusion with the Senate. NevThat is at page 1516 of the Globe; and yet ertheless, the whole grave matter left of crime later, in continuation of the explanation, the is an impeachment of the House for making same honorable Senator says thus definitely: the removal, and a condemnation sought from the Senate upon the same ground; and we are "We provide that a Cabinetministershall hold his brought therefore, to a consideration of the office, not for a fixed term, NOT until the Senate shall consent to his removal, but as long as the power meanin g of the act, of its constitutionality, of that appoints him holds office. If the principal office is the right of the President to put its constituvacated, the Cabinet minister goes out."-Page 1517. tionality in issue by proper and peaceful proAnd if the principal office is not vacated by ceedings, or of his right to doubt and differ on death under our Government, we certainly be- the construction, and honestly, peacefully to C. I. -48. proceed, as he might feel himself best advised, practice of the Government where there has to learn what it truly meant. been a separate act of removal, during session And now I may here at once dispose of what or during recess either, we are under two necesI may have to say definitely in answer to some sary restrictions as to their abundanee or freproposition insisted on: by the honorable Man- quency, which the nature of the circumstances ager, [Mr. BOUTWELL.]; He has undertaken to imposes. The first is that in regard to Cabinet disclose to you his views of the result of the officers you can hardly suppose an instant in debate of 17'89, and of the doctrines of the which a removal can be possible, because in Government as there developed, and has not the language, honorable Senators, you can hesitated to claim that the limitation of those hardly conceive of the possibility of a Cabinet doctrines was confined to appointments during officer's not resigning when it is intimated to the recess of the Senate. Nothing could be him thathisplaceiswanted; and, therefore, all less supported by the debate or by the practice this tirade of exultation that we found no case of of the Government. In the whole of that removal of a Cabinet officer save that of Timodebate, from beginning to end, there is not thy Pickering rests upon Senator SHEURMAN'S found any suggestion of the distinction that the proposition and Senator WILLI.AMS' S propohonorable: Manager: has not hesitated to lay sition that you cannot conceive of the possidown in print for your guidance as its result. bility of there, being a Cabinet minister that The whole- question was otherwise, whether or would need to be removed, and the practice of no the power of removal resided in the Presi- our Government has shown that these honordent absolutely. If it did, why should he not able Senators were right in their proposition, remove at one time, as well as at another? andthat there neverhavebeen, from the found, The: power of appointment was restricted in tion of the Government to the present time, the Constitution by a distinction between recess but two cases. where there were Cabinet minisaind session. If, on the other hand, the power ter3 that on the slightest intimation of their of removal was admiinisterable by Congress, it chief did not resign. Now, do not. urge on us needed to provide for its. deposit with the Pres- the paucity of the cases of removal of heads ident, if that was the ideas as well in time of of Departments as not helping the practice of Fession as in time of recess, because the whole the Government when that paucity rests upon * question and action of the separate exercise retirement whenever a President desires it. of the power- of removal from, the power of Mr. Pickering, having nothing but wild land appointment would arise when the emergency for his support and a family to sustain, flatly of removal dictatedinstant action. We under- told Mr. Adams that he would not resign, bestand that when the removal is political, or on cause it would not be convenient for him to the plan of rotation in office, as we call it, the make any other arrangements for a living until whole motive of the removal is the new the end of his term; and the President, without appointment. that consideration of domestic reasons which The new appointment is the first thought perhaps Mr. Pickering hoped would obtain with and- wish. There is no desire to get rid of the him, told him that he removed him, and he did; old officer except for the purpose of getting in and he went, I believe, to his wildland and was the new. And therefore the general practice imprisoned there by the, squatters, and came of the Government in its mass of action, since into very great disaster from this removal. Mr. the times of rotation in office began, is of this Mr. Stanton, underthe motives of public duty, political removal, which is not getting rid of it is said, takes the position that for public retthe old officer from any objection to him, but sons he will not resign. These are the only because his place is wanted for the new. two cases in our Government in which the qnesEence all this parade of the action of the Gov- tion has arisen, and in one of them, before the ernment showing that it has been the habit in passage of the civil-tenure act, the Secretary those political appointments to send in the was instantly removed by the power of the Presname of the new man, and by that action put ident, and in the other it was attempted. after him in the place of the old, serves no purpose long sufferance. of argument, and carries not a penny's weight We can fi-nd in the history of the Governon the question. The form of the notice as in ment-for we should hardly expect to: escape the last one on: your table, the appointment the occurrence when we have so many officersof General Schofield, and so from the beginning instances enough of removal by executive of the office, is "in place of A B," not "to be authority during the session of the Senate of removed by the Senate)" but "of A B, re- subordinate officers of the Government who moved," meaning this: "I, asPresident, have derived their appointment from the President, no power to appoint unless there is a vacancy; by the advice and consent of the Senate, and I tell you that I have mnade a vacancy or pre- every one of those cases is pertinent and an sent to you a case of vacancy created by my instance. You will observe in regard to them, will, by removal; not death or resignation; as I said before, how peculiar must be the sitand. I name to.you C D to be appointed in the uation of the officer and office and of the Presplace of A B, removed." That is the mean- ident toward them when this separate, indeIng of that action of the Government. pendent, and condemnatory removal needs to You: will observe that in finding cases in the I take place. In the first. place, there must be 755 some fault in the conduct of the officer, not Look at it in regard to this point: the Sennecessarily crime, and not necessarily neglect ate is in session, and a public officer is carrying of office, but some fault in manner at least, as on his frauds at San Francisco or at New Yorkof that collector down in Alabama, who, when or wheresoever else, perhaps in Hong Kong he was asked by the Secretary of the Depart- or Liverpool, and it comes to the knowledge of ment how far the Tombigbee ran up, answered the Executive; the session of the Senate goes that it did not run up at all, [laughter;] and on; the fact of his knowledge does not put him he was removed from office for his joke on the in possession of a good man to succeed him subject of the Tombigbee river not running up, either in his own approval or in the assent of but, as other rivers do, running down. It does the new nominee; and if it is necessary under not do to have these asperities on the part of our Constitution that the consul at Hong Kong inferior officers. So, too, when the fault arises or at Liverpool, or the sub-Treasurer at New of peculation, of deficiency of funds, or what York or the master of the mint at San Frannot, the sureties know of it, come forward and cisco, should go on with his frauds until you say to the officer, " You must resign; we cannot and the President can find a man and send him be- sureties any longer here;" and in nine cases there and get his assent and his qualifications, out of ten, where an occurrence would lead to very well. It is not a kind of legislation that removal, it is met by the resignation of the is adapted to the circumstances of the case is inferior officer. Therefore the practice of the all that I shall venture to suggest. Whatever Government can expect to suggest only the your positive legislation has done or attempted peculiar cases where promptitude and neces- to do, no construction and no practice of the sity of the rough method of removal are alike Government while the executive department demanded from the Executive. I will ask the was untrammeled by this positive restriction attention of this honorable court to the cases hmss ever shown a discrimination between seewe have presented in our proofs, with the page sion and recess. Of course, the difference and instance of each removal. during the ses- between session and recess is shown in the sion of the Senate. That is the condition of political appointments where, the object being this list-the whole of it: Year Page the new appointment, the commission- goes Timothy Pickering............................-....1800 357 ot in the recess; where durng the ession Thomas Eastin, navy agent at Pensacola..184 569 the object being the new appointment, it Isaac Henderson, navy agent.................1864 571 must proceed through the concurrence of the James S. Chambers, navy agent.............1864 572 Senate. Amos Binney..........................................1826 573 n John Thomas........................... 841 573 And no that I come to consider the actua Samuel F. Marks............................. 1860 581 merits of the proceeding of the President andu Isaac. Fowlhel Ster 5..........................81 give a precise construction to the first section Mitchell Steever...................................1861 581 of the bill, I need to ask your attention to a I think the honorable Senators must give remarkable concession made by Mr. Manager their assent to the propositions I have made BUTLER in his opening, as we regarded it, that that in regard to Cabinet officers it is almost im- if the President, having this wish of removal, possible to expect removal as a separate act; had accomplished it in a method the precise that political removals necessarily have for terms of which the honorable Manager was so their first step the selection and presentation good as to furnish, then there would have been of the new man for whose enjoyment of office no occasion to have impeached him. It is not the removal is to take place; that in regard to then,' after all, the fortiter in re on the part of criminality and necessity requiring instant re- the President that is complained of, but the moral of subordinate officers, resignation will absence of the suaviter in modo; and you, wa then be required by their sureties or by their a court, upon the honorable Manager's own sense of shame or their disposition to give the argument, are reduced to the necessity of re-. easiest issue to the difficulty in which they are moving the President of the United States not placed; and when with the circumstances of for the act, but for the form and style in which the matter reducing the dimensions of the pos- it was done, just as the collector at Mobile sibility and of the frequency within these nar- was removed for saying that the river Tombigrow limits I present to you in behalf of the bee did not run up at all. respondent these evidences of the action of But more definitely the honorable Manager this Government during the session of the' [Mr.'BOUTWELL] has laid down two firm and Senate, I think you must be satisfied with the strong propositions-I will ask your attention proposition assented to by every statesman-I to them-bearing on the very merits of this think assented to by every debater on the pas- case. We argue thatif this act be unconstitusage of this civil-tenure act: that the doctrine tional we had a right to obey the Constitution: and the action and the practice of the Govern- at least in the intent and purpose of a peacement had been that the President removed in ful submission of the matter to a court, and session or in recess, though some discrimin- that our judgment on the matter, if deliberate, ation of that kind was attempted; but the honest, and supported by diligent application facts, the arguments, the reasons all show that to the proper sources of guidance, is entitled removal, if a right and if a power, is not dis- to support us against an incrimination. To criminated between session and recess. meet that, and to protect the case against the 756 injury from the exclusion of evidence that posed in a general argument. At page 8156he tends to that effect, the honorable Manager says: [Mr. BOUTWELI] does not hesitate to say that " It is not the right of any Senator in this trial to the question of the constitutionality or uncon- be governed by any opinion he may entertain of the stitutionality of the law does not make the constitutionality of the law in question." least difference in the world where the point is You may all of you think the law is unthat an unconstitutional law has been violated, constitutional, and yet you have got to remove and for a President to violate an unconstitu- the President! "it has not been annulled by tional law is worthy of removal from office. the Supreme Court." And you may simply Now, mark the desperate result to which the inquire whether he has violated the law. reasoning of the honorable Managers, under the That is pretty hard on us that we cannot pressure of our argument, has reduced them. even go to the Supreme Court to find out That is their proposition, and the reason for whether it is unconstitutional, and we cannot that proposition is given in terms. If that is regard it on our own oath of office as unconnot so; if the question of constitutionality or stitutional and proceed to maintain the obligaunconstitutionalityin fact is permitted to come tion to sustain the Constitution, and you into your considerations of crime, then you cannot look into the matter at all, but the would be punishing the President for an error unconstitutional law must be upheld i of judgment, releasing him or condemning him "Nor can the President prove or plead the motive according as he happened to have decided by which he professes to have been governed in his right or wrong, and that the honorable Man- violation of the laws of the country." ager tells us is contrary to the first principles What is the reason for that? He has taken of justice. Let us, before we get through with an oath to preserve the Constitution, and therethis matter, have some definite meeting of fore he cannot say that he acted under the minds on this subject between these honor- Constitution and not under the lawl His oath able Managers and ourselves. strikes him so that he cannot maintain the At page 814, in the argument'of the honor- Constitution, and the Constitution cannot proable Manager, [Mr. BOUTWELL,] we are told tect him I that " the crime of the President is not, either A man who breaks an unconstitutional law in fact or as set forth in the articles of impeach- on the ground that it is unconstitutional, and ment, that he has violated a constitutional law; that he has a right to break it, is " a defiant but his crime is that he has violated a law, usurper." and in his defense no inquiry can be made Those are the propositions, and I think the whether the law is constitutional," and that honorable Manager is logical; but the diffithe Senate in determining innocence or guilt culty is that his logic drives him to an absurdis to render no judgment as to the constitu- ity which, instead of rejecting, he adopts-a tionality of the act. I quote the results of his fault in reasoning which certainly we should propositions, not the full language. At page not expect. 816 this is the idea: On the question of construction of the law " If the President may inquire whether the laws are what are the views of the honorable Managers constitutional, and execute those only which he be- as to the point of guilt or innocence? We lieves to be so, then the Government is the Govern- have claimed that if the President in good ment of one man. If the Senate may inqulre and faith construed this law as not including Mr. decide whether the law is in fact constitutional, and Sta convict the President if he has violated an act be- Stanton under its protection, and he went on lieved to be constitutional, and acquit him if the upon that opinion, he cannot be found guilty. Senate think the law unconstitutional, then the The honorable Manager, [Mr. BOUTWELLJ] at President is, in fact, tried for his judgment, to be acquitted if, in the opinion of the Senate, it was a page 839, takes up this question and disposes correct judgment, and convicted if, in the opinion of it in this very peculiar manner: of the Senate. his judgment was erroneous. This " If a law" doctrine offends every principle of justice." I ask your attention to this: I ask your attention to this: That doctrine does with us offend every "If a law passed by Congress be equivocal or amprinciple of justice that a President of the biguousin itsterms the Executive, being called upon UInited States should be convicted when hon- to administer it, may apply his own best judgment to the difficulties before him, or he mayseek counsel of estly, with proper advice, peacefully and de- his advisers or other persons; and acting thereupon liberately, he has sought to raise a quistion without evil intent or. purpose he would be fully between the Constitution and the law; and the justified"honorable Manager can escape from our argu- We never contended for anything stronger ment on that point in no other mode than by than thatthe desperate recourse of saying that constitu- "he would be fully justified, and upon no principle tional laws and unconstitutional laws are all of right could he be held to answer, as for a misdealike in this country of a written Constitution, meanor in office." and that anybody who violates an unconstitu- Logic is a good thing, an excellent thing; it tional law meets with some kind of punish- operates upon the mind without altogether ment or other. This confusion of ideas as to yielding to the bias of feeling; and as we press a law being valid for any purpose that is un- an argument, however narrow it may be, if it be constitutional I have already sufficiently ex- logical, the honorable Managers seem obliged 757 to bend to it, and in both cases have thrown for a defendant; all the law retires, and will away their accusation. Tell me what more do and object and politics assume their complete we need than this, an ambiguous and equivocal predominance and sway, and everything of law which the President was called on to act law, of evidence, and of justice is narrow and under, and might, as we tried to prove, "seek not enlarged. That may be. All I can say counsel from his official advisers or other proper is that if the President had been indicted under persons, and acting thereupon without evil this act, or should hereafter be indicted under intent or purpose he would be fully justified, this act, then the law of the land would apply and upon no principle of right could he be held to his case as usually administered, and if he to answer as for a misdemeanor in office?" has not removed Mr. Stanton he cannot be And what is the answer which the honorable punished for having done it. You might have -Managers make to this logical proposition? punished an attempt to remove. See what Why, that this act is not of that sort; it is as you have done in regard to appointments: plain as the nose on a man's face, and it was "Every appointment or employment, made, had, nothing but violent resistance of light that led or exercised, contrary to the provisions of this act, anybody outside of this Senate to doubt what and the making, signing, sealing, countersigning, or issuing of any commission or letter of authority for, it meant! The honorable Manager who follows or in respect to any such appointment or employme [Mr. BINGHAM] will have an opportunity to ment, shall be deemed, and is hereby declared to be, correct me in my statements of their proposi-ahigh misdemeanor." tions, and to furnish an adequate answer, I There you have made not only an appointdoubt not, to the views I have had the honor ment, but an attempt on movement of the pen now to present. toward an appointment a crime, and you will And now take the act itself, which is found punish it, I suppose, some day or other. But at page 430 of the edition of the statutes I have removal stands on act and fact. Now, what before me. It is provided- does the article charge in this behalf, for I "That every person holding any civil office to'believe as yet it has not been claimed that it which he has been appointed by and with the advice is too narrow to insist that the crime as charged and consent of the Senate, and every person who shall hereafter be appointed to any such office, and in the article shall be the one you are to try. shall become duly qualified to act therein, is and shall " Removal" is not charged in the articles anybe entitled to hold such office until a successor shall where; the allegation is that Andrew Johnson have been in like manner appointed and duly qual- dy ified, except as herein otherwise provided." id unlawfully and in violation of the Constied therin otherwise" p i tution "issue an order in writing for the reThen the provision " is: oval of Edwin M. Stanton, with intent to "Provided, That the Secretaries of State, of the violate" the civil-tenure act, and "with intent Treasury, of War, of the Navy, and of the Interior,to remove him, the Senate being in session.' the Postmaster General, and the Attorney General, to remove him, the Senate being in session." shall hold their offices respectively'or and during the If you had had a section of this statute that term of the President by whom they may have been said "'any removal, or the signing of any letter, appointed, and for one month thereafter, subject to r order, or p removal by and with the advice and consent of the er, or paper, or mandate of removal, Senate." shall be a crime," then you would have had That is the operative section of this act of an indictment and a crime before you; but erecting and limiting the' new arrangement of you have neither crime nor indictment as apoffices. The section of incrimination, so far pears from this first article. And yet it may as it relates to removal, I will read, omitting be said that in so small a matter as the quest relates to tion of the removal of a President it does not all that relates to any other matter; the' sixth do to insist upon the usual rules of construesection: do to insist upon the usual rules of construetion of a criminal law. I understand the propthat every removal" f t ic *'*con- osition to be this: that here is a criminal law trary to the provisions of this act" * * * "shall bedeemed, and is hereby declared to be, a high'which has been violated; that by the law of misdemeanor"- the land it has been violated, so that indictI alter the plural to singular- ment could inculpate, verdict would find guilt, and sentence would folhow at law; and that "And upOn trial and conviction thereof, every per- thereupon, upon that predicament of guiltison guilty thereof shall be punished by a fine not exceeding $10,000, or by imprisonment not exceeding ness, the President of the United States is exfive years. or both said punishments, in the discretion posed to this peculiar process of impeachof the court." nment; and if I show that your law does not You will observe that this act does not affix make punishable an attempt to remove or a a penalty to anything but a "removal," an letter of removal, and that your article does accomplished removal. Acts of a penal na- not charge a removal, and that is good at law, ture are to be construed strictly; and yet when- then it is good against impeachment, or else ever we ask that necessary protection of the you must come back to the proposition that liberty and of the property and of the life of a you do not need a legal crime. citizen of the United States under a penal So much for the law. What is the true attistatute, we are told that we are doing some- tude of Mr. Stanton and of the President of thing very extraordinary for a lawyer in be- the United States toward this office and this half of his client. All principles, it seems, officer at the time of the alleged infraction of are to be changed when you have a President the law? Mr. Stanton held a perfectly good 758 title to that office by the commission of a Presi- office for life? You may determine tenures dent of the United States to hold it, accord- if you please; I am not now discussing that: ing to the terms of the commission, " during you may determine tenures for life; but you the pleasure of the President for the time cannot enact people into tenures for life. The being." That is the language of the commis- President must appoint; and his discretion sion. He held a good title to the office. A and his judgment in appointing to an office for quo warranto moved against him while he held life are very different from his discretion and that commission unrevoked, unannulled, and his judgment in appointing to an office during undetermined would have been answered by the his pleasure, which he can change at will. Now production of the commission, "I hold this you will sweep all, the offices of the country office during thepleasure of the President of the not only into the Senate but into Congress if United States for the time being, and I have not you adopt this principle of enacting people been removed by the President of the United into officei and if, upon the peg that there is states." That was the only title he held up to an office at sufferance or at will, you can conthe passage of the civil-tenure act. By the pas- vert it in favor of the holder by an act of Consage of the civil-tenure act it is said that a stat- gress into an estate for life or for years, you utorytitlewasvestedinhim notproceedingfrom will appoint to office; and of that there can the executive power of the United States at be no doubt. all, not commissioned by the Executive of the The next question, and the only question, United States at all, not to be found, ascer- of constitutionality or construction (for the trained, or delegated by the Executive of the general question of the constitutional power to United States at all, but a statutory title super- restrict appointments I shall not further trouble added to his title from the executive authority the Senate with) is, whether the Secretary of which he held during pleasure, which gave War is within the first section. The office of the him a durable office determinable only one Secretary of War is within the first section unmonth after the expiration of some term of doubtedly. The question, therefore, is whether years or other. the provisions concerning the office of SeereWe are not now discussing the question tary of War applicable to that office are in whether he is within it or not. That being so, their terms, giving them full course and effect, the first question to which I ask your attention such as to hold Mr. Stanton in that office against is this, that the act is wholly unconstitutional the will of the President by the statutory term and inoperative in conferring upon Mr. Stan- that is applicable to that office, and is or is not ton or anybody else a durable office to which applied to him. he has never been appointed. Appointment The argument that if Mr. Stanton is no to all office proceeds from the President of within the proviso then he is within the body the United States, or such heads of Depart- of the section stumbles over this transparent ment or such courts of law as your Legislature and very obvious, as we suppose, fallacy; the may repose it in. You cannot administer ap- question of the law is whether the office of pointment to office yourselves, for what the Secretary of War is within the proviso or not. Constitution requires the President to have You have not made a law about Mr. Stanton control of you cannot confer anywhere else. by name. The question, then, whether he is The appointment of Secretary of War is one within one or the other terms of the alternawhich cannot be taken from the President and tive, is whether the office of Secretary of War conferred upon the courts of law or the heads is within the section or within the proviso; and of Department. Whatever may be the action will anybody doubt about that? It is on the of Congress limiting or contriving the office, as same footing with the other Secretaryships; it you please, the office itself is conferable only is on the same footing as an office with every by the action of the Executive. And when other Department. The question whether the Mr. Stanton holds or anybody else holds an office of Mr. Stanton or the office of Mr. Brownoffice during pleasure, which he has received ing is within one or the other alternative of by commission and authority of the President the section is not a question of construction of the United States, a sufficient title to, you of law, but a question of whether the facts of can no more confer upon him by your author- the tenure and holding of the actual incumity and appointment a title durable and in invi- bency of the one or the other bring him within tum as against the President of the United the proviso. If he is not brought within the States, you can no. more confer it upon him proviso, his office being there, the fact that he because he happens to be holding an office is not in does not carry his office back into the during pleasure, than you could if he was out first part, because his office would be back' of office altogether. I challenge contradiction there for the future as well as for the past and from the lawyers who oppose us and from the for the present. judgment of honorable and intelligent lawyers It is a statute made for permanent endurance, here. Where are you going to carry this doc- and the office of Secretary of War, now and trine of legislative appointment to office if you forever, as long as the statute remains upon can carry it to find a man who the President the book, is disposed of one way or the other has never asked to hold an office except from within the first part or within the proviso. day to day and can enact him into a durable And yet we have been entertained, in public 759 discussions as well as in arguments here, with himself from the Secretaries. No; I think they what is supposed to be a sort of triumphant would all then be in shape for him, all having refutation, that Mr. Stanton's office in his been appointed by somebody that had prey actual incumbency is not protected by the pro- ceded him, and he would not have any chance viso; that then his office is carried back under at all. the body of the section. There is no doubt Such absurdity, either in reasoning or in about the office being under the proviso. It practical result, can never be countenanced by says so: the judgment of this court. If the office of "Provided, That the Secretaries of State, of the Secretary of War is within the proviso, and it Treasury, of War, of the Navy, and of the Interior, certainly is, as it is not contended that the the Postmaster General, and the Attorney General other Secretaries are not in their offices within it, then Mr. Stanton is or is not protected by That does not mean the men; it means the the proviso. If he is not protected by the prooffices shall have that tenure. Having got viso his case is not provided for. Now, sup. along so far that this office of Secretary of pose that this proviso had contained a second War, like the office of Secretary of the Inte- proviso following after the first, " and provided rior, must always remain under that proviso, further, that the persons now holding the offices and is never governable or to be governed by of Secretary of War, &c., who were appointed the body of the section, we have but one other and commissioned by Mr. Lincoln, shall not consideration, and that is whether the pro- be deemed within the above proviso, which viso, which is the only part of the section that regulates the tenure of those offices," that can operate upon the office of Secretary of would not have carried the offices back under War, so operates upon that office as to cover the new tenure of the operative section, but Mr. Stanton in adurable tenure for the future; simply have provided that, the offices being and that turns upon the question whether the governed by the proviso, the incumbents, -durability of tenure provided as a general rule under the particular circumstances of their for the office is in the terms of its limitation case, should not be even protected by the such as to carry him forward, or whether its proviso; and this is the necessary construebound has already been reached and he is out tion of the act. of it. That is a question of fact in the con- If this be the real construction, there is the struction of the proviso. He either stays in end of the crime. If the construction be the proviso or he drops out of the proviso; equivocal or ambiguous, the honorable Martand if he personally drops out of the proviso ager [Mr. BOUTWELL] says it would be abhorin his present incumbency he cannot get back rent to every sense of justice to punish the into the operative clause, because he cannot President for having erred in its construction; get back there without carrying his office there, but being so plain a case that nobody can say and his office never can get back. two words on one side or the other of it, it is Is it not true that this proviso provides a mere assumption to say that there is a doubt different tenure for the Cabinet officers from or difficulty, and that an argument is neceswhat the first and operative part of the section sary. Well, we certainly have belied on the provides? If this office or this officer goes one side and the other the proposition of this back, this very incumbent goes back; he gets a absolute plainness, for we have spent a great tenure that will last forever, that is, until the many words on this subject on the one side and Senate consents to his removal. How absurd the other. This being so, let us consider what a result that is, to give to this poor President the President did; and assuming that the statcontrol of his Cabinet, that those that he ap- ute covers Mr. Stanton's case, assuming that pointed himself, if he should happen to be the removal of Mr. Stanton is prohibited by it reelected, he could get rid of in a month, and under the penalties, let us see what the Presithose that Mr. Lincoln appointed for him from dent did. the beginning, and before he had any choice I have said to you that Mr. Stanton had a in it, he nrust hold on to forever till you consent title to this office dependent on the President's that they shall go out; that those in regard to pleasure. He claimed, or others claimed for whom he had the choice of nomination he may him, that he had a tenure dependent on the by the expiration of the statutory term "be freed statute. The question of dependence on the fromn, but those that he had nothing to do statute was a question to be mooted and deterrawith the appointment of shall last forever till ined as a novel one; the question of tenure you consent to release him specifically from by appointment was indubitable; and the Presthem. That is the necessary result of carry- ident proposed to put himself in the attitude of ing him personally back, and Mr. Stanton reducing the tenure of Mr. Stanton to his statwould hold under the next President-if any utory tenure at least. He therefore issues a of you can name him, I will supply in the paper which is a revocation of his commission, argument his name-I can name several; a recall of his office, as it depends on presiwhether it is the President that is to come in dential appointment. Without that no quesby removal from office, or the President by tion ever could be raised by any person upon the election of the people in the autumn. the statutory tenure, because the presidential Either way he would have a choice to relieve tenure would be an adequate answer to a quo 760 warranto. The President then, peaceablyand dent about that office? Nothing whatever. in writing, issued a paperwhich is served upon There was a desire, an effort to seize upon a Mr. Stanton, saying, in effect, " I, the Presi- movement made by Mr. Stanton, based upon dent of the United States, by such authority as an affidavit, not that he had removed from I possess, relieve or remove you from the office office, but sworn to on the 21st, and again on of Secretary of War;" and that that recalled the early morning of the 22d that he was still in and terminated the commission and the title the office and held it against General Thomas, that was derived from presidential appoint- and instantly the President said, "Very well, ment nobody can deny. the matter is in court." Did the President proceed further? When It might have gone into court on the trial of Mr. Stanton, as he might reasonably have ex- an indictment against Thomas; but a speedier pected; when, as upon the evidence he did method was arrived at in the consultations of probably calculate, instead of adhering to his the President with his counsel, to have a habeas opinion that the tenure-of-office act was uncon- corpus carried forward before the Supreme stitutional and that the.tenure-of-office act did Court, and jump at that. Then Mr. Chief Jusnot include his title, refused to yield the only tice Cartter, who, I take it, all who know him title that on Mr. Stanton's profession he held, understand to be one who sees as far into a to wit, the presidential appointment, to this millstone as most people, put that cause out recall, did the President then interpose force of his court by its own weight and the habeas to terminate his statutory title, or did he, hav- corpus fell with it. That is all that is proved ing thus reduced him to the. condition of his and all that is done. I submit to you, therestatutory title, then propose and then act either fore, that the case of a resistance or violation in submission to the power which Mr. Stanton of law does not at all arise. We do not even had over him, or did he wish to have the ques- get to the position of whether a formal and tion of the statutory title determined at law? peaceable violation for the purpose of raising It is enough to say that he did not do anything the question before the Supreme Court was in the way of force; that he expected itn ad- allowable. A revocation of the presidential vance, as appears by his statements to General title of Stanton was allowable; a resistance of Sherman, that Mr. Stanton would yield the the statutory title was not attempted; and the office. Why should Mr. Stanton not yield it? matter stood precisely as it would stand if a The grounds on which he had put himself in person was in the habit of cutting wood on August were that his duty required him to hold. your lot, and claimed a title to it, and meant the office until Congress met; that is, to hold to have a right to cut wood there, and before it so that the presidential appointment could you went to law with him to determine the nottake effectwithoutyour concurrence. Con- right in an action of trespass you were careful gress had met and was in session, and this to withdraw a license terminable at will which "public duty" of Mr. Stanton, on his own you had given him and under which he was statement, had expired. Mr. Stanton had told cutting wood. Withdraw your. license before him the act was unconstitutional and had aided you bring your action of trespass or you will in writing the message that so disclosed the be beaten in it. Withdraw your license, and presidential opinion to you. then he cuts upon his claim of right, and your He had concurred in the opinion that he was action of trespass has its course and determines not within the act. His retirement on this title. That was the situation. order would be in submission to these views, All that is said about the right to violate. if not in submission to the views Senators here unconstitutional laws never can have the foothad expressed that no man could be imagined ing for consideration, where all that is doneby who would refuse to give up office in the Cab- anybody is to put upon paper the case out of inet when desired by the President; but if that which, as an instance, the judgment of a court predicament was excusable while this Senate can be called for as to a violation or no violawas not in session to prevent a bad appoint- tion. If there must be an intervention of force, ment, if that was feared, how could it be a then a law may be said to be violated and an reason when this Senate was in session? Mr. offender must suffer, accordingly as it shall Stanton having stated to General Thomas on prove to be constitutional or unconstitutional. the first presentation of his credential that he But where there is a Constitution as the prewanted to know whether he desired him to dominant law, the statute as an inferior law, vacate at once or would give him time to re- and an executive mandate is issued by the move his private papers, and that having been President in pursuance of either one law or the reported to the President the President re- other, according to which is ill force, for they garded it as all settled, and so informed his both cannot be, we suppose, then, he commits Cabinet, as you have permitted to be given in no violation of the law in thus presenting for evidence. After that, after the 21st, what act consideration and determination the case. is charged in this article? Up to and through We must, then, come either to intent, purthe 21st and the written order of' removal and pose, motive, some force prepared, meditated, its delivery to Mr. Stanton, and the repose of threatened, or applied, or some evil invasion the President upon that posture in which Mr. of the actual working of the department of the Stanton left it, what was done by the Presi- i Government in order to give substance to this 761 allegation of fault. No such' fact, no such say that on the 9th of March, in the East Room, intent, no such purpose is shown. We are General Thomas said he meant to kick Stanprevented from showing the attendant views, ton out. That phrase, disrespectful as it is, information, and purpose upon which the Pres- and undoubtedly intimating force, is rather of ident proceeded; and if so, it must be upon a personal than of a national act. [Laughter.] the ground that views, intent, and purpose do I submit that criticism is well founded. I not qualify the act. Very well, then, carry it think so. It comes up to a bre ch of the peace, through so; let the Managers be held to the providedithasbeen perpetrated. [Laughter.] narrowness of their charges when they ask for But it does not come up to that kind of projudgment as they are when they exclude tes- ceeding by which Louis Napoleon seized the timony, and let it be determined upon their liberties of the French republic; and we reasoning on an article framed upon this plan, expected, under the heats under which this " that the President of the United States, impeachment was found, that we should find well knowing the act to be unconstitutional, as something of that kind. The Managers do not in fact it is, undertook to make an appointment neglect little pieces of evidence, as is shown contrary to its provisions and conformable by their production of Mr. Karsner; and if to the Constitution of the United States, with they find this needle in a hay-stack and produce the intent that the Constitution of the United it as the sharp point of their case, there is States should prevail in regard to the office in nothing else, there is no bristling of bayonets overthrow of the authority of the act of Con- underthehaymow,youmaybesure. Arethere, gress, and thereupon and thereby, with an in- then, any limits or discriminations in transactent against which there can be no presump- tions of State? Are there publicprosecutions, tion, for he is presumed to have intended to do public dangers, public force, public menace? what he did do, we ask that for that purpose Undoubtedly there might be, and undoubtedly of obeying the Constitution rather than an in- many who voted for impeachment supposed valid law he should be removed from office I" there were; and undoubtedly the people of the And this absurdity is no greater than-for it United States, when they heard there had been is but a statement of-the propositions of law an impeachment voted, took it for granted there and of fact to which the honorable Managers was something to appear. We have gone have reduced themselves in their theories of through it all. There is no defect of power nor this cause, which exclude all evidence of in- of will. Every channel of the public informatent or purpose and of effect and conduct, and tion, even the newspapers, seem to be ardent and take hold upon mere personal infraction of a eager enough to aid this prosecution. Everystatute of the United States, granting, for the body in this country, all the people of the purpose of argument, that it may be unconsti- United States, are interested. They love their tutional, and insisting that, under your judg- liberties; they love their Government; and if ments, it shall not make any difference whether anybody knew of anything that would bear on it is unconstitutional or not. If that be so, that question of force, the coup d'etat, we should then we have a right to claim that it is uncon- have heard it. We must, then, submit, with stitutional for the purposes of your judgment; great respect, that upon this'evidence and upon and they agree that if you cannot so treat it these allegations there is no case made out of and find us guilty, then it would be against the evil purpose, of large design of any kind, and first principles of justice to punish us for an no act that in form is an infraction of any law. erroneous or mistaken opinion concerning con- Now, what is the attitude which you must stitutionality. occupy toward each particular charge in these. Now, the review of the evidence I do not articles? Guilty or not guilty of a high crime purpose to weary you with. It all lies within and misdemeanor by reason of charges made the grasp of a handful on either side and it will and proved in that article; guilty of what the astonish you, if you have not already perused Constitution means as sufficient cause for rethe record, how much of it depends upon the moval of a President from office within that arguments or the debates of counsel, how little article. You are not to reach over from one upon whatisincluded in thetestimony. Already article to another; you are to say guilty or not your attention has been turned to the simplicity guilty of each as it comes along; and you are and folly, perhaps, of the conduct of General to take the first one as it appears; you are to Thomas; already your attention must have treat it as within the premises charged and fixed itself upon the fact that to prove this proved; you are to treat the President of the threatened coup d'etat to overthrow the Gov- UnitedStates,forthepurposeofthatdeterminaernment of the United States and control the tion, as if he were innocent of everything else, Treasury and the War Department you had to of good politics and good conduct; you are to go to Delaware to prove a statement by Mr. deal with him under your oath to administer Karsner that twenty days afterward Thomas impartial justice within the premises of accusasaid he would kick Stanton out. That is the tion and proof as if President Lincoln were fact; there is no getting over it. A coup d'gtat charged with the same thing, or General Grant, in Washington on the 21st of February, medi- if the proposition that political gratitude is a tated, prepared, planned by military force, is lively sense of benefits expected leads men's proved by Karsner, brought from Delaware to minds forward rather than backward in the list 762 of Presidents; you are to treat it as if the his principles as belonging to him and known respondent were innocent, as if he were your and understood when he was elevated to the friend, as if you agreed in public sentiment, office, I apprehend that no reasonable man in public policy; and nevertheless the crime can find it in his heart to say that evil has been charged and proved is such as that you will proved against him here. And how much is,remove General Washington or President Lin- there in his conduct toward and for'his conaooln for the sate offense. try that up to this period of division commends I am not to m told that it was competent for itself not only to your but to the approval the Dauagers to prove that there were coup and applause of his countrymen? I do not d&tats, hidden purposes of evil to the State, insist upon this topic; but I ask you to agree threatened in this innocent and formal act ap- with me in this: that his personal traits of parently. Let them prove it and then let us character and the circumstances of his career dlisprove it, and then judge us within the com- have made him in opinion what he is: without pass of the testimony and according to the law learning, as it is said by his biographers, never govenling these considerations. But I ask you having enjoyed a day's schooling in his life, if I do not put it to you truly that within the devoted always to such energetic pursuits in premises of a charge and proof the same judg- the service of the State as commended him to mentr must go against President Lincoln with the favor of his fellow-citizens and raised him his good polities, and General Washington with step by step through all the gradations of the his majestic character, as against the respond- public service, and in every trial of fidelity to eat? his origin and to the common interests proved And so, as you go along from the first to the faithful, struggling always in his public life second;article will you remove him for having against the aristocratic influences and oppresmade an error about the repeal or non-repeal sions which domineered so much in the section vof statutes in regard to appointments to office, of country from which he came. He was always if you can find a fault? I cannot see any fault faithful to the common interest of the common under any of the forms of the statutes. If the people, and carried by his aid and efforts as:power of removal of Mr. Stanton under the much as any one else the popular measure of former practice of the Government and unre- the homestead act against the southern policy'strieted by this civil-tenure act existed it ex- and the aristocratic purposes of the governing isted during the session as well as during the interests of the South. recess. If that were debatable and disputa- And I ask you to notice that, bred in a ble the prevailing opinion was that it covered, school of Tennessee Democratic politics, he and the practice of the Government shows that had always learned to believe that the Constiit covered, the removal during the session. At tution must and should be preserved; and I an-y rate, you must judge of this as you would ask you to recognize that when it was in peril, have judged of Mr. Lincoln, if he had been and all men south of a certain line took up charged with a high crime in appointing Mr. arms against it, and all men north ought to skinner to be Postmaster General when there have taken up arms in politics or in war for was not any authority under the appointment it, he loved the country and the Constitution acts of the United States. more than he loved his section and the glories And this brings me very-properlyto consider, that were promised by the evil spirits of the as I shall very briefly, in what attitude the rebellion. I ask you whether he was not 8a President stands before you when the discus- firm in his devotion to the Constitution,when sion of vicious politics or of repugnant poli- he said, in December, 1860: tics, whichever may be right or wrong, is re- Then let us stand by the Constitution; and, in moved from the case. I do not hesitate to say saving the Union, we save this, the greatest Governthat if. you separate your feelings and your ment on earth." conduct, his feelings and his conduct, from the And whether, after the battle of Bull Run, aggravations of politics as they have been bred he did not show as great an adhesion to the since his elevation to the Presidency, under the Constitution when he said: peculiar circumstances which placed him there, - The Constitution-whieh is based on principle d your iews in their severity, governed, un- immutable. and upon which rest the rights of men rand your views iln their severity, governed, un- and the hopes and expectations of those who love doubtedly, by the grave juncture of the affairs freedom throughout the civilized world-must be -of the country, are reduced to the ordinary maintained." standard and style of estimate that should pre- He is no rhetorician and no theorist, no vail between the departments of this Govern- sophist and no philosopher. T'he Constitution ment, I do not hesitate to say that upon the is to him the only political book that he reads. impeachment investigations and upon the im- The Constitution is to him the only great aupeachment evidence you leave the general thority which he obeys. His mind may not standing of the President unimpaired in his expand; his views may not be so plastic as conduct and character as a man or as a magis- those of many of his countrymen; he may not trate. Agree that his policy has thwarted and think we have outlived the Constitution, and he opposed your policy, and agree that yours is may not be able to embrace the Declaration of the rightful policy; nevertheless, within the Independence as superior and predominant to unastitution and witlin his right, and within it. But to the Constitution he adheres. Far 763 it and under it he has served the State from thy brother?" and when under our frame of boyhood up, labored for, loved it. For it he Government, whereby the creation of all dehas stood in arms against the frowns of a Sen- partments proceeds from the people which ate; flr it he has stood in arms against the breathes into these departments, executive and rebellious forces of the enemy; and to it he judicial, the breath of life, whose favor is yours has bowed three times a day with a more than as well as the President's continuing force and eastern devotion. strength, asks of you, as your sentence is pro. And when I have heard drawn from the past mulgated, "Where is thy brother in this Govcases of impeachment and attempts at deposi- ernment whom -we created and maintained tion, and five hundred years have been spoken alive?" no answer can be given that will sat. of as furnishing the precedents explored by the isfy them or will satisfy you, unless it'e in honorable Managers, I have thought they found truth and in fact that for his guilt he was slain no case where one was impeached for obeying by the sword of Constitution upon the altar of a higher duty rather than a written law regarded Justice. If that be the answer you are ae as repugnant to it,'and yet, familiar to every quit; he is condemned; and the Constitution child in this country, as well as to every scholar, has triumphed, for he has disobeyed and not a precedent much older comes much nearer to obeyed it, and you have obeyed and not disthis expected entanglement. When the princes obeyed it. eame to king Darius and asked that a law Power does not always sway and swing from should be made that "whosoever shall ask the same center. I have seen great changes any petition"'for thirty days, save of thee, 0 and great evils come from this matter of un? king, he shall be cast into the den of lions;" constitutional laws not attended to as uncon. and when the plea was made that "' the law of stitutional, but asserted, and prevailing, too, the Medes and Persians altereth -not," and the against the Constitution, till at last the power minister of that day, the great head and man- of the Constitution took other form than that ager of the affairs of the empire, was found still of peaceful, judicial determination and executo maintain his devotion to the superior law, tion. I will put some instances of the wicked. which made an infraction of the lower law, ness of disobeying unconstitutional laws and then was the case when the question was of the triumph -who maintained it to be right whether the power to which he had been obe- and proper. dient was adequate to his protection against I knew a case where the State of Georgia the power that he had disobeyed; and now the undertook to make it penal for a Christian misquestion is whether the Constitution is ade- sionary to preach the gospel to the -Indians, quate to the protection of the President for his and I knew by whose advice the missionary obedience to it against a law that the princes determined that he would preach the gospel have ordained that -seeks to assert itself against and not obey the law of Georgia, on the assurit. The result of that impeachment we all ance that the Constitution of the United States know, and the protection of the higher power would bear him out in it; and the missionary, was not withheld from the obedient servant. as gentle as a woman, but as firm as every free The honorable Manager, [Mr. WILSON,] in citizen of the United States ought to be, kept the very interesting and valuable report of the on the teaching to the Cherokees. minority of the Judiciary Committee, enter- And I knew the great leader of the moral tains and warns the House of the fate of im- and religious sentiment of the United States, peachment as turning always upon those who who, representing in this body, and by the same were ready with its ax and sword to destroy. name and of the blood of one of its distinHI&-gives, in the language of Lord Caernarvon guished Senators now, [Mr. FaELINGIUYSEJ,] on Lord Danby's trial, a history of the whole the State of New Jersey, -ried hard to save his force of them, and everybody is turned against country from the degradation of the oppression in his turn that draws this sword. In this of the Indians at the instance of the haughty older case that I have referred to you may planters of Georgia. The Supreme Court of remember in the brief narrative that we have the United States held the law unconstitutionsl a history of the sequel of the impeachers: and issued its mandate, and the State of Geor"And they brought those men which had acused gia laughed at it and kept the missionary in Daniel, and they cast them into the den of lions, rison, and Chief Justice Marshall and Judge them, their children, and their wives; and the lions Story and their colleagues hung their heads at had the matery of them, and brake all their bones the want of power in the Constitution to ma in pieces orever they came at the bottomnof the den." tain the departments of it. But the war came, This, then, Senators, is an issue not of po- and as from the clouds from Lookout Mountlitical but of personal guilt within the limits of ain swooping down upon Missionary Ridge the the charge and within the limits of the proof. thunders of the violated Constitution of the Whoever decides it must so decide, and must United States and the lightnings of its power decide upon that responsibility which belongs over the still home of the missionary Worces'to an infliction of actual and real punishment ter and the grave of the missionary Worcester upon the respondent. We all hold one or the taught the State of Georgia what comes of rioother in trust; and when the natural life is lating the Constitution of the United States. taken he who framed it demands " Where is I have seen tan honored citizen of the State 764 of Massachusetts, in behalf of its colored sea- ence. We never thought that political differmen, seek to make a case by visiting South ences under an elective Presidency would bring Carolina to extend over those poor and feeble in array the departments of the Government people the protection of the Constitution of against one anothertoanticipate by ten months the United States. I have seen him attended the operation of the regular election. And by a daughter and grandchild of a signer of yet we take them all, one after another, and the Declaration of Independence and a framer we take them because we have grown to the of the Constitution, who might be supposed to fullvigor of manhood, when the strong passions have a right to its protection, driven by the and interests that have destroyed other nations, power of Charleston and the power of South composed of human nature like ourselves, Carolina, and the mob and the gentlemen have overthrown them. But we have met by alike, out of that State and prevented from the powers of the Constitution these great making a case to take to the Supreme Court to dangers-prophesied when they would arise as assert the protection of the Constitution. And likely to be our doom-the distractions of civil I have lived to see the case thus made up de- strife, the exhaustions of-powerful war, the termined that if the Massachusetts seamen, for intervention of the regularity of power through the support of slavery, could not have a case the violence of assassination. We could summade up, then slavery must cease; and I have mon from the people a million of men and lived to see a great captain of dur armies, a inexhaustible treasure to help the Constitution general of the name and blood of Sherman, in its time of need. Can we summon now resweep his tempestuous war from the mountain sources enough of civil prudence and ofrestraint to the sea, and returning home trample the of passion to carry us through this trial so that State of South Carolina beneath the tread of whatever result may follow, in whatever form, his soldiery; and I have thought that the Con- the people may feel that the Constitution has stitution of the United States had some pro- received no wound? To this court, the last and cesses stronger than civil mandates that no best resort for this determination, it is to be left. resistance could meet. I do not think the And Oh, if you could only carry yourselves people of Massachusetts suppose that efforts to back to the spirit and the purpose and the setasideunconstitutionallawsandtomakecases wisdom and the courage of the framers of the for the Supreme Court of the United States, Government, how safe would it be in your are so wicked as is urged here by some of its hands I How safe is it now in your hands, for representatives; and 1 believe that if we can- you who have entered into their labors will see not be taught by the lessons we have learned to it that the structure of your work comports of obedience to the Constitution in peaceful in durability and excellency with theirs. Inmethods of finding out its meaning, we shall deed, so familiar has the course of the arguyet need to receive some other instruction on ment made us with the names of the men of the subject. the Convention and of the First Congress that The strength of every system is in its weak- I could sometimes seem to think that the presest part. Alas for that rule? But when the ence even of the Chief Justice was replaced weakest part breaks, the whole is broken. by the serene majesty of Washington, and-that The chain lets slip the ship when the weak from Massachusetts we had Adams and Ames, link breaks, and the ship founders. The body from Connecticut Sherman and Ellsworth, from fails when the weak function is vitally attacked; New Jersey Paterson and Boudinot, and from and so with every structure, social and political, New York Hamilton and Benson, and that they the weak point is the point of danger, and the were to determine this case for us. Act, then, weakpoint of the Constitution is now before you as if under this serene and majestic presence in the maintenance of the coordination of the your deliberations were to be conducted to their departments of the Government, and if one close and the Constitution was to come out from cannot be kept from devouring another then the watchful solicitude of these great guardthe experiment of our ancestors will fail. They ians of it as if from their own judgment in this attempted to interpose justice. If that fails, high court of impeachment. what can endure? Mr. POMEROY. I move that the Senate We have come all at once to the great ex- take a recess for fifteen minutes. periences and trials of a full-grown nation, all The motion was agreed to; and at the expiof which we thought we should escape. We ration of the recess the Chief Justice resumed never dreamed that an instructed and equal the chair and called the Senate to order. people, with freedom in every form, with a Mr. Stanbery appeared with the counsel for Government yielding to the touch of popular the respondent. will so readily, ever would come to the trials Mr. SHERMAN. I move a call of the of force against it. We never thought that Senate. what other systems from oppression had devel- The motion was agreed to; and the roll of oped-civil war-would be our fate without op- Senators was called. pression. We never thought that the remedy The CHIEF JUSTICE. Forty Senators to get rid of a despotic ruler fixed by.a Consti- have answered to their names. Senators will tution against the will of the people, would ever please give their attention. The counsel for bring assassination into our political experi- the President will proceed. 765 Hon. HENRY STANBERY, on behalf of at last prevailed, if this is a step at last in the the respondent, addressed the Senate as fol- interests of party, carried by the bad advice of lows: the worst men of the party, if at last this great Mr. CHIEF JUSTICE AND SENATORS: It may and august tribunal is to be degraded to carry seem an act of indiscretion almost amounting out a party purpose, Oh, then, there remains a to temerity that in my present state of health I day of retribution for every man that particishould attempt the great labor of this case. I pates in this great wrong, sure to come, nor feel that in my best estate I could hardly attain long to be delayed. to the height of the great argument. Careful But let me not anticipate the character of friends have advised me against it. My watch- the case. Let us look at it as it develops ful physician has yielded a half reluctant con- itself. I listened with great attention to the sent to my request, accompanied with many a persistent efforts of my learned friends, the caution that I fear I shall not observe. But, Managers, to convince you, Senators, that you Senators, an irresistible impulse hurries me are not sitting in a judicial capacity, that all forward. The flesh indeed is weak; the spirit the ordinary forms in the administration of is willing. Unseen and friendly hands seemto justice are laid aside. They told you again support me. Voices inaudible to all others, I and again there was no right of challenge here. hear, or seem to hear.' They whisper words of What if there was not? Ah, does not your consolation, of hope, of confidence. They say, duty then become the more solemn, your obligaor seem to say to me, " Feeble champion of the tion the stronger to take care when the accused right, hold not back; remember that the race cannot protect himself that you will protect is not always to the swift nor the battle to the him? With the greatest care and perseverance strong; remember in a just cause a single peb- they strike out all the forms that pertains to ble from the brook was enough in the sling of judicial proceeding; they say they do not bethe young shepherd." long here. What if they do not? What is that Senators, in all our history as a people, to you, Senators, who with your upraised hands never before have the three great departments have invoked your God to witness that you of the Government been brought on the scene will impartially try and decide this case? What together for such an occasion as this. We are these forms to you? Strike them all out, have had party strifes in our history before. and deeper and deeper that oath strikes in. Manly a time the executive and legislative It is the habit of the advocate to magnify his departments have been in fierce and bitter case; but this case best speaks for itself. For antagonism. Many a time before a favorite the first time in our political existence, the: legislative policy has been thwarted and de- three great departments of our Government are feated by the persistent and obstinate efforts brought upon the scene together; the House of of an Executive. Many a time before ex- Representatives as the accusers; the President treme party men have advised a resort to of the United States as the accused; the judiimpeachment. Even as far back as the time ciary department, represented by its head; in of Washington his grand and tranquil soul was the person of the Chief Justice; and the Senate disturbed in that noted year, 1795, when he of the United States as the tribunal to hear the stood in antagonism with a majority in the accusation and the defense, and to render the House of Representatives upon that famous final judgment. The Constitution has anticiBritish treaty, when, upon their demand, he pated that so extreme a remedy as this might refused to surrender the correspondence, im.- be necessary, even in the case of the highest peachment by the bad men of the party was officer of the Government. It was seen thatit they threatened. So, too, in many a subse- was a dangerous power to give one department quent day of our party contests. Oftentimes to be used against another department. Yet, in the remembrance of men not older than it was anticipated that an emergency might arise myself, oftentimes when to accomplish the in which nothing but such a power could be purposes of the party there seemed to be this effectual to preserve the Republic. Happily way and no other way have we heard this same for the eighty years of our political existence advice given, "This is the remedy to followi" which have passed no such emergency has but, happily for us, such bad counsels never hitherto arisen. During that time we have heretofore have prevailed. witnessed the fiercest contests of party. Again This undoubtedly is a remedy within the and again the executive and the legislative decontemplation of the Constitution, a remedy for partments have been in open and bitter antaga great mischief. Our wise forefathers saw onism. A favorite legislative policy has more that a time might come, an emergency might than once been defeated by the obstinate and happen when nothing but the removal of the determined resistance of the President, upon Chief Magistrate could save the nation; but some of the gravest and most important issues they never made it to be used for party pur- that we have ever had, or are ever likely to poses. Has the time come now? Has, after have. The presidential policy and the legisthe lapse of eighty years, the time at last come lative policy have stood in direct antagonism. when this extreme remedy of the Constitution During all that time this fearful power was in must be applied? If so, all just men will say, the hands of the legislative department, and amen. But if, on the contrary, bad advice has more than once a resort to it has been advised 766 by extreme party men as a bure remedy for the Constitution of the United States and the party purposes; but, happily, that evil hitherto conspiracy act of July 81, 1861. has not come upon us. In article five, conspiring with Thomas to What new and unheard of conduct by a hinder the execution of the tenure-of-office act, President has at last made a resort to this and, in pursuance of the conspiracy, attemptextreme remedy unavoidable? What presi- ing to prevent Stanton from holding his office. dential acts have happened so flagrant that all In article six, conspiring with Thomas to just men of all parties are ready to say "the seize by force the property of the United States time has come when the mischief has been in the War Department, then in Stanton's cuscommitted; the evil is at work so enormous tody, contrary to the conspiracy act of 1861. and so pressing that in the last year of his term and with intent to violate the tenure-of-office of office it is not safe to await the coming action act. of the people?" If such a case has happened, In article seven, conspiring with Thomas all honorable and just men pof all parties will with intent to seize the property of the United say amen; but if, on the contrary, it should States in Stanton's custody, with.intent to vioappear that this fearful power ha's at last been late the tenure-of-office act. degraded and perverted to the use of a party; In article eight, issuing and delivering to if it appears that at last bad advice, often before Thomas the letter of authority of February 21f given by the bad men of party, has found ac- 1868, with intent to control the disbursements ceptance, this great tribunal of justice, now of the money appropriated for the military regarded with so much awe, will speedily come service and for the War Department, contrary to be considered as a monstrous sham. If it to the tenure-of-office act and the Constitutiorr should be found to be the willing instrument to of the United States, and with intent to viocarry out the purposes of its party, then there late the tenure-of-office act. remains for it and for every one of its members In article nine, declaring to General Emory who participates in the great wrong a day of that the second section of the Army appropricwful retribution sure to come nor long to be ation act of March 2,; 1867, providing that delayed. But I will not anticipate nor speak orders for military operations issued by the fiirther of the case itself until its true features President or Secretary of War should be issuedare fully developed. through the General of the Army, was unconstitutional and in contravention of Emory's IR+E A~RTIOLES.:commission, with intent to induce Emory to: I now proceed to a consideration of the obey such orders as the President might give articles of impeachmenlt: him directly and not through the General of They are eleven in number. Nine of them the Army, with intent to enable the President charge acts which are alleged to amount to a to prevent the execution of the tenure-of-office high misdemeanor in office. The other two, act, and with intent to prevent Stanton from namely, the fourth and sixth, charge acts which holding his office.' are alleged to amount to a high crime in office. In article ten,, that, with intent to bring in It seems to be taken for granted that, in the disgrace and contempt the Congress of the phrase used in the Constitution, " other high United States and the several branches thereof, crimes and misdemeanors," the term high is and to excite the odium of the people against, properly applicable as well to misdemeanors as Congress and the laws by it enacted, he made to crimes. three public addresses, one at the Executive The acts alleged in the eleven articles as Mansion on the 18th of August, 1866, one atamounting to high misdemeanors or high Cleveland on the 3d of September, 1866, and crimes are as follows: one at St. Louis on the 8th of September, 1866, In article one, the issuing of the order of which speeches are alleged to be peculiarly inm February 21, 1868, addressed to Stanton, "for decent and unbecoming in the Chief Magistrate the removal" of Stanton from office, with in- of the United States, and by means thereof the tent to violate the tenure-of-office act and the President brought his office into contempt, Constitution of the United States, and to re- ridicule, and disgrace, and thereby committed move Stanton. and was guilty of a high misdemeanor in office. In article two, the issuing and delivering to In article eleven, that, by the same speech Th;omas of the letter of authority of February made on the 18th of August, at the Executive 21, 1868, addressed to Thomas, with intent to Mansion, he did, in violation of the Constituviolate the Constitution of the United States tion, attempt to prevent the execution of theand the tenure-of-office act. tenure-of-office act, by unlawfully contriving In article three, the appointing of Thomas means to prevent Stanton from. resuming the by the letter addressed to him of the 21st of office of Secretary for the Departmentof War, February, 1868, to be Secretary of War ad in- after the refusal of the Senate to concur in his terim, with intent to violate the Constitution suspension, and by unlawfully contriving and of the United States. attempting to contrive means to prevent the In article four, conspiring with Thomas with execution of the act making, appropriations intent, by intimidation and threats, to hinder for the support of the Army, passed March 2, Stanton from holding his office, in violation of 1867, and to prevent the execution of the act 767 to provide for the more efficient government of We see, then, that, according to the case the rebel States, passed March 2, 1867. made in these eight articles, the President did It will be seen that all of these articles, except not succeed in getting Mr. Stanton out of offiee the tenth, charge violations either of the Con- or of putting General Thomas in, either in law stitution of the United States, of the tenure-of- or in fact. We see, according to these artioffiee act, of the conspiracy act of 1861, of the cles, that the President did not succeed, either military appropriation act of 1867, or of the by force or otherwise, in preventing Mr. Stanreconstruction act of March 2, 1867. The tenth ton from holding his office or in getting possesarticle, which is founded on the three speeches sion of the public property in that Department of the President, does not charge a violation or in controlling the disbursements of public either of the Constitution of the United States money appropriated for the use of that Departor of any act of Congress. Five of these articles ment. There has been, according to the very charge a violation of the Constitution, to wit, case made in these articles, no public mischief, articles one, two, three, four, and eight. Seven The lawful officer has not been disturbed; the of the articles charge violations of the tenure- lawful custody of the public property and puSb of-office act, to wit, articles one, two, five, six, lie money of the Department has not been seven, eight, nine, and eleven. Two of the changed. No injury has been dgne either to articles charge a violation of the conspiracy the public service or the public officer. Theret act of 1861, to wit, articles four and six. Two has been no remomvt of Mr. Stanton —only aM of them charge violations of the appropriation abortive attempt at removal. There has beeri act of March 2, 1867, to wit, articles nine and no acting Secretary put in an office vacant by eleven. One only charges a, violation of the death, resignation, or disability-put there reconstruction act of March 2, 1867, and that during the time of such actual vacancy or is article eleven. temporary absence. All the time the Secretry We see, then, that four statutes of the Uni- himself has been there in the actual performs. ted States are alleged to have been violated. anceofhisduties. Noadinterimofficerhas, ir Three of these provide for penalties for their law or fact, been constituted, for in law or fact violation, that is to say, the tenure-of-office there has been no interim as to the Secretary act, the conspiracy act of 1861, and the mili- himself. There has been no moment of timew tary appropriation act of March: 2, 1867. The in which there could be an aetigg Secretary or violation of the tenure-of-office act is declared an ad tnterim Secretary, either in law or fact, by the act itself to be a " high misdemeanor." for it is impossible to conceive of an ad interim The violation of the conspiracy act is declared Secretary of War when there is no interim,: to be'"a high crime." The violation of the that is, when the lawful Secretary is in his place second section of the military appropriation and in the actual: discharge of his duties. act is declared to: be simply "'a misdemeanor Mark it, then, Senators, that the acts charged in office." as high crimes and misdemeanors in these eight It will be observed that the first eight arti- articles, in respect to putting Mr.-Stanton out cles all rela:te to the War Department, and to and General Thomas in, are things attempted' that alone. Article one sets out an attempted and not things accomplished. It is the attempt, removal of the head of that Department. Three and the unlawful intent with which it was others relate to the ad interim appointment of formed, that the President is to be held reThomas to be acting Secretary of that Depart- sponsible for. So that it comes to- be a quesment. The four others relate to conspiracies tion of vital consequence in! reference to this to prevent Stanton from holding his office as part of the case whether the high crimes nd' S-retary for the Department of War, or to misdemeanors provided for in the tenure-ofseize the public property in that Department, office act and in the second section of the milor to control the disbursements of moneys ap- itary appropriation act purport to punish not~ propriated for the services of that Department. only the commission of the acts, but to punish Now, first of all, it must not escape notice as well the abortive attempt to commit them. that these, articles are founded upon the ex- I limit myself in what has been said- to the press averment that from the moment of his four articles touching the removal of Mr. Stanreinstatement on the non-concurrence of the ton and the appointment of General Thomas. Senate Mr. Stanton became the lawful Secre- As to the four conspiracy articles, there can be tary for that Department; that, upon such no question that the actual accomplishment of order of the Senate, he at once entered into the thing intended is not made necessary to possession of the War Department and into constitute the offense; for the statute against the lawful exercise of its duties as Secretary, conspiracies expressly provides for the punishand that up to the date of the articles of im- ment of the unlawful intent, the unlawful conpeachment that lawful right and actual posses- spiracy itself, without reference to any further sion had remained undisturbed; that all the act done in pursuance of it, or to the partial acts charged in these eight articles were com- or, complete accomplishment of the unlawful mitted during that time; that, notwithstand- design. But, contrariwise, the other two acts ing these acts, Stanton remains lawfully and do not punish the intent alone, but only the actually in possession; and that the office has commission of the thing intended; and the been at no time vacant. offense provided for in these two acts, while it requires the unlawful intent to be a part of tofore by his own independent action, but the crime, requires something else to supple- thereafter, only by the concurrence of the Senment it, and that is the actual commission of ate. It is a regulation by the Legislature of the the thing intended. manner in which an executive power is to be And here, Senators, before I proceed to con- performed. sider these articles in detail, seems to me the So, too, as to ad interim appointments, it proper time to bring your attention to another does not purport to take away that power consideration, which I. deem of very great from the President; it only attempts to regumoment. What is the subject-matter which late the execution of the power in a special constitutes these high crimes and misdemean- instance. ors? Under what legislation does it happen Mr. Burke, on the impeachment of Warren that the President of the United States is Hastings, speaking of the crimes for which brought under all this penal liability? What he stood impeached, uses this significant lanare these high crimes and misdemeanors? guage: Has he committed treason or bribery? Has "They were crimes, not against forms, but against he been guilty of peculation or oppression in those eternal laws of justice which are our rule and our birthright. His offenses are not in formal, techoffice? Has he appropriated the public funds nical language, but in reality, in substance, and effect, or the public property unlawfully to his own thigh crimes and high misdemeanors." use? Has he committed any crime of violence Now, Senators, if the legislative department against any person, public officer or private had a constitutional right thus to regulate the individual? Is he charged with any act which performance of executive duties, and to change amounts to the crimenfalsi or was done causa the mode and form of exercising an execulucri? Nothing of the sort. These alleged tive power which had been followed from the high crimes and misdemeanors are all founded beginning of the Government down to the presupon mere forms of executive administration. ent day, is a refusal of the Executive to folFor the violation, they say, of the rules laid low a new rule, and, notwithstanding that, to down by the legislative department to regulate adhere to the ancient ways, that sort of high the conduct of the executive department in crime and misdemeanor which the Constitution the manner of the administration of executive contemplates.? Is it just ground for impeachfunctions belonging to that department. ment? Does the fact that such an act is called The regulations so made purport to change by the Legislature a high crime and misdewhat theretofore had been the established rule meanor necessarily make it such a high crime and order of administration. Before the pas- and misdemeanor as is contemplated by the sage of the second section of the military ap- Constitution? If, for instance, the President propriation act the President of the United should send a military order to the Secretary States, as Commander-in-Chief of the Army of War, is that an offense worthy of impeachand head of the executive department, issued ment? If he should remove an officer on the his orders for military operations either directly 21st of February and nominate another on the to the officer who is charged with the execu- 22d, would that be' an impeachable misdetion of the order or through any intermediate meanor? Now, it must be admitted thatif the channel that he deemed necessary or conve- President had sent the name of Mr. Ewing to nient. No subordinate had a right to super- the Senate on the 21st, in the usual way, in vise his order before it was sent to its distiha- place of Mr. Stanton removed, and had not tion. He was not compelled to consult his absolutely ejected Mr. Stanton from office, but Secretary of War, who was merely his agent, had left him to await the action of the Senate nor the General next to himself in rank as to upon the nomination, certainly in mere matter that important thing, the subject-matter of his of form there would have been no violation of order, or, that merely formal thing, the manner this tenure-of-office act. of its transmission. But, by this second sec- Now, what did he do? He made an order tion, the mere matter of form is attempted to for the removal of Mr. Stanton on the 21st, be changed. The great power of the President but did not eject him from office, and i sent a as Commander-in-Chief to issue orders to all nomination of' Mr. Ewing to the Senate on the his military subordinates is respected. The act 22d. Is it possible that thereby he had corntacitly admits that over these great powers mitted an act that amounted to a high crime Congress has no authority. The substance is and misdemeanor, and deserved removal from not touched, but only the form is provided for; office? And yet that is just what the Presiand it is a departure from this mere form that dent has done. He has more closely followed is to make the President guilty of a high crime the mere matter of form prescribed by the and misdemeanor. tenure-of-office act than, according to the Then, again, as to the tenure-of-office act, learned Manager who opened this prosecution, that also purports to introduce a new rule in was necessary. For, if he had made an order the administration of the executive powers. of removal, and at once had sent to the Senate It does not purport to take away the President's his reasons for making such removal, and had power of appointment or power of removal stated to them that his purpose was to make absolutely; but it purports'to fix the mode in this removal in order to test the consticutionwhich he shall execute that power, not as there- ality of the tenure-of-office act then, says the 7'69 honorable Manager, " Had the Senate received mere expression of confidence; not at all; such a message, the Representatives of the peo- but still having examined this case from beginpie might never have deemed it necessary to ning to end, having looked through it in all its impeach the President for such an act, to in- parts, I feel ready to say that there is not only sure the safety of the country, even if they had no case, but no shadow of a case. Oh! for an denied the accuracy of his legal positions." hour of my ancient vigor that I might make How, then, can it be deemed necessary to im- this declaration good; but poorly prepared I peach the President for making an order of hope to make it good to the satisfaction of the removal on one day, advising the Senate of it Senate that now hear me. the same day, and sending the nomination of a successor the next day? Was ever a matter STANTON NOT WITHIN THE TENURE-OF-OFFICE ACT. more purely formal than this? And yet this The first clause of the first section declares is the only act. Is this, in the words of Mr. that every person then or thereafter holding Burke, not in merely technical language, " but any civil office under an appointment with the in reality, in substance, and effect," a high adviceandconsent of the Senate and due qualicrime and misdemeanor within the meaning of fication shall hold his office until a successor the Constitution? shall have been in like manner appointed and I dislike very much to ask favors, but if it be qualified. the pleasure of the Senate to adjourn, I shall If the act contained no other provisions detain them but a short time to-morrow, and qualifying this general clause, then it would be it will be a great favor to me, a very great clear, favor. 1. That it would apply to all civil officers Mr. GRIMES. Mr. Chief Justice, I move who held by appointment made by the Presithat the Senate, sitting as a court of impeach- dent with the advice of the Senate, including ment, now adjourn. judicial officers as well as executive officers. The motion was agreed to; and the Sen- It gives all of them the same right to hold, and ate, sitting for the trial of the impeachment, subjects all of them to the same liability to be adjourned. removed. From the exercise of the power of suspension by the independent act of the PresSATURDAY, May 2, 1868. ident, made applicable to any officer so holding, by the second section, judges of the United The Chief Justice of the United States took States are expressly excepted. We United the chair. such exception, express or implied, as to the The usual proclamation having been made exercise of the power of removal declared in by the Sergeant-at-Arms, the first section. Judicial officers, as well as The Managers of the impeachment on the executive officers, are made to hold by the same part of the House of Representatives and the tenure. They hold during the pleasure of the counsel for the respondent, except Mr. Curtis, President and the Senate, and cease to hold: appeared and took the seats assigned to them when the President and Senate appoint a suerespectively. cessor. The members of the House of Representa- 2. It applies equally to officers whose tenure tives, as in Committee of the Whole, preceded of office, as fixed prior to the act, was to hold: by Mr. E. B. WASHBURNE, chairman of that during the pleasure of the President, as to those committee, and accompanied by the Speaker who were to hold for a fixed term of years, or and Clerk, appeared and were conducted to during good behavior. the seats provided for them. ~ 3. It purports to take from the President the the Journal of yesterday's proceeding of the power to remove any officer, at any time, for Senate, sitting for the trial of the impeach- any cause, by the exercise of his own power ment, was read. alone. But it leaves him a power of removal The CHIEF JUSTICE. The counsel will with the concurrence of the Senate. In this proceed with the argument. Senators will rocess of removal the separate action of the please givetheir attention. President and the Senate is required. The Mr. STANBERY. Mr. Chief Justice, first initiatory act must come from the President, of all, Senators, I must return my thanks for and from him alone. It is upon his action as the very great kindness shown me yesterday. taken that the Senate proceeds, and they give I was greatly in need of it. I am greatly ben- or withhold their consent to what he has done. efited by the rest it has afforded me. I feel The manner in which the President may exerrefreshed and better prepared, though at last cise his part of the process is merely formal. It how poorly, for the work that yet lies before may be simply by the nomination ofa successor me. Nevertheless your courtesy so kindly, so to the incumbent or the officer intended to be cheerfully extended, I shall not soon forget. removed. Then, upon the confirmation by the And now, Senators, before I enter upon this Senate of such nomination, and the issuance case I must be allowed to speak in advance of a commission to him, the removal becomes my deliberate opinion of the case itself, not in complete. Or the President may exercise his the way of rhodomontade, not that I hope to part of the process by issuing an order of recarry anything before a body like this by the moval, followed by a nomination. Neither the C. I.-49. 770 order for removal or the nomination works a Treasury, of War, of the Navy, and of the Interior, change in itself. Both are necessarily condi- the Postmaster General, and the Attorney General, tionalu the subsequent action of the Sen- shall hold their offices respectively for and during tional upon the subsequent action of the Sen- the term of the President by whom they may have ate. So, too, the order of removal, the nom- been appointed, and for one month thereafter, subination, and the confirmation of the Senate are ject to removal by and with the advice and consent not final. A further act remains to be done of the Senate." before the appointment of the successor is com- We see that these seven heads of Department plete, and that is an executive act exclusively- are the only civil officers of the United States the signing of the commission by the President. which are especially designated. We see a IUp to this point the President has a locuspen- clear purpose to make some special provision itentice; for, although the Senate have advised as to them. Being civil officers holding by the him to appoint his nominee, the President is concurrent appointment of the President and not bound by their advice, but may defeat all the Senate, they would have been embraced by the prior action by allowing the incumbent to the first general clause of the section, if there remain in office. had been no exception and no proviso. The Thus far we have considered the first clause argument on the other side is, that, notwithof the first section of the act without reference standing the declared purpose to make excepto the context. Standing alone it seems to have tions, these officers are not made exceptions; a universal application to all civil officers, and that notwithstanding there is a proviso as to to secure all of them who hold by the concur- them, in which express provision is specially rent action of the President and the Senate for their tenure of office, we must still look to against removal otherwise than by the same the general clause to find their tenure of office. concurrent action and to make all of them liable It is a settled rule of construction that every to removal by that concurrent action. word of a statute is to be taken into account, Are there exceptions to the universality of and that a proviso must have effect as much as the tenure of office so declared? We say there any other clause of the statute. are: Upon looking into this proviso we find its 1. Exceptions by necessaryimplication. Ju- purpose to be the fixing a tenure of office for dicial officers of the United States come within these seven officers.- And how is that tenure this exception; for their tenure of office is fied fixed? We find it thus declared: some of them by the Constitution itself. They cannot be are given a tenure-of-office, others are not. removed either by the President alone or by But as to the favored class, as to that class inthe President and Senate conjointly. They tended to be made safe and most secure, even alone hold for life or during good behavior, their tenure is not so ample and permanent as subject to only one mode of removal, and that the tenure given to all civil officers who, prior is by impeachment. to the act, held by the same tenure as them2. Exceptions made expressly by the provis- selves. By the general clause all civil officers ions of the act; which make it manifest that it are embraced and protected from executive was not intended for all civil officers of the removal, including as well those who hold by United States. First of all, this purpose is no other tenure than "the pleasure of the indicated by the title of the act. It is entitled President." This tenure, " during the pleas"An act regulating the tenure of certain civil ure of the President," was the tenure by which offices'-not of all civil offices. Next, we all,hese Cabinet officers held prior to the pasfind, that immediately succeeding the first sage of this law. Now, for the first time, this clause which, as has been shown, is in terms proviso fixed another and safer tenure for cerof universalapplication, comprehending "''every tain Cabinet officers, not for all. It gave to person holding any civil office," the purpose some of them the right to hold during the term of restraining or limiting its generality is ex- of one President and for one month of the pressed in these words, "except as herein term of the succeeding President; but it did otherwise provided for." This puts us at once not give that right to all of them. It was given upon inquiry. It advises us that all persons only to a favored class, and the new tenure so and all officers are not intended to be embraced given to the favored class was not so favorable in the comprehensive terms used in the first as that given to other civil officers who had clause; that some persons and some officers theretofore held by precisely the same uncerare intended to be excepted and to be "other- tain tenure, that is to say, " the pleasure of the wise provided for;" that some who do hold by President," for these other civil officers were the concurrent action of the President and the not limited to the term of one President and Senate are not to be secured against removal one month afterwards, but their tenure was by any other process than the same concurrent just as secure from " the pleasure of the Presaction. ident," after the expiration of one presidential What class of officers embraced by the gen- term, av:d after the expiration of the first month eral provisions of the first clause are made to of the succeeding presidential term, as it was come within the clause of exception? Thepro- before. viso which immediately follows answers the We see, then, that in fixing a new tenure question. It is in these words: of office for Cabinet officers, the tenure given "Provided, That the Secretaries of State, of the to one class of them, and that the most favored, 771 was not as favorable as that given to other civil children in his political family, and are not officers theretofore holding by the same tenure placed on the same level with the rightful heirs with themselves. This favored class were not entitled to the inheritance. to hold one moment after the expiration of The construction claimed by the Managers the month of the second presidential term. At leads to this inevitable absurdity: that the that punctual time the right of the President class entitled to favor are cut off at the end of to select his Cabinet would, even as to them, the month, while those having a less.meritoreturn to him. If they were to remain after rious title remain indefinitely. What was inthat, it would be that it was his pleasure to tended for a benefit becomes a mischief, and keep them and to give them a new tenure by the favored class are worse off than if no favor his choice in the regular mode of appointment. had been shown them. Their condition was But, as we have seen, the proviso makes a intended to be made better than that of their distinction between Cabinet officers and divides fellows, and has been made worse. From those them into two classes, those holding by ap- entitled to protection it is taken away to be pointment of the President for the time being, given to those not entitled. and those not appointed by him, but by his Now, when President Johnson wag invested predecessor, and holding only by his sufferance with his office, he found Mr. Stanton holding or pleasure. If ever an intent was manifest the office of Secretary of War. He had been in a statute it is clear in this instance. There appointed by Mr. Lincoln during his first term, is a division into two classes, a tenure of office and was holding in the second month of Mri given to one class and withheld from the other. Lincoln's second term under the old appointBefore the passage of this act all Cabinet ment. Mr. Stanton was neither appointed by officers holding under any President, whether Mr. Lincoln or Mr. Johnson for that second appointed by him or his predecessor, held by term; so that we are relieved from all question the same tenure, "the pleasure of the Presi- whether the fractional term, counting from the dent." This proviso makes a distinction be- accession of Mr. Johnson, is to be called the tween them never made before. It gives one unexpired term of Mr. Lincoln, or the proper class a new and more seecure tenure, and it term of Mr. Johnson, and whether, if he had leaves the other class without such new ten- been appointed or reappointed by Mr. Lincoln ure. One class was intended to be protected, during his second term, he might not have the other not, claimed that he was entitled, as against Mr. Nowcomes thequestion. Upon whatground Johnson, to hold on to its end. Mr. Stanton was this distinction made? Why was it that a never had any tenure of office under the better title, a stronger tenure was given to one tenure-of-office act for the current presidential class than to the other? The answer is given term, never having been appointed for that by the proviso itself. The officers in the Cab- term by either Mr. Lincoln or Mr. Johnson. inet of a President, who were nominated by He, therefore, does not come within the catehim, who were appointed by him with the con- gory of those members of Mr. Johnson's Cabcurrence of the Senate, are those to whom this inet who have been appointed by Mr. Johnson. new and bettertenure is given. They are offi- At the date of the passage of the tenlure-ofcers of his own selection; they are his chosen office act, the Cabinet of Mr. Johnson was agents. He has once recommended them to composed as follows: the Secretaries of State, the Senate as fit persons for the public trust, of the Treasury,. of War, and of the Navy, held and they have obtained their office through his by appointment of Mr. Lincoln made in his first selection and choice. The theory here is, that term; the Secretary of the Interior, the Posthaving had one free opportunity of choice, master General, and the Attorney General, held having once exercised his right of selection, by the appointment of Mr. Johnson made durhe shall be bound by it. He shall not dismiss ing his current term. There was, then, as to his own selected agent upon his own pleasure the entire seven, a difference as to the manner or caprice. He is, in legal language, " es- and time of their appointment. Four had been topped" by the selection he has made, and is appointed by Mr. Lincoln, and the other three made incapable by his own act of dissolving by Mr. Johnson. All of them held by the same the official relation which he has imposed on tenure, "the pleasure of the President." All himself. Having selected his Cabinet officer, of them, without reference to constitutional prohe must take him as a man takes his chosen visions, were, by existing laws, removable by the wife, for better or worse. independent action of the President. The acts But as to such Cabinet officers as are not of of Congress creating the offices of Secretaries a President's selection; as to those who have of' State, of War, and of the Navy, expressly been selected by a former President; as to recognize the executive authority to remove those whose title was given by another; as to them at pleasure. The acts of Congress erethose he never appointed, and, perhaps, never ating the four other heads of Departments place would have appointed; as to those who came them on the same footing as to tenure of office. to him by succession and not by his own act; All these acts remained, in this particular, in as to those who hold merely by his acquies- full force. This tenure-of-office act introduces cence or sufferance-they are entitled to no a distinction made applicable to Cabinet officers favor, and receive none. They atand as step- alone, never made before. For the first time 772 it gives to those appointed by the President for to those members of Mr. Johnson's Cabinet the time being a new tenure. It secures them appointed by himself. It therefore does not from removal at his pleasure alone. It repeals, apply to Mr. Stanton. If there is any other as to them, the existing laws, and declares that clause of the act which applies to Mr. Stanton, they shall thereafter be entitled to hold during it must be the first general clause, and if that the remainder of the term of the President by does not apply to him, then his case does not whom they were appointed, and for one month come within the purview of the act at all, but of the succeeding presidential term, exempt must be ruled by the preexisting laws, which from removal by the sole act of the President, made him subject at all times to the pleasure and only subject to removal by the concurrent of the President and to the exercise of his inact of the President and Senate. dependent power of removal. And this is preBut it gives them no right to hold against the cisely what is claimed by the Managers. They pleasure of the succeeding President one mo- maintain that, although the proviso does not ment after the expiration of that punctual time give Mr. Stanton a new tenure, yet the first of one month. When that time has arrived general clause does, and that he is put by that their right to hold ceases and their offices clause on the same footing of all other civil become vacant. The policy here declared is officers who, at the date of the act, held by the unmistakable, that notwithstanding anything concurrent appointment of the President and to the contrary in the act, every President shall Senate by no other tenure than "during the have the privilege of his own choice, of his pleasure of the President." own selection of the members of his Cabinet. But all the officers intended to be embraced The right of selection for himself is, however, by that first clause, who held by that tenure qualified. He may not, as theretofore, enjoy before, are declared to hold by a new tenure. this right throughout his term. For the first Not one of them can be removed by the Presi~month he must take the Cabinet of his prede- dent alone. Whether appointed by the Presicessor, however opposed to him in opinion or dent for the time being or by his predecessor, obnoxious to him personally. Then, too, while they must remain in defiance of the President the right is given to him, it cannot be exer- until removed by the concurrent action of the cised but once. It is a power that does not President and the Senate. In effect, so far as the survive, but expires with a single execution. power of the President is concerned, they may Now, as to the three members of Mr. John- hold for life. If Mr. Stanton comes within son's Cabinet, appointed by his own exercise the protection of that clause, if his tenure of of this independent power, he having, as to office is fixed by that clause, it follows inevitthem, once exercised the power, it is, as to ably that Mr. Johnson cannot remove him. them, exhausted. The consequence is that It follows as inevitably that no succeeding these three officers no longer remain subject to President can remove him. He may defy Mr. his pleasure alone. They are entitled to hold Johnson's successor as he now defies Mr. in defiance of his wishes throughout the re- Johnson. He may say to that successor as he mainder of his term, because they are his own has said to Mr. Johnson, " I am compelled to selected officers; but they are not entitled to deny your right under the Constitution and hold during the whole term of his successor, laws of the United States, without the advice but only for a modicum of that term, just be- and consent of the Senate." If the successor cause they were not selected by that successor. of Mr. Johnson should point him to the. proSo much for these three. viso, and at the end of the month require him Now, as to the other four, as to whom Mr. to leave, his answer, according to the ManJohnson has not exercised his right of choice agers, would run thus: "That proviso did not even byone appointment. May they hold dur- fix my tenure of office. It did not apply to ing the residue of his term ini defiance of his me, but only to those appointed by Mr. Johnwishes? Dothey come within that clear policy son. They must go out with the month; I do of giving to every President one opportunity at not. My tenure is fixed by the first clause, leastto exercisehisindependentrightofchoice? and you cannot get clear of me without the Surely not. Then, if, as to thein, he has the advice and consent of the Senate." right, how can he exercise it, if, as in the case of Mr. Stanton, the Cabinet officer holds on NO REMOVAL OF MR. STANTON. after he has been requested to resign? What But if it be held that Mr. Stanton did come mode is left to the President to avail himself within the purview of the tenure-of-office act; of his own independent right when such an if it be held that his removal by the independofficer refuses to resign? None other than the ent action of the President is forbidden by the process of removal; for he cannot put the man act, then we maintain that no such removal is of his choice in until he has put the other out. charged in the articles or made out in the So that the independent right of choice cannot proof. under such conditions be exercised at all with- It is only in the first article that any charge out the corresponding right of removal; and is made in reference to Mr. Stanton'sremoval. the one necessarily implies the other. That article nowhere alleges that Mr. Stanton We have seen that the tenure of office fixed has been removed, either in law or in fact. It by the proviso for Cabinet officers, applies only does allege that on the 21st of February Stan 773 ton was " lawfully entitled to hold said office I where the rule of construction is the most reof Secretary for the Department of War," and stricted. that on that day the President "did, unlaw- It seems a waste of words to argue this fully and in violation of the Constitution and point further. There is a total failure of the laws of the United States, issue an order in case upon the first article on this point, if we writing for the removal of Edwin M. Stanton had none other. And yet this article is the from the office of Secretary for the Depart- head and front of the entire case. Strike it ment of War." It is the issuance of this order out and all that remains is "leather and prufor a removal that is made the gravamen of nella." the charge. It is not followed by any allega- But, Senators, if you should be of opinion tion that it had the effect to work a removal, that the tenure-of-office act protected Mr. either in law or in fact. On the contrary, in Stanton, and that the attempt to remove him the very next article, which is founded on the was equivalent to a removal, we next mainorder to Thomas, which purports to be made tainafter the order for the removal of Stanton, it First, That the President had a right to is alleged that Stanton still held the office law- construe the law for himself, and if, in the fully, and that notwithstanding the order for exercise of that right, he committed an error removal to Stanton and the order to Thomas of construction, and acted under that error, to act as Secretary, Stanton still held the office, he is not to be held responsible. and no vacancy was created or existed. This Second, If he had so construed the law as is the tenor of every article, that Stanton to be of opinion that Mr. Stanton was intended never has been removed, in law or in fact; that to be protected by it against his power of rethere never has been an ouster, either in law or moval, and was also of opinion that the law in fact; that there never has been at no time in that respect was contrary to the Constitua vacancy. The proof shows that Stanton re- tion, he is not to be held reponsible if he mains in possession, and that his official acts therein committed an error. continue to be recognized. I proceed to argue these points in the order Now, if the orderper se operated a removal in which they have been stated. First, then, in law, it must follow that the order was valid is the President responsible for an official act and in conformity with the Constitution and done by him under an erroneous construction laws of the United States, for no order made of an act of Congress? I agree that ignorance contrary thereto could take effect in law. If or misconception of the law does not, in genthere was a removal in law the executive order eral, excuse a party from civil or criminal liawhich accomplished it was a valid, not an un- bility for an act contrary to law. But this welllawful act. But if the order did not operate a established rule hats exceptions equally well removal per se, and if aremoval in fact, though established, and the case here falls within one not in law, might be held sufficient to consti- of the exceptions, and not within the rule. tute an offense, and if it were alleged and were Where a law is passed which concerns the proved that under the illegal order an actual President and touches his official duties it is ouster or removal was effected by force or not only his right but his duty to determine threats the answer to be given in this case is for himself what is the true construction of the conclusive. No ouster in fact, no actual or law, and to act, or refuse to act, according to physical removal, is proved or so much as that determination, whatever it may be. He charged. Mr. Stanton has never to this day is an executive officer, not a mere ministerial been put out of actual possession. He remains officer. He is invested with a discretion, with imq possession as fully since the order was made the right to form a judgment, and to act under as before, and still holds on. his judgment so formed, however erroneous. Now, we look in vain through this tenure- No such discretion is allowed to a ministerial of:office act for any provision forbidding an officer. His business is not to construe the attempt to cause a removal, or making it penal law, but merely to perform it, and he acts at to issue an order for such a purpose. The his peril if he does not do that which is comsixth section is the only one on the subject of manded by reason of an erroneous construcremoval, and that provides: tion, however honestly entertained. "That every removal" "made" "contrary to the But, as I have said, the President is not a provisions of this act" "shall be deemed, and is ministerial officer. His function is not merely hereby declared to be, a high misdemeanor;" to execute laws, but to construe them as well. and is made punishable by fine not exceeding The Constitution makes this too clear for ques$10,000, orby imprisonment not exceeding five tion. It does not, it is true, vest him with years, or both, at the discretion of the court. judicial power, which always implies the exNo latitude of construction can torture an ercise of discretion. It vests him with the attempt to make a removal into an actual re- executive power, but, nevertheless, with a dismoval, or can turn an abortive effort to do a cretion as to the mode of its execution. The given thing into the accomplished fact. Such Constitution contemplates that, in the exercise a latitude of construction could not be allowed of that executive power, he may be involved where the rule of construction is least re- in doubt and perplexity as to the manner of its stricted, and least of all in a penal statute exercise, and, therefore, gives him the priv 774 ilege of resorting to his Cabinet officers for to give the President advice when called for by advice. The Constitution binds him by an oath him on any question of law. The President, not only faithfully to execute his office, not although such aids are given to him by the merely to carry into execution laws of Con- Constitution in forming his judgment on a quesgress, but also, to the best of his ability, to tion of law, is not bound to resort to them. preserve, protect, and defend the Constitution He may do so out of abundant caution, but itself. This great trust implies the exercise such is his own latitude of discretion that he of a large discretion. may act without invoking such aid, or he may It is sufficient, upon this point, to cite a late reject the advice when asked for and given, and opinion of the Supreme Court of the United lawfully decide for himself, though perhaps not States, in what is called the Mississippi injunc- so wisely or cautiously. tion case, decided in April, 1867. Mr. Chief Besides this late authoritative exposition, as Justice Chase, delivering the opinion of the to the discretionary power of the President, court, says; there is abundance of other authority entitled "It is assumed by the counsel for the State of to the gravest consideration, which might be Mississippi that the President, in the execution of adduced to the same effect, and which I prothe reconstruction acts, isrequired to perform a mere ose to introduce upon the next point, which ministerial duty. In this assumption there is, we think, a confounding of the terms ministerial and now proceed to consider, and that point is, executive, which are by no means equivalent in im- that if the President had so construed this tenport. A ministerial duty, the performance of which ureof-office act as to be satisfied that Mr. Stan may, in proper cases, be required of a head of a Department by judicial process, is one in respect to ton came within its provisions, but was also of which nothing is left to discretion. It is a simple, opinion that the law in that respect was condefinite duty, arising under conditions admitted or trary to the Constitution, he is not to be held proved to exist, or imposed by law." responsible if therein he committed an error. After citing some cases of merely ministerial The case in that aspect stood thus: here was duty, the Chief Justice proceeds as follows: an act of Congress which, in the construction "In each of these cases nothing was left to discre- given to it by the President, forbade the retion. There was no room for the exercise of judg- moval of Mr. Stanton from the War Department. The law required the performane eof a single, ment. The President, in the exercise of his specific act, and that performance, itwas held, might be required by mandamus. Very different is the duty executive functions and of his duty to see that of the President in the exercise of the power to see the laws were faithfully executed, came to the that the laws are faithfully executed, and among conclusion that in the execution of so much those laws the acts namedin the bill. The dutythus of th executive duty as had relation tothe imposed on the President is in no just sense minis- is executive duty as had relation to the terial. It is purely executiye and political. An administration of the War Department, it was attempt on the part of the judicial department o expedient to place it in the hands of another the Government to enjoin the performance of such duties by the President might be justly.character- person. His relations with Mr. Stanton were ized, in the language of Chief Justice Marshall, as such that he felt unwilling any longer to be rean'absurd and excessive extravagance.' It is true snonsible for his acts in the administration of that, in the instance before us, the interposition of at eprtment or to rust him s one of his the court is not sought to enforce action by the Exec-tat Department, or to trust him as one of his utive under constitutional legislation, but to re- confidential advisers. The question at once strain such action under legislation alleged to be arose whether this right of removal denied to unconstitutional. But we are unable to perceive that this circumstance takes the case out of the him by this law, was given to him by the Con-.general principle which forbids judicial interference stitution; or, to state it in other words, whether with the exercise of executive'discretion." this law was in this respect in pursuance of When, therefore, this tenure-of-office act the Constitution. came to be considered by the President in refer- Now, it appears that his opinion upon this ence to his purpose to remove Mr. Stanton question had been made up deliberately. When from office, he had a right and it was his duty this same law was on its passage and had been to decide for himself whether the proposed re- presented to him for his approval, his opinion moval of Mr. Stanton was or was not forbidden was formed that it was in violation of the Conby the act. As yet that act had received no stitution. He refused to approve it, and reconstruction by the judicial department, nor turned it to Congress with a message in which had the President any authority to send the act this opinion was distinctly announced. It to the Supreme Court, and require the judg- passed, notwithstanding, by a constitutional ment of that court upon its true meaning. The majority in both Houses. No one doubts that Constitution gave him no right to resort to the then, at least, he had a perfect right to exercise judges for advice. He could not settle his a discretion, and no one has ever yet asserted doubts, if he entertained doubts, by asking any that an error in an opinion so formed involved other opinions than those of the heads of him in any liability. Departments. The exercise of that veto power exhausted But the President was not even required to all his means of resistance to what he deemed ask the advice of his Cabinet, nor even of his an unconstitutional act, in his legislative capaAttorney General, to which officer he may re- city; and so far as the law provided a rule df sort for advice as a head of Department under action for others than himself, no other means the provisions of the Constitution, and whose of resistance were left to him. But this law special duty it is made by an act of Congress was directly aimed at him and the exercise of 775 the executive power vested in him by the Con- Mr. Jefferson says: stitution. When, therefore, he came a second " The second question, whether the judges are intime to consider it, it was in thd discharge of vested with exclusive authority to decide on the an executive duty. Had he then no discretion nstitutionality of a law, has been heretofore a sub~an excuie ut.Ha e heoisrtinject of consideration with me in the exercise of offiof any sort? Was he bound to act in a.nerely cial duties. Certainly there isnot a word in the Conministerial capacity? Having once finally ex- stitution which has given that power to them more than to the executive or legislative branches. Quesercised a discretion in his legislative capacity to tions of property, of character, and of crime, being prevent the passage of the law, was he thereby ascribed to the judges, through a definite course of deprived of his discretion in his executive capa-legal proceedings-laws involving such questions cit hen he was caledpon to actuner i belong of course tothem, and as they decide on them city when he was called upon to act under it.? ultimately and without appeal they of course decide It has been said, that a law passed over a for themselves. The constitutional validity of the President's veto by a majority of two thirds, law or laws prescribing executive action, and to be administered by that branch ultimately and without has a greater sanction than a law passed in the appeal, the executive must decide for themselves also ordinary way by a mere majority. I know whether under the Constitution they are validornot. that there are those who, while they admit So, also, as to laws governing the proceedings of the Legislature; that body must judge for itself the conthat, as to a law passed in the ordinary mode stitutionality of the law, and, equally, without appeal by the concurrent acts of the two Houses and or control from its coordinate branches. And, in the President, it may be questioned on the general, that branch which is to act ultimately and of unconstitutionlity, yet maintain that without appeal, on any law, is the rightful expositor score of unconstitutionality, yet maintain that of the validity of the law, uncontrolled by the opina law not passed by such a concurrence, but ions of the other coirdinate authorities." by the separate action of the two Houses with- President Jackson, in his veto message upon out the concurrence of the Executive, or the bank bill, uses this language: against his will, is something superior to ordi- "'If the opinion of the Supreme Court covered the nary legislation, and takes the character of a whole ground of this act it ought not to control the fundamental or organic enactment. But this coordinate authorities of this Government. The Conis a modern heresy unsustained by the slightest gress, the Exeoutive, and thecourt must each foritself reason or authority. It at last be guided by its own opinion of the Constitution." reason or authority. It is. at last but a legis- Mr. Van Buren makes use of this language: lative act. It stands upon an equal footing Mr. Van Buren makes use ofths language: with other legislative acts. It cannot be put *"Everybody knows that an act which is contrary with other legislative acts. It cannot be put to the Constitution is a nullity, although it may have upon higher ground or lower ground. No passed according to the forms of the Constitution. distinction is allowable between the one and That instrument creates several departments, whose the other. But, if it were, it certainly would duty it may become to act upon such a bill in the the other. But, if it were, it certainly would performance of their respective functions. The theseem more reasonable that such a law passed ory of the Constitution is that these departments are by one coordinate department, would stand on coordinate and independent of eaph other, and that, lower ground than a law passed with full con- whenthey act in their appropriate spheres, they each have a right, and it isthe duty of each to judge for currence of both departments. themselves in respect to the authority and requireThe question then recurs, is the President ments of the Constitution without being controlled or invested with a disretion in his executive interfered with by their co-departments, and are each invested with a discretion in his executive responsible to the people alone for the manner in capacity? In the exercise of that discretion which they discharge their respective duties in that may he compare the law with the Constitution, regard. It is not, therefore, to be presumed that that and if, in his opinion, the law vests him with instrument, after making it the President's especial duty to take an oath to protect and uphold the Cona power not granted by the Constitution, or stitution and prevent its violation, intended to deny deprives him of a power which the Constitu- to him the right to withhold his assent from a meastion does grant; may he refuse to execute the ure which he might -conscientiously believe would have that effect and to impose upon him the neeespower so given, or proceed to execute' the sity of outraging his conscience by making himself power so taken away? We have already cited a party to such a violation." a late decision of the Supreme Court directly Whether these views are sound or not is not in point. That presented the direct question now the question. It happens that as to this whether, as to the reconstruction acts, passed tenure-of-civil-office law, it has never been like this tenure-of-civil-office act, by a vote of held by the Supreme Court to be constitutwo third; in each House, the President had, tional. But, if it had been otherwise, if this notwithstanding, in reference to those laws, an law had been pronounced constitutional by a executive discretion. The decision maintains solemn decision of the Supreme Court of the that he had., United States, what ground would there be I now proceed to show that this is no mod- for holding the President guilty of a high misern doctrine. The authorities which I shall demeanor in forming an opinion sanctioned cite go beyond the necessities of this case. by the authority of three of his predecessors? Some of them go to the length of asserting that I will now call attention to certain leading this executive discretion survives even after the authorities upon the point that a law passed by passage of the law by the legislative department, Congress in violation of the Constitution is it has been construed by the judicial depart- totally void, and as to the discretion vested in ment, and in that extreme case, leave the Pres- the President to decide for himself the quesident at last to act for himself in opposition to tion of the validity of such a law. I cite first the express will of both the other departments. from the Federalist, No. 76: I will first cite some opinions upon this extreme "There is no position which depends on clearer position. principles than that every act of a delegated author 776 ity contrary to the tenor of the commission under alterable when the Legislature shall please to alter which it is exercised, is void. No legislative act, it. If the former part of the alternative be truethen therefore, contrary to the Constitution, can be valid." a legislative act contrary to the Constitution is not "If it be said that the legislative body are them- law; if the latter part be true, then written constituselves the constitutional judges of' their own powers, tions are absurd attempts on the part of the people, and that the construction they put upon them is con- to limit a power in its nature illimitable." "Cerelusive upon the other departments, it may be an- tainly all those who have framed written constitu-' swered that this cannot be the natural presumption tions contemplate them as forming the fundamental where it is not to be collected from any particular and paramount law of the nation, and, consequently, provisions in the Constitution." the theory of every such government must be, that an act of the Legislature, repugnant to the ConstiI cite next from No. 31 of the Federalist, in tution, is void." "Thus the particular phraseology reference to that clause of the Constitution de- of the Constitution of the United States confirms and claring its supremacy and the supremacy of the strengthens the principle, supposed to be essentisl to all written constitutions, that a law repugnant to laws. It is said: the Constitution is void; and that courts, as well as " It will not, I presume, have escaped observation other departments, are bound by that instrument." that it expresly, confines this supremacy to laws made In Dodge vs. Woolsey (18 Howard, pages pursuant to the Constitution, which I mention merely 347-8 the court say: as an instance of caution in the Convention; since that limitation would have been to be understood, "The departments of the Government are legisthough it had not been expressed." lative, executive, and judicial. They are coordinate Chancellor Kent, in the first volume of his in degree to the extent of the powers delegated to Chancellor Kent, in the first volume of his each of them. Each, in the exercise of its powers, Commentaries, uses this language: is independent of the other, but all, rightfully done "But in this and an other countries where there is by either, is binding upon the others. The Constia written constitution designating twhe e powers and tution is supreme over all of them, because the peoa written constitution designating the powers and duties of the legislative as well as of th e otherdepart- anything which may be done unauthorized by it is ments of the Government, an act of the Legislature uilawfuh." may be void as being against the Constitution. " Speaking of the legislative power the Chan- Again, in 22 Howard, page 242, the nulliy cellor adds: of any act inconsistent with the Constitution is produced by the declaration that the Constitu"It is liable to be constantly swayed by popularthe declaration that the Costit prejudice and passion, and it is difficult to keep it tion is the supreme law. from pressing with injurious weight upon the consti- I will now refer to some decisions of. the tutional rights and privileges of the other depart- Supreme Court of the United States, which relate more particularly to the point, that as In Hayburn's case (2 Dall., page 407) the an executive officer the President is vested opinions of the judges of the circuit courts with a discretion. of the United States fbr the districts of New In Marbury vs. Madison (1 Cranch, page 380) York, Pennsylvania, and North Carolina, upon is the following: the constitutionality of the act of MRarch 23, ""Bythe Constitution of theUnited States the Pres1792, are reported. This act purported to con- ident is invested with certain important political fer upon the judges a power which was not powers, in the exercise of which he is to use his own judicial. They were of opinion that Congress discretion, and is accountab'le only to his country in his political character, and to his own conscience, had no authority to invest them with any power To aid him in the performance of these duties, ho is except such as was strictly judicial, and they authorized to appoint certain officers to act by his were not bound to execute the law in their authority and in conformity with his-orders. In such cases their acts are his acts, and whatever opinion judicial capacity. may be entertained of the manner in which execuIn Calder vs. Bull, (3 Dall., page 398,') speak- tive discretion may be used, still there exists, and ing of the paramount authority of Federal and exist, no power to control this discretion." State constitutions, it is said: And in Martin vs. Mott (12 Wheaton, page " If any act of Congress or of the Legislature of a 31) this: State violates those constitutional provisions, it is unquestionably void." "The law does not provide for any appeal from the judgment of the President, or for any righet in subordIn Van Horn's Lessee vs. Dorrance (2. Dall., inate officers to review his decision, and, in effect, defeat it. Whenever a statute gives a discretionary page 308) we find the following: power to any pelson to hbe exercised by him upon his - "What are Legislatures? Creatures of the Consti- own opinion of certain facts, it is a sound rule of tution; they owe their existence to the Constitution. construction that the statute. constitutes him the They derive their powers from the Constitution. It sole and exclusive judge of the existence of those is their commission; and, therefore, all their acts facts." must be conformable to it, or else theywill be void." Quotations from opinions of the Supreme "Whatever may be the case in other countries. yet Quotations from opinions of the Supreme in this there can be no doubt that every act of the Court maintaining that the executive power of Legislature repugnant to the Constitution is abso- the President is in no sense merely ministerial Alutey void.".r s **but strictly discretionary, might be multiplied Chief Justice Marshall, delivering the opin- indefinitely And, indeed, it is easy to sow ion of the court in Marbury vs. Madison, says: from repeated decisions of the same court, that "It is a proposition too plain to be contested that the heads of Departients, except where the the Constitution controls any legislative act repug- performance of a specific act or duty is required nant to it; or, that the Legislature may alter the Constitution by an ordinary act. Between these of them by law, are in no sense ministerial alternatives, then is no middle ground. The Con- officers, hut that they too are clothed with a stitution is either a superior, paramount law, un- discretion, and protected from responsibility changeable by ordinary means, or it is on a level and protected from responsibility with ordinary legislative acts, and like other acts, is i for error in the exercise of that discretion. 777 Thus, Decatur vs. Paulding, 14 Peters; Ken- time to the introduction of these declarations dall vs. Stokes. 3 Howard; Brashear vs. Mason, without laying a foundation upon which the 6 Howard; in which latter case the court President could be made liable by such declasays: ration. Impressed with this objection, the "The duty required of the Secretary by the resolu- Manager who opened the prosecution, after tion was to be performed by him as the head of one some consideration, at length answered an inof the executive Departments of the Government, in quiry of a Senator, that he expected to follow the ordinary discharge of his official duties; that in quiry o r, that he expected to follow general such duties, whether imposed by act of Con- up the proof of the declarations by proof congress or by resolution, are not merely ministerial necting the President with them. Upon that duties; that the head of an executive Department of assurance he was allowed to give the declarathe Government, in the administration of the various and important concerns of his office, is contin- tions of General Thomas in evidence. Butthat ually required to exercise judgment and discretion; is the last we have heard of any supporting and that the court could not, by randamus. act di- proof so promised. Not a scntilla of proof rectly upon the officer, to guide and control his judg- proof sopromised. Not a scintilla of proof ment and discretion in matters committed to his care has been obtained from General Thomas or in the ordinary discharge of his official duties." from any other quarter, under the conspiracy I will now ask your attention, Senators, to charge, of any authority given or intendedto be the remaining articles. given by the President to General Thomas to And first the four conspiracy articles. These resort to force, intimidation, or threats in the allege that the President unlawfully conspired execution of the order which the President had with Lorenzo Thomas, and others to the House given. This is quite enough to say with regard of Representatives unknown, on the 21st of to those articles. February, 1868-first, to hinder and prevent Next, as to the ninth article, usually known Edwin M. Stanton, Secretary of War, from as the Emory article. It had no substance in holding the office of Secretary for the Depart- itself from the beginning, and2 since the testi-' ment of War, contrary to the conspiracy act mony of Mr. Welles, remains without the of July 31, 1861, and in violation of the Con- slightest foundation. stitution of the United States; second, to pre- Next, as to the tenth article, relative to the vent and hinder the execution of the "act reg- speeches made at the Executive Mansion, at ulating the tenure of certain civil offices," and Cleveland, and at St. Louis, in the months in pursuance of this conspiracy did unlawfully of August and September, 1866. It is in the attempt to prevent Edwin M. Stanton from name of all the people of the United States holding the said office; third, by force to seize, that you, Senators, are, in this article, called take, and possess the property of the United upon to hold the President of the United States States in the Department of War in the custody criminally responsible, even to the loss of his and charge of Edwin M. Stanton, Secretary office, for speaking, as the article has it, with thereof, contrary to the conspiracy act of July a loud voice to assemblages of American citi31, 1861, and of the tenure-of-office act; fourth, zens, what is called scandalous matter touchwith intent unlawfully to seize, take, and pos- ing the Thirty-Ninth Congress of the United sess the property of the United States in the States. Department of War in the custody of Edwin In the first place, that political body did not M. Stanton, the Secretary thereof, with intent deem it necessary to guard their own honor to violate the "act regulating the tenure of and privileges by taking notice of charges so certain civil offices." made against themselves. Every word charged It will be seen that these four conspiracy had been brought to their notice, and they were counts all relate to the same subject-matteir, the pressed again and again to commence proceedWar Office, the Secretary of the War Office, and ings to vindicate their honor thus aspersed. the public property therein situated. And this But they deliberately declined to interfere, and is all that is necessary to be said about these so the slander, if it were a slander, spoken, articles; for not a scintilla of proof has been and the object against which it was spoken, adduced in their support. The case attempted have all passed away, and a new Congress finds to be magle out under these conspiracy articles it necessary to vindicate the honor of its deby the Managers was, in the first place, by the funct predecessor by doing that which its preproduction of the two sets of orders issued on decessor refused to do for itself. the 21st of February. But as these of them- When the statutes of scandalum magnatum selves did not amount to evidence of a con- prevailed and were in full force in England, spiracy, as they carried the idea of no unlawful there happened this case, which will be found agreement, but simply stood upon the footing reported in Yelverton: a common citizen was of an order given by a President to a subord- prosecuted for scandalous matter spoken of a inate, the Managers, in order to make some peer. Pending the prosecution the great man show of a case, offered to introduce the decla- lost his peerage; whereupon it was decided rations of General Thomas, made on the night that, the prosecution should be dismissed. of the 21st and on the 22d of February and It passes comprehension that such an article other days, intending to show a purpose on his as this tenth article should be gravely presented part to obtain possession of the Department in the name of the American people for words and the property of the Department by intimi- spoken to them by one of their servants, the dation and force. Objection was made at the President, against another of their servants, 778 the Congress of the United States. If there is and adopted, and the first in order among them any one precious right which our people value is this amendment: as a jewel beyond price it is the right of free "ARTICL 1. Congress shall make no law respectspeech with the corresponding right of a free ing an establishment of religion or prohibiting the press. Muzzle the one or gag the other, and free exercise thereof; or abridging the freedom of we are back again to the times when there was speech or of the press; or the right of the people earebackagain totetpeacefully to assemble and to petition the (Governno such body in the State as the people. ment for a redress of grievances." This tenth article carries us back five hundred years, to the days when the privilege of gious freedomn that article, associated with reliParliament meant the privilege of the House with the f reedom of the press, of Lords, and no common mnan dare speak with the great right of popular assemblage and of Lords, and no common mnan dare speak r of petition —there we find safely anchored foragainst its authority, or the authority or per- of etition-there we hnd safely ancho sonal character of what was called the great ever this inestimable right of free speech. men of the realm who sat there. Ae great Mark now, Senators, the prescient wisdom men of the realm who sat there. A common of the people! Within ten years after the man said of that proud prelate, the Bishopf adoptio of te Constitution the Governen Norwich, " You have writ me that which is adoption of the Constitution the Government Norwich, IYou have writ me that which is against the word of God, and the maintenance was entirely in the hands of one party. All of superstition. Straightway the privilege oof its departments, executive, legislative, and Parliament seized him and punished him judicial, were concentrated in what was then Another said of my Lord Abergavenny, "He called the Federal party. But a formidable sent for me and put me in little ease." That party had begun to show itself, headed by a poor man was seized at once and punished for formidable leader-a party then called the Re publican, since known as the Democratic party. daring to speak thus of one of the magnates of N othing was left to them but focratic party. the land. Nothing was left to them but free speech and a free press. All the patronage was upon the But the spirit of English liberty, after strug- other sress All the patronage was upon the gling for years, at last proved victorious over tede B ut they mad e the most ofha the these ancient abuses, and a mnan in England great engines. So much, however, had the may now speak his religious sentiments without dominant party lost discretion, confident in its fear of the fires of Srmithfield; he may discuss party strength, that, irritated to folly.and madthe proceedings of the great men of Parliament ness by the fierce attacks made upon its execwith at least a fair opportunity of defending the utive, itsjudiciary, and its Houses of Congress, liberty of speech. And at last the press of that in an evil hour it passed an act, July 14, 1798, country has cleared itself of nearly all the etitled Anact or the punishment of certain shackles that have been imposed upon it. T he s eon d section of this adt proides: Nominally the law remains unchanged. Privilege of Parliament has not been expressly re- "That if any person shall write, print, utter, pubpealed; but, like the sword of the Black Prince ish" * * * any false, scandalous t~~~~~r * s | {~~and malicious writings against the Government of in Westminster Abbey, "it lies more honor- the United States, or either House of the Congress able in its rust than in its edge; more glorious of the United States, or the President of the United in its disuse than in its service." * States, with intent to defame the said Government s or either House of the said Congress, or the said Upon the formation of the Constitution of President, or to bring them or either of them into the United States our fathers were not un- contempt or disrepute, or to excite against them, or mindful of what had happened in the past, either or any of the m, t he hatred of the god people They had brought with them the traditions of persons" * * * * "shall be punished suffering and persecution for opinion's sake, b a fine not exceeding $2,000 and by imprisonment and they determined to lay here for themselves not exceeding two years." the foundations of civil liberty sok strong that No act has ever been passed by the Congress they never could be changed. When our Con- of the United States so odious to the people stitution was formed and was presented to the as this. Mr. Hamilton and other great Federvarious States for adoption, the universal ob- alists of the day attempted In vain to defend t jection made to it was not so much for what it before the people. But the authors of the it contained as for what it omitted. It was law and the law itself went down together besaid, we find here no bill of rights; we find fore the popular indignation, and this act, here no guarantee of conscience, of speech, of which was gotten up by a great and powerful press. The answer was, that the Constitution party in order to preserve itself in power, beitself was, from beginning to end, a bill of came the fatal means of driving that party out rights; that it conferred upon the Government of power, followed by the maledictions of the only certain specified and delegated powers, people. and among these were not to be found any History continues to teach, now as heregrant of any power over the conscience or over tofore, that "Eternal vigilance is the price of free speech or a free press. The. answer was liberty." There is now, as there has been in plausible, but not satisfactory. the past, a constant tendency to transfer power The consequence was that at the first Con- from the many to the few. There the danger gress held under the Constitution, according lies to the permanence of our political instituto instructions sent from the various State tions, and its source is in the legislative departconventions, ten amendments were introduced ment, and in the legislative department alone. 779 Guard that well and we are safe; and to guard ruary, 1868, that it is claimed on the part of it well you must guard the other departments the Managers that the President usurped a from its encroachments. Without the help of power not granted by the Constitution. the people they cannot defend themselves. If that proposition could be established the This last attempt manifested in this tenth arti- Managers would still be a great way off from a cle to again bring into play the fearful privilege conviction for an impeachable offense. Much of the legislative department is only a repe- more must be made out besides the actual tition of what has happened from the dawn of violation by the President of the constitutional history. Wherever that has been the governing provision: first of all, the criminal intent to element it has always been jealous of free violate; and secondly, the existence of an act speech and a free press. It has not been so of Congress providing that such violation with with the absolute monarch. He feels secure, criminal intent should amount to a high crime surrounded by physical power, sustained by and misdemeanor. But I hasten to meet the armies and navies. Accordingly we find that Managers upon the main proposition, and I such a monster as Tiberius pardoned a poor maintain with confidence that the order issued wretch who had lampooned his authority and on the 21st of February, 1868, for the removal ridiculed his conduct, while the decemvirs of Mr. Stanton, was issued by the Presideht in remorselessly put to death a Roman satirist the exercise of an undoubted power vested in who was bold enough to attack and to bring him by the Constitution of the United States. into contempt their authority. No executive order issued by any President) The eleventh article is the only one that re- from the time of Washington down to the presmains to be considered. I confess my inabil- ent comes to us with a greater sanction or ity to make anything out of that article. There higher authority or stronger indorsement than is, in the first place, a reference to the speech this order. If this order is indeed, as it iS of the 18th of August, 1866, and it then claimed, a usurpation of power not granted charges substantially the same things contained by the Constitution, then Washington was a in the tenth article in reference to that speech, usurper in every month of his administration, adding.a new allegation, not sustained by proof and after him every President that ever occuof the speech itself or by any other proof in pied that high office from his day to that of the the case, that by that speech the President de- present incumbent; for every one of them has tied the power of the Thirty-Ninth Congress exercised, without doubt and without questions to propose amendments to the Constitution of this executive power of removal froff office. the United States. Then follow indefinite alle- So far as this question stands upon authority gations of contriving means or attempting to it may be said to have been more thoroughly contrive means to defeat the execution of the and satisfactorily settled than any one that has tenure-of-civil-office act, the military appro- at any time agitated the country; settled first priation act, and the reconstruction act. What in 1789 by the very men who framed the Conthings were contrived we are not told, nor what stitution itself; then, after the lapse and acquitthings were attempted to be contrived. I do essence of some forty years, brought again and not feel warranted in taking up the titne ofthe again into question in high party times in 1826, Senate by any further consideration of this in 1830, and in 1885. But in the worst party anomalous article. So far as it has any refer- times it was never changed by the Legislature, ence whatever to the freedom of speech, what but left as it was until the 2d of March, 1867, I have said in answer to the tenth article seetms when, after the lapse of almost eighty years, a to be sufficient. As to anything this article new rule was attempted to be established which contains beyond reference to that speech I, for proposes to reverse the whole past. One, can make nothing out of it. Now, Senators, let us consider upon the ConAnd now, Senators, after this review of the stitution itself this question of the executive articles of impeachment, we are prepared to powerof remotnval. Nopoweris expresslygiven form some idea of the nature of this impeach- by the Constitution to remove any civil officer ment itself. Where, now, is the mischief? from office, except what is given by means of Where, now, is the injury to any individual or impeachment. The power of appointment to to any officer ofthe Government brought about office, however, is expressly given, and that is by the action of the President? Whether act- given to the President, as to certain officers, uated by good motives or bad, no injury has by and with the advice and consent of the Senfollowed; no public interest has suffered; no ate. That is, in the act of appointing to office officer has been changed, either rightfully or the main part is done by the Executive, but wrongfully; not an item of public property or there must be a participation therein of the of public money has passed out of the custody legislative department. of law, or has been appropriated to improper Now, all agree that there must exist somenses. where a power to remove officers for other To all this it is said that it is enough that causes and under other circumstances than the law has been violated, that powers have those which would justify or requite impeachbeen assumed by the President not conferred ment. Somewhere in the executive departupon him by the Constitution of the United ment, or in the executive and legislative deStates. It is in the order of the 21st of Feb- partments combined, there must be lodged this 780 power of removal. Inasmuch as it is not given moval requiring instant action for the safety expressly to the President, does it belong to of the public would involve administration in both; and if not to both, to which of the two inextricable confusion and difficulty. It would does it properly belong? turn the Senate into the most corrupt of politFirst of all, then, let us consider the thing ical bodies. It would fill this Senate Chamber that is to be done. It is a contingency that with cliques and favoritism. It would lead to arises, not in the legislative department, but constant cabals. One thousandth part of the in the executive department. It concerns an cases requiring actual investigation could never officer of that department charged with the be reached, and those that could be reached execution of the law. He is in the perform- would consume the entire time of the Senate ance of a strictly executive duty. It is found to the exclusion of all other public business. necessary to displace him. Is it in the nature And, again, it would give time to unfaithful of things, there being an executive power and officers to defy the Executive, and looking to a legislative power, that there can be a doubt the Senate, grow bolder and bolder in their that it is the executive power that must now peculations. be called into action? The more we study our excellent ConstituConsider how carefully these powers are tion the clearer it becomes that the wise men separated in the Constitution, and their func- who framed it endeavored in all possible ways. tions defined. The legislative power is vested by checks and balances, to keep the three in the Legislature. What is legislativepower? great departments coordinate and separate, It is a power to make laws-a power to legis- and, as far as possible, independent of each late; not a power to carry laws into execution other. The judiciary department'is made inafter they are made; not a power to give inter- capable of exercising any other than a judicial pretation to laws after they are made. Its function; and, in general, such is the case with function begins and ends in the creation of *regard to the other two departments. law itself. Undoubtedly the legislative power But there are cases plainly expressed where, has much to do in the matter of offices and of under certain circumstances, the executive and the executive department. It is a part of the legislative departments combine for certain legislative function to create these offices, to purposes. A striking instance is in the matter abolish them, to define the duties of the incum- of legislation, where, upon the final passage bents, to amend them, and, from time to of a bill, the Executive is given a qualified time, change them, and to fix the salaries of legislative power. So, too, in the formation the officers-all these are properly legislative of a treaty, which is strictly an executive duty, functions having regard to executive offices. one branch of the Legislature is allowed a parBut a law which establishes the office and ticipation. And, lastly, in the executive busidefines its duties'does not put the officer in ness of appointments to office one branch of place, or the law in process of execution. All the Legislature, that is to say, the Senate, is that belongs to the executive department. also allowed to participate. But, beyond these Look now at the character of the executive definite fixed points, there is no authority any'department. The Constitution of the United where in the Constitution for the legislative States vests all executive authority in the Pres- department to exercise an executive power, ident. Wherever you find executive power to or for the executive department to exercise a be exercised, he is the source and fountain legislative power. The moment, therefore, from which it must proceed. This would be the Legislature assumes a right to participate *enough of itself, but, in addition to this, he in the executive power of removal it claims a alone, and not Congress, is required to see that right to exercise an executive power in a matthe laws are faithfully executed, and he alone ter for which it finds no grant or authority in is required to take an oath to preserve, protect, the Constitution. and defend the Constitution of the United I stand, then, Senators, on the constitutional States. But how is he to execute the laws? power of the President to remove Mr. Stanton Certainly not by his own hands. He cannot from office. If he did in fact possess that act as marshal or district attorney, or as a power what becomes of the tenure-of-office head of Department. He must see that the act, or anything else in the way of legislation? laws are executed by the proper agents, and If it is a constitutional power which he poshe must see to it that they are faithfully exe- sesses, how can it be taken away by any mode cuted. It is not a barren abstract duty imposed short of a constitutional amendment? Then, upon him, but a living obligation, with the too, if he deems it his constitutional power, sanction of an oath, not to be omitted under how can you punish him for following in good any circumstances. Wherever there is an un- faith that oath which he has been compelled faithful or improper officer the President of to take, that he " will preserve, protect, and the United States has not only the power but defend the Constitution of the United States." it is his duty to remove him. The truth is, it Look, Senators, at what has happened since would be impossible to carry on this Govern- the beginning of this trial. During the proment under any other idea than that. gress of the case, on the 31st of March, 1868, This idea of a participation of the Senate in a question arose, in which the Senate, as a all the constantly recurring questions of re- court of impeachment, were equally divided. T781 Thereupon the Chief Justice decided the ques- constitutional function a high crime, and subtion in the affirmative by his casting vote. I jectink him to imprisonment? The doctrine make now the following extract from the min- asserted by the Managers saps the very foundautes of the next day, April 1: tion of our system, and turns our written Con"Mr. SUMNER. Mr. President, I send to the Chair stitution into a mere mockery. Wherever a an order which is in the nature of a correction of President is deliberately of opinion that an act the Journal. of Congress calls upon him to exercise a powet "The Secretary read as follows:'It appearing h from the reading of the Journal of yesterday that not given to him by the Constitution, he vioon a question where the Senate were equally di- lates that Constitution if he follows it. Again, vided, the Chief Justice, presiding on the trial of the wherever he is called upon to execute a law President, gave a casting vote, it is hereby declared that, in the judgment of the Senate, such vote was,which deprives him of a constitutional power, without authority under the Constitution of the he violates the Constitution as well by executUnited States.' i ask for the g it. A great trust is committed to his Mr. SUMNER. On that question I ask for the g yeas and nays. hands, sanctioned by a solemn oath, and "The yeas aud nays were ordered; and being he cannot surrender the one or violate the taken, resulted-yeas 21, nays 27. "So the proposed order was rejected." other. And now, Senators, I ask your close attenHow near, Mr. Chief Justice, did you come tion to what seems to me a most singular charto the commission of an impeachable offense, acteristic of this case..How does it happen according to this modern doctrine announced that for the first time in the history of our here by the Mana, ers! country the President of the United States has But it is said on behalf of the Managers that been suddenly subjected to such punitive legisalthough each department of the Government lation as that which was passed on the 2d of may have the right to construe the Constitution March, 1867? Laws were passed on that day for itself in the matter of its own action-that purporting to change the order of executive being so, the legislative departiment may carry action. Such laws have not been uncommon out its own opinions of the Constitution to all either in our national or State Legislatures. It their final results, even if thereby they totally has often happened that the legislative departabsorb every power of the executive depart- ment has made changes in the manner of admerit. They are the sole judges of their own ministration of the executive department; powers when called upon to act, and must de- oftentimes imposing duties never imposed becide for themselves. Bat if they have this ulti- fore; oftentimes prescribing action in the most mate power of decision so also has the Execu- direct and explicit terms. But where before tive; and if they have a right to enforce their has legislation of this sort been found attended construction against the Executive, so also has with such pains and penalties as we find here? the Executive a right to enforce its construc- Now, observe, Senators, that neither in the tion against theirs. It was to meetthat very punitive clauses of the second section of that contingency, it was to save us from such fatal military appropriation act, nor in the sixth consequences, that the wisdom of our fore- section of that tenure-of-office act, is the Presifathers introduced the judiciary department dent of the United States so much as menas the final arbiter of all such questions. That tioned. Whoever drew these acts shrunk from failing. there is but one alternative-an actual referring to the office by name. It is under collision or a resort to the people themselves. the general description of" person " or " civil This last is the great conservative element in officer " that he is made liable to fine and imour Government. When this fails us all is prisonment for failing to carry out the new goge. When the voice of the people ceases to provisions of law. But there is no question be appealed to, or, being appealed to, ceases that it is the President, and the President alone, to be listened to, then faction and party will that is meant. The law was made for him; have accomplished their perfect work, and this the punishment was made for him. He is left frame of government will, like a worthless no choice, no chance of appeal to the courts, thing, be cast away. no mode of testing the validity of the new law. Nothinglsplainerthan the dutyof the Execu- The rule is laid down for him and the consetive to resist encroachments of the legislative quences of disobedience. The language in department. If he submits tamely to one effect is, this or the penitentiary. Do our usurpation of his rightful powers he may lose bidding, or take the consequences of impeachall. What is there to prevent the Congress of ment. I undertake to say that, in the history the United States from passing a law to take of legislation, nothing like this is anywhere to away from the President his veto power, and be found. to make its exercise a high crime and misde- And now, Senators, how do all these highmeanor punishable by long imprisonment and sounding phrases, importing high crimes and made impeachable? Whatis there to prevent misdemeanors, found in these two acts of Conthem,,if left to the unrestrained exercise of gress, compare with the actual character of their own power, from transferring the cornm- those acts called high crimes and misdemeanors mand of the Army and Navy from the Presi- in the text of the Constitution? I do not dent to one of his subordinate officers, and intend to argue this question upon precedent. making the attempt on his part to exercise his That work has been effectually done by the 782 learned Manager, Mr. WILSON, and he has set "tle trial of all crimes, except in cases of im at rest forever the pretense that there is any peachment, shall be by jury," and that other precedent that makes anything an impeachable provision, that after conviction on impeachoffense but those crimes and misdemeanors ment "the party convicted shall, nevertheless, punishable by indictment. But precedents be liable and subject to indictment, trial, judghere are out of place. The language of the ment, and punishment, according to law." If Constitution is too plain to be misunderstood. you are not yet satisfied, examine the proceedThe President is to be impeached only "on ings of the Convention that framed this articonviction of treason, bribery, or other high cle, and see how studiously they rejected all crimes and misdemeanors." impeachment for misbehavior in office, and In these pregnant words the whole matter is how steadily they adhered to the requisition settled. There is, first of all, an enumeration' that nothing but a high crime and misdemeanor of what crimes are in the contemplation of the should suffice. Constitution treason and bribery; and they The honorable Managers have put the case are the highest of official crimes that can be of insanity. But will you add to that awful committed. If the Constitution had stopped visitation of Providence the impious judgment there no doubt could exist. Would anything of man, that the sufferer is guilty of a high short of treason have sufficed for an article of crime and misdemeanor? As to the President, impeachment-anything even amounting to however, the case of insanity is provided for, misprision of treason, or even that modern not by removal, not by impeachment, but by crime in English law, treason-felony? Could the temporary devolution of the office upon the any case have been made against the President Vice President. under an article alleging treason short of actual Senators, was there ever a more abortive levying of war or giving aid and comfort to the attempt to make a case for impeachment of enemies of the United States? Then, as to the President under the Constitution? This bribery, would anything short of actual bribery bantling of impeachment, from the first, showed have sufficed? Would an attempt to bribe- few signs of vitality. There was never any an act almost equal to bribery, yet just short real life in it. It has been nursed by the Manof it? Certainly not. agers with the greatest care, especially by that Besides these two enumerated crimes follows honorable Manager whose business it was first that other phrase, "other high crimes and to bring it to the notice of the Senate. He misdemeanors." What sort of crimes and dandled the bantling in his arms with consummisdemeanors? Why, such as are assimilated mate skill. He pinched its poor wan cheeks to those that are enumerated; not all crimes for some show of life, but even then it was too and misdemeanors, but such as are of a similar evident that it was in articulo mortis. The character with those enumerated, and which nurse was skillful, but the subject, with all its are raised by express classification to high care, was beyond his art. Long since this show grades known, recognized, and established. of vitality vanished, and now it lies, bereft of They are crimes and misdemeanors, says Mr. life, a shapeless mass which gives no sign, Burke, not of form, but of essence. You can- scarcely a grim contortion, the counterfeit renot call that a high crime and misdemeanor semblance of life under the galvanic touch of which in the nature of things is not. There is high party excitement. no room for cunning manufacture here. If a There is one other point, Senators, to which legislative act should undertake to declare that it is perhaps proper I should call attention. I the commonest assault and battery should be a understand it to be argued by the Managers high crime and misdemeanor under the Con- that the ad interim authority given to General stitution, that would not change its essence or Thomas was in violation of law, and that, aside make it the high offense which the Constitu- from any question growing out of the' tenuretion requires. of-office act, there was no law or authority to I hope it may not be found out of place nor justify that appointment, But is it possible, unworthy of the occasion to call the attention even if such an error as that had been comof the court to a case parallel, in my judg- mitted by the President, it would make him ment, to this: liable to impeachment? In the course of the "First Watch. This man said, sir, that Don John, administration of the affairs of this Governthe prince's brother, was a villain. ment in the great departments many things Dsgbe,-r. Write down —Prnce John, a villain;- are done almost every day for which it is imwhy, this is flat perjury, to call a prince's brother —y day for which it is im villain. possible to find warrant of law. They are Sexton. What heard you him say else? done, however, in good faith, done sometimes "Second Watch. Marry. that he had received a thousand ducats oflarron that he had received a under a great necessity, and finally grow up thousand ducats of Don John for accusing the lady Hero wrongfully. into usages apparently contrary to law, yet Dogberry. Flat burglary as ever was committed. which are even winked at by courts when Verges. Yea, by the mass, that it." brought to the test of a decision. But for myLook through all the correlative provisions self, after the most thorough investigation of of the Constitution on the subject, as to trial, the state of the law as to ad interim appoints conviction, judgment, and punishment, as to ments, I am unable to see that there has been pardons, and, last of all, to that provision that any violation of law in this ad interim appoint 783 ient, or rather in this attempt to make an ad of six months. Next comes the act of 1863, interim appointment. and this applies to temporary appointments in The Constitution contains only the following only two cases of vacancy-those caused by provision as to vacancies: death and by resignation, omitting any provision "' The President shall have power to fill up all va- as to vacancies caused by expiration of term cancies that may happen during the recess of the or by removal. Like the act of 1795, it limits Senate, by granting commissions which shall expire the time of the temporary authority to six at the end of their next session." months. This is a very different thing from an ad There is no express repeal in the act of 1863 interim appointment. The case contemplated of any former act. It only purports to repeal by the Constitution is in no sense an acting or such acts ahd parts of acts as are inconsistent ad interim authority. The appointment and with it. Now, comparing the act of 1795 with commission there required fill the vacancy the act of 1863, 1 am unable to see any inconwith a regular officer. But immediately after sistency between the two acts. It is true that, the formation of the Constitution, in the ad- as to vacancies occasioned by death or resigministration of the Government, emergencies nation, both acts equally apply; and the most at once arose in the executive department that can be said of the last is that it is cumurequiring instant action. Suddenly an unex- lative. But as to vacancies occasioned by expected vacancy in an office required at once a piration of term and by removal from office, locumn tenens to carry on the business, before inasmuch as there is no provision whatever in there was time to select a new officer, to know the act of 1863 as to those vacancies, they reof his acceptance, or to induct him into office. main as fixed by the act of 1795. For certainly, So, too, there being no vacancy, a temporary as to those vacancies so provided for by the act disability might occur from sickness or neces- of 1795, there is no inconsistency between that sary absence, which also required some one to and the act of 1863, which is without any proact during the interim. It was to meet these vision whateveron those subjects-matter. There unforeseen contingencies, which were nowhere is, therefore, not even a pretense here of repeal provided for in the Constitution, that acts of by implication. Congress were passed in the years 17'2, 1795, Very much, however, is said as to those ad and 1863. interim appointments made during the session It is in the review of these various acts of of the Senate, as if that were a circumstance Congress that it is claimed on the part of the of any weight or consequence whatever with Managers that there is no authority of law for regard to an ad interim appointment. It-will making a temporary appointment in case of an be seen that not one of these laws distinoffice made vacant by removal, which was guishes as to time of recess or time of session claimed by the President to be the case as to in regard to the authority of the President to Mr. Stanton. They maintain thatif the order make these ad interim appointments. The of the President did remove Mr. Stanton. if question is, when does the necessity arise, not by its own consitutional power it had that whether it is during the recess or session of effect, if it was a lawful order, yet the Presi- the Senate. And such has been the uniform dent committed a violation of law in attempt- construction given to these acts from the being to put an ad interim appointee there, just ginning of the Government to this day. These because it was a vacancy caused by removal. ad interim appointments are made indifferThey claim that the act of 1863 regulates the ently, whether the Senate is in session or in whole matter, and inasmuch as that gives no recess. agthority for an ad interim appointment to a Hitherto, Senators, I have considered this vacancy caused by removal, no such authority case in its legal aspects, and it seems to me is to be looked for in the other statutes. that the argument may very well stop here. A mere reference to the prior legislation will Whatever there is of matter of fact in the case show the fallacy of this argument. The act of adds greatly to the President's defense. Look 1792 provided for ad interim appointments through the proof adduced by the Managers in these'ases alone: vacancy occasioned by outside of the mere formal documentary exdeath or by disability from absence or sick- hibits. What is there left but the testimony ness. It will be observed that this act made as to the speeches? What is there that has no provision for an ad interim appointment in the slightest bearing upon the case of the case of a vacancy by resignation, by expira- President except what they have attempted to tion of term, or by removal. Next came the force into the case by the declarations of Genact of 1795, and this providss for an ad interim eral Thomas? appointment in case of any vacancy whatso- We have heard from the Managers, espeever. It extends, therefore, to all forms of cially from that Manager who opened the case vacancy, whether by death, resignation, or ex- on the part of the prosecution, many highpiration of term of office; and wherever such sounding declarations of what they expected vacancy exists power is given to the President to prove. But what a total failure we have to authorize any person to perform the official seen in the way of performances! Look, now, duties until the vacancy is filled, but limits the with what a flourish of trumpets the declaratime for such temporary authority to the period tions of General Thomas as to his purposes 784 and intents were heralded before the court. Now listen to Mr. Manager BUTLER upon On page 180 of the printed record we find the this question. On page 96 of the record he following: says: " Mr. Manager BUTLER presented the question in " Indeed, will you hear an argument as a Senate writing at the Secretary's desk. of the United States, a majority of whom voted for " The CHIEF JUSTICE. The Secretary will read the that very bill, upon its constitutionality, in the trial question, of an executive officer for willfully violating it before "The Secretary read the following question pro- it had been doubted by any court? posed fo be put to the witness, WALTERA. BURLEIGH: Bearing upon this question, however, it may be "You said yesterday, in answer to my question, said that the President removed Mr. Stanton for the that you had a conversation with General Lorenzo very purpose of testing the constitutionality of this Thomas on the evening of the 21st of February last. law before the courts, and the question is asked State if he said anything as to the means by which he Will you condemn him as for a crime for so doing? intended to obtain, or was directed by the President If this plea were a true one it ought not to avail; to obtain, possession of the War Department. If but it is a subterfuge. We shall show you that he has so, state all he said as nearly as you can. taken no step to submit the question to any court, "Mr. STANBERY. We object, Mr. Chief Justice." although more than a year has elapsed since the "The CHIEF JUSTICE. Do you desire to make any passage of the act." observations to the Court? Senators, where has this been shown on the " Mr. STANBERY. We do, sir. part of the Managers? Where is there even "The CHIEF JUSTICE. The question will be submitted to the Senate. a feeble attempt to show it? But look now "Mr. FRELINGHUYSEN. Mr. President, I desire to to the proof on the part of the President. submit a question. confined as we have "The CHIEF JUSTICE. The Secretary will read the Cabined, cribbed, anc. confined as we have ruestion submitted by the Senator from New Jersey been by the rulings of the Senate upon this EMr. FRELINGHUYSEN] to the Managers. question, yet what appears? From first to "The Secretary read as follows: last the great fact forces itself upon our atten"Do the Managers intend to connect the conversation between the witnesses and General Thomas tion that this was no subterfuge of the Presiwith the respondent? dent, no after-thought to escape the conse"The CHIEF JUSTICE. Are theManagersprepared quences of an act, but, on the contrary, that to reply to the question? "Mr. ManagerBuTLER. Mr.President, ifthepoint this wholesome and lawful purpose of a resort is to be argued, with the leave of the Senate, we will to the proper tribunal to settle the difficulty endeavor to answer that question in the argument. between Congress and himself was in the mind "The CHIEF JUSTICE. It is to be argued. The betwe Manager will proceed, if he desires. of the Presidentfrom the very beginning. They "Mr. STANBERY. We do not hear the answer. proved it by his own declarations introduced "Mr. Manager BUTLER. The answer is, Mr. Pres- by themselves in his letter to General Grant, ident, if you will allow me to repeat it, that, as I te err, understand the point raised is to be argued on the dated February 10, 1868, which may be found one side and the other, we will endeavor to answer on page 234 of the printed record. One exthe question submitted by the Senator from New Jersey in the course of our argument. tract ifom that letter will suffice. The PresiMr. TRUMBULL. Mr. President, I should like to dent says: hear the question read again, as I think the answer " You knew the President was unwilling to trust to the inquiry of the Senator from New Jersey is in the office with any one who would not, by holding it, the question propounded by the Managers, as I compel Mr. Stanton to resort t the courts. You heard it. perfectly understood that in thA interview,'some The CHIEF JUSTICE. The Secretary will read the time' after you accepted the office, the President, not question again. Senators will please give their content with your silence, desired an expression of attention. your views, and you answered him that Mr. Stanton "The Secretary again read the question of Mr.'would have to appeal to the courts."' Manager BUTLER. "The CHIEF JUSTICE. Do the Managers propose If this is not enough, Senators, remember to answer the question of the Senator from New the testimony of General Thomas, of General Jersey? Sherman, of Mr. Cox, of Mr. Merrick, and "Mr.Manager BUTLER. If there is tobe no argu- S herman, of Mr. C, of M r. Merrick, and ment, Mr. President, I will answer the question see-throughout the purpose of the President proposed. If there is to be an argument on the part declared at all times, from first to last, to bring of the counsel for the President, we propose, as a this question to judicial arbitrament. After more convenient method, to answer the question in t uestion to judicial arbitram ent. After the course of our argument, because otherwise we all this, what a shocking perversion of testimight have to make an argument now. I can say mony it is to pronounce it an after-thought or that we do propose to connect the respondent with a subterfuge And after the proof of what took place on that trial of Thomas, how can Now, Senators, I ask you whether that pledge the Managers be -bold enough to say that they under which that testimony was admitted has will "show you that he has taken no step to been redeemed? submit the question to any court, although I will make one more reference to the proof. more than a year has elapsed since the passage It is upon the question as to the intention of of the act?" the President to bring the constitutionality of Senators, it was-not at all necessary for the the tenure-of-office act to the final arbitrament defense of the President that, in the exercise of the Supreme Court. Ile sets that defense of that discretion which the law allows to him, up in his answer. Hie alleges that that inten- he should be put to prove that his intentions tion has accompanied every act touching the were all right. He has gone far beyond the suspension and removal of Mr. Stanton, and necessities of his case. Never were good inthat he has never lost sight of it. If everything tentions and honest motives more thoroughly else were ruled against the President this great proved than they have been proved in this case. exculpatory fact must shield him. I repeat it, that, if everything else were made 785 I out against him, this great exculpatory fact he looked only to the Constitution of his counmust absolve him from all criminal liability. try and to the people. And now, Senators, I have done with the law Yes, Senators, I have seen that man tried, and the facts If the case. There remains for as few have been tried. I have seen his conme, however, a duty yet to be performed-one fidence abused. I have seen him endure, day of solemn import and obligation-a duty to after day, provocations such as few men have my client, to my former chief, to my friend. ever been called upon to meet. No man could There may be those among you, Senators, who have met them with more sublime patience. cannot find a case of guilt against the Presi- Sooner or later, however, I knew the explodent. There may be those among you who, sion must come. And when it did come my not satisfied that a case for impeachment has only wonder was that it had been so long deyet arisen, are fearful of the consequences of layed. Yes, Senators, with all his faults, the an acquittal. You may entertain vague appre- President has been more sinned against than hensions that, flushed with the success of an sinning. Fear not, then, to acquit him. The acquittal, the President will proceed to acts Constitution of the country is as safe in his of violence and revolution. Senators, you do hands from violence as it was in the hands of' not know or understand the man. I cannot Washington. But if, Senators, you condemn say that you willfully misunderstand him; for him, if you strip him of the robes of his office, I, too, though never an extreme party man, if you degrade him to the utmost stretch of' have felt more than once, in the heat of party your power, mark the prophecy? The strong conflicts, the same bitter and uncompromising arms of the people will be about him.. They spirit that may now animate you. The time will find a way to raise him from any depths has been when I looked upon General Jack- to which you may consign him, and we son as the most dangerous of tyrants. Time shall live to see him redeemed, and to hear has been when, day after day, I expected to the majestic voice of the people, "'Well see him inaugurate a revolution; and yet, after done, faithful servant, you shall have your his.administration was crowned with success reward!" and sustained by the people, I lived to see him But if, Senators, as I cannot believe, but as gracefully surrender his great powers to the has been boldly said with almost official sanchands that conferred them, and, under the tion, your votes have been canvassed and the softening influences of time, I came to regard doom of the President is sealed, then let that him, not as a tyrant, but as one of the most judgment not be pronounced in this Senate honest and patriotic of men. Chamber; not here, where our Camillus in the Now, listen for a moment to one who, per- hour of our greatest peril, single-handed, met haps, understands Andrew Johnson better and baffled the enemies of the Republic; not than most of you; for his opportunities have here, where he sto6d faithful among the faithbeen greater. When, nearly two years ago, less; not here, where he fought the good fight he called me from the pursuits of professional for the Union and the Constitution; not in this life to take a seat in his Cabinet, I answered Chamber, whose walls echo with that clarion the call under a sense of public duty. I came voice that, in the days of our greatest danger, here almost a stranger to him and to every carried hope and comfort to many a despondmember of his Cabinet except- Mr. Stanton. ing heart, strong as an army, with banners. We had been friends for many years. Sena- No, not here. Seek out rather the darkest and tors, need I tell you that all uny tendencies are gloomiest chamberin the subterranean recesses: conservative? You, Mr. Chief Justice, who of this Capitol, where the cheerful light of day hare known me for the third of a century, can never enters. There erect the altar and immobear me witness. Law, not arms, is my pro- late the victim. fession. From the moment that I was lion- Mr. STANBERY, after proceeding some ored with a seat in the Cabinet of Mr. Johnson time, said: With the consent of the Senate, Mr. not a step was taken that did not come under Chief Justice, to relieve me I would ask permy observ.ation, not a word was said that mission that my young friend at my sidemay escaped mny attention. I regarded him closely read from my brief a few pages while I gather in Cabinet, and in still more private and con- a little strength for what I wish to say. fidential conversation. I saw him often tempted Mr. ANTHONY. The counsel evidently is with bad advice. I knew that evil counselors laboring very painfully in his endeavor to adwere more than once around him. I observed dress the Senate, and I move that the Senate, him with the most intense anxiety.'But never, sitting as a court of impeachment, adjourn in word, in deed, in thought, in action, did I until Monday at twelve o'clock. discover in that man anything but loyalty to Several SENATORS. Oh, no; let the arguthe Constitution and the laws. He stood firm ment be read. as a rock against all temptation to abuse his Mr. STANBERY. I do not ask an adjournown powers or to exercise those which were ment. not conferred upon him. Steadfast and self- Mr. ANTHONY. I withdraw the motion if reliant in the midst of all difficulty, when dan- the counsel does not desire it. gers threatened, when temptations were strong, Mr. WILLIAM F. PEDDRICK thereupon proC. I.-50. 786 ceeded to read the argument, and continued day of April, in the year of our Lord 1865, the the reading until two minutes to two o'clock. broken battalions of treason and armed resistMr. JOHNSON. I move that the court ance to law surrendered to the victorious take a recess for fifteen minutes. legions of the Republic. On that day, not withThe mnotion was agreed to; and at the expi- out sacrifice, not without suffering, not without ration of the recess the Chief Justice resumed martyrdom, the laws were vindicated. On that the chair and called the Senate to order. day the word went out all over our own sorrowMr. P)EDRrICK continued to read the argu- stricken land and to every nationality that the ment for some time, when Republic. the last refuge of constitutional libMr. STANBEI3EY resumed and concluded. I erty, the last sanctuary of an inviolable justice, Mr. HOWARD. I move that the Senate, was saved by the virtue and valor of its children. sitting for the trial of the impeachment, adjourn On the 14th day of April, in the year of our until Monday at twelve o'clock. Lord 1865, amid the joy and gladness of the The motion was agreed to; and the Sen- people for their great deliverance, here in the ate, sitting for the trial of the impeachment, capital, by an assassin's hand, fell Abraham adjourned. Lincoln, President of the United States, slain not for his crimes, but for his virtues, and MONDAY, May 4, 1868. especially for his fidelity to duty-that highest The Chief Justice of the United States took word revealed by God to man. the chair. 0 Upon the death of Abraham Lincoln, Ane usual proclamation having been made drew Johnson, then Vice President, by force by The usual nt-clamat-Ams having been m~d of the Constitution, became President of the by the Sergeant-at-Arms, United States, upon taking the prescribed oath The Managers of the impeachment on the that he would faithfully execute the office of part of the Homse of Representatives and President, and preserve, protect, and defend Messrs. Nelson and Groesbeck, of counsel for r Nelson and G~roesbeck, of counselfor the Constitution of the United States. The the respondent, appeared and took the seats the Constitution of th uncovered S tates. The assigned to them respectively, people, bowing with uncovered head in. the assignT he m emb ers of the House of Representa- presence of the strange, great sorrow which The members of the House of Representa- had come upon them, forgot for the moment tives, as in Committee of the Whole, preceded the come upon them, forgot for the moment by Mr. E. B. WA5HBURNE, chairman of that the disgraceful part which Andrew Johnson by M~r. E. B. WASHBURN1, chairman of that had played here upon the tribune of the Sencommittee, and accompanied by the Speaker had played here upon the tribune of the Senand Clerk, appearede, and accomaniwere conducted toby the Speaker ate on the 4th day of March, 1865, and accepted eats Cprovided for them. a conducted to thethe oath thustaken by him as the successor of seats provided for them. Abraham Lincoln as confirmation and assurThe -Journal of Saturday's proceedings of ance that he would take care that the laws be the Senate, sitting for the trial of the impeach- faithfully executed. It is with the people an ment, was read. faithfully executed. It is with the people an mentCHEFJUSTICE. Mr. ManagerreBd. intuitive judgment, the highest conviction of TheAM will peeJUSit the argmanager BING- the human intellect, that the oath faithfully to of te Hproceed wiue f argument on the pas. execute the office of President, and to preserve, protect, and defend the Constitution of the UniHon. JOHN A. BINGHAM, one of the ted States, means, and must forever meanManagers of the impeachment on the part of while the Constitution remains as it is-that the the House of Representatives, closed the argu- President will himself obey, and compel others ment, as follows: to obey, the laws enacted by the legislative deMr. PRESIDENT and SENATORS: I protest, partment of the Government, until the same shall Senators, that in no mere partisan spirit, in havebeen repealed or reversed. This, we may no spirit of resentment or prejudice do I come assume, for the purpose of this argument, to be to the argument of this grave issue. A Rep- the general judgment of the people of this counresentative of the people, upon the responsi- try. Surely it is the pride of every intelligent bility and under the obligation of my oath, by American that none are above and none beorder of the people's Representatives, in the neath the laws; that the President is as much name of the people, and for the supremacy of the subject of law as the humblest peasant on their Constitution and laws, I this day speak. I the remotest frontier of our ever advancing pray, you, Senators, "hearme for my cause."' civilization. Law is the only sovereign, save But yesterday the supremacy of the Constitu- God, recognized by the American people; it is tion and laws was chahenged by armed rebel- a rule of civil action not only to the individual. lion; to-daythe supremacy of the Constitution but to the' million; it binds alike each and all. and laws is challenged by executive usurpation, the official and the unofficial, the citizen and the and is attempted to be defended in the pres- great people themselves. ence of the Senate of the United States by the This, Senators-and I am almost fearful that retained advocates of the accused. I may offend in saying it-is of the traditions For four years millions of meii disputed by of the Republic, and- is understood from the arms the supremacy of American law on Amer- Atlantic to the Pacific shores by the five and ican soil. Happily for our common country, thirty millions of people who dwell between happily for our common humanity, on the 9tb these oceans and hold in their hands to-day the 787 greatest trust ever committed in the providence tion, that " he shall take care that the laws be of God to a political society. faithfiully executed," is nevertheless invested I feel myself justified, entirely justified, in with the power to interpret the Constitution saying that it rests not simply upon the tradi- for himself, and to determine judicially-Sentions of the people, but is embodied in their ators, I use the word used by the learned genwritten record from the day when they fired tleman who opened the case for the accused the first gun on the field of Lexington to this -to determine judicially whether the laws dehour. Is it not declared in that immortal Dec- dared by the Constitution to be supreme are laration which will live as long as our language after all not null and void, because they do not lives, as one of the causes of revolt against the happen to accord with his judgment. king of Great Britain, whose character was That is the defense which is presented here marked by every act which may define a tyrant, before the Senate of the United States, and that he had forbidden his governors to pass upon which they are asked to deliberate, that laws, unless suspended in their operation until the Executive is clothed with power judicially they should. have received his assent-I use -I repeat their own word, and I desire that the words of the Declaration, which, like the it may be burned into the brain of Senators words of Luther, were half battles-the law when they come to deliberate upon this quesshould be suspended until his assent should be tion-that the President may judicially conobtained. That was the first utterance against strue the Constitution for himself, and judithe claim of executive power to suspend the -cially determine finally for himself whether laws by those immortal men with whbm God the laws, which by your Constitution are dewalked through the night and storm and dark- dared to be supreme, are not, after all, null ness of the Revolution, and whom he taught to and void and of no effect, and not to be exelay here at the going down of the sun the cuted, because it suits the pleasure of his highfoundations of those institutions of civil and ness, Andrew Johnson, first king of the peoreligious liberty which have since become the ple of the United States, in imitation of George hope of the world. III, to suspend their execution. He ought to I follow the written record further, still ask- remember, when he comes with such a defense ing pardon of the Senate, praying them to as that before the Senate of the United States, remember that I speak this day not simply in that it was said by one of those mighty spirits the presence of Senators, but in the presence who putthe Revolution in motion and who conof an expecting and waiting people, who have tributed to the organization of this great and commissioned you to discharge this high trust, powerful people, that Ceesar had his Brutus, and have committed to your hands, Senators, Charles I had his Cromwell, and George III the issues of life and death to the Republic. should profit by their example. Nevertheless I refer next to the words of Washington, first -and this is the central point of this entire of Americans and foremost of men, who de- discussion-the position is assumed here in the clared that the Constitution which at any time presence of the Senate, in the presence of th6 exists until changed by the act of the whole people of the United States, and in the prespeople is sacredly obligatory upon all. ence of the civilized world, that the President I refer next to a still higher authority, which of the United States is invested with the judiis the expression of the collective power and cial power to determine the force and effect will. of the whole people of the United States, of the Constitution, of his own obligations in which it is asserted that- under it, and the force and effect of every law "This Constitution. and the laws made in pursu- passed by the Congress of the United States. anac thereof, and all treaties made or which shall It must be conceded, if every official may chalbe made by the authority of the United States, shall lenge the laws as unconstitutional and espebe the supreme law of the land; and the judges in every State shall be bound thereby, anything in the cially if the President may, at his pleasure, constitution and laws of any State to the contrary declare any act of Congress unconstitutional, notwithstanding." reject, disregard, and violate its provisions, and That is the solemn declaration of the Con- this, too, by the authority of the Constitution, stitution; and pending this trial, without a that instrument is itself a Constitution of anparallel in the history of the nation, it should archy, not of order, a Constitution authorizing be written upon these walls. a violation of law, not enjoining obedience to How are these propositions, so plain and law. Senators, establish any such rule as this simple that "'the wayfaring man could not err for official conduct, and you will have proved therein,"' met by the retained counsel who ap- yourselves the architects of your country's pear to defend this treason of the President, ruin; you will have converted this land of law this betrayal of the great trusts of the people:? and order, of light and knowledge, into a land The proposition is met by stating to the Senate, of darkness, the very light whereof will be with an audacity that has scarcely a parallel in darkness-a land the history of judicial proceedings, that every "Where eldest Night official may challenge at pleasure the supreme And Chaos, ancestors of nature, will hold law of the land, and especially that the Presi- Eternal anarchy, amidst the noise dent of the United States, charged by his oath, Of endless wars, and by confusion stand." charged by the express letter of the Constitu- Disguise, gloze over, and, by specious and _788:ingenious argument, excuse the Prdsident's between the people and the President, that'acts, as gentlemen may, the fact is that we are this great issue which touches the nation's life passing upon the question whether the Presi- shall be decided in accordance with the spirit dent may not, at his pleasure, and without as well as with the letter of the Constitution. peril to his official position, set aside and It is all-important that it shall be decided in annul both the Constitution and laws of the accordance with that justice to establish which United States, and in his great office inaug- the Constitution itself was ordained; that jusurate anarchy in the land. tice before the majesty of which we this day The whole defense of the President rests bow as before the majesty of that God whose upon the simple but startling proposition that attribute it is; that justice which dwelt with he cannot be held to answer for any violation Him before worlds were, which will abide, with -of the written Constitution and laws of the Him when worlds perish, and by which we'shall United States, because of his asserted right be judged for this day's proceeding. under the Constitution, and by the Constitu- The Senate, having the sole power to try imtion, to interpret for himself and execute or peachments, must of necessity be vested by disregard, at his election, any provision either every intendment of the Constitution with the of the Constitution or statutes of the United sole and exclusive power to decide every.quesStates. tion of law and of fact involved in the issue. No matter what demagogues may say of it And yet, Senators, although that would seem outside of this Chamber, no matter what re.. to be a self-evident proposition, hours have tained counsel may say of it inside of this been slpent here to persuade the Senate of the Chamber, that is the issue; and the recording United States that the Senate at last had not angel of history has already struck it into the the sole power to try every issue of law and adamant of the past, there to remain forever; fact arising upon this question between the and upon that issue, Senators, you and the people and the President. The ex-Attorney House of Representatives will stand or fall General well said the other day, for he quoted before the tribunal of the future. That is the a familiar canon of interpretation, "Effect -issue. It is all there is of it. It is what is must be given to every word in a written statembraced in the articles of impeachment. It ute." Let effect be given to every word in is all that is embraced in them. In spite of the written statute of the people-their fundathe technicalities, in spite of the lawyer's tricks, mental law, the Constitution of the United in spite of the futile pleas that have been in- States-and there is an end of all controversy terposed here in the President's dbefense, that about the exclusive power of the Senate to is the issue. It is the head and front of An- decide every question of law and fact arising drew Johnson's offending, that he has assumed upon this issue. to himself the executive prerogative of inter- What meant this long-continued discussion preting the Constitution and deciding upon the on the part of the counsel for the President, validity of the laws at his pleasure, and sus- resting upon a remark of my colleague [Mr. pending them and dispensing with their execu- Manager BUTLER] in his opening on behalf of tion. the people that this was not a court? Was it I say it again, Senators, with every respect an attempt to divert the Senate from the exfor the gentlemen who sit here as the repre- press provision of the Constitution that the sentatives'of States and the representatives as Senate should be the sole and final arbiters well of that great people who are one people between the people and the President? What though organized by States, that the man who meant this empty criticism about the words of has heard this prolonged discussion, running my colleague that this was not a court, but the through days and weeks, who does'not under- Senate of the United States? My colleague, stand this to be the plain, simple proposition Mr. Chief Justice, simply followed the plain made in the hearing of Senators, insisted upon words of the Constitution, that " the Senate as the President's defense, is one of those un- shall have the sole power to try all impeachfortunates whom even a thrush might pity, to ments." whom God in his providence has denied the I propose neither to exhaust my strength nor usual measure of that intellectual faculty which the patience of the Senate by dwelling upon we call reason. this miserable device to raise an issue between In the trial of this case the Senate of the the Senate and the courts, because that is what United States is the sole and only tribunal it resulted in at last although it came after a which can judicially determine this question. good deal of deliberation, after a good many The power to decide it is with the Senate; the days of incubation, after many utterances on responsibility to decide it aright is upon the many subjects concerning things both in the Senate. That responsibility can be divided by heavens above and in the earth beneath and in the Senate with no human being outside of this the waters under the earth! I do not propose Chamber. It is all-important to the people to imitate the example of the learned and acof the United States at large asit is all-import- complished counsel of the President on the ant to their Representatives in Congress assem- trial of this grave issue which carries with it so bled, and surely it is all-important to the Sen- many and so great results to all the people of ators) sworn to do justice in the premises the United States not only of this day, but of 789 the great hereafter. I trust I shall be saved in York? The most significantlesson to be gaththe providence of God, by His grace, from be- ered from which is this: that the right way and coming, as have some of the counsel for the the effectual way by which a man may make President in this august presence, a mere eat- his speech immortal is to make it eternal, er-up of syliables, a mere snapper-up of uncon- [Laughter.] What becomes of hislongdrawnsidered trifles. I propose to deal in this dis- out sentence here about the right of this accused cussion with principles, not with "trifles light and guilty man, who stands this day clothed as air." I care not if the gentlemen choose to with perjury as with a garment in the presence call the Senate sitting in the trial, of an impeach- of the people, to be heard first in the Supreme ment a court. The Constitution calls it the Court of the United States before the Senate Senate. I know, as every intelligent man shall proceed to trial and judgment? The knows, that the Senate of the United States, Senate is vested with the sole and exclusive sitting upon the trial of impeachm.ent, is the power to try this question, and the Supreme highest judicial tribunal of the land. That is Court of the United States has. no more power conceding enough to put an end to all that was to intervene either before or after judgment in said on that point —some of it most solemnly- the premises. than has the Court of St. Peters-. by the stately argument of the learned gentle- burg; and so the people of the United States, man from Massachusetts, [Mr. Curtis;] some I hesitate not to say, will hold. of it most tenderly by the effective and adroit Nevertheless, clear and manifest as this argument of my learned and accomplished proposition is, it has been insisted upon here friend from Ohio, [Mr. Groesbeck,] and some from the opening of this defense to its close by of it most wittily-so wittily that he held his all the counsel who have participated in the own sides lest he should explode with laughter discussion, that the Supreme Court is the final at his own wit-by the learned gentleman from arbiter for the decision of all questions arising New York, [Mr. Evarts,] who displayed more under the Constitution. I do not state the of Latin than of law in his argument, and more proposition too broadly, Senators. My occuof rhetoric than of logic, and more of intellect- pations have been of such a nature from the ual pyrotechnics than of either. [Laughter.] commencement of this trial to this hour that But, Senators, I am not to be diverted by have relied more upon my memory of what these fireworks, by these Roman candles, by counsel said than upon any reading which I these fiery flying serpents that are let off at have given to their voluminous arguments in pleasure, and to order, by the accomplished defense of the accused; but I venture to say gentleman from New York, from the point that the proposition is not more broadly made here between the people and the Presi- stated by me than it has been stated by them. dent by his advocates. 1 stand upon the plain, I submit to the Senate that the proposition clear letter of the Constitution, which declares for the defense is not warranted by the Constithat "the Senate shall have the sole power to tution; that there are many questions arising try all impeachments;" that it necessarily in- under the Constitution of the United States vests the Senate with the sole and exclusive which by no possibility can be considered as power to determine finally and forever every original questions either in the Supreme Court issue of law and fact arising in the case. This or in any other court of the United States. is one of those self evident propositions aris- For example, my learned and accomplished ing under the Constitution of the United States friend who honors me with his attention, and of which Hamilton spoke in words clear and represents the great and growing Commonstrong, which must carry conviction to the wealth of Illinois upon this floor, [Mr. TRUMmind of every man, and which I beg leave to BUL,] is here and is to remain here, not by read in the hearing. of the Senate. force of any.decision which the Supreme Court Said Hamilton, a man who was gifted by of the United States has made, or by force of Providence with one of those commanding any decision which the Supreme Court of the intellects, whose thoughts indelibly impressed United States may hereafter make. It is not themselves wherever they fell: a question within their jurisdiction. Illinois "This is one of those truths which, to a correct and is one of those great Commonwealths which unprejudiced mind, carries its own evidence along since the organization of the Cnnstit.. tion amd with it, and may be obscured bat cannot be made within the memory of living men, have sprung plainer by argument or reasoning. It rests uponof the beautiul Ohio aw axioms as simple as they are universal-the means a ought to be proportioned to the end; the persons to the golden sands of California, girdling the from whose agency the attainment of any end is ex- continent across with a cordon of free Conmonpected ought to possess the ineans by which it is to wealths under the direct operation of the Constitution of the United States. The people by The end required by the letter of your Con- that Constitution did provide that the Congress stitution of the Senate of the United States is shall have power to admit new States into the that the Senate decide finally and for themselves Union, and when the Congress passed upon every issue of law and fact arising between the the question whether the people of Illinois had people and their accused President. What organized a government republican in form comes then, I want to know, Senators, of the and were entitled to assume their place in the argument of the leraed geatle.gal fi No w risterhood qf free Commonwealths the decis 790 ion was final, and the judge of the Supreme Senate of the United States and clearly and Court who dares to challenge the great seal of openly proclaim and avow that the Supreme the State of Illinois, which the gentleman rep- Court has the power to try impeachments. resents, ought to be instantly ejected from his Nevertheless, the position assumed in this place, which he would thereby dishonor and defense for the accused that he may suspend disgrace, by the supreme power of the people the laws, dispense with their execution, and speaking and acting through the process of interpret and construe the Constitution for impeachment. himself to the hurt of the Republic, without It does not belong in any sense of the word peril to his official position, if he accompanies to the judicial power of the United States to it either at the time or after the fact with a decide all questions arising under the Consti- statement that his only object in violating the tution and laws. Why, according to this logic, Constitution or in suspending the laws and disthe Supreme Court would come to sit in judg- pensing with their execution was to obtain at ment atlast upon the power given exclusively to some future day a judicial construction of the each House to judge of the election. and quakl- one or a judicial decision upon the validity of fication of its own members. Senators, the the other, the Senate is not to hold him to judicial power of the United States is entitled answer upon impeachment for high crimes and to all respect and to all consideration here and misdemeanors, does involve the proposition, everywhere else; but that judicial power, as and no man can get away from it, that the is well known to Senators, is defined and courts at last have a supervising power over limited by the terms of the Constitution, and this unlimited and unrestricted power of imbeyond those limitations or outside of those peachment vested by the people in the House grants that tribunal cannot go. I read from of Representatives, and this unrestricted power the Constitution the provision in answer to to try all impeachments vested by the people the argument of the gentleman touching the in the Senate. On this proposition I am willjudicial power of the United States: ing to stand, defying any man here or else" The judicial power of the United States shall be where to challenge it successfully. The posivested in one Supreme Court, and in such inferior tion assumed by the accused means that or it courts as the Congress may from time to time ordain asu b a e and establish." * * * * * * * means nothing. If it does not mean that it is'* The judicial power shall extend to all cases, in like untolaw and equity arising under this Constitution, the "A tale told by an idiot, laws of the United States, and treaties made, or which Full of sound and fury, signifying nothing." shall be made, under their authority; to all cases affecting embassadors, other public ministers, and Just nothing. Now, I ask you, Senators, con'suls; to all cases of admiralty and maritime Juris- what colorable excuse is there for presenting diction; to controversies to which the United States shall be a party; to controversies between two or any such monstrous proposition as this to the more States; between aState and citizens of another consideration of the Senate of the United State; between citizens of different States: between States? I think myself in this presence justicitizens of the same State claiming lands under grants of different States, and between a State, or the citi- fled in reiterating the words of John Marshall zens thereof, and foreign States, citizens or subj ects." upon one occasion, that it is reasonable to "In all cases affecting embassadors, other public presume that the Senate knows something. ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have ori- The original jurisdiction of the Supreme ginaljurisdiction. Inalitheothercases beforemen- Court of the United States cannot by any postioned the Supreme Court shall have appellate jiuris- sibility extend to a case of impeachment. Sendiction, both as to law and fact, with such exceptions and under much regulations as the Congress shall ators will please remember the text of the Conmake."-Constitution, article 3. stitution which I have just read, that the original As I said before, inasmuch as the Senate of jurisdiction of the Supreme Court of the United the United States has the sole power to try all States is by the express letter of the Constituimpeachments, and therefore the exclusive tion restricted to foreign embassadors, other power to finally determine all questions arising public ministers, and consuls, and to cases in therein, it results that its decisions can neither which a State may be a party. The accused e be restricted by judgments in advance, made is not a foreign embassador; the accused is by either the Supreme Court or any other court not a foreign minister; the accused is not a of the United States, nor can the finaljudgment consul; and the accused is not as yet, thank of the Senate upon impeachment be subjected God, " the State." Therefore, the accusedis to review by the civil courts of the United States not within the original jurisdiction of the Suor to reversal by executive pardon. So it is preme Court of the United States. written in the Constitution, that the pardoning When the gentlemen were dwelling so learnpower shall not extend to impeachments. Im- edly and so long upon this question, and readpeachment is not a case in "law or equity," ing from the great case of Marbury vs. Madiwithin the meaning of the terms as employed son, they ought to have remembered that the in the third article of the Constitution, which Chief Justice who pronounced that decision, I have just read. It is in no sense a case and whose intellect, full-orbed, shed a steady within the general judicial power of the United and luminous light on the jurisprudence of the States. country for a third of a century, declared, what Senators, no one is either bold enough or no man has since questioned, that the orginal weak enough to stand in the presence of the jurisdiction of the Supreme Court as defined 791 in this text of the Constitution could neither that the Supreme Court of the United States be enlarged nor restricted by congressional had solemnly decided both questions against enactment. These gentlemen ought to have them. remembered, further, when they invoked the Now for the proof. As to the obligation of intervention of the Supreme Court or any other the heads of the Departments to learn their court, between the people and this accused duty under the law through the will of an ExPresident, that the appellate jurisdiction of ecutive, the Senate will remember that the the Supreme Court, by numerous decisions, learned gentleman from New York handled depends exclusively under the Constitution the great case of Marbury vs. Madison with upon the will of Congress. It results, there- wondrous skill and dexterity. He took care, fore, that they must go to some other tribunal however, not to quote that part of the decision for the settlement of this great question between which absolutely settles this question as to the the people and the President, unless Congress obligation of the Secretaries to respond to the chooses to let them go to the Supreme Court will of the Executive in questions of law; he bya special enactment for their benefit. The took care not to quote it, and to keep it in the appellate jurisdiction, Senators, of the Supreme back ground. Perhaps, Senators, he assumed Court as defined in the Constitution by words that he knew all that the poor Managers of the clear and plain and incapable of any misunder- Horrse knew about this case, and then he knew standing or misconstruction, exclude the con- all that he knew besides, gathered from Taciclusion that a case of impeachment can by any tus, if you please, and from the phillipics of possibility be within the jurisdiction of any of Cicero against Cataline and from that speech the courts of the United States, either its dis- of his in defense of Milo, which it happens he trict, its circuit, or its Supreme Court. The never made until after poor Milo was convicted Senate will notice that by the terms of the and banished and was heard to cry out in the Constitution the appellate jurisdiction from agony of his soul if he had made that speech the district and circuit courts is limited to the for him on the trial, "II would not be to-day cases in law and equity and the other cases here in Marseilles eatingmullets." Laughter.] named in the Constitution, none of which em- I read now in the hearing of the Senate the brace a case of impeachment. decision of Chief Justice Marshall in the case There is, therefore, Senators, no room for of Marbury vs. Madison, touching this alleged invoking the decision of the Supreme Court of obligation of the heads of Departments to take the United States upon any question touching the will of the Executive as their law. Marthe liability of the President to answer upon shall says on page 158 of 1 Cranch: impeachment by the people's Representatives " It is the duty of the Secretary of State to conform at the bar of the Senate. What excuse, there- to the law, and in this he is an officer of the United fore, I ask, is there for the pretense that the States, bound to obey the laws. He acts in this respect, as has been very properly stated at the bar, President may set aside and dispense with the under the authority of law and not by the instrucexecution of the laws, all or any of them, en- tions of the President." acted by the Congress under the pretext of If he should disobey the law, does it not defending the Constitution by invoking a judi- logically result that the President's commands cial inquiry in the courts of the United States. cannot excuse him; that the people might well Be it known, Senators, that but two ques- depose him from his office whether the Presitions which by possibility could become the dent willed it or not? It only illustrates the subject of judicial decision, have been raised proposition with which I started out, that by the learned and astute counsel who have neither the President nor his Secretaries are attempted to make this defense. The first is above the Constitution or above the laws which that the heads of Departments are the mere the people enact. registering secretaries of the President of the As for the other proposition, Senators, atUnited States, and are bound to recognize his tempted to be set up here for this accused and will as their sworn duty. I deny that propo- guilty President, that he may, with impunity, sition; aid I think that the learned gentleman under the Constitution and laws of the United from New York did well, remarkably well, as States, interpret the. Constitution and sit in he does everything well, to quote in advance judicial judgment, asthegentleman from Massafor our instruction when we should come to chusetts [Mr. Curtis] urged it, upon the validreply to him upon this point, those divine ity of your laws, that question has also been words of the great Apostle to the Gentiles, ruled in the Supreme Court of the United wherein he speaks of charity as long patient States, and from that hour' to this has never and suffering. It required a charity, Senators, been challenged. Although an attempt was broader than the charity of the Gospel, to sit made to drag the illustrious name of the Chief patiently by and hear these gentlemen invoke Justice who presides, under the Constitution, the decision of the Supreme Court upon either at this moment over this deliberative and judiof the questions involved in this issue, when cial assembly, to their help, it was made in we knew that these gentlemen, overflowing as vain, as I shall show before I have done with they manifestly are with all learning, ancient thisargumrent. Isaythattheposition assumed and modern, the learning of the dead as well for the President by all his counsel that he is as the learning of the living, knew right well to judicially interpret the Constitution for him 792 self; that he is to judicially determine the so in his concluding argument for the accused! validity of laws, and execute them or suspend he attempted to fortify against such consethem and dispense with their execution at his quences by calling to his aid the decision of pleasure and defy the power of the people to the present Chief Justice in what is known as bring him to trial and judgment, was settled the Mississippi ease. With all respect to the against him thirty years ago.by the Supreme learned ex-Attorney General, and to all his Court of the United States, and that decision associates engaged in this trial, I take it upon has never been questioned since by any authori- me to say thbt the decision pronounced by his tative writer upon your Constitution or by any honor the Chief Justice of the United States subsequentdecision in your tribunals of justice. in the Mississippi case has no more to do with I read, in the first place, the syllabus as collated the question involved in this controversy than by the reporter [Mr. Worthington] from the has the Koran of Mohammed, and the gentlereport itself, and then I will read the decision man was utterly inexcusable in attempting to of the court. It is the case of Kendall vs. the force that decision into this case in aid of any United States, 12 Peters. In the syllabus it is such proposition as that involved in this constated that — troversy, and made, as I shall show before I "By an act for the relief of the relators in the case have done with it, directly by the President the Solicitor of the Treasury was directed to audit himself in his answer, as well as by the lips of their claims for certain services, and the Postmaster his retained counsel. General was directed to credit them with the sum thus found due. The Postmaster General upon the What did his honor the Chief Justice decide settlement of the claim by the Solicitor credited the in the Mississippi case? Nothing in the world relators with a part of the amount found due, but but this as is vell known to every lawyer in refused to crelit them with the remainder. A mandamus was applied for and issued by the circuit court America, even to every student of the law of the District, whereupon the Postmaster General versed not beyond the horn-books of his probrought the case before the Supreme Court by a writ fession, that where the law vested the Presiof error." dent with discretionary power his judgment in Upon the hearing of that case in the Supreme the exercise of his discretioin, under the law, Court, Justice Thompson pronounced the uni- until that judgment was overruled by the legisted judgment of the court as follows: lative power of the nationj concluded all par"It was urged at the bar that the Postmaster Gen- ties. We agree to it. The learned Senator.eral was alone subject to the direction and control of from New York, who jonors me with his attenthe President with respect to the execution of the New York, duty imposed upon him by this law; and this right tion, [Mr. CONKLING,] knows that before he of the President is claimed as growing out of the was born that question was decided precisely obligation imposed upon him by the Constitution to in t take care that the laws be faithfully executed. Thisin the same way in the great State which he is a doctrine that cannot receive the sanction of this so honorably represents here to-day, and is court. It would be vesting in the President a di- rted in 12 Wheaton; but it does not touch pensing power, which has no countenance for its support in any part of the Constitution, and is asserting this question at all, and the proposition is a principle which, if carried out in its results to all so foreign to the question that it is like dne cases falling within it, would be clothing the Presi- of those suggestions referred to by Webster dent with a power entirely to control the legislation upon one occ of Congress and paralyze the administration of jus- one occasion when he said to make it to tice. a right-minded man is to insult his intelli"To contend that the obligation imposed on the g President to see the laws faithfully executed implies gene. I read, however, from the opinion of a power'to forbid their execution, is a novel con- the Chief Justice, and in reading from it I struction of the Constitution, and entirely inadmis- wish to be understood that I agree with every sible."-12 Peters, p. 612. word and letter and syllable which the Chief I ask you, Senators, to consider whether I Justice uttered; but it does not touch this queswas not justifiable in saying that it was a tax tion. The Attorney General, in citing, prefaced upon one's patience to sit here and listen from it with these words: day to day and from week to week to these iIt is sufficientupon this point to cite a late opinion learned arguments made in defense of the Pres- of the Supreme Court of the United States, in what ident, all resting upon his asserted executive is called the Mississippi injunction ease, decided ident, all re ti upo n his asseith the executi veon of April, 1867. Mr. Chief Justice Chase, delivering the prerogative to dispense with the execution of opinion of the court, says: the laws and protect himself from trial and "'It is assumed by thecounsel forthe State of Misconviction before this tribunal, because he said sissippi that the President in the execution of the conviction before this tribunal, because he said reconstruction acts is required to perform a mere that he only violated the laws in order to test ministerial duty. In this assumption ther e is, we their validity in the Supreme Court, when that think, a confounding of the terms ministerial and court had already decided thirty years ago that executive, which are by no means equivalent in import. A ministerial duty, the performance of which any such assumed prerogative in the President may, in proper cases, be required of a head of a Deenabled him to sweep away all the legislation partment by judicial process, is one in respect to of Congress and prevent the a dministration of which nothing is left to discretion. It is a simple, of Congress and prevent the administration of definite duty, arising under conditions admitted or justice itself, and found no countenance in the proved to exist, or imposed by law."' Constitution? I suppose, Senators, that the After citing some cases of merely ministerial learned ex-Attorney General thought that there duty, the Chief Justice proceeds as follows: was something here that might disturb the har- "In each of these cases nothing was left to discremlony and the order of their argument in this tion. There was no room for the exercise of judgdecision of Kendall vs. the United States, and ment. The law required theperformance of asingle, 793 specific act, and that performance. it was held,might self in his answer and assumed for him by his be required by mandamus. Very difforentistheduty counsel in his defense; and the assumption of the President in the exercise of the power to see conflicts ith all that I have alreadyread from that the laws are faithfully executed, and among th conflicts with all that I have alreadyread from laws the acts named in the bill." the Constitution, with all that I have already What acts? The reconstruction act that read of its judicial interpretation and construcvested him with a very large discretion to the tion; and it conflicts as well with all that rehurt of the nation: mains of the instrument itself. It is useless " The duty thus imposed on the President is in no to multiply words to make plain a self-evident. just sense ministerial. It is purely executive and proposition; it is useless to attempt to imply political. An attempt on the part of the judicial this power in the President to set aside and disdepartment of the Governmentto enjoin the perform- pense with the execution of the laws in the face ance of such duties by the President might be justly pe xecution of the laws in the face characterized, in the language of Chief Justice Mar- of the express words of the Constitution, that shall, as an'absurd and excessive extravaganco. It "all legislative power granted by this Constiis true that, in the instance before us, the interposition of the court is not sought to enforce action by the tution shall be vested in a Congress which shall executive under constitutional legislation, but to consist of a Senate and a House of Representrestrain such action under legislation alleged to be atives," that he shall be sworn "faithfully to unconstitutional. Butwe are unableto perceive that a e th e o esin adth fo this circumstance takes the case out of the general execute the office of President," and therefore principle which forbids judicial interference with the faithfully to discharge every obligation which exercise of executive discretion." the Constitution enjoins, first and foremost of What on earth has that to do with the ques- which obligations is thus written on the very tion in issue here? I may have occasion, Sen- fore-front of the instrument, that he shall take ators, and you will pardon me if I avail myself care that the laws enacted by the people s repof the opportunity, to say that the law which resentatives in Congress assembled shall be is called in question here this day leaves no faithfully executed-not some of the laws; not discretion whatever in the Executive, and. in the laws which he approves; but the laws shall the language of his honor the Chief Justice, be executed until the same shall have been imposed upon him a plain unequivocal duty, duly repealed by the power that made them or about which he was not even mistaken him- shall have been constitutionally reversed bythe self. I count myself, therefore, justified, even Supreme Court of the United States acting at this stage of my argument, in reiterating within thelimitations andunderthe restrictions my assertion that the decision in the Missis- of the Constitution itself. sippi case has nothing whatever to do with the We have heard much, Senators, in the proprinciple involved in this controversy, and that gress of this discussion,'abount the established the President has no excuse whatever for at- custom of the people of this country; we have tempting to interfere with and set aside the heard much about the long-continued practice plain mandates and requirements of the law. of eighty years under the Constitution and There was no discretion left in him whatever; laws of the United States. You have listened and even his counsel had not the audacity to in vain, Senators, for a single citation of a argue here before the Senate that the act of single instance in the history of the Republic 1867 which is called in question by this Ex- where there was an open violation of the writecutive, who has violated its provisions, dis- ten law of this land, either by the Executive, pensed with its execution, and defied its by States, or by combinations of men, which authority, left any discretion in him. The point the people did not crush at the outset' and put they make is that it is unconstitutional and no down. That is a fact in our history creditable law; and that is the very point settled in Ken- to the American people, and a fact that ought Xall vs. the United States, that the power to be considered by the Senate when they come vested in the President " to take icare that the to sit in judgment upon this case now made laws be faithfully executed " vests in him no before them for the first time under the Conpower to set aside a law of the United States, stitution of the United States, whether the and to direct the head of a Department to dis- President is above the laws and can dispense obey it, Snd authorize the head of the Depart- with their execution with impunity in the exment to plead his royal mandate in a court of ercise of what is adroitly called his judicial justice in excuse and justification of his re- power of interpretation. fusal to obey the plain requirement of the law. I need not remind Senators of that fact It is written in the Constitution that " he shall in our early history when, by insurrectign, take care that the laws be faithfully executed.'" a certain act was attempted to be resisted Are we to mutilate the Constitution, and for in the State of Pennsylvania, when Washthe benefit of the accused to interpolate into ington took measures promptly to crush the Constitution a word which is not there and the first uprising of insurrection against the the introduction of which would annihilate the majesty of the laws. The gentlemen have whole system, that is to say, that "' the Presi- attempted to summon to their aid the great dent shall take care that the laws which he ap- name of the hero of New Orleans. It is proves, and only the laws which he approves, fresh within the recollection of Senators, as shall be faithfully executed?" This is at last it is fresh within the recollection of millions the position assumed for the President by him- of the people of this country, that when the State of South Carolina, in the exercise of with her babe lashedupon her breast, pursued what she called her sovereign power as a by the officers by virtue of this law, in her wild State, by. ordinance attempted to set aside frenzy forgot her mother's affection in the joy the laws of the United States for the collec- she felt in sending, before its appointed time, tion of customs, the President of the United by her own hand, the spotless spirit of her child States, Andrew Jackson, not unmindful of back to'the God who gave it rather than to his oath-although the law was distasteful allow it to be tossed back into this hell of huto him, and it is a fact that has passed into man bondage under the operation of American'history that he even doubted its constitution- law; a law sustained by the American people ality-yet, nevertheless, issued his proclama- even on that day when Anthony Burns walked tion to the insurgents, and, lifting his hand, in chains under the shadow.of Bunker Hill, swore " by the Eternal the Union must and "where every sod's a soldier's sepulcher," shall be preserved." There was no recog- and where sleeps the first great martyr in the nition here of the right either in himself or in cause of American independence, to be tried a State to set aside the laws. by a magistrate in a temple of justice girdled Gentlemen, there is a case still fresher within itself with chains and guarded by bayonets; the recollection of Senators, and still fresher and yet the people stood by and said let the in the recollection of the people of this coun- law be executed until it be repealed. try, that attests more significantly than any Gentlemen talk about the American people other the determination of the people to abide recognizing the right of any President to set by their laws enacted by their Congress, what- aside the laws I Who does not know that two ever the law may be and however odious it years after this enactment, in 1852, the terrible may be. The gentleman from New York-else blasphemy was mouthed in Baltimore by the I might not have alluded to it in this discus- representatives of that same party that to-day sion-took occasion to refer to the fugitive insists upon the executive prerogative to set slave law of 1850; a law which was disgrace- aside your laws and annihilate your Governful, (and I say it with all respect to the Con- ment, touching this fugitive slave law that all gress that enacted it;) a law which was in di- discussion in Congress and out of Congress rect violation of the letter and the spirit of the should be suppressed? When they passed that Constitution; a law of which I canll say, at resolution they ought to have remembered that least, although I doubt much whether the gen- there is something stronger after all than the tleman from New York can say as much, that resolutions of mere partisans in convention it never found an advocate in me; a law of assembled. They ought to have remembered which Webster spoke when he said, "My judg- that God is not in the earthquake or in the ment always was, and that is my opinion to-day, fire, but in "the still, small voice," speaking that it is unwarranted by the Constitution;" a through the enlightened conscience of enlightlaw which offered a bribe out of the common ened men, and that it is at last omnipotent. Treasury of the nation to every magistrate who But-and I only refer to it: God knows that, sat in judgment upon the right of a flying bond- for the honor of our country, I would take a man to that liberty which was his by virtue of step backward and cover the nakedness and that same creative energy which breathed into shame of the American people in that day of his nostrils the breath of life and he became America's dishonor; but when they passed a living soul; a law which offered a reward to that resolution they nominated their candidate, the ministers of justice to shorten the judg- and he accepted its terms, and he was carried ment of the poor; a law which, smiting the to the presidential chair by the votes of all the conscience of the American people and the States of this Union, except four, upon the conscience of the civilized world, made it a basis that he would execute the laws, however crime to give shelter to the houseless, and, in odious they might be, however offensive they obedience to the utterances of our divine Mas- might be to the judgment and conscience of ter, to give a cup of water to him that was the people of the United States and of the ready to perish; a law enacted for the purpose of civilized world. %ustaining that crime of crimes, that sum of all And now, with such a record as this, these villainies, which made merchandise of immor- gentlemen dare to come before the Senate and tality, which transformed a man into a chattel, tell the Senate that it is the traditional policy a thing of trade, which, for want of a better of the American people to allow their own laws wdrd, we call a slave, with no acknowledged to be defied by their own Executive. I deny rights in the present, with no hope of a heri- it. There is not a line in your history but gives tage in the great hereafter, to whose darkened a flat denial to the assumption. It has never soul, under his crushing bondage, the universe been done. was voiceless, and God himself seemed silent; In this connection, Senators, I feel cona law under the direct operation of which that strained, although I deeply regret it, to be horrible tragedy was enacted, my good sir, [ad- compelled to depart from the direct line of my dressing Mr. Groesbeck,]. within our own noble argument to notice another point that was made Commonwealth, in the streets Qf your beauti- by the gentleman in order to bolster up this ful city, (Cincinnati,) when Margaret Garner, assumption, made for the first time, as I insist, 795 in our history, of the right of the Executive, by responsible for what necessarily resulted from his executive prerogative, to suspend and dis- this atrocious and unmatched rebellion, I make pense with the execution of the laws, and that in the words of that grand and noble man, than was the reference which was made to your whom a purer, a wiser, or better spirit never lamented and martyred President, Abraham ascended the chair of civil magistracy in this or Lincoln. In God's name, Senators, was it not in any country, in this age or in any age-I refer enough that he remembered in the darkest to John Quincy Adams-when he said that hours of your trial and when the pillars of your in the presence of public war, either domestic holy temple trembled in the storm of battle that or foreign, all the limitations of your Constituoath which, in his own simple words,was " regis- tion are silent, and in the event of insurrection tered in heaven," and which he must obey on in any of the States, all the institutions of the the peril of his soul-was it not enough that States within which it rages, to use his own he kept his faith unto the end and finally laid terse, strong words, "4go by the board." You down his life a beautiful sacrifice in defense of cannot prosecute war by a magistrate's warthe Republic and the laws without slandering rant and a constable' s staff. Abraham Lincoln. and calumniating his memory now that he is simply followed the accepted law of the civildead, that his tongue is mute, unable to speak ized world in doing what he did. I answer for himself, by the bald, naked, and false asser- further, for I leave no part of it unanswered, tion that he violated the laws of his country? I would count myself dishonored, being able to I speak earnestly, I speak warmly on this sub- speak here for him when he cannot speak for ject, because the man thus slandered and out- himself; if I left any colorable excuse for this raged in the presence of the Senate and the assault upon his character unanswered and civilized world was not only my own personal unchallenged. friend, but he was the friend of our common Why, say the gentlemen, you passed your country and our common humanity. I deny indemnity acts. Now, who is there in this that, for a single moment, he was regardless Senate of the United States so weak as not to of the obligations of his oath or of the require- know that it is in vain that you pass indemnity ments of the Constitution. I deny that he acts to protect the President of the United ever violated your laws. I deny that he ever States, if, after all, his acts were unconstituassumed to himself the power claimed by this tional-to the hurt of private right. You apostate President this dayto suspend your laws must go a step further than that; you must and dispense with their execution. Though deny jurisdiction to the courts, you must shut dead, he yet speaks from the grave; and I ask the doors of your temple of justice, you must Senators when they come to consider this accu- silence the ministers of the law before you sation against their murdered President, to pass an indemnity act which will protect him ponder upon the words of his first inaugural, if his act at last be unconstitutional. That. when manifestly alluding to the fugitive slave was not the purpose of the act. If the gentlelaw; which violated every conviction of his man referred to the general indemnity act, I nature, from which he went back with abhor- had the honor to draft it myself. I claim no rence, he yet nevertheless in that inaugural particular credit for it. It is not unknown to said to the American people, however much the legislation of this country and of other we may dislike certain laws upon our statute- countries. The Congress of the United States, books, we are not at liberty to defy them, nor as Senators will remember, passed a similar to disregard them, nor to set them aside; but act in 1862. The general act to which I refer we must await the action of the people and was passed in 1867. That act was simply detheir repeal through the law-making power. claring that the acts of the President during I do not quote the exact words, but I quote the rebellion and of those acting for the Presithe substance; I doubt not they are as familiar dent in the premises, should be a bar to proseto the minds of Senators as they are to me. cutions against them in the courts. What was Oh, but said the gentleman, he suspended the object of it? If it be in the power of the the habeasicorpus act. The gentleman was too nation to defend itself, if it be constitutional to learned not to know that it has been settled law defend the Constitution, if it be constitutional from the earliest times to this hour that in the for the President to summon the people to the midst of arms the laws are silent, and that it is defense of their own laws and the defense of written in the Constitution that "the privilege their own firesides and the defense of their of the writ of habeas corpus shall not be sus- own nationality, the law said that this should pended unless when in cases of rebellion or be an authority to the courts to dismiss the invasion the public safety may require it." It proceeding, on the ground that the act was was not Mr. Lincoln that suspended the habeas done under the order of the President. But corpus act; it was that great public, solemn, how could we make his act valid under the civil war that covered your heavens with black- Constitution if it was unconstitutional, if the ness and filled the habitations of your people limitations of the Constitution operated? I do with mourning and lamentation for their beauti- not stop to argue the question. It has been ful, slain upon the high places of the land. argued by wager of battle, and it has been Senators, the best answer that I can make to this settled beyond reviewin this tribunal or in any assertion that your murdered President was tribunal that the public safety is the highest 796 law, and that it is a part and parcel of the learned gentleman from New York would haveConstitution of the United States. given us more light, on this subject if he had I have answered, Senators, and I trust I informed us that the collector under your have answered sufficiently, all that has been revenue law had dared, under a letter of au-aid by the counsel for the President for the thority of Andrew Johnson, to set aside a iurpose of giving some colorable justification statute, and upon his own authority, coupled for the monstrous plea which they this day in- with that of his chief, to defy your power. terpose for the first time in our history that it The two questions are as distinct as life and pertains to the executive prerogative to inter- death, as light and darkness, and no further pret the Constitution judicially for himself and word need be said by me to the American Sento determine judicially the validity of every law ate in answer to that proposition. passed by Congress and to execute it or sus- I may be pardoned now, Senators, for referpend it or dispense with its execution at his ring to other provisions of the Constitution pleasure. which do sustain and make clear the position Mr. SHERMAN. If the honorable Man- I assumed as the basis of my argument, that ager will pause at this point of the argument I the letter of the law passed by the people's will submit a motion that the Senate take a Representatives in Congress assembled conrecess for fifteen minutes. eludes the Executive. I have given you alThe motion was agreed to. ready the solemn decision of the Supreme At the expiration of the recess the Chief Court of the United States upon that subject, Justice resumed the chair and called the Sen- unquestioned and unchallenged from that day ate to order. to this. I now turn to a higher and a more. Mr. Manager BINGHAM. Mr. President commanding authority,the supreme lawofthe and Senators, the last words which I had the land ordained by the people and for the peohonor to utter in the presence of the Senate ple, in which they have settled this question were to the effect that I had endeavored to between the people and the Executive beyond answer what had been said by the counsel for the reach of a colorable doubt. I refer to the the accused in defense of the monstrous prop- provisions of the Constitution which declare osition made for the first time in the history of thatthe Republic that the Executive may suspend "Every bill which shall have passed the House of and dispense with the execution of thepeople( s Representatives and the Senate shall, before it belaws at his pleasure. I beg the pardon of the come a law, be presented to the PreSident of the UniSenate for having forgotten to notice the very td States;ifhe apt prove, he shall sign it, butif not, he shall return it with his objections to that House in astute argument made by the learned counsel which it shall have originated, who shall enter the from New York [Mr. Evarts] in behalf of the objections at large on their Journal and proceed to president touching the broker who refusedto reconsider it. If, after such reconsideration, two d ckthirds of that House shall agree to pass the bill, it pay the license under your revenue laws, and shall be sent, together with the objections, to the under the advice of the learned counsel was other House, by which it shiall likewise be reconfinally protected in the courts. Senators, par- sidered, and if approved by two thirds of that House inally protected in the courts. Senators, par- it shall become a law." * * * * don me for saying again that the introduction " If any bill shall not be returned by the President of such an argument as that was an insult to within ten days (Sundays excepted) after it shall it have been presented to him the same shall be a law the intelligence of the American Senate; it in like manner as if he had signed it, unless the Conldoes not touch the question, and the man who gress by their adjournment prevent its return, in does not understand that proposition is not fit which case it shall not be a law." to stand in the presence of this tribunal and I ask the Senators to please note in this conargue for a moment any issue involved in this troversy between the Representatives of the controversy, people and the advocates of the President that Nothing is more clearly settled, Senators- it is there written in the Constitution so plainly and I ought to ask pardon at every step I take that no mortal man can gainsay it, that every in this argument for making such a statement bill which shall have passed the Congress of to the Senate-nothing is more clearly settled the United States and been presented to the under the American Constitution in all its in- President and shall have received his signature terpretations than that the citizen upon whom shall be a law; that it further provides that the law operates is authorized by the Consti- every bill which he shall disapprove and return tution to decline compliance without resist- to the House in which it originated with his ance and appeal to the courts for his protec- objections, if reconsidered and passed by the tion. That was the case of the New York Congress of the United States Iy a two-thirds broker to which the learned counsel referreAl vote, shall become a law; and that every bill and desperate must be the defense of his client which shall have passed the Congress of the if it hangs upon any such slender thread. United States and shall have been presented Who ever heard of that rule of universal ap- to the President for his approval which he plication in this country of the right of the shall retain for more than ten days, Sundays citizen peacefully, quietly, without resistance, excepted, during the session of Congress, shall without meditating resistance, to appeal to the be a law. That is the language of the Consticourts against the oppression of the law being tution; it shall be a law if he approves it; it applied to the sworn executor of the law? The shall be a law if he disapproves it and the Con ess pass it over his veto; it shall be a law if that at last the decision of the Supreme Court gress pass it over his veto; it shall be a lawnif that at last the decision of the Supreme Court he retain it for more than ten days during the could not control him at all; that it could not session of Congress, Sundays excepted. In decide any question for the departments of the each such case it shall be a law. It is in vain, Government. altogether in vain, against this bulwark of the I am not disposed to cast reproach upon Mr. Constitution, that gentlemen come, not with Jefferson. I know well that he was not one of their rifled ordnance, but with their small arms the framers of the Constitution. I know well playing upon it, and telling the Senate of the that he was not one of the builders of the fabric United States and the people of the United of American empire. While he contributed States in the face of the plain words of the much to work out the emancipation of the Constitution that it shall not be a law. The American people from the control and dompeople meant precisely what they said, that it ination of British rule and deserves well of his shall be a law; though the President give never country, one of the authors of the Declaration 60 many reasons, by veto, why he deems it of Independence, yet I know well enough that unconstitutional, nevertheless, if Congress by his opinions on that subject are not accepted a two-thirds vote pass it over his veto, it shall at this day by the great body of the American be the law. That is the language of the Con- people and find no place in the authoritative stitution. and commanding writers upon the text of your What is theiranswer? "It isnot to be alaw Constitution. He was a man, doubtless, of unless in pursuance of the Constitution." An fine philosophic mind; he was a man of noble, unconstitutional law, they say, is no law at all. patriotic impulses; he rendered great service We agree to that; but the executive-and that to the country and deserves well of his countryis the point in controversy here-is not the men; but he is not an authoritative exponent department of the Government to determine of the principles of your Constitution, and never that issue between the people and their Rep- was. resentatives; and the man is inexcusable, ab- I may be pardoned further, in passing, for solutely inexcusable, who ever had the advan- saying in connection with this citation that is tage of common schools and learned to read made here, right in the face of the answer of the plain text of his native vernacular, who dares the accused, that his only object in violating.to raise the issue in the light of the plain text the law was tp have a decision of the Supreme of the Constitution that the President, in the Court on the subject, that another distinguished face of the Constitution, is to say it shall not man of the Democratic party standing in his ~be a law, though the Constitution says expressly place in the Senate years ago, in the controIT SHALL BE A LAW. I admit that when an versy about the constitutionality of the United enactment of Congress shall have been set States Bank, afterward lifted to the Presidency aside by the constitutional authority of this of the United States, declared in his place here country it thenceforward ceases to be law, that while he should give a respectful considerand the President himself might well be pro- ation to the decision of the Supreme Court 6f tected for not thereafter recognizing it as law. I the United States touching the constitutionality admit it, although gentlemen on that side of the of an act of Congress, he should nevertheless, Chamber will pardon me-and surely I make as a Senator upon his oath, hold himself not the allusion for no disrespectful purpose what- bound by it at all. That was Mr. Buchanan. ever-I say it rather because it has been pressed One thing is-very certain: that these authorinto this controversy on the other side, in say- ities quoted by the gentlemen do sustain in ing that it was the doctrine taught by him who is some sort, if it needed any support at all, the new called the great apostle of Democracy in position that I have ventured to assume before America, that the Supreme Court of the Uni- the Senate, that upon all trials of impeachment ted States could not decide the constitutional- presented by the House of Representatives the ity of a law for any other department of this Senate of the United States is the highest judiGovernment; that they only decide for them- cial tribunal of the land, and is the exclusive selves and the suitors at their bar. For what judge of the law and fact, no matter what any earthly use the citation from Jefferson was in- court may have said touching any question troduced by the learned gentleman from Ten- involved in the issue. nessee, [Mr. Nelson,] who first referred to it, Allow me, Senators, now to take one step and by the learned Attorney General, I cannot further in this argument touching this position for the life of me comprehend in the light of of the President, for I intend in every step I the answer here interposed by the President. take to stand with the Constitution of my counHe tells you, Senators, by his answer that he try, the obligations of which are upon me as only violated the law, he only asserted this a representative of the people. I have already executive prerogative, that would cost any in your hearing cited a test from the Constitucrowned head in Europe this day his life, in- tion which ought to close this controversy benocently for the purpose of taking the judg- tween the people and the President as to his ment of the Supreme Court; and here comes right to challenge a law which the Constitution his learned advocate from Tennessee, and his declares is a law and shall be a law despite his learned advocate, the Attorney General, quot- veto. The other provision of the Constitution ing the opinion of Thomas Jefferson to show to which I refer is that provision which defines 798 and limits the executive power of the Presi- United States, under the Constitution, when dent. I refer again to the words of the Con- that Constitution expressly declares that all stitution: legislative power granted by this Constitution "The President shall be Commander-in-Chief of shall be vested in C6ngress, and that all judithe Army and Navy of the United States, and of the cial power shall be vested in a Supreme Court militia of the several States, when called into the and in such inferior courts as the Congress may actual service of the United States; he may require by law establish, subject, nevertheless, to the the opinion, in writing, of the principal officer in by law establish, subject, nevertheless, to the each of theExecutive Departments upon any subject limitations and definitions of power embraced relating to the duties of their respective offices, and in the Constitution itself? The assumption he shall have power to grant reprieves and pardons for offenses against the United States, except in cases upon which the defense of the President rests, of impeachment. that he shall only execute such laws as he ap" He shall have power. by and with the advice and proves or deems constitutional, is an assumpconsent of the Senate, to make treaties, provided which invest two thirds of the Senators present concur; and he ton hinvest m with legislative and shall nominn.te, and by and with the advice and con- judicial power in direct contravention of the sent of the Senate shall appoint, embassadors, other express words of the Constitution. public ministers and consuls, judges of the Supreme dispense with one act Court, and all other officers of the United States, t ent may one act whose appointments are ndt herein otherwise pro- of Congress upon his own discretion, may he vided for, and which shall be established by law; not in like manner dispense with every act of but the Congress may by law vest the appointment Con ress? I ask you, Senators, whether this of' such inferior officers as they think proper in the Senators, whether th President alone, in the courts of law, or in the heads conclusion does not necessarily result, as neof Departments. nessarily as effect follows efficient caise? If "The President shall have power to fill up all va- as ew ec t follows efficient cause If cancies that may happen during the recess of the not, pray why not? Is the Senate of the UniSenate, by granting commissions which shall expire ted States, in order to shelter this great crimat the end of their next session. inal, to adopt the bold assumption of unre"He shall from time to time give to the Congress stricted executive prerogative, the wild and information of the state of the Union, and recommend to their consideration such measures as he guilty fantasy that the king can do no wrong, shall judge necessary and expedient; he may, on and thereby clothe the Executive of the Amerextraordinary occasions, convene both Houses, or can people with power to suspend and diseither of them, and in case of disagreement between ican people with power to suspend and disthem, with respect to the time of adjournment, he pense with the execution of their laws at his may adjourn them to such time as he shall think pleasure, to interpret their Constitution for himself, and thereby annihilate their GovernThese are the specific powers conferred on ment? the President by the Constitution. I shall have Senators, I have endeavored to open this occasion hereafter in the course of this argu- question before you in its magnitude. I trust ment to take notice of that other provision that I have succeeded. Be assured of one thing, which declares that the executive power shall that according to the best of my ability, in the be vested in a President. It is not a grant of presence of the Representatives of the nation, power, however, I may be allowed to say in I have not been unmindful of my oath; and I passing, to the President, and never was so held beg leave to say to you, Senators, this day, in by anybody in this country. The provisions all candor, that, in my judgment, no question of the Constitution which I have read grant to of mightier import was ever before presented the President of the United States no legisla- to the American Senate, and to say further, tive norjudicial power. Both of these powers, that no question of greater magnitude ever can legislative and judicial, are necessarily involved come by possibility before the American Senin the defense this day attempted to be set up ate, or any question upon the decision-of which by the Executive; first, in the words of his own greater interests necessarily depend. counsel, that he may judicially interpret the In considering this-great question of the Constitution for himself and judicially determ- power of the President by virtue of his execuine upon the validity of every enactment of tive office to suspend the laws and dispense Congress; and second, in the position assumed with their execution, I pray you, Senators, by himself, and for which he stands charged consider that the Constitution of your counhere at your bar as a criminal, to repeal-I use try, essential to our national life, cannot exist the word advisedly and considerately-to re- without legislation duly enacted by the Reprepeal by his own will and pleasure the laws sentatives of the people in Congress assembled enacted by the Representatives of the people. and duly executed by their chosen Chief MagisThis power of suspending the laws, of dispens- trate. Courts, neither supreme nor inferior. ing with their execution until such time as it for the administration of justice within the may suit his pleasure to test their validity in limitations of your Constitution, can exist the courts, is a repeal for the time being, and, without legislation. Is the Senate to be told if it be sustained by the Senate, may last during that this Department of the Government, eshis natural life, if so be the American people sential to the peace of the Republic, essential should so long tolerate him in the office of to the administration of justice between man Chief Magistrate of the nation. Why should I and man, those ministers of justice who, in the stop to argue the question whether such a simple oath of the purer days of the Republic, power as this, legislative and judicial, may be were sworn to do equal justice between the rightfully assumed by the President of the poor and the rich, shall not administer justice at all if perchance the President of the' Uni- not be chosen without legislation. Are we ted States may choose, when the Congress again to be told that the President at every step comes to enact a law for the organization of is vested with authority to dispense with the the judiciary, and enact it even despite his ob- execution of the law and to suspend its operajections to the contrary in accordance with the tion till he can have a decision, if you please, Constitution by a two-thirds vote, to declare that in the courts of justice? Revenue cannot be according to his judgment and his convictions raised, in the words of the Constitution, to it violates the Constitution of the country, and provide for the common defense and general therefore it shall not be put into execution? welfare without legislation. Is the President Senators, if he has the power to sit in judg- to intervene with his executive prerogative to ment judicially-and I use the word of his declare that your revenue laws do not meet his advocate-upon the tenure-of-office act of 1867, approval, and in the exercise of his independent he has like power to sit in judgment judicially coiordinate power as one of the departments of upon every other act of Congress; and in the this Government chooses to suspend the law event of the President of the United States and dispense with its execution? If the Presinterfering with the execution of a judiciary ident may set aside all laws and suspend their act establishing for the first time, if you please, execution at pleasure; it results that he may in your history, or for the second time, if you annul the Constitution and annihilate the Govplease, if by some strange intervention of Provi- ernment, and that is the issue before the Amerdenuce the existing judges should perish from ican Senate. I do not go outside of his answer the earth, I would like to know what becomes to establish it, as I shall show before I have of this naked and bald pretense (unfit to be done with this controversy. played with ly children, much lessby full-grown The Constitution itself, according to this men) of the President, that he only violates the assumption, is at his mercy, as well as the laws, laws innocently and harmlessly, to have the and the people of the United States are to question decided in the courts, when he arro- stand by and be mocked and derided in their gates to himself the power to prevent any court own Capitol when, in accordance with the exsitting in judgment upon the question? press provision of their Constitution, they bring Representatives to the Congress of the Uni- him to the bar of the Senate to answer for such ted States cannot be chosen without legisla- a crime than which none greaterever was comtion; first, the legislation of the Congress ap- mitted since the day when the first crime was portioning representation among the several committed upon this planet as it sprung from States according to the whole number of repre- the hand of the Creator; that crime which covsentative population in each; and second, an ered one manly brow with the ashy paleness enactment either of the Congress or of the and terrible beauty of death, and another with Legislatures of the several States fixing the the damning blotch of fratricide. The people time, place, and manner of holding the elec- are not to be answered at this bar that it is in tions. Is it possible that the President of the vain that they have put into the hands of their'United States, in the event of such legislation Representatives the power to impeach such a by the Congress, clearly authorized by the very malefactor, and by the express words of their terms of the Constitution, and essential to the Constitution they have put the power into the very existence of the Government, is permit- hands of the Senate, the exclusive power, the ted, in the exercise of his judicial executive sole power to try him for his high crimes and authority, to sit in judgment upon your statute misdemeanors. and say that it shall not be executed? This The question touches the nation's life. Be pqwer given by your Constitution to the Con- it known, Senators, that your matchless congress to prescribe the time and place and man- stitution of government, the hope of the strugner of holding elections for Representatives in ling friends of liberty in all lands, and for the Congress in the several States, and to alter as perpetuity and the triumph of which millions well the provisions of the State Legislatures, of hands are lifted this day in silent prayer to in the words of one of the framers of the Con- the God of nations, can no more exist without stitution, was put into the instrument to enable laws duly enacted by the law-making power the people through the national Legislature to of the people than can the people themselves perpetuate the legislative department of their exist without air or without that bright heaven own Government in the event of the defection which bends above us filled with the life-giving of the State Legislatures; and we are to be breath of the Almighty. A Constitution and told here, and we are to deliberate upon it from laws which are not and cannot be enforced are day to day and from week to week, that the dead. The vital principle of your Constitution President of the United States is, by virtue of and laws is that they shall be the supreme law his executive office and his executive preroga- of the land-supreme in every State, supreme tive, clothed with the authority to determine in every Territory, supreme in every rood of the validity of your law and to suspend it and the Republic, supreme upon every deck covered dispense with its execution at pleasure. by your flag, in every zone of the globe. And Again, a President of the United States to yet we are debating here to-day whether a man execute the laws of the people enacted by their whose breath is in his nostrils, the mere serRepresentatives in Congress assembled, can- vant of the people, may not suspend the exe 800 cution both of the Constitution and of the laws That common-law offenses are indictable in at his pleasure, and defy the power of the the District has been settled by the courts of people. The determination, Senators, of all the District and by the Supreme Court. In the these questions is involved in this issue, and United States vs. Watkins, 3 Cranch, the cirit is for the Senate, and the Senate alone, to cuit court of the District ruleddecide them and to decide them aright. "In regard to offenses committed within this part I have dwelt thus long upon this point be- of the District the United States have a criminal cause it underlies the whole question in issue common law and the court has criminalecommon-law here between the President and the people, jurisdiction." and upon its determination the decision of the And in the case of the United States vs. Kenwhole issue depends. If I am right in the dall, before referred to in 12 Peters, 614, the position that the acts of Congress are law, court ruled: binding upon the President and to be executed " That the common law as it was in force in Maryby him until repealed by Congress or actually land when the cession was made remained in force reversed by the courts, it results that the will- in the District." ful violation of such acts of Congress by the It is clear that the offenses charged in the President and the persistent refusal to execute articles, if committed in the District of Columthem is a high crime or misdemeanor, within bia, would be indictable, for at the common the terms of the Constitution, for which he is law an indictment lies for all misdemeanors impeachable, and of which, if he be guilty, he of a public evil example, for neglecting duties ought to be convicted and removed from the imposed by law, and for offenses against comoffice that he has dishonored. It is not need- mon decency, 4 Bacon's Abridgement, page ful to inquire whether only crimes or misde- 302, letter E. meanors specifically made such by the statutes This is all, Senators, that I deein it importof the United States are impeachable, because ant at present to say upon the impeachable by the laws of the United States all crimes character of the offenses specified in the artiand misdemeanors at the common law, corn- cles against the President further than to remitted within the District of Columbia, are mark that although the question does not arise made indictable. I believe it is conceded on upon this trial for the reasons already stated, every hand that a crime or misdemeanor made a crime or misdemeanor committed by a civil indictable by the laws of the United States, officer of the United States not indictable by when committed by an officer of the United our own laws or by any laws, has never yet States in his office, in violation of his sworn been decided not to be impeachable under the duty, is a high crime and mEsdemeanor within Constitution of the United States; nor can the meaning of the Constitution. At all events, that question ever be decided save by the Senif that be not accepted as a true and self-evident ate of the United States. I do not propose to proposition by Senators, it would be in vain waste words, if the Senate please, in noticing that I should argue further with them. And I what but for the respect I bear him I would might as well expect to kindle life under the call the mere lawyer's quirk of the learned ribs of death as to persuade a Senate, so lost counsel from Massachusetts upon the defense to every sense of duty and to the voice of rea- [Mr. Curtis] that even if the President be son itself, which comes to the conclusion that guilty of the crimes laid to his charge in the after all it is not a high crime and misde- articles presented by the House of Representmeanor under the Constitution for a President atives, they are not high crimes and misdeof the United States deliberately and purposely, meanors within the meaning of the Constituin violation of his oath, in violation of the plain tion, because they are not kindred to the great letter of the Constitution that he shall take care crimes of treason and bribery. It is enough, that the laws be faithfully executed, to set the Senators, for me to remind you of what I have laws aside and defiantly declare that he will already said that they are crimes which touch not execute them. the nation's life, which touch the stability of Senators, I refer in passing, without stop- your institutions; they are crimes which, if ping to read the statute, for I believe it was tolerated by this highest judicial tribunal in read by my associate, [Mr. Manager BOUT- the land, vest the President by solemn judgWELL,] to the act of February 27, 1801, (2 ment with the power under the Constitution to Statutes-at-Large, 103, 104,) which declares suspend at pleasure all the laws upon your that the common law as it existed in Maryland statute'book, and thereby overturn your Govat the date of the cession shall be in force in the ernment. They have heretofore been held District. I refer also to 4 Statutes-at-Large, crimes, and crimes of such magnitude that page 450, section fifteen, which declares that they have cost the perpetrators their lives-not all crimes and offenses not therein specific- simply their offices, but their lives. Of this I ally provided for shall be punished as there- may have more to say hereafter. tofore provided, referring to the act of 1801. But I return to my proposition. The defense I refer also to 12 Statutes-at-Large, page 763, of the President is not whether indictable section three, which confers jurisdiction to crimes or offenses are laid to his charge, but try all these offenses upon the courts of the it rests upon the broad proposition, as already District. said, that impeachment will not lie against him 801 for any violation of the Constitution and laws invested the President with the power to guard because of his asserted constitutional right to the people's rights against congressional enjudicially interpret every provision of the Con- croachments. You remember that as he prostitution for himself, and also to interpret for gressed in his argument he ventured upon the himself the validity of every law and execute further assertion in the presence of the Senate or disregard upon his election any provision of the United States, and so you will find it of either the Constitution or the laws, espe- written doubtless in the report, that if you cially if he declare at or after the fact that his dared-to decide against the President upon this only purpose in violating the one or the other issue, the question would be raised beibre the was to have a true construction of the Consti- people under the banner of the supremacy of tution in the one case and a judicial determ- the Constitution in defense of the President, ination of the validity of the law in the other, and the omnipotence of Congress upon the in the courts of the United States. other; the supremacy of the Constitution would That I do not state this as the position of be the sign under which the President was to the President too strongly, I pray Senators to conquer against the omnipotence of Congress notice what I now say, for I would count my- to bind him by laws enacted by themselves in self a dishonored man if purposely here or the mode prescribed by the Constitution. elsewhere I should misrepresent the position Senators, I may be pardoned for summoning assumed by the President. The counsel for the learned counsel from Massachusetts as a the President [Mr. Curtis] in his opening at- witness against the assumption of his client, tempts to gainsay the statement as I have just and against the assumption of his associate made it, that the defense of the President rests counsel, touching this power of the President upon the assumption as stated in his answer. to dispense with the execution of the laws. In The counsel, in the opening, states, that-I 1862 there was a pamphlet issued bearing the quote his words from page 382, and they were name of the learned gentleman from Massaqualified by none of his associates who fol- chusetts touching the limitations upon execulowed him; the statement was considerately tivepowerimposedbythe Constitution. I read made; he meant precisely what he said, as from that pamphlet, and pledge myself to profollows: duce the original, so that it may be inspected "But when, Senators, the question arises whether by the Senate. I regret that my reporter has a particular law has cut off a power confided to him not brought it into the court. It shows the (the President) by the people through the Constitu- tion, and he alone can raise that question, and he difference between the current of a learned alone can cause a judicial decision to come between man's thoughts when he speaks for the people the two branches of the Government to say which and according to his own convictions, and the of them is right, and after due deliberation, with the thd according to his own convictions and the advice of those who are his proper advisers,hesettles thoughts of the same learned man when he down firmly upon the opinion that such is the char- speaks for a retainer: acter of the law"- " Executive Power," by B. R. Ctrtis: Cambridge, 1862. That is to say, that it is unconstitutional, "Dedicated-" To all persons who have sworn to that it cuts off a power confided to him by the supoort the Constitution of the United States, and to all citizens who value the principles of civil liberty people- which that Constitution embodies, and for the preser"it remains to be decided by you whether there is vation of which it is our only security, these pages any violation of his duty when he takes the needful are respectfully dedicated"-by the Author. steps to raise that question and have it peacefully "The President is the Commander-in-Chief of the decided in the courts." Army and Navy, not only by force ofthe Constitution, as, Senators, in all candor, if the President but under and subject to the Constitution, and to I ask, Senators, ill all candor, if the President every restriction therein contained, and to every law of the United States, by force of the Consti- enacted by its authority, as completely and clearly tutjon, as the learned counsel argue, is vested as the private in the ranks. He is General-in-Ohief,, bat can a General-in-Chief disobey any law of his ow~n with judicial authority thus to interpret the country? When he can he superadds to his rights as Constitution and decide upon the validity of commander the powers of a usurper, and that is mil — any law of Congress upon this statement of try despotism," * * * "themereathority to command an army is not an authority to disobey counsel as I have just read it from the report the laws of the country." now beforeyou and upon your tables, what is The President has only executive power, not there to hinder the President from saying this legislative, notjudicial. The learned counsel has of every law of the land; that it cuts off some learned that word " judicial " after he entered power confided to him by the people? upon the defense of the President. I may be Senators, the learned gentleman from Mas- pardoned in saying that I lay nothing to his sachusetts was too self-poised; he is, mani- charge in this. HIe bore himself bravely and festly, too profound a man to launch out upon well in the presence of this tribunal. He disthis wild, stormy sea of anarchy, careless of charged his duty and his whole duty to his client. all consequences, in the manner in which some If he has even changed his mind he had a right of his associates did. You may remember- to change it in the interests of his client; but and I quote it only from memory, but it is I have a right to have him bear witness in the burned into my brain, and will only perish interests of the people and in support of the with my life-you remember the utterance of Constitution of my country. I therefore read the gentleman from New York, not so careful further from him: of his words, who before you said, in the pro- "Besides all the powers of the President are execgress of his argument, that the Constitution had utive merely. He cannot make a law. He cannot C. I.-51. 802 repeal one. He can only execute the laws. He can Senators, on this question of the magnitude neither make nor suspend nor alter them. He can- and character of these offenses charged against not even make, an article of war." the President I shall be permitted, inasmuch That is good law. It was not good law in as the counsel from New York thought it i'mthe midst of the rebellion, but it is good law, portant to refer to it, to ask your attention to nevertheless, under the Constitution, in the what was ruled and settled, and I think well light of the interpretation given to it by that settled, on the trial of Judge Peck. The coungreat man, Mr. John Quincy Adams, whom I sel took occasion to quote, as you may remembefore cited. When the limitations of the Con- ber, a certain statement from the record of stitution are operative, when the whole land is that trial, but took special pains to avoid any covered with the serene light of peace, when statement of what was actually settled by it. everyhuman being, citizen and stranger, within I choose to have the whole of the authority. your gates is under the shelter of the limitations If the gentleman insists upon the law in this of the Constitution, it is the very law and noth- case, I insist upon all the forms and upon all ing but the law. its provisions. In the trial of Peck, from which Now, Senators, that this alleged judicial I read on page 427, Mr. Buchanan, chairman executive power of the President to suspend of the Managers on the part of the House of at his discretion all the laws upon your statute- Representatives, made the statement thatbook and to dispense with their execution is "An impeachable violation of law may consist in the defense and the whole defense of this Pres- the abuse as well as in the usurpation of authority." ident seems to me clear-clear as that light of Subject, if you please, to the limitations of heaven in which we live, and so clear, what- your own law that the abuse and the usurpaever may be the decision of this tribunal, that tion, as is clearly the fact here in the capital, it will be apparent to the judgment of the are indictable. I venture to say, Senators, if American people. It cannot be otherwise. It you look carefully through that record you is written in his answer. It is written in the will find none of the learned gentlemen who arguments of his counsel printed and laid upon appeared in behalf of Judge Peck questioning your tables. No mortal man can evade it. It for a moment the correctness of the proposiis all there is of it; and to establish this asser- tion. The learned and accomplished and lation that it is all there is of it I ask Senators mented ex-Attorney General of the United to consider what article the President has States, Mr, Wirt, who appeared on that trial, denied? Not one. I ask the Senate to con- admitted it. There seemed to have been no sider what offense charged against him in the question in the Senate upon the subject against articles of the House of Representatives he has it. I think Mr. Buchanan was most happy in not openly by his answer confessed or is not his statement of the law in declaring that it clearly established by the proof? Not one. may consist in an abuse of power and may Who can doubt that while the Senate was in consist in a usurpation of authority. For the session the President, in direct violation of purposes of this case I think it capable of the express requirement of the law, which, in the clearest demonstration that this is the the language of his honor, the Chief Justice, in rule which ought to govern its decision, inasthe Mississippi case, left no discretion in him, mach as all the offenses charged, when comenjoined a special duty on him, did purposely, mitted within the District, as already shown, deliberately, violate the law and defy its au- are indictable. thority, in that he issued an order for the re- It is conceded that there is a partial excepmoval of the Secretary for the Department of tion to this rule, and that exception furnishes War and issued a letter of authority for the all the law which has appeared in this case, appointment of a successor, the Senate being so far as I have been able to discover, in the in session and not consulted in the premises? defense of the Executive. It is an exception, The order and the letter of authority are writ- however, made exclusively in the interests of ten witnesses of the guilt of the accused. They judicial officers. The rule is well stated in are confessions of record. There is no escape 5 Johnson, 291, by Chancellor Kent, in the case from them. of Yates vs. Lansing. I read from that auIf this order is a clear violation of the tenure- thority: of-office act, if the letter of authority is also a "Judicial exercise of power is imposed upon the clear violation of the tenure-of-office act, the courts, and they must decide and act according to President is maniifestly gnilty, in manner and i their Judgment, and therefore the law will protect form, as he stands charged in the first, the sec- H adds: ond, the third~ the eighth. and the eleventh He adds: ond, the third, the eighth, and the e event'"The doctrine which holds a judge exempt from a articles of impeachment; and no man can gain- civil suit or indictment for any act done or omitted say it except a man who accepts as law the as- to be done by him sitting as judge has a deep root sumption of his answer that it is his executive in the common law. Itis to be found in the earliest judicial records, and it has been steadily maintained prerogative judicially to interpret the Consti- by an undisturbed current of decisions in the English tution for himself; to set aside, to violate, and courts amid every change of policy and through every to defy the law when it vests no discretion in revolution of their Government." him whatever, and challenge the people to A judge manifestly, upon this authority, actbring him to trial and judgment. ing within his general authority, cannot be held 803 toanswerfor an errorofjudgment. Hewould it is within the compass of the mind of any only be impeachable, however erroneous his Senator within the hearing of my voice to say judgment might be, for an abuse, for a usurp- it should not be so. Chancellor Kent says ation of authority great in itself, and it must upon that subject, page 529: be specially averred, and must be proved as "The distinction between statutory offenses which averred. No such rule ever was held to apply, are mala prohibita only, or mala in se, is now exsince the courts first sat at Westminsteri, to an ploded, and a breach of the statute law in either case executive officer. It is an exception running is equally unlawful and equally a breach of duty." through all the law in favor of judicial officers. The Senate will remember the very curious A mere executive officer clothed with no judi- and ingenious use that the gentleman attempted cial authority would be guilty of usurpation to make of this statement of his, and that was without the averment of corruption. I beg to that it cannot be possible that you are to hold say that it has never been averred, or held these acts of the President criminal by force necessary if averred, in any authoritative case of the act of 1801 which, by relation simply, against any executive officer whatever. An makes common-law offenses indictable crimes error of judgment would not excuse him. I within the District of Columbia; that was refer to the general rule of law on this subject not the only use, but that was a part of it as stated by Sedgwick in his work on statutory and he went on to say to the Senate further and constitutional law, in which he says: that he could not see the force of the remark " Good faith is no excuse for the violation of stat- made by my cblleague, [Mr. BOUTWELL,] that utes. Ignorance of the law cannot be set up in de- the President of the United States in this letter fense, and this rule holds good in civil as well as in of authority by the appointment ad interim of criminal cases."-1 Sedgwick, 100. Lorenzo Thomas in the presence of the SenMr. CONNESS. Mr. President, I should ate, during its session, without its advice and like to ask the Manager whether he feels able consent, twelve days after the expiration of to go on further to-day or not? I make the the six months limited by the provisions of the suggestion to him. act of 1795, could be held a criminal act. The Mr. Manager BINGHAM. I am at the defense of the President in some sort rested pleasure of the Senate. I will be able to pro- on the provisions of that law which authorized ceed, if it be the pleasure of the Senate, for him to supply avacancyin the several Departhalf an hour or so more with this argument; ments for a period not exceeding six months. but I abide the pleasure of the Senate, and Well, I will try to explain it here if I may be will defer to whatever may be their wishes pardoned in case I should happen to refer to about it. it again in the progress of my argument. Several SENATORS. Go on I Go on I It is explained by this simple word, that the Mr. Manager BINGHAM. Senators, at this act of 1795, under which he attempts in his point of the argument the gentleman from distress to shelter himself, says that no one New York, speaking for the President, know- vacancy shall be so supplied for a longer period ing that the rule as I have read it from Sedg- than six months; he did supply it, according wick is the rule of universal application to to the very words of his answer, for he tells you executive officers and to all officers save ju- he made a vacancy indefinitely when he susdicial officers, that ignorance of the law can pended Edwin M. Stanton, Secretary of War; never be interposed as an excuse either in he says in his answer it was an indefinite suscivil or criminal proceedings for the deliberate pension, not simply for six months, but durviolation of the law, entered upon a wonder- ing the time he might occupy the executive ful adventure when he undertook to tell the power in this country. He indefinitely susSenate of the United States-I really thought pended him, hesays, underthe Constitution and it was a slip of the tongue, for I have great laws; and he tells you further, ia the same anrespect for his learning, and I could not but swer, that under the act of 1795 he supplied the think he knew.better-but he intimated that vacancy. That act told him he should not supthis rule, which holds the violator of law an- ply it for a longerperiod than six months, unless swerable and necessarily implies the guilty it results that at the end of every six months purpose and the guilty intent from the fact of he may supply it again and the statute thereby its violation, was a rule that was restricted to be repealed, supply it to the end of the time offenses mnala in se. The gentleman ought to allotted him under the Constitution to execute have known when he made that utterance that the office of President of the United States. I the highest writer upon the law in America, wouldlike some Senator, in your deliberations, and second to no writer upon the law who to make answer to that suggestion andsee how writes in the English language in any country, it can be got rid of. He makes a vacancy has truly recorded in his great commentaries indefinitely; he appoints General Grant Secreupon the laws that the distinction between tary of War ad interim; at the end of six mala prohibita and mala in se is long ago ex- months, and twelve days after the expiration ploded, and the same rule applies to the one of six months, in utter defiance of the law of as to the other. I refer to 1 Kent's Comment- 1795, he makes another appointment; and at aries, page 529, and really I cannot see why the end of that six months and twelve days it should not be so. I doubt very much whether after, if you please, in further defiance of it, 804 he makes another, and so on until the end of ruled that you cannot try them by impeachthe time during which he may exercise the office ment, and of course when a majority vote that of President, while the law itself expressly de- -way in each House you can hardly expect to dares that no vacancy shall be so supplied for expel them. Their only responsibility is to a longer period than six months. I think the the people, and the people alone have the right gentleman from New York could have seen it to challenge them. That is precisely what the but for the interest he felt in the fate of his people have written in the Constitution, and client. That is my impression, and everybody every man in this country so understands it. else can see it in this country. Senators. I may make another remark which But it has been further said, by way of illus- shows here the utter fallacy of.any such positration and answer to all this, said by the coun- tion as that interposed by the counsel, and sel for the President, " Suppose the Congress that is, that the Congress which would be so of the United States should enact a law in clear lost to all sense of justice and duty as to take violation of the express power conferred upon away the pardoning power from the Executive the President, as, for example, a law declaring in any case whatever have it in their power to that he shall' not be Commander-in-Chief of take away any appeal to the courts of justice the Army, a law declaring that he shall not in the United States upon that question, so that exercise the pardoning power in any case what- there would be an end to it, and there would ever, is not the President to intervene and pro- be no remedy but with the people, unless, intect the Constitution?" I answer, no; not by deed, the President is to take up arms to set repealing the laws. The President is not to aside the laws of the Congress of the United intervene and protect the Constitution against States. The Constitution of your country is the laws. The people of the United States are no such weak or wicked invention. the guardians of their own honor, the pro- Having disposed of this proposition, Sentectors of their own Constitution, and if there ators, the next inquiry to be considered before be anything in that Constitution more clearly the Senate, and to which I will direct their written and defined and established than attention, is, has the President power under another, it is the express and clear provision the Constitution to remove the heads of Dethat the legislative department of this Govern- partments and fill vacancies so created during ment is responsible to no power on earth for the session of the Senate of the United States the exercise of their legislative authority and without its consent, without and against the the discharge of their duties during the sessions express authority of law? If he has not this of the Congress save to the people that ap- power he is confessedly guilty as charged. If pointed them. It is a new doctrine altogether he has, of course he ought to go acquitted as that the Constitution is exclusively in the keep- charged in the first, second, and third articles. ing of the President. When that day comes, Mr. CONNESS. I move that the Senate, Senators, that the Constitution of your coun- sitting as a court, adjourn until to-morrow. try, so essential to your national existence and Mr. Manager BINGHAM. I shall be very so essential to the peace, the happiness, and glad, indeed, for that courtesy. the prosperity of the people, rests exclusively The motion was agreed tb; and the Senupon the fidelity and patriotism and integrity ate, sitting for the trial of the impeachment, of Andrew Johnson, may God save the Con- adjourned. stitution and save the republic from its defender I No, sirs; there is no such power TUESDAY, May 6, 1868. vested in the President of the United States. It is only coming back to the old proposi- The Chief Justice of the United States took tion. the chair. Why, say the gentlemen, surely it would be The usual proclamation having been made unconstitutional for Congress so to legislate. by the Sergeant-at-Arms, Agreed, agreed; I admit that it would be not The Managers of the impeachment on the only unconstitutional, but it would be criminal. part of the House of Representatives and But the question is, before what tribunal is the Messrs. Evarts, Groesbeck, and Nelson, of Congress to answer? Only before the tribunal counsel for the respondent, appeared and took of the people. Admit that they did it cor- the seats assigned to them respectively. ruptly, admit that they did it upon bribe; and The members of the House of Representayet every man at all conversant with the Con- tives, as in Committee of the Whole, preceded stitution of the country knows well that it is by Mr. E. B. WASHBURNE, chairman of that written, in that instrument that members. of committee, and accompanied by the Speaker Congress shall not be held to answer in any and Clerk, appeared and were conducted to other place or before any body whatever for the seats provided for them. their official conduct in Congress assembled The Journal of yesterday's proceedings of save to their respective Houses. That is the the Senate, sitting for the trial of the impeachend of it. They answer to the people, and the ment, was read. people alone can apply the remedy, and of The CHIEFJUSTICE. Mr. Manager BISacourse ought to apply'it. You cannot make HAM will proceed with the argument in behalf them answer in the courts. You have had it of the House of Representatives. 805 Mr. Manager BINGHAM. Mr. President and rule, a rule not to be challenged here or elseSenators, 1 would do injustice, Senators, to where among intelligent men, that every permyself; I would do injustice to the people son, whether in office or out of office, who whom I represent at this bar, if I were not to commits an unlawful act made criminal by the acknowledge, as I do now, my indebtedness to very terms of the statute of the country within honorable Senators for the attention which they which he lives and to the jurisdiction of which gave me yesterday while I attempted to demon- he is subject intends all that is involved in the strate to the Senate in behalf of the people doing of the act, and the intent laid, therefore, of the United States, that no man in office or is established. No proof is required. Why? out of office is above the Constitution or above To require it would simply. defeat the ends of the laws; that all are bound to obey the laws; justice. that the President of the United States, above Who is able to penetrate the human intelall other officials in this country, is bound to lect, to follow it to its secret and hidden re. take care that the laws be faithfully executed; cesses in the brain or heart of man, and bear and especially that the suspending power and witness of that which it meditates and which the dispensing power asserted by the President it purposes? Men, intelligent men, and esendangers the existence of the Constitution, pecially the ministers of justice, judge of men's is a violation of the rights of the people, and purposes by their acts, and necessarily hold cannot for a moment be tolerated. that they intend exactly that which they do; When I had the honor to close my remarks and it is for them, not for their accusers, to yesterday, I stated to the Senate that their in- show that they did it by misadventure, to show quiry would be directed first to the question that they did it under a temporary delirium of whether the President has the power under the the intellect by which in the providence of God Constitution to remove the heads of Depart- they were for the time being deprived of the ments and fill vacancies so created by himself power of knowing their duty and of doing their during the session of the Senate in the ab- duty under the law. sence of an express authority of law author- Senators, upon a memorable occasion not izing him so to do. If the President has not unlike this which to-day attracts the attention this power, he is confessedly guilty, as charged of the Senate, and attracts the attention of the in the first, second, third, eighth, and eleventh people of the United States, and attracts the articles; unless, indeed, the Senate is to come attention of the civilized world, the same questo the conclusion that it is no crime in the tion was raised before the tribunal of the peoPresident of the United States deliberately ple whether intent was to be established, and and purposely and defiantly to violate the ex- one of those men on that occasion, when Earl press letter of the Constitution of the United Strafford knelt before the assembled majesty States and the express prohibition of the stat- of England, arose in his placp and answered utes of the Congress. I have said that the act that question in words so clear and strong that was criminal if it was done deliberately and they ought to satisfy the judgment and satisfy purposely. What answer has been made to the conscience of every Senator. I read the this, Senators? That the allegation is found words of Pym on the trial of Strafford, as to in these articles of the criminal intent, and the intent: learned counsel have stood here before the Sen- "Another excuse is this, that whatsoever he hath ate arguing from hour to hour and from day to spoken was out of good intention. Sometimes, my day to show that a criminal intent is to be lords, good and evil, truth and falsehood lie so near is a *.. together that they are hardly to be distinguished. proved. I deny-it. I deny that there is any Matters hurtful and dangerous may be accompanied authority which justifies any such statement. with such circumstances as may make them appear The law declares, and has declared for cen- useful and convenient; and, in all such cases, good intention will justify evil counsel; but where the turies, that any act done deliberately in viola- matters propounded are evil in their own nature, tion of the law; that is to say, any unlawful such as the matters are wherewith the Earl of Strafact done by any person of sound mind and ford is charged-as to break a public faith, and to subvert laws and government-they can never be understanding, and responsible for his acts, justified by any intentions, how good soever they be necessarily implies that the party doing it in- pretended." tended the necessary consequences of his own Is there no endeavor here " to break public act. I make no apology, Senators, for the faith?" Is there no endeavor here "to subinsertion of the word " intent" in the articles. vert laws and Government?" I leave Senators I do not treat it as surplusage. It was not to answer that question upon their own conneedful; but I make no apology for it. It is science and upon their oaths. found in every indictment; and who ever heard On this subject of intent I might illustrate of a court where the rules are applied with the utter futility of the position assumed here more strictness than they can be expected to by the learned counsel, by a reference to a be applied by the Senate of the United States, memorable instance in history when certain demanding of the prosecutor, in any instance fanatics, under the reign of Frederick II, put whatever, that he should offer testimony of the little children to death with the intent of sendcriminal intent specially averred in the indict- ing them to heaven, because the Master had ment, when he had proved that the act was written, " Of such is the Kingdom." It does done and the act done war- unlawfui? It is a not appear that this good intent of slaying the 806 innocents, with their sunny faces and sunny to notice it hereafter more specifically and hearts, that they might send them at once to especially, I ask you to pardon me for referheaven,was of any avail in the courts of justice. ring to it here at this time, it cannot have I read also of a Swedish minister who found escaped your notice that the learned and astute within the kingdom certain subjects who were counsel for the President took care all the the beneficiaries of a charity, upon whose while from the beginning to the end of this heads Time, with its frosty fingers, had scat- controversy not to connect the two powers of tered the snows of five and seventy winters, removal and appointment during the session whom he put brutally and cruelly to death, of the Senate in their presence and without with the good intent of thereby increasing the their consent together. trust in the interest of the living who had a Every line and word of the voluminous argulonger measure of days before them. I never ments uttered by the very learned and ingenread, Senators, that any such plea as that ious counsel of the President bears witness to availed in the courts of justice against the the truth of that which I now assert. Why was charge of murder with malice aforethought. this? Simply, Senators, as I shall presently I dismiss this subject. It is a puerile con- show you, that the appointing power is by the ceit, unfit to be uttered in the hearing of Sen- express terms of the Constitution, during the ators, and condemned by every letter and line session of the Senate, put beyond the power of and word of the common law, " the.growth of the President, save and except where it is excenturies and the gathered wisdom of a thou- pressly authorized by law. I thank the gentlesand years." men for making this concession, for it is a conIt is suggested by one of my honorable col- fession of guilt on the part of their client. leagues, [Mr. WILLIAMS,] and it' is not unfit When no answer could be made they acted that I should notice it in passing, that doubt- upon the ancient, time-honored, and accepted less Booth, on the 14th day of April, 1865, maxim that silence is gold, and so upon that when he sent the pure spirit of your martyred point they were silent one and all without exPresident back to the God who gave it, thought, ception. There was an appointment made here declared, if you please —" declared" is the in direct violation of express law; in direct proper word-declared that he did that act in violation of the express letter of the Constituthe service of his country, in the service of tion; in direct violation of every interpretation liberty, in the service of law, in the service of that has ever been put upon it by any comthe rights of a common humanity. If the manding intellect in this country, and the genavenging hand of justice had not cut him off. tlemen knew it. upon the spot where he stood/ instantly, as It is in vain, Senators, that they undertake though overtaken by the direct judgment of to meet that point in this case by any reference offended Heaven, I suppose we should have to the speech of my learned and accomplished had this sort of argument interposed in his friend who represents the State of Ohio upon behalf that his intentions were good, and there- the floor of the Senate, [Mr. SHERMAN.] Not fore the violated law itself ought to justify his a word escaped his lips in the speech which act and allow him to go acquit, not a condemned they have quoted here touching this power of criminal, but a crowned and honored man. appointment during the session of the Senate I really feel, Senators, that I ought to ask and in direct violation of the express letter of your pardon for having dwelt upon this prop- the tenure-of-office act, nor did any such word osition; but you know with what pertinacity it escape from the lips of any Senator. I am not has been pressed upon the consideration of surprised; it does credit to the intellectual Senators, and, with all respect to the learned ability of the learned gentlemen who appear for and accomplished gentlemen who made it, I the President that they kept that question.out deem it due to myself to say here that I think of sight in their elaborate and exhaustive arguit was unworthy of them and unworthy of the ments. I read for the Senators the provision place. of the Constitution upon this subject which I I return, Senators, to my proposition: has read yesterday: the President the power under the Constitu- "ThePresident" * * * "shallnomtion and the laws during the session of the inate,.and by and with the advice and consent of Senate to create vacancies in the heads of the Senate shall appoint, embassadors, other public Departments under your Constitution, and fill ministers and consuls, iudges of the Supreme Court, and all other officers of the United States Whose apthem without the authority of express law and pointments are not herein otherwise provided for, without the advice or consent of the Senate? and which shall be established by law. hut the Conf grhe haess may by law vest the appointment of such infeIf he has not, he has violated the Constitution, rior officers as they think proper in the President and he has violated, as I shall show hereafter, alone, in the courts of law, or in the heads of Departthe express law of the land, and is therefore ments." criminal-criminal in his conduct and in his Can any one doubt that this provision clearly intention before the tribunal where he stands restricts the power of the President over the arraigned by order of the people. appointment of heads of Departments in this, First, then, is the Constitution violated by that'it expressly requires that all appointments this act of removal and appointment? And not otherwise provided for in this Constitution, here, Senators, although I may have occasion enumerating embassadors and others, shall be 807 by and with the advice and consent of the Sen- In the answer, on pages 25 and 26 of the record, ate? It is useless to waste words upon the this will be found recorded in it: proposition. It is plain and clear. It must "And this respondent, further answering, says, be so unless the appointments of the heads of that it is provided in and by the second section of Depanrtents, in the words of the Constitution, an act to regulate the tenure of certain civil offices, Departments, in the words of the Constitution, ] that the President may suspend an officer from the are otherwise provided for; and I respectfully performance of the duties of the office held by him, ask Senators wherein are they otherwise pro- for certain causes therein designated, until the next vided for in the Constitution? The heads of meeting of the Senate, and until the case shall be acted on by the Senate; that this respondent, as Departments are named by that title, and by President of the United States, was advised, and he the very terms of the Constitution it is pro- verily believed and still believes, that the executive v~ided that the Congress may by law vest in power of removal from office confided to him by the iin Constitution, as aforesaid, includes the power of susthe heads of Departments the power to appoint pension from office at the pleasure of the President, without the consent of the President, without and this respondent, by the order aforesaid, did susthe consent of anybody but the authority of a pend the said Stanton from office, not until the next meeting of the Senate, or until the Senate should law of Congress, all inferior officers. Is any have acted upon the case, but by force of the power man, in the light of this provision, to stand and authority vested in himn by the Constitution and before the Senate and argue that heads of De- lawsofthe United States, indefinitely and at the pieaspartments are inferior officers? If, then, their That is his answer. Uinder the Constitution appointment is not otherwise provided for in he claims this power. On that subject, Senathe Constitution, which I take for granted, I tors, I beg leave to say, in addition to what I ask the Senate whether their appointment s have already uttered, that it was perfectly well otherwise provided for by law, whether it was understood when the Constitution was on trial ever otherwise provided for by law?. for its deliverance before the American people I am not unmindful of the fact, in passing, that no such power as this was lodged in the that some of the learned counsel for the Pres- President of the United States; on the conident said;" here was no appointment; this trary, that for every abuse of power, for every was only an authority to fill a vacancy." The | usurpation of authority, for every violation of counsel are not strong enough for their client. the Constitution and the laws, he was liable They cannot get rid of his answer. He de- at a1 times to that unrestricted power of the dares that he did malke an appointment in- ipeople to impeach him through its Representdefihitely, made a removal and filled it, and atives and to try him before its Senate without followed it with another. The words "ap- letorhinderancefrom anytribunalinthe land. pointment ad interim " more than once unwit- I refer upon this point to the clear utterance tingly escaped the lips of the counsel. But I of Hamilton as recorded in the seventy-sevdo not propose to rest this case upon any quib-enth number of the Federalist: bles, upon any technicalities, upon any contro- " It has been mentioned as one of the advantages versy about words. I rest it upon the broad to be expected from the coiiperation of the Senate, spirit of the Constitution, and stand here this in the business of appointments, that it would conday to deny that there ever was an hour since | tribute to the stability of the Administration. The:,>.... ~~~~~~I consent of that body would be necessary to displace as the Constitution went into operation that the well as to appoint. A change of the Chief Magistrate, President of the United States had authority Itherefore, would not occasion so violent or so general a revolution in the officers of the Government as to authorize anybody, temporarily even, to might be expected if he were the sole disposer of exercise the functions of a head of a Depart- offices. Where aman in any station had given satisment of this Gl~overnment save by the authority i:factory evidence of his fitness for it, a new President ofer law Is svrnmely savy sel ethpro would be restrained from attempting a change in of expresslaw. It issurelya selfevitlentprop- favr of a person more agreeable to him,' by the o4tion that must be understood by Senators apprehension that a discountenance of the Senate that the power which created the law may re- might frustrate the attempt, and bring some degree of discredit upon himself. Those who cail best estipeal it. mate the value of a steady administration Rill be I make this remark here and now because most disposed to prize a provision which connects the the President's defense, as stated in his answer official existence of public men with the approbamore cleary and distinctly than in any of the greetion or disapprobation of that body, which, from the more cleay and distinctly than in any of the greater permanency of its own composition, will in arguments of the learned counsel, is that he all probability be less subject to inconstancy than asserts and exercises this power by virtue of any other member of the Government. "To this union of the Senatewith the President, in the implied, unwritten executive prerogative the article of appointments, it has in some casesbeen judicially to interpret the Constitution for him- objected that it would serve to give the President an,self and judicially to determine the validity of undue influence'over the Senate; and in others that all the laws of the land for himself, and there- it would have an opposite tendency; a strong proof fore to appoint just such ministers as he pleases, "To state the first, in its proper form, is to refute at such times as he pleases, and for such periods it. It amounts to this: tle Presideitwould have an as he pleases, in deiance alike of the Constitu- improper influence over the Senate, because the as he pleases, in defiance alike of the Constiu- Senate would have the power bf restraining him. tion and of the laws. The language is that the This is an absurdity in terms." removal was indefinite. The language of his And I agree with Hamilton that it is an answer is that he indefinitely vacated the office, absurdity in terms after what has been written and filled it, of course, indefinitely, and that is in the Constitution of your country, for any his defense. There is no getting away from it. man, whatever may be his attainments, and 808 whatever may be his pretensions, to say that and see whether the gentlemen are justified the President has the power, in the language in attempting to infer either from the legislaof his answer, of indefinitely vacating all the tion of 1789 or from the legislation of 1795 or executive offices of this country, and indefi- from any other legislation which at any time nitely, therefore, filling them without the advice existed on the statute-books of this country, and consent of the Senate in the absence of an this executive prerogative, in direct violation express law authorizing him so to do. And, of the express letter of the Constitution, to vahere I leave that point for the consideration of cate all the executive offices of this Governthe Senate and for the consideration of that ment at his pleasure, and fill them during the great people whom the Senate represent upon session of the Senate, and thereby control the this trial. patronage of the Government, amounting to I ask, also, the judgment of the Senate upon millions upon millions, at his pleasure, and the weighty words of Webster, whom the gen- put it into the hands of irresponsible agents to tleman [Mr. Evarts] concedes is entitled to become only the supple tools of his mad ambisome consideration in this body, who illus- tion. trated for long years American institutions by Of this act of 1789 Mr. Webster well saidhis wisdom, his genius, and his learning; a and I am not here even to dispute the propoman who, when living, stood alone among liv- sition; indeed, I would hesitate long before I ing men by reason of his intellectual stature; ventured to dispute any proposition which he a man who, when dead, sleeps alone in his accepted for the time being as possible under tomb by the sounding sea, meet emblem of the Constitution-that he did not condemn the the majesty and sweep of his matchless intel- legislation of 1789 as being unconstitutionahl iect. I ask, Senators, attention to the words but he did condemn it as being highly impolof Mr. Webster on this appointing power con- itic, and which had subjected the people of ferred upon the President under the Constitu- this country to great abuses. He did say, tion, subject to these limitations, by and with however-and to these words I ask, also, the the advice and consent of the Senate: attention of the Senate-of the legislation of "The appointing power is vested in the President 1789, " that it did separate. the power of reand Senate; this is the genepal rule of the Constitu- It tion. The removing power is part of the appointing from the power of appointment." It power; it cannot be separated from the rest but by did separate it, subject to its own limitations. supposing that an exception was' intended; but all It did separate it, and confer it, too, by auexceptions to general rules are to be taken strictly, thority of that act and by no other authority. even when expressed; and, for a much stronger It is for this purpose, and for this purpose reason, they are not to be implied, when not ex-It is for this purpose, and for this purpose pressed, unless inevitable necessity of construction alone, that I cited Mr. Webster in this part of requires it."-4 Webster's Works. P. 194. 1the argument. "It was a grant of power to What answer, I pray you, Senators, has been the President," conferred upon him by the given, what answer can be given to these in- Congress to remove executive officers. I adterpretations of your Constitution by Hamilton mit, Senators, that during the recess of the and Webster? None, except to refer to the Senate such a statute ought to be always upon acts of 1789 and 1795, and the opinions ex- your statute-book so long as you have a Presipressed in the debates of the First Congress. dent who can be trusted. A man who is beNeither those acts nor the debates justify the traying his trusts ought to be suspended from conclusion that the President during the session his office, which is a temporary removal, for of the Senate may vacate and fillthe Executive reasons appearing to the President which jusDepartments ofthisGovernment athis pleasure, tify it; and that is precisely your law to-day. and without the advice and consent of the Sen- It is within the power of the Congress unate, in the absence of any express authority of doubtedly to confer it upon the President. law and in direct violation of the prohibitions That is your law to-day. pf the law. The acts themselves will bear no What one of the counsel now, I ask the Sen. such interpretation. I dismiss, with a single ate to consider, ventured to say here-if it was _word, all reference to the debate on theoccasion, uttered it certainly escaped my observation — for the Senate are not unadvised that there that the President of the United States at any were differences of opinion expressed in that time had power during the session of the Seni debate, nor is the Senate unadvised that it has ate to vacate the offices of the heads of the already been ruled from the Supreme Bench of Departments in this country even under the the United States that the opinions expressed 1acts of 1789 and fill them indefinitely at his by Representatives or Senators in Congress pleasure? What practice in the Government pending the discussion of any bill are not to be was cited here to support any such pretension received as any authoritative construction or of power in the Executive? None whatever. interpretation whatever to be given to the act. To be sure, reference was made to the case It would be a sad day for the American people of Pickering; but the gentlemen ought to reif the time should ever come when the utter- member that when reference was made to it, ances of excited debate are to be received ever so far as the removal was concerned, it was afterward as the true construction and inter- expressly authorized by the act of 1789; I pFetation of law. Senators, look to the acts, care not how informally; the words are in that 809 act " unless removed by the President;" it is the executive offices and fill them at his pleasa grant of power, and Webster so interprets ure, and dispels the mists with which counsel it on page 194 of the fourth volume of his have attempted to envelop it, and that is the works as an act of Congress which separated provision that the President shall have power the power of removal from the power of ap- to fill up all vacancies which may happen durpointment. His construction was right. Upon ing the recess of the Senate and to issue comthat construction I stand in this argument. missions to his appointees to fill such vacancies, But it does not follow by any manner of means which commissions shall expire at the end of because this power was exercised by the elder the next session of the Senate. I ask Senators Adams that he thereby furnished a precedent what possible sense is there in this express in justification of the violation of another and provision of the Constitution that the Presia different statute, which by every intendment dent shall have power to fill up all vacancies repealed the act of 1789 and stripped the which may happen during the recess of the President of any colorable excuse for asserting Senate, his commissions to expire at the end of any such authority. their next session; if after all, as is claimed in That is my first answer to this point made by *his answer Ald is asserted by his unlawful acts the counsel, and I make a still further answer under the laws of the United States, he is to it; and that is this, that the elder Adams invested by the Constitution with the powerto himself, as his letter to his Secretary of State make vacancies at his pleasure even during the clearly discloses, did not consider that it was session of the Senate? I ask Senators, furproper even under the law of 1789 for him to ther, to answer what sense is there in the promake that removal during the session of the vision that the commission which he may issue Senate, and therefore these significant words to fill a vacancy happening during the recess are incorporated in his letter of request to Sec- of the Senate shall expire at the end of their retary Pickering that he should resign befdre next session, if after all, notwithstanding this the session of the Senate, the resignation, of limitation of the Constitution, the President course, to take effect at a future day, so that may, during the session, create vacancies and upon the incoming of the Senate he might name fill them, in the words of his answer, indefa successor, showng exactly how he understood initely? If he has any such power as that, I the obligations of the Constitution. may be allowed to say here, in the words of Although the record, so far as I have been John Marshall, your Constitution at last is but able to trace it, is somewhat imperfect, I think a splendid bauble; it is not worth the paper itbutjusticeto the memory of that distinguished upon which it is written. It is a matter of patriot to declare that the whole transaction mathematical demonstration upon the text of justifies me in saying here, as my belief, in the this instrument, by necessary implication, that presence of the Senate, that he did not issue the President's power to fill vacancies is limthe order for the removal of Pickering after ited to vacancies that arise during the recess the Senate had commenced its session, It is of the Senate, save where it is otherwise protrue that he issued it on the same day, but he vided for by express provision of law. did not issue it after the Senate had commenced That is my answer to all that has been said its session; he issued it before; and upon the here by the gentlemen upon this subject. They assembling of the Senate and the opening of have brought a long list of appointments and the Senate on the same day, showing his respect a long list of removals from the foundation of for the Constitution and the laws and the obli- the Government to this hour, which is answered gation of his oath, he sent to that Senate the by a single word, that there was existing law name of' the successor of Pickering, John authorizing it all, and that law no longer exMarshall, and on the next day, Tuesday, John ists. Not a line or word or tittle of it exists Marshall, as Secretary of State, was confirmed since the 2d day of March, 1867; assuming in to succeed Timothy Pickering, removed by and what I say now, of course, that the tenure-of. with the advice and consent of the Senate. Nor office act is constitutional and valid, I refer to does it appear that John Marshall exercised those statutes; I shall not exhaust my strength the functions of his office, or attempted to ex- or the patience of the Senate by stopping to ercise the functions of office, until the Senate read them here and now, but I shall refer to had passed upon the question of his appoint- them in the report of my argument. Those ment, and therefore necessarily passed upon statutes are as follows: the question of the removal of Pickering. All "Act to provide for government of territory norththese facts arise in this case in the removal of west of river Ohio. Approved August 7, 1789. Pickering to disprove everything that has been "Be it enacted, &c., That in all cases in which by the said ordinance (for government of territory said here by way of apology or justification or northwest of river Ohio) any information is to be even of excuse of the action of the President given or communication made by the Governor of of the United States in violating the Constitu- the said Territory to the United States in Congress assembled, or to any of their officers, it shall be the tion and the existing laws of the country. duty of the said Governor to give such information But the other provision of the Constitution, and to make such communication to the President Senators, which I recited yesterday in your of the United States; and the President shall nominate, lnd by and with the advice and consent of the hearing, pours a flood of light upon this ques- Senate shall appoint, all officers who, by the said tion as to the power of the President to vacate ordinance, were to have been app ointed by the Uni 810 ted States in Congress assembled, and all officers so cies arising during the recess shall expire with appointed shall be commissioned by him; and in all the next session of the Senate; he may nevercases where the United States in Congress assem- theless create the vacancies during the session bled might by the said ordinance revoke any commission or remove from any office, the President is and fill them without your advice and consent, hereby declared to have the same powers of revoca- I reassert my proposition that such commission tion and removal."-1 Statutes, p. 50, sec. 1. cannot expire, if his assertion be true, without "Act to amend the act entitled'An act making the consent of the Executive; and if that propalterations in the Treasury and War Departments.' osition can be answered by any man, I desire it Approved February 13, 1795. to be answered now. I want to know by what "In case of vacancy in the office of Secretary of to be answered now. I want to kno by what State, Secretary of' the Treasury, or of the Secretary provision of the Constitution the commission of the De)partment of War, or of any officer of either expires upon the claim of this answer; and if it of the said Departments whose appointment is not does not expire without the consent of the Exin the head thereof; whereby they cannot perform the duties of their said respective offices, it shall be ecutive, I want to know what becomes of the lawful for the President of the United States, in case appointing power lodged jointly in the Senate he shall think it necessary, to authorize any person with the Executive for the protection of the or persons, at his discretion, to perform the duties people's rights and the protection of the peoof the said respective offices until a successor be appointed or such vacancy be filled: Provided, That ple's interests. It cannot be answered here or no one vacancy shall be supplied in manner afore- anywhere by a retained advocate of the Presisaid for a longer term than six months."-1 Statutes, dent or by a volunteer advocate of the Pres415; 1 Brightly's Digest, 225. dent or by a volunteer advocate of the President, in the Senate or out of the Senate. "An act to limit the term of office of certain officers I demand to know, again, what provision of therein named, and for other purposes. Approved the Constitution, under the claim set up is this May 15,1820. the Constitution, under the claim set up i this "From and after the passage of this act, all dis- answer, terminates the commission. I took trict attorneys, collectors of the customs, naval offi- occasion to read from the answer that I might cers and surveyors of the customs, navy agents, re- not be misunderstood. He puts it directly ceivers of publii moneysforlands, registersof theland upon the Constitution Nobody s to be held offices, paymasters in the Army, the apothecary gen- the Constitution. Nobody is to be held eral, the assistant apothecary general, and the com- responsible for it; and I am glad it is so, either missary general of purchases, to be appointed.under by intendment or otherwise-nobody is to be the laws of the United States, shall be appointed for hd l for s assumption but this the term of four years, but shall be removable from held responsible for this assumption but this office at pleasure."-3 Statutes, 582. guilty and accused President. It was an auda"An act'to regulate the diplomatic and consular city the like of which has no parallel in censystems of the United States. Approved August tures for him to come before the custodians 18, 1856. of the people's power and thus defy even their Section one regulates the appointment and com- written Constitution, its plainest text, and its pensation of consuls. plainest letter. " It belongs exclusively to the President, by and I have thought upon ths subject with the advice and consent of the Senate, to appoint Senators, thought upon this subject consular officers at such places as he or they deem carefully, considerately, conscientiously. I to be meet. They are officers created by the Consti- have endeavored to find anywhere within the tution and the laws of nations and by acts of Con- text of the Constitution any colorable excuse gress."-11 Statutes, 52, section 3; 1 Brightly, 174, Note text of the Constitution any colorable excuse a; (and see also the provision touching appoint- for this claim of power asserted by the Presiments.) dent and dangerous to the liberties of the If this provision of the Constitution, then, people, and I can find, from beginning to end means what it expressly declares, that the of that great instrument, no letter or word President's power of appointment in the ab- upon which even the astutest casuist could for sence of express law is limited to such vacan- a moment fasten, save the words that "the cies as may happen during the recess of the executive power shall be vested in'a PresiSenate, it necessarily results that an appoint-. dent." ment made during the session of the Senate, That gives no colorable excuse for this aswithout the advice and consent of the Senate, sumption. What writer upon your Constituof the head of a Department, in the absence tion, what decision of your courts, what utter-,of any law authorizing it to be made tempo- ances of all the great statesmen who have in rarily or otherwise, as did the act of 1795, is the past illustrated our history, have ever intiunconstitutional and unlawful; and that is my mated that this provision of the Constitution answer to all they have said on that subject. was a grant of power? It is nothing more, But that act of 1795 is repealed by your stat- Senators, and no man and no human ingenuity ute of 1867, as also by your act of 1863, as I can torture this provision of the Constitution shall claim. If the President may issue it, into anything more than a mere designation it must be a commission according to his own of the officer or person to whom shall be comclaim of authority, arising under this unlimited mitted, under the Constitution and subject to'executive prerogative, which can never expire its limitations and subject to the further limitbut by and with his consent; and if any man ations of the law enacted in pursuance of the can answer the proposition I should like to Constitution, the executive power of the Govhave it answered now. If, notwithstanding all ernment. Adopt the construction that it is a that is on your statute-books; if, notwithstand- grant of power, and why not follow it to its ing this limitation of your Constitution which I conclusions and see what comes of your Conhave read, that his commissions to fill vacan- stitution, and what comes of the rights of the 811 people, of their power to limit by a written faithfully executed; in this, that it declares onstitution every department of the Govern- that every billwhich shall have passed the Conment? Is it not as plainly written in the Con- gress of the United States with or without his stitution that "all legislative powers herein consent shall-be a law, to remain a law-and granted shall be vested in a Congress of the that is the very point in controversy here beUnited States, which shall consist of a Senate tween the President and the people-to be exeand House of Representatives?" Is anybody cuted as a law until the same shall have been to reason from that designation of the body to repealed by the power that made it or actually whom the legislative power is assigned a grant reversed by the Supreme Court of the United of power, and especially an indefinite authority, States in a case clearly within its jurisdiction to legislate upon such subjects as they please and within the limitations of the Constitution without regard to the Constitution? Is it not itself? also just as plainly written in the Constitution It has been settled law in this country from a that " the judicial power of the United States very early period that the constitutionality of a shall be vested in one Supreme Court and in lawshouldnotbequestionedmuchlessadjudged such inferior courts as the Congress may, from against the validity ofthe law. by a court clothed time to time, ordain and establish" by law? bytheConstitutionwithjurisdictioninthepremIs anybody thence to infer that this is an in- ises, unless upon a case so clear as to scarcely definitegrantof powerauthorizingtheSupreme admit of a doubt; and what is the result, SenCourt or the inferior courts of the United States ators? That there is not-I feel myself justito sit in judgment upon any and all conceiv- fied in saying it, without recently having very able questions, and even to reverse by their de- carefully examined the question-one clear, cisions the power of impeachment lodged ex- unequivocal decision of the Supreme Court of elusively in the House of Representatives and the United States against the constitutionality the judgment in impeachment authorized to of any law whatever enacted by the Congress be pronounced exclusively and only by the of the United States-not one. There was no Senate of the United States? such decision as that in the Dred Scott case. It will never do for any man to say that this Lawyers will understand, when I use the word provision of the Cbnstitution is a grant of " decision," what I mean-the judgment pros power. It is simply the designation of the nounced by the court upon the issue joined officer to whom the executive power of the upon the record. There was no such decision Government shall be committed under the lim- in that case, nor in any other case, so far as I itations of the Constitution and the laws, as can recollect. On this subject, however, I the Congress" is the designation of the may be excused for reading a decision or two department to which shall be committed the from our courts. In the case of Fletcher vs. legislative power, and as " the courts" is the Peck, 6 Cranch, page 87, Marshall, delivering designation of the department to which shall the opinion, said: be committed the judicial power; and upon "The question whether a law be void for it s rethis subject I refer, also, to what Mr. Webstei pugnancy to the Constitution is, at all times, a quessaid touching the limitations of the executive tion of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case," authority: "It is perfectly plain and manifest, that, although And again: the framers of the Constitution meant to confer exec- "The opposition between the Constitution and the utive power on thePresident, yetthey meant to define law should be such that the judge feels a clear and and limit that power, and to confer no more than strong conviction of their incompatibility with each they did thus define and limit. When they say it other." shall be vested in a President, they mean that one magistrate, to be called a President, shall hold the In exparte McCollum, 1 Cowen's Reports, executive authority; but they mean, further, that 564, Chief Justice Savage says: he shall hold this authority according to the grants "Before the court will deem it their duty to deand limitations of the Constitution itself."-4 Web- cldare an act of the Legislature unconstitutional a ster'8 Works, P. 186. case must be presented in which there can be no Does not the Constitution, Senators, define rational doubt." and limit the executive power in this, that it In Morris vs. The People, 3 Denio, 381, the declares that the President shall have power to the court say: grant reprieves and pardons, &c.; in this, that "The presumption is always in favor of the validit declares that the President shall have power ity of the law. if the contrary is not clearly demonto appoint by and with the advice and consent strated." of the Senate foreign embassadors and other I have read these, Senator~, not that it was public officers; in this, that it provides that he really necessary to my argument, butto answer shall have power to make treaties by and with the pretension of this President that he may the advice and consent of the Senate? And come here to set aside a law, and in order to does it not limit his power in this, that it de- justify himself assume the prerogative to do it dares that all legislative power shall be vested in. order that he may test its validity in the in a Congress which shall consist of a Senate courts of justice when the courts have never and House of Representatives; in this, thatit venttseduponthatdangerousexperimentthemdeclares that the President shall take care that selves, and, on the contrary, have thirty years the laws which the Congress enacts shall be I ago, as I showed to the Senate yesterday, sol 812 emnly ruled, without a dissenting voice, that statute-book. He might come to the concluthe assumption of power claimed by the Presi- sion that they all interfered with and cut off dent would defeat justice itself and annihilate some power confided to him by the Constituthe laws of the people. I have done it also to tion I fortify the text of your Constitution and to The position conflicts with every principle make plain its significance,. which declares that of law and every principle of common sense. every bill which shall have passed the Congress If this discretionary power is in the President with or without the President's approval, even no man can lay his hand upon him. That was over his veto, shall be a law. The language exactly the ruling of his Honor the Chief Jusis plain and simple. It is a law until it is tice, in the Mississippi case, touching the exerannulled; in the wordsof Hamilton, as recorded cise of certain discretionary power vested in in the seventh volume of his works, a law to the President by the reconstruction act. His the President; a law to every department of judgment concludes everybody; the courts the Government, legislative, executive, and cannot review his decisions, and unless you judicial; a law to all the people. charge him with corruption there is an end of It is invain the gentlemen say that it is only all inquiry. It was settled more than fifty constitutional laws that bind. That is simply years ago il the case to which I referred yesbegging the question. The presumption, as I terday from memory, reported in 12 Wheaton, have shown you from the authorities, is that and has never been challenged from that day every law is constitutional until by authority to this. I deny any such discretion in the it is declared otherwise, and the question here Executive, because it is a discretion incomis whether that authority is in Andrew John- patlble with the public liberties, because it is a son. That is the whole question, whether that discretion in direct conflict with the express authority is in Andrew Johnson. Your Con- letter of the Constitution, because it is a disstitution says it shall be a law. It does not cretion which vests him with more than kingly mean that it shall remain a law after it shall prerogative, because it is a discretion which have been reconsidered by the law-making puts the servant above his master, because it power and repealed; it does not say that it is a discretion which clothes the creature with shall remain a law to the hurt and deprivation power superior to the power of its creator. of private right after it shall have been adjudged The American people will tolerate no such unconstitutional in the Supreme Court of the discretion in the Executive, by whomsoever United States under the limitations of the Con- sanctioned or by whomsoever advocated. stitution and within their express jurisdiction; When that day comes that the American peobut it does mean that until judgment be pro- ple will tamely submit to this assumption of nounced authoritatively in your tribunals of authority that their President is above their justice, or that power be exercised authori- Constitution and above their laws, and may tatively by the people' s Representatives in Con- defy either or both at his pleasure with imgress assembled, it shall be a law to the Presi- punity, they will have proved themselves unfit dent, to every head of Department, as the court custodians of the great trust which has been ruled in the case from which I read yesterday committed to their care in the interests of their in 12 Peters, to every Representative in Con- children and in the interests of the millions gress, to every Senator, and every human that are to come after them. I have no fear being within the jurisdiction of your laws. of the results with the people. Their instincts Why do the gentlemen make this distinction are all right. They understand perfectly well at all that it is only laws passed in pursuance that the President is but their servant to obey of the Constitution that are to bind? Why their laws in common with themselves, and to not follow their premises to their logical con- execute their laws in mode and manner as the clusions that the President of the United States, laws themselves prescribe; and not to sit in as I took occasion to say yesterday, is by vir- judgment day by day upon their authority to tue of the prerogatives of his office vested with legislate for themselves and to govern themthe power judicially to interpret the Constitu- selves bylaws duly enacted through their Reption for himself and judicially to decide for resentatives in Congress assembled. the time being for himself the validity of every And this brings me, Senators, to the point law, and therefore may, with impunity, set made by the learned gentleman from New York aside every law upon your statute-book, in the when he talked of that coming struggle in which words of his advocate, for the reason that he the President and his friends, headed doubthas come to the deliberate conclusion that it less by the learned gentleman himself, would interferes with some power vested in him by march under the banner of the " supremacy of the people? the Constitution" against the " omnipotence of Senators, considering the operations of the Congress:" I have uttered no word, nor have President's mind as manifested in his past offi- my associates uttered any word, that justified cial conduct, God only knows to what absurd any suggestion about the omnipotence of Conconclusions he might arrive hereafter, if by gress. I can understand very well something your judgment you recognize this unli rited about the omnipotence of a Parliament under prerogative in him, when he comes to sit in the protection of a corrupt hereditary monjudicial judgment upon all the laws upon the arch, of whom it may be said, and is said by 813 his retainers, " He rules by the grace of God ment upon the House of Representatives, and and of divine right;" but I cannot understand, to say, as he did say, that, unmindful of the nor can plain people anywhere understand, obligations of our oaths, regardless of the rewhat significance is to be attached to this ex- quirements of the Constitution,' forgetful of pression, "the omnipotence of Congress "-a God and forgetful of the rights of our fellowCongress the popular branch of which is chosen men, in the spirit of hate, we had preferred every second year by the suffrages of freemen. these articles of impeachment. I intend to utter no word, as I have uttered no It was not well for the gentleman, either, to word from the beginning of this contest to this intimate that the Senate of the United States hour, which will justify any man in intimating had exercised a power that did not belong to that I claim for the Congress of the United them, when, in response to the message of the States any omnipotence. I claim for it simply President of the United States of the 21st of the power to do the people's will as required February, 1868, they had resolved that the act by the people in their written Constitution and done by the President and communicated to enjoined by their oaths. the Senate, to wit, the removal of the head of It does not result, becausewe denythe power a Department and the appointment of a sucof the Executive to sit in judicial judgment cessor thereto without the advice and consent upon the legislation of Congress, that uncon- of the Senate, was not authorized by the Constitutional enactments, abuses of power, usurp- stitution and laws. It was the duty of the ations of authority, and corrupt practices on Senate, if they had any opinion upon the subthe part of a Congress, are without remedy. ject, to express it; and it is not for the PresiThe first remedy under your Constitution is in dent of the United States, either in his own the courts of the United States, in the mode person or in the person of his counsel, to chalaf.d manner prescribed by your Constitution; lenge the Senate as disqualified to sit in judgand the last great remedy under your Constitu- ment under the Constitution as his triers upon tion is with the people that ordain constitu- articles of impeachment, because, in the distions, that appoint Senators, that elect Houses charge of another duty, they had pronounced of Representatives, that establish courts of against him. They pronounced aright..The justice, and abolish them at their pleasure. people of the United States will sanction their The gentleman can alarm nobody by talking judgment whatever the Senate may think of it about an omnipotent Congress. If the Con- themselves. gress abuse its trust let it be held to answer Senators, that all that I have said in this genfor that abuse; but let the Congress answer eral way of the power assumed and exercised somewhere else than to the President of the by the President and attempted to be justified United States. Your Constitution has declared here is directlyinvolved in this issue, and underthat they shall answer to no man for their lies this whole question between the people and legislation or for their words uttered in debate, this guilty President, no man can gainsay. save to the respective Houses to which they 1. He stands charged with a misdemeanor belong, and to that great people who appoint in office in that he issued an order in writing them. for the removal of the Secretary of War during That is my answer to the gentleman's clamor the session of the Senate, without its advice about an omnipotent Congress. Among the and consent, in direct violation of express law, American people there is nothing omnipotent and with intent to violate the law. and nothing eternal but God, and no law save 2. He stands charged, during the session of His and the laws of their own creation, sub- the Senate, without its advice or consent, in ject to the requirements of those laws to which direct violation of the express letter of the the gentleman so eloquently referred the other Constitution and of the act of March 2, 1867, day, which he wrote upon the stone table with issuing a letter of authority to one Lorenzo amid the earthquake and the darkness of the Thomas, authorizing him and commanding him mountain, and a part of which, I deeply regret to assume and exercise the functions of Secreto say, the gentleman, in his eloquent discourse, tary for the Department of War. both forgbt and broke. We are the keepers 3. He stands charged with an unlawful conof our own conscience. It was well enough spiracy to hinder the Secretary of War from for the gentleman to remind the Senators of holding the office, in violation of the law, in the obligations of their oath. It was well violation of the Constitution, in violation of enough for the gentleman to suggest to them, his own oath, and with the further conspiracy so elegantly as he did, the significance of to prevent the execution of the tenure-of-office those great words, "justice, law, oath, duty." act, in direct violation of his oath as well as in It was well enough for him to repeat in the direct violation of the express provisions of hearing of the Senate and in the hearing of your statute; and to prevent, also, the Secrethis listening audience those grand words of tary of War from holding the office of Secrethe common Father of us all, "Thou shalt not tary for the Department of War; and with the take the name of the Lord thy God in vain." further conspiracy, by force, threat, or intimiBut it was not well for the gentleman, in the dation, to possess the property of the United heat and fire of his argument, to pronounce States and unlawfully control the same conjudgment upon the Senate, to pronounce judg- trary to the act of July 20, 1861. 814 He stands charged further with an unlawful he has violated your Constitution; when we attempt to influence Major General Emory to show that he has violated your laws; when we disregard the requirements of the act making show that he has defied the power of the Senappropriations for the support of the Army, ate even after they had admonished him of the passed March 2, 1E8V7, and which expressly danger that was impending over him? The provides that a violation of its provisions shall answer is, that he is vested with an unlimited be a high crime and misdemeanor ij office. prerogative to decide all these questions for He stands further charged with a high mis- himself, and to suspend even your power of demeanor in this, that on the 18th day of Au- impeachment in the courts of justice until gust, 1866, by public speech he attempted to some future day, which day may never come, excite resistance to the Thirty-Ninth Congress when it will suit his convenience to test the and to the laws of its enactment. validity of your laws and consequently the He stands further charged with a high mis- uprightness of his own conduct before the Sudemeanor in this, that he did affirm that the preme Court of the United States. There Thirty-Ninth Congress was not a Congress of never was a balder piece of effrontery practhe United States, thereby denying and intend- ticed since man was upon the face of the earth. ing to deny the validity of its legislation except I care not if he be President of the United in so far as he saw fit to approve it, and deny- States, it is simply an insult to human undering its power to propose an amendment to the standing to press any such defense in the presConstitution of the United States; with devis- ence of his triers. ing and contriving means by which he should I have said enough and more than enough prevent the Secretary of War, as required by to show that the matter charged against the the act of the 2d of March, 1867, from resum- President is impeachable. I waste no words ing forthwith the functions of his office, after upon the frivolous question whether the articles having suspended him and after the refusal of have the technical requisites of an indictment. the Senate to concur in the suspension; and There is no law anywhere that requires it. with further devising and contriving to prevent There is nothing in the precedents of the Senate the execution of an act making appropria- of the United States, sitting as a high court of tions for the support of the Army, passed impeachment, but condemns any suggestion of March 2, 1867, and further to prevent the exe- the kind. I read, however, forthe perfection of cution of the act to provide for the more effi- my argument rather than for the instruction of cient government of the rebel States. the Senate, from the text of Rawle on the ConThat these several acts so charged are im- stitution, (p. 216,) in which he declares " that peachable has been shown. To deny that articles of impeachment need not be drawn up they are impeachable is, as I have said, to with the precision and strictness ofindictments. place the President above the Constitution and It is all-sufficient that the charges be distinct the laws, to change the servant of the people and intelligible." They are distinct and ininto their master, the executor of their laws telligible; they are well enough understood, into the violator of their laws. The Constitu- even by the smallest children of the land who tion has otherwise provided, and so it has been are able to read their mother tongue, that the otherwise interpreted by one of the first writers President stands charged with usurpation of upon the law in America; I refer to the text power in violation of the Constitution, in vioof Chancellor Kent, which the gentlemen were lation of his oath, in violation of the laws; careful not to read: that he stands charged with an attempt to sub"In addition to all the precautions which have vert the Constitution and laws, and usurp.to been mentioned to prevent abuse of the executive himself all the powers of the Government trust in the mode of the President's appointment, vested in the legislative and judicial, as well as his term of office and the precise and definite limita- n the ective ns tions imposed upon the exercise of his power, the in the Executive Departments. Constitution has also rendered him' directly amena- Touching the proofs, Senators, little need ble by law for maladministration. The inviolability be said. The charges are admitted substanof any officer of Government is incompatible with the republican theory, as well as with the principles tinlly by the answer. Although the guilty inof retributive justice. The President, Vice Presi- tent is formally denied by the answer and atdent, and all civil officers of the United States may tempargument, e accused be impeached by the House of Representatives for t to e den a the ae treason, bribery, and other high crimes and misde- submits to the judgment of the Senate that, meanors, and upon conviction by the Senate re- admitting all the charges to be true, admitting moved from office. If, then, neither the sense of them to be establishe as laid, nevertheless he duty, the force of public opinion, nor the transitorystablished as laid, nevertheless he nature of the seat are sufficient to secure a faithful cannot be held to answer before the Senate for discharge of the executive trust, but the President high crimes and misdemeanors, because it is will use the authority of his station to violate the his prerogative to construe the Constitution Constitution or law of the land, the House of Representatives can arrest him in his career by resort- for himself, to determine the validity of your ing to the power of impeachment.-l Kent's Oomlment- laws for himself, and to suspend the people's aries, P. 289. power of impeachment until it suits his conAnd what answer is made when we come to venience to try the question in the courts of your bar to impeach them; when we show him justice. That is the whole case; it is all there guilty of maladministration as no man ever is to it or of it or about it, after all that has was before in this country; when we showthat I been said here by his counsel, and that was 815 the significance of the opening argument, that whole of the act of 1789; and that part of their he could only be convicted of such high crimes argument was very significant as proving that and misdemeanors as are kindred with treason it was competent for the Congress of the Uniand bribery. I believe I referred to that sug- ted States to put an end to all this talk about gestion yesterday and asked the Senate to con- the tenure of an office depending, in any sense sider that the offenses whereof he is charged, of the word, upon the language of a commiswhereof he is clearly guilty, and which he con- sion. It depends exclusively upon the professes himself in his answer are offenses which visions of existing laws. The act of 1867 has touch the nation's life and endanger the public repealed the act of 1789, and it repealed the liberties, and cannot be tolerated for a day or act of 1795 as well. That law provided for the an hour by the American people. I proceed, suspension of all officers theretofore appointed then, Senators, as rapidly as possible, for I and commissioned by and with the advice and myself am growing weary of this discussion consent of the Senate, and it provided for the Mr. SHERMAN. Mr. President, ifthehon- suspension of all civil officers thereafter aporable Manag er desires to pause at this mo- pointed by and with the advice and consent of ment in his argument, I will move that the the Senate, and no kind of sophistry can evade Senate take the usual recess. the plain, clear words of the law. Mr. Manager BINGHAM. I hope to be able The gentlemen undertake to get up a distincto close my argument to-day, and if it is the tion here between the office and the person who pleasure of the Senate to take the recess now holds the office. No such distinction will avail I will yield; but them. This act of 1867 puts an end to all such iMr. EDMUNDS. Would you prefer it now quibbling. The office and the person who fills or to proceed half an hour longer? it are alike under the protection of the law Mr. Manager BINGHAM. I will proceed and beyond the reach of the Executive, except for half an hour and then a recess can be taken. as limited and directed by the law, Apd no man MIr. SHERMAN. Very well; I withdraw can gainsay it. my motion. "Every person "Mr. Manager BINGHAM. The first ques- I suppose that does not mean an office tion thatarises, Senators, under the first article, merelyis whether Mr. Stanton was the Secretary of "Every person holding any civil office to which he WVar. That he was duly appointed in 1862 by has been appointed by and with the advice and conand with the advice and consent of the Senate sent of the Senate, and every person who shall hereis conceded. About that there is no question. after be appointed to any such office, and shall become duly qualified to act therein, is and shall be entitled As the law then stood he was entitled to hold to hold such office until a successor shall have been the office under his commission until removed in like manner appointed and duly qualified, except by authority of the act of 1789 or by the au- as herein otherwise provided." thority of some other existing act in full force " Herein otherwise provided'' had relation at the time of his removal; or otherwise he to the second section, which made provision was not removable at all without the advice and for temporary removal by suspension: consent of the Senate. That is the position I "Provided, That the Secretaries of State, of the take in regard to this matter, and I venture to Treasury, of War, of the Navy, and of the Interior, the Senate that there is not one single the Postmaster General, and the Attorney General, say before the Senate that there is not one single shall hold their offices respectively for and during the word in the records of the past history of this term of the President by whom they may have been country to contradict it. The act of 1789, as I appointed and for one month thereafter, subject to remov.al by and with the advice and consent of the hbkve said before, authorized the remlval; but Senate. we shall see whether that act authorized his "SEc. 2. And be it further enacted, That when any renoval in 1867. officer appointed as aforesaid, excepting judges of rThe geuo lemen seem to tink the United States courts, shall, during a recess of the The gentlemen seem to think the tenure of Senate, be shown, by evidence satisfactory to the his office depended upon the words of a com- President, to be guilty of misconduct in office or mission. If that were so I would surrenider crime, or for any reason shall become incapable or Iia deno I Td urrder legally disqualified to perform its duties, in'such case, the question; but I deny it. The tenure of and in no other, the President may suspend such his otfice depended upon the provisions of the officer and designate some suitable person to perform Constitution and the existing law then or after- temporarily the duties of such office.'! ward in force, whatever it might be. There is "In such case, and in no other." What no vested power in the President of the Uni- case? That he shall have become.temporarily ted States on this subject beyond the reach of disqualified, incapable, or legally disqualified, legislation; and he never had any power what- or shall be guilty of misdemeanor in office or ever over the question except that joint power crime in such case and no other shall the with the Senate, to which I have referred, in President suspend him. What other condithe Constitution, and the power expressly con- tion is there? That it shall be in the recess ferred by the legislation of Congress. The of the Senate, and so the section says: power that conferred it clearly might take it "That when any officer" * * * away. The tenure-of-office act changed the "shall, during aerecessof the Senate, be shown, by cvilaw of 1'789. The gentlemen have made elab- dence satisfactory to the President, to be guilty of owi8 The gntlehe madcmisconduct in office or crime, orfor any reason shall orate arguments, showing that the act of 1863 become incapable or legally disqualified to perform did not necessarily, by repugnancy, repeal the its duties, in such case, and in no other," &c. 816 During the recess of the Senate, and not at dent has more fully developed his character. any other time, shall the President suspend It is understood now by the whole country, by him and report within, twenty days after their the whole civilized world, that he has undernext meeting to the Senate the fact of suspen- taken to usurp all the powers of this Governsion, the reasons and the evidence upon which ment and to betray the trust committed to him it is made. There is a law so plain that no by the people through their Constitution. man can misunderstand it-a plain, clear, dis- The Secretary is said to be excepted by the tinct provision of the law, that in such, case and proviso from the body of the statute. It is an no other, to wit, during the recess and for the afterthought. The President himself in his mesreasons, and only the reasons, named in the sage, which I will take the liberty to cite, in statute, shall he suspend from office any person the report notified the Senate that if he had heretofore appointed by and with the advice supposed any member of his Cabinet would and consent of the Senate, or who may be have availed himself of the law to retain the hereafter appointed by and with the advice and office against his will he would have removed consent of the Senate. him without hesitation before it became a law. It is admitted that the Secretary of War and He supposed then he was within.the law; they every other officer appointed with the advice all supposed he was within the law. and consent of the Senate, holding at the time Again, the President is concluded on this of the enactment of this law, was within the question, Senators, because on the 12th day provisions of the body of the act. The Presi- of August, 1867, he issued an order suspenddent himself is prohibited by the act from ing Edwin M. Stanton, Secretary of War, removal, as he was authorized by the act of under this act. What provision is there in the 1789 to make removals. There is no escape Constitution authorizing the President to susfrom the conclusion if gentlemen admit the pend anybody for a day or an hour-a head validity of the law. What next? It is at- of Department, from office? Nobody ever tempted t0 be said here that from the body of claimed it; nobody ever exercised.it. It is a this act the Secretaries appointed by Mr. Lin- thing unheard of altogether in the past history coin were excepted. Who, pray, says that? of the country. It never was authorized by any I have just read to you the commanding words law, save the act of March 2, 1867, the tenureof Mr. Webster that exceptions, unless clearly of-office act. The language of the act is "susexpressed in the law, are never to be implied pension;" and, Senators, pardon me, for I do except where a positive necessity exists for not intend that this confessedly guilty man their implication. It is a sound rule of con- shall change front in the presence of the Senstruction. Who says that the heads of De- ate in order to cover up his villainy. In his partments appointed by Mr. Lincoln are by message to the Senate he not only quotes the the proviso excepted from the body of this act? word of the statute that he had suspended him, The gentlemen, in the absence of any further but he quotes the other word of the statute, reason, undertook to quote from the speech of that the suspension whs not yet " revoked." my learned and accomplished friend, the Sen- I ask you, Senators, when that word ever beator from Ohio, forgetting that one line of his fore occurred in the executive papers of a speech declares expressly, by necessary intend- President of the United States, that he had meat, that the existing Secretaries at the head "revoked" a suspension. It is the word of of Departments were within the provisions of the tenure-of-office act that the President may, the law, wherein he says that if the Secretary if he becomes satisfied that the suspension is would not withdraw or resign upon the politest made without just cause, revoke it; and he suggestion from the President he himself would communicates to the Senate that the suspenconsent to his removal. What significance can sion was not yet revoked. He thought he was be attached to these words if they do not mean within the statute when he suspended him. this: that by this law the President after all He thought he was within the statute when he may not be permitted to remove the Secretary communicated to the Senate that he had not of War, but if he politely requests him to yet revoked the suspension. He thought he resign, and he should refuse to resign, the was within the statute when, in obedience to its Senator would himself consent to his removal? express requirement, within twenty days after As the matter then stood, the Senator was the next meeting of the Senate, he did, as doubtless entirely justified before the country required by the law, report the su'spension to the in coming'to that conclusion, for facts had Senate, together with the reasons and the evinot sufficiently disclosed themselves to show dence on which he made the suspension. It is the necessity of the Secretary of War retaining too late for any man to come before the Senate his office in the light of the solemn decision and say that the President of the United States of the Supreme Court that he was at liberty in did not himself believe that the Secretary of spite of the President, under cover of that War was within the operation of the statute; decision, to interpret the law for himself, to that he believed that he was excepted from its stand by the law for himself, subject to im- provisions by the operation of the proviso. peachment if he abused the trust, and in the Moreover, his letter to the Secretary of the words of the court not to take the law from the Treasury, reciting the eighth section of the.President. Times have changed. The Presi- tenure-of-office act, and notifying him that he 817 had suspended Edwin M. Stanton, was a fur- legally disqualified; and this is the very crime ther recognition of the fact on his part that Mr. charged against him in the eleventh article of Stanton was within the provisions of the act. impeachment, that he did attempt to violate But that is not all. His own counsel who the provisions of the tenure-of-office act, in opened the case, [Mr. Curtis,] as will be seen that he attempted to prevent Edwin M. Stanby a reference to his argument, declares that ton, Secretary of War, from resuming the there are no express words that bring the functions of the office or from exercising the Secretary of War, Edwin M. Stanton, within office. to which he had been appointed by and the proviso. That is his own position, and with the advice and consent of the Senate in that being so, he must be within the body of direct violation of the provisions of the act itself. the statute. There is no escape from it. Now, what are his reasons? The President There has been further argument, however, is concluded by his record and in the presence on this subject, that the President did not in- of the American people is condemned upon his tend to violate the law. If he believed he was record. What are his reasons? Let the Senate within the statute, and suspended him under answer when they come to deliberate. What the statute and by authority of the statute, and evidence did he furnish this Senate, in the reported in obedience to the statute to the communication made to it, that Edwin M. Senate within the next twenty days, with the Stanton had become in any manner disqualified reasons and the evidence upon which he made to discharge the duties of that office? What the suspension, it will not do to come and say evidence did he furnish the Senate that he had now that the President did not intend to vio- been guilty of any misdemeanor or crime in late the law, that he did not think it obligatory office? What evidence was there that he was upon him. If he did not think it obligatory legally disqualified, in the words of the statute? upon him, why did he obey it in the first in- None whatever. It results, therefore, Senators,. stance-why did he exercise power under it at that the President of the United States, upon all? There is but one answer, Senators, that his own showing, judged by his own record, can be given, and that answer itself covers the suspended Edwin M. Stanton' from the office, President with ignominy and shame and re- of the Secretary of War and appointed a sucproach. It is this: "I will keep my oath; I cessor without the presence of any of the will obey the law; I will suspend the head of a reasons named in the statute, and he is conDepartment under it by its express authority fessedly guilty before the Seniate and before for the first time in the history of the Republic; the world. and no man can acquit him. I will report the suspension to the Senate, to- Mr. WILSON. I move that the Senate take gether with the reasons and the evidence upon a recess for fifteen minutes. which the suspension was made; and if the The motion was agreed to; and, at the expiSenate concur in the suspension I will abide ration of the recess, the Chief Justice resumed by the law; if the Senate non-concur in the the chair and called the Senate to order. suspension I will defy the law, and fling my Mr. Manager BINGHAM. Mr. President own record in their face, and tell them that it and Senators, when the recess was taken I had is my prerogative to sit in judgment judicially said all that I desired, and all that I think upon the validity of the statute." That is the it needful to say, to show that the President answer, and it is all the answer that can be of the United States, himself being witness made to it by any man. upon his own messages sent to the Senate of I admit, Senators, upon this construction of the United States, has been guilty, and is guilty, the law, for I have not yet done with it, that in manner and form as he stands charged in the, President in the first instance, as to the the first, second, third, eighth, and. eleventh suspension within the limitation of the law, is articles of impeachment. It does seem hard, himself the judge of the sufficiency of the Senators, and yet the interest involved in this reasons and the evidence in the first instance, question is so great that I do not feel myself and that he is not to be held impeachable for at liberty to fail to utter a word that might; any honesterror of judgment in coming to that perhaps, be uttered fitly in this presence in conclusion. It would be a gross injustice to the cause of the people, but it seems hard to hold him impeachable for anly honest error'of be compelled to coin one's heart's drops into judgment in coming to his conclusion that the thoughts to persuade the Senate of the United Secretary of War was'guilty of a misdemeanor States that a man who stands self-c6nvicted or crime in office, that he had become inca- on their records ought to be pronounced pable or legally disqualified to hold the office. guilty. It touches the concern of every man But the President is responsible if, without in this country whether the laws are to be any of the reasons assigned by the law, he supreme, whether they are to be vindicated. nevertheless availed himself of the power con- whether they are to be executed, or whether ferred under the law to abuse it and suspend at last, after all that has passed before our the Secretary of War though he knew lie was eyes, after all the sacrifices that have been not disqualified for any reason, though he made, after the wonderful salvation that has knew that there was no colorable excuse for been wrought by the sacrifice of blood in the charging that he was guilty of misdemeanor vindication of the people's laws, their own or crime or that he had become in any manner Chief Magistrate is to renew the rebellion with C. I.-52. 818 impunity and violate the laws at his pleasure upon the pages of history as one who was and set them at defiance. "faithful found among the faithless;" a man When the. -Senate took its recess I had equal in the discharge of his office, in every ghown, I think, to the satisfaction of every can- quality that can adorn or ennoble or elevate did mind within the hearing of my voice, that human nature, to any man of our own time or the President without colorable excuse had of any time; a man that was "clear in his great availed himself of the authority conferred for office;" a man who "organized victory" for the first time by the laws of the Republic to your battalions in the field as man never organsuspend the head of a Department and had ized victory before in the Cabinet councils of disregarded at the same time its express limit- a people since nations were upon the earth; ation, which declares that he shall not suspend and this man is to be suspended by a guilty him save during the recess of the Senate, and and corrupt and oath-breaking President, then only for the reason that from some cause under a law which he defies, and under the he has become incapacitated to fill the office, hollow and hypocritical pretense that he was as by the visitation of Providence, or has be- guilty of misdemeanor or crime or, in the come legally disqualified to hold the office, or language of the law, had become otherwise is guilty of a misdemeanor or of a crime. legally disqualified from holding the office. Without the shadow of evidence that your Sec- I dismiss the subject. The Secretary needs retary of War was incapacitated; without the no defense from me. And yet it was fit, in shadow of evidence that he was legally disqual- passing, that I should take this notice of what ified; without the shadow of evidence that he the President.has done, not simply to his hurt, was guilty of a misdemeanor or a crime, he dared but to the hurt of the Republic. I have said to suspend him and to defy the people, in the enough, Senators, to satisfy you, and tosatisfy presence Qf the people's tribunes, who hold him all reasonable men in this country, that the to answer for the violation of his oath, for the President, when he made this suspension of violation of the Constitution, and for the vio- the Secretary of War, had no doubt of the lation of the law. Senators, whatever may be validity of this law, of its obligation upon him, tbe result of this day's proceeding, impartial and that the Secretary was within its provishistory, which records and perpetuates what ions; and hence, availing himself of its exmen do and suffer in this life, will do justice press provisions, he did suspend him and made to your slandered and calumniated Secretary report, as I have said, to the Senate. of War. Now, what apology or excuse can be made The gentleman [Mr. Groesbeck] spoke of for this abuse of the powers conferred upon him but yesterday as being a thorn in the heart the President, and of which he stands charged of the President. The people know that for by impeachment here this day in that he has four years of sleepless vigilance he was a thorn abused, in the language of the authority which in the heart of every traitor in the land who I read yesterday in the hearing of the Senate, lifted his hands against their flag and against assented to in the Senate on the trial of Justhe sanctuary of your liberties. He can afford tice Peck without a dissenting voice, abused to wait; his time has not come. His name the power conferred upon him by the statute? will survive the trial of this day and be remem- The counsel may doubt, or affect to doubt, bered with the names of the demigods and the tenure-of-office act; the President never the heroes who, through an unprecedented doubted it until he was put on trial. When conflict, saved the Republic alive; and I it was presented to him for his approval it charge your recusant President with calumny, was a question with him whether it was in acwith slander, when he suspends the Secretary cord with the Constitution; but after Congress of War under pretense, in the words of your had passed it by a two-thirds vote over his veto statute, that he was guilty of a misdemeanor in the mode prescribed by the Constitution or a crime in office or had become legally dis- the President thenceforward, until he was imqualified. Hewas legally disqualified, undoubt- peached by the people's Representatives, recogedly, judging him by the President's standard, nized the obligation of the law and the plain, if the qualification of office is an utter disre- simple words of the Constitution, that if the gard of the obligations of an oath. He was bill be passed by a two-thirds vote over his veto guilty of a misdemeanor and crime, undoubt- it shall become a law to himself and to everyedljy, if, according to the President's standard, body else in the Republic. he was guilty of consenting that the Executive The counsel, however, doubt the validity of of the United States may, at his pleasure, sus- the law. They raise the question in the antend the people's laws and dispense with their swer; they raise it in the argument. They ecution-those laws which are enacted by intimate to the Senate that it is unconstituthemselves and for themselves and are for their tional, and they state a very plain and very protection, both while they wake and while simple proposition. It is really a grateful tleey sleep, at home and abroad, on the land thing-it is to me a very grateful thing-to and-on the sea. be able to agree with counsel for the PresYour Secretary of War, Senators, whatever ident upon any legal proposition whatever. maybe the result of this day's proceeding, will They do state one proposition to which I enstand, as I said before, in the great hereafter, tirely assent; and that is, that an unconstitu 819 tional law is no law. But it is no law to the office in the event that the Senate shall nonPresident, it is no law to the Congress, it is no concur in the suspension, and notify the Secrelaw to the courts, it is no law to the people, tary of the fact of non-concurrence, all of only after its constitutionality shall have been which appears on your record, to prevent the decided in the mode and manner prescribed Secretary from so assuming his office. The by the Constitution; and the gentleman who President, in his letter to General Grant of so adroitly handled that text as it came from February 10, 1868, to be found on page 234 the mighty brain of Marshall, knew it to be the of the record, says: rule governing the case just as well as anybody "First of all, you here admit that from the very else knows it. It is a law until it shall have beginning of what you term'the whole history' of been reversed. It has not been reversed. To your connection with Mr. Stanton's suspension, you intended to circumvent the President. It was to assume any other position would be to subject carry out that intent that you accepted the appointthe country at once to anarchy, because, as I ment. This was in your mind at the time of your may have occasion to say in the progress of acceptance. It was not, then, in obedience to the order of your superior, as has heretofore been sqpthis argument, the humblest citizen in the land posed, that you assumed the duties of the office. You is as much entitled to the impunity which that'new it wcas the President'spurpose to prevent Mr. Stanproposition brings as is the President of the ton fros resuming the ofce of Secretary of War." United States. It does not result, however, How could he know it if that was not the that the humblest citizen of the land, in his President's purpose? It would be, it seemsto cabin upon your western frontier, through me, and I say it with all reverence, beyond the whose torn thatch the wintry rains come down, power of Omnipotence itself to know a thing and through whose broken walls the winds blow that was not to be at all, and could not by any at pleasure, is at liberty to defy the law upon possibility be, and did not exist. " You knew the hypothesis that it is unconstitutional and it was the President's purpose to prevent Mr. to decide it in advance. The same rule applies Stanton from resuming the office of Secretary to your President. Your Constitution is no of War." And what says the law? That it respecter of persons. shall be the duty of the suspended Secretary, Is, then, this law constitutional, is it valid, if the Senate shall non-concur in the suspenand did the President intend to violate its pro- sion, "forthwith to resume the functions of the visions? Senators, I said before that the rule office." And yet the Senate are to be told of the common law and the common sense of herethatwe mustproveintentl Well,wehave mankind is, that whenever a man does an un- proved it; and what more are we to prove lawful act, himself being a rational, intelli- before this man is to be convicted and the gent, responsible agent, he intends precisely people justified in the judgment of their own what he does, and there is an end to all fur- Senators? He says to General Grant in this ther controversy. It sometimes happens, how- letter, "It was my purpose, and you knew it, ever, because in the providence of God truth to prevent Mr. Stanton from resuming the is stronger than falsehood-it is linked to the functions of his office." Almighty, and partakes in some sort of his I give him the benefitof his whole confession. omnipotence-that a guilty conscience some- There is nothing in this stammering utterance times makes confessions and thereby contrib- of this violator of oaths and violator of Conutes to the vindication of violated law and the stitutions and violator of laws, that can help administration of justice between man and man him either before this tribunal or any other trlin support of the rights of an outraged and bunal constituted as this is of just and upright violated people. So it has happened, Sen- men. He says further on: atops, to the accused at your bar. The Presi- "You knew the President was unwilling to trust dent of the United States was no exception to the office with any one who would not, by holding it, that rule that murder will out. He could not compel Mr. Stanton to resort to the courts." keep his secret. It possessed him; it con- Andt he knew as well as he knew anything, trolled his utterances, and it compelled him, that if he prevented Mr. Stanton from resumin spite of himself, to stammer out his guilty ing the office, Mr. Stanton could no more conpurpose and his guilty intent, and thereby testthat question inyour courts of.justice than silence the tongue of every advocate in this can the unborn; and the man who does not Chamber and of every advocate outside of know it ought to be turned out MORTON, NYE, PATTERSON of New Hampshire, NER, THAYER, TIPTON, WADE, WILLEY, WILPOMEROY, RAMSEY, SHERMAN, SPRAGUE, STEW- LIAMS, WILSON, and YATES-35. ART, SUMNER, THAYER, TIPTON,WADEWILLEY, Those who voted "Not guilty" are: Messrs. WILLIAMS S WILSON, and YATES-35. BAYARD, BUCKALEW, DAVIS, DIXON,; DOOLIT-' The Senators who voted " Not guilty'" are: TLE, FESSENDEN,,' FOWLER, GRIMES, HENMessrs. BAYARD, BUCKALEW, DAVIS, DIXON, DERSON, HENDRICKS, JOHNSON, MCCREERY, DOOLITTLE, FESSENDEN, FOWLER, GRIMES, NORTON, PATTERSON of Tennessee, Ross HENDERSON, HENDRICKS, JOHNSON, MCCREE- SAULSBURY, TRUMBULL, VAN WINKLE, and RY, NORTON, PATTERSON of Tennessee, Ross, VICKERS —19. 861 The CHIEF JUSTICE. Thirty-five Sena- Mr. SUMNER. Of course not. tors have pronounced Andrew Johnson, Presi- Several SENATORS. There is no objection. dent of the United States, guilty, as charged in Mr. HOWARD. Let the vote on adjournthis article; nineteen have pronounced him not ment be announced. guilty. Two thirds not having pronounced him Mr. JOHNSON. Judgment must be entered. guilty, the President of the United States stands Mr. SUMNER. There seems to be a misacquitted upon this article. understanding as to the entry which it is proMr. WILLIAMS. Mr. President, I move posed to make in the Journal. that the Senate, sitting as a court of impeach- The CHIEF JUSTICE. The Clerk will ment, do now adjourn sine die. enter, if there be no objection, a judgment Mr. BUCKALEW. I ask for the yeas and according to the rules-a judgment of acnays on that motion. quittal. The yeas and nays were ordered and taken. Mr. CONNESS. I simply desire to say to The roll was called, and the result was as the Chair that the very rule which has been follows: read implies a vote before such a judgment YEAS-Messrs. Anthony, Cameron, Cattell, Chand- can be entered; and unless a vote be taken no lor, Cole, Conkling, Corbett, Cragin, Drake, Edmunds, such judgment can be entered under the Ferry, Frclinghuysen, Harlan, Howard, Morgan, rule. Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, The CHIEF JUSTICE. The Chief Justice Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, spoke of those articles upon which the vote Van Winkle, Wade, Willey, Williams, Wilson; and has been taken. The rule is express. Yates-34. NAYS —Messrs. Bayard, Buckalew, Davis Dixon, Mr. CONNESS. Certainly; judgment must Doolittle, Fowler, Henderson, Hendricks, Johnson, be entered on them. McCreery, Norton, Patterson of Tennessee, Ross, Mr. DRAKE. I wouldsuggest to the Chair Saulsbury, Trumbull, and Vickers —16. NOT VOTING- Messrs. Conness, Fessenden, that in the case of Judge Peck the only entry Grimes, and Howe-4.' of acquittal was the declaration by the presidThe CHIEF JUSTICE. Before announcing ing officer that he was acquitted. the vote the Chief Justice will remind the Sen- The CHIEF JUSTICE. The Chief Justice ate that the twenty-second rule provides that simply follows the rules which have been orif " upon any of the articles presented " the dained for their own government by the Senate. impeachment shall not " be sustained by the He does not follow a precedent; he follows votes of' two thirds of the members present" the rule. a judgment of acquittal shall be entered. Mr. SUMNER. Mr. President, as I underSeveral SENATORS. We cannot hear. stand, the Chair has already, on each vote, The CHIEF JUSTICE. The Chief Justice made a declaration of acquittal, and that is of begs leave to remind the' Senate that the record. twenty-second rule provides that "if the im- The CHIEF JUSTICE. That, however, is peachment shall not, upon any of the articles not the judgment of the Senate contemplated presented, be sustained by the votes of two by the rule; it is simply the result of the parthirds of the members present, a judgment of ticular vote upon each article, and the rules acquittal shall be entered." provide that the judgment shall be entered. Mr. DRAKE. I suggest, Mr. President, Mr. CONNESS. There canbeno objection that that was done when the President of the to that. Senate declared the acquittal upon each The CHIEF JUSTICE. Upon the question article. of adjournment without day the yeas are 34 *The CHIEF JUSTICE. That is not the and the nays are 16. So the Senate sitting as judgment of the Senate; but if there be no a court of impeachment for the trial of Andrew objection, the judgment will be entered by the Johnson upon articles of impeachment preClerk. sented by the House of Representatives stands Mr. HOWARD. Not at all. adjourned without day. OPINIONS FILED UNDER THE ORDER OF THE SENATE. Ordered, That when the Senate adjourns to-day, it adjourn to meet on Monday next, at eleven o'clock, a. m., for the purpose of deliberation, under the rules of the Senate, sitting on the trial of impeachments, and that on Tuesday next following, at twelve o'clock m., the Senate shall proceed to vote without debate on the several articles of impeachment; and each Senator shall be permitted to file within two days after the vote shall have been so taken his written opinion, to be printed with the proceedings.-In Senate, Thureday, May 7, 1868. OPINION President of the United States, with unlawop fully issuing an order, while the Senate was in session, and without its advice and consent, H6ON. LYMAN TRUMBULL, with the intent to remove Edwin M. Stanton from the office of Secretary for the DepartTo do impartial justice in all things apper- ment of War, contrary to the Constitution and taining to the present trial, according to the the " act regulating the tenure of certain civil Constitution and laws, is the duty imposed on offices," passed March 2, 1867. It will be each Senator by the position he holds and the observed that this article does not charge a oath he has taken, and he who falters in the removal of the Secretary, but only an intent to discharge of that duty, either from personal or remove, which is not made an offense by the party considerations, is unworthy his position, tenure-of-office act or any other statute; but, and merits the scorn and contempt of all just treating it as if the President's order had been men.. obeyed, and an actual removal had taken place, The question to be decided is not whether would such removal, had it been consummated, Andrew Johnson is a proper person to fill the have been a violation of the Constitution irrepresidential office, nor whether it is fit that he spective of the tenure-of-office act? The quesshould remain in it, nor, indeed, whether he tion of the power to remove from office arose has violated the Constitution and laws in other in 1789, in the First Congress which assembled respect} than those alleged against him. As under the Constitution, and except as to offices well might any other fifty-four persons take whose tenure was fixed by that instrument, upon themselves by violence to rid the coun- was then recognized as belonging to the Prestry of Andrew Johnson because they believed ident; but whether as a constitutional right, or him a bad man as to call upon fifty-four Sen- one which the Congress might confer, was left ators, in violation of their sworn duty, to con- an open question. Under this recognition by vict and depose him for any other causes than the Congress of 1789, every President, from those alleged in the articles of impeachment. that day till 1867, had exercised this power of As well might any citizen take the law into his removal, and its exercise during all that time own hands, and become its executioner, as to had been acquiesced in by the other departask the Senate to convict outside of the case ments of the Government, both legislative and made.'o sanction such a principle would be judicial. Nor was this power of removal by destructive of all law and all liberty worth the the President exercised only in the recess of name, since liberty unregulated by law is but the Senate, as some have supposed, but it was another name for anarchy. frequently exercised when the Senate was in Unfit for President as the people may regard session, and without its consent. Andrew Johnson, and much as they may desire Indeed, there is not an instance on record his removal, in a legal and constitutional way, prior to the passage of the tenure-of-office act, all save the unprincipled and depraved would in which the consent of the Senate had been brand with infamy and contempt the name of invoked simply for the removal of an officer. any Senator who should violate his sworn con- It is appointments to, and not removals from, victions of duty to accomplish such a result. office that the Constitution requires to be made Keeping in view the principles by which, as by and with the advice and consent of the honest men, we are to be guided, let us inquire Senate. It is true that an appointment to an what the case is. office, when the appointee becomes duly qualiThe first article charges Andrew Johnson, fled, authorizes him to oust the prior incum868 864 bent, if there be one, and in that way effects Of the power of Congress to define the tenhis removal; but this is a different thing from ure of the offices it establishes and make them a simple removal. The Constitution makes no determinable either at the will of the President distinction between the power of the President alone, of the President and Senate together, to remove during the recess and the sessions or at the expiration of a fixed period, I enterof the Senate, nor has there been any in prac- tain no doubt. The Constitution is silent on tice. The elder Adams, on the 12th of De- the subject of removals except by impeachcember, 1800, the Senate having been in session ment, which it must be admitted only applies from the 17th of November preceding, in a to removals f6r crimes and misdemeanors; communication to Timothy Pickering, used and if the Constitution admits of removals in this language, "You are hereby discharged no other way, then a person once in office would from any further service as Secretary of State." hold for life unless impeached, a construction Here was a positive dismissal of a Cabinet which all would admit to be inadmissible unofficer by the President, while the Senate was der our form of Government. The right of in session, and without its consent. It is no removal must, then, exist somewhere. The answer to say that President Adams the same First Congress, in the creation of the Departday nominated John Marshall to be Secre- ment of War, in 1789, recognized it as existtary of State in place of " Timothy Pickering, ing in the President, by providing that the removed." chief clerk should perform the duties of the The nomination of a person for an office principal officer, called a Secretary, " whendoes not, and never did, effect the removal of ever the said principal officer shall be removed an incumbent. And such incumbent, unless from office by the President of the United removed by a distinct order, holds on till the States, or in any other case ofvacancy." Under nominee is confirmed and qualified. The Sen- this act the power of the President to remove ate might never have given its advice and con- the Secretary of War, either during the recess sent to the appointment of John Marshall, and or session of the Senate, is manifest. The did not in fact do so until the following day. law makes no distinction in that respect, and The removal of Pickering was complete before whether it was an inherent power belonging to Marshall was nominated to the Senate, as the the President, under the Constitution as Presmessage nominating him shows; but whether ident, or was derived from the statute creating this was so or not we all know that a person in the office, is not material so far as relates to the office is never removed bythe mere nomination power of the President to remove that officer. of a successor. This continued to be the law until the pasThomas Eastin, navy agent at Pensacola, sage of the tenure-of-office act, March 2, 1867; wasremovedfromofficebyPresidentVanBuren and had the President issued the order for the on the 19th of December, 1840, while the Sen- removal of the Secretary of War prior to the ate was in session, and the office the same day passage of that act, it would hardly be conplaced temporarily in charge of Dudley Walker, tended by any one that, in so doing, he violated and it was not till the 5th of January following any law constitutional or statutory. The act that George Johnson was, by and with the of March 2, 1867, was passed to correct the advice and consent of the Senate, appointed previous practice, and had there been no such navy agent to succeed Eastin. practice there would have been no occasion for June 20, 1864, and while the Senate was in such a law. Did that act, constitutional and session, President Lincoln removed Isaac Hen- valid as it is believed to be, change the law so derson, navy agent at New York, an officer far as it related to a Secretary then in office, appointed by and with the advice and con- by virtue of an appointment made by a former sent of the Senate, and placed the office in President during a presidential term which charge temporarily of Paymaster John D. ended March 4, 1865? Gibson. The language of the first section of the act is: Isaac V. Fowler, postmaster at New York; " That every person holding any civil office to which Samuel F. Marks, postmaster at New Orleans; he has been appointed by and with the advice and and Mitchell Steever, postmaster at Milwaukee, consent of the Senate, and every person who shall hereafter be appointed to any such office, and shall all of whom had previously been appointed by become duly qualified to act therein, is and shall be and with the advice and consent of the Senate, entitled to hold such office until a successor shall have were severally removed by the President dur- been in like manner appointed and duly qualified, exceptasherein otherwiseprovide'd: Provided, That ing the sessions of the Senate in 1860 and 1861, the Secretaries of State, of the Treasury, of War, of the officer placed temporarily in charge of spe- the Navy, and of the Interior, the Postmaster General, cial agents, and it was not till some time after and the Attorney Getneral, shall hold their offices respectively for and during the term of the President the removals that nominations were made to by whom they may have been appointed, and one fill the vacancies. month thereafter, subject to removal by and with the Other cases, during other Administrations, advice and consent of the Senate." might be referred to, but these are sufficient Mr. Lincoln, by and with the advice and to show that removals from office by the Pres- consent of the Senate, appointed Mr. Stanton ident during the session of the Senate have Secretary of War on the 15th of January, 1862, been no unusual thing in the history of the and commissioned him to hold the office " durGovernment. ing the pleasure of the President of the United 865 States for the time being." He was never re- he was appointed as it is for Mr. Lincoln to appointed, either by Mr. Lincoln after hisre- serve out the second term for which he was election, or by Mr. Johnson since Mr. Lincoln's electec Both the presidential term of the death. The continuance of Mr. Stanton in President who appointed Mr. Stanton and the office by Mr. Lincoln after his second term com- person who made the appointment have passed menced, and by Mr. Johnson after Mr. Lin- away, never to return; but the presidential coln's death, cannot be construed as a reap- office remains, filled, however, by another pointment during that term, because the word person, and not Mr. Lincoln. " appointed" in the tenure-of-office act must It being apparent that so much of the probe construed to mean a legal appointment, viso to the first section of the tenure-of-civil. which could only be made by and with the advice office act of March 2, 1867, as authorizes the and consent of the Senate. The term of the Secretary of War to hold the office for and President by whom Mr. Stanton was appointed, during the term of the President by whom he and the one month thereafter, expired nearly was appointed is inapplicable to the case of two years before the passage of the tenure-of- Mr. Stanton, by what tenure did he hold the office act. It will not do to say that because office on the 21st of February last, when the Mr. Lincoln was elected for a second term that - President issued the order for his removal? therefore the term of the President by whom Originally appointed to hold office during the Mr. Stanton was appointed has not expired. pleasure of the President for the time being, The fact that Mr. Lincoln was his own suc- and, as has already been shown, removable at cessor in 1865 did not make the two terms one the will of the President, according to the act any more than if any other person had suc- of 1789, there would seem to be no escape ceeded him, and were he now alive the presi- from the conclusion that the President had the dential term during which he appointed Mr. right to issue the order for his removal. It Stanton would long since have expired. But has, however, been insisted that if the proviso Mr. Lincoln, in fact, deceased soon after his which secures to the Secretaries the right to second term commenced, and was succeeded hold their respective offices during the term of by the Vice President, elected for the same the President by whom they may have been term, on whom the office of President was by appointed and for one month thereafter does the Constitution devolved. not embrace Mr. Stanton, because Mr. JohnIt has been argued that this is Mr. Lincoln's son did not appoint him, that then, as a civil term. If this be so, it is his second term, and officer, he is within the body of the first section not the term during which Mr. Stanton was of the act and entitled to hold his office until by appointed; but if this be Mr. Lincoln's and not and with the advice and consent of the Senate a Mr. Johnson's term, when will the " term of successor shall have been appointed and duly the President" by whom Mr. Browning and qualified. Not so; for the reason that the body the other Cabinet officers appointed since Mr. of the first section can have no reference to the; Lincoln's death expire? Mr. Lincoln never tenure of an office expressly. excepted from it appointed them, and if they are to hold " dur- by the words'.' except as herein otherwise proing the term of the President by whom they vided," and the provision whibh follows, fix-. were appointed and for one month thereafter" ing a different tenure for the Secretary of War. they hold indefinitely, because, according to Can any one doubt that the law was intended this theory, Mr. Johnson, the President by to make, and does make a distinction between whom they were appointed, never had a term, the tenure of office given to the Secretaries and and we have the anomaly of a person on whom that given to other civil officers? How, then, the office of President is devolved, and who is can it be said that the tenures are the same, or impeached as President, and whom the Senate the same as to any particular Secretaries? is asked to convict as President, who has no The meaning of the section is not different term of office. The clause of the Constitution from what it would be if instead of the words, which declares that the President " shall hold "every person holding any civil office," there his office during the term of four years" does had been inserted, the words marshal, district not mean that the person holding the office attorney, postmaster, and so on, enumerating shall not die, resign, or be removed during and fixing the tenure of all other civil officers that period, but to fix a term or limit during except the Secretaries; and then had prowhich he may, but beyond which he cannot, ceeded to enumerate the different Secretaries hold the office. If he die, resign, or be re- aid fix for them a different tenure from that moved in the mean time, manifestly the term, given to the other enumerated officers. Had; so far as he is concerned, has come to an end. the section been thus written, would any one The term of the presidential office is four years, think, in case a particular Secretary for some but the Constitution expressly provides that personal reason was unable to avail himself of different persons may fill the office during that the benefit of the law securing to Secretaries a period, and in popular language it is called the certain tenure of office, that he would therefore term of the person who happens for the time have the right to the benefit of the law in which being to be in the office. It is just as impos- Secretaries were not mentioned, securing to sible for Mr. Stanton to now serve as Secretary marshals and others a different tenure of office? of War for the term of the President by whom The object of an exception or proviso in a statC. I.-55. 866 ute is to limit ortake something out of the body ity to remove that officer under the act of 1789, of the act, and is usually resorted to for con- he did not violate either the Constitution or venience, as a briefer mode of declaring the any statute in issuing the order for that pur-'object than to enumerate everything embraced pose. But even if a different construction could in the general terms of the act, and then pro- be put upon the law, I could never consent to vide for the excepted matter. The fact that convict the Chief Magistrate of a great people the terms of the proviso which fix the tenure of a high misdemeanor and remove him from of office of all Secretaries are such that a par- office for a misconstruction of what must be ticular Secretary, for reasons personal to him- admitted to be a doubtful statute, and particself, cannot take advantage of them, does not ularly when the misconstruction was the same operate to take from the proviso the office of put upon it by the authors of the law at the a Secretary, and the tenure attached to it, and time of its passage. transfer them to the body of the section which The second article charges that the Presiprovides a tenure for holding office from which dent, in violation of the Constitution, and conthe office of Secretary is expressly excepted. trary to the tenure-of-office act, and with inThe meaning of this first section will be still tent to violate the same, issued to Lorenzo more apparent by supposing a case involving Thomas a letter of authority empowering him the same principle but wholly disconnected to act as Secretary of War ad interim, there with the one under consideration. Suppose being no vacancy in the office of Secretary of Congress were to-day, May 16, 1868, to pass War. There is nothing in the tenure-of-office an act declaring that " two terms of the dis- act, or any other statute, prohibiting the issuing trict court in every judicial district of the Uni- of such a letter, much less making it a crime or ted States shall be held during the year 1868, misdemeanor. The most that can be said is that commencing on the first Monday of June and it was issued without authority of law. November, except as herein otherwise pro- The Senate is required to pass judgment vided; provided, that two terms of the dis- upon each article separately, and each must trict court in each of the judicial districts in stand or fall by itself. There is no allegation the State of New York shall be held during in this article of any design or attempt to use the year 1868, commencing on the first Mon- - the letter of authority, or that any harm came day of April and September:" manifestly it from it; and any Senator might well hesitate would at this time be as impossible to comply to find the President guilty of a high misdewith so much of the proviso as requires a meanor for simply issuing such a letter, alcourt to be held in the New York districts in though issued without authority of law. The April, 1868, as it now is for Mr. Stanton to proof, however, shows that the letter was serve out the term of the President by whom issued by the President in connection with the he was appointed, which ended March 4, order for the removal of Mr. Stanton, which, 1865. as has already been shown, was a valid order. Would that circumstance take the provision The question, then, arises whether the Presifor the New York districts out of the proviso, dent was guilty of a high misdemeanor in issuand because, By the body of the act, two terms ing to the Adjutant General of the Army a are required to be held in every judicial district letter authorizing him, in view of the contemin the United States on the first Monday of plated vacancy, temporarily to discharge the June and November, authorize the holding of duties of Secretary of War. courts in the New York districts at those pe- Several statutes have been passed providing riods? It is believed that no judge would for for the temporary discharge of the duties of *a moment think of giving such a construction an office by some other person in case of a to such an act; and yet this is precisely the con- vacancy, or when the officer himself is unable Istruction of an act believed to be analogous in to perform them. The first was the eighth principle which must be resorted to to bring section of the act of May 8, 1792, and is as Mr. Stanton within the body of the first section follows: of the tenure-of-office act. " That in ase of the death, absence from the seat Laying out of view what was said at the time of Government, or sickness of the Secretary of State, of the passage of the tenure-of-office act, as to Secretary of the Treasury, or of the Secretary of the Department of War, or of any other officer of either its not interfering with Mr. Johnson's right to of the said Departments whose appointment is not remove the Secretaries appointed by his pre- in the head thereof, whereby they cannot perform decessor, and the unreasonableness of a cdn- the duties of their respective offices, it shall be lawful for the President of the United States, in case he struction of the act which would secure them shall think it necessary, to authorize any person or in office longer than the Secretaries he had persons, at his discretion, to perform the duties of himself appointed, and fasten them for life on the said respective offices until a successor be apall future Presidents, unless the Senate con- pess inted, or until such absence or inability by sickall future P ~~~~~~~~ness shall cease." sented to the appointment of successors, the conclusion seems inevitable, from the terms of The second act, passed February 13, 1795, the tenure-of-office act itself, that the Presi- declares: dent's right to remove Mr. Stanton, the Sec- " That in case of vacancy in the office of Secretary retary of War appointed by his predecessor, is of State, Secretary of the Treasury, or of the Secrerenotaryected by dtat, eathoIsetary of the Department of War, or of any officer of 1o0t affected by it, and that, having the author- either of the said Departments whose appointment is 867 not in theheadthereof, whereby they cannot perform of office has expired by limitation before the the duties of their said respective offices, it shall be regular appointment of a successor. lawful for the President of the United States, in case It has been arued that the tenure-of-office lhe shall think it necessary, to authorize any personeen argued that the tenure-of-off or persons, at his discretion, to perform the duties of act of March 2, 1867, repealed both the act of the said respective offices, until a successor be ap- 1795 and that of 1863, authorizing the tempopointed or such vacancy be filled: Provided, That no one vacancy shall be supplied in manner afore- rary supplying of vacancies n the Departments. said for a longer term than six months." This is an entire misapprehension. The eighth Neithet of these acts provided for vacancies section of the tenure-of-office act recognizes in the Navy, Interior or Post Office Depart- that authority by making it the duty of the ment. Mr. Lincoln, in 1863, called attention President, when such designations are made, to this defect in a special message, as follows: to notify the Secretary of the Treasury thereof; To the Senate and House of Representatives: and if anyone of the Secretaries were to die I submit to Congress the expediency of extending or resign to-morrow the authorty of the Pres to other Departments of the Government the au- ident to detail an officer in one of the Departthority conferred on the President by the eighth sec- ments to temporarily perform the duties of the tion of the act of the 8th of May, 1792, to appoint a vacant ffice, un person to temporarily discharge the duties of Secre- der the act of 1863, would be tary of State, of the Treasury, and the Secretary of unquestioned. This would not be the appointWar, in case of the death, absence from the seat of ment of an officer while the Senate was in Government, or sickness of either of those officers. session without its consent, but simply directABRAHAM LINCOLN. WASHINGTON, January 2, 1863. ing a person already in office to discharge temFebruary 20, 1863, Congress passed a third porarily, in no one case exceeding six months, act on this subject, which declares: the duties of another office not then filled. "In case of the death, resignation, absence from It is the issuing of a letter of authority in the seat of Government, or sickness of the head of respect to a removal, appointment, or employany executive Department of the Government, or of ment "contrary to the provisions" of the tenany officer of either of the said Departments whose ure-of-ofice act that is made a high misdeappointment is not in the head thereof, whereby they cannot perform the duties of their respective meaner. As the order for the removal of offices, it shallbe lawful for the President of the Uni- Mr. Stanton has already been shown not to ted States. in case he shall think it necessary, to have been " contrary to the provisions of this authorize the head of any other executive Depart- any letter ment, or other officer in either of said Departments act, of authority in regard to it is whose appointment is vested in the President, at his not forbidden by the sixth section thereof. discretion, to perform the duties of thesaid respective however, that there was no statu offices until a successor be appointed, or until such e ath absence or disability by sickness shall cease: Pro- in existence expressly authorizing the Presivided, That no one vacancyshall be supplied in man- dent to designate the Adjutant General of the ner aforesaid for a longer term than six months." Army temporarily to discharge the duties of These statutes contain all the legislation of the office of Secretary of War, made vacant by Congress on the subject to which they relate. removal, till a successor, whose nomination It has been insisted that, inasmuch as under was proposed the next day, could be conthe act of 1863 the President had no authority firmed, does it follow that he was guilty of a to designate any other person to perform the high misdemeanor in making such temporary duties of Secretary of War than an officer in designation when there was no law making it that or some of the other Executive Depart- a penal offense or prohibiting it? Prior to ments, and then in case of vacancy to supply 1863, as Mr. Lincoln's message shows, there such only as are occasioned by death orresigna- was no law authorizing these temporary desigtion, his designation of the Adjutant General nations in any other than the three Departof the Army to supply temporarily a vacancy ments of' State, Treasury, and War; and yet occasioned by removal was without authority. President Lincoln himself, on the 22d of SepIf the act of 1863 repealed the act of 1795 this tember, 1862, prior to any law authorizing it, would doubtless be so; but if it did not repeal issued the following letter of authority appointit, then the President clearly had the right, ing a Postmaster-General ad interim: under that act, which provided for the tem- I hereby appoint St. John B. L. Skinner, now actporary discharge of the duties of Secretary of ing First Assistant Postmaster General, to be acting War in any vacancy by any person, to au-thor- Postmaster General ad interim.,n placeofHon. Montgomery Blair, now temporarily absent. ize General Thomas temporarily to discharge ABRAHAM LINCOLN. those duties. The law of 1863, embracing, as WASHINGTON, September 22, 1862. it does, all the Departments, and containing To provide for temporary disabilities or vaprovisions from both the previous statutes, cancies in the Navy Department, and for which may, however, be construed to embrace the no law at the time existed, President Jackson, whole subject on which it treats, and operate during his administration, made ten different as a repeal of all prior laws on the same sub- designations or appointments of Secretaries of ject. It must, however, be admitted that it is the Navy adinterim. Similaradinterim desigby no means clear that the act of 1863 does nations in the Navy Department were made by repeal so much of the act of 1795 as authorizes Presidents Van Buren, Harrison, Tyler, Polk, the President to provide for the temporary dis- Filmore, and others; and these appointments charge of the duties of an office from which an were made indiscriminately during the sessions incumbent has been removed, or whose term of the Senate as well as during its recess, As 868 no law authorizing them existed at the time I never entertained the opinion that the Presithese ad interim appointments were made in the dent had not power to remove the Secretary Navy and Post Office Departments, it must be of War appointed by Mr. Lincoln during his admitted that they were made without authority first term. Believing the act of 1795 to have of law; and yet, who then thought, or would now been repealed, I was bound to vote that the think, of impeaching for high crimes and mis- President had no power under the law to desigdemeanors the Presidents who made them? nate a Secretary of War ad interim to fill a President Buchanan, in a communication to the vacancy caused by removal, just as I would feel Senate made January 15, 1861,'on the subject of bound to vote for a resolution that neither ad interim appointments, used this language: President Jackson nor any of his successors " Vacancies may occur at any timein the most im- had the power, under the law, to designate ad portant offices which cannot be immediately and per- interim Postmasters General or Secretaries of manently filled in a manner satisfactory to the ap- Inte pointing power. It was wise to make a provision the Navy and Interior prior to the act of 1863; which would enable the President to avoid a total but it by no means follows that they were guilty suspension of business in the interval, and equally of high crimes and misdemeanors in making wise so to limit the executive discretion as to prevent any serious abuse of it. This is what the framers of such temporary designations. They acted withthe act of 1795 did, and neither the policy nor the out the shadow of statutory authority in making constitutional validity of their law has been ques-. Johnson claims,andnot tioned for sixty-five years. "The practice of making such appointments, withoutplausibility, that he had authorityunder whetherin avacation or during thesessionof Congress, the act of 1795 to authorize the Adjutant Genhas been constantly followed during every Adminis- eral of the Army to perform temporarily the tration from the earliest period of the Government, andits perfectlawfulness hasnever,to my knowledge, duties of Secretary of War; but if that act was been questioned or denied. Withoutgoing back fur- repealed, even then he simply acted as his prether than the year 1829, and without taking into the decessors had done with the acquiescence of the calculation any but the chief officers of the several Departmeits, it will be found that provisional ap- natidn for fortyyearsbefore. Consideringtha pointments to fill vacancies were made to the num- the facts charged against the President in the ter of one hundred and seventy-nine from the o- seco article are in no respect contrary to any mencement of General Jackson's administration to the close of General Pierce's. This number would provision of the tenure-of-office act; that they probably be greatly increased if all the cases which do not constitute a misdemeanor, and are not occurred in the subordinate offithces and bureaus were forbidden by any statute; that it is a matter of added to the count. Some of them were made while the Senate was in session; some which were made in grave doubt whether so much of the act of 1795 vacation were continued in force long after the Sen- as would expressly authorize the issuing of the ate assembled. Sometimes the temporary officer ws letter of authority to General Thomas is not in the commissioned head of another Department, sometimes a subordinate in the. same Department. force, and if it is not, that President Johnson Sometimes the affairs of the Navy Department have still had the same authority for issuing it as his been directed ad interim by a commodore, and those predecessors had exercised for many years without objection in the Navy, Interior, and Post Importance is sought to be given to the pas- Office Departments, it is impossible for me to sage by the Senate, before the impeachment hold him guilty of a high misdemeanor under articles were found by the House of Represent- that article. To do so would, in my opinion, atives, of the following resolution: be to disregard, rather than recognize, that im"Resolved by the Senate of the United States, That partial justice I am sworn to administer. under the Constitution and laws of the United States What has been said in regard to the second the President has nb power to remove the Secretary of War and designate any other officer to perform article applies with equal force to the third and the duties of that office ad interim"- eighth articles: there being no proof of an as if Senators sitting as a court ori the trial unlawful intent to control the disbursements of the President for high crimes and misde- of the moneys appropriated for the military meanors would feel bound or influenced in any service, as charged in the eighth article. degree by a resolution introduced and hastily Articles four, five, six, and seven, taken topassed before an adjournment on the very day. gether, charge in substance that the President the orders to Stanton and Thomas were issued. conspired with Lorenzo Thomas and other perLet him who would be governed by such con- sons with intent, by intimidation and threats, siderations in passing on the guilt or innocence to prevent Edwin M. Stanton from holding the of the accused, and not by the law and the office of Secretary of War, and by force to facts as they have been developed on the trial, seize and possess the property of the United shelter himiself under such a resolution. I am States in the Department of War; also that he sure no honest man could. It is known, how- conspired to do the same things contrary to the ever, that the resolution coupled the two things, tenure-of-office act, without any allegation of the removal of the Secretary of War and the force or threats. The record contains no suffidesignation of an officer ad interim, together, so cient proof of the intimidation, threats, or that those who believed either without authority force charged; and as the President had, in were compelled to vote for the resolution. my opinion, the right to remove Mr. Stanton, My understanding at the time was, that the his order for that purpose, as also that to Genact of 1863 repealed that of 1795 authorizing eral Thomas to take possession, both peacethe designation of a Secretary of War ad in- fully issued, have, in my judgment, none of terim in the place of a Secretary removed; but the elements of a conspiracy about them. 869 The ninth article, known as the Emory arti- deeds and acts, except so far as they are made cle, is wholly unsupported by evidence. to appear in the record, that I am to decide. The tenth article, relating to the speeches Painful as it is to disagree with so many of the President, is substantially proven, but political associates and friends whose conscithe speeches, although discreditable to the entious convictions have led them to a different high office he holds, do not, in my opinion, result, I must, nevertheless, in the discharge of afford just ground for impeachment. the high responsibility under which I act, be So much of the eleventh article as relates to governed by what my reason and judgment the speech of the President made August 18, tell me is the truth, and the justice and'tht 1866, is disposed of by what has been said on law of this case. What law does this record the tenth article. show the President to have violated? Is it the The only proof to sustain the allegation of tenure-of-office act? I believe in the constiunlawfully attempting to devise means to pre- tutionality of that act, and stand ready to vent Edwin M. Stanton from resuming the punish its violators; but neither the removal office of Secretary of War is to be found in a of that faithful and efficient officer, Edwin letter from the President to General Grant, M. Stanton, which I deeply regret, nor the ad dated February 10, 1868, written long after interim designation of Lorenzo Thomas, were, Mr. Stanton had been restored. This letter, as has been shown, forbidden by it. Is it the referring to a controversy between the Presi- reconstruction acts? Whatever the facts may dent and General Grant in regard to certain be, this record does not contain a particle of communications, oral and written, which had evidence of their violation. Is it the conspiracy passed between them, shows that it was the act? No facts are shown to sustain such a President's intent, in case the Senate did not charge, and the same may be said of the charge concur in Stanton's suspension, to compel him of a violation of the appropriation act of March to resort to the courts to regain possession of 2, 1867; and these are all the laws alleged to the War Department, with a view of obtaining have been violated. It is, however, charged a judicial decision on the validity of the tenure- that Andrew Johnson has violated the Consti-ofoffice act; but the intention was never tution. The fact may be so, but where is the carried out, and Stanton took possession by evidence of it to be found in this record? the voluntary surrender of the office by Gen- Others may, but I cannot find it. To convict eral Grant. Was this intent or purpose of the and depose the Chief Magistrate of a great President to obtain a judicial decision in the nation, when his guilt was not made palpable only way then practicable a high misdemeanor? by the record, and for insufficient cause, would It is unnecessary to inquire whether the be fraught with far greater danger to the future President would have been justified in carrying of the country than can arise from leaving Mr. his intention into effect. It was not done and Johnson in office for the remaining months of his entertainingan intention to do it constituted, his term, with powers curtailed and limited as in my opinion, no offense. There is, however, they have been by recent legislation. to my mind another conclusive answer to this Once set the example of impeaching a Prescharge in the eleventh article. The President, ident for what, when the excitement of the in my view, had authority to remove Mr. Stan- hour shall have subsided, will be regarded as ton, and this being so, he could by removal at insufficient causes, as several of those now any time have lawfully kept him from again alleged against the President were decided to taking possession of the office. be by the House of Representatives only a few There is no proof to sustain the other charges months since, and no future President will be of.this article. In coming to the conclusion safe who happens to differ with a majority of that the President is not guilty of any of the the House and two thirds of the Senate on any high crimes and misdemeanors with which he measure deemed by them important, particustands charged, j[ have endeavored to be gov- larly if of a political character. Blinded by erned by the case made without reference to partisan zeal, with such an example before other actspof his not contained in the record, them, they will not scruple to remove out of and without giving the least heed to the clamor the way any obstacle to the accomplishment of intemperate zealots who demand the convic- of their purposes, and what then becomes of the tion of Andrew Johnson as a test of party faith, checks and balances of the Constitution, so.or seek to identify with and make responsible carefully devised and so vital to its perpetuity? for his acts those who from convictions of duty They are all gone. In view of the consefeel compelled on the case made to vote for quences likely to flow from this day's prohis acquittal. His speeches and the general ceedings, should they result in conviction on course of his administration have been as what my judgment tells me are insufficient distasteful to me as to any one, and I should charges and proofs, I tremble for the future consider it the great calamity of the age if the of my country. I cannot be an instrument to disloyal element, so often encouraged by his produce such a result; and at the hazard of measures, shouldgain political ascendency. If the ties even of friendship and affection, till thequestionwas, IsAndrewJohnsonafitperson calmer times shall do justice to my motives, for President? I should answer, no; but it is not no alternative is left me but the inflexible a party question, nor upon Andrew Johnson's I discharge of duty. 870 OPINION shall be a principal officer therein, to be called the Secretary for the Department of War, who shall perOF form and execute such duties as shall from time to HON. JAMES W. GRIMES. time be enjoined on or intrusted to him by the President of the United States, and the said principal officer shall conduct the business of the said Department in such manner as the President of the United The President of the United States stands at States shall from time to time order and instruct. the bar of the Senate charged with the com- "There shall be in the said Department an inferior mission of high crimes and misdemeanors. officer, to be appointed by said principal officer, to be h pn ial ofense cad ainstm is employed therein as he shall deem proper, and to be The' principal offense charged against him is called thechief clerk of the Department of War; and embodied in various forms in the first eight owheneverthe saidprincipal officershallberemoved from articles of impeachment. This offense is al- office by the President of the United States, and in any other case of vacancy, shall, during the same, have leged to consist in a violation of the provisions charge of the records, books," &c. of the first section of an act of Congress enti- At tled " An act regulating the tenure of certain the same session of Congress was passed civil offices," approved March 2, 1867, in this, the act of July 27, 1789, creating the Departthat on the 21st day of February, 1868, the ment of Foreign Affairs. The two first sections President removed, or attempted to remove, of the two acts are precisely similar except in thedesignationsof the two Departments. Edwin M. Stanton from the office of Secretary the designations of the two Departments. for the Department of War, and issued a letter Upon the passage of this last act occurred one of authority to General Lorenzo Thomas as of the most memorable and one of the ablest Secretary for the Department of War ad in- debates that evertook place in Congress. The terim. subject under discussion was the tenure of pubThe House of Representatives charge in th-eir lic officers, and especially the tenure by which three first articles that the President attempted the Secretaries of the Executive Departments to remove Mr. Stanton, and that he issued his should hold their offices. Without going into letter of authority to General Thomas with an the particulars of that great debate, it is suffiintent to violate the law of Congress, and with cient to say that the reasons assigned by Mr. the further "intent to violate the Constitution Madison and his associates in favor of a "tenof the United States." The President, by his ure during the pleasure of the President' were answer, admits that, he sought to substitute adopted as the true constitutional theory on this General Thomas for Mr. Stanton at the head subject. That great man, with almost a proof the Department of War; but insists that he phetic anticipation of this case, declared on the had the right to make such substitution under 16th June, 1789 in his speech in the House of the laws then and now in force, and denies that Representatives, of which he was a member in anything that he has done or attempted to from Virgnia,thatdo he intended to violate the laws or the Con- "It is evidently the intention of the Qonstitution stitution of the United States. that the FirstMagistrate should be respon~ible for the mttution of the United States*. executive department. So far, therefore, as we do not To this answer there is a general traverse make the officers who are to aid him in the duties by the House of Representatives, and thereon of that department responsible to him he is not resissue is joined; of that issue we are the triers, ponsible to the country. Again, is there no danger that an officer, when he is appointed by the concurand have sworn that in that capacity we will rence of the Senate and his friends in that body, may do " impartial justice according to the Consti- choose rather to risk his establishment on the favor tution and the laws. 7" 7of that branch than rest it upon the discharge of his i duties to the satisfaction of the executive branch, It will be perceived that there is nothing in- which is constitutionally authorized to inspect and volved in the first eight articles of impeachment control his conduct? And if it should happen that but pure questions of law growing out of the the officers connect themselves with the Senate, they may mutually support each other, and for want of construction of statutes. Mr. Johnson's guilt efficacy reduce the power of the President to a mere or innocence upon those articles depends wholly vapor, in which case his responsibility would be annion the fact whether or not he had the power, hilated, and the expectation of it unjust. The high f executive officers joined in cabal with the Senate after the passage of the tenure-of-office act of would lay the foundation of discord, and end in an March 2, 1867, to remove Mr. Stanton and issue assumption of the executivepower. only toberemoved the letter of appointment to General Thomas, by a revolution of the Government." and upon the further fact, whether, having no It will be observed that it is here contended such legal authority, he nevertheless attempted that it is the Constitution that establishes the to exercise it "with intent to violate the Con- tenure of office. And in order to put this quesstitution of the United States." tion beyond future cavil, Chief Justice MarMr. Stanton was appointed Secretary for the shall, in his Life of Washington, volume 2, page Department of War by Mr. Lincoln on the 15th 162, says: day of January, 1862, and has not since been " After an ardent discussion, which consumed sevreappointed or recommissioned. His commis- eral days, the committee divided, and the amendment sioii was issued to continue " for and during the was negatived by a majority of thirty-four to twenty. iss apingtme The opinion thus expressed by the House of Reprepleasure of the President." His appointment sentatives did not explicitly convey their sense of the was made under the act of August 7, 1789, the Conetitution. Indeed,the express grant of the power first two sections of which read as follows: to the President rather implied a right in the Legislature to give or withhold it at their discretion. To "There shall be an executive Department to be obviate any misunderstanding of the principle on denominated the Department of War; and there which the question had been decided, Mr. Benson 871 movedin the House, when the report of the Commit- ton's case within the provisions of the tenuretee of the Whole was taken up. to amend the second of-office act of March 2, 1867? clause in the bill so as clearly to imply the power of Cert it is not within the body of the first removal to be solely in the President. He gave notice Certainly it i not within the body of the first that if he should succeed in this he would move to section. The tenure which that provides for strike out the words which had been the subject of is not the tenure of any Secretary. All Secredebate. If those wordscontinued. hesaid, the power taries whose tenure is regulated by this law at of removal by the President might hereafter appear to be exercised by virtue of a legislative grant only, all are to go out of office at the end of the and consequently be subjected to legislative instabil- term of the President by whom they shall be ity, when he was well satisfied in his own mind that appointed, and one month thereafter, unless it was'by fair construction fixed in the Constitution. appointed, and one month thereafter, unless The motion was seconded by Mr. Madison, and both sooner removed by the President, by and with amendments were adopted." the advice and consent of the Senate, while all And Judge Marshall adds: other civil officers are to hold until a successor "As the bill passedinto a law ithas everbeen con- shall be appointed and duly qualified. The sidered as a full expression of the sense of the Legis- office of Secretary has attached to it one tenlature on this important part of the American Con- ure; other civil officers another and different stitution." ure; other civil officers another and different tenure, and no one who holds the office of SecAnd Chancellor Kent says, when speaking of retary can, by force of this law, hold by any the action of this Congress, many of the mem- other tenure than the o th law spebers of which had been members of the Con-e which the law spetiOll that framed the Constitution, the ehiefest cially assigns to that office. The plain intent tion that framed the Constitution, the chiefest of the proviso to the first section is to prescribe' among them, perhaps, being Madison, who has a tenure for the office of Secretary different been called the father of that instrument: from the tenure fixed for other civil officers. "This amounted to alegislative construction of the This is known to have been done on account Constitution, and it has ever since been acquiesced in and acted upon as of decisive authority in the case. of the marked difference between the heads of It applies equally to every other officer of the Gov- Departments and all other officers, which made ernment appointed by the Presidentand Senatewhoseitdsrb and ncsayothpuics term of duration isnot specially declared. Itis sup- it desirable and necessary for the public service ported by the weighty reason that the subordinate that the heads of Departments should go out officers in the executive department ought to hold at of office with the President by whom they were the pleasure of the head of that department, because appointed. It would, indeed, be a stran rehe is invested generally with the executive authority,t would, indeed be a strange reand every participation in that authority by the Sen- suit of the law if those Secretaries appointed ate was an exception to a general principle, and ought by Mr. Lincoln should hold by the tenure fixed ibeofficertakenforstrictly. TheulPresidentisthgreatrespon- by the act for ordinary civil officers, while all sible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and the other Secretaries should hold by a different might often be requisite to fulfill it."-1 Kent. Cornm., tenure; that those appointed by the present 310. and all future'Presidents should hold only Thus the Constitution and the law stood as during the term of the President by whom expounded by the courts, as construed by com- they may have been appointed, while those not mentators and publicists, as acted on by all the appointed by him should hold indefinitely; and Presidents, and acquiesced in by' all of the Con- this under a law which undertakes to define gresses from 1789 until the 2d March, 1867, the tenure of all the Secretaries who are to when the tenure-of-office act was passed. The hold their offices under thelaw. I cannot come first section of this act reads as follows: to that conclusion. My opinion is, that if Mr. "That every person holdinganycivil office to which Stanton's tenure of office is prescribed by this he has been appointed by and with the advice and law at all, it is prescribed to him as Secretary consent of the Senate, and every person who shall War, under and by force of the proviso to hereafter be appointed to any such office, and shall of War, under and by force of the proviso to bepome duly qualified to act therein, is and shall be the first section; and if his case is not included entitled t o hold such office untilasuccessorshallihave in that proviso it is not included in the law at been in a like manner appointed and duly qualified, except as herein otherwise provided." all. Then comes what is " otherwise provided: " It is clear to my mind that the proviso does "Provided, That the Secretaries of State, of the not include, and was not intended to include, "Provided, That the Secretaries of State of the Mr. Stanton's case. It is notpossible to apply Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the Attorney General to his case the language of the proviso unless shall hold their offices respectively for and during we suppose it to have been intended to legislate the term of the President by whom they may have hi out of office; a conclusion, I consider, been appointed, and for one month thereafter, sub-on, I consider, ject to removal by and with the advice and consent wholly inadmissable. He was appointed by of the Senate." President Lincoln during his first term of office. The controversy in this case grows out of the He cannot hereafter go out of office at the end construction of this section. How does it affect of the term of the President by whom he was the act of 1789, and does it change the tenure appointed. That term was ended before the of office of the Secretary for the Department'law was passed. The proviso, therefore, canof War as established by that act? To that in- not have been intended to make a rule for his quiry I propose to address myself. I shall not case; and it is shown that it was not intended. deny the constitutional validity of the act of This was plainly declared in debate by the March 2, 1867. That question is not neces- conference committee, both in the Senate and sarily in this case. in the House of Representatives, when the The first question presented is, is Mr. Stan- proviso was introduced and its effect explained. 872 The meaning and effect of the proviso were then I tary of State?" Was there any dissent from explained and understood to be that the only his position? Was there not entire acquiestenure of the Secretaries provided for by this cence in it? law was a tenure to end with the term of ser- Again, said Mr. SHERMAN: vice of the President by whom they were ap- "In this casethe committeeof conference —agreed pointed, and as this new tenure could not in- to it, I confess, with some reluctance-came to the elude Mr. Stanton's case, it was here explicitly conclusion to qualify to some extent the power of declared that it did not includQ it. When this removal over a Cabinet minister. We provide that a Cabinet minister shall hold his office notfor a fixed subject was under consideration in the House term, not until the Senate shall consent to his reof Representatives on the report of the con- moval, but as long as the power that appoints him holds ference committee on the disagreeing vote of office.' the two Houses, Mr. SCHENCK, of Ohio, chair- But whatever may have been the character man of the conference committee on the part of the debates at the time of the passage of the of the House, said: law, or whatever may have been the contempo" It will be remembered that by the bill as it passed raneous exposition of it, I am clearly convince4 the Senate it was provided that the concurrence of that the three Secretaries holding over from the Senate should be required in all removals from Mr Lincoln's administration do not fall within office, except in the case of the heads of Departments. The House amended the bill of the Senate so as to its provisions under any fair judicial interpreextend this requirement to the heads of Departments tation of the act; that Mr. Stanton held his as well as to tbeir officers..tation of the act, that Mr. Stanton held his as well as to their officers. "The committee of conference have agreed that office under the act of 1789, and under his only the Senate shallaccepttheamendmentof the House. commission, issued in 1862, which was at the But, inas8much as this would compel the President to pleasure of the President; and I am, consekeep around him heads of Departments until the end f constrained to decide that the order his term who would hold over to another term, a compromise was?made by which a further amendment is tor his removal was a lawful order. Any other added to this portion of the bill, so that the term of ofice construction would involve us in the absurdity of the heads of Departments shall expire with the term of ostensibly attempting to limit the tenure of of the President who appointed them, allowing these hoads of Departments one month longer." all Cabinet officers to the term of the officer *When the bill came to the Senate and was having the power to appoint them, yet giving considered on the disagreeing vote of the two to three of the present Cabinet ministers an Houses. and Mr. DOOLITTLE, of Wisconsin, unlimited tenure; for, if the construction concharged that although the purpose of the as tended for by the Managers be the correct one, ure was, in his opinion, to force the President while four of the present Cabinet officers will against his will to retain the Secretaries ap- go out of office absolutely, and without any pointed by Mr. Lincoln, yet that the phraseol- action by the Senate, on the 4th of April next, ogy was such that the bill, if passed, would they having been appointed by Mr. Johnson, not accomplish that object, Mr. SHERMAN, of the three Cabinet officers appointed by Mr. nOhio, who was a member of the conference Of Lincoln will hold by another and different tenOhio, who was a member of the conference committee and assisted to frame the proviso, ure, and cannot be removed until the incoming said: President and the Senate shall mutually agree to their removal. "I do not understand the logic of the Senatorfrom If I have not erred thus far in my judgment, Wisconsin. He first attributes a purposetothecommittee of conference which I say is not true. I say then it follows that the order for the removal that the Senate have not legislated with a view to of Mr. Stanton was not a violation of the Conany persons or any President, and thereforehe co- tittion of the United States b mences by asserting what is not true. We do not tution of the United States by reason of its legislate in order to keep in the Secretary of War, the having been issued during the session of the Secretary of the Navy, or the Secretary of State." Senate. If Mr, Stanton held his office at the Then a conversation arose between the Sen- pleasure of the President alone under the act ator from Ohio and another Senator, and the of 1789, as I think he did, it necessarily follows Senator from Ohio continued thus: that the President alone could remove him. "That the Senate had no such purpose is shown by The Senate had no power in reference to his its vote twice to make this exception. That this pro- continuance in office. I am wholly unable to visionth e fact thanot itapply to the present cae is shown by perceive, therefore, that the power of the Presithe fact that its language is so framed as not to apply to the present President. The Senator shows dent to remove him was affected or qualified that himself, and argues truly that it would not pre- by the fact that the Senate was in session. vent the present President from removing the Sec- It has sometimes been put forward, as it was retary of War, the Secretary of the Navy, and the Secretary of State. And if Isupposed thateither of by Mr. Webster in the debate of 1835, that the thesegentlemenwassowantinginmanhood,inhonor, usual mode of removal from office by the Presias to hold his place after the politest intimation by dent during a session of the Senate had been the President of the United States that his services were no longer needed, I certainly, as a Senator, by the nomination of a successor in place of would consent to his removal at any time, and so A B, removed. This would naturally be so in would we all." all cases except the few in which the officer Did any one here doubt the correctness of could not be allowed, consistently with the Mr. SHERMAN'S interpretation of the act when public safety, to continue in office until his he declared that it " would not prevent thepres- successor should be appointed and qualified ent Presidentfrom removing the Secretary of and also should refuse to resign. Such cases War, the Secretary of the Navy, and the Secre- cannot often have occurred. But when they 873 have occurred, I believe the President has pealed. It may be a question whether it has exercised that power which was understood to been repealed; but from the best examination belong to him alone, and which in the statute I have been able to bestow upon the subject I tenure of most offices is recognized by the acts am satisfied it has not been repealed. of Congress creating them to be the pleasure I do not propose to enter into the technical of the President of the United States. A num- rules as to implied repeals. It is a subject of her of cases of this kind have been put in evi- great difficulty, and I do not profess to be able dence. I do not find, either in the debates to apply those rules; I take only this practical which have been had on the power of removal, view of the subject: when the act of February or in the legislation of Congress on the tenure 20, 1863, was passed, which it is supposed may of offices, any trace of a distinction between have repealed the act of 1795, it is beyond all the power of the President to remove in recess dispute that vacancies in office might be created and his power to remove during a session of by the President; and there might be the same the Senate an officer who held solely by his necessity for making temporary provision for pleasure; and I do not see how such a distinc- discharging the duties of such vacant offices as cion could exist without some positive and dis- was provided for by the act of 1795. The act tinct provision of law to make and define it. I of 1863 is wholly silent on this subject. Why know of no such provision. If that was the should I say that a public necessity provided tenure by which Mr. Stanton held the office of for in 1795 and not negatived in 1863 was not Secretary for the Department of War, and I then recognized; or why. should I say that if think it was, then I am also of the opinion that recognized it was intended by the act of 1863 it was not a violation of the Constitution to that it should not thereafter have any provision remove him during a session of the Senate. made for it? Comparing the act of 1863 and If Mr. Stanton held under the act of 1789 the cases it provided for, I see no sufficient no permission of the President to continue in reason to say that it was the intention of Conoffice, no adoption of him as Secretary for the gress in 1863 to deprive the President of the Department of War, could change the legal power given by the act of 1795 to supply the tenure of his office as fixed by law or deprive temporary necessities of the public service in the President of the power to remove him. case of vacancy caused by removal. My opinion on the matter of the first article But if I thought otherwise I should be unis not affected by the facts contained in it, that able to convict the President of a crime because the President suspended Mr. Stanton and sent he had acted under the law of 1795. Many notice of the suspension to the Senate, and the cases of ad interim appointments have been Senate refused to concur in that suspension. brought before us in evidence. It appears to In my opinion that action of the President have been a constant and frequent practice of could not and did not change the tenure of Mr. the Government, in all cases when the PresiStanton's office, as it subsisted by law at the dent was not prepared to fill an office at the pleasure of the President, or deprive the Presi- moment when the vacancy occurred, to make dent of that authority to remove him which an ad interim appointment. There were one necessarily arose from that tenure of office. hundred and seventy-nine such appointments If the order of the President to Mr. Stan- specified in the schedule annexed to the meston was a lawful order, as I have already said sage of President Buchanan, found on page 584 I thought it was, the first question under the of the printed record, as having occurred in second article is whether the President did any- little more than the space of thirty years. I thing unlawful in giving the order to General have not minutely examined the evidence to Tomas to perform the duties of Secretary for follow the practice further, because it seems to the Department of War ad interim. me that if, as I think, the President had the This was not an appointment to office. It power to remove Mr. Stanton, he might well was a temporary designation of a person to dis- conclude, and that it cannot be attributed to charge the duties of an office until the office him as a high crime and misdemeanor that he could be illled. The distinction between such did conclude, that he might designate some a designation and an appointment to office is proper officer to take charge of the War Departin itself clear enough, and has been recognized ment until he could send a nomination of a suitcertainly since the act of February 13, 1795. able person to be Secretary; and when I add Many cases have occurred in which this author- that on the next day after this designation the ity has been exercised. The necessity of some President did nominate for that office an emisuch provision of law, in cases of vacancy in nent citizen in whose loyalty to our country and offices which the Executive cannot instantly in whose fitness for any duties he might be fill, must be apparent to every one acquainted willing to undertake the people would be willwith the workings of our Government, and I ing to confide, I can find no sufficient reason to do not suppose that a reasonable question can doubt that the President acted in good faith and be made of the constitutional validity of a law believed that he was acting within the laws of providing for such cases. the United States. Surely the mere signing of The law of 1795 did provide for such cases; that letter of appointment, "' neither attended and the President, in his answer, says he was orfollowed bythe possession of the office named advised that this was a subsisting law not re- in it or by any act of force, of violence, of 874 fraud, of corruption, of injury, or of evil, will supposed might have some tendency to prove not justify us in depriving the President of his this allegation, but it appeared to the Senate office." that the supposed means could not, under any I have omitted to notice one fact stated in circumstances,' be adequate to the supposed the second article. It is that the designation end, and the evidence was rejected. Holding of General Thomas to act ad interim as Sec- that the order for the removal of Mr. Stanton retary of War was made during a session of was not an infraction of the law, of course this the Senate. This requires but few words. The article is, in my opinion, wholly unsupported. acts of Congress, and the nature of the cases I find no evidence sufficient to support the to which they apply, admit of no distinction ninth article. between ad interim appointments in the ses- The President, as Commander-in-Chief of sions or the recess of the Senate. A desig- the Army, had a right to be informed of any nation is to be made when necessary, and the details of the miitary service concerning which necessity may occur either in session or in he thought proper to inquire. His attention recess. was called by one of his Secretaries to some I do not deem it necessary to state any ad- unusual orders. He sent to General Emory to ditional views concerning the third article, for make inquiry concerning them. In the course I find in it no allegations upon which I have of the conversation General Emory himself innot already sufficiently indicated my opinion. troduced the subject which is the gist of the The fourth, fifth, sixth, and seventh articles ninth article, and I find in what the President charge a conspiracy. I deem it sufficient to said to him nothing which he might not natusay that, in my judgment, the evidence adduced rally say in response to General Emory's inby the House of Representatives not only fails quiries and remarks without the criminal intent to prove a conspiracy between the President charged in this ninth article. and General Thomas to remove Mr. Stanton I come now to the question of intent. Adfrom office by force or threats, but it fails to mitting that the President had no power under prove any conspiracy in any sense I can attach the law to issue the order to remove Mr. Stanto that word. ton and appoint General Thomas for Secretary The President, bya written order committed the Department of War ad interim, did he to General Thomas, required Mr. Stanton to issue those orders with a manifest intent to viocease to act as Secretary for the Department late the laws and " the Constitution of the Uniof War, and informed him that he had em- ted States," as charged in the articles, or did powered General Thomas to act as Secretary he issue them, as he says he did, with a view ad interim. The order to General Thomas to have the constitutionality of the tenure-ofempowered him to enter on the duties of the office act judicially decided? office and receive from Mr. Stanton the public It is apparent to my mind that the President property in his charge. There is no evidence thoroughly believed the tenure-of-office act to that the President contemplated the use of be unconstitutional and void. He was so adforce, threats, or intimidation; still less that he vised by every member of his Cabinet when the authorized General Thomas to use any. I do bill was presented to him for his approval in not regard the declarations of General Thomas, February, 1867. The Managers on the part of as explained by himself, as having any tend- the House of Representatives have put before ency even to fix on the President any purpose us and made legal evidence in this case the beyond what the orders on their face import. message of the President to the Senate, dated Believing, as I do, that the orders of the December 12, 1867. In that message the PresiPresident for the removal of Mr. Stanton, and dent declaredthe designation of General Thomas to act ad the designation of General Thomas to act ad "That tenure-of-office law did not pass without interim, were legal orders, it is manifestly im- notice. Like other acts it was sent to the President possible for me to attach to them any idea of for approval. As is my custom, I submitted its concriminal conspiracy. If those orders had not sideration to my Cabinet for their advice upon the question, whether I should approve it or not. It was,been, in my judgment, lawful, I should not a grave question of constitutional law, in which I have come to the conclusion, upon the evi- would of course rely most upon the opinion of the dence, that any actual intent to do an unlaw- Attorney General and of Mr. Stanton, who had once ful act was proved;'been Attorney General. Every member of my Cabiful act was proved: net advised me that the proposed law was unconstiThe eighth article does not require any par- tutional. All spoke without doubt or reservation, ticular notice after what I have said of the but Mr. Stanton's condemnation of the law was the most elaborate and emphatic. He referred to the first, second, and third articles, because the constitutional provisions, the debates in Congressonly additional matter contained in it is the especially to the speech of Mr. Buchanan when a allegation of an intent to unlawfully control Senator-to the decisions of the Supreme Court, and to the usage from the beginning of the Government the appropriations made by Congress for the through every successive Administration, all conmilitary service by unlawfully removing Mr. curring to establish the right of removal as vested by Stanton from the office of Secretary for the the Constitution in the President. To all these he Department of War. added the weight of his own deliberate judgment. Department of War. and advised me that it was my duty to defend the In my opinion, no evidence whatever, tend- power of the President from usurpation and to veto ing to prove this intent, has been given. The the law." Managers offered some evidence which they The counsel for the respondent not only 875 offered to prove the truth of this statement of visions, and that it was desirable that upon the President'by members of the Cabinet, but some proper case a judicial determination on they tendered in addition thereto the proof the constitutionality of the law should be " that the duty of preparing a message, setting obtained. forth the objections to the constitutionality of Now, when it is remembered that, according the bill, was devolved on Mr. Seward and Mr. to Chief Justice Marshall, the act of 1789, creatStanton." They also offered to prove- ing the Department of War, was intentionally "That at the meetings of the Cabinet, at which Mr. framed I so as to clearly imply the power of Stanton was present, held while the tenure-of-office removalto be solely in the President," and that bill was before the President for approval, the advice removal to be solely in the President," and that of the Cabinet in regard to the same was asked by the as the bill passed into a law, it has ever been President and given by the Cabinet; and thereupon considered as a full expression of the sense of the question whether Mr. Stanton and the otherSec- the Legislature on this mportant part of the retaries who had received their appointment fromn this importhe Mr. Lincoln were within the restrictions upon the American Constitution;" when it is rememPresident's power of removal from office created by bered that this construction has been acquiesced said act was considered, and the opinion expressed that the Secretaries appointed by Mr. Lincoln were nd acted on by every President from Washnot within such restrictions." ington to Johnson, by the Supreme Court, by And, every Congress of the United States from the " That at the Cabinet meetings between the passage first that ever assembled under the Constitution of the tenure-of-civil-office bill and the order of the down to the Thirty-Ninth; and when it is re21st of February, 1868. for the removal of Mr. Stan- membered that all of the President's Cabinet ton, upon occasions when thecondition of the publicdent's Cabinet service as affected by the operation of that bill came and the most eminent counselors within his up for the consideration and advice of the Cabinet, it reach advised him that the preceding Conwas considered by the President and Cabinet that a properregard to the public service made it desirable gresses, the past Presidents and statesmen, and that upon some proper case a judicial determina- Story and Kent and Thompson and Marshall tion on the constitutionality of the law should be were right in their construction of the Constiobtained.".,..tution, and the Thirty-Ninth Congress wrong, This evidence was, in my opinion, clearly is it strange that he should doubt or dispute the admissible as cumulative of, or to explain or constitutionality of the tenure-of-office act? disprove, the message of the President, which But all this is aside from the question whether narrates substantially the same fats, and which Mr. Stanton's case is included in the provisthe Managers have introduced and made a part ions of that act. If it was not, as I think it of their case; but it was rejected as incom- clearly was not, then the question of intent is petent testimony by a vote of the Senate. I not in issue, for he did no unlawful act. If it believe that decision was erroneous; and in- was included then I ask whether, in view of asmuch as there is no tribunal to revise the those facts, the President's guilty intent to do errors of this, and it is impossible to order a an unlawful act " shines with such a clear and new trial of this case, I'deem it proper to regard certain light" as to justify, to require, us to these offers to prove as having been proved. pronounce him guilty of a high constitutional We have in addition to this testimony as to crime or misdemeanor? The Manager, Mr. the intent of the President the evidence of Gen- BOUTWELL, admits thateral Sherman. The President desired to ap- "If a law passed by Congress be equivocal or ampoint General Sherman Secretary ad interim biguous in its terms, the Executive, being called upon for the Department of War, and tendered to to administer it, may apply his own best judgment to him the office. The complications in which the difficulties before him, or he may seek counsel of his advisers or other persons; and acting thereupon the office was then involved was talked over without evil intent or purpose, he would be fully jusbetween them. General Sherman says that the tified, and upon no principle of right could he be held subject of using force to eject Mr. Stanton from to answer as for a misdemeanor in office." the office was only mentioned by the President Does not this admission cover this case? Is to repel the idea. When General Sherman there not doubtaboutthe legalconstruction of asked him why the lawyers could not make up the tenure-of-office act? Shall we condemn a case andhave the conflicting questions de- the President for following the counsel of his cided by the courts, his reply was " that it was advisers and for putting precisely the same confound impossible, or a case could not be made struction upon the first section of the act that up; but," said he, "if we can bring the case we put upon it when we enacted it into a law? to the courts it would not stand half an hour." It is not necessary for me to refer to another Here, then, we have the President advised statement made by a Manager in order to susby all of the members of his Cabinet, including tain my view of this case; but I allude to it the Attorney General, whose duty it is made by only to put on record my reprobation of the law to give legal advice to him, including the doctrine announced. It was said thatSecretary for the Department of War, also an "The Senate, for the purpose of deciding whether eminent lawyer and an Attorney General of the the respondent is innocent or guilty, can enter into United States under a former Administration, no inquiry as to the constitutionality of the act that the act of March 2, 1867, was unconstitu- which it was the President's duty to execute, and that the act of March 2, 186which, upon his own answer, and by repeated official tional and void, that the three members of the confessions and admissions, he intentionally, willCabinet holding over from Mr. Lincoln's ad- fully, deliberately set aside and violated." ministration were not included within its pro- I cannot believe it to be our duty to convict 876 the President of an infraction of a law, when the disputed question to be determined in the in our consciences we believe the law itself to manner and by the tribunal established for such be invalid, and therefore having no binding purposes. This Government can only be preeffect. If the law is unconstitutional it is null served and the liberty of the people maintained and void, and the President has committed no by preserving intact the coordinate branches offense and done no act deserving of impeach- of it-legislative, executive, judicial-alike. I ment. am no convert to any doctrine of the omnipoAgain, the Manager said: tence of Congress. "The constitutional duty of the President is to obey But it is said that in our legislative capacity and execute the laws. He has no authority under the we have several times decided this question, and Constitution, or by any law, to enter into any schemes that our judgments on this trial are therefore or plans for the purpose of testing the validity of the laws of the country, either judicially or otherwise. foreclosed. As for myself, I have done no act, Every law of Congress may be tested in the courts, given no vote, uttered no word, inconsistent with but it is not made the duty of any person to so test mylpresent position. I iever believed Mr. Stanton came within the provisions of the tenureIs this so? It is not denied, I think, that of-office act, and I never did any act, or gave the constitutional validity of this law could not any vote, indicating such a belief. If I had be tested before the courts unless a case was done so, I should not consider myself precluded made and presented to them. No such case from revising any judgment then expressed, for could be made unless the President made a re- I am now acting in another capacity, under the moval. That act of his would necessarily be sanction of a new oath, aftera full examination the basis on which the case would rest. He is of the facts, and with the aid of a thorough dissworn to "preserve, protect, and defend the cussion of the law as applicable to them. The Constitution of the United States." He must hasty and inconsiderate action of the Senate on defend it against all encroachments, from what- the 21st February may have been, and probably ever quarter. A question arose between the was, a sufficient justification for the action of legislative and executive departments as to their the House of Representatives, as the grand relative powers in the matter of removals and inquest of the nation, in presenting their artiappointments to office. That question was, cles of impeachment, but it furnishes no reason Dxoes the Constitution confer on the President or apology to us for acting otherwise than under the power which the tenure-of-office act seeks the responsibilities of our judicial oath, since to take away? It was a question manifestly of assumed. construction and interpretation. The Consti- The tenth article charges that, in order to tution has provided a common arbiter in such cases of controversy —the Supreme Court of I' bring into disgrace, ridicule, hatred, contempt. and cases -of controversy-the Supreme Court of reproach the Congress of the United States, and the the United States. Before that tribunal can several branches thereof, to impair and destroy the take jurisdiction a removal must be made. The regard and respect of all the good people of the UniPresident attempted to give the court jurisdic- ted States for the Congress and legislative power thereof, (which all officers of the Government ought tion in that way. For doing so he is impeached, inviolably to preserve and maintain,) and to excite and for the reason, as the Managers say, that- the odium and resentment of all the good people'of the United States against Congress, and the laws by "He has no authority under the Constitution, orby it duly and constitutionally enacted; and in pursuany law, to enter into any schemes or plans for the ance of his said design and intent, openly and pubpurpose of testing the validity of the laws of the licly, and before divers assemblages of the citizens country, either judicially or otherwise." of the United States convened in divers parts thereof to meet and receive said'Andrew Johnson as the If this be true, then if the two Houses of Chief Magistrate of the United States, did, on the Congress should pass by a two-thirds vote over 18th day of August, in the year of our Lord 1866, and the President's veto an act depriving the Pres- on divers other days and times, as well before as - fteriho cafthe a f terward, make and deliver with a loud voice cerident of the right to exercise the pardoifing tain intemperate, inflammatory, and scandalous hapower, and he should exercise that power rangues, and did therein utter loud threats and bitter nevertheless, or if he should exercise it only in menaes." a single case for the purpose of testing the con- These speeches were made in 1866. They. stitutionality of the law, he would be guilty of were addressed to promiscuous popular assema high crime and misdemeanor and impeacha- blies, and were unattended by any official act, ble accordingly. The Manager's theory estab- They were made by the President in his charlishes at once the complete supremacy of Con- acter of a citizen. They were uttered against gress over the other branches of Government. the Thirty-Ninth Congress, which ceased to can give my assent to no such doctrine. exist more than a year ago. That body deemed This was a punitive statute. It was directed them to be unworthy of their attention, and the against the President alone. It interfered with present House of Representatives decided by the prerogatives of his department as recog- an overwhelming majority that they, too, did nized from the foundation of the Government. not consider them worthy to be made the It wrested from him powers which, according ground of impeachment. to the legislative and judicial construction of The first amendment to the Constitution of eighty years, had been bestowed upon him by the United States declares that "Congress the Constitution itself. In my opinion it was shall make no law" " abridging the freedom not only proper, but it was his duty to cause of speech." Congress, therefore, could pass no 877................... ~........ law to punish the utterance of those speeches these dispatches change the nature of that wellbefore their delivery; but according to the the- known, and, in my opinion, much to be de. ory of this prosecution, we, sitting as a court plored diversity. after their delivery, can make a law, each for I have thus, as briefly as possible, stated my himself, to govern this case and to punish the views of this case. I have expressed no views President. upon any of the questions upon which the I have no apology to make forthe President's President has been arraigned at the bar of pubspeeches. Grant that they were indiscreet, lie opinion outside of the charges. I have no indecorous, improper, vulgar, shall we not, by right to travel out of the record. his conviction on this article, violate the spirit Mr. Johnson's character as a statesman, his of the Constitution which guaranties to him relations to political parties, his conduct as a the freedom of speech? And would we not citizen, his efforts at reconstruction, the exeralso violate the spirit of that other clause of cise of his pardoning power, the character of the Constitution which forbids the passage of his appointments, and the influences under ex post facto laws? We are sworn to render which they were made, are not before us on any impartial justice in this case according to the charges, and are not impugned by any testiConstitution and the laws. According to what mony. laws? Is it to be, in the absence of any writ- Nor can I suffermy judgment of the law gov. ten law on the subject, according to the law of erning this case to be influenced by political each Senator's judgment, enacted in his own considerations. I cannot agree to destroy the bosom, after the alleged commission of the harmonious working of the Constitution for the offense? To what absurd violations of the sake ofgetting rid ofan unacceptable President. rights of the citizen Would this theory lead us? Whatever may be my opinion of the incumFor my own part I cannot consent to go beyond bent, I cannot consent to trifle with the high the worst British Parliaments in the time of the office he holds. I can do nothing which, by Plantagenets in efforts to repress the freedom implication, may be construed into an approval of speech. of impeachments as a part of future political The eleventh article contains no matter not machinery. already included in one or more of the preced- However widely, therefore, I may and do ing articles, except the allegation of an intent differ with the President respecting his political to prevent the execution of the act of March 2, views and measures, and however deeply I have 1867, for the more efficient government of the regretted, and do regret, the differences between rebel States. Concerning this a telegraphic himself and the Congress of the United States, dispatch from General Parsons, of Alabama, I am not able to record my vote that he is and the reply of the President thereto, each guilty of high crimes and misdemeanors by dated in January preceding the passage of the reason of those differences. I am acting in a law, appears to be the only evidence adduced. judicial capacity, under conditions whose bindThese dispatches are as follows: ing obligation can hardly be exceeded, and I MONTGOMERY, ALABAMA, JTanuary 17, 1867. must act according to the best of my ability Legislature in session. Efforts making to recon- and judgment, and as they require. If, acfider vote on constitutional amendment. Report cording to their dictates, the President is guilty, from Washington says it is probable an enabling act I must say so; will pass. We do not know what to believe. I find I must say so; if, according to their dictates, nothing here. LEWIS E. PARSONS, the President is not guilty, I must say so. nEchange Hotel, PIn my opinion the President has not been His Excellency ANDREW JOHNSON, Presidet. guilty of an impeachable offense by reason of ihe response is: Ranything alleged in either of the articles preUNITED STATES MILITARY TELEGRAPH, ferred against him at the bar of the Senate by EXECUTIVE OFFICE, WASHINGTON, D.', January 17, 1867. the House of Representatives. What possible good can be obtained by reconsidering the constitutional amendment? I know of none in the present posture of affairs; and I do not believe OPINION the peoplesof the whole country will sustain any set OF of individuals in attempts to change the whole character of our Government by enabling acts or other- HON. GEORGE F. EDMUNDS. wise. I believe, on the contrary, that they will eventually uphold allwho havepatriotism and courage to stand by the Constitution and who place their I had hoped that the formal consideration of confidence in the people. There should be no falter- the subject would be officially reported irr order ing on the part of those who are honest in their de- that the world might know, without termination to sustain the seVeral coJrdinate depart- at the world might know, without diminution ments of the Government in accordance with its or exaggeration, the reasons and views upon original design. ANDREW JOHNSON. which we proceed to our judgment. But as Hon. LEWIs E. PARSONS, Montgomery, Alabama. the Senate has, for causes satisfactory to itself, I am wholly unable, from these dispatches, decided otherwise, I have reduced to writing to deduce any criminal intent. They manifest all that I expected to have said here, that it a diversity of political views between the Presi- may be, so far as of any interest to them, exdent and Congress. The case contains ample posed to the examination of my countrymen. evidence outside of these dispatches of that I can only, within the time allotted by the diversity of opinion. I do not perceive that rules, state briefly the grounds upon which my 878 judgment in this case rests. All the argu- power to appoint General Thomas was conments on either side cannot be reviewed in ferred by the act of 1795, which for that purdetail, and they must therefore be dismissed pose was still in force. with the general observation that in those re- 4. If either the removal or appointment was spects in which they are not in harmony with in violation of law, still it was done in good the reasons or conclusions I now state, they faith, under a sincere claim of right, and thereappear to me to be unsound. fore it could not be the basis of or amount to a As my duties are clearly judicial, " impar- crime or misdemeanor. tially" to try the respondent upon the accusa- Upon the allegations and proofs the comtions contained in the articles of impeachment, mission of the acts charged is indisputable, and and to decide " according to the Constitution hence the main question is, do either of them and the laws," I have only conscientiously to constitute a high crime or misdemeanor? discharge that duty, and so doing I have no The Constitution made express provision for concern with or responsibility for the conse- the appointment of officers, as follows: quences, political or other, that may flow from "And he [the President] shallnominate and, by and,my decision. If the respondent has been guilty with the advice and consent of the Senate, shall of a violation of law, the Representatives of appoint embassadors, other public ministers and consuls, judges of the Supreme Court. and all other the people in the House of Representatives, officers of the United States, whose appointments are like a grand jury in ordinary cases, are the not herein otherwise provided for, and which shall sole judges whether that violation of law is of be established bylaw; but the Congress may, by law, soluchenormityhor ofsc cvi ions n s a vest the appointmentof such inferior officers as they such enormity or of such consequence as a shall think proper in the President alone, in the precedent, if permitted to pass without notice, courts of law, or in the heads of Departments." as to require the prosecution of the offender. And power was also conferred upon the As they have presented the cause for our President "to fill up all vacancies that may action, we have only to apply the law as it is happen during. the recess of the Senate, by to the facts proved. We have no discretion to granting commissions which shall expire at the say guilty or not guilty according to our views end of their next session." of expediency or our personal wishes. What- "The executive power" named as to be ever they may be they can have no tendency vested in the President, must of necessity be to show that the respondent is either innocent that power and no other which the Constituor guilty. These propositions are fundamental tion grants to him. So speaking, it proceeds elements in all civilized systems of jurispru- at once to define and describe it. All the dence. Any other would be a mockery of powers of the President are specifically enujustice, and soon result in the destruction of merated, with apparently the utmost precision, liberty and free government. The truth and even those most clearly within the general defthe law are the only stable foundations of so- inition of " executive power." Two of these ciety, and whoever, for any cause or motive, namely, the power to be Commander-in-Chie? however worthy apparently, departs from these, and the power to grant reprieves and pardons, commits a great wrong upon what all good are perfect illustrations of this. On the other men unite in wishing to preserve. hand, his duties are partly detailed, as to " reThe statement of these principles would have ceive embassadors," and partly generalized, been a work of entire supererogation but for as "to take care that the laws be faithfully the fact that the appeals and remonstrances of executed." This difference arose from the the press of the country, touching our dispo- nature of things. The limited powers which sition of the case, have been urgent, and the framers of the Constitution thought fit to which, if extended to all trials, would poison grant to the person who was to take the place the fountains of Justice. of kings and emperors in systems of governThe first three articles, taken collectively, ment hostile to liberty, could be easily named, charge the respondent with an illegal removal and ought to be jealously defined. The duties of Mr. Stanton from office as Secretary of relating to seeing the laws faithfully executed War and the illegal appointment of Adjutant could not all be foreseen in detail, and from General Thomas ad interim in his place. them there could scarcely arise any danger to These articles also aver that these acts were the Republic, for he was not to execute the done with intent to violate the Constitution and laws himself, but to " take care" that they be the law. The answer asserts that although the "faithfully executed." This could only be.acts charged were designedly done, they are done by just such and only the methods and justifiable, because, agencies provided for that purpose by the laws 1. If the act of March 2, 1867, prohibited themselves. He could not, rightfully, violate them, it was in conflict with the Constitution, the laws in order to enforce them. This is, and therefore void. and the laws under it in I believe unquestioned; and it was perfectly 2. The Constitution and the laws under it in stated by Attorney General Black, on the 20th force prior to March 2, 1867, conferred the of November, 1860, in advising President Buchpower of removal upon the respondent, and anan touching his duties relating to some of that act did not in this instance purport to take the first acts of the rebellion, as fllows: it away. "To the Chief Executive Magistrate of the Union is 3. If Mr. Stanton was lawfully removed, the I confided the solemn duty of seeing the laws faith 879 fully executed. That he may be able to meet this controlled will of the Executive. Indeed, the duty with a power equal to its performance he nom- counsel for the respondent do not seem very inates his own subordinates and removes them at seriously to question thisterpretation ofthe pleasure. For the same reason, the land and naval seriously to question this interpretation of the forces are under his orders as their Commander-in- Constiitution considered independently of a Chief. But his power is to be used only in the manner constrction which they insist has been by prescribed by the legislative department. Hie cannot legislative discussion and enactment, and by accomplish a legal purpose by illegal means, or break legiscussion and enactment the laws himself to prevent them from being violated by long practice of Executives, put upon it. others."-9 Opinions Attorneys General, 516. I will dispose, very briefly, of this construcThe Constitution expressly provides, on the tion, as it is called. Extended examination, other hand, that Congress shall have power- for which there is not time, would make the To make all laws which shall be necessary and fallacy of it clear to demonstration. So far as proper for carrying into execution the foregoing slative discusion is concerned, (although powers, and all other powers vested by the Constitu- that is no safe or admissible guide to the contion in the Government of the United States, or in struction of law as law, for no member is bound any department thereof." by the opinions or words of any other, and so In view of these provisions I cannot doubt his silence is no acquiescence,) the pretension that'the regulation of the tenure of the offices has been from the beginning the subject of to be established by law was not confided by dispute between adherents of a President and the Constitution to the President, but was left the representatives of the States and people, to be provided for by legislation. not as to the right of a President to resist a The scheme, plainly, was to leave the selec- legislative rule, which has rarely, if ever betion of persons to fill offices to the President, fore, been asserted, but as to the propriety of acting with the advice and consent of the Sen. enacting one; and even Mr. Madison himself, ate, and to leave to the whole Government- whose opinions are so much relied upon by the that is to the law-making power-full discre- counsel for the respondent, was, at different tion as to the establishment of offices, and as times, on both sides of the question; and Mr. to the terms upon which and the tenure by Adams, whose casting vote in the Senate passed which they should be held by the persons so the act of 1789, was strongly opposed to the selected. Any other construction would defeat, provision of the Constitution requiring the as for several years prior to the recent act it Senate to confirm any appointment, and he has defeated in many instances, entirely the was by the public so generally supposed to express declaration of the Constitution that the have been influenced by his expectation of beoffices shall be filled by such persons as shall coming President himself that be thought it be advised by the Senate; for temporary com- necessary to repel the accusation of (to use his missions could be issued from session to ses- own words) "deciding in favor of the powers sion, even to the very persons rejected by the of the prime because I look up to that goal."' Senate, as has been the case. And if officers An analysis of the debates and votes upon by the Constitution are removable at the will the act of 1789, creating the Department of of the President, why, when once appointed, Foreign Affairs, will demonstrate the inconshould they not hold at his pleasure, and if so, clusiveness of tests of this sort. Of the fiftyhow can the law put a period to their holding, four members of the House of Representatives as has been done in various instances from the present, those who argued that the power of first, without question from any source? removal was, by the Constitution, in the PresCertainly if, when the Constitution is silent, dent, were Sedgwick, Madison, (who had mainthe legislative power may declare that whoever tained the opposite,) Vining, Boudinot, Clyit appointed to a particular office shall cease mer, Benson, Scott, Goodhue, and Baldwin. to hold it at the end of four years, it may also Those who contended that the President had declare that the appointee shall enjoy it during not the power, but that it might be conferred that time. The two things are complementary by law, but ought not to be, were Jackson, to each other, and logically inseparable. Stone, and Tucker. Those who believed that These views as to what in general belongs to the President had not the power, and that it legislative power are fully sustained by many could not be conferred, were White, Smith of decisions of the Supreme Court, among which, South Carolina, Livemore, and Page. Those Martin vs. Hunter's lessee, 1 Wheat., 326; who maintained that the President had not the Wayman vs. Southard, 10-1; 16 Peters, 89; inherent power, but that it might be bestowed Jones vs. Vqn Zandt, 5 How., may be read with by law, and that it was expedient to bestow profit. it, were Huntington, Madison at first, Gerry, It was to establish a reign of law, the only Ames, Hartly, Lawrence, Sherman, Lee, and safeguard of society and the only means of Sylvester-twenty-four in all speaking. Of liberty, that the Constitution was formed. We these fifteen thought the Constitution did not must, therefore, suppose that the cases not confer this power upon the President, while specifically provided for and the implied pow- only nine thought otherwise. But those who ers generally were intended to be left to the thought he had the power and those who provisions of law, in making which both the thought the law ought to confer it were sevenPresident and Congress must always partici- teen. pate, and usually concur, and not to the un- Thirty did not speak at all, and in voting 881upon the words conferring or recognizing the law, but the contrary. It needs no argument power they were just as likely to vote upon to show that what the laws have authorized the grounds of Roger Sherman as upon the they may forbid. No law can become so old reasons of those who merely intended to admit that the legislative power cannot change it; the power. On the motion to strike out the and even as to legislative construction it is the words "to be removable by the President," same. A later Congress has just as much the ayes were twenty and the noes thirty-four; power in that respect as an earlier. but no guess, even, can be formed that this The acts of 1792, 1795, and 1863, relating majority took one view rather than the other. to ad interim appointments, which have always Indeed, adding only the eight who spoke against been acquiesced in without question from any the inherent power, but for the provisions of source, are decisive utterances, so far as legislaw, to the twenty opponents of both, and there lative action can possibly be so, of the power is a clear majority adverse to any such inhe- of the law to regulate the exercise of powers rent power in the President. And when on and duties expressly conferred by the Constituthe next day it was proposed to change the tion upon the President and Senate. Our own language to that which became the law, among statutes and those of all States having written. the ayes are the names of White, Smith of constitutions are full of similar or analogous South Carolina, Livemore, Page, Huntington, instances. Gerry, Ames, and Sherman, all of whom, as Can it be said, then, that where the letter of we have seen, were of opinion against the claim the Constitution is silent upon another branch of an inherent power of removal in the Presi- of the same subject the law has no power to dent. All this, with a possible error as to one speak, and that behind that veil of silence or two persons, arising from the vagueness or sleeps a kingly prerogative of the President? contradictory character of their language, is The act of 1863, providing for a national in the record of the proceedings, obvious to currency, expressly declared that the Company one who will undergo the labor of its troller of the Currency should hold his office examination. for five years, and should not be removed withThe construction, then, claimed to be derived out the advice and consent of the Senate. It from this source ceases to have any foundation was passed by votes irrespective of party, in point of fact. receiving, among others, that of the honorable On the other hand, a select committee of Senator from Wisconsin who sits farthest from the Senate, of which Thomas H. Benton was me, [Mr. DOOLITTLE,] without any objection chairman, and having among its members from any source to this feature of it. It was Mr. Van Buren and Mr. Hayne, made a re- approved by President Lincoln. The law and port in 1826, in which they say: practice of the Government were thus changed "Not being able to reform the Constitution in the and in that instance restored to the letter and election of President, they must go to work upon his true spirit of the Constitution, with the conpowers, and trim down these by statutory enact- currence of all parties, fll ve ears before ments whenever it can be done by law, and with a currence of all parties ful five years before just regard to the proper efficiency of the Govern- this case arose. And, as I have said, substanment. For this purpose they have reported six tially, and, indeed, identically, the same prinbills," &c. ciple was, with the official approval of the One of these bills was a bill entitled "A bill respondent himself, applied to military and to prevent military and naval officers from be- naval officers by the act of July 13, 1866, re. ing dismissed the service at the pleasure of the lating to the Army, prohibiting their removal President;" and it prohibited any dismissal ex- without the sentence of a court-martial, which cept on the sentence of a court-martial, or on power had been exercised during the war, address of both Houses of Congress: The sub- under the authority of law, and not under stance of this bill became a law by the approval claim of prerogative. (Act of July 17, 1862.) of the respondent himself, on the 13th day of The judicial decisions and opinions touching July, 1866. In 1835, on the favorable report of this subject support the same view. a select committee, of which Mr. Calhoun, Mr. Marbury vs. Madison, 1 Cranch, is, as I * Webster, and Mr. Benton were members, on understand it, expressly in point; and in the the same subject of executive patronage, anal- late case of Mr. Guthrie, (17 How.,) the only ogous measures were agitated, but I have not judge whose views of jurisdiction made it space to detail them. Aside from actual legis- proper for him to speak, upheld the same lation appearing in the statutes, there has been doctrine. no general recognition of these claims, but a For these reasons, and many others that the constant protest by all parties, in their turn, time does not permit me to state, I conclude against them.. that the act of March 2, 1867, is perfectly conAs to the supposed recognition by the laws stitutionial. themselves, and a practice under them, it need Does the act apply to the case of Mr. Stan. only be said that the whole course of legisla- ton, and forbid his removal at the will of the tion, comprised in more than twenty statutes, President? has until 1863 authorized the President to It is conceded that the leading clause of the make removals; and hence they furnish no section does include him, but it is claimed that evidence of his powers, independently of the he is taken out of it by a proviso which not 881 only effects that, but which also excludes him the office devolved on the respondent. Now, from the proviso itself or fails to mention him if the respondent became hereby invested with at all In construing a statute it is always a constitutional "term" of his own as Presinecessary to look at the whole scope of the law dent, he must be in for four years from April in all its sections, and at the state of facts 15, 1865,,which is not pretended by any one. existing at the time of its passage, in order to Hence, he must take the office for the unexmake a proper application of the law, and to pired term of Mr. Lincoln, his predecessor. search through the language of the act for the It was the office and not the term, which are design to which it was devoted. distinct things, that Mr. Lincoln held when he These facts are that Mr. Stanton was then died. The office did not die with him, but the Secretary of War, subject to removal from survived in all its current identity and force office under the act of 1789 at the pleasure of to his successor, the respondent, measured by the respondent. On that state of facts the precisely the same "term" that it was before. proviso said that "the Secretary of War," &c., When, therefore, the statute speaks of "the "shall hold their offices, respectively, for and term of the President," it does not refer to during the term of the President by whom they ownership or possession, which a man cannot may have been appointed," &c. Now, as Mr. be said to have after his death, but it plainly Stanton was then Secretary of War, he must be refers to the termfor and in relation to which the person included in that description. That that President was elected, and which, by the Secretary is (with the others) by name the very Constitution, was attributed to him. A refersubject of which the proviso speaks. And it ence to any lexicon will show that this is the will be noticed that the language as to the principal and most frequent meaning of the appointment is in the past tense, "may have word "of." been appointed" are the words. That the pro- To claim that at the death of Mr. Lincoln viso declared something touching the tenure the " term!' applicable to him thereby expired of Mr. Stanton cannot truly be denied. But if and ended would be as erroneous as to claim it did not declare anything as to him, then, that the death of a tenant for a term of years confessedly, the leading and sweeping opening not yet expired produces an end of the term, clause embraces him, for then as to him it is and that his legal representative either takes a not "otherwise provided." Having ascer- new term or none at all. tained, then, that the proviso speaks of Mr. But it is truly said that Mr. Lincoln had a Stanton, we find that it says that he "shall prior term in which, in the language of counhold" his office, &c., for a described period. sel, Mr. Stanton was appointed, which had These words, it will be seen, apply only to the expired two years before the passage of the future, and import, if language has any mean- law; and it is claimed that that first term is ing, that he shall, after the passage of the act, the one named in the act, and that it meant, continue and remain in office by force of the therefore, that Mr. Stanton should hold for one law. The respondent's counsel insist, how- month after March 4, 1865, instead of one ever, that the real meaning of this language is month after March 4, 1869. The answer (if (if applicable to him) that he shall not hold the any be needful) is that the act passed in the office at all! middle of Mr. Lincoln's second and then exIf, as we have shown, when the act passed isting term, and to reject that term, and apply he was the Secretary of War named in and the words of the statute to a past and comaffected by the proviso, the question is was he, pleted term, which had then no existence on the 21st day of February, 1868, holding either in law or fact, would be contrary not office in the same way and under the same ten- only to any supposable intention of the lawur6 that he was at the passage of the act, which makers, but in direct violation of the words of said he should hold, and not that he should not? the statute, which declare thathe " shall hold" It is not disputed that he was. Was he then, (instead of not holding) not during the term at the passage of the act holding his office "in which" he "may have been appointed," "during the term of the Presidentby whom he as counsel use the words, but "during the was appointed?" He was appointed by Pres- term of the President by whom he may have ident Lincoln. Then was March 2, 1867, the been appointed." Any other construction time of the passage of the act, during the term would involve the gross absurdity that Conof Mr. Lincoln, who was, so far as relates to Mr. gress by that act, on the 2d of March, 1867, Stanton, the Pregident named in the proviso? legislated out of office virtually, as of April4, The Constitution says the President " shall 1865, those Secretaries who had been appointed hold his office during the term of four years," by Mr. Lincoln, and intended to declare that and that the Vice President shall be " chosen officers then legally holding should go out of for the same term." It creates and permits office two years before the passage of the act! no other term or period whatever, but provides This result was sought to be avoided by the only, in case of death, &c., for the devolution distinguished counsel who opened the, defence, of " duties"" or "office," not the term, upon if I rightly understood him, by advancing the the Vice President. idea that the proviso should be construed to Mr. Lincoln began a regular term on March read and apply tofuture Secretaries, &c., and 4, 1865, and died in April of that year, when to have no reference to the then present ones, C. I. -56. 882 This is, perhaps, sufficiently answered already. pressly, and it related to Mr. Johnson sub I know of no rule of construction by which that modo, who, as Vice President, was chosen for, word can be interpolated into the statute, and and who succeeded as President for, the "same if it were the proviso would be made thereby term," and who was, under the qualifications to have' no reference at all to the present Sec- of the Constitution, filling out the unexpired retaries, who would then fall within the very term relating to Mr. Lincoln. Thus, and in letter and protection of the body of the section. no other way, can all the words of the proviso The proviso cannot fairly be made to take be made effective, and a rational and just result the case out of the general clause of the sec- be reached. It appears to me, therefore, withtion, on the ground that this is a case therein out any doubt, that the law in question covers " otherwise provided " for, as is claimed, and the case. then be construed not to affect the case itself, The act, then, prohibited the removal of and to leave it under the act of 1789, on the Mr. Stanton and the appointment of General ground that it does not apply to the case at all! Thomas, and it declared such removal or That would be saying that it did and did not appointment to be a high misdemeanor, and speak of the case. denounced a punishment against it. The idea that the proviso does not speak of But it is contended that, as the articles charge the present Secretary of War arises. on the not only an intentional doing-of the acts forvery reasoning of those who maintain it, out bidden-which the respondent admits-but of the fallacy of confounding the subject of the also an intent thereby to violate the law and proviso, (the Secretary of War,) with what is the Constitution-which he denies-he cannot affirmed of that subject, thus. " What is de- be found guilty unless it is also proved that dared or affirmed in the proviso of the Secre- such intent existed in point ot fact. I do not tary of War is, under the circumstances, erro- understand that to be the law, and I think no neous or non-existing; therefore nothing is de- authority for such a proposition can be found clared of the subject, (the Secretary of War,") anywhere. Certainly the cases cited by the which is absurd. The second section plainly counsel for the respondent do not maintain it, points out, also, the only way of removal of unless it be conceded that the discretion therein all officers, but with my views of the first it is spoken of as existing in the course of exercisnot necessary to enlarge upon it. ing constitutional executive powers, or authorIt is said that this was not the intention in ity delegated by law, means a discretion to fact when the law passed; and to prove this decide what powers are executive, and what the expression of one or two Senators, made authority is delegated, in spite of the Constituupon the spur and in the hurry of the moment, tion that measures and defines the powers, and are cited. I dissent entirely from any such the law that confers the authority; a propo. inference, and from any such rule of interpret- sition so contrary to justice and reason and so ing or administering law, as law. With the subversive of government that it carries its exception of certain questions appealing to the own refutation. will of the whole law-making power, and not The philosophy and experience of ages connecessary to be now enumerated, the body is cur in the propriety of the maxim that "igresponsible for, and its will is found in, what norance of the law excuseth no man." For it declares in its laws, and not for, or in the obvious reasons a government of laws could opinions of its individual members. The not exist if any -man or officer were to be left Journals of the Houses, even, cannot be re- to put his own construction upon, or to form sorted to for any such purpose. This is the and act upon his own views of the validity of rule in all civilized countries, and is, with the the laws framed for the benefit and protection solid reasons for it, known to every lawyer. of all. Every citizen, either in or out of office, It is urged, as touching in some degree the acts in the peril of the law. If the respondent probable intent of this proviso, that the con- really believed that this case was not within struction I have put upon it would work an the act of Congress, or that the act was unconinequality in the duration of the offices of the stitutional, he could do what he did at the risk various Secretaries, some having been ap- of being condemned if he proved to be wrong, pointed by Mr. Lincoln, and some by Mr. or of being justified if he proved to be right, Johnson. If that were the effect, it could not in the judgment of the tribunal of last resort alter the plain construction of the law as ap- before which he might be brought for trial, plied to the first-named Secretaries. But no and to which tribunal, the sAme Constitution, such result follows. The evident meaning of which he claims the right to judge of for himthe word " of," used in the phrase "during self, has committed by express command the the term of the President by whom they may high duty to try him for such acts, upon the have been appointed," being "relating, or same principles of law, impartial and immuhaving reference to," the word " term" as table, as apply to the humblest citizen in the there used and applied, under the circum- land. stances existing, to all the Secretaries-which - In general, it is only when the motive or embraced both classes-related both to Mr. intention is an element in the description or Lincoln and Mr. Johnson. It related, as I definition of the very act forbidden that it behave shown, to Mr. Lincoln primarily and ex- comes material on the trial of a person accused 883 of crime. Murder, larceny, and robbery, like all nations must learn at last, that its highest the case cited by Mr. Evarts, are instances of officers ought to be most careful and -scrupu. this kind. Treason, violations of the fugitive lous in the observance of its laws. slave laws, and the liquor laws, are illustrations I conclude, then, that the intents charged in of the other class of cases, which embraces so these three articles are either immaterial or much of this one as relates to removal and ap- such as the law conclusively infers from the pointment, the unlawful doing of which the acts proved, although I should have no hesitastatute declares to be a misdemeanor, and tion in finding, as a matter of fact, that in the punishes as such. All that is required in such removal of Mr. Stanton the respondent did cases is the voluntary commission of the act intend to violate the act of March 2, 1867, if forbidden. An erroneous belief that it was not the Constitution. While it is probable that lawful is no defense. Upon this all writers he and many of the heads of Departments upon criminal law, all decisions, all systems thought at the time the act passed, as did some of jurisprudence, and the practice of all coun- members of Congress, that the Secretaries tries, agree. It is true that the morally inno- appointed by Mr. Lincoln were not within it, cent sometimes suffer from this necessary rule, I am fully satisfied that, either upon or without but in such cases the hardship necessary to the advice, he thought, when he suspended Mr. stability of society is usually mitigated by a Stanton in August, 1867, and has since thought, remission of penalties. that the statute covered the case. His conduct In this case there is no penalty in the legal is, to my mind, reconcilable with no other or constitutional sense to be inflicted by this hypothesis. Hehadthen determined (as he says tribunal. Punishment by impeachment does himself) that he could no longer tolerate Mr. not exist under our Constitution. The accused Stanton in the office; yet, instead of removing cannot thereby be deprived of life, liberty, or him, as he had, if he acted with a view to the property. He can only be removed from the faithful execution of the laws, a perfect legal office he fills and prevented from holding office, right to do under the act of 1789, if the act of not as a punishment, but as a means merely March 2, 1867, did not protect him, he susof protection to the community against the pended him, as that act permitted, designated danger to be apprehended from having a crim- another to act, for which designation, upon.a inal in office. It merely does what the re- suspension, there was no pretense or color of spondent himself claims the power to do, at his law save that same act, and reported his action own pleasure, in respect to Mr. Stanton and to the Senate within the time and in the manevery other officer in the land. The only dif- ner required by it. And, as he now claims, ference is that this body does it under oath, he also took these and subsequent steps, in upon a trial, under an authority expressly order to test in the courts the validity of this conferred, while the respondent claims it and law, which he believed to invade the constituhas done it without any such sanctions of jus- tional rights of the Executive, and which he tice and at his mere will. was, therefore, bound to test judicially. If The "indictment, trial, judgment, and pun- he thought the case was not within the law, ishment" of the respondent are, by the Con- why did he not remove Mr. Stanton in August? stitutionl, expressly reserved to the ordinary And how could he think that the case could criminal courts. be made to try the validity of a law that did It has been said that there is injustice in not apply to it? condemning an officer for infractions of law But the respondent insists that, although the committed under the supposition that they law may be valid and cover the case, inasmuch were legal acts. There may be hardship, but as his act of dismissal of Mr. Stanton was thefe can be no injustice, in vindicating the illegal and void, it was no removal of Mr. supremacy of the law. We do not make the Stanton, and no violation of the law prohibitlaw, we only adjudge what it is. It is the law ing removals. If this novel notion could be that speaks to the offender through us, and popularized into all criminal trials it would be the same law imposes upon us the duty to of vast benefit to offenders. Theresult would declare it.' Were it material, however, to in- be that, as no act in violation of law changes quire into the motive and purposes of the re- the rights of innocent persons, all such acts spondent in these transactions, it would be an must be guiltless, because void. The statute easy task to show that they are not above crit- does not forbid or punish legal acts of reicism, resting, as they seem to do, upon his moval, (it would be strange if it did,) but dislike to a system of laws which he wished to illegal ones like this, which, so far as anything overthrow, but which the Secretary was un- the respondent could do, was complete; for, willing to assist in. It is enough, for the had it been legal, Mr. Stanton by that act present, to say that if the respondent be legally alone would have been out of office. The guilty, to acquit him upon any such grounds respondent's position, put in the forms of logic, as are claimed would be to sanction a disre- would stand thus: the statute punishes all gard of law. and to invite him, as well as future removals; illegal.removals are void and not Presidents, to try more forcible and dangerous removals at all; therefore the statute punishes experiments upon the Government, instead of no illegal removals. teaching the great lesson that, in some form, It has been made a question, in respect to 884 the appointment of Thomas, (supposing Mr. matter of a former one, and evidently intended as a Stanton had been lawfully removed so as to substitute for it, although it con.tarns no express words to that effect, must, on the principles of law, create a vacancy,) whether that appointment as well as in reason and common sense, operate to was lawful. No power for that appointment repealthe former." is claimed under the Constitution; but the act And in Leighton vs. Walker (9 N. H., 61,) of 1795 is relied upon as authority for it. It it is decided thatis so if it be still in force; but it seems clear to my mind, after a c~reful investigation of "When the design to revise a statute clearly apto my mindt after a th reful investigation of pears the former statutes are to be considered as no the three acts on the same subject, and the longer in force, though not expressly repealed." decisions of courts upon analogous questions, I am of opinion, therefore, that the respondthat the act of 1863 is a substitute for both the ent is guiltyas charged in the first three articles. acts of 1792 and 1795, and that it was intended There is another view of this removal and apto take the place of both these acts entirely. not necessary, as I construe the law, In statutes, as in contracts, the intention of the to a decision, but which is of too much imframe'rs, drawn from the words of the acts and portance tobe passed byin silence. It is this, the facts to which they apply, and under which whether, if the case stood upon the acts of they were made, is the pole star of construction. 1789 and 1795 alone, one of which authorizes The act of 1792 applied to cases of "death, a removal atpleasure, and the other an appoint. "absence," and' sickness," in the three then ment ad interim, the respondent can justify his existing Departments, and provided for tem- upon the evidence before us. The porary appointment, without limitation as to inducing and controlling motive of these acts the choice of persons, till the cause therefor of the respondent was displeasure because the should cease. Secretary of War was not so subservient to him The act of 1795 provided in the same way for in his avowed and determined opposition to cases of " vacancy" in the same three Depart- the laws of the land respecting the southern ments only, but limited the supply to six States as some other heads of Departments; months. These might happen in four modes, and the undisputed design of the respondent, as the law then stood:, by death, expiration in his efforts to displace Mr. Stanton, was to of term, removal from office, and resignation. replace him by some one more pliant to his The act of 1863 covered all the Departments, wishes and less earnest in his administration and described two cases of vacancy, those by ofthelaws. Thiswasthe "harmony" desired death and by resignation, and also sickness and in the' Cabinet." These were the " public absence, and required the temporary service to considerations of a high character" which made be performed by some officer of some Depart- Mr. Stanton's resignation desirable to the ment other than the one in which the case respondent, and which have led him to commit might arise, and for six month's only. The the acts appearing in the evidence. last act, therefore, is on the same subject as The case, then, is the removal of a faithful both the former ones, and changes the provis-officer, neither accused nor suspected of any ions of each. It provides for all the classes other wrong than adherence to the duty the law of cases embraced in both those acts, though imposed upon him, because of tht faithfulness not for every instance in each class, and it re-and adherence to duty, by a President of the quires a totally different and restricted method United States who was determined thereby to of supply. It is impossible to imagine any counteract and defeat the law, because he bereason for requiring a vacancy caused by death lieved or professed to believe in a different or resignation, both of which must be inde- policy" of his own! In my opinion no pendent of the President's will, and fortuitous hither crime, no graver violation of constituas to him, to be supplied in a particular and tional duty, no act more dangerous to law or limited manner, while a vacancy caused by re-to the liberties of the nation can be found moval at the will of the President, or expira-within the reach of the Executive. Surely tion of term, neither of which could be fortu- the opinion of Mr. Madison, so much referred itous, should be left to be filled at the mere to by the counsel cannot be questioned on this pleasure of the President, without anyguard or point. He says: limitation whatever. It must be presumednt. says: limitation whatever. It must be presmed, "The danger, then, consists merely in this: The therefore, that the intention was to substitute President can displace from office aman whose merits a more carefully guarded and limited system require that he should be continued in it; what will _in the place of the old one, and not to allow be the motive which the President can have for such abuse of his power and the authority that operates vacancies made by the law or the will of the to prevent it? In the first place he will be impeachPresident to be so filled. This is made the able by the House for such an act of maladministramore probable when we consider that even tion," &c.-Annals of Congress, VI, p. 517. this is going to the utmost verge of legislative.It is, perhaps, proper in this connection that power in such cases. I should say expressly, what is implied in what The law upon the subject of repeals, by im- I have stated, that I entirely disagree with the plication, is well summed up by the supreme doctrine advanced in the argument, that we court of Massachusetts, in Bartlett vs. King, may find the respondent guilty although the (12 Mass., 563,) as follows: statute he has violated affecting his rights is "A subsequent statute revising the whole subject- itself a nullity, and in violating it he has only 885 done what the Constitution, the supreme law, relations of the respondent and Mr. Stanton permitted. If such be the law the Constitu- had been theretofore always friendly, and it tion, instead of being a guard, guide, and has never been stggested, even, that Mr. Stanwarning to officers, is a snare. ton had or has committed any wrong toward The fourth article is denied by the answer, the President personally or otherwise, save in and I do not think that it is proved. his conduct before mentioned, and in his reThe fifth article charges an unlawful con- fusal to resign. "' Public consideration " alone, spiracy to prevent the execution of the act of as the President himself stated, were the cause March 2, 1867, and an unlawful attempt to of the difference. The difference as to these prevent Mr. Stanton from holding the office. laws, then, existed at that session. The reThe conspiracy is denied, but the act is ad- spondent, in his answer, says that prior to mitted, with a claim of its legality. This article August 6, 1867, which was only two weeks is, I think, embodied within the same princi- after the adjournment, "he became satisfied ples as the first, and I am of opinion, upon the that he could not allow the said Stanton to congrounds already stated, that the respondent is tinue to hold the office without hazard to the guilty; for, although the mere attempt to do public interest." In other words, the Presian unlawful act is not within the penal section dent was opposed to the law in all its parts, of that act, I think that an attempt to commit and determined to defeat it. Mr. Stanton was an unlawful act of such grave character as this, for it. This was the sole casus belli. There is in law, a high misdemeanor. was a clear opportunity to resort to legal means The Supreme Court of the United States to displace the Secretary then by nominating (United States vs. Quincy, 6 Pet., 465) has another suitable person in his place. correctly defined a criminal attempt as follows: It may be said that the President knew that "To attempt to do an act does not, either in law or there would be no hope of the confirmation of in common parlance, imply the completion of the act any one who would not disagree with him about or any definite progress toward it. Any effort or the full execution of laws as greatly as Mr. endeavor to effectitwillsatisfythetermsofthelaw." Stanton, and hence it was useless for him to Stanton, and hence it was useless for him to The sixth and seventh articles allege a con- resort to that method of relief. This is doubtspiracy to seize (the sixth) by force, (the less true, and it places the respondent in the seventh,) unlawfully, the War Department, position of refusing to take a clear legal method property, &c. This is denied by the answer. of change because it would not answer his t seems to be properly conceded by the de- purpose. This necessarily leads to the prefense, even if the respondent had a lawful right sumption that if the respondent was in earnest to remove Mr. Stanton and to appoint General he would try some other way. He did so. No Thomas, that if that right was in honest dis- sooner had Congress adjourned than he " suspute he could not justify resorting to force in- pended" Mr. Stanton, as he had a legal right stead of the law to dispossess an officer from to do under the act of 1867, provided he acted an office which he had legally held, and which in good faith in so doing, and not as a mere he still claimed in good faith to hold legally. cover to get rid of an obstacle in the way of The question, then, on this article is purely his own opposition to law. Had he believed one of fact. Did the respondent, upon the in his power of removal, he could have exerfacts proved, and what we may lawfully notice cised itthen, and if Mr. Stanton would notyield, of'public history in connection with those facts, he could have instantly resorted to the courts combine with Thomas to get possession of the of law. This he did not do, but on the conWar Office at the expense of resorting to vio- trary excluded Mr. Stanton from the office lernce, or physical power, if that should be under the law for nearly six months, and then needful to reach the result? At the expense endeavored to arrange for defeating the same of repetition, to a certain extent, I will state law, by preventing Mr. Stanton from resuming the case upon this question. It is matter of possession under the vote of the Senate of history that prior to the July session of Con- January, 1868. At that time, then, his design gress in 1867, the opposition of the respond- was plainly to prevent Mr. Stanton, not, by ent to the laws relating to the rebel States was law, but by some other expedient, from holdso great that every obstacle that legal inge- ing the office, and forcing him, if he could, to nuity could suggest was, under his sanction, resort to legal measures for redress. thrown in the way of their operating in the During all this period down to the 21st of spirit intended by Congress, and that their February, when the act in question was comeffect was thus almost paralyzed. It is also mitted, no one was nominated to succeed Mr. historic that Mr. Stanton, through whose De- Stanton; and from the vote of January to that partment these laws were to be carried into date no step whatever was taken to resort to execution or to be obstructed, was earnestly any legal mode to procure the change he was in favor of carrying them out according to the determined to bring about. There was no manifest will of Congress and the fair meaning need to make an ad interim appointment if of the laws themselves. Nevertheless,obstruct- the sole object was to put things in process of ive interpretations and orders were issued judicial decision, for the order of dismissal which led to the session of July, 1867, and the alone, if not obeyed, would do that; and if explanatory act of that session. The personal obeyed, there would be no further steps in that 886 respect for the President to take; the desired a contriving of means to defeat the act of end would be accomplished. In this state of March 2, 1867; to defeat the Army appropriathings, with the Senate in session and pre- tion bill of 1867; and to defeat the act for the sumably ready to confirm an irreproachable more efficient government of the rebel States. man, he turns his back upon it and makes The first and third of these charges, I think, overtures to General Sherman to take the office for the reasons already stated, are proved by under his fiat. This is declined. Then Gen- the evidence already referred to as to the eral Thomas, a man who, judging from his causes for and the attempt to remove Mr. Stanappearance in court, must have been known to ton. The second, I think, is not. But upon the respondent not to be suited to the place the construction put upon this article by the of Secretary of War, is suddenly restored to Senate, that it only contains an accusation place as Adjutant General, the principal execu- touching Mr. Stanton, I feel bound to vote tive officer in the Army, and is then at once guilty upon it. appointed Secretary ad interim, with instruc- Much has been said in the course of the trial tions to "enter immediately upon the discharge upon the nature of this proceeding, and the of the duties," &c., which General Thomas nature of the offenses which can fairly be emagrees to do, with a formal mutual salvo that braced with the terms of the Constitution.' In "the Constitution and the laws" under which my opinion this high tribunal is the sole and the President had professed at the same time exclusive judge of its own jurisdiction in such to dismiss Mr. Stanton, should be maintained. cases, and that, as the Constitution did not I cannot believe that the respondent expected establish this procedure for the punishment of that Mr. Stanton would yield to anything less crime, but for the secure and faithful.dministhan force. He had been formally notified in tration of the law, it was not intended to cramp writing in August by Mr. Stanton himself that it by any specific definition of high crimes and he denied his power to remove him, or to sus- misdemeanors, but to leave each case to be pend him without legal cause, and that he defined by law, or, when not defined, to be would only yield when he had " no alternative decided upon its own circumstances, in the but to submit, under protest, to superior force." patriotic and judicial good sense of the RepThomas confesses on the stand that at some resentatives of the States. Like the jurisdictime in the course of the effort to get pos- tion of chancery in cases of fraud, it ought session, he expected to use force. In view of not to be limited in advance, but kept open as all these circumstances I cannot resist the con- a great bulwark for the preservation of purity clusion that the sixth and seventh articles are and fidelity in the administration of affairs, proved, and that the respondent is guilty, as when undermined by the cunning and corrupt therein charged. practices of low offenders, or assailed by bold The gravamen of the eighth article seems to and high-handed usurpation or defiance; a be the alleged attempt, by certain meansalleged, shield for the honest and law-abiding official; to get unlawful control of the public moneys. t sword to those who pervert or abuse their If this be the meaning of that article, and I powers, teaching the maxim which rulers enthink it is, I think the proof does not sustain dowed with the spirit of a Trojan can listen to the charge, and that the respondent is not guilty without emotion, that "kings may be cashupon that article. iered for misconduct."' The ninth article appears to me also to be Two exceptions that go, practically, to the wholly unsustained by proof. jurisdiction of this tribunal over such a cause The tenth and eleventh articles, so far as as this have been so much insisted upon in they relate to the sayings and speeches of the argument that their bravery challenges admirespondent, require ibr their support under the ration as much as their error does condemnarule I have before adverted to, an unlawful and tion. The first is that the Senate has no right criminal design and intent. However disgrace- to judge in what is called its own case; that ful these speeches may be-and they certainly such an act is contrary to the first principles of do not need any comment in that respect- justice, &c. fairly considered they were, I think, only in- In any proper sense it is not its own case. tended to appeal to the political prejudices of the Its members have no personal interest in it. people, and to induce them to overturn the party It is the case of the law violated by the usurpof Congress by a revolution at the polls, and ation of power under color of office. As well not byillegal violence. As such,Ithinkthem, might it be said that a court could not try a in a legal sense, within the liberty of speech contempt, or punish a breach of injunction, or secured by the Constitution and by the spirit sit in judgment in a case in which the comof our institutions; a liberty so essential to the munity of which the judges were members had welfare and permanency of a free Government an interest. To countenance such a doctrine in a state of peace and under the rule of muni- would be to defeat this great but gentle remedy cipal law, that it were better to tolerate a con- of the Constitution almost entirely; for most siderable abuse of it rather than to subject it to of the powers capable of easy usurpation are legal repression or condemnation. those granted to this body. Besides the accusation of criminal speech, The second is that the three great departarticle eleven seems to contain three charges: ments of the Government created by the Con 887 stitution, being coordinate, neither has the be for "treason, bribery, or other high crimes power to bring into review the acts of the ether, and misdemeanors." For no act which dqes and each is the supreme judge for itself of its not fall within the legal meaning of those own rights under the Constitution. If each of terms can impeachment be maintained. Politthe departments were in all respects the equal ical opinions, whatever they maybe, when not of the other, this would be true, and the only made crimes or misdemeanors, are not the submethod of correcting the misconduct or ag- jects of the power. If any such opinions can gression of either would be the ultima ratio be legally declared crimes or misdemeanors, regum-force. But the fathers, whose wis- what are spoken, no matter by whom, when dom has been so much and justly praised by no force is used disturbing the public peace, the counsel for the respondent, foresaw that certainly cannot be, such legislation being prosuch an arbitrament would destroy the Gov- hibited, not only by reason of the absence of ernment and the liberty that the Constitution any delegated authority to Congress, but bewas intended to perpetuate. cause that department is expressly prohibited *They, therefore, in the Constitution defined from so legislating by the very terms of the and measured, so far as was possible, the first of the amendments of the Constitution, respective powers of each. To this they super- providing that "Congress shall make no law" added the last and only means possible to "abridging the freedom of speech." human agency, a tribunal composed of the This guarantee extends to every citizen, Representatives of equal States, chosen for whether he'be in public or private life. Whatperiods long enough to remove them from the ever a private citizen can say without responsisudden impulses of popular excitement, and bility to Congress the President or any other short enough to make them feel responsible to official can say. The provision is intended to the settled convictions of the community they secure such freedom to all without regard to represented. To this tribunal, sworn to im- official station. The right is a personal one, partiality and conscientious adherence to the for the exercise of which there is no responsiConstitution and the laws, they committed the bility. It is secured as absolutely to every high powers indispensable to such a frame of person as the right of freedom of speech is Government, of sitting in judgment upon the secured to members of Congress by the sixth crimes and misdemeanors of the President, as section of the first article of the Constitution, well as all other officers of the United States. which says that "for any speech or debate in These faculties of the Senate fill up the meas- either House they shall not be questioned in ure of that description of it given by Mr. Mad- any other place." Both provisions are upon ison as the' great sheet anchor of the Gov- the theory, proved to be correct by history, that ernment." August, benignant, and supreme, a free Government is ever best maintained (it;f, upon the complaint of the people's Represent- indeed, it can be maintained without it) by atives, it brings to its judgment seat judges such unfettered freedom. Its possession by and Presidents and all the ministers of the law- others than members of Congrefss is a necesno station too lofty or powerful for its reach, sary restraint upon that department, while its none too low to escape its notice-and subjects possession by its members is equally necessary them, alike, to the serene and steadfast justice to a proper exercise of their power. In both of the law. The mechanism of government instances the right is placed beyond restraint. can do no more for society than this. These If members of Congress in debate assail the great powers, at once the emblem, the ideal, President in disparaging and vituperative lanand the realization of that orderly justice which guage; if they charge him with treason, a ig the law, we must this day exercise without violation of every duty, a want of every virfear. And so acting, there can follow to us tue, and with every vice; if they even charge no possible reproach and no detriment to the him with having been accessory to the murRepublic. der of his lamented predecessor-charges calculated to bring him "into disgrace," OPINION "hatred," "contempt, and reproach"-they are exempt from responsibility, by any legal proceeding, because' freedom of speech and HON. REVERDY JOHNSON. debate" is their right-how can it be that the President is responsible for the speeches alleged Time does not permit an examination in de- to have been made by him at the places and tail of the several articles of impeachment. I times referred to in the tenth and eleventh content myself, therefore, with considering the articles, when freedom of speech is equally legal questions upon which the most of them secured to him. That such speeches, whether depend. made by members of Congress or the PresiI. For what can the President be impeached? dent, are in bad taste, and tend to disturb the If the power was given without assigning the harmony which should prevail between the two causes it is obvious that he would be almost departments of the Government, may be conwholly dependent upon Congress, and that was ceded, but there isno law making them crimes clearly not designed. The Constitution con- or misdemeanors. This was attempted to bh sequently provides that impeachment can only done, as far as printed publications were won 888 cerned, by the second section of the act of the first, his counsel contend, is vested in him by 14th of July, 1798, (the sedition act.) The the Constitution, and not subject to the power constitutionality of that law was denied by of Congress; and that if it was, and Congress many of the most eminent men of the day, had a right to pass the act of the 22d of March, and the party which passed it was driven from 1867, " regulating the tenure of certain civil power by an overwhelming majority of the offices," that act did not take from him the people of the country, upon the ground that it power to remove Mr. Stanton. I will consider palpably violated the Constitution. By its own the second question first. What, then, in reterms it was to continue'but for a brief period, gard to Mr. Stanton, is the true construction and no one in or out of Congress has ever sug- of that act? Did it leave the President's right gested its revival. But the passage of the act to remove him as he possessed it before the proves that without such a law oral speeches act was passed? With all respect to the conor written publications in regard to any de- trary opinion, I think that it clearly did. partment of the Government are not criminal Without referring now to the different views offenses. entertained by the House of Representatives If these views be sound, the articles which and the Senate as to the propriety of including charge the President with having committed a Cabinet officers within the restriction which high misdemeanor by the speeches made in the law imposes upon the President in relation Washington, St. Louis, and Cleveland, in 1866, to other civil officers, it seems to me to be are not supported, first, because there is no law perfectly clear, from the language of the act which makes them misdemeanors; and second, itself, that Mr. Stanton's case is not within because if there was any such law it would be such restriction. In the first place, the title absolutely void. of the act is the regulation of the tenure of II. That the terms crimes and misdemeanors CERTAIN (not of ALL) civil offices. In the in the quoted clause mean legal crimes and second, the tenure prescribed in the body of misdemeanors (if there could be any doubt upon the first section is, that every person holding the point) is further obvious from the provision a civil office under an appointment made by in the third section of the first article of the the President, with the advice and consent of Constitution, that, notwithstanding the judg- the Senate, and who has duly qualified, is to ment on impeachment, the party is liable to hold his office until his successor shall in like "indictment, trial, judgment, and punishment manner be appointed and qualified. If the according to law." Thisproves that anofficer law stopped here, the Cabinet would be emcan only be impeached for acts for which he is braced and hold by the same tenure. But from liable to a criminal prosecution. Whatever this tenure certain exceptions are made. The acts, therefore, could not be criminally pros- concluding part of the section is in these words: ecuted under the general law cannot be the "exceptas herein otherwise provided." These grounds of an impeachment. Nor is this doc- latter words mean the same thing as if they trine peculiar to the United States. It was were in the beginning instead of the close of held in the case of the impeachment of Lord the section. Place them in the beginning, and Melville, as far back as 1806, and has never no one could doubt their meaning. since been judicially controverted in England. It would then be clear that it was not the purThe charges in that case were the alleged im- pose to prescribe the tenure of all officers approper withdrawal and use of public funds in- pointed by the President with the consent of the trusted to him as treasurer of the Navy. By Senate, and that in regard to some a different the managers it was contended that these were one was to be provided. If this be right, and I by law crimes and misdemeanors, and denied do not see that it can be questioned, it follows by his lordship's counsel. The impeachment that whatever tenure is differently prescribed, evidently turned upon the decision of the ques- as to other offices, these are not to be held by tion. The opinion of the judges was requested the tenure in the first section. Immediately by the House of Lords, and their answer was, succeeding the words of exception before,that they were not crimes or misdemeanors, quoted, follows the provision to which the exand his lordship, on a vote, in the aggregate ception refers, " that the Secretaries of State, upon all the articles, of thirteen hundred and of the Treasury, of War, of the Navy, and of fifty, was acquitted by a majority of eight hun- the Interior, the Postmaster General, and the dred and twenty-four. Attorney General," are to hold by a different III. Are, then, the acts alleged in the first tenure from that before defined. And this is, eight articles crimes and misdemeanors? that they are to " hold their offices respectively 1. Are they so independent of the actual for and during the term of the President by intent with which they were done? whom they may have been appointed, and for 2. If not. are they without criminality be- one month thereafter," subject, of course, to re-cause of such actual intent? moval by the President with the approval of the I.. The acts charged are the orders of the Senate. That this proviso withdraws the offices President of the 21st of February, 1868, re- specially enumerated from the operations of the moving Mr. Stanton as Secretary of War and enacting clause cannot be doubted. It has the appointing General Thomas as Secretary ad same effect in this regard as if it had been the interim. The President's authority for the first section of the act instead of a proviso to that 889 section. If it had been itself the first section, SHERMAN and WILLIAMS, members of the comrnand what is now the first section without the mittee of conference on the part of the Senate, proviso had been the second, then all would when making their report. The Senate had by admit that the tenure of office- provided by the two votes decided that Cabinet officers should, first section as it stands would have nothing to as always before, hold their places at the do with the tenure of Cabinet officers. In other pleasure of the President, and that such was words, that it was the object of the act to assign evidently the design of Congress when organto these offices a tenure entirely distinct from izing the several Departments. The Senate, that assigned to other civil offices. therefore, excluded them altogether from the The only inquiry that remains is, what is the provisions of the bill, but the House insisted tenure by which Cabinet officers hold their upon including them. It was this difference places? That they are not to hold them for between the two Houses which the conference an unlimited period is evident. What, then, committee was appointed to settle. In making is the limitation of their title? the report Mr. SHERMAN stated that to include I. It commences, necessarily, with the date them would, in his opinion, be practically of their appointments. unimportant, because " No gentleman, no man II. It expires at the end of the term of the with any sense of honor, would hold a position President by whom they may have been ap- as a Cabinet officer after his chief desired his pointed, and one month thereafter. Mr. Stan- removal; and, therefore, the slightest intimaton was appointed by President Lincoln dur- tion on the part of the President would always ing his first term, by and with the advice and secure" his resignation. And he added that, consent of the Senate. By virtue of that ap- by the proposition of the committee, such an pointment, and by that alone, he was commis- officer would hold " HIS OFFICE DURING THEi sioned. He never received any other appoint- LIFE OR THE TERM OF THE PRESIDENT WHO ment or commission. If the act of the 2d of APPOINTED HIM," and that "if the President March, 1867, had passed during Mr. Lincoln's dies the Cabinet goes out; if the President is first term, and was constitutional, Mr. Stan- removed for cause by impeachment the Cabinet ton's term of office would have expired at the goes out; at the expiration of the term of the end of one month succeeding the termination President's office the Cabinet goes out; so that of Mr. Lincoln's first term, with no other right the Government will not be embarrassed by an afterward to the office than in the nature of a attempt by a Cabinet officer to hold on to his tenantcy at sufferance. office, despite the wish of the President or a The title which he could claim under the act change in the Presidency;" and that this proof 1867 has long since ended. To enable him vision obviated " the great danger that might to hold the office against the wish of the Pres- have arisen from the bill as it stood amended ident by whom he was not appointed, in my by the House." judgment, would be a palpable violation of Mr. WILLIAMS said that the House by its the law, equally inconsistent with its language amendment had placed " the heads of Departand its object. Inconsistent with its language, ments on the same footing with other civil offibecause that says that the office is to be held cers, and provided that they should not at any "' for and during the term of the President by time be removed, without the advice and conwhom" he was appointed, and Mr. Lincoln's sent of the Senate;" that this was objected to, term necessarily terminated with his life. In- because when " a new President came into ofconsistent with its object, because that clearly fice he might be compelled to have a Cabinet is to leave a President who comes into office not of his own selection;" and that the amendat the termination, by whatever cause, of the ment proposed by the committee was, "that term of his predecessor, the unfettered right when the term of office expires the offices of the at the end of one month after such termination members of the Cabinet shall also expire," at to select his own Cabinet. the end of one month thereafter. He further If the propriety (conceding Congress to have added, that "the report of the committee is the power) be admitted of denying to the Pres- intended to put the heads of Departments upon ident the right exercised by all of his prede- the same footing with all the other officers cessors of removing a Cabinet officer at pleas- named in the bill, with this exception, that ure, it would seem to be most improper and their terms shall expire when the term of office impolitic in regard to any such officer not of the President by whom they were appointed appointed by himself. Responsible for the expires; that is the effect of the provision." preservation of the Constitution and the faith- Relying upon these statements, the Senate ful execution.of the laws, nothling could be adopted the report of the committee, and the more unjust and unwise than to force upon him bill passed with the proviso. No Senator intia Cabinet in whom he might have no confi- mated that these gentlemen had not placed a dence whatever, either for want of integrity proper construction upon the proviso, and conor capacity, or both, and in whose selection he sequently no Senator suggested that the then had no choice. members of th) Cabinet of the President, who III. If there could be any doubt that the were not appointed by him, but by Mr. Linconstruction I give to the act is correct it would coln, were either within the protection of the be removed by the explanation of Senators body of the section or of the proviso, and I do 890 not think I am mistaken in the impression that A vacancy, therefore, arising from resignation the bill could not have been passed by the Sen- or removal or expiration of term of office, was ate without the understanding that Messrs. not provided for. The omission was supplied SHERMIAN and WILLIAMS were right in their by the act of the 13th of February, 1795, which interpretation of it. gives the President the same authority in the It also appears by the President's message case of a vacancy, hoyiever produced. Like of the 12th of December, 1867, given in evi- the act of 1792, it is confined to the State, dence by the managers, that it was construed Treasury, and War Departments, and differs in the same way by every member of the Cab- from it in limiting the authority to a period of inet, Mr. Stanton included. That gentleman six months succeeding the vacancy. Both laws being appointed by Mr. Lincoln, and not by left unprovided for vacancies occurring in the Mr. Johnson, his tenure of office ended one other Departments. But it appears by the month succeeding the death of the former. In evidence that such appointments were made the language of Mr. SHERMAN, when the Pres- by all the predecessors of -Mr. Johnson- in the ident who appoints a Cabinet officer "dies," Departments not included within the acts rethe officer " goes out." How, then, can the ferred to, as well as in those that were included. Senate convict the President of having crim- And there is nothing to show that their validity inally violated the act in question, when what was at any time questioned by Congress. On he did in relation to Mr. Stanton was not within such an appointment by President Buchanan.the prohibition of the act, according to the in- of Judge Helt to the War Department, made terpretation put upon it at the time it was being during the session of the Senate, a resolution passed by the Senate itself? and yet this they was passed calling upon him to state the auwill do if they find him guilty upon the articles thority under which he acted. This he did by which relate to his attempt to remove Mr. Stan- the message of January 15, 1861. In that ton on the 21st of February, 1868. message many instances are mentioned of apIV. Did the President commit a crime or pointments of the kind in all the Departments misdemeanor by his order of the 21st of Feb- as well during the session as in the recess of ruary, 1868, appointing General Thomas Sec- the Senate; and from that time to this imretary ad interim? That appointment forms peachment the authority of the President had the subject of the charges in the second, third, been considered established. and eighth articles. If I am right, that Mr. For the appointment of Thomas, then, the Stanton was not within the protection of the President had the example of all his predeact of 1867, and could be removed at pleasure cessors. To hold that he committed a crime or by the President, then the legal effect of his misdemeanor in making it would, I think, shock order of the 21st of February worked a removal, a proper sense of justice, and impute to every and, of course, made a vacancy in that Depart- President, from Washington to Lincoln, ofment. fenses for which they should have been imThere being a vacancy, had not the'Presi- peached and removed from office. Such an dent a right to fill it by an ad interim appoint- imputation could not fail to meet the severe ment? If he had, the articles in question are rebuke and condemnation of the country. But unsupported. 1. Independent of legislation, it is said that the act of 1795 was repealed by the President being, with a few exceptions, that of the 20th of February, 1863. This seems vested with the executive power of the Gov- to me a palpable error. That act contains no ernment, and responsible for the faithful exe- words of express repeal, nor even of reference cution of the laws, he must have the power by to the one of 1795. implication to provide against their temporary If it does repeal that act, it is only because failure. And if this be so, then, upon the oc- its provisions are so inconsistent with it that currence of a vacancy in office, which, if not the two cannot in any particular stand together. at once supplied, will cause such a failure, he If they can, upon a well-settled rule of intermust have the right to guard against it. 2. But pretation, they must so stand. Are they so there is legislation which, in my judgment, inconsistent thatthiscannotbe done? 1. The clearly gives him the power to make the appoint- legal presumption is that Congress, when they ment. passed the latter act, had the former one beOn the contingency -I of the death, absence fore them, and thatthey intended only to repeal from the seat of Government, or sickness of the former in the particulars for which the the Secretary of State, Secretary of the Treas- former provides. The policy of such legislaury, or of the Secretary of War," &c., the tion was adopted in 1789 bythe act organizing President, by the act of the 8th of May, 1792, the several Departments. By the second secsection eight, was authorized to appoint any tion of the one relating to the War Departperson or persons to perform the duties of the inent, (and the same provision is made asto the said offices respectively " until a successor be other Departments,) on the removal from office appointed, or until such absence or inability by by the President of the Secretary, or a vacancy sickness shall cease." arising from any cause, the chief clerk was to This act provided for a vacancy caused by have charge and custody of all the papers, &c., death in either of thethree departments named, of the office.'It was also adopted in 1792, 1795, and not for one produced by any other cause. and 1863, and is in words recognized by the 891 eighth section of the act of the 2d of March, independence of that department. How, then, 1867, itself, in the provision "that whenever are they to maintain their respective rights? the President shall, without the advice and To submit would be to abandon them, and be a consent of the Senate, designate, authorize, or violation of duty. If the Executive interferes employ any person to perform the duties of any with the rightful authority of Congress that office," he shall inform the Secretary of the body must defend itself; and for this Purpose Treasury. This provision evidently implies it may resort to impeachment, if the interferthat the President had the right to make such ence be a high crime and misdemeanor. an appointment, and subject it to no other 1. Has the President, by the Constitution, qualification (and that was unnecessary, as et the power to remove officers appointed with was always done before) than that he advise the advice of the Senate? Whatever doubts the Secretary. were originally entertained upon the point, the This policy is not only conducive, but abso- power is too firmly established to be shaken, lutely necessary to the good of the public ser- if a constitutional question can be settled by vice. The act of 1863 does not embrace the the authority of time and precedent. It was case of a vacancy arising from removal, or ex- clearly held to exist when the Departments piration of term. These two cases, therefore, were established in 1789 by the laws creating if the act of 1795 is not in force, and the Pres- them, and by the congressional debates of the ident has not the power independent of legis- day. Until lately this was conceded. Every lation, are without remedy, and the office, commentator upon the Constitution has so although the event may occur the day after stated. The Supreme Court of the United the termination of a Congress, must remain in States have also so held. abeyance, and all business connected with it In a letter of Mr. Madison to Edward Coles, so remain until the commencement of a suc- of the 15th of October, 1834, (4 Madison's ceeding Congress, which, when the act of 1863 Writings,'368,) in referring to the question of was passed, would have been a period of eight the right of the Senate to participate in remonths. The disastrous condition in which movals, that distinguished statesman writes this might place the country is of itself suffi- thus: cient to prove that the act of 1795, by which " The claim on CONSTITUTIONAL ground to a share such a condition would be averted, was not in the removml as well as appointment of oficers i8 in direct opposition to the uniform practice of the Govintended to be repealed by the one of 1863. ernment from its commencement. It is clear that the And this court, as well as any other court innovation would not only vary essentially the existing before whom the question may arise, is bound balance of power, but expose the Executive occasionally to a total inaction, and at all times to delays fatal to the to rule against such an appeal. due execution of the laws." V. Thus far I have considered the act of 1867 as constitutional. I will now examine And on the 16th of February, 1835, in a 1867as constitutioo ard this cas xtmine speech in the Senate, Mr. Webster, while that question. As regards this case, the in- qtining the corrctessof thedeisionof qio- questioning the correctness of the decision of quiry is only material upon the assumption 1789, says: (which I have endeavored to show is un-.I dosnot mean to deny't." that at the present mouent founded) that Mr. Stanton was within the act the Preeident may remove these officere at till, because so as to deprive the President of the power to the early decision adopted that construction, and the remove him. Is the act constitutional? The laws have since uniformly sanctioned it." Constitution is framed upon the theory (the If any supposed doubtful constitutional quescorrectness of which no political student will tion can be conclusivsly solved, is not this so deny) that a free constitutional government solved? Mr. Madison, in his message of Janucannot exist without a separation of legislative, ary 30, 1815, adverting to the power of Conexecutive, and judicial powers, and that the gress to incorporate a bank of the United complete success of such a separation depends States, which he, while a member of Congress, upon the absolute independence of each. with great ability had denied, said that he Under this conviction, the legislative depart- waived the question as " precluded in (his) ment, within the limits of its delegated powers, judgmentbyrepeated recognitions undervaried is made supreme; and the executive depart- circumstances of the validity of such an instiment, with a few exceptions, not necessary to tution in acts of the legislative, executive be mentioned, is also made supreme; and the and judicial branches of the Government.' same is true of the judicial department. Are not these observations even more appliThe object of the supremacy of each would cable to the present question than to the one be defeated if either were subordinate to the before him? others. To avoid this each must necessarily VI. Admitting, however, for argument sake, have the right of self-protection. This is ob- that I am in error as to the construction of vious. To put it in the power of the Execu- the act of 2d of March, 1867, or its constitutiontive to defeat constitutional laws passed by ality, this can hardly be disputed-that differCongress in due form would be to destroy the ences of opinion in regard to each may be independence of that department; and to put honestly entertained. Conceding this, it necesit in the powers of Congress to take away or sarily follows that there can be no criminality limit the constitutional powers of the Execu- in the holding of either opinion. The Presitive would likewise be to destroy the complete dent thought and still thinks, as he tells us, 892 that Mr. Stanton is not so within the act as to stitution declares it not only to be one, but to be beyond his right to remove him; or, if he be the supreme law, and prescribes no such is, that the act in that respect is unconstitu- supremacy to acts of Congress, except to such tional. As to the first, he has the express as are passed in "pursuance thereof." The sanction of Senators WILLIAMS and SHERMAN, execution, therefore, by him of an act not announced when the law was being passed, passed in pursuance of the Constitution, but in and the implied sanction of every member of violation of it, instead of being a duty, would the Senate who voted for it, without question- be a breach of his sworn obligation to preserve ing the construction given to it by the two the Constitution. Nor is there any inconsistSenators. And as to the second, he has the efcy between his duty to protect the Constitusanction of the doctrine established in 1789, tion, and to see to the faithful execution of the and acted upon by every one of his predeces- laws-the Constitution itself prohibiting the sors from Washington to Lincoln, admitted enactment of any law which it does not auas established by Mr. Webster in 1835, and thorize Congress to pass. Were it otherwise vindicated as essential to the public service by the Constitution might become a dead letter, Mr. Madison in 1834. Entertaining these as its effect from time to time would depend opinions, what were his rights and his duty? upon Congress; in other words, that body If by the Constitution the power of removal would be the Government, possessing practiwas vested in him, he was bound by the very cally all powers-legislative, executive, and terms of his official oath to maintain it. Not judicial-a result clearly destructive of liberty. to have done so would have been to violate VII. Each of the articles charged that the the obligation of that oath to "preserve, pro- enumerated acts were done by the President tect, and defend the Constitution." But two "with intent" "to violate" the acts of Concourses were left open to him-that of forcible gress specially mentioned, and were "contrary resistance, or of a resort to the judiciary. The to the provision of the Constitution," and that first might have produced civil commotion, he was, therefore, "guilty of a high misdeand that he is proved never to have contem- meanor in office." plated. The judicial department of the Gov- The alleged offenses, then, are made to conernment was established for the very purpose, sist of acts and intent. The latter is as material among others, of deciding such a.question, it as the former. Now, what doubt can reasonbeing given jurisdiction in "all cases in law ably be entertained that the President had not and equity arising under (the) Constitution." the intent imputed? On the contrary, is it not It was to this tribunal that the evidence shows manifest that his purpose was to preserve both that he intended to resort. Was that a crime? from violation? This is certainly true, unless He believed, and had a right to believe, that itbe supposed thathe believed thatthe Supreme the constitutional authority of the Executive Court of the United States would aid him in was violated by the act, if Mr. Stanton was such a violation. Assuming that he believed protected by it; and he sought to have that that tribunal to be honest and capable, the very question peacefully settled by the judgment of fact of his wishing to obtain its decision upon the very tribunal created for such a purpose. the questions before him demonstrates that his And there was no one else who could appeal design was not to subvert, but to uphold the to it with that view. It was the authority of Constitution, and obtain a correct construction the executive department of the Government, of the act of March, 1867. not any individual right of his own, whichwas VIII. I deem it wholly unnecessary to conassailed. He, and no one else, represented sider the fourth, fifth, sixth, and seventh-the that department and could institute legal pro- conspiracy articles-or the ninth, the Emory ceedings for its vindication. This, therefore, article, no evidence whatever having been was not only his right, but his sworn duty. offered even tending, as I think, to their supThe doctrine that the President is forced to port. execute any statute that Congress may pass IX. It has been said that the Senate, by their according to the forms of law, upon subjects resolution of February, 1868, having declared not only not within their delegated powers, that the President's removal of Mr. Stanton but expressly denied to them, is to compel him was contrary to the Constitution and the law, to abandon his office and submit all its func- the Senators voting for it are concluded upon tions to the unlimited control of Congress, both points. This is a great error. That resand thus defeat the-very object of its creation. olution was passed by the Senate in its legisSuch a doctrine has no support in the Con- lative capacity, and without much deliberation. stitution, and would in the end be its destruc- The questions were scarcely debated. To hold tion. that any Senator who voted for it is not at It has been contended on the part of the perfect liberty to reconsider his opinion on managers that the President has no right to this trial is to confound things entirely distinct. question the constitutionality of an act of Con- That resolution the Senate at any time, in its gress because of his duty faithfully to execute legislative character, can reverse when conthe laws. But what is the law which he is to vinced of its error. But this is not so in relaexecute if the act is in conflict with the Con- tion to any error of law or fact into which this stitution? Is not that also a law? The Con- court may now fall. It is now acting in a 893 judicial character. The judgment which it more readily and certainly whether it describes may pronounce as regards the respondent will a misdemeanor or crime. be final. To suppose, then, that a Senator, The first article alleges that the respondent when he is satisfied that his former opinion did, unlawfully and in violation of the Constituupon the legal questions now before him is tion and laws, issue an order in writing for the erroneous, may not correct it, but is bound to removal of Edwin M. Stanton from the office of pronounce a judgment which he is convinced Secretaryfor the Department of War, with the would be illegal, is to force him to violate the inten$ to violate the act above referred to, and oath he has taken to decide the case impar- with the further intent, contrary to and in viotially, according to law and justice. The lation of the provisions of the said act, and resolution of February was not a law. That contrary to the provisions of the Constitution, everybody will admit. To act in virtue of and without the advice and consent of the Senit, disregarding what he is convinced is the ate, then in session, remove the said Stanton law, would be a gross abandonment of duty. from his said office. It has also been said by some inconsiderate The Constitution is silent on the subject of persons that our judgment shbuld be influenced removals from office, unless a rule on the subby party consideration. We have been told in ject may be inferred from the provisions itconsubstance that party necessity requires a con- tains relating to offices and officers. The only viction; and the same is invoked to avoid what authoritative interpretation of its meaning in it is madly said will be the result of acquittal- this relation previous to the passage of the civil commotion and bloodshed. Miserable tenure-of-office act is found in an act of Coninsanity, a degrading dereliction of patriotism. gress passed in 1789, and this concedes to the These appeals are made evidently from the ap- President alone the right to remove. The proprehension that Senators may conscientiously visions of the tenure-of-office act must therebe convinced that the President is innocent of fore be examined in order to determine whether each of the crimes and misdemeanors alleged what is charged to have been done by the rein the several articles, and are intended to force spondent was a violation of that act and of the him to a judgment of guilt. No more dishon- Constitution. oring efforts were ever made to corrupt a judi- The plain and evident intention of the act cial tribunal. They are disgraceful to the par- just referred to is that no person appointed to ties resorting to them, and should they be suc- any office by and with the advice and consent cessful, as I am sure they will not, they would of the Senate shall be removed therefrom, forever destroy the heretofore unblemished although he may be suspended in certain specihonor of this body, and inflict a wound upon fled cases, without the like advice and consent. the Constitution itself which, perhaps, no time There is no question that Mr. Stanton was so could heal. appointed to the office of Secretary of War, and was duly qualified to act therein. In order OPINION to prevent a removal from any such office the OF act provides, in effect, that the incumbent shall HON. PETER G. VAN IN LE. hold it until his successor is in like manner HON. PETER G. VAN WINKLE. appointed and duly qualified, unless the time is limited by law, and shall expire before such In the following remarks I have endeavored appointment and qualification. The proviso to state the conclusions to which I have ar- in the first section does not, in my opinion, rived, with some reasons for them, and not to except any of the Cabinet officers from the review the whole case. I have, therefore, operation of the preceding clause of the same onitted the consideration of all questions section, although, for the first time, it specificraised in the course of the proceedings which ally limits their respective terms.' If, as is do not affect those conclusions: alleged, the proviso leaves it doubtful as to Conceding the constitutionality of the tenure- the duration of Mr. Stanton's term, it is, in of-office act of March 2, 1867, there yet remains my opinion, certain that at the time the said some questions to be disposed of before an in- order in writing was issued his tenure was protelligent answer can be given to the accusation tected by the preceding clause. In its very or charge contained in the first article of im- language he was, and is still, "holding a civil peachment. Senators are to pronounce upon office to which he has been appointed by and this, as well as the charges in the other articles, with the advice and consent of the Senate," by replying, under the oaths they have'respect- and the order in writing not only addresses ively taken, to the question, "Is the respond- him as Secretary for the Department of War, ent, Andrew Johnson, President of the United but asserts that his "functions as such will States, guilty or not guilty of a high misde- terminate on receipt of that communication." meanor, (or crime, as the case may be,) as The sixth and only penal section of the act charged in this article?" I have, therefore, which refers to a case like that under considin each case, where I deemed it at all neces- eration provides that every removal, appointsary, endeavored to present the charge stripped ment, or employment made, had, or exercised of immaterial verbiage, in order to ascertain contrary to the provisions of that act shall be 894 deemed, and is thereby declared to be, a high respondent to the first article contains confesmisdemeanor. It therefore appears that the sions which cure the defects above indicated. act of the respondent complained of, if it was To this I reply that the answer cannot confess criminal, must be obnoxious to the provisions what is not charged. of this section. The second article is based upon the letter The charge made by the first article is, that of authority issued and delivered by the rethe respondent did' issue an order in writing spondent to General Lorenzo Thomas. It (which is set out at full length) for the removal charges that the respondent, with intent to vioof Edwin M. Stanton from the office of Secre- late the Constitution and the tenure-of-office taryfor the Department of War." This is the act, the Senate being then in session, and there whole of it, so far as the acts as distinguished being no vacancy in the office of Secretary of from the intentions of the respondent are con- War, did issue and deliver to the said Thomas cerned. There is not even an allegation that the aforesaid letter of authority, which is set the order in writing was ever delivered to, or out at full length. Referring to some remarks served on, Mr. Stanton, or ever directed to be made above on the first article, it is plain that so delivered or served, or that any attempt was the issue and delivery of the letter of authority made to deliver or serve it; or, in fact, that cannot be a violation of the Constitution unMr. Stanton ever saw or heard of it. less it is also a violation of the tenure-of-office As the order in writing is neither an appoint- act, which is charged. In order, therefore, to ment or employment it must have effected a ascertain whether the charge made in the secremoval, or have been, at least, an attempt to ond article covers a misdemeanor the act itself remove, in order to constitute a violation of must be reviewed. the act; but no removal or attempt to remove The most rigid examination of that act will is charged, and consequently the respondent fail to disclose that its provisions anywhere could not have been guilty " of a high misde- refer to an ad interim appointment, except in meanor, as charged in this (first) article." its second section, where, in case of a suspenHad an attempt to remove been charged'there sion, such an appointment is authorized. The was still no averment of even attempted deliv- language, after stating what offense or misconery or service of the order in writing. " To duct will authorize a suspension, is that "in issue," which means simply to sendforth, can- such case, and in no other," "the President not imply a delivery or service; and if there may suspend such officer, and designate some is evidence of a delivery to be found in the suitable person to perform temporarily the proceedings it cannot be applicable to this duties of such office," &c. Here the suspenarticle, in which there is no charge or aver- sion is the principal thing, and the temporary ment. This objection may seem technical, but designation the subordinate. This justifies the a consideration of the whole article will show construction that the words " in such case, and that it is substantial, and that a service or no other," mean that only such cases as are delivery was, in fact, necessary to complete specified in the beginning of the section, octhe alleged offense, especially if it is observed curring in a recess of the Senate, will authorthat the order in writing addressed to Mr. ize suspension. They do not and cannot mean Stanton says, " Your functions as such (Sec- that in no other case shall there be a temporetary of War) will terminate upon receipt of rary designation or appointment. Such a conthis communication," and consequently not clusion is forbidden bythefact that temporary till then. It is, therefore, evident that the designations were, at the passage of the act, delivery to and receipt by Mr. Stanton of the and still are, authorized by both law and cusorder in writing was necessary to complete his tom. removal from office, if any mere writing could Turning to the penal sections of the tenurehave that effect. of-office act it will be seen that the fifth applies Admitting that the intents of the respondent only to those who accept, hold, or exercise in issuing the order in writing were precisely any office or employment contrary to the proas charged, it mnay be questioned whether they, visions of that act; and, as General Thomas is ~together with the act done, constitute a high not upon trial, its further consideration may misdemeanor. Of course the intent alone be dismissed. If, then, the respondent comndoes not. It merely qualifies or characterizes mitted a misdemeanor under this article, the the act, and however reprehensible the former act or acts done by him must have been such may be the latter must be of itself unlawful. as are described in the sixth section. There is no clause in the act that forbids or That section declares that "every removal, denounces the mere issue, without some further appointment, or employment made, had, or act, of such a paper as the order in writing, exercised, contrary to the provisions of this and such an issue could not be even an attempt act, and the making, signing, sealing, counto remove from office. By the very terms of tersigning, or issuing of any commission or the order any intention to remove Mr. Stanton letter of authority, for or in respect to any until he had received it is negatived, and there such appointment or employment," shall be is no charge or allegation that he did receive it. deemed a high misdemeanor. Leaving out It has been suggested that the answer of the of consideration the word removal, which is 895 not involved in the charge, the section includes and consent of the Senate, with intent to vioonly appointments and employments made, late the Constitution, no vacancy having haphad, or exercised, contrary to the provisions pened in the said office during the recess of of the tenure-of-office act, and certain acts re- the Senate or existing at the time. lating to such appointments and employments9 It will be observed that it is not charged that As the latter are a consequence of the former, the Secretary was not temporarily absent from and as if the former was legal, the latter, in the office, or sick, in which cases the so-called the same case, would be legal also; and, in appointment would have been legal. The act fact, there could be no employment without a of the respondent is alleged to have been done previous appointment-the former may be without authority of law, with intent to violate considered as include[ in the latter-so that the Constitution. If it can be deemed a full if the appointment of General Thomas was appointment it was such a violation, for such legal, or the reverse, his employment would appointments require the advice and consent' bear the same character. of the Senate; but as the letter, the only eviIt may be fairly questioned whether the au- dence on the subject, shows it to have been thority conferred on General Thomas was in only ad interim, and the Constitution makes its nature an appointment, in the strict legal no mention of such appointments, it does not sense of that term. The letter set out'in the appear that it can be such a violation. As to article simply empowers and authorizes him to its being done "without authority of law," it act, and does not use the word appoint, or any can hardly be intended to assert that every act equivalent term. In the case of a suspension, for which a special or general permission of authorized by the second section, it is not said law is not shown is unlawful and a misdethat the President may appoint, but that he meanor. Yet this is the only ground on which may " designate some suitable person," &c. the alleged act of the respondent is charged to The term appointment may befamiliarly used in be the latter. such cases; but what is questioned is whether The fourth, fifth, sixth, and seventh articles such is its proper legal application. Conceding are severally based on an alleged conspiracy this, however, it remains to inquire whether the of the respondent and General Thomas. It is appointment of General Thomas was, in the sufficient to say as to these that there is no language of the penal sections, "contrary to evidence before the Senate which furnishes the provisions of the act." It is very evident proof of even a technical conspiracy. that the act refers everywhere to appointments As to the eighth article, it may be remarked made by and with the consent of the Senate, that the evidence relating to its subject clearly except in the second section, and there so far shows that the ad interim appointment of Genonly as the same relates to the designation of eral Thomas, or of any other person, would a person to act ad interim in the case of a sus- not have enabled the respondent "to control pension,which has been already noticed. It is the disbursements of the moneys appropriated very certain that an ad interim appointment, for the military service and the Department of designation, or authorization has never been War " any further than he legally might with held, or, so far as I am informed, even sup- Mr. Stanton or any other acceptable person in posed to require the advice and consent of the the office. This negatives the alleged criminal Senate. It does not seem, therefore, that the intent. letter of authority, as it is called in the article, The ninth article is supported by evidence, is contrary to the provisions of the tenure-of- and the alleged intents may be said to be disoffice act. As the making, signing, &c., of proved. any letter of authority, made penal by the The tenth article charges, in substance, that sixth section, must be for or in respect to such the respondent, designing and intending to set an appointment, &c., as is contrary to the pro- aside the rightful authorities and powers of visions of the act, and it has been shown that Congress, attempts to bring Congress and its the letter of authority to General Thomas did several branches into disgrace, ridicule, hatred, not relate to such an appointment, the issue contempt, and reproach; to impair and destroy and delivery of it did not constitute a misde- the respect of the people for Congress and its meanor, as charged in the second article. legislative power and to excite the odium and The third article is also based upon the let- resentment of the people against Congress and ter to General Thomas, which is set forth at the laws enacted by it; in pursuance of such length, but is not here called a letter of authpr- design and intent, openly and publicly made ity, but an appointment. It is not charged to and delivered, with a loud voice, certain inhave been issued contrary to the tenure-of- temperate, inflammatory, and scandalous haroffice act; but the remarks on the preceding angues, the particulars of which are set forth article may properly be referred to here. The in the three specifications found in this article. charge is that, under circumstances precisely It is pleasant to learn, as is disclosed at the similar to those stated in the second article, end, that this design and intent of the rethe respondent did, without authority of law, spondent was in some manner frustrated, for it the Senate being in session, appoint one Lo- is there said that by means of the said utterrenzo Thomas to be Secretary for the Depart- ances, declarations, threats, and harangues, ment of War ad interim, without the advice the respondent had brought, not Congress, but 89:6 the high office of the President of the United attempting to devise: and contrive, means by States into contempt, ridicule, and disgrace, to which he should prevent Mr. Stanton from the greatscandal of all good citizens." There forthwith resuming the functions of his office, may be more truth than poetry in this, and if notwithstanding the refusal of the Senate to so, it is not the first case of an engineer " hoist Ipncur in his suspension; and also attempted by his own petard." It may, nevertheless, be lo prevent the execution of the said act by difficult to determine whether the ineffectual further unlawfully devising and contriving, and design and intention, or the accomplished re- attempting to devise and contrive, means to suit, constitutes the alleged misdemeanor. prevent the execution of the Army appropriaThe difficulty, however, may be obviated by tion act of 1867, and also to prevent the exeremembering that several of the original States, cution of the reconstruction act of the 2d of almost as a condition of their respective rati- March, in the same year. fications of the Constitution, insisted that cer- As there is no specification of any "means"' tain amendments of that instrument should be so devised and contrived, and no sufficient adopted, which, as to the most of them, was proof of any attempt to interfere with the exspeedily done. The first provides that "Con- ecution of the two last-mentioned acts, their gress shall make no law abridging the freedom further consideration may be dismissed. The of speech." This remains in the Constitu- only specific charge remaining is the devising tion, and is unquestionably of universal appli- and contriving, and attempting to devise and cation. It seems, therefore, that no such contrive, means by which he should prevent misdemeanor as is charged in this article can Mr. Stanton resuming his office under the cirbe committed in this country. cumstances stated; and, in fact, as the attemptThe eleventh article alleges in substance ing to attempt to commit a misdemeanor is that the respondent, by public speech, declared rather too remote to be in itself a misdemeanor and affirmed that the Thirty-Ninth Congress the naked charge is that the respondent atwas not a constitutional Congress, authorized tempted to prevent the execution of the tento exercise legislative power, but a Congress ure-of-office act by devising and contriving of only part of the States, thereby denying means, which are nowhere specified or deand intending to deny that its legislation was scribed, by which he should prevent Mr. Stanvalid or obligatory upon him, except in so far ton from forthwith resuming the functions of as he saw fit to approve the same, and also his office. The proof of this charge rests thereby denying and intending to deny the wholly upon the respondent's correspondence power of the said Thirty-Ninth Congress to with General Grant, which is in evidence, and propose amendments to the Constitution of the by which it appears that the respondent enUnited States. deavored to induce the General, at a time preI do not perceive or admit that these alleged vious to the correspondence, but while that intentions are proved, and in my remarks on officer was authorized to perform, and was perthe preceding article have expressed the opin- forming, the duties of Secretary of War ad ion that declarations and affirmations made by interim, to keep possession of that office, and public speech cannot constitute a criminal thereby prevent Mr. Stanton's resumption of offense. This, however, is of little import- it, or to surrender it in time to permit the ance, as the whole is merely introductory, and induction of a successor for that purpose. does not constitute or greatly, if at all, affect This evidence, as far as it goes, is suffithe charge which follows, on which the judg- ciently explicit, but it remains to be determment of the Senate must be predicated. ined whether the respondent is, in the words Giving to the language used its ordinary of the question to be proposed to every Senmeaning and construction, it is somewhat diffi- ator, and to be answered by him under the cult to state the charge with entire certainty, oath he has taken, "guilty or not guilty of a as when stated it will be seen to involve the high misdemeanor, as charged in this article." apparent anomaly of asserting that the re- It is, therefore, necessary to consider whether spondent attempted to prevent the execution the charge it contains describes a high misdeof an act of Congress by attempting to prevent meanor, and, if so, whether the respondent is the execution of two other acts of Congress, or guilty as charged. rather by devising and contriving, and attempt- There can be no doubt that an actual preing to devise and contrive, means so to do. vention of the execution of a law by one whose But I will endeavor to state in terms what the duty it is to take care that the laws be faithcharge is, as it appears to me, after a care- fully executed is a misdemeanor, and it may ful and critical examination of the language be conceded that an attempted prevention by used. such a person is also a misdemeanor; but it The charge, in effect, is that, in pursuance may be doubted whether merely devising and of the said declaration, the respondent, did contriving means by which such prevention unlawfully, and in disregard of the requirement might be effected is an attempt to commit the of the Constitution, that he should take care actwhich constitutes the offense. "Devising" that the laws be faithfully executed, attempt to is simply a mental operation, and while " conprevent the execution of the tenure-of-office triving" may have a broader signification the act by unlawfully devising and contriving, and connection in which it is used here seems to restrict it. Even with the light thrown upon This language, if unqualified by any other these words by the evidence, as above cited, provisions of the act, would extend the term they appear to imply nothing more than an of all officers therein described (including Mr. intention to effect the alleged prevention. An Stanton, Secretary of War,) until a removal intention, not followed by any act, cannot.con-.by the appointment and qualification of'a sucstitute an attempt to commit a misdemeanor, cessor as therein provided. It also prescribes and the question to be proposed must be the manner in which removals and appointanswered negatively. ments may be effected, and prohibits all other -It may be remarked that the evidence further modes of removals and appointments. The discloses that the object of the respondent in term of office and the mode of vacating and his proposal.to General Grant was to compel filling office are the three distinct proposiMr. Stanton to institute legal proceedings, by tions of the body of the first section of the act. which his right to the office, denied by the re- There must be no departure from these propo-spondent, could be tested. This would not sitions, except as therein (that is, in that act) have justified the alleged attempt had it been otherwise provided. All former acts of Conactually made, but it would have qualified the gress providing a different term or a differintention, by showing that the object was not ent mode of appointment or removal are by primarily to violate the law, and thus have at this -section repealed. Any practice of the least tended to diminish the criminality involved.Government inconsistent with the provisions in the illegal act. of this law is prohibited. This dispenses with:the necessity of examining former acts or forOPINION mer practice concerning any matter within the OF Oscope and meaning of this section. There can be no qualification to this language not found HON. WILLIAM M. STEWART. in the act itself. It does not read, except as.the practice of the Government or former acts A brief examination of the law will determ. of Congress may prescribe, but it does read, ine the character of the President's conduct in except as herein otherwise provided. Can the removing Stanton and appointing Thomas ad legislative will, in repealing former acts or interim. The act to regulate the tenure of cer- changing:existing practice, be more clearly tain civil offices supersedes all former legisla- expressed than to declare a rule and also to tion on the questions involved in that removal declare that it shall be the only rule? The and appointment. The sixth section of the act body of the first section clearly prohibited the declares- removal of Stanton and the appointment of "That everyremoval, appointment, or employment Thomas ad interim. If these acts were not made, had, or exercised contrary to the provisions of in violation of law, it was because they were this act, and the making, signing, sealing, counter- authored by other provisions n the act tself. signing, orissuing of any commission or letter of authority for or in respect to any such appointment or The interpretation of the act, then, so far as, employment, shall be deemed, and are hereby de- it affects the President, depends upon the dared to be, high misdemeanors, and, upon trial and question, what is therein otherwise provided 2 conviction thereof, every person guilty thereof shall b.e punished by a fine not exceeding $10,000, or by Is it therein provided that he may do the acts imprisonment not exceeding five years, or both said complained of? If so, he obeyed the law; if punishments, in the discretion of the courts." not, he violated it. The limitations or excepThe same penalties are imposed for issuing tions upon the first section are four. One orders or giving letters of authority for or in relates to removals, one to appointments, and respect to removals and appointments which two relate to the term of office. The former are prohibited by law that are imposed in cases are contained in the second section, and the of actual removals and appointments. It mat- latter are found in the fourth section and the ters not whether Stanton wasactually removed proviso to.the first. The second section reads or Thomas actually appointed ad interim, the as follows: issuance of the order for the removal and the "That when any officer appointed as aforesaid, exgiving of the letter of authority to Thomas are cepting judges of the United States courts, shall duradmitted. If the power was wanting either ing a recess of the Senate be shown, by evidence to remove Stanton or to appoint Thomas, the satisfactory to the President, to be guilty of miscon~~~~~~~~~~to remove Stant~~outin office or crime, or for any reason shall become President is guilty of a high misdemeanor, on incapable or legally disqualifiedto performits duties, the admitted facts. The questions, then, to be in such case, and in no other, the President may susdetermined are, was the removal of Stanton pend such officer and designate some suitable person to perform temporarily the duties of such office until and the appointment or employment of Thomas, the next meeting of the Senate, and until the case or either of them, unlawful? The body of the shall be acted upon by the Senate; and such person so designated shall take the oaths and give the bonds first section declares — required by law, to be taken and given by the person "That every person holding any civil office to duly appointed to fill such office; and in such case it which he has been appointed by and with the advice shall be the duty of the President within twenty days and consent of the Senate, and every person who after the first day of such next meeting of the Senate, shall hereafter be appointed to any such office and to report to the Senate such suspension, with the evishall become duly qualified to act therein, is, and dence and reasons for his action in the case, and the shall be, entitled to hold such office until a successor name of the person so designated to perform the dushall have been in like manner appointed and duly ties of such office. And if the Senate shall concur qualified, except as herein otherwie provided." in such suspension and advise and consent to the C. 1. —57. 898 removal ofsuch oficer,they shall so certify to the Pres- that removal and appointment by the Presiident, who may thereupon remove such officer, and dent alone. The President recognzd the by and with the advice and consent of the Senate, dent alone. The President recognized the appoint another person to such office. But if the Sen- binding force of this law in the suspension of ate shall refuse to concur in such suspension, such Stanton and appointment of General Grant ad officer so suspended shall forthwith resume the func- interim, and in several other cases, and his tions of his office, and the powers of the person so interim, and in several other cases, and his performing its duties in his stead shall cease, and the subsequent disregard of its plain provisions official salary and emoluments of such officer shall, cannot be pleaded as an inadvertence. The during such suspension, belong to the person so per- two other ecept forming the duties thereof, and not to the officer so two other exceptions to the first section do not suspended." relate to the mode of vacating or filling office, The emphatic language is "in such case and which is the subject of inquiry, but to the term no other"' the President may suspend and des- of office. The only reason for an examination ignate a person to perform the duties of said of these exceptions in this connection is to office temporarily. This suspension and tem- exclude any inference that provision is made in porary appointment limit two of the general the act either for removing Stanton or appointpropositions in the first section, first, a tempo- ing Thomas ad interim. rary removal may be made by the President The fourth section reads as follows: alone at the times and in the cases therein pro- " That nothing in this act contained shall be convided, but in no other. This limits the firt strued to extend the term of any office the duration but. This limits the first of which is limited by law." section; so that in substance the act declares This section leaves unchanged the term of that no person now in office, or who may here- ffice as fixed by law, notwithstanding the genoffice a s fixed by law, notwithstanding the genafter be in office by and with the advice and consent of the Senate, shall be removed by the eral language of the first section that such term President alone without the advice and con- shall extend until the appointment and qualisent of the Senate to the appointment of a suc- fication of a successor. he proviso contains cessor, except in recess of the Senate, when the the other limitation, and relates to the term President may suspend for the causes set forth of certain designated offices, but contains no in the second section of this act, and in no exception to the general rule as to removals other case whatever. The other general propo-or appointments. The language is: sition of the first section, which is limited by the "Provided, That the Secretary of State. of the Treasury, of War, of the Navy, and of the Interior, second section, relates to appointments. the Postmaster General, and the Attorney General, Upon the question of appointment to an shall hold their offices respectively for and during office held by another, the first and second sec- the term of the President by whom they may have been appointed, and for one month thereafter, subtions contain all existing statutory regulations. ject to removal by and with the advice and consent The substance of these two sections bearing of the Senate." upon the question under consideration is, that Nothing is more certain than that this prono person shall be appointed by the President viso is silent both as to removals and appointalone to an office where there is no vacancy, ments by the President alone. The proviso and which office is, by law, to be filled by and fixes a limit on the term of the offices therein with the advice and consent of the Senate, named, but makes no other exception. If it without such advice and consent, except in be contended that the language is obscured, cases of suspension in the recess of the Senate how does that obscurity help the President, for arising under the provisions of the second no possible construction can make it confer section of this abt, and in such case and no the authority to do what is prohibited in the other the President may make temporary ap- body of the section, namely, to remove an pointment, as therein provided. The tempo- officer and appoint another to fill his place ad rary suspension and appointmentare limitations interim without the advice and consent of the upon the positive language of the first section, Senate. When the President found that he and are qualifications therein otherwise pro- was prohibited from removing, suspending, or vided, and the only qualifications anywhere appointing, except as in said act provided, it appearing in the act to the general rule requir- was enough for him to know that nothing in ing the advice and consent of the Senate to an the act authorized him to remove Stanton and appointment, and prohibiting all removals, appoint Thomas ad interim. Stanton's apexcept through such appointment. It is true pointment was for an indefinite term, and he the removal is not complete, but it is the first was still in office on the 21st day of February, step towards it, and is an actual suspension 1868. It makes no difference what his term from office without the advice and consent of of office was, or by whom appointed. The the Senate to the appointment of a successor; mode adopted to put him out was prohibited. and it is also true that the appointment is only There is no reason, in view of the conduct of temporary, but the appointee, contrary to the the parties or the language of the law, to supprovisions of the first section, enters upon the port the suggestion that the law was retroactdischarge of the duties of the office without ive. and operated to terminate Stanton's office any action of the Senate. one month after Johnson became President. This is all the statutory law which bears upon Such a construction would not only be inconthe question under consideration, namely, the sistent with the whole conduct of the Presiremoval of Stanton and the appointment of dent in recognizing Stanton as Secretary of Thomas ad interim, and it positively prohibits War, but would be in violation of the well 899 established rule of statutory construction that move the Secretary of War and appoint a perno law shall have a retroactive effect, unless son ad interim to fill the place the advice and the will of the law-making power be so clearly consent of the Senate are of no consequence. expressed as to be wholly inconsistent with This would authorize him to remove all execuany other interpretation. This law, without tive officers, civil and military, and put perany violation of language or principles of con- sons into these offices suitable to his purposes, struction, applies to the present and to the who might remain in office indefinitely. He future, and was so understood, until it became might or he might not nominate to the Senate. important to change or pervert its obvious If he should condescend to do so he might meaning. nominate the persons holding ad interim, and The President understood the law on the 2d the Senate could only choose whether it would of March, 1867, when he sent his veto message confirm the nominees or let the same persons to Congress. (Page 38 of Record.) continue ad interim. The Senate could in that He says in that message,' In effect the bill case choose as to the character of the commisprovides that the President shall not remove sions, but would have no voice as to the charfrom their places any of the civil officers whose acter of the officers. But suppose the Presterms of service are not limited by law without ident should nominate different persons from the advice and consent of the Senate of the the ad interim appointees, which persons United States." Then it included any civil would, of course, be also the choice of the officers whatever. Now it includes some and Executive, and in that event the Senate might excludes others. confirm or allow the ad interim officers to conI am aware that a constitutional question tinue to discharge the duties of the respective has been raised upon the denial of the right of offices. In that case the Senate would have the President to remove from office, which I the poor privilege of choosing between two need not discuss after the repeated votes of the instruments of the President. If this can be Senate affirming the constitutional validity of done in the case of the Secretary of War it can such a law. But no one has contended or will be done in all cases of executive offices, civil contend that the President could make any and military. The whole power of the Govappointment, for any temporary purpose what- ernment would then be in the hands of one ever, without the authority of law, and he man. He could then have his tools in all the certainly cannot do so against a plain statute. offices, through whom alone the civil and milThe issuance of the letter of authority for the itary power of the United States could be exappointment or employment of Thomas is ex- ercised. To acquit Andrew Johnson is to pressly declared to be a misdemeanor. It is affirm this power in the present and all future no answer to the admitted constitutional power Presidents. of Congress to pass the law to say that cases The motives of the President in deliberately might arise in which it might be inconvenient violating law cannot be considered. Such a if the President were deprived of the right to defense might be set up in every criminal case. fill temporary vacancies. That would be a He does not claim that he did not intend to matter for the legislative department to decide., issue the order for the removal of Stanton and and besides no such case had arisen when issue the letter for the appointment of Thomas Thomas was appointed or employed, but, on the ad interim. If either of these acts was a miscontrary, Mr. Stanton was in office and fully demeanor, he intended to commit a misdequalified to discharge the duties of the Depart- meanor. The question of intention or motive ment of War. It is no excuse for violating a can only be material where doubt exists as to law to say that cases may arise when the law voluntary or deliberate character of the offense. wodld work inconveniences, particularly when My conclusion is that the President deliberno inconvenience exists in the given case. No ately violated the law both in issuing the order precedent has been found in the history of the for the removal of Stanton and in giving the Government for the removal of Stanton and letter of authority to Thomas, and that all the the appointment of Thomas ad interim. They articles involving a charge of either of those are in dired violation of the Constitution and acts ought to be sustained if we desire to precannot be justified or excused by practice, if serve the just balance of the coordinate departsuch practice has existed. ments of the Government and vindicate the Usurpation is not to be tolerated against the -authority of law. express provisions of written law and against the protest of the Senate after mature consider- OPINION ation. I regard the removal of Stanton and the appointment of Thomas as parts of the OF same transaction. The two acts, taken to- HON. JAMES HAR L A N. gether, in defiance of law and the decision of the Senate, constitute a bold and deliberate In the first article of impeachment the attempt to dispense with the provision of the House of Representatives accuse Andrew JohnConstitution which makes the advice and con- son, President of the United States, of the sent of the Senate necessary to the appoint- commission of "a high misdemeanor in office, " ment to office. For if the President can re- in issuing an order, during the session of the Senate, for the removal of Edwin M. Stanton, right to make appointments to fill vacancies Secretary of the Department of War, from said temporarily which may happen during the reoffice, February 21, 1868, in violation of the cess ofthe Senate, and with the qualified rightto Constitution and of an act entitled "' An act make permanent appointments during the sesregulating the tenure of certain civil offices," sions of the Senate; but he is not clothed with approved March 2, 1867. the authority by direct grant to make removals The President in his answer to this article, either in the recess or during the sessions of presented to the Senate March 23, 1868, admits the Senate. that he did remove said Stanton from said Nor does the President appear to be vested:office by suspending him August 12, 1867, and with the exclusive authority to make removals'by making it absolute and perpetual, as per by any necessary implication, or by any necesorder dated February 21, 1868; and justifies sary construction of any other clause of the -the act of removal by asserting- Constitution. " That the Constitution of the United States confers It is sometimes argued that the right to reon the President" * * * * "the power move is a necessary incident or concomitant of at any and all times of removing from office all execu- the right to appoint. But this is begging the tive officers for cause, to be judged of by the President alone," and that " the Congress could not deprive him very question at issue. Is it a necessary inci*thereof."-lnmpeachment Record, p. 23. dent of the power to appoint? If so, why It is proper to observe in the beginning that is it so? May not the act of appointment be the President does not justify under any exist- distinct and separate from the act of removal? ing statute-that of 1789, creating the Depart- If not-if they must necessarily go together — ment of War, or any other. He admits the if they must necessarily be performed by the Fact of removal, and claims that it was not same party or parties-if they are necessary "a high misdemeanor in office;" alleging that concomitants of each other, it will follow irrethe Constitution confers on him the absolute sistibly that the President, having the excla-,anrd exclusive right.to remove all executive sive and absolute authority to make temporary officers at discretion, whether the Senate be appointments to fill vacancies during the rein session or not, and admitting the existence cess of the Senate, may make removals during,of an act of Congress prohibiting it, the act the recess; and as -he is clothed only with -a of removal was, nevertheless, legal, because, qualified right to make appointments during in his opinion, Congress had no right, under the session, the right to remove during the the Constitution, to prohibit, -to regulate, or in session of the Senate must be qualified by the any way to interfere with the exercise of this same limitations. To assert the contrary would -executive function. involve the absurdity of insisting that the inciThat is the issue joined under the first ar- dent is superior to the principle; that the ticle, which brings us necessarily to an exam- implied power is greaterthan the direct grant; ination of the provisions of the -Constitution or, to apply the reasoning in physics, it would which are supposed to clothe the President be to assert that the reflected light from another with this exclusive authority to make removals surface may be superior to the direct solar rayfrom office. that the momentum of a flying projectile is The Constitution does not anywhere, in greater than the original force from which it terms, confer on the President the authority to derived its motion. It is clear, therefore, as it make removals; nor does it anywhere confer seems to me, if the right of removal is an incion him this right by necessary implication. dent of the right to appoint-if the two acts It does confer on him the qualified right to must go together-if all the authoritypossessed make appointments. by the President to remove an officer is derived The second clause of the second section of from the grant of authority to appoint, and if article two of the Constitution provides that- the power to appoint during the sessions of the "He shall nominate, and by and with the advice Senate is qualified depending on the "advice and consent of the Senate shall appoint, embassadors, and consent of the Senate," it must follow that other public ministers and consuls, judges of the the authority to remove during the sessions is Supreme Court, and all other officers of the United States, whose appointments are notherein otherwise in'like manner qualified and dependent on the provided for, and which shall be established by law." advice and consent of the Senate. It also provides that- But if the power of.appointment and the " Congress may by law vest the appointment of power of removal are separate functions, it such inferior officers as they think proper in the would have been possible for the framers of President alone, in the courts of law, or in the heads the Constitution to have conferred on the Presof Departments." the Constitution to have conferred on the Presof nd the last lause of this section provides ident the authority to perform the one and to And the last clause of this section provides have withheld from him the authority to perthat"The President shall have power to fill up all form the other. Conferring on him the right vacancies that may happen during the recess of the to appoint. they might have left the power to Senate, by granting commissions which shall expire remove in abeyance, to be regulated by law, or at the end of their next session." might have conferred the latter authority on It is therefore clear that the President is some other officer or department of the Govclothed by direct grant of the Constitution ernment. with the absolute, unrestrained, and exclusive And, if it should be found on examination 901 that the authority to remove officers of the all other civil officers for impeachable offenses United States or any of them has been vested in the Senate, it does not provide that they by the Constitution in some other organ of the shall not be removed in some other mode orby Government, it would seem to raise a very some other officer or department of the Govstrong presumption that it was not the inten- ernment. I answer, nor does the Constitution tion of the framers to confer this authority, as provide that judges shall not be removed in any to them, on the President. other mode, or by any other officer or departNow, by reference to the fourth section of ment of the Government. It simply says that. article two of the Constitution it will be seen the judges shall hold their offices during good that the authority to remove all civil officers is behavior. When they behave badly they mays vested in the Senate. It directs that — be removed. They may be removed for im"The President, Vice President, and all civil offi- peachable offenses, like all other civil officers, cers of the United States shall be removed from office by the Senate. And if clothing the Senate, on impeachment for and conviction of treason, wit bribery, or other high crimes and misdemeanors." with power to remove other civil offiers does not, by implication, deprive the President of The sixth clause of the third section of the authority to remove them when, in hls article one provides that — opinion, the faithful execution of the laws mayv "The Senate shall have the sole power to try all require it, by what process of reasoning can it..impeachents.".be claimed that the judges can be removed by, This, if it were a new question, would seem the Senate only? The Constitution does not to make it clear that the President could not say so. It does not prohibit the, removal of imake removal of civil officers. The Constita- the judges by the President. And if he find tiqn does not confer the right on him by any that a judge is corrupt, willfully misinterprets, direct grant, and does conferthe power in direct the laws, or refuses to adjudicate cause, and terms on the Senate to remove all civil officers, if Congress should not be in session, or, being and, if they should see proper, to disqualify in session, should refuse or neglect to remove them ever afterward from the right to hold him by impeachment, why may not the Presi-, Office under the United States. dent. do it? If it is conceded that he may The implied right of the President to make remove a Secretary of War at discretion, either removals at discretion is sometimes claimed during the session of the Senate or in the reunder the third section of article three of the cess, under that clause of the Constitution Constitution, which provides that the President which makes it his duty "to see that the laws "shall take care th at the laws be faithfully are faithfully executed," why may he not, executed." It is insisted that the President under the same clause, remove a judge for what must exercise the power of removing unfaith- he may consider gross misconduct? ful, incompetent, and corrupt officers in order There can be but one answer. The practice to secure "the faithful execution of the laws." of the Government has sanctioned the removal But if this is a correct construction, if being of other civil officers by the President at will charged with seeing that the laws are faithfully during the recess of the Senate, and by and executed necessarily vests in him: the right to. with the advice and consent of the Senate dur-. remove unfaithful officers at his own discre- ing its session; and no President has yet vention, he may remove judicial as well as executive tured on the exercise of the authority to remove officers; the judges of the Supreme Court as judges of the courts of the United States. The well asthe heads of Executive Departments. If distinction has no sanction in reason, or in the not, why not? It may be said that the Constitu- well- settled rules of legal construction. tiOn provides that " the judges, both of the Sn — But if the President is clothed by the Conpreme and inferior courts, shall hold their stitution "with power atany and all times (duroffices during good behavior." But who shall ing the session as well as in the recess) of re — judge of their " behavior, " whether it be good moving from office all executive officers for or bad? If in the President's opinion the cause to be judged of by the President alone," judges do ibehave badly; if in his opinion, on and if, as he claims in his answer, "the Con-. account of their malfeasane or misfeasance gress could not deprive him thereof," may he office, he could not faithfully execute the laws, not also remove at discretion officers of the why may he not remove them? It may be said Army and Navy? And if not, why not? that the Constitution does not in terms confer The Constitution does not fix their tenure of'on the President the right to remove them office. It makes no distinction between them even for cause, however flagrant, and does. con-. and civil officers (other than judges) in this. fer the power on the Senate by impeachment. respect. They are all appointed under that I answer that it does not confer on the Presi- clause of the Constitution, heretofore recited, dent in express terms the right to remove other which provides that the President " shall nomofficers, even for cause, and that it does: confer inate, and by and with the advice and consent this right on the Senate to remove the latter as of the Senate shall appoint," all officers of well as judges. In this respect the judges are the United States," and all other provisions not exceptional. which say that Congress shall have power "to It may be said, however, that. although the raise and support armies" and "'to provide U~onstit.ti. idoes not es te powert.r.eove and mintin a na vy." It does: not provide 902 that the officers shall hold for life or good be- ment by the Secretary of an inferior officer, to havlor. So far as the Constitution provides, be called the chief clerkif the President is vested with authority to re- "Who, whenever the said principal officer shall be move Mr. Stanton, the Secretary of War, he removed from office by the President of the United may also remove any officer of the Army or States, or in any other case of vacancy, shall, during ~may alo eovnyofieroterysuch vacancy, have the charge and custody of all Navy; and if Congress cannot by law regulate records, books, and papers appertaining to the said the tenure of office of the former, Congress Department."-Statutes-at-Large, vol. 1, p. 50. cannot regulate the tenure of the latter. It is The phrase " whenever the said principal true Congress has from time to time by law officer shall be removed from office by the regulated the tenure of military officers and President" is in itself, they think, a grant of provided the mode of their removal. power to remove the Secretary of War; that During nearly the whole period of the exist- this law was not repealed by the act of March ence of the Government they have been re- 2, 1867, "to regulate the tenure of certain civil movable for cause alone, in pursuance of the offices," but is still in force, and consequently finding of a court-martial, subject, however, to that the. removal of Mr. Stanton was legal and the approval of the President. During the innocent. late war Congress authorized the President to Before proceeding to examine the law of drop any military officer from the rolls at dis- March 2, 1867, I will express my doubt of the cretion; at the close of the war this act was correctness of the construction placed by these repealed. But if it should be conceded that Senators on the statute of August 7, 1789. Congress cannot by law regulate the tenure of I doubt it because the President, although civil officers and the manner of their removal, advised by counsel of the highest professional it must be conceded also that Congress cannot, standing, does not claim protection under this under the Constitution, regulate the tenure of law, but under the Constitution itself; asofficers of the Army and Navy. If the act serting, in his answer to this article, that his regulating the tenure of certain civil officers is authority to' make removals is derived from void by reason of conflict with the Constitution, that instrument, and that " the Congress could then all the acts regulating the tenure of mili- not deprive him thereof." He does not even tary officers are -also void. And if the Presi- so much as name this act of 1789. I doubt it, dent may innocently violate the former, he because a careful examination of the debates may with impunity trample under foot the lat- of the Congress by whom this law was enacted ter; if he can remove Secretary Stanton, he will show that the members who insisted on may dismiss General Grant or Admiral Far- placing this phraseology in the text of the ragut. act, did not construe it as a grant of authority I cannot bring myself to believe that the to make removals. In fact, Marshall, in his Life framers of the Constitution could have in- of Washington, (vol. 2, page 162,) referring tended to vest in the President a purely dis- to the debate on this subject, says that after cretionary power so vast and far-reaching in words had been incorporated into the bill exits consequences, which if exercised by a bad plicitly authorizing the President to remove the or a weak President would enable him to bring head of the Department they were stricken out to his feet all the officers of the Government, and the foregoing words substituted for the military and civil, judicial and executive, to express purpose of avoiding the inference that, strike down the republican character of our in the opinion of Mr. Madison and those who institutions and establish all the distasteful agreed with him, Congress could either grant to characteristics of a monarchy. For the par- or withhold this authority from the President. ticipation of the Senate in appointments dur- It is perfectly clear that they wished to leave ing its sessions would become nugatory, if the this question of authority to remove where the President may legally remove them at discre- Constitution left it, with a legislative exprestion, and fill up the vacancies thus made by sion of opinion that the President could make temporary appointments. And the people removals. This was doubtless Mr. Madison's would be without remedy if, as he avers in his opinion and the opinion of a majority of the answer, Congress has not the right to restrain members of the House, concurred in by one or by law regulate the exercise of this execu- half of the Senators present, as the record tive function. shows that the bill passed by the casting vote This leads me to notice in consecutive order of the Vice President. Hence the President's the argument presented by several Senators counsel, who doubtless examined this case during this consultation, tending to justify this thoroughly, do not claim authority under this act of removal, drawn from their construction law. They knew its intent was not a grant, of the statute of August 7, 1789, creating the but an expression of opinion on a constituWar Department. tional construction. And as such it is entitled The first section of this act, after creating to the weight which may proerly attach to the this Department, provides utterances made in congressional debates by members of Congress; which, judging from " That there shall be a principal officer therein, to what I have heard from the President's counbe called the Secretary for the Department of War." sel and Senators in this consultation, are not The secona section authorizes the appoint- considered infallible-even less authoritative 903 than judicial opinions-and, in my opinion, power to fix the tenure of all officers except neither is entitled to any more respect than is judges, and also the manner of their removal. required by the weight of the reasoning by And the executive construction is equally which their opinions are supported. In the uniform and conclusive. It has been definitely forum df reason is the tribunal where they and settled in practice that the President may in we. all are compelled to bring our opinions for the recess remove all officers at will except arbitrament. As a legislative declaration of judges and other officers whose tenure and opinion injected into the body of a law, grant- mode of removal is regulated by law, and that ing nothing and denying nothing, commanding during the session removals may be made by nothing and prohibiting nothing, it is no more the President only with the concurrence of the authoritative than the resolution of the Senate Senate. of February 21, 1868, informing the President It is extremely doubtful whether the framers that, by the removal of Mr. Stanton and the of the Constitution intended to confer the appointment of Mr. Thomas, he violated the power on the President to make removals durConstitution and laws; and, in fact, is not en- ing the recess. The language used, "to fill titled to so much respect as an authority, be- up vacancies which may happen," seems to cause in adopting the declaration in the law of imply the contrary. And they seem to have 1779 there was in the House a very small ma- carefully provided against the assumption of jority in the affirmative, and the Senators were this power under the plea of necessity, to proequally divided; while in the adoption of the tect the public interests from unworthy officers declaration in the resolution twenty-eight Sen- during the recess, by authorizing the President ators voted in the affirmative, and but six Sen- to convene the Senate in extra session whenever ators voted in the negative; and in the House in his judgment the public interests require it, of Representatives the substantive allegation thus enabling him at all times to submit the quesof the resolution, as set forth in the first and tion of changes to the judgment of that body. second articles of impeachment, was affirmed But removals have been made in the civil by a three-fourths majority. service during the recess of the Senate by all Nor can the declaration cited by Senators the Presidents. This power under the Constifrom Kent's Commentaries, in which, refer- tution has been during the whole period gravely ring to this debate, he is made to say that questioned by the ablest statesmen and jurists. this legislative construction of the Constitution r'he practice has, nevertheless, obtained. No "has ever since been acquiesced in and acted law existed until recently prohibiting it. It upon as of decisive authority in the case," be may, therefore, be conceded as settled that the adopted unquestioned. For he proceeds to President may, in the absence of law to the say: contrary, during the recess of the Senate, make "It applies to every other officer of the Government removals from office. It is, however, equally appointed by the President and Senate whose term well settled by precedent that the President of duration is not specially declared." —Kent'e Com- cannot make removals, except in pursuance of meentaries, page 19. law, during the session, otherwise than by apThis would include all the officers of the pointments of successors, to be made "by and Army and Navy; and it is known to every reader with the advice and consent of the Senate;" of the statutes that Congress has from the be- and that in making removals in the military ginning of the Government to the present hour service he must follow the mode indicated in regulated by law the removals of this entire the Articles of War and Army Regulations class of officers; and that Congress has, at established by law. vArious times, enacted laws regulating the mode This construction has been so uniform as to of removal of civilians. Nor has it been held render it impossible for the learned counsel at any time that " declaring" by law the tenure for the President during this protracted trial df office-that is the term of years during which to produce even one well-authenticated case to the commission may run-affects in any way the contrary. The case cited by them of the the powei of removal. For example, the law removal of Timothy Pickering, Secretary of creating land officers, postmasters, territorial State, by the elder Adams, is the only one governors, judges, &c., and many others au- which they claim to be an exception. And in thorize appointments for fixed periods, and yet that case the letter removing Mr. Pickering it has been uniformly maintained in practice and the President's message nominating Mr. that the President could at any time during the Marshall as his successor bear the same date. recess of the Senate retnove them at will, and But if this case were admitted to be an exduring the sessions with the concurrence of the ception to the general rule, it would violate Senate. It has been thus settled in practice all established principles of correct reasoning that the limitation of a tenure to a fixed period to assume that one exceptional case estabdoesnotaffectthequestionofremoval. Hence, lishes the true construction of the Constituas the commentator's facts prove to be untrue, tion, it being in direct conflict with the otherhis conclusions cease to have weight. So far wise uniform practice, extending over the entire as the uniform legislative action of the Govern- period of the history of the Government. ment can settle a construction of the Constitu- I therefore conclude that Andrew Johnson, tion, it has been decided'that Congress has the President, violated the Constitution of the 904 United States and his oath of office in issuing to prohibit removals; secondly, to limit the his order, February 21, 1868, the Senate being terms of service. The prohibition to remove: in session, removing Edwin M. Stanton, Sec- evidently applies to all. The limitation of the. retary of the Department of War, from said term is applied to the Secretaries of State,; of office; and that he is guilty of a high misde- the Treasury, of War, of the Navy, of the Inmeanor in office as charged in this article of terior, the Postmaster General, and the Attorimpeachment, even if the law "regulating the ney General, and none others. This analysis tenure of certain civil offices," approved March removes all ambiguity. The section provides 2, 1867, had never been enacted. that every civil officer appointed by the PresiBut I am unable to perceive any serious am. dent, with the approval of the Senate, shall biguity in that statute. The authorities all hold his office until his successor shall be in agree that it is legitimate in construing any like manner appointed; that is, no removal apparently obscure passage in the text of a new shall take place except by the appointment,, law to ascertain, first, the old law or usage; with the concurrence of the Senate, of a sucsecondly, the evil or matter of complaint; cessor; provided, however, that the offices of thirdly, the remedy proposed in the new law. heads of Departments shall terminate by operNow let us apply these rules to the statute of ation of law in one month after the expiration. March 2, 1867: of the presidential term. The assumption First. Under the old law or usage the Presi- that any of the seven officers were intended to dent had the right, as we have seen, to make be excepted out of the general prohibition of removals at will during the recess of the Sen- removal at the will of the President alone is ate. clearly inconsistent with the last clause of the Secondly. The evil or subject-matter of com- proviso, which declares thatthose seven officers plaint was that the President, now arraigned shall also be " subject to removal by and with at your bar, had been, during the previous the advice and consent of the Senate." For, recess of the Senate, removing multitudes of if it was in fact, as contended, the intent of faithful officers from their respective posts of this proviso to except any of these officers from duty and appointing untrustworthy successors, the general prohibition to remove by the Presfor purely partisan. purposes, to aid him in ident alone, why should it confer the authormaking war on the measures adopted by Con- ity to remove them with the concurrence of the -gress to secure the restoration of peace, har- Senate? mony, and good government in the recently The learned casuistry to which we have lisinsurrectionary States. tened over the construction of the phrase Thirdly. The remedy proposed was to fix by " term of the President by whom they may law the tenure of civil offices and regulate the have been appointed" has, according to my manner of removals, as had been done from apprehension, no application to the vital point the beginning in relation to military officers, in this controversy-theprohibition ofremoval. so as to prevent the President from making It relates to the limitation of the term of sfrremovals at discretion, even during the recess, vice, and nothing else. without the approval of the Senate. Hence I have not been able to perceive anything in the first section enacts: the legislative history attending the passage " That every person holding anycivil office to which of this act inconsistent with this construction. he has been appointed, by and with the advice and It is substantially this: the Senate passed the consent of the Senate. and every person who shall bill prohibitin the removal of all civil ofcer hereafter be appointed to any such office, and shall roib iting removal of all civil ofcers become duly qualified to act therein, is, and shall be, except the heads of Departments. The House entitled to hold such office until a successor shall struck out the exceptions; -the Senate declined have been in like manner appointed and duly quali-. The bill flied, except as herein otherwise provided: Provided, toconcur; the House inssted. The bllwas That the Secretaries of State, of the Treasury, of then sent to a joint committee of conference War, of the Navy, and of the interior, the Postmas- of the two Houses. They proposed a compro — ter General, and the Attorney General, shall hold mise, the House yielding somethin a the their offices respectively for and during the term of mise, telding something and the *the President by whom they may have been ap- Senate yielding something. Theyfinally agreed pointed, and for one month thereafter, subject to that the prohibition of removals by the Presiremoval by and with the advice and consent of the ent at discretion should apply to all, includDoSenate." ifecttheobjects proposedl i- ing heads of Departments, but that the term, Does it effect the objects proposed? It evi- ination of the period of service of the latter dently embraces all existing civil officers should be fixed at one month after the close appointed by the President, by an-d with the of each presidential term. They so reported, advice and consent of the Senate, as well as all and their report was adopted by both Houses. who may hereafter be appointed. It is evi- I have now only to state that the President dently not its purpose to extend the legal term has officially construed the law as applicable of service of any of them, for section four to Secretary Stanton in his order of August provides: 12, 1867, suspending him from office, as pro"That nothing in this act contained shall be con- vided in the second section of this act, and in strued to extend the term of any office the duration his letter addressed to the Secretary of the of which is fixed by law." Treasury, informing that officer that he had. But its intent is clearly- twofold. First, suspended said Stanton, as directed by the 905 eighth section of this act. The letter is in not perceive how it is possible for a Senator, these words: on his oath, to avoid^ finding him guilty as: EXECUTIVE MANSION, charged in the first article of impeachment. WAsHINGTON, D. C., Augu8t 14, 1867. In relation to the second article of impeachSrR: In compliance with the requirements of the b th H f R ti eighth section of the act of Congress of March 2,1867, ment, I may observe, the House of Represent entitled "An act regulating the tenure of certain civil atives accuse the President of the committal: offices,' you are hereby notified that on the 12th in- of a high misdemeanor in office in appointing stant Hion. Edwin M. Stanton was suspended from Lorenzo Thomas, djutant Gera Unite office as Secretary of War and General Ulysses S Lorenzo Thomas, Adjutant General United Grant authorized and empowered to act as Secretary States Army, Secretary of War ad interim on: of War ad interim.. the 21st day of February, 1868, there being no I am, sir, very respectfully, yours, AN DREw JOHNSON. vacancy in said office, without the advice and Ron. HUGH McCULLOCH, Secretary of the Treasury, consent of the Senate, the Senate being in session. He also admits its application to Stanton by The President in his answer admits that he sending to the Senate his message dated De- d issue theorder of appontment, as charged cember 12, 1867, communicating to that body without the advice and consent of the Senate, his reasons for the suspension, as directed by the Senate being in session, (Impeachment the second section. That he construed this Trial, p. 27,) and justifies it by declaring that law as applicable to Secretary Stanton, and there was at the time a vacancy in said office, willfully violated it, is also established by his and thatanswer to the first article of impeachment, as "It was lawfulaccording to along and well-estabfound in the record of the triaL He responds lished usage to empower and authorize the said in these words: Thomas to act as. Secretary of War ad interim."' " The respondent was also aware that this act [of To support this justification, his counsel in March 2, 1867] was understood and intended to be the argument of this cause, and several Senaan expression of the opinion of the Congress by which that act was passed, that the-power to remove tors during this consultation, have cited two executive officers for cause might by law be taken statutes which authorize temporary appoint' from the President and vested in him and the nate ments. Thefirstone-was enacted May 8 1792, ointly"-Impeachment Trial, p. 24. and the second February 13, 1796. The first This would seem to settle the question of the one is marked'"obsolete"' an the statute-book, President's purpose. He admits that he "was and is admitted to have been repealed (if not aware that this act was understood and intended before) by the act of February 20, 1863,'which to be an expression of the opinion of Con- covers all the matter contained in the act of gress" that he could not remove executive 1792, and is also inconsistent with it. This officers without the concurrence of the Senate. brings us to the consideration of the plea of Now, no one will be so hardy as to deny that authority to appoint Mr. Thomas to the office the intent of a law is the law in very essence of Secretary of War ad interimft during the and truth, for the only object of the analysis. session and without the consent of the Senate of any law by court or commentaries is to as- under the statute of 1795, even. if a vacancy certain, if possible, the intent of the Legislature did legally exist. These are the exact words enacting it. of the law: That the President did proceed. to inquire, "That in case of vacancy in the office of Secretary as he asserts in this connection, whether the of State, Secretary of the Treasury, or of the Seereact was not capable of some other construc- tary of the Department of War, or-of any officer oftion, and if in the course of this inquiry he did either of the said Departments, whose appointment is not in the head thereof; whereby they cannot perhonestly conclude, as he asserts, that it was. form, the duties of their said respective offices, it susceptible of another construction different shall be lawful for the President of the.United States, from the admitted intent of Congress, so fr in case he shall think it necessary, to authorize any from the admitted intent of Congress, so far 1z person or persons, at his discretion, to perform the from being a palliation, was a grave aggrava- duties of the said respective offices until a successor tion of his offense; for it is a declaration of a. be appointed or such vacancies be filled: Proided, purpose.to bend the law from its. true intent to That no one vacancy shall be supslied, in manner aforesaid, for a longer term than six months. Apsuit his wishes.. He thus confesses that he proved February 13,1795." —Statutes-at-Large, vol. I. sought to evade and did, as he thinks, evade page 415. the declared and admitted will of the Legis- I notice that the Senator from Maine, [Mr. lature. FESSENDE;N,] in the observations submitted by With this admission in his official answer to him, has, as I think, misconstrued this law by this article before our eyes,, there can be no omitting in the text, as cited by him, an entire doubt that he did with malice prepense violate clause, necessary to be considered in arriving the true, known, and admitted intent of this at a correct construction.. It is in these words: law. Believing as I do that the President did "Whereby- they cannot perform the duties of thus officially place the correct construction on their said respective offices." These are words said law, and that said law is in harmony with of limitation which the judge or commentator the Constitution, and that he did willfully vio- has no right to ignore orerase. Had they been late its provisions, which violation is declared omitted by Congress in enacting the law —did by said law to be a "high misdemeanor," I do they not stand as a part of it-the Senator's 906 rendering would be less vulnerable. But, giv- cers, who may be appointed by the President ing these words their usual meaning and force, alone when Congress shall so provide by law. his rendering is manifestly erroneous. Apply- But the office of Secretary of War is not of ing this law to the actual case at bar, and this class. It is not an inferior office, and is omitting unnecessary descriptive phrases, it declared by the law of 1789 to be a superior. will read: office, and the Secretary is styled "a principal "That in case of vacancyin the office ofthe Secretary officer." Congress could not, therefore, by of War, whereby he cannot perform the duties of his said law vest the appointment of this and similar office, it shall be lawful for the President of the Uni- officers exclusively in the President either for ted States, in case heshall think it necessary, to author- a sho ize any person, at his discretion, to perform the du-art or a long period. To maintain that ties of the said office, &c.: Provided, That no one Congress could by law dispense with the advisvacancy shall be supplied, in manner aforesaid, for ory power of the Senate would be equivalent a longer term than six months." to a declaration that Congress could by law Now, it may be observed that there are two amend the Constitution or abolish it entirely; classes of vacancies known to the statutes, and for if Congress could suspend one of its prowhich may occur in the administration of the visions, they may suspend any or all of Departments: absolute legal vacancies in office them. This would be reducing the authority by death, resignation, or expiration of term of of that great charter to the grade of a statute service, whereby there are no officers in exist- only. ence for the respective offices; and vacancies The limitation of such appointments to a occasioned by the aOsence of officers from their period not exceeding six months could not respective offices, on account of sickness or change the constitutionality of the provision. absence from the seat of Government. The For, if Congress could by a statute dispense question therefore arises whether the vacancies with the advisory power over appointments contemplated and provided for by this statute during the sessions of the Senate for a single are of the firstor of the second class, or whether day, they could for a year or ten years or both are included. forever. It is not a question of time during It appears to my mind perfectly clear that which such appointment may run, but of conthe first class are not intended to be included, stitutional power to deprive the Senate of an and that the law is applicable only to cases opportunity to exercise ajudgment in the case. of vacancy by the absence of officers from The Constitution vests this authority in the their offices, the said offices being legally Senate, without regard to the length of time filled, but the incumbents being incapable, for of the service of the appointee; and it does any sufficient reason, to perform their official not confer the authority on the President to duties. disregard it, nor on Congress the power to set To construe this statute so as to apply to aside either for a long or a short period. absolute vacancies in office would, as it ap- Congress could, of course, abolish the War pears to me, make it both useless and uncon- orany otherDepartment createdbylaw. Thej stitutional. For, in case of an absolute legal could also abolish the office of Secretary of vacancy in the recess of the Senate, the Con- War, or unite the War Department with some stitution itself, in direct terms, authorizes the other Department temporarily or permanently, President to fill it temporarily, to continue for and require the head of that other Department as long or as short a period as he may desire, to perform the duties of both, or might reduce not extending beyond the end of the next ses- it to the grade of a bureau in another Departsion of the Senate. Hence, if this law was ment, and authorize an inferior officer to perintended to confer on the President the power form the duties now devolving on the Secreto fill legal vacancies in office, occurring in the tary; and probably might, by law, authorize recess, it is nugatory-it is perfectly useless — the President to do this at his discretion; but for the President was previously vested by the this is not what is claimed by the President Constitution with this authority. under the law of 1795. He does not claim that * And to assume that the intent of this law this authorizes him to abolish the War Departwas to provide for absolute legal vacancies in ment or the office of Secretary of War, or to office occurring during the session of the Sen- unite it with any other Department temporarily, ate would be clearly unconstitutional; for the or to devolve the duties of Secretary of War Constitution provides, as we have seen, that on the head of another Department, or to rethe President "shall nominate, and by and duce it in grade and devolve its duties on an with the advice and consent of the Senate shall inferior officer. He claims that Congress has appoint, all officers" whose appointment are by this law, approved August 7,1789, vested in not otherwise provided for in the Constitution him the right "to authorize anyperson" (adoptitself, whether created by the Constitution or ing the words of the statute) "'at his discretion by law. The President must, therefore, ob- to perform the duties of" Secretary of War tain the consent of the Senate when in ses- during the session of the Senate, there being sion before he can make an appointment to an actual legal vacancy in said office, for a fill an absolute legal vacancy, with the excep- period not exceeding six months. tion of one class of officers only, inferior offi- Now, if this is the true meaning of this law, 907 it authorizes the President, as we have seen, I may observe here, in passing, that the alleto dispense with the advisory power of the Sen- gation so frequently made during this trial by ate, when in session, in the appointment of a the President's counsel, and by Senators in great officer to fill "a principal" office for a this consultation, that "the practice" of makperiod of six months; and, as this would be in ing temporary appointments, the Senate being direct conflict with the Constitution, the law as in session, to fill absolute legal vacancies in thus construed must be void. office, "has been frequent and unbroken, alTo give this law force, we are therefore com- most from the formation of the Goverfiment," pelled to construe the word " vacancy" men- is not supported by facts. I have examined, tioned in the act as meaning a corporeal va- as carefully as my time would permit, all that cancy-the absence of the officer from his office- long list of cases of temporary appointments, the legal tenure still continuing in him as when supposed by the President's counsel to bear on the officer is out of the city; is disabled by in- this case, as they stand recorded in the printed sanity or sickness; is in custody or in prison, record of this trial, beginning on page 575 and or is necessarily occupied with other duties. ending on page 582, and find that nearly all of This interpretation is in perfect harmony with them were made, as the list itself shows, on theliteral and usual meaning of the word of the account of the absence or sickness of the regustatute itself, "in case of vacancy in the office larly appointed officer. And nearly all of the of Secretary" * * * * " of the De- residue were made to fill vacancies occurring partment of War" * * * * "whereby during the recess of the Senate, and I do not'he cannot perform the duties of' his' said office find a single case of temporary appointment to it shall be lawful for the President of the United fill a vacancy occasioned by a removal made States, in case he shall think it necessary, to during the session of the Senate. I therefore authorize any person, at his discretion, to per- conclude that no such case exists, or it would form the duties of the said office,'" &c. And have been produced, as the learned and nuany other construction would render the quali- merous counsel had full access to the records fying phrase, "whereby they cannot perform of the Departments and of the chief executive the duties of their said respective offices," office. meaningless. It is a settled rule of construc- Should it appear, therefore, that a case or tion that you must, if possible, give every word two of temporary appointments had been made of a statute meaning and force. by previous Presidents, in a period of nearly But what meaning can be attached to this eighty years, on account of an actual vacancy clause if applied to an actual legal vacancy, occurring by death or resignation, during the as by death, resignation, removal, or expira- session of the Senate, it would not justify the tion of legal term of service. In such cases unaccountable allegation of counsel and of the officer, and his legal functions as such, Senators that the precedents were almost have ceased toexist. There is no officer in ex- numberless, and that the chain was unbroken. istgnce. To apply these qualifying words in Nor would one case or many of violated law, such cases, " whereby they cannot perform the by others, if they really existed, justify the duties of their said respective offices," is sheer President in the performance of an illegal act. nonsense. The law does not provide that in But, when his act is unsupported by a single case of any vacancy, or all vacancies, but in case this attempt at justification is most recase of vacancies of this description, " where- markable and startling. by the officers cannot perform the duties of After giving this subject the most careful their offices." examination of which I am capable, I am'The same reasoning would apply to another compelled to come to the conclusion that if qualifying phrase in this act, authorizing the there had been an existing legal vacancy in President to make temporary appointments. the office of Secretary of War, the President It is in these words: "' In case he shall think had no authority under the statute of 1795, it necessary." How is it possible to apply or any other law, the Senate being in session, this langfftge to an actual legal vacancy in a to fill it in the mode charged in the second superior office, such as Secretary of State, Sec- article of impeachment and admitted in the retary of War, &c. The necessity of having an President's answer. Much less had he the officer to fill these great offices was settled by right to both create and fill a vacancy as Congress when the law was enacted creating charged in the first and second articles. them. If an actual vacancy occurred the These acts, whether taken jointly or sepanecessity of filling it could not be a question. rately, seem to me to be a clear violation But if the officer was sick or absent from the both of the Constitution and the law. That city, "whereby he could not perform the duties they were performed by the President deliberof his said office," the question of necessity ately and willfully for the purpose of defeating for the appointment of some one, by detail or the execution of the latter, according to its otherwise, to perform these duties, until he true intent and mean"ng, is, according to my recovered or returned to his post, would arise. judgment, fully established. I do not, thereAnd no one would be a more fit person to fore, see my way clear, under the solemnities judge of that necessity than the President. of my oath, to find him innocent. 908 OPINION with the powers and attributes of courts. They, OF were universally held to be courts. The Con — stitution invests. the Senate with the sole power HON. GARRETT DAVIS. to try all impeachments. To try is to examine a case judicially by the, rules of law, and to The subject of impeachment is provided for apply them to the legal evidence taken in the in: the Constitution by several clauses, which I trial, and to render the judgment of the law will quote: upon the claims of the parties according to the "The House of Representatives shall have the sole evidence. The phrases to try," "tried," power of impeachment."" convicted," "conviction," and "judgment" "The Senate shall have the sole power to try all are all used in the Constitution in connection. impeachments. When sitting for that purpose they proceedings in it. shall be on oath or affirmation. When the President of the United States is tried the Chief Justice shall Those words, in connection with their context, preside; and no person shall be convicted without establish, organize, and describe a court; and the concurrence of two thirds of the members pres-as applied to the Senate necessarily constitute'The President, Vice President,. and all civil offi- it a court with jurisdiction to try. all cases of cers of the United States, shall be removed from impeachment.. office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors." The Senate now and for this occasion is a " Judgment in cases of impeachment shall not ex- court of impeachment for the trial of the Pres-' tend further than to removal from office and disqual- ident of the United States, and, like all other ification to hold and enjoy any office of honor, trust,ates, and, like all other or profit under the United States; but the party con- courts, is bound by the law and the e-viden~em victed shall, nevertheless, be liable and subject to properly applicable to the case. indictment, trial, judgment, and punishment accord- The other novel position of the. prosecution, that on thistrial the Senate'" is a.law to itself," Our system of impeachment has not been is still more extraordinary. The power contransferred from any other Government, nor ferred by the Constitution on the Senate when was its organization confided to Congress; but trying impeachments is limited and wholly the cautious statesmen who founded our Gov- judicial, and the idea of combining with it anu ernment incorporated it in and built it up as legislative power whatever is, not only without part of the Constitution itself. They enumer- any warrant, but is in direct hostility to the: ated its essential features and made it sui gen- fundamental principle of our Government. eris. 1. No person but civil officers of the which: separates and makes mutually impasaaUnited States are subject to impeachment.. 2. ble all its legislative and judicial power. But The Senate is constituted the court of impeache position that the Senaite when trying an ment. 3. The Chief Justice of the United impeachment, is "a law to itself," is bound States is to preside over the court when the by no law, may decide the case: as it wills, is. President is under trial, and the Vice President illimitable and absolute in the performance: or President pro tempore of the Senate in all of special, restricted, judicial functions i a other cases. 4. No conviction can take place limited government, is revoltingly absurd. On unless two thirds of the Senators present con- the trial of any impeachment the Senate has cur. 5. No impeachment can be made but for no more authority to make: or disregard lawtreason, bribery, or other high crimes and mis- than it has to make or disregard facts; and it. demeano.rsagainstthe UnitedStates. 6. Judg- wouldbe as legitimate and proper and decorment of impeachment cannot. extend to death ous for the Managers,. in relation to the evi-l or other corporal punishment, or fine or im- dence in this case, to announce to the Senate, prisonment; but is restricted to removal from " You are witnesses to. yourselves" as " You and disqualification. to hold office; but the are alaw to yourselves." No court has any party convicted, nevertheless, to be liable and right or power to make or disregard either la-w subject to indictment, trial, judgment, and pun- or evidence in the trial of any case; and a ishiment according to law. The offenders, of- court. which would act upon and, avow that. jfenses, court, and punishment are all distinctly rule of conduct would be execrated by maqimpressed.with political features. kind. There is a particular and emphatic cown But the prosecution has assumed two strange trary obligation on this court, for each one of and untenable positions in the course.of this its members has individually made a solemn trial. 1. That the Senate, in the performance appeal to God "that in all things appertain, of the present most important. office. and duty, ing to the trial of the impeachment of Andrew, is not a court. It is. certainly not a legislative Johnson, President of the United States, now body, nor exercising legislative powers; it is pending, he will do impartial justice accordnot an advisory council connected in' a com- ing to the Constitution and the laws." mon function with the President. What, then, One of the leading and inflexible laws which is it? Most of the States had previously to the bind this court is emibodied in the Constitution formation of the Constitution organized their in. these words: several tribunals to try cases of impeachment, "No person shall be removed from office but on and by some they had been denominated courts imp tf ndonvictionof treason, bribery f mpeachment for and convictionof trea on bribery of impeachment, and all had inovested them or other high crimes and misdemeanors. That is the category of all impeachable of- But this precise question has been decided'fenses, and they mustbe acts declared by the law by the Supreme Court in the negative, and of the United States to be treason or bribery, more than once. Hudson & Goodwin were or some other offense which it denominates a indicted under the common law, in the circuit "'high crime or misdemeanor." The laws court of the district of Connecticut, for alibel which define impeachable offenses may be the against the Government of the United States;'Constitution, or acts of Congress, or the corm- and the case was taken up to the Supreme mon law, or some other code, if adopted either Court, which decided without any announced by the Constitution or act of Congress. No difference of opinion among its members, and common-law offense, as such merely, can sus- with the full approbation of Pinckney, Attorney ttain the impeachment of any officer; but to General, that the courts of the United States'have that authority, it must have become a part have no common-law jurisdiction in cases of of the law of the United States by being adopted libel or any other crimes against the United lby the Constitution or some act of Congress, States; but, that by the principles of general and would have operation and effect only to the law, they have the power to fine for contempt, extent that it was consistent with the pi-ovis- to imprison for contumacy, and to enforce the ions, principles, and general spirit of the Con- observance of -their orders, &c.; that the legisstitution. lative authority of the Union must first make No respectable authority has ever -main- an act a crime, affix a punishment to it, and'tained that all offenses merely against the declare the court that shall have jurisdiction.common law, or merely against public morals (7 Cranch, 32.) The court, inthe case of the or decency were impeachable under our Con- United States vs. Coolidge, (1 Wharton, 415,) -stitution. Story has argued, in support of the being an indictment under the common law, position, that some offenses against the com- for rescuing a prize at sea, recognized the:mon law, and not made so by act of Congress, authority of the previous case, and dismissed'are impeachable; but he states hi' premises theindictment. Judge Story sat in both cases, so generally and vaguely that it is impossible and was the only judge who expressed a dissent to obtain a full and clear comprehension of in the latter case from the ruling of that court. his meaning. He neither asserts the broad The common law, in whole or part, has been proposition that all common-law offenses are adopted by the constitutions or statutes of most impeachable, nor does he attempt'to define or of the States; but in Louisiana it has never -describe generally those that are; but contents been made to supersede the civil law, nor the himself with the position, vaguely and hesitat- Partidas in Florida. The courts of the United ingly taken and maintained, that there are com- States recognize and adopt, not the criminal, mon-law offenses which are offenses against the but the civil portion of the common law, genUnited States and which are impeachable; but erally to the extent to which it has been ap-:how or where or by what language of the Con- propriated by a State, in all cases arising in that;stitution, or law of Congress they become of- State within their jurisdiction; but not as the fenses against the United States he does not common law, nor asthe lawof the United States, attempt to show. But he distinctly admits but as the law of the particular State. In that to be impeachable the offense must be States that have-not appropriated the common against the United States. law in whole or part, the United States courts The idea of prosecuting and punishing an adopt such other law generally as they have act as an offense, which no law has made an established for the government of cases arising offense, all must reject. Treason, bribery, high in them respectively. But this adoption by the ~rimes, and misdemeanors are technical terms, courts of the United States of the laws of the found in the common law, and that express States never extends to criminal or penal casea, certain classes of offenses. But the common but is restricted to those of a civil nature. No law, in whole or part, is not necessarily, or State ever executes in any form the penal laws per se. the law of the United States, and to of another State, and the United States only become so must be adopted by the Constitu- their own penallaws, and they exist in no other tion or an act of Congress, and not otherwise. form than acts of Congress. There is no provision or words in the Consti- The State of Maryland adopted the common tution which expressly or by implication adopts law, and on the organization of the District of the common law. When it was before the Columbia, Congress recognized and continued conventions of the States on the question of the laws of that State in so much of it as had their ratification of it, that it did not adopt the been ceded by Maryland. But the laws so common law was frequently and strenuously adopted by Congress were local to the Maryobjected.to, especially in the convention of land portion of the District; they did not exVirginia; and no one denied the truth of that tend to the part of it ceded by the State of position. The courts, Federal and State, and Virginia, in which Congress adopted and conthe profession generally, have up to the pres- tinued in the same way the laws of Virginia. ent time held that there is no adoption of the As the laws of each State are local and discommon law by the Constitution of the United tinctive, so are the laws of Maryland and VirStates, and there never has been any by act ginia which were adopted by Congress for the of Congress. District of Columbia on its organization, local 910 and distinctive to the portions of the District acts which a law of Congress has declared to that were ceded by those States respectively. be an offense against the United States, and Treason, bribery, and other offenses of the denominated it to be, and in its vicious nature nature of high crimes and misdemeanors, to it must be, a high crime or high misdemeanor, be impeachable, must be crimes against the and that the President did that act with a general law of the United States, and punish- criminal intent to violate the law, to authorize able in their courts of the localities where this court to convict him and pronounce judgcommitted. Thus, treason against the United ment that he be removed from office. States is an impeachable offense, whether it be I will now proceed to the examination of the committed in any State or Territory, or the offenses charged in the several articles. The District of Columbia; and so of any other act first charges the President with the commission to be impeachable, it must be an offense by the of a high misdemeanor in having sent a letter laws of the United States, if perpetrated any- to Edwin M. Stanton, Secretary of the Dewhere within its boundary. That an act done partment of War, dismissing him from office in the portion of this District, ceded by the while the Senate was in session, in violation of State of Maryland, would be an impeachable the act of Congress " to regulate the tenure offense, and a similar act done in any place of certain civil offices." beside in the United States, would not be im- Article two charges the President with the peachable, is sustained by neither law nor commission of a high misdemeanor, in having reason. Such an offense would be against the delivered his letter to Lorenzo Thomas directDistrict of Columbia, not against the United ing him to assume possession of the War DeStates. The law of impeachment is uniform partment, and to perform its duties ad interim, and general, not various and local, and it has the Senate being then in session, and without no phase restricted to. the District of Columbia its advice and consent, there being no vacancy as has been assumed by the prosecution. in the office of Secretary of the Department Then, besides treason and bribery, which of War, in violation of his oath of office, the are impeachable by the Constitution, to make Constitution of the United States, and the act any other act an impeachable offense it must of Congress aforesaid. not only be defined and declared to be an of- Article four charges the President of unlawfense, but it must be stamped as a high crime fully conspiring with Lorenzo Thomas, with or misdemeanor by an act of Congress. The intent, by intimidation and threats, to prevent words " high crimes and misdemeanors'" do not Edwin M. Stanton, Secretary of War, from define and create any offense, but express, holding said office, in violation of the Congenerally and vaguely, criminal nature; and stitution of the United States and the "act of themselves could not be made to sustain an to define and punish certain conspiracies," indictment or other proceeding for any offense whereby he committed a high crime in office. whatever; but a law must define an offense, Article six charges the President of having and affix one of those terms to it, to make it conspired with Lorenzo Thomas, by force, to a constitutional ground of impeachment. And seize, take, and possess the property of the this is not all; the offense in its nature must United States, in the Department of War, in have the type of heinous moral delinquency, violation of the civil office tenure act, whereby or grave political viciousness, to make an he committed a high crime in office. officer committing it amenable to so weighty The third, fifth, seventh, and eighth articles and unfrequent a responsibility as impeach- charge the same matter, in somewhat different ment. He may have been guilty of a viola- form, as is embodied in the other four articles; tion of the Sabbath or of profane swearing, and I propose to consider the charges of the or pf breaches of the mere forms of law; and whole eight as growing out of the act of the if they had been declared offenses by act of President in sending his letter to Stanton Congress, with the prefix of " high crime" or removing him from the office of Secretary of " high misdemeanor " attached to them, they War, and his letter to Thomas to take charge would not be impeachable offenses. They ad interim of it. Those two letters compreewould be.too trival, too much wanting in weight bend the substance of all the offenses charged and State importance to evoke so grave, so against the President in the first eight articles. great a remedy. Nor would any crime or The ninth article charges the President, as offense whatever against a State, or against Commander-in-Chief of the Army, of having religion or morality, be a cause for impeach- attempted to induce General Emory, an army ment, unless such an act had been previously officer, to disobey the law of Congress requiring declared by a law of Congress to be a hig4 army orders from the President, or Secretary crime or a high misdemeanor, and was in its of War, to be transmitted through the General character of deep turpitude. of the Army, and was guilty thereby of a high It results from this view of the law of im- misdemeanor in office. peachment that, as none of the articles against To this article three answers may be made: the President charge him with treason or brib- 1. The act does not make an attempt to inery, which are made impeachable offenses by duce a military officer to disobey it, whether the Constitution, they, or some one of them, committed by the President or other person, must allege against him the doing of an act or any offense. 911 2. The evidence not only does not sustain, but United States. did, unlawfully andin disregard of the disproves that charge against the President. requirement of the Constitution that he should take care that thelaws be faithfully executed, attempt to 3. If the charge had been sustained by the prevent the execution of an act entitled'An act proof, the President, as Commander-in-Chief, regulating the tenure of certain civil offices,' by has the absolute and unquestionable right to unlawfully devising and contriving means by which issue militaryorders directly, and without the he should prevent Edwin M. Stanton from forthwith issue military orders directly, and without the resuming the functions of the office of Secretary for intervention of another officer, to any officer the Department of War, notwithstanding the refusal or soldier whatever; and the provision of the of the Senate to concur in the suspension theretofore made by said Andrew Johnson of said Edwin M. act on which this article is based, is an un- Stanton from said office." constitutional and flagitious attempt by Con. gress to subordinate, in a measure, the Com- To this charge it may be answered-it is mander-in-Chief to the General of the Army. made in terms too general and vague to require The tenth article is based wholly on pas- any answer-that the unlawful means which sages taken from several public speeches made the President devised and contrived to prevent by the President, not in his official character Edwin M. Stanton from forthwith resuming the but as a private citizen, to assembled crowds functions of the office of Secretary of War, are of the people, by whom he was called out and not described or set out by any language whaturged to address them. Whatever of improper ever; and that act or any law of Congress does matter, manner, or spirit are in those public ad- not make the devising or contriving of any dresses was provoked by gross insults then of- means to prevent Edwin M. Stanton or any fered to him, which, though nota justification, is other civil officer whom the President has remuch palliation. The Presidentwas then exer- moved from office, and in whose removal the cising a right which our fathers held inviola- Senate has refused to concur, from resuming ble, and which they intended should never be tlie duties of the office from which he has been invaded, and for the protection of which they so removed, a high crime or misdemeanor, or made this special amendment to the Consti- any offense; and said civil-office-tenure bill, tution: so far as it restricts the President's power to " Congress shall make no law abridging the free- remove said tanton, is not consistent with, dom'of speech or the press." but in derogation of, the Constitution, and null and void. For the Senate, as a court of impeachment, And the eleventh article charges also that to setuptobe "alawtoitself," andimpeach Andrew Johnson, President of the United the President as guilty of a high crime and States, devised and contrived other unlawful misdemeanor for exercising a liberty which means to prevent the execution of an act enthe founders of our Governmeitt deemed so titled "An act making appropriations for the valuable, so necessary to the preservation of support of the Army for the fiscal year ending their freedom, as to declare in their funda- June 30, 1868, and for other purposes;" and mental law should never be abridged, would also to prevent the execution of an act entiviolate that fundamental law and shock the tied "An act to provide for the more efficient free spirit of America. The basing of an government of the rebel States." Upon this article of impeachment on those speeches of last charge it may be observed-there is no the President, is calculated to bring down upon description or facts setting out the means the whole proceeding the suspicion and revul- which the President devised and contrived to sion of a free people, and it ought to be dis- prevent the execution of either of the acts missed from this court as containing no im- thelein referred to-that the devising and conpeachable matter. triving means to prevent the execution of said The eleventh article charges that Andrew acts, or either of them, is not made a high Johnson, President of the United States, was crime or misdemeanor by them, or any law; guilty of a high misdemeanor in declaring that there is no evidence that he did devise and and affirming in substance "that the Thirty- contrive any means to prevent the execution of Ninth Congress of the United States was not a said acts, or either of them; and that the act Congresq of the United States authorized by first referred to, in the part which the Presithe Constitution to exercise legislative power dent is charged to have violated, and the last under the same, but, on the contrary, was a act, wholly, are unconstitutional, null, and Congress of only part of the States." This is void. Thus, it is shown on these several not the language proved in the case to have grounds, that there is nothing in the eleventh been used by the President on any occasion; article on which the President, can be imand if he had used it, he could not be impeached peached. for it, because there is no law which makes Some of the articles charge the President the use of such language by the President, or with the commission of high misdemeanors, any person, a high crime or misdemeanor or and others of high crimes in the violation of any offense, and any act of Congress declaring his official bath and of the Constitution genit to be an offense would be unconstitutional erally. The Constitution has no provision and void as abridging the freedom of speech. declaring a violation of any of its provisions This article also charges - to be a crime; that is a function of the legis"That the said Andrew Johnson, President of the lative power, and it has passed no law to make 912 violations of the Constitution, or of official power by the Cbnstitution to remove him, and oaths by the President, or any other officers the act of Congress proposing to restrict that crimes. power is consequently void, his removal was The articles of impeachment seem to be drawn and is de jure valid. In one aspect there is a with studied looseness. duplicity, and vague- removal proper and constitutional; in the other ness, as with the purpose to mislead; certain there is no removal of Mr. Stanton. it is, if their matter charged to be criminal But these are the great questions in the case.? had been separately, concisely, and distinctly Is the first section of the civil-office-tenure stated, this court, and especially its many mem- act in conflict with the Constitution, void, and bers who are not lawyers, would have had a of no effect? Does that section cover the much more ready comprehension of it.' I will case of the removal of Mr. Stanton? Did the not take up and consider the other articles President, inwriting the letter of removal from seriatim, but will group their matter under office to Mr. Stanton, and the letter to General three heads: 1. The removal of Mr. Stanton Thomas, directing him to take charge of the from the office of Secretary of War; 2. the des- office ad interim, willfully and with criminal ignation of General Thomas to take charge of intent violate the civil-office-tenure bill? These that office ad interim; 3. the alleged conspi- propositions comprehend the substance matter racies of the President with Thomas to pre- of the first eight articles. vent by intimidation and force Stanton from The first section of that act is in these words acting as Secretary of War and to take pos- w" That every person holding any civil office to session of the property of the United States which he shall have been appointed by and with the in his custody. The letter of the President to advice and consent of the Senate, and every person who shall hereafter be appointed to any such office Mr. Stanton, informing him that he was thereby and shallbecome duly qualified to act therein, is, and removed from office as Secretary of War, is shall be entitled to hold such office until a successor -charged to be a high misdemeanor, and in vio- shall have been in like manner appointed and duly lati~on fte c oeuathtnro qualifie dexceptashereinafter provided: Provided. lation of the act to'regulate the -tenure of cer- That the Secretary of State of-theTreasury, of War, tain civil offices. of the Navy, and of the Interior, the Postmaster The fifth and sixth sections of that'act are General and the Attorney General shall hold their offices respectively for and during the term of the the only parts of it which define and create any President by whom they may:have been appointed, offenses, and I will quote them both in their and for one month thereafter, subjectto removal by order: and with the advice and consent of the Senate." "If any person shall, contrary to the provisions of -The Constitution creates a Congress in which this act, accept any appointment to, or employment it vests all the legislative power of the Governnmany office, orshall hold or exercise, or attempt to ment of the United States; a President in hold or exercise any such office or employment, he of the United States; a President in shall be deemed, and is hereby declared to be guilty whom it vest's all the executive power, and a of a high misdemeanor," &c. Supreme Court, and authorizes inferior courts This provision might apply to General to be established by Congress, in which it vests Thomas, the ad interim employs, but cannot all the judicial power-except that it provides'include the President. that the Senate shall constitute a court of imThe sixth section enacts- peachment, with jurisdiction to try all civil " That every removal, appointment, or employment officers who might be impeachedbytheHouse of made, had, or exercised, contrary to the provisions Representatives, and to adjudge amotion from of this act, and the making, signing, sealing, coun- and disqualification to hold office. Neither tersigning, or issuing of any commission or letter oft can rightfully, or without usurpaauthority for or in respect to any such appointment department can rightfully, or without usurpa or employment, shall be deemed, and are hereby tion exercise any powers which the Constitudeclared to be, high misdemeanors," &c. tion has vested in either of the other departThe President's letter to Mr. Stanton- is not, ments. Congress has the power, andisbound in fact, his removal from office, though it was in duty to pass all laws necessary and proper intended to procure it; but he refused obedi- to enable the President to execute the powers ence to it, persisted in holding the office of intrusted to him by the Constitution, and withSecretary of War, and still continues in it and out which legislation there are many he could'the actual discharge of its duties. The Presi- not execute, but it cannot confer on him any dent's letter to him did not remove him in fact, additional power, nor can it divest him of any. and if the civil-office-tenure act be constitu- He forms a separate and coordinate departtional it did not in law; and he is now, and has ment of the Government with Congress as been ever since, notwithstanding the President's another, and the courts as the third, and each' letter, dismissing him, in fact and law, in office. derive all their powers fiom the Constitution It is contended by the prosecution that the alone. Neither is subordinate to the others, letter of dismission is against the Constitution though the powers vested in Congress are the and the law, and has no legal effect whatever. most various, extensive, vigorous, and popuStanton was at its date in fact in possession of lar, and necessarily it'is the most aggressive the office and performing its duties, and has so and effective in its aggressions upon the other continued to the present time, and on this departments; the judiciary is the least so, theory of the prosecution there has been no though the inevitable tendency of all power, removal of him in fact or in law. And if that however lodged, is to augment itself. -theory be unsound, and the President -have the The power of appointment to office exists 913 necessarily in all Governments, and is of an Constitution in the President, they properly executive nature; and if the Constitution had appertained to him alone, and he would never contained no particularprovision on this subject have been challenged in the sole and exclusive its language, " the executive power shall be exercise of either. But however that may be, vested in a President of the United States of the truth of this proposition cannot be sucAmerica," would have imported the power of cessfully controverted: the provision of the appointing to office, and by implication would Constitution associating the Senate with the have vested it wholly in the President. But President in the power of appointment, does the effect of this general language is qualified not invest it with the same, or any connection by a special provision: with the power of removal: or authorize Con" And he [the President] shall nominate, and by and gress to pass the civil-office-tenure act, or any with the advice and consent of the Senate shall ap- other act that would impair the President's point, embassadors," &c. sole power and right to exercise it. This is restrictive and exceptional of the gen- But the whole subject of the power of re.eral power of appointment, previously by im- moval from office came up for consideration plication conferred on the President, and has in the First Congress, on the organization of no other operation than what is expressed in the Department of Foreign Affairs, in 1789, its words, and they being exceptional no implied and elicited a debate of great ability among power results from them against the general the ablest men of the body, many of whom grant of power from which they make an excep- had been members of the Convention which tion. But the power of removal from office framed the Constitution. Congress was nmuch. also, as necessarily as the power of appoint- divided on the subject, but a majority of both, ment, exists in all Governments, and is no less Houses sustained the position that the Constian executive power. It is located somewhere tution conferred on the President the power in the Government of the United States, but to remove from office, and the contending par! being an.executive power it cannot be in Con- ties made a compromise, by which the act or, gress, for legislative powers only are vested in ganizing the Department recognized the power that body. It is not established, or vested by of the President to remove the head of thisany express or special provision of the Consti- Department, in this language: tution, but is by the general language: "The chief clerk, whenever the principal officer"The executive power shall be vested in a Presi- shall be removed from office by the President of the dent of the United States of America." United States, or in any other case of vacancy, shall,. during such vacancy, have the charge and custodY' The Constitution leaves the power of re- of all records, books, and papers appertaining to the moval just as this general provisionvests it, with said Department." the President alone. The power of Congress The supporters of the exclusive power of to make all laws which shall be necessary and the President were opposed to any language proper for carrying into execution its enumer- being used in the act that seemed to confer ated powers, and all other powers vested by the this power on the President, and its opponents Constitution in the Government of the United accepted language that conceded and recogStates, or any department or officer thereof, is nized the President's power of removal with, purely a legislative power; and gives no au- out expressly deducing it from the Constituthority to assume or interfere with any powers tion. of the President, or the judicial department. The act establishing the Department of War, Instead of being a power to assail them, its with a provision in the same language recoglegitimate and literal office is to uphold their nizing the power of the President to remove powers and to give facilities in their execution. the Secretary, was passed at a subsequent day That, or any other provision of the Constitu- of the same session, with but little and no tion gives to Congress no warrant or pretext to serious opposition. interfere with the executive power of removal Both those acts formally admit the sole power from office, vested by the Constitution in the of the President to remove the heads of the President alone. respective Departments, but neither of them The power of removal and the power of contains any language to confer that power on appointment to office, though both executive, the President. The supporters of the princiare in their nature distinct and independent of ple that the Constitution vested it solely in each other. One, the power of appointment, him rejected from the bill organizing the was treated specially and separately from the Department of Foreign Affairs all language other in the Constitution, it associating the that seemed to confer it upon the President, Senate with the President in its exercise. But and claimed and determined to maintain it as for this particular regulation of the power of one of his powers solely from the Constitution,; appointment, it is most probable that no and the opponents of this principle, beingwillquestion as to the other distinct power of re- ing to concede the power to the President, if moval from office would ever have been the acts did not expressly state the power to be made; and that all would have silently con- conferred on him by the Constitution, they ceded that both powers being executive in were passed in their existing form, recognizing their character, and all the executive power it as a presidential power to, remove both Secof the Government having been vested by the retaries. The acts were not intended to confer C. I. —58. 914 this power on the President; they have no requires him to fill according to the Constitulanguage whatever to that effect, yet they con- tion and the laws; and an actof Congress which cede that he possessed it; and he could derive by its terms so provides as to strip him of that it. only from the Constitution. This was as power, in whole or part, and to make his percertain an assertion and establishment of the formance of duty after its exercise a crime, is sole constitutional power of the President to unconstitutional and void. The exercise of a remove from office, as if it had been expressed constitutional power and the performance of in the most direct terms; and no attempt has constitutional duty by the President can be ever, before the passage of the civil-office- made neither criminal nor punishable either by tenure bill, been made in Congress to disturb impeachment, or fine and imprisonment. this question as thus settled. If President Johnson has from the ConstituFrom that time, every President has claimed tion the sole power to remove from office, his and exercised the sole power of removal at letter to Mr. Stanton dismissing him from the -all times as an executive power conferred by office of Secretary of War could not be made the Constitution. The great commentators on a crime by any act which Congress could pass; it, Kent, Story, and Rawle, have treated this and it produced a vacancy in the office which power as belonging to the President alone by his action, in some form, was necessary to fill; the provisions and effect of the Constitution and, in the meantime, it was his duty to supply itself, settled by the acts of Congress of 1789, the vacancy in the office temporarily according the uniform and unchallenged practice of the to law. Goyernment, and the general acquiescence of Very soon' after the Government went into the country. The Supreme Court has repeat- operation, vacancies by death. and otherwise edly, and without doubt or hesitation, recog- occurred in various offices; and, whether itwas nized it as an established constitutional prin- during the recess or session of the Senate, the ciple; and Chief Justice Marshall many times, President was frequently not prepared to fill in his opinions, refers to it, as he does to the them properly by appointment and, commisother and unquestioned powers of the Presi- sions to terminate at the end of its next ensudent. Hamilton and Madison were among its ing session, or to make a nomination to it for great authors and firm defenders; it was con- its advice and consent, from a want of a knowlceded to be a settled principle by Clay, Cal- edge of men, and many other-causes. To meet houn, Benton, Wright, Clayton, and all the this temporary exigence Congress, in an act statesmen of America down to the passage of passed in May, 1792, made this provision:' the civil-rights bill; and Mr. Webster main- "That in case of the death, absence from the seat tained, adhered to it, and advocated its exer- of Government, or sickness of the Secretary of State, cise, while the Senate was in session and at Secretary of the Treasury, or of the Secretary of the Department of War, or of any officer of either of said all times, as Secretary of State under Presi- Departments whose appointment is not in the head dent Tyler. No attempt had ever before been thereof,; hereby they cannot perform the duties of made to arrest or qualify its unconditional ex- their respective offices, it shall be lawful for the President of the United States, in case he shall think it ercise by the President, as well when the Sen- necessary, to authorize any person or persons, at his ate was in session as when it was not. The discretion, to perform the duties ofthe said respective reason of America, guided by principle, au- ofices until a successor shall be appointed." thority, and experience, was unwilling to This law is strictly within the power of Condivest, unsettle, or change this presidential gress: power by act of Congress or alteration of the " To make all laws which shall be necessary and Constitution because of being satisfied that it proper for carrying into execution the powers vested was essentially of the nature of an executive by the Constitution in the President." power and absolutely necessary to enable the It confers no new power upon him; all the President to perform his greatest duty, to see executive power of the Government had been that the laws be faithfully executed. If a con- vested in him by the Constitution, and this act troverted constitutional question can *ever be only furnished him facilities for its proper and settled, the power of the President to remove convenient execution. from office at his own will has been beyond But this law was essentially defective; it further legitimate question. was limited to the three Departments first orThe sixth section of the civil-office-tenure ganized-State, Treasury, and War-and to scet before quoted declares that- vacancies in office occasioned by death, ab"Every removal, appointment, or employment, sence from the seat of Government, or sickmade, had, or exercised contrary to the provisions ness. Other legislation was necessary, and of this act, and the making, signing, sealiug, or in February, 1795, Congress passed this other countersigning of any commission or letter of an- law thority for or in respect to any such appointment or law: employment, shall be deemed, and are hereby de- " That in case of vacancy in the office of Secretary dared to be, high misdemeanors," &c. of State, Secretary of the Treasury, or of the SecreBut, if the Constitution invests the President either of the saidDepartm en ts whar, or f any officer of with the sole and exclusive power to remove is not in the head thereof, whereby they cannot perall the officers referred to in said act, his exer- form the duties of their respective offices, it shall be lawful for the President of the United States, in case cise of that power at all times is legitimate and lawful for theires dcessary, to authorize any peison makes a vacancy ill thinks, at his discretion, to perform the utiny e makes a vacancy in the office, which his duty I or persons, at his discretion, to perform the duties of said respective offices, until a successor be ap- inability by sickness shall cease: Provided, That i pointed or such vacancy filled: Provided, That no one vacancy shall be supplied' in manner aforesadi one vacancy shall be supplied in manner aforesaid for a longer period than six months. for a longer period than six months." "SEc.-2. And be it further enacted, That all acts o parts of acts inconsistent with the provisions of this It will be observed, that this second law act are hereby repealed." covers the whole ground, and more, occupied by the first; it applies to the same three De- of the embodied in this opinion the whole partments, none others being then organized temporary supply, or ad interi intments but it isextended beyond vacancies occasioned temporary suppl or ad nteri appointmvern by death, absence from the seat of Government, or sickness, and provides for all va- of peal, and the are restricted t acts or cancies, from whatever causes produced, and limits the continuance of such supplies to six s of acts that are inconsistent with it pr montihs. -visions. It provides in general language for But this legislation in time became incom- the upply of vacancies occurring in g al plete, as it did not provide for this supply of a temporary service n the Navy, Post Ofice, the provision will also include the office of Attm rrtorney General; it, however, does not apply tp and Interior Departments, and the office of torna y General; itwever, does taly Attorney General, when vacancies should allvacanciesthat may occur"nthes, but onl occur in them. Butevertto such as are caused by' death, resignation occur in them. But, nevertheless, in consid- absence from the seat of oernment, or eration of the special requisition of the Consti- nesenc It make so provision whatever, tution, that the President should see that the vacancies resulting from other causes, but, like laws be faithfully executed, that all the executive power of the Government was vested in the act of 1792, is defective in this respect; him, and from the necessity of the caseey that act having provided only for vacanuies hresim and from the necessity of the cfirsteato produced by death, absence from the seat af President from the passage of the first act of Government, or sickness, and this act making 1792 exercised the powerof designating some person for the supply temporarily, when vacan-provision but for one additional class of vacaw cies, by death; both omitted vacancies by ciesoccurred,notonlyin the Foreign Treasury, ie by death; both omitted vacancies removal and expiration of term of office. and War Departments, but also in ail the other removal and expiration of term of office. Departments; and there are many instances sup The chief purpose of the act of 1795 was to of such appointments spreading over that supply the defect of the act of 1792, in the claus.f such appointments spreading over that whole period. These temporary appointments were not provided for by the Constitution, but vacancies generally, all vacancies that migh, from time to time by the laws of Congress occur from any cause; but, like the previous which regulated them; and they were in truth act, it extended only to the Departments of Fornot appointments to office, but a designation emgn Affairs, of the Treasury, and of War, of persons to supply the places and perform being all the Departments then organized. If the duties temporarily of offices, in which va- this rovision o the act of 179, had embodied cancies occurred, until they could be filled by words which would have applied it to such regular appointments; and their necessity and other Departments of the Governmentas might validity were questioned by no one. thereafter be created, there would have been no necessity for the act of 1863, and there-neve But in February, 1863, Montgomery Blair, no necessity for the act of 1863, and there ev Postmaster General, resigned his office during would have been ing vacancies from e. ct the session of the Senate, and President Lincoin designated an Assistant Postmaster Gen- cause- expration of the term of ofie, emov~al, or any other possible cauae-and th~e erAl to perform the duties ad interim of Post- moval, or any other possible cau and the master General, and afterwards sent a special message to Congress, then in session, asking its produced by death, resignation, absence from the seat of Government, and sickness, the act attention to the fact, that the laws of Congress the seat of Government, and sickness, the acn in relation to such appointments, applied only of 1795, so far as it provides for vacan to the Foreign, Treasury, and War Depart- expiration of official term or remol ments, and recommended the passage of an from office, is not inconsistent with the act of act to extend them to the other Departments of 1863, and therefore, to that extent, is not repealed by it, and governs the case of the rethe Government. Thereupon Congress passed pealed by it, and governs the e of the removal of Stanton and the letter of the Presitdent to General Thomas directing him to take "That in case of the death, resignation, absence charge ad interim of the War Department. from the seat of Government, or sickness of the head If there was a vacancy it was produced by of any executive Department of the Government, or of any officer of either of said Departments whose ap- presidential removal; and the designation by pointment is not in the head thereof, whereby they the President of General Thomas or any other cannot perform the duties of their respective offices, it shall be lawful for the President of the Uniteds States, in cae heshallthinkitnecessary, toauthorize duties was authorized by the law of 1795, and the head of any other executive Department, or other if there was no vacancy in the office there could officer in either of said Deoartments whose appoint- he and was no appointment to or employment is vested in the President, at his discretion, to perform the duties of the said respective offices until ment of Thomas in it, as Stanton was never a successor be appointed, or until such absence or out and he never in actually; and the letter 916 of the President to him being neither appoint- require a cumulative appointment and comment to or employment in the office, and hav- mission, in the form and by the authority preing no validity or effect, its simple delivery to scribed by the Constitution.' Thomas constitutes no crime for punishment But another ground of the defense against by impeachment, or trial, judgment, and sen- the articles based on the removal of Mr. Stantence in a criminal court. It is the appoint- ton is, that his case does not, and was not, inment or employment, not the abortive effort to tended to come within the language and operdo either, by the President that is the offense. ation of the civil-office-tenure act. It is admitted, that if the President's letter From the terms, provisions, and history of to Thomas had been addressed to any officer the passage of that act through the two Houses of either of the Departments, or he had filled of Congress, it is plain that that body adopted an office in one of-them, it would not have been the general purpose of requiring the concurin conflict with the act of 1863, and would have rent action of the Senate to enable the Presibeen authorized by the act of 1795. As it had dent to remove the officers designated in it; no effect to put Stanton out or Thomas in but intended so far to modify that purpose as office, and no more results were produced by it to allow to every President, as his personal and than if it had never been written, can statesmen, official' prerogative, to make one selection of Senators, and judges announce to the nation all the members of his Cabinet. No one will and the world that the writing of this letter deny that this is the general rule established by is a high crime and misdemeanor, and sufficient the act; and to give it practical effect it proground for the impeachment of the President of vides that the term of office of the chiefs of the the United States? several Departments, shall end one month after There is another constitutional principle the term of the President by whom they may which prevents the civil-office-tenure act from have been appointed. The obvious intention governing the case of Stanton. He was ap- was that no President should be bound to conpointed by President Lincoln in his first term, tinue officers between whom and himself such and by the language of his commission was to important and confidential relations must nehold his office during the pleasure of the Pres- cessarily subsist, who had not been chosen by ident. All concede that the law, constitutional him, but that he should have one choice for each or statutory at that time, and down to the office, and be held to it until the Senate should passage of the civil-office-tenure bill, author- give its consent that he might make another. ized the President to remove Stanton from This right is accorded to him not by express office whenever he willed to do so. language, but by implication so clear as to adBut it is contended, that this act changed the mit of no doubt; and he possesses it as the tenure and conditions by which Stanton held portion of his before general power. of removal, his office, from an indefinite term and presi- of which this act does not attempts to deprive dential will to -a certain term, and the over- him-it does not confer, or attempt to confer it ruling of the presidential by the senatorial upon him, but leaves him in possession of it. will; that he held his office until the expiration The act is framed on the concession of the then of one month from the 4th of March, 1869, existing power of the President, to remove the when the four years for which Mr. Lincoln was officers for whose cases it provides; and after elected the second time would end, and Mr. declaring a general rule for them, excepts from Stanton's term as Secretary of War would thus its operation the Cabinet officers, and makes continue until April 6, 1869, during which pe- for them a special rule, which is to continue to riod he could'not be removed by the President operate in relation to each one for one month without the permission of the Senate. This is after the expiration of the term of the Presinot the appointment, the ordination into the dent by whom he was appointed; and then office of Secretary of War of Stanton as Pres- leaves him subject to the President's sole and ident Lincoln made it, but a new and essen- unqualified power of removal as it existed betially different one; and who conferred it upon fore the act. The President may then permit him? Not the President, by and with the ad- him to remain in office, or may remove him at vice and consent of the Senate, but Congress, his pleasure, whether the Senate is in session by the form of a legislative act. It is an indi- or not. After removing him the President may rect attempt by the legislative department of designate any person to perform the duties of the Government to strip the executive depart- the office ad interim for six months, by which ment, of a material portion of the power of time he must make a nomination to the Senate appointment to office, and to invest one of its for its advice and consent. own branches with it, and this against the The general and unrestricted power to represidential veto. To give Mr. Stanton, or move from office had been exercised, without any officer in office, the benefits of the new question, by every President of the United conditions and tenure organized by the civil- States up to the date of the civil-office-tenure office-tenure act, requires a new appointment act! including Tyler, Fillmore, and Johnson, to be made by the President, with the advice Vice Presidents, on whom the Constitution had and consent of the Senate, and not by Con- devolved the office of President. gress in the form of an act of legislation. To The first section of the civil-office-tenure act confer on him these cumulative benefits would embodies all of it that bears upon the question, 917 whether the case of Mr. Stanton is compre- ignation, or inability to discharge the powers hended by it. By this law each Cabinet officer and duties of the office." The Presidency, holds his place for one month after the expira- while Mr. Johnson has been filling it and pertion "of the term of the President by whom forming its duties under the Constitution, is as he was appointed;' it is, therefore, necessary much his office as it was Mr. Lincoln's when to know what is meant by the words, "the term he held the same relation to it; and the propof the President." osition that this time of Mr. Johnson in the Section one, article two, of the Constitution, office is not his term but a continuation of is in these words: Mr. Lincoln's term, is not sustained by the " The executive power shall be vested in a Presi- Constitution, fact, or reason. dent of the United States of America. He shall hold But if it were a continuation of Mr. Linhis office during the term of four years, and, together coln's term, it would be of his second, not his with the Vice President, chosen for the same time. col's term, it would be of his seond, not his be elected as follows." first term, which the Constitution inexorably All authorities say that " term is the time closed on the 3d March, 1865; and he having for which anything lasts." In our Govern- been reelected his second term commenced ment no office lasts after the death of the the next day. If Mr. Johnson be serving out termor, or passes to heirs, devisees, or execu- Mr. Lincoln's term, it is not his first one, for tors, but reverts immediately to the State. that is with the years before the flood," but The tenure of some offices is for life, others his second term; and Mr. Johnson would be for a definite number of years, and some dur-invested with every right and power in it to ing the pleasure of the appointing power; but which Mr. Lincoln would be entitled; and the term of all ends also inexorably upon the among them would be the power and the right death of the incumbent. The term of the many to remove Mr. S tanton from the offvides, that the marshals and other officers, who are appointed retary of ar.i for four years could, with as much reason and chief officer of the s ncipal Depart truth, be said to continue to the end of that ments of the Government, shall respectively time, though the incumbents died before its hold their offices according to the tenure eslapse, as it can be said that the term of a tablished by it, for and during the term of the President, who died early in the four years for President by whom they may have been apwhich he was elected, runs on until the expi-pointed. This is a permanent and uniform law, ration of the four years. When a man in office the measure established by it being the dies that closes his term; and so soon as term of the President by whom the officer was another is appointed to it his term commences. appointed, and one month thereafter, and Mr. Lincoln was elected President and Mr Mr. Stanton having been appointed Secretary Hamlin Vice President for a common term of War by Mr. Lincoln during his first term four years, commencing on the 4th of March, in January, 1862, and that term having expired with the 8d of March, 1865, if Mr. Lincoln 1861, and as both survived it the term of each with the d of March, 1865, if Mr. Lincoln ended by lapse of time, March 3, 1865. The had lived until the passage of this act, under second term of Mr. Lincoln for four years, and it he would have had the power to remove Mr. Mr. Johnson's term for the same time, began Stanton, and any other of his Cabinet officers the 4th of March, 1865, and both ended April whom he had not appointed in his second term, following; Mr. Lincoln's by his death, and Mr. and this right passed to President Johnson. Johnson's by the office of President being There are several purposes apparent on the vJohnslon's by d the r ofice of President being face of the civil-office-tenure bill: 1. That all devolved on him, and he thereby ceasing to be officers appointed by and with the adce and Vice President under this provision of the officers appointed by and with the advice and CVnstitution: consent of the Senate should hold their places "In case of the removal of the President from untilit should approve theirremoval. 2. That office, or of his death, resignation. or inability to dis- the Cabinet officers of the President should be charge the powers and duties of the said office, the so far exceptional to this rule, that all Presisame shall devolve on the Vice President." dents should have the privilege and the power Mr. Johnson become President by having to make one selection for each of those offices. been elected Vice President, and by the oper- 3. That, having made a choice, he shall be ation of the Constitution, upon the death of held to it until the Senate shall have given the President, Mr. Lincoln. He is as much him its consent to make another choice. This the President as if he had been elected to that arrangement in relation to the President and office instead of to the Vice Presidency. His his Cabinet was, doubtless, made upon some presidential term commenced when he was reasons; and all concede that it applies to every inaugurated into the office, and is to continue President chosen by the Electoral College; and to last for the residue of the term for which what reasons are there that make it necessary Mr. Lincoln was elected President and he Vice and proper for the administration of a PresiPresident. His presidential term, though not dent so' elected that do not apply with equal so long, is as definite as Mr. Lincoln's was; force to one upon whom the Constitution has both by the Constitution were to continue until devolved the office on the death of a President the 4th of March, 1869, and both, by the same with whom he was elected to the Vice Presilaw, were subject to be determined before that dency? The plain letter and meaning of the time by their " removal from office, death, res- Constitution and this act of Congress, assure 918 hiis right to President Johnson, and it cannot This was a war measure passed at the bebe wrested from him without doing violence to ginnirng of the rebellion, and was directed both Constitution and law. If he had given in against rebels and traitors, and their abettors hisadhesion anid plainlyandpalpably exercised at that time and in the future. It was never this power for the benefit of the party which intended, and is a perversion of that law to atpassed the law, by removing one of his Secre- tempt to apply it to the case of a removal by taries who is opposed to that party, and had, the President of an officer of the Government, nominated to the place one of their faithful and and his direction to the person whom he had trusted -nen, woUld his right to make the re- designated to supply temporarily the vacancy to moval have been questioned? takepossession of the office, and his applicae After the best inquiry of which I am capa- tion to the person riemoved to turn over to him ble, I think these positions to be true beyond the books, property, &c., appertaining to the seasonable doubt: office. I. That the President, by the well-settled All the offenses enacted by that law reprinciple of the Constitution, possesses, as one quire, as an essential constituent of them, that of his executive powers, the sole and exclusive the persons committing them shall conspire power of removing all officers, as well when the together to do the several acts which are made Senate is in session as when it is not. criminal with force or intimidation or threats; 2. That the provision of the civil-office-tenure and in the absence of that purpose there is no act, which requires the President to report to Crime. The charges against the President are, the Senate his removal of certain officers, and in the fourth article, that he did unlawfully conits advice and concurrence to make the re- pire with one Lorenzo Thomas, and with other moval complete and effective, is in derogation persons to the House of Representatives unof that constitutional power of the President, Inown, with intent, by intimidation and threats and is, therefore, unconstitutional and void. ulawfully to hinder and prevent Edwin M. a8. That the case of the removal of Stanton Stanton, Secretary of War, from holding said does not come within the provision, spirit, and office; in the fifth article, that he did unlawmeaning of the civil-offiee-tenure act. fully conspire with one Lorenzo Thomas, and Thmeaning ofesidentvJohnsonhadethee powerwith other persons to the House of Represent4. That President Johnson ad the powe atives unknown, to prevent and hinder the and the right to remove Stanton as Secretary of War; and having remove Stantonhim, ands Seretary execution of an act entitled "An act regulating of War; an having removed the power, ndereby the tenure of certain civil offices;" in the sixth t of 1795, acancyd it was hise had the power, underpply thate article, that he did unlawfully conspire with one act of 1795, and it was his duty to supply that Lorenzo Thomas by force to seize, take, and vacancy temporarily; and his designation of General Thopma rtoilytakend chae the office possess the property of the United States in General Thomas to take charge of the office. ad interim was a proper exercise of power the Department of War; in the seventh artiad interim was a proper exercise of power. cle that he did unlawfully conspire with one Consequently neither the removal of Stanton; clef that he did unlawfully conspire with one Consequently neither the removal of Stanton, Lorenzo Thomas with intent unlawfully to seize, nor the ad interim appointment of Thomas by take, and possess the pr operty of th e United President Johnson, was an impeachable offense, States in the Department of War. but a legitimate exercise of power. A D t o. but a legitimate exrcise of power. A/s to the fifth and seventh articles, they There is then left for my examination, only charge no intent or purpse on the part of the those articles of impeachment which embrace charge no intent or purpose on the part of the those artiles of the conspiracies which embnerace President of doing the things therein specified he matts charged againstof the onspracesident. ThGeneral with force, intimidation, or threats; which is but one law of Congress against cons i ar being of the essence of said offenses and omit-,ti r - ted, no offenses are charged; and as to those bies, which was passed in 1861, and is in these and also thargth and as to those articles, and also the fourth and sixth, there is no evidence that the President entered into "That if t*o or more person-*ithiit any State or any conspiracy with General Thomas, or any Territory of the United States shall conspire to- persons, to do t gether to overthrow or to put down or to destroy b ersons, to do the things set forth in said force the Government of the United States, or to lev articles; or that he intended, advised, or sanewar against the United States, or to oppose by force tioned the use of any force, intimidation or the authority of the Government of the United States, threats in doingthe. Thewholecaseagast or by force to prevent hinder, or delay the execution of any law of the United States, or by force to the President in connection with the matters seize, take, or possess any property of the United charged in those four articles is, that he wrote States against the will or contrary to the authority a letter of the usual tenor to Mr. Stanton, reof the United States, or by force or intimidation or threats toprevent any person from accepting or hold- moving him from the office of Secretary of ing any office or trust or place of confidence under War, and a letter to General Thomas, notifythe United States; each and every person so offend- him of his desi lug shall be guilty of a high crime, and upon con- ing s designation to supply the vacancy viction thereof in any district or circuit court of the temporarily, and directing him to take charge United States having jurisdiction thereof, or distrit of the office and enter upon its duties; all of er supreme court of any Territory of the United ich, by the Constition and laws, he had States having jurisdiction thereof, shall be puqished had by a fine not less than $500 and not more than$5,000, the power and the right to do. There is no: or by imprisonment, with or without hard labor, as evidence that he intended, advised, or sancthe court shall determine, for a period not less than ed te us ~six months nor greater than six years, or by bothe use of any force, intimidation, or such fine and imprisonment." threats in connection with these transactions. 9'19 There is nothing in the case to sustain the new and never having received a judicial confourth, fifth, sixth, and seventh articles, and struction; and Andrew Johnson was under with the others they all fall together. trial on indictment in an ordinary criminal Upon the grounds I have stated I reach the court for the violation of that act, in the reeonclusion, that the defense of the President moval of Mr. Stanton, the court on motion is full and complete.; but there are other grave would instruct the jury to acquit. and weighty reasons why this court should not If the question whether that act does not proceed to his conviction, that I will now pro- trench on a great constitutional power of the ceed to consider. President, and is not therefore void, be one of The Senate is sitting as a court of impeach- doubt and difficulty, and President Johnson ment, to try articles preferred by the House of desired to have that question solved correctly; Representatives against the President of the and to that end consulted the Attorney GenUnited States. Each member has taken a eral and all the other members of his Cabinet, special oath prescribed by the Constitution, and their opinion was unanimous that it was and in these words: unconstitutional; and he was counseled by "I solemnly swear that in all things appertaining them all, including Mr. Stanton, to veto the to the trial of the impeachment of Andrew Johnson, ac on.that ground, and one of his purposes President of the United States, now pending, I will t upon that ground, and one of his purposes do impartial justice according to the Constitution in removing Mr. Stanton was to make a case and the law: so help me God." for the Supreme Court, in which its constituNone of his acts can be considered but tionality should be decided, universal reason those which are set forth against him in the and justice would pronounce, that in writing articles as offenses, and he can be convicted his letter to Mr. Stanton dismissing him from only upon such as are defined and declared by office, the President had no criminal intent, the laws of the United States to be high and did not commit an impeachable offense. crimes or misdemeanors, and which are in The evidence on this point which the prosetheir nature and essence offenses of that char- cution presented, and which was admitted withacter. This court is bound to try these arti- out objection, would probably be sufficient with cles of impeachment by the same laws and most minds to exculpate the President from all rules of evidence, substantially, which would criminal intent; but the most satisfactory proof govern an ordinary criminal court on the trial that could have been made upon it, and which of indictments against Andrew Johnson for was clearly competent, was the evidence of the the same offenses-except in the matter of members of the Cabinet, which a majority of judgment against him, which here would be this court ruled it would not hear. A criminal. more grievous. court would not have excluded this evidence, I will quote from Blackstone's Commenta- or, if having done so inadvertently, on conries a fundamental principle, which is found viction by the jury, it would of its own motion in all works on criminal law, is recognized in award a new trial. In the face of so grave an every criminal court in America, and which error committed by this court, and affecting so should guide and control this court in the pend- materially. the defense of the respondent, it ing trial: would be a great wrong to him and the country "And as vicious will without a vicious act is no civil to proceed to his conviction. erime, so, on the other hand, an unwarrantable act The powers of our Government are carewithout a vicious will is no crime at all. So that fully and wisely divided out among the three to constitute a crime against human laws there must be first a vicious will, and secondly, an unlawful act departments, and the lines of separation are in consequent upon such vicious will." some cases so indistinct that it is difficult to. This principle, that to the unlawful act there avoid overstepping them. A just and patriotic must attach a criminal intent or purpose, which President would not willfully infringe the conprompted the commission of the act, is the stitutional powers and rights of Congress; nor guiding light of all courts: a person doing the would that body, if composed of such men, act charged to be a crime, in its absence, might make any intentional aggression upon those be guiltyA but it would be without criminality. confided to the President. I have observed no The law generally infers the criminal intent such disposition on the part of the present exfrom the unlawful act, but it always permits ecutive head; and the question between him the accused party to show by proof the absence and Congress growing out of the civil-officeof the criminal intent, which is generally an tenure bill, he desired to have submitted to and easier task in relation to offenses merely mala decided by the Supreme Court, as has been prohibita, than in those which are also mala satisfactorily proved in this case. He took se. All the offenses charged against the Pres- legal advice, and was informed that under exident are merely and strictly mala prohibita. isting laws he could not have any proceeding If the civil-office-tenure bill on its face is so instituted to determine it, which could be taken ambiguous and uncertain as not to inform an to the Supreme Court and be tried by it until officer of Government possessed of a good about the time or after the expiration of his common understanding, with reasonable cer- presidential term. He had no remedy by which tainty, whether or not it did comprehend the he could test the question in a reasonable time. case of Mr. Stanton, and forbid his removal Congress and the Presidentboth should have from office by the President, that act being desired and have sought the settlement of 920 this, and all other questions of controverted tween them have not been submitted to that power between them, by the judgment of that test is due to the default of Congress. tribunal which the Constitution had designed But the exclusion of important evidence by for that purpose. In a few hours of any day, this court involves another and very grave Congress could have framed and passed a law error. The Constitution says of impeachment, which would have enabled the Supreme Court "No person shall be convicted without the cansummarily to have got possession of and to currence of two thirds of the members present.' decide promptly this, and all other questions Convicted does not mean simply condemned, between it and the President; and such settle- for a man may be condemned of a crime withment of the disputed boundaries of their re- out or against evidence; but convicted means spective powers, would have been accepted by proved and determined to be guilty. There may the people generally, and as to those ques- be condemnation, but cannot be conviction with. tions would have given repose to the country. outproof. One of the necessary elements of But instead of such wise and peaceful legisla- conviction is evidence, and it might be impostion, Congress was exhausting all its ingenuity sible on all the evidence of the defense in a and all its resources to make its aggressions case, and yet practicable and easy upon the upon the Executive Departments successful residue after excluding a material part of it. and complete; and so to organize, fetter, and The exclusion of material evidence is a part of intimidate the Supreme Court, as to prevent conviction, and may be substantially andpractiit from interfering to perform its great office cally the conviction. of settling such questions by the Constitution, But conviction is a totality, can exist only law, and reason. in solido, and in all its parts and processes, But Mr. Stanton sued out a criminal warrant and as a whole, it requires two thirds of the against General.Thomas to protect himself Senators present. To demand two thirds to against intrusion into the War Office; and when convict, and to permit a majority to exclude the President heard of this proceeding he ex- all or a material part of the evidence which pressed his gratification, knowing that the might produce conviction, would not only be question of the validity of his removal of Mr. a hollow mockery, but an absurdity and conStanton would come up on the hearing of a tradiction. The constitutional rule, which rewrit of habeas corpus that might be sued out quires two thirds to convict, by necessary imby General Thomas. The latter executed bond plication, makes the same number necessary to with surety to appear before Judge Cartter to rule out the defendant's evidence, in whole or answer the complaint of Stanton, and at the part, and so produce conviction. If this court, appointed time appeared before the Judge by a majority of its members, had excluded with his surety, who surrendered him to the the whole of the defendant's evidence, it would court. It was the plain duty of Judge Cartter have shocked the country, and there would to have ordered General Thomas into the cus- have been a general exclamation, that a rule tody of the marshal, or to prison; but he did of practice which would enable a bare majorneither, because either would have been a re- ity indirectly to effect what a great constitustraint of his liberty and have made a ground tional principle required two thirds to do, to for suing out a writ of habeas corpus for a convict in all cases of impeachment, was both judicial inquiry into the cause of his deten- mischievous and unsound. This court should tion. The case, immediately after hearing by correct this erroneous ruling of an important the judge before whom the writ might be re- constitutional principle by its judgment in favor turned, could be taken to the Supreme Court, of the President. heard at once, and the questions of right be- There are still. other cogent considerations tween Stanton and Thomas to the War Office against the impeachment of the President, one and the constitutionality of the civil-office- of the most weighty of which I made at the tenure bill, would be before the court for its opening of the trial, and will here restate. decision. This court is not constituted according to the This was the purpose of Thomas, and bythis requirements of the Constitution, and, theretime it had become apparent; and the impar- fore, is incompetent to try the case before it. tial andpatriotic judge determined to defeat The Constitution provides thatit by the disregard of his own official duty; and he refused to order Thomas into custody, posed of two Senators from each State, chosen by the and consequently there ceased to be any ground Legislature thereof for six years; and each Senator for Thomas to sue out a writ of habeas corpus. shll have one vote." " No State. without its consent, shall be deprived of its Here a corrupt judge revealed himself, and equal suffrage in the Senate." * * * * afforded to the House of Representatives an "The Senate shall have the sole power to try all inmopportunity to impeach him for corruption in peachments," &c. office, palpable and flagitious. But it was Every State has an equal right to have two their bull that had gored the ox. members of the Senate, and to choose them The purpose and desire of the President, to by her Legislature, and to organize her govhave the question of the constitutionality of the ernment and elect that Legislature by her own civil-rights bill decided by the Supreme Court people, with whom rests her political power, is manifest; that it, and all other questions be- without any dictation or interference by Con 921 gress. When a State has chosen her Senators, of its members is excluded, and who, if presand they apply at the bar of the Senate for ent, would probably differ from the majority admission as members, it is the right of the of those here in their judgment of this importStafte and of her Senators-elect, if they have ant case, cannot form a constitutional court the qualifications required by the Constitution, of impeachment for its trial. to be admitted, and this body cannot, without The impeachment of the President of the violating it, keep them out. The Senate has United States is the arraignment of the executhe right to reject an applicant who does not tive department of the Government by one present himself with qualifications, election, branch of the legislative department and its and return in conformity to the Constitution, trial by the other. The incongruity of such a but every one who comes so arrayed is entitled responsibility and consequent danger of the to admission. ultimate subordination of the executive to the In time of peace, when there is no rebellion legislative department excited the gravest apor insurrection in a State against the United prehensions of that wisest political sage, Mr. States, a majority or any number of the Senate Madison, when the Constitution was being or of the two Houses of Congress have no framed. Short of the sword, it is the extreme right or power to deny to such or any State remedy, and was intended for the worst politirepresentation in them; and its exercise is cal disorders of the executive department. destructive of the Constitution, and overthrows Nothing but treason, official bribery, or other the Government which it created. Such a power high crimes and misdemeanors, made so by would at all times enable a faction, that hap- law, and also in their nature of deep moral pened to hold a majority in the two Houses to turpitude, which are dangerous to the safety mutilate them at will, and control the whole of the State, and which palpably disqualify Government by excluding the Senators and and make unfit an incumbent to remain in Representatives from as many States as might the office of President, can justify its applicabe needful for their purposes. All this has tion to him. Cases that do not come up to been inaugurated and is in course of successful this measure of delinquency, those who made enactment by the dominant party. the Constitution intended should be remedied When the rebellion was crushed out and in the frequency of our elections by the people those engaged in it made their submission, the at the ballot-box, and the public repose and Constitution, by its own force, reinstated the welfare require that they should be referred to States involved in it de jure to their previous that most appropriate tribunal. position in the Union, with all the rights and Impeachment was not intended to be used duties of the other States. They conformed as an engine to gratify private malice, to avenge their constitutions and governments, so far as disappointed expectations, to forward schemes they had been estranged by secession and of personal ambition, to strengthen the measrebellion, to the Constitution and Government ures or continue the power of a party, to punof the United States, and elected their Senators ish partisan infidelity, to repress and crush its and Representatives. dissensions, to build up or put down opposing Congress by many of its laws, the Executive factions. By our system all that sort of work by multitudinous appointments and other acts, is to be done in popular canvasses; and to and the Supreme Court by hearing all cases bring the great and extraordinary remedy of coming up from them and allotting its mem- impeachment to do any of it, is the vile prosbers to hold circuit courts in them, recognized titution of what was intended to be a rare and them as States; but still the Senate and House august remedy for great evils of state. persisted in keeping out their Senators and The impeachment of a President of the Representatives. At length Tennessee ex- United States, for a difference of political policy tended the right of suffrage to her negro popu- between him and Congress, is a monstrous lation, and disfranchised a large portion of her perversion of power. Is the present prosecuwhite men that had been implicated in the tion anything but that? President Johnson rebellion, and forthwith the majority in the and Congress agreed in their policy and meastwo Houses admitted her Senators and Repre- ures to put down the rebellion, and they were sentatives; but the other southern States con- signally successful; and after it was crushed -tinued to be contumacious on the vital, radical out these departments of the Government did party question of negro suffrage, and therefore many formal and important official acts relating were continued to be denied their great con- to each and all of them engaged in the rebelstitutional right of representation in the two lion as States in the Union, and as having the Houses of Congress. Itwasthus demonstrated, same relations as the other States with the that the cause of denying to the southern States Government of the United States. representation in Congress, in violation of the Those States complied with conditions inConstitution, was their not having conferred sisted upon both by the President and Conthe right to vote on their negro population, gress, and by their constitutions and laws they and that they were to continue unrepresented respectively abolished slavery, renounced the until they surrendered that point, or until principle of secession, repudiated their debts means could be devised to fasten it upon created by their rebellion, and ratified the thirthem. A Senate from which almost one third teenth amendmentof the Constitution, by which 922slavery was abolished throughout the United States, and will to the best of my ability preserve, States. For the masses of the people of those protect, and defend the Constitution of the United States, the President thought all this was sub- tates. mission and expiation enough, and refused to The plain sequences of these provisions of insist that they should, in addition, confer on the Constitution are some very important printheir late slaves, who in two States exceeded ciples: the whites, and in all of them were a large por- 1. The Constitution is the paramount law tion of the aggregate population, the right of of the land throughout the United States. suffrage, nor would he consent to unite in un- 2. Every constitution and law of the States constitutional measures to force negro suffrage and every act of Congress, so far as they may upon those States. This is the real head and be inconsistent with the Constitution of the front of the President's offending: he would United States, fall before its predominant aunot cooperate with the Radicals in their scheme thority and force, and from their origin are to get possession of and control the govern- void and of no effect. ments and all the political power of the south- 3. While it is the right of every citizen to ern States by the agency of voting negroes oppose unconstitutional acts of Congress by against the will of the white people, and to all every proper means, it is the especial duty of their unconstitutional measures to effect it he the President to make that resistance, as the opposed the power with which the Constitution chief executive officer of the Government, who had invested him. has taken an official oath before entering on A subordinate ground of their ire against the execution of his office that he will faiththe President was, that to many of the people fully execute the office of President of the of the southern States who were engaged in United States, and will to the best of his ability the rebellion, he extended the magnanimity preserve, protect, and defend the Constitution and clemency of the people of the United of the United States. He has no more imStates in the exercise of the pardoning power, portant duty to perform, and none more obligthe noblest of all the great powers with which atory upon him, than to preserve, protect, and they have intrusted him. But there were no defend the Constitution against all assailants, rebels, however vile, that were willing to be- against Congress, and all comers. In doing come the liegemen of the Radical party, whose this, he is not to make war, or any civil conpardon they did not favor; and they have vulsion; but he is to resort to every appropriate trenched further upon the powers of the Pres- means with which the Constitution and the laws ident by assuming that of pardon, in bills in- have intrusted him; and none could be more troduced in both Houses to remove the dis- fit than his removal of Mr. Stanton from office, abilities of a great number of rebels, since with the purpose of making a case for the Subecome Radicals. But it is time all were preme Court, in which the constitutionality pardoned I of the civil-office-tenure bill should be decided Among the many strange positions assumed by the tribunal appointed by the Constitution by the prosecution are: 1. The President has for the final judgment of all such questions. no right to inquire into and act upon his con- The right of each department of the Govelusion that the civil-office-tenure act, or any ernment to interpret and construe the Constituother act of Congress, is unconstitutional. 2. tion for itself, and by it to determine the valid. That it was his duty to execute that act with- ity of all acts of Congress, within the scope of out any question of its constitutionality.. 3. the performance of their respective functions That this court of impeachment has no right in the Government as to all questions not ador power to inquire into the constitutionality judged by the Supreme Court, has heretofore of that act. been a generally received principle, and has The latter position is so palpably and flagi- always been acted upon in the administration tiously unsound as to deserve no other answer of the Government. That a President was than a simple denial. The others are entitled bound to execute an unconstitutional act of to some consideration, though they are nega- Congress without any question, until it was so tived by the Constitution itself, to prove which decided by the Supreme Court, and by taking I will quote from it: steps to have it subjected to that test, commit"This Constitution and the laws of the United ted an impeachable crime, is one of the absurd States which shall be made in pureuancetkeeof" and mischievous heresies of this day. * * * "shall be the supreme law of the land; In relation to this matter adison so and the judges in every State shall be bound thereby his matter Mr. Madison so anything in the constitutions or laws of any State to clearly expresses the true principles of the the contrary notwithstanding." Constitution that I will dismiss it with a quoThe Senators and Representatives before men- from him, tioned, and the members of the severalState Legis- tation rom him, with the remark that the latures, and all executive and judicial officers, both principles which he expresses have always of the United States and of the several States, shall been generally held by all the statesmen, courts, be bound by oath or atffirmation to support this Con- and sts of ca. adison Papers, volstitution." and jurists of America. Madison Papers, vol" The President, before he enter on the execution ine four, page 394, dated in 1834, says: of his office, shall take the following oath or affirmation: "As the legislative, executive, and judicial depart"I do solemnly swear (or affirm) that I will faith- ments of the United States are coordinate, and each fully execute the office of President of the United equally bound to support the Constitution, it follows 923 that each must, in the exercise of its functions, be I do not doubt, I conclude that there is no guided by the text of the Constitution according to ground whatever for the impeachment of the its own interpretation of it; and consequently that President, and pronounce my opon that all in the event of irreconcilable interpretations the President, and pronounce my opinionthatal prevalence of the one or the other department must the articles be dismissed. depend on the nature of the case as receiving the In conclusion, I will express condemnation final decision from one or the other, and passingfrom of the hrsh spirit and flagrant violations of that decision into effect without involving the func- of the tions of any other. decorum with which this case has been prose"But notwithstanding this abstract view of the cuted in court; and especially of the violent coirdinate and independent right of the three de- and unustifable denunciations and oppropartments to expound the Constitution, the judicial and unjustifiable denunciations and oppro department most familiarizes to the public attention brious epithets with which some of the Manas the expositor, by the order of its functions in rela- agers have indulged themselves toward the tion to the other departments, and attracts most the respondent. Such exhibitins certainly do not public confidence by the composition of the tribunal. respondent. Such exhibitions certainly do not "In the judicial department, in which constitu- commend proceedings by impeachment before tionality as well as legality generally find their ulti- the Senate of the United States to the respect mate discussion and operative decision; and the and high consideration of our countryen o public deference to and confidence in the judgment and high consideration of our countrymen or of that body are peculiarly inspired by the qualities the world. implied in its members and by the gravity and deliberation of their proceedings, and by the advantage their plurality gives them over the unity of the ex- OPINION ecutive department, and their firmness over the multitudinous composition of the legislativedepartment. OF' Without losing sight, therefore, of the coordinate HO N JOHN SHER 1 IAN. relations of the three departments to each other, it may always be expected that the judicial bench, when happily filled, will, for the reasons snggested, This cause must be decided upon the reasons most engage the respect and reliance of the public as the surest expositor of the Constitution, as well and presumptions which by law apply to all in questions within its cognizance concerning the other criminal accusations. Justice is blind boundaries between the several departments of the to the official station of the respondent and to Government as in those between the Union and its members." the attitude of the accusers speaking in the name of all the people -of the United States. Mr. Chief Justice, I believe these proposi- It only demands of the Senate the application tions to be true: to this cause of the principles and safeguards 1. The power of removal from office is an provided for every human being accused of executive power, and is vested by the Constitu- crime. For the proper application of these tion in the President solely; and, consequently, principles we ourselves are on trial before the that so much of the act to regulate the tenure bar of public opinion. The novelty of this of certain civil offices as proposes to restrict proceeding, the historical character of the trial, the President's exercise ofthat power, is uncon- and the grave interests involved, only deepen stitutiotlal and void. the obligation of the special oath we have taken 2. That the case of Edwin M. Stanton, Sec- to do impartial justice according to the Conretary of War, does not come within the opera- stitution and laws. tion of that act, and it presented no obstruc- And this case must be tried upon the charges tion to his removal by the President if constii now made by the House of Representatives. tutional. We cannot consider other offenses. An appeal 8. That the removal of Stanton produced a is made to the conscience of each Senator of vacancy in the office of Secretary of the De- guilty or not guilty by the President of eleven partment of War, which the President was specific offenses. In answering this appeal a althorized by the laws of Congress to supply Senator cannot justify himself by public opinion for six months, by the designation of any per- or by political, personal, or partisan demands, son to perform its duties for that period. or even grave considerations of public policy, 4. That there is no evidence that the Presi- His conscientious conviction of the truth of dent violated, or attempted to violate the " act these charges is the only test that will justify a to define and punish certain conspiracies," the verdict of guilty. God forbid that any other act which directs " all orders and instructions should prevail here. In forming this convice relating to military operations by the Presi- tion we are not limited merely to the rules of dent or Secretary of War to be issued through evidence, which by the experience of ages have the General of the Army, and in case of his been found best adapted to the trial of offenses inability through the next in rank," or the act in the double tribunal of court and jury, but "to provide for the more efficient government we may seek light from history, from personal of the rebel States." And, moreover, I be- knowledge, and from all sources that will tend lieve the two acts last referred to were in conflict to form a conscientious conviction of the truth. with the Constitution and void and of no effect. And we are not bound to technical definitions 5. I believe the President has the same free- of crimes and misdemeanors. A willful violadom of speech which the Constitution guaran- tion of the law, a gross and palpable breach of tees to every American citizen; and if he had moral obligations tending to unfit an officer for not, he has been guilty of no such abuse of it, the proper discharge of his office, or to bring as to constitute an impeachable offense. the office into public contempt and derision, is, Upon these propositions, the truth of which when charged and proved, an impeachable 924 offense. And the nature and criminality of by the President-first, under the Constitution the offense may depend on the official character of the United States; and second, under the of the accused. A judge would be held to act of 1789 creating the Department of War. higher official purity, and an executive officer First. Has the President, under and by virto a stricter observance of the letter of the law. tue of the Constitution, the power to remove The President, bound as a citizen to obey the executive officers? law, and specially sworn to execute the law, The question involved is one of the gravest may properly in his high office as Chief Magis- importance. It was fully discussed in the first trate, be held to a stricter responsibility than session of the First Congress; and latterly has if his example was less dangerous to the public been so often discussed in the Senate that it is safety. Still, to justify the conviction of the only necessary for me to state the general President, there must be specific allegations of principles upon which my own judgment in this some crime or misdemeanor involving moral case rests. turpitude, gross misconduct, or a willful viola- The power to remove officers is not expressly tion of law, and the proof must be such as to conferred upon the President by the Constitusatisfy the conscience of the truth of the charge. tion. If he possesses it it must be-1. From The principal charges against the President his general duty to see that the laws are faithare that he willfully and purposely violated the fully executed; or, 2. As an incident to his Constitution and the laws, in the order for the appointing power; or, 3. By authority from removal of Mr. Stanton, and in'the order for time to time conferred upon him by law. Is it the appointment of General Thomas as Secre- derived from his general executive authority? tary of War ad interim. These two orders The first section of the second article of the Conwere contemporaneous-part of the same trans- stitution provides that "the executive power action —but are distinct acts, and are made the shall be vested in the President." Section basis of separate articles of impeachment. three of the same article provides " that he Their common purpose, however, was to shall take care that the laws be faithfully exeplace the Department of War under the con- cuted." This duty to execute the laws no more trol of General Thomos without the advice and includes the power to remove an officer than it consent of the Senate. does to create an office. The President cannot On these charges certain leading facts are add a soldier to the Army, a sailor to the Navy, either admitted, or are so clearly proved that or a messenger to his office, unless that power they may be assumed to be admitted. It thus is conferred upon him by law; yet he cannot appears that during the session of the Senate, execute the laws without soldiers, sailors, and and without the advice and consent of the Sen- officers. His general power to execute the ate, the President did make these orders with laws is subordinate to his duty to execute them the avowed purpose of gaining possession of with the agencies and in the mode and accordthe Department of War. That he knew that ing to the terms of the law. The law prehis power to remove Mr. Stanton was denied scribes the means and the limitof his duty, and and contested both by the Senate and Mr. the limitations and restrictions of the law are Stanton; that this act was committed after full as binding upon him as the mandatory parts of deliberation, and with the expectation that it the law. would be effective in expelling Mr. Stanton The power of removal at his will is not a'from the Department of War, and that this act necessary part of his executive authority. It of removal was in no way connected with the may often be wise to confer it upon him; but, power of the President to appoint or remove if so, it is the law that invests him with discrea Secretary of War by and with the advice and tionary power, and it is not a part, or a necesconsent of the Senate, but was the act of the sary incident, of his executive power. It may President alone, done by him under claim that be, and often is, conferred upon others. it was within his power under the Constitution That the power of removal is not incident to and the laws. It is, therefore, not so much a the executive authority is shown by the provisquestion of intention as a question of lawful ions of the Constitution relating to impeachpower. ment. The power of removal is expressly If the President has the power, during the conferred by the Constitution only in cases of session of the Senate, and without their con- impeachment, and then upon the Senate, and sent, to remove the Secretary of War, he is not not upon the President. The electors -may guilty under the first, fourth, fifth, and sixth elect a President and Vice President, but the articles presented by the House: while, if the Senate only can remove them. The President exercise of such a power is in violation of the and the Senate can appoint judges, but the Constitution and the laws, and was done by Senate only can remove them. These are the him willfully, and with the intent to violate the constitutional officers, and their tenure and law, he is guilty, not only of malfeasance in mode of removal is fixed by the Constitution. office, but of a technical crime, as charged by the All other officers are created by law. Their first article, and upon further proof of the con- duties are defined, their pay is prescribed, and spiracy alleged, is guilty, as charged by the their tenure and mode and manner of removal fourth, fifth, and sixth articles. may be regulated by law. The power to remove Mr. Stanton is claimed The sole power of the President conferred by 925 the Constitution as to officers of the Govern- ferring executive authority. If this is tenable ment is the power to appoint, and that must be all limitations upon his power of removal are by and with the advice and consent of the Sen- unconstitutional. A constitutional power can ate. Does the power of appointment imply only be limited by the Constitution, and yet the power of removal? It is conferred by two Congress has repeatedly limited and regulated clauses of section two of article two of the the removal of officers. Officers of the Army Constitution, as follows: and Navy can only be removed upon convic" He shall have power, by and with the advice and tion by court-martial; in some cases the assent Consent of the Senate, to make treaties, provided of the Senate is required, and in others the tentwo thirds of the Senators present concur; and he shall nominate, and by and with the advice and ure of office is fixed for a term of years. A consent of the Senate shall appoint, embassadors, careful examination of the debate of 1789 on other public ministers and consuls, judges of the Executive Departments Supreme Court, and all other officers of the United States whose appointments are not herein otherwise will show that while a majority of the House provided for, and which shall be established by law; decided that the power of removal was with the but the Congress may by law vest the appointment President yet they were not agreed upon the of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads basis of this power. The debate was only as of Departments. to heads of Departments, as to whom there are "The President shall have power to fill up all vacancies that may happen during the recess of th pecuiar reasons why they should only hold Senate by granting commissions which shall expire their offices at the pleasure of the President. at the end of their next session." The Government was new; the President comIf the power to remove is incident to the manded the entire confidence of all classes and power to appoint, it can only be coextensive parties, and the wisest could not then foresee with the powerto appoint. In that case, during the rapid and vast extension in territory and the session of the Senate, the removal must be population of the new nation, making neces" by and with the advice and consent of the sary a multitude of new offices, and increasing Senate." By any other construction the im- to a dangerous degree the power, patronage, plied power would defeat the express power. and influence inherent in the executive office. In all arguments on this subject it is assumed Who can believe that- if the great men who that the power to remove an officer must exist were then willing that Washington should resomewhere; that removal by impeachment move his heads of Departments at pleasure could not haye been intended to be the only could have foreseen the dangerous growth of mode of removing an officer, and therefore the executive power would have been willing by power to remove must, from the necessity of mere inference to extend his power so astb its exercise, be held to exist in some Depart- remove at pleasure all executive officers. This ment of the Government, and must be implied power unrestricted and unlimited by law is from some express grant of power. By this greater and more dangerous than all the execreasoning some have implied the power to re- utive authority conferred upon the President move from the power to appoint, and a dis- by express grant of the Constitution. His tinction has been made between a removal command of the Army and Navy is limited by during the session of the Senate and one made the power of Congress to raise armies and during the recess. If the power to remove is navies, to declare war, and to make rules and derived from the power to appoint, then the regulations for the government of the Army President during the recess may exercise it, and Navy. His power to pardon is limited to and may then fill the vacancy by a temporary casesotherthanofimpeachment. Hispowerto appointment. But, if this argument is tenable, appoint officers and make treaties is limited by he cannot remove an officer during the session the consent of the Senate. Surely when these of the Senate without they consent. Then they express powers, far less important, are so careshare with him in the power to appoint, and fully limited by the Constitution, an implied in all the power that is derived from the power power to remove at pleasure the multitude of to appoint. Therefore, the removal of one officers created by lawcannot be inferred from officer diring the session of the Senate, except that instrument. If so the implied power in and by the appointment of another, or by swallows up and overshadows all that are exthe consent of the Senate, would be clearly pressly given. What need he care for the Senanconstitutional, unless the power to remove ate when he may remove in a moment, without is derived from some other than the appoint- cause, all officers appointed with their consent? ing power. What need he care for the law when all the In this case the removal of Mr. Stanton is not officers of the law are instruments of his will, claimed by the President to be derived from holding office, not under the tenure of the law, the appointing power; but it is asserted as a but at his pleasure alone? The logical effect distinct exercise of an independent constitu- of this power, if admitted to exist under and tional and legal power incident to his executive by virtue of the Constitution, is revolution. office or conferred upon it by law. In the However much respect is due to the decision early discussions on this subject, especially by of the first Congress, yet the actual working of Mr. Madison, the alleged power of the Presi- civil government is a safer guide than the dent to remove all officers atpleasure was based reasoning of the wisest men unaided by exupon the general clauses already quoted con- perience. 926 Their judgment that the head of a Depart- cannot excuse himself by showing that he ment should be removable by the President believed it unconstitutional, or that he was may be wise, but the power to remove is not advised that it was unconstitutional. If a citconferred by the Constitution, but, like the izen assumes that an act is unconstitutional office itself, is to be conferred, created, con- and violates it he does it at his peril. He may trolled, limited, and enforced by the law. That on his trial assert its unconstitutionality, and such was.the judgment of Marshall, Kent, if the court of last resort in his case pronounces Story, McLean, Webster, Calhoun, and other the law unconstitutional he will be acquitted. eminent jurists and statesmen, is shown by He takes that risk at his peril. If the law is their opinions quoted in the argument; but held constitutional his belief to the contrary they regarded the legislative construction as will not acquit him. Ignorance of the law does controlling for the time the natural and proper not excuse crime, and he who undertakes to construction of the Constitution. The legisla- violate it on the pretense that it is unconstituo tive construction given by the first Congress tional-thus setting up his opinions against that has been gradually changed. Army and Navy of the law-making power-must take the conofficers have long been placed beyond the un- sequences of his crime. limited power of the President. Postmasters The same rule applies much stronger to the and others have a fixed term of office. Various President when he violates a law on the claim legislative limitations have been put upon the that it is unconstitutional. He is not only power and mode of removal. The Comptroller bound to obey the law, but he is sworn to exeof the Currency holds his office for five years, cute the law. In resisting it he violates his and can only be removed by the President duty as a citizen and his oath as an officer. upon reasons t6 be communicated to the Sen- If he may protect himself by an honest opinio.p ate. Finally, when the derangement of the of its unconstitutionality, then all his responsirevenue service became imminent, and the bility ceases. He may assert it on his triallike abuse of the power of removal produced a dis- all other persons accused of crime, but the graceful scramble for office, the legislative court having final jurisdiction of his case must authority asserted its power to regulate the decide this question like all others, and if that tenure of civil offices by the passage, on the court affirms the law his guilt is complete. 2d of March, 1867, of the tenure-of-civil-office In this case the President knew that a breach act.- That this measure is constitutional, and of this law by him could only be tried by the that it is in the highest degree expedient, we Senate. His pardoning power exempts him have asserted by our vote for the law. The from all punishment, except by and after imPresident had the right to demandof us a review peachment. His case can only be tried by the of this opinion under the sanction of the special Senate, and it is a court of last resort. His oath we have taken. Aided by the very able violation of this law might enable others to get argument in this cause, and by a careful review the opinion of the Supreme Court, by creating of the authorities, I am still of the opinion that rights or claims to office; but his offense could the Constitution does not confer upon the not be tried before the Supreme Court, but President as a part of or as incident to his must be tried before a court that in its legislaexecutive authority the power to remove an tive and executive capacity had already thrice officer, but that the removal of an officer, like considered this law and held it valid. A viothe creation of an office, is the subject of legisla- lation of it, then, on the pretext of its unconstitive authority, to be exercised in each particular tutionality, would be in the face of these wellcase in accordance with the law. considered judgments of the court that alone I therefore regard the tenure-of-office act as was competent to try his cause, and would be constitutional and as binding upon the Presi- in the highest sense willful, deliberate, and predent to the same extent as if it had been meditated. approved by him. He has no more right to It remains to consider whether, under the disregard the law passed according to the Con- law as it existed on the 21st of February, 1868, stitution without his assent than a Senator the removal of Mr. Stanton was authorized, * could disregard it if passed without his vote. and this involves only the construction of two The veto power is a vast addition to executive acts, namely: authority, and experience has shown the neces- 1. The act entitled " An act to establish an sity to limit rather than extend it. But, if in executive Department, to be denominated the addition to his veto power he may still disre- Department of War," approved August 7, gard a law passed over it, or discriminate 1789; and against such a law, his veto becomes absolute. 2. The act of March 2, 1867, entitled "An No such.doctrine is consistent with a repub- act regulating the tenure of certain civil offices." lican form of government. The law, when The second section of the act of 178.9 propassed in the mode prescribed, must be binding videson all or on none. He who violates it violates "That there shall be in the said Department an it at his peril. If, therefore, the removal of I inferior officer, to be appointed by the said principal Mr. Stanton is within the penal clauses of that i officer. to be employed therein as he shall deem ct the President is guilty not only of an proper, and to be called the chief clerk in the De-act the President'is' guilty not only of at, partment of War, and who, whenever the said prinimpeachable but an indictable offense. He i cipal officer shall be removed from office by. the 927 President of the United States, or in any other case recess. The practice has corresponded with of vacancy, shall, during such vacancy, have the this construction. In two cases the power to charge and custody of all records, books, and papers appertaining to the said Department." remove heads of Departments has been exercised; the one by John Adams, in th.e This was copied from the act organizing the removal of Timothy Pickering; the other Department of Foreign Affairs, which was the by Andrew Jackson, in the removal of Mr. subject of the debate so often quoted in this Duane. The first case occurred during the cause. Whaever differences of opinion existed session and the latter during the recess. In as to the constitutional power of the removal compliance with this construction, the comby the President, no one questioned the pur- missions of heads of Departments declare their pose of this act to declare and affirm the right tenure to be during the pleasure of the Presiof the President to remove the Secretary of dent, and the commisson under which Mr. War. Some who denied the constitutional Stanton now holds the Department of War power were willing to confer it by law as to limits his tenure " during the pleasure of the heads of Departments, and the first draft of President of the United States for the time the bill expressly conferred the power of re- being." This form of commission, used withmoval on the President. This was changed so out question for seventy years through memoras to declare the power to exist and to provide able political contests, is entirely inconsistez for the vacancy caused by its exercise. This with a construction of the act of 1789 limiting act stands unaltered and unrepealed, unless it the power of removal to the recess of the is modified by the tenure-of-office act. Under Senate. it the power of removal by the President of a The distinction made by the Managers beCabinet officer has been conceded by each tween removals during the session and during branch of the Government during every Admin- the recess is derived from the distinction made istration-though disputes have existed as to by the Constitution between appointments made the origin of the power —some deriving it from during the session and during the recess; but the Constitution and others from the plain in- this claim is inconsistent with the foundation tent of the act of 1789. The power to remove upon which the tenure-of-office act rests. If Cabinet officers since the passage of that act removals are governed by the constitutional was repeatedly recognized by all who took rule as to appointments, then the President part in the debate in the Senate on the tenure- may remove at pleasure during the recess, for oft-office bill-the only question being asto the he may then appoint temporarily without the propriety of continuing the power. I do not consent of the Senate, and Congress may not understand the managers to question the cor- limit this constitutional power. But Congress rectness of this construction, but they claim- has wisely, as I have shown, rejected this 1. That the power of removal was limited to claim. It has repeatedly dissevered removals during the recess of the Senate and did not from appointments, and has treated the power exist during the session of the Senate; and of removal not as a constitutional power, but 2. That the power to remove Mr. Stanton as one to be regulated by law in the creation, was taken from the President by the tenure-of- tenure, pay, and regulation of offices and offioffice act. cers; and therefore, in ascertaining whether Does the act of 1789 make a distinction the law makes a distinction between a removal between removals during the session and dur- during the session and during the recess, we ing the recess of the Senate? Upon this point, must ascertain the intention of the law as at the opening of this trial, I had impressions gathered from its language, history, and conounded upon a distinction that I think ought struction, and from these we can derive no to have been made in the law; but a full trace of such a distinction. Nor can this disexamination of the several acts cited, and the tinction be derived from the rarity of removals debates upon them, show that in fact no such of Cabinet officers during the session of the distinction was made. If such had been the Senate, for the argument applies as well to intentiorn of the framers of the act of 1789, removals during the recess. Removals of instead of stating the unlimited power of re- heads of Departments are rare indeed; for moval, they would have provided for a removal when the tenure-of-office bill was pending it or vacancy "during the recess of the Senate." was not considered possible that a case would The debates show that no such distinction was occur where a head of a Department would claimed, and that the majority held that the decline to resign when requested to by -his unlimited power of removal was with the-Presi- chief. dent by virtue of the Constitution. The multitude of Cabinet ministers who have The subsequent acts of 1792 and 1795, in held office recognized this duty with but two providing for vacancies, made no distinction exceptions. I do not question the patriotism between vacancies during the session and dur- of Mr. Stanton in declining to resign during ing the recess, and in the numerous acts cited the recess; but cases of that kind must be of by counsel, providing for the creation and rare occurrence and dangerous example. It tenure of offices, passed prior to March 2, was held by us all that the public safety and the 1867, no distinction is made between a re- public service demands unity, efficiency, and moval during the session and during the harmony between the heads of Departments 928 and the President. To legislate against this, of the President," and by virtue of his office and yet hold the President responsible for their is invested by law with less power than an acacts, would be unexampled in our history, and counting officer. His duty prescribed by the therefore the law always gave the President the Constitution is to give his opinion in writing power to remove at his pleasure these and most when called for by the President. His preother executive officers until we were cor- scribed legal duty is to make requisitions upon pelled by the evil example of a bad President the Secretary of the Treasury for the service to limit this power. I therefore conclude of the Army. All his other duties rest upon that, prior to the 2d of March, 1867, the law the discretion, order, and command of the invested the President with the power at his President. As the President is responsible pleasure to remove Mr. Stanton both during for the acts of heads of Departments, as they the session and during the recess, and the ques- exeircise a part of his executive authority, as tion remains whether bythe tenure-of-office act their duties are not defined by law, as is the that power was taken away from him. case with most civil officers, it was deemed To determine the proper construction of this unwise to take from the presidential office the act we must examine its history and the par- power to remove such heads of Departments ticular evil it was intended to remedy. It was as did not possess his confidence. After deintroduced on the 3d day of December, 1866, bate the motion to strike out the exception was being the first day of the second session of the lost without a division. At a subsequent stage Thirty-Ninth Congress. The President having of the bill the motion was renewed and was formally abandoned the political party that lost by the decisive vote of 13 yeas and 27 nays, elected him, undertook, by general removals, and the bill was then passed. to coerce the officers of the Government to sup- In the House of Representatives the motion port his policy. The revenue service especially to strike out the exception was made and lost, was deranged. -and widespread demoralization but was subsequently reconsidered, and the threatened that branch of the public service. motion was carried, and with this amendment At that time, nearly all civil officers of the the bill passed the House. Government held at the pleasure of the Pres- The question again came before the Senate ident; some by the express provision of law; upon a motion to concur with the House in others under this general practice of the Gov- striking out the exception of the heads of Deernment. partments, and was fully debated, and again The President, for political reasons, during the Senate refused to concur with this amend*the then last recess, created vacancies by re- ment by a vote of 17 yeas to 28 nays. In this moval, and filled them by temporary appoint- condition the disagreement between the two ments. It was to check this evil that Con- Houses came before a committee of confergress undertook to regulate the tenure of civil ence, where it was the bounden duty of the offices, and to protect officers in the discharge conferees to maintain as far as possible the of their duties. The bill originated in the view taken by their respective Houses. The Senate, and, as introduced, excepted from its usual course in such a case, where the disoperation the heads of Departments. The bill agreement does not extend to the whole of the was referred to a committee, and, as reported, bill, or to the principle upon which it is foundthe first section was as follows: ed, is to report an agreement upon so much as "That every person (excepting the Secretaries of has been concurred in by both Houses, thus State, of the Treasury, of War, of the Navy, of the limiting the change in existing law to those Interior, the Postmaster General, and the Attorney General) holding any civil office to which he has beence of both appointed by and with the advice and consent of the Houses; therefore, the Senate conferees might Senate, and every person who shall hereafter be ap- properly have declined to extend the change pointed to any such office, and shall become duly of the law beyond the vote of the Senate, and qualified to act therein, is, and shall be, entitled to hold such office until a successor shall have been in certainly would not have been justified in like manner appointed and duly qualified, except as agreeing to a proposition thrice defeated by herein otherwise provided." the vote of the Senate. The difference between On the 10th of January, 1867, a motion was the two Houses was confined to the sole quesmade to strike out the exception of the heads tion whether that bill should regulate the tenof Departments, and was discussed at length. ure of office of the heads of Departments. The The exception did not rest upon any want of Senate left them subject to removal at the power in Congress to extend the operation of pleasure of the President. The House secured the bill to the heads of Departments, but upon their tenure subject to removal only at the the necessity of giving the President control pleasure of the Senate. After a long conferover these officers in order to secure unity and ence, the act as it now stands was reported. efficiency in his executive authority. Nearly The first section is as follows: all the duties of heads of Departments are bs " Thateveryperson holding any civil office to which law required to be performed "as the Presi- he has been appointed by and with the advice and dent of the United States shall from time to consent of the Senate, and every person who shall time clirect." They are rarely prescribed by hereafter be appointed to such office, and shall beycome duly qualified to act therein, is and shall be law. This is especially so as to the Secretary entitled to hold such office until a successor shall have of War, who issues all orders " by command been in like manner appointed and duly qualified, 929 texcept as herein otherwise provided: Provided, That I can only say, as one of the Senate conferees the Secretaries of State, of the Treasury, of War, of under the solemn obligations that now rest the Navy, and of the Interior, the Postmaster General, andthe Attorney General, shall hold their offices upon us in construing this act, that I did not respectively for and during the term of the President understand it to include members of the Cabby whom they may have been appointed and for one inet not appointed by the President, and that month thereafter, subject to removal by and with inet not appointed by the President, and that the advice and consent of the Senate." it was with extreme reluctance and only to What is a fair and legal construction of this secure the passage of the bill that, in the face section? First. That the tenure of civil offices of the votes of the Senate, I agreed to the regenerally should be left as in the original bill, port limiting at all thepower of the President but a special provision should be made for the to remove heads of Departments. What I tenure of heads of Departments. Second. stated to the Senate is shown by your records. That the President appointing a head of a De- One of your conferees [Mr. BUCKALEW] refused partment should not, during his term, without to agree to the report. Another [Mr. WIL1the consent of the Senate, remove him. Third. LIAMS] thought that a case of a Cabinet officc: That after thirty days from the expiration of refusing to resign when requested by the Presthe term of the President who appointed a ident was not likely to occur. I stated ezhead of a Department, the office of the latter plicitly that the act as reported did not prote t would expire by limitation. To this extent, from removal the members of the Cabinet ap' and to this extent alone, did the Senate con- pointed by Mr. Lincoln, that President Johnferees agree to change theexisting law. The son might remove them at his pleasure; and I general clause prohibiting removals of civil named the Secretary of War as one that might officers is confined to those who have been ap- be removed. I yielded to the opinion of the pointed by and with the advice and consent Senate that no limitation should be made upon of the Senate. The special clause prohibiting the power of the President to remove heads removals of Cabinet officers is that those who of Departments solely to secure the passage have been appointed by a President during of the bill. I could not conceive a case where his term shall not be removed without the con- the Senate would require the President to persent of the Senate. form his great executive office upon the advice The distinction is kept up between heads of and through heads of Departments personally Departments and other civil officers, and the obnoxious to him, and whom he had not aponly limitation upon the power of the Presi- pointed, and, therefore, no such case was prodent already conferred by law is, that having vided for. You did not expressly assent to this appointed such an officer he shall not remove construction, but you did not dissent. If either him during his term, without the advice and of you had dissented, I leave to each Senator to consent of the Senate. In all other respects say whether, in the face of his previous vote, the law of 1789 remains unaltered. he would have approved the report. This conWas, then, Mr. Stanton appointed by the struction of the law, made when this proceedPresident during his term of office? If not, ing could not have been contemplated, when he holds his office under his original commis- the President and each member of his Cabinet sion and tenure, and not under this act. If were supposed to believe the act unconstituhe is included in this act its effect is to declare tional, made here in the Senate as an explanhis office vacant April 4, 1865, for that was ation for my yielding so much of your opinions, thirty days after the expiration of the term of is binding upon no one but myself. But can I the President who appointed him. No such who made it and declared it to you, and stili absurd purpose was intended. The plain pur- believe it to be the true and legal interpretapose was to leave him to stand upon his then tion of those words, can I pronounce the Prestenure and commission and to allow each Presi- ident guilty of crime, and by that vote aid to dent for each term to appoint his heads of De- remove him from his high office for doing what partments, with the consent of the Senate, and I declared and still believe he had a legal right to secure them in.their tenure during that term to do? God forbidI and thirty days thereafter, unless the Senate A Roman emperor attained immortal infamy sooner consented to their removal. If the pur- by posting his laws above the reach of the pose was to protect Mr. Stanton against re- people and then punishing their violation as a maval why select the language that excludes crime. An American Senator would excel him? Hewas not appointed by this President this refinement of tyranny, if, when passing a nor during this presidential term. How easy, law, he declared an act to be innocent, and if such was the purpose, to say that "heads then as a judge punished the same act as a of Departments holding office or hereafter ap- crime. For this reason I could not vote for pointed should hold their offices," &c. To the resolution of the 21st of February, and hold that the words inserted were intended to cannot say "guilty" to these articles. warn the President not to remove Mr. Stanton What the President did do in the removal upon peril of being convicted of a high misde- of Mr. Stanton he did under a power which meanor, is to punish the President as a crimi- you repeatedly refused to take from the office nal for the violation of a Delphic oracle. It of the President-a power that has been held impugns the capacity of the conferees to ex- by that officer since the formation of the Govpress a plain idea in plain words. ernment, and is now limited only by the words C. I.-59. 930 of an act the literal construction of which does even for a time might be delegated to the Presnot include Mr. Stanton. This construction ident alone duringthe session of the Senate. was put upon the act by the Cabinet when it Its existence unrepealed would relieve the was pending for the approval of the President. President from all criminal fault in acting Insny judgment it is not shaken by the ingen- upon it; but it is in derogation of'the plain ious arguments of the Managers. constitutional right of the Senate to particiThe original exception was in the body of pate in all important appointments, and if the section; it was inserted by the conferees in abused would utterly destroy their power. This a modified form, as 0 proviso at the close of act applied only to the three Departments then the section. The first Clause relates to all civil existing, and was only intended to apply to 6fficers, except heads of Departments. The vacancies existing, and not to vacancies to be second clause relates to heads of Departments made. Its sole purpose was to provide for a and no other officers. The first clause ex- temporary vacancy until the constitutional pressly excepts the officers named in the pro- mode of appointment could be exercised, and viso, and also those described in the fourth could not infringe upon or impair the right of section. To consider both classes of officers the Senate to participate in appointments. In arwithin both clauses of the section is, it seems the Statutes-at-Large it is designated as "oabto me, an unnatural and forced construction solete;" and is, in fact, superseded by the act of language anI certainly, when construed on approved February 20, 1863, (vol. 12, p. 656.) a crimQna! trial,is too doubtful upon which to This act, in its title, hows its plain object and base criminal guilt.' purpose. It is entitled "An act temporarily It follows, thatas Mr. Stanton is not protected to supply vacancies in the Executive Departby the tenure- of-ci vil-office act, his removal ments in certain caes." It providesrests upon the act of 1789, and he, according rests pon th" act of 1789, and he, ac ing That in case of the death, resignation, absence to6the terms of that act and of the commission from the seat of Government, or sickness of the head' held by him, and in compliance withL the nu- of any executive Department of the Government. or erou precedents cite in this cause, was of any officer of either of the said Departments whose appointment is not in the headthereof, whereby they lawfully removed by the Presiden cannot perform the duties of their respective offices, removal not beinig contrary to the provisions it shall be lawful for the President of the United of the act of March' 2, 1867, the'first, fourtStates, in case he shall think'it necessary, to authorf the~ actof Marich 2~ 18, heirst, fourth, ize the head of'sany other eXecutiVe Department, or fifth, and sixth articles, based upon his removal, other officer in either of said Departments whose must fail. appointment is vested in the President, at his discreThe onlv question remaining in the first tiao, to perform the duties of the said respective offices until a successor be appointed, or until such eight articles is whether the appointment of absence or inability by sickness shall cease: ProGeneral Thomas as Secretary of War ad in- vided, That no one vacancy shall be supplied in mantcrim, as charged in the second, third, seventh, ner aforesaid for a longer term than six months. "SEC. 2. And be it farther enacted, That all acts or and eighth articles is in violation of the Con- parts of acts inconsistent with the Provisions of this stitution and the laws, and comes within the act are hereby repealed." penal clauses of the tenure-of-office act, and This act, together with the clause of the Conwas done with the intent alleged, if so, the stitution providing for vacancies during the President is guilty upon these articles. This recess, provides for all cases of vacancy exdepends upon the construction of the clauses cept the one of removal during the session of of the Constitution already quoted and of the the Senate, and that is left to be exercised- as several acts approved February 13, 1795, Feb- a part of the constitutional power of appointruary 20, 1863, and the tenure-of-office act. ment by and with the advice and consent of tinder the Constitution no appointment can the Senate. This act is complete in itself, and be made by the President during the session by its second section repeals the act of 1795, of the Senate, except by and with the advice and all other acts providing for temporary apand consent of the Senate, unless of such infe- pointments. It is in harmony with the ConriQr officers as Congress may by law invest in stitution, for it avoids the doubtful power conthe President alone. ferred by the act of 1795, of appointing a new By the act of February 13, 1795, it is pro- officer without the consent of the Senate, but vided — delegates to another officer, already confirmed "That in case of vacancy in the office of Secretary by the Senate, the power temporarily to perof State, Secretary of the Treasury, or of the Secretary of the Department of War, or of any officer of form the duties of the vacant place. either of the said Departments whose appointment Under the authority of this act in the case is not in the head thereof, whereby they cannot per- of the vacancies provided for the President form the duties of their said respective offices, itshall be lawful for the President of the United States, in might have authorized the head of any other case he shall think it necessary, to authorize any exesutive Department to perform temporarily person or persons, at his discretion, to perform the the duties of Secretary of War, and the counduties of the said respectiveoffices until a successor try would have had the responsibility of a high be appointed or such vacancy be filled: Provided. That no one vacancy shall be supplied in manner officer already approved by the Senate. In aforesaid for alonger term than six months." that event no new officer would have been apA grave question might arise whether this pointed, no new salary conferred, no new agent act is constitutional; whether the head of a of unauthorized power substituted in the place Department is an officer whose appointment of an officer of approved merit, no mere instru ment toex-ecute executive will would have been of the:Senate. He might have secured a newthrust, in the face of the Senate- during their Secretary: of War by sending a proper nomina,session, to hold the office in spite of the con- tion to the Senate. This he neglected and& stitutional power of the Senate and against refused to do. He cannot-allegethat the Sentheir advice and: consent. Under. this act the ate refused to relieve him from an obnoxious: President had no more power to appoint Gen- minister. He could not say-that the Senateeral Thomas Secretary of WVar adinterim than refused to confirm a proper! appointee, for' he. he had to appoint any of the leaders of the late would make no appointment to them. Thet rebellion. General Thomas is. an officer of-the Senate had declared that the reasons assignedArmy, subject to court-martial, and not an- offi- for suspending Mr. Stanton did not make- the; cer of the Department, or in any sense a civil case required by the tenure-of-office act, but-It or Department officer. affirm as my conviction that the Senate wouldt Did the act of March- 2, 1867, confer- this- have confirmed any one of a great number ofauthority? On the contrary, it plainly pro- patriotic citizens if nominated to the Senate. hibits all temporary appointments except as I cannot resist the conclusion, from the evispecially provided for. The third section re- dence before us, that he was resolved to obtain; peats the constitutional authority of the Presi- a vacancy in the Department of War in such ae dent to fill all vacancies happening during the way that he might fill the vacancy by an aprecess of the Senate by death or resignation;- pointment without the consent of the Senate and that if no appointment is made during the and in violation of the Constitution and thefollowing session to fill such vacancy, the office law. This was the purpose of the offer toshall remain in abeyance until an appointment General Sherman. This was the purpose of is- duly made- and confirmed; and provision is the appointment of General Thomas. If hlemade for the discharge of the duties of the had succeeded as he hoped he could have, office in the mean time. The second section changed his temporary appointment atpleasure, provides.for the suspension of anofficer during and thus have defied the authority of the Senthe recess, and- for a temporary appointment ate and the mandatory provisions of the Conduring the recess. This power was exercised stitution and the law. I cannot in any other and fully exhausted by the suspension of Mr. way account for his refusal to send a nominaStanton until restored by the Senate, in corm- tion to the Senate until after the appointment; pliance with the law, No authority whatever of General Thomas. The removal of Mr. is conferred by this act for any temporary ap- Stanton by a new appointment, confirmed by pointment during the session of the Senate, the Senate, would have complied with thebut, on the contrary, such an appointment is Constitution. The absolute removal of Mr. plainly inconsistent with the act, and could not. Stanton would have created a temporarybe inferred or implied from it. The sixth see- vacancy, but the Senate was in session to sharetion further provides:'in the appointment of another. An ad interim"That every removal, appointment, or employment appointment without authority of law, during-made, had, or exercised contrary to the provisions the session of the Senate, would place theof this act, and the making, signing, sealing, counter Des signing, or issuing of any commission or letter of partment of War at his control in defiance authority for or in respct to any such appointment of the Senate and the law, and would have set or employment, shall be deemed, and are hereby. an evil example, dangerous to the public: declared to be, high misdemeanors, and, upon trial and conviction thereof, every person guilty thereof safety-one which, if allowed to pass unchalshall be punished by a fine not exceeding $10,000, or lenged, would place the President above and by imprisonment not exceeding five years, or both beyond the law. said punishments, in the discretion of the court." The claim now made that it was the sole de The language is plain, explicit, and was: in- sire of the President to test the constitutionality serted not only to prohibit all temporary of the tenure-of-office act, is not supported by appointments except during the recess, and in reason or by proof. He might, in Augustlast, the mode provided for in the second section, or at any time since, without an ad interim but the unusual course was taken of affixing appointment, have tested this law by a writ of-7 a penalty to a law defining the official duty of quo warranto. He might have done so by an the President. The original bill did not con- order of removal, and a refusal of Mr. Stantain penal clauses; but it was objected in the ton's requisitions. He might have done so by Senate that the President had already disre- assigning a head of a Department to the place garded mandatory provisions of the law, and made vacant by the cdder of removal. Such would this; and, therefore, after debate, these was not his purpose or' expectation. He expenal sections were added to secure obedience pected bythe appointment of General Sherman to-the law and to give t6 it the highest sanction. at once to get possession of the War DepartWas not this act willfully violated by the ment, so when General Thomas was appointed President during the session of the Senate? there was no suggestion of a suit at law until It appears from the letter of the President to the unexpected resistance of Mr. Stanton, supGeneral Grant, from his conversation with ported by the action of the Senate, indicated General Sherman, and from his answer, that that as the only way left. he-had formed a fixed resolve to get rid of Mr. Nor is this a minor and unimportant violaStanton and fill the vacancy without the advice tion of law. If upon claim that the tenure-of 932 office act was unconstitutional, he might re- must pass upon this article separately, and move an officer and place his instrument or upon it my judgment is that it does not allege agent in possession of it, he might in the same a crime or misdemeanor within the meaning way and by the same means take possession of the Constitution. of all the Executive Departments, of all the The great offense of the President consists bureaus, of the offices of the Auditors, Comp- of his opposition, and thus far successfuloppotrollers, Treasurer, collectors, and assessors, sition, to the constitutional amendment proand thus contrdl, by his will, the purse and the posed by the Thirty-Ninth Congress, which, sword. He knew that his power was contested, approved by nearly all the loyal States, would, and he defied it. It is clearly shown that his if adopted, have restored the rebel States, and purpose was deliberately formed and deliber- thus have strengthened and restored the Union ately executed, and the means for its execution convulsed by civil war. Using the scaffoldings were carefully selected. I therefore conclude of civil governments, formed by him in those that the appointment of General Thomas was States without authority of law, he has dea willful violation of the law in derogation of feated this amendment; has prolonged civil the rights of the Senate, and that the charges strife; postponed reconstruction and reunion; contained in the second, third, seventh, and and aroused again the spirit of rebellion overeighth articles are true. come and subdued by war. He alone, of all The criminal intent alleged in the ninth the citizens of the United States, by the wise article is not sustained by the proof. All the provisions of the Constitution, is not to have a President did do in connection with General voice in adopting amendments to the ConstiEmory is reconcilable with his innocence, and tution; and yet he, by the exercise of a baletherefore I cannot say he is guilty as charged ful influence and unauthorized power, has dein this article. feated an amendment demanded by the result The tenth article alleges intemperate speeches of the war. He has obstructed as far as he improper and unbecoming a Chief Magistrate, could all the efforts of Congress to restore law and the seditious arraignment of the legislative and civil government to the rebel States. He branch of the Government. Itdoes not allege has abandoned the party which trusted him a specific violation of law, but only personal with power, and the principles so often avowed and political offenses for which he has justly by him which induced their trust. forfeited the confidence of the people. Instead of cooperating with Congress, by Am I, as a Senator, at liberty to decide this the execution of laws passed by it, he has cause against the President even if guilty of thwarted and delayed their execution, and such offenses. That a President in his personal sought to bring the laws and the legislative conduct may so demean himself by vice, gross power into contempt. Armed by the Constiimmorality, habitual intoxication, gross neg- tution and the laws, with vast powers, he has lect of official duties, or the tyrannous exercise neglected to protect loyal people in the rebel of power, as to justify his removal from office States, so that assassination is organized all is clear enough; but the Senate is bound to over those States, as.a political power to murtake care that the offense is gross and palpable, der, banish, and maltreat loyal people, and to justifying in its enormity the application of the destroy their property. All these he might strong words "high crime or misdemeanor." have ascribed to alleged want of power, or to And above all, we must guard against making difference of opinion in questions of policy, crimes out of mere political differences, or the and for these reasons no such charges were abuse of the freedom of speech, or of the ex- exhibited against him, though they affected the hibition of personal weakness, wrath, or im- peace and safety of the nation. When he adds becility. We.do not confer the office of Presi- to those political offenses the willful violation dent, and may not take it away except for crime of a law by'the appointment of a high officer or misdemeanor. The people alone may con- during the session of the Senate, and without vict and condemn for such offenses. The Sen- its consent, and with the palpable purpose to ate may not trespass upon the jurisdiction of gain possession of the Department of War, the people without itself being guilty of usurpa- fbr an indefinite time, a case is made not only tion and tyranny. Better far to submit to a within the express language of the law a high temporary evil than to shake the foundations misdemeanor, but one which includes all the of the civil superstructure established by the elements of a crime, to wit: a violation of exConstitution by enlarging our jurisdiction so as press law, willfully and deliberately done with to punish by removal fom office the utmost the intent to subvert the constitutional power latitude of discussion, crimination and recrim- of the Senate, and having the evil effect of ination, which, so long as it is unaccompanied placing in the hands of the President unlimited by unlawful acts, is but the foolish vaporing of power over all the officers of the Governliberty. ment. The House of Representatives of the Thirty- This I understand to be the substance of the Ninth Congress refused to rest an accusation eleventh article. It contains many allegations upon these speeches, and so of the present which I regard in the nature of the induceHouse, until other acts ofa different character ment, but it includes within it the charge of induced these articles of impeachment. We the willful violation of law more specifically set 933 out in the second, third, seventh, and eighth act of Congress, but affords no reason to infer articles, and I shall therefore vote for it. that it was given as charged, " with intent The power of impeachment of all the officers thereby to induce said Emory, as commander'of the Government, vested in the Senate of of the department of Washington, to violate the United States, is the highest trust reposed the provisions of said act," &c. in any branch of our Government. Its exer- The specifications of the tenth article, as to cise is indispensable at times to the safety of the delivery of the speeches, are substantially the nation, while its abuse, especially under proved, but the legal conclusion, that thereby political excitement, would subordinate the "said Andrew Johnson, President of the United executive and the judiciary to the legislative States,'did commit and was then and &here department. The guards against such a result guilty ofahigh misdemeanor in office," dons not are in the love of justice inherent in the people result from the establishment of the truth of the who would not tolerate an abuse of power, and specifications. The speeches proved were ceralso in the solemn appeal each of us have made tainly not indictable, either a$t common law or to Almighty God to do impartial justice in this by statute, nor were they in any sense acts of cause. We dare not for any human consider- official misconduct or omissions of official duty. ation disregard this oath, but guided by con- They were vain, foolish, vulgar, and unbecomscience and reason will, no doubt, each for ing, but the Constitution does not provide that himself, render his verdict upon these charges a Presidentmay beimpeached for the exhibition according to the law and the testimony, and of these qualities. without bias from personal, political, or pop- Contenting myself with these observations ulat' influence. This done we may disregard upon the fourth,. fifth, sixth, seventh, ninth, personal consequences and leave our judgment and tenth' articles of impeachment, I find the and conduct in this great historical trial to respondent not guilty upon each and all of the test of time. them. The first, second, third, eighth, and eleventh OPINION articles remain to be considered, and upon OF these I am constrained to arrive at a different O.O rI S-result. I accept, preliminarily, the construcHON. 0 1~ ORRI~S S. E R R Y. tion given by the Chief Justice to the eleventh article: Eleven articles of impeachment are preferred " The gravamen of this article seems to be that t e by the louse of Representatives against the President attempted to defeat the execution of the tenure-of-office act." * * * *'ThesinPresident of the United States. gle substantive matter charged is the attempt to preThe first, second, third, eighth, and eleventh vent the execution of the tenure-of-office act." depend, wholly or in part, uponthe validity and * * This single matter, connected-with the depend, wholly or in part, pnthevalidityand other matters, previously and subsequently alleged, is construction of the act of March 2, 1867, "reg- clfarged as the high misdemeanor of which the Presiulating the tenure of certain civil offices," and dent is alleged to have been guilty. The general will be considered together in a subsequent question, guilty or not guilty ofahigh misdemeanor as char'ed, seems fully to cover the whole charge."portion of this opinion. Remarks of the Chief Justice, Impeachment Trial, p. The fourth, fifth, sixth, and seventh charge 1236. the commission of the offense technically If an actual violation of the tenure-of-office -known as " conspiracy," either as defined by act is a high misdemeanor, as declared, by the statute or by common law. It is sufficient to act itself, then, in my judgment, the attempt say, in regard to these articles, that the proof to "defeat," to "prevent" the execution of does not sustain the charge. No testimony has that act by the President of the United States, been adduced to show a "conspiracy" by the charged with the whole responsibility of execuPresident with any person other than Lorenzo tive duty, is a high misdemeanor in office, for Thomas, and the evidence exhibited is sub- whose commission the Constitution subjects stantially confined to the letter of authority of him to impeachment and remroval from office. February 21, 1868, signed by the former, and With this preliminary statement I observe the acceptance of the place of Secretary of War that my opinion upon the second, third, eighth, ad interim by the latter. The conduct of Gen- and eleventh articles arises out of and must eral Thomas seems to have been influenced by stand or fall with the opinion which I have a mistaken idea of the obligation of military formed upon the first. The greater portion of obedience, (to which, indeed, the phraseology my remaining observations will therefore be of the letter of authority affords some counte- directed to that article. nance,) while the' President treats him as a The substantive charge in the first article is subordinate rather than as a confederate. the removal of Mr. Stanton, contrary to the So, also, the proof fails to sustain the ninth provisions of the tenure-of-office act. It is article, which is based upon the conversation true that the removal is alleged only indirectly, between the President and General Emory on but it is. familiar law that the technicality of the 22d of February, 1868. The only evidence an indictment is unnecessary in articles of imbefore us is the testimony of General Emory peachment. The first article states in detail' himself, which discloses the declaration by the what the President did and the intent with President of his opinion of the validity of an which it was done, namely, to violate the act; -and the faets stated constitute in effect an actual -exeeutive function -in the United States.? Simremoval,:with which statement the evidence ply by the'Constitution. Does that instrument Also accords.. expressly confer -a power? We must submit. On the 21st of February, 1868,-the President Is it.silent, and is it necessary to place the sends written notice to Mr. Stanton stating to power somewhere for the well-ordering of the him "I you are hereby removed." On the same state? We.must search the -Constitution:to;day:the'President informs Lorenzo Thomas *find the authority which is clothed with the that;Mr.; Stanton has "been this day removed," -function of creating or designating the proper and appoints the.Adjutant-General Secretary depositary. ad& Eterim. The Secretary ad interim is in- The Constitution.is'silent upon the power of* -vite'[ to take and does take his place as Secre- removal.; but this is apower that may be needtary of War in the Cabinet -councils from -that full for the well-ordering. of the State; and tarnday to the present; is:recognized there as Sec- ing to the last clause of the -eighth:section of iretary by the President and Cabinet, and Mr. the first.article of the -Constitution we find the Sttanon is carefully excluded; and finally, two authority given to Congress "to make all laws -nominations of a permanent Secretary:have which shall be necessary and proper for caTrybeen sent to the Senate by the President "in ing into execution all powers vested by this place of Edwin M. Stanton, removed." By Constitution in the Government of -the -United these acts the President must stand or-fall; States, orinany Department oroyicer thereof." according to them he is to be tried, and he -It would certainly seem too plain for argu-accepts the issue. ment -that the "act regulating the tenure of Was, then, the-removal of. Mr. Stanton a-high certain civil offices":is within the very letter misdemeanor acharged? The sixthisection of of this:constitutional authority. The judgthe tenure-of-office-act is as follows: ment of'the Senate, three times definitely eex"Every removal, appointment, or employment pressed, has been in conformity with these,made, had, or exercised contrary to the Provisions views, and to that judgment I adhere. of this act, and the making, signing, sealin g. coun-'tersigning, or issuing of any commission or letter of The inquiry whether Mr. Stanton is within authority for or in respect to any such appointment the provisions of the law has been complicated or employment shall be.deemed, and are hereby de- by the ingenuity of counsel, but, upon a fair clared to be, high misdemeanors, and upon trial and -conviction thereof every person guilty thereof shall consideration of the act, presents little diffibe punished by a fine not exceeding $10,000, or, y culty. The first section is as follows: -iprisonment not exceeding five years, or both said whch he Banishments, in -the discretion of the court." - BvEry person -holding any civil office'to which he,nishments. in the discretion of the court.", has been appointed by and with the advice and-conIf the statute is valid, and Mr. Stanton is sent of the Senate and every person who shallherewithin its provisions, the character of the of- after be appointed to any such office, and shall become duly qualified to act therein, is, and shall be,.fense would seem to be unmistakable. entitled to hold' such office until a successor shall The President denies its validity, asserting — have'been in like manner appointed and duly qualiThat the Constitution of the United States con- fled, except as herein otherwise provided: Provided er"That the Constitution of the United States con- That the Secretaries of State,'of the Treasury, of fers on him as part of the executive power, and as War, of the Navy, and of the Interior, the Postmaster one of the nexecessar means and instruments of per- General, and the Attorney General, shall hold their forming the executive duty expressly imposed upon offices respectively for and during the term of the him by the Constitution, of taking care that thelaws President by whom they f ay have been appointed, executed, the power at any and allimes bPresident by whom they may have been appointed, be faithfully executed, the power at any and all times t and for one month thereafter, subject to removal by of removing from office all executive offcersfos- cause to and with the advice and consent of the Senate..be judged of bzyrte President alone." —Answer to Arti-'cle 4. It is claimed that the debates -in Congress, Of course.this claim would extend not only and especially in the Senate, upon the passage to the act of March 2, 1867, but would sweep of the act, demand a construction which -shall from the statute-book every act fixing any exclude Mr. Stanton from its.provisions. I Atenure of office except the pleasure of the Pres- remark here that these debates should not be.ident. The assertion of these extraordinary confounded with what is termed " contempo-.prerogatives rests upon the following- words of maneous construction." I shall have occasion Athe Constitution,: to consider the latter in another place. The "The executive -power shall be vested'in a Presi- debates may properly be examined in order to dent of the United States of America." ascertain the intent of the makers of the law. It is not pretended that there is a word in I was not in Congress at the passage of the the Constitution besides these that confers upon act, and must consider it in its historic and:anybody the power of removal from office, ex- legal aspect. The counsel who opened the cept in cases of impeachment. It behooves us case for the President very truly remarked, then, to inquire what is this " executive power" (page 375, Impeachment Trial:) which is "vested" in -the President of the " This law, as Senators verywell know, had a purlUnited States of America? pose; there was a practical object -in the view of U e o A Congress; and however clear it might seem that the Executive powers differ in different nations. language of the law, when applied to Mr. Stanton's!A Russian czar has executive power quite case, would exclude that case; however clear that unlike that of a British sovereign, and we have might seem on the mere words of the law, if the purpose of the law could be discerned, and that purhitherto supposed that of the latter to:be equally pose plainly required a different interpretation, that 4issimilar to the,.authority of a republican different interpretation should be given." President. How. then, shall we measure the What, -now, was the practcal object of'this 935 law so far as it refers to Cabinet officers? I but an officer; a person holding an office.:ne think that no candid reader of the debates in office has no tenure; the possessor o offiec the House of Representatives can doubt that has that "manner of possession," that' act that body intended to protect all the members or right of holding," that " manner of hold. of Mr. Johnson's Cabinet against removal by ing," which is a tenure. The absurdity bethe President alone. Rightly or wrongly, they comes apparent if we read the proviso accordfelt that it would be safer for the country to ing to the construction of the ingenioius counsel have tje Departments in the hands of the ex- for the President; isting Uabinet officers until the Senate should "The offices of Secretary o State, of War, &c., shall consent to their removal. I think that it is hold their respective offices," &c. also evident that the Senate was willing to It follows, tlierefoie. -as suggested by one of leave with the President the power of remov- the Managers, that it is immaterial whetheir ing all Cabinet officers as theretofore practiced. we consider Mr. Stantoi as holdirg his office Here the two Houses disagreed, and in the durifig the trhrm of the President by whom he bill as reported by the conference committee Was appointed or not; all agree that he was there was a compromise. I think that the holding the office; if within the term of the House supposed that it had attained its object President by whorm he was appointed he is by the bill as reported by the conference eom- embraced in the proviso; if not within such; mittee, by keeping in all the Cabinet officers term, he was a "person holding civil officee," until one month after the close of the current and protected by the body of the section. presidential term, unless the Senate should If, now, I turn to contemporaneous construaesooner consent to their remiioval. I think that tion to ascertain.the meaning of the law, I find the Senate supposed that it had gained its point such a construction, given both by the execaso far as the Secretaries appointed by Mr. Lin- tive and legislative departments of the Governcoln were concerned. I am thus brought to mient. Whatever the President or his Cabinet the necessity of construing a law passed by one may have thiou ght before the final passage of House with a different intention from that the act of its effect upon lr. Stanton, a period which animated the other. I am, of course, arrived within a few months-after its passage left to determine the true intent and meaning when it became necessary for Mr. Johnson to of the law by the law itself, giving to its lan- give it a practical construction. He informs guage its ordinary legal scope and signification. us that he proceeded with great and anxious Coming thus to the consideration of the first deliberation, and the evidence before us demonsection of the act, (whiqh alone is material to 9strates that he arrived at the conclusion that this inquiry,) it will be observed that it does Mr. Stanton was within the act. not deal with the incidents of offices, but with On the 12th of August, 1867, the President the franchises of persons. It regulates tenures, suspended the Secretary of War from office, in not terms, of office. It is only the opposite conformity with the provisions of the act. By view, which has no sanction in the statutei that the same authority he appoinrted General Grant can lead to a misconception of its scope. Secretary ad interim. He notified the SecreThe word tenure comes to us from the law tary of the Treasury of his action, citing the of real estate: act by name as the authority for such notifi"The thing holden is styled a tenement, the possess- cation. He sent in his reasons to the Senate, ors tenants, and the manner of their posesSion a pursuant to the law, and, as he informs us tenure."-2 Bla. Corn., 60 hoped for the concurrence of the Senate and Webster defines the word as follows: the removal of the Secretary, in accordance i" Tenure: the act or right of holding as property. with the law. Manner of holding in general." It is too late now to do away with the effect It is a right or title pertaining to a person, of this executive construction by the assertion and as such is treated throughout the statute. that a power of suspension has been discovered The body of the section comprehends "every in the Constitution which has never been exberperson holding civil office," and is restricted cised and never thought of before since the only by a single exception, namely, the persons foundation of the Government. described in the proviso as holding their offices Upon the presentation of the President's duting the term of the President by whom they reasons for the removal of the Secretary the were appointed. The counsel for the Presi- Senate gave a legislative construction to the dent (page 1099, Impeachment Trial) quotes statute. It proceeded in exact conformity with the proviso: the terms of the law; it considered the reasons;. "Provided, That the Secretaries of State, of the it debated them; it refused to concur in them, treasury, of Wari, of the Navy and of the Interior, and sent notice thereof to the President. I am the Postmaster G(eneral, and the Attorrney General, not aware that a single Senator in that debate shalr hold their offices respectively," &c. suggested that Mr. Stanton- was suspended by And adds:'virtue of the Constitution, or that he was not'That does not mean the men, it means the offices embraced in the protection of the tenure-ofshall have that tenure." dffice act. This certainly sounds like absurditiy. The Up:on, then, a fair consideration of the de, Secretary of State or of War is ndt au office bates accompanying the pasage of the act 936 upon the proper construction of the language retary, and the answer to the first article of of the act itself, and upon the contemporaneous impeachment, disclose the irreconcilable naconstruction given to it by the executive and ture of their differences, and, as is evident legislative branches of the Government, I find from the President's letter to General Grant, Mr. Stanton to be embraced within the pro- these differences culminated soon after the pasvisions of the first section. sage of the supplementary reconstruction bill I find, therefore, the act to be valid, and that of March 23, 1867. From the time of the pasit includes Mr. Stanton in its protection against sage of that bill the possession of the Departthe presidential power of removal without the ment of War would confer vast influence either consent of the Senate. in favor of or against the whole system of reI find that the President has deliberately construction adopted by Congress, according broken this law, and, by its express terms, has, to the views of the possessor. Mr. Stanton in so doing, committed a high misdemeanor. was known to favor that system, as the PresiIt is urged, however, that the offense is not dent himself declares in the letter to General complete because the criminal intent was ab- Grant. sent. It is said that the law was broken totest And herein I find the intent of the Presiits constitutionality. To this the obvious an- dentin this removal of the Secretary an intent swer is, he who breaks a law for this purpose to defeat the will of the people already crystalmust take the risk of its being held to be con- lized into law, and substitute his own will institutional by the proper tribunals. In this stead; an intent unlawful, unconstitutional, case the Senate is the proper tribunal for the and revolutionary, and which, breaking out trial of the question, and it affirms the consti- into overt act, in the removal of Mr. Stanton, tutionality of the law. gives to that act a deeper tinge of guilt than But I do not find, in fact, that it was the attaches to any mere violation of a penal intention of the President to try the constitu- statute. tional question. The means adopted were not Complaint has been made because upon this adapted to that end. Upon the removal of question of intent the Senate refused to hear Mr. Stanton the latter could have no remedy the testimony of Cabinet officers as to the adin the courts, and the President, though time vice given by them to the President. I canand opportunity have been ample since the not conceive of any proposition more dangerpassage of the law, has never attempted to ous to the stability of our institutions than that initiate legal proceedings himself. the President may shield himself from impeachThe evidence in this case exhibits the real ment for high crimes and misdemeanors behind intent with perfect clearness. The declarations the advice of his Secretaries. Apart from the of the President at different periods during the common-law objection of irrelevancy, such evilast two years, as proved before us; his in- dence should be excluded upon the gravest contermeddling with the southern Legislatures in siderations of public policy. opposition to Congress, as shown by the Ala- Upon this review of the law and the testibama telegram; his conversation with Wood, mony I find that the President is guilty of a unfolding his purpose of distributing a pat- high misdemeanor as charged in the first artironage, whose emoluments exceed twenty- cle of impeachment. one million dollars a year, for the purpose of It is a necessary result of this opinion that creating a party hostile to. the measures of I also find him guilty of high misdemeanors as Congress —all theme demonstrate a fixed and charged in the second, third, eighth, and elevunconstitutional design to "defeat" and " pre- enth articles of impeachment. I do not think vent" the execution of the laws. Grant that it needful to elaborate the legal and logical he was honest in all this, and that he believed connection, as it will be obvious to any careful that the laws ought to have been defeated. So reader of the articles themselves, keeping in were Charles I and James II honest in their mind that the construction suggested by the ideas of the royal prerogative; but those ideas Chief Justice is applied to the eleventh article, brought one to the block and cost the other his as before stated. crown. In this country the Legislature is the organ of the people, and the laws are the peo- OPINION' ple's will. For the Executive to set his own will in opposition to the will of the people, HON. WILLIAM P. FESSENDEN. expressed through Congress, and employ the HON. WILLIAM P. FESSENDEN. powers vested in him for other purposes to that end, is repugnant to the whole spirit of the The House of Representatives have, under Constitution. the Constitution of the United States, presented Yet the evidence leaves no doubt that such to the Senate eleven distinct articles of imhas been the persistent course of the President peachment for high crimes and misdemeanors for more than two years. In this course Mr.. against the President. Each Senator has solStanton had become a formidable obstacle to emnly sworn, as required by the Constitution, the designs of Mr. Johnson. The message of to "do impartial justice accordingto the Constithe latter of December 12, 1867, communicat- tution and the laws," upon the trial. It needs ing the reasons for the suspension of the Sec- no argument to show that the President is on 937 trial for, the specific offenses charged, and for idea, however, found no favor at the time, and none other. It would be contrary to every seems never since to have been entertained. principle of justice, to the clearest dictates of It is quite obvious that as such a construction right, to try and condemn any man, however would lead to a life tenure of office, a suppoguilty he may be thought, for an offense not sition at war with the nature of our Governcharged, of which no notice has been given to ment, and must of necessity involve insuperhim, and against which he has had no oppor- able difficulties in the conduct of affairs it could tunity to defend himself. The question then is, not be entertained. as proposed to every Senator, sitting as a judge, But it was equally obvious that a power of and sworn to do impartial justice, "Is the removal must be found somewhere, and as it President guilty or not guilty of a high crime or was not expressly given except in the impeachmisdemeanor, as charged in all or either of the ment clause, it must exist among the implied articles exhibited against him?" powers of the Constitution. It was conceded The first article of the series substantially by all to be in its nature an executive power; charges the President with having attempted and while some, and among them Mr. Madito remo'Ne Edwin M. Stanton from the office of son, contended that it belonged to the PresiSecretary of War, which he rightfully held, in dent alone, because he alone was vested with violation of law and of the Constitution of the the executive power, and, from the nature of United States. Granting that an illegal and his obligations to execute the law and to defend unconstitutional attempt to remove Mr. Stan- the Con~titution, ought t have the control of ton in the manner alleged in the article, whether hs subordinates, others thought thatas he could successful or not, is a high misdemeanor in only appoint officers "by and with the advice office, the first obvious inquiry presents itself, and consent of the Senate" the same advice whether under the Constitution and the laws the and consent should be required to authorize President had or had not a right to remove that their removal. The first of these constructions officer at the time such attempt was made, the finally prevailed, as those who have read the Senate being then in session. To answer this debates of that period well know. This was inquiry it is necessary to examine the several understood and avowed at the time to be a provisions of the Constitution bearing upon the legislative construction of the Constitution, by question, and the laws of Congress applicable which the power of removal from office was thereto, together with the practice, if any, which recognized as exclusively vested in the Presi-has prevailed since the formation of the Gov- dent. Whether right or wrong, wise or unernment upon the subject of removals from wise, such was the decision, and several laws office. a were immediately enacted in terms recognizThe provisions of the Constitution applicable itg this construction of the Constitution. to the question are very few. They are as fol- The debate referred to arose upon a bill for lows: establishing what is known as the Department ARTICLE 11, SECTION 1. " The executive power shall of State. And in accordance with the decision be vested in a President of the United States of of that First Congress the right and power of America. 2.e[theresidet * the President to remove the chief officer of "ART. 11, SEc. 2. He[thePresident]" * * * * "shall nominate, and, by and with the advice and that Department expressly recognized in the consent of the Senate, shall appoint, embassadors, second section, as follows: other public ministers and consuls, judges of the Supreme Court, and all other officers of the United "SEc. 2. And be it further enacted, That there shall States, whose appointments are not herein otherwise be in the said Department an inferior officer," &c., * provided for, and which shall be established by law." * * * "who, whenever the said principal oflicer shall be removed from office by the President of the -s~ Same section: United States, or in any other case of vacancy, shall, Sam sectiduring such vacancy, have the charge," &c.-Act " The President shall have power to fill up alivacan- approved July 27.1789. cies that may happen during the recess of the Senate by granting commissions which shall expire at the The same provision is found in totidim verend of their next session. bis irk the act establishing the Department of "ART.11. SEC. 4. The President, VicePresident. and War, approved August 7, 1789; and terms all civil qfficers of the United States shall be removed from office on impeachment for and conviction of equally definite are found in the act to estabtreason, bribery, or other high crimes and misde- lish the Treasury Department, approved Sep-.meanors." tember 2, 1789. These several acts have conThe whole question of removals from office tinued in force to the present day; and although came under the consideration of the First Con- the correctness of the legislative construction gress assembled after the adoption of the Con- then established has more than once been stitution and was much discussed by the able questioned by eminent statesmen since that men of that day, among whom were several who early period, yet it has been uniformly recogtook a prominent part in framing that instru- nized in practice, so long and so uniformly as ment. It was noticed by them that the only to give it the force of constitutional authority. provision which touched in express terms A striking illustration of this practical conupon the subject of removals from office was struction arose in the administration of John found in the claude which related to impeach- Adams, who, when the Senate was in session, ment; and it was contended that, consequently, removed Mr. Pickering from the office of Secthere was no other mode of removal. This retary of State without asking the advice and tonsent of the Senate, nominating to that body where ae offices are of a local tharacter the iepiefor appointment on the same day John Mlar- sentative has a right to designate the officer;;hall, mi the place of Timothy Pickering, re- under which claim this branch of executirv awved. No question seems to have been made authorityl instead of being lodged where the at the time of this exercise of power. The Constitution pla~ed it, passes to one of the Form of all commissions issued to the heads of legislative branches of the Government. Departments, and to other officers whose tenure Such as I have described was the legislative was not limited by statute, has been " during construction of the Constitution on the subject the pleasure of the President for the time of removals from offie, and the practice under being." And the right to remove has been it, and such was the statute establishing the exercised without restraint, as well upon offi- Departme'nt of War, distinctly recognizing the ecers who were appointed for a definite term as President' s power to remove the principal offiupon those who held during the pleasure of cer of that Department at- pleasure, down to the President. the passage of the act regulating the tenure of It has been argued that even if this right of -certain civil officesj which became a law March removal by the President may be supposed to 2, 1867. Although that act did not receive myi xiist during the recess of the Senate, it is vote originally, I did vote to overrule the Presiotherwise when that body is in session. I am dent's veto, because I wa's not then, and am Eunable to perceive the grounds of this distine- not now, convinced of its unconstitutionality~ tion, or to find anytroof that it has, been re- although I did doubt its expediency, and feared vognized in practice. The Constitution tnaes that it would be productive of more evil that Uobsuch distinction, asit aysnothingof removal good. This is not the occasion, however, to in either of the clauses making distinct provis- criticise the act itself. The proper inquiry is, i.ns for appointment in recess and during the whetherthe President, inremoving, orattempt, 5ession, Probably this idea had its origin in ing to remove, Mr, Stanton from the office of the fact that in recess the President could ap- Secretary of War, violated its provisionsi or, point for a definite period without the advice ii other words, whether, if the President had and consent of the Senate, while in the other a legal right to remove Mr. Stanton before the cease no appointment could be made without passage of that act, as I think he clearly hadi that advice and consent. It has been uniformly he was deprived of that right by the terms of held that a vacancy occurring in time of a the act itself. The answer to this question session can only be filled during session by and must depend upon the legal construction of with the advice and consent of the Senate, and the first section, which reads as follows, cannot be lawfully filled during recess. But namely: I am not aware that the President's power bf "Be it enacted. &c., That every person holding any reimoval during the session has ever been seri- citil office to which he has beei appointed bsy and Beusy questioned while I have been a, member with the advice and consent of the Senate, and every of the Senate. The customr kas undoubtedly person who shall hereafter be appointed to any such offite-, and shall become duly qUatifled to act therein, been to make the nomination of a successor is, and Shall be, entitled to hold such office until a'the first step in a removal, so that the two acts successor shall have been in like manner appointed were substandtially-one and the same. But eand duly qualified, etcept as hemreri otherf state of instances have not unfreuLently occurred dur- the Treasury, of War, of the Navy and of the Inteing session where the President thought it ror, thePostmaster General. and the Attorney Ge proper to remove an officer at once, before et9hi lle ththe resient bY wfho they may hav n ing the name of his successor to the Sen- been appointed, and for one month thereafter- subh ate, And during my time of service previous ject to removal by and with the advice and consent to the passage of the act of March 2, 1867, I never heard his right to do so seriously ques In considering how far these provisions apply tioned. The passage of that act is, indeed) in! to the case of Mr. Stanton, the state of existing itself an admission that such were understood facts must be carefully borne in mind. to be the law anid the practice. Mr. Stanton was appointed by President LinI will not attempt to discuss the question coln during his first term, which expired on here whether the construction of the Constitu- the 4th of March, A. D. 1865. By the terms tion thus early adopted is sound or unsound, of his commission he was to hold " during the Probably it was thought that while the restrain- pleasure of the President for the time being." ing power of the Senate over appointments President Lincoln took the oath of office, and was a sufficient protection against the danger commenced his second term on the same 4th of executive usurpation from this source, the day of March, and expired on the 15th day of President's responsibility for the execution of the succeeding April. Mr. Johnson took the the laws required a prompt and vigorous check oath of office as President on the day of the upon his subordinates. Judgingfrom the short death of President Lincoln. Mr. Stanton was experience we have had under the act of March not appointed Secretary of War by either, but 2, 1867, the supervising power of the Senate continued to hold under his original commisover removals is poorly calculated to secure a sion, not having been remold. How, under prompt and vigorous correction of abuses in these circumstances, did the act of March 2, Office, especially upon the modern claim that 1867, affect him? A preliminary question as'to the character con, then, he heM at'the peasire of Priuider which MIr. Johnson administered the det -Johnson, by his permission, up to'the office of President is worthy of consideration, passage of the at of March 2, 1867, and migh/t and may have a material bearing. have been removed by him at any time. Did The fifth clause of section one, article eievten, that act change his tenure of office without a ofthe Constitution, providesas follows,namely: new appointment, and transform what twa "In case of the removal of the President from before a tenure at willinto a tenure fora fixed office, or of his death, resignation, or inability to period'? Granting that this could legally be discharge the powers and duties of the said offe the done byan act of Congress, which mayWel be questioned, the answer to this inquiry must What shall devolve upon the Vice President'? depend upon the'terms -of the act itself. Let The powers and duties of the office simply, or us examine it. the office itself? Some ligft is throWn upon It is obvious to -my mind'that the inftentiot this question by the remainder of the same was to provide for two classes-of officers; One, Clause, making provision for the death, &c., the heads of Departments, and the other eon'i of both the President and Vice President, en- prising all other officers, appointed by and wih abling Congress to provide by law for such a the advice and consent of the Senate. The aet contingency, as to declare "what:officer shall provides a -distinct tenure for each of thest act as President," and that "' such officer shall classes; for the ea-ds of Departments a fixed adt accordingly' —a very striking change of term, ending in one month after the expiration phraseology. The question has,:however, in of the term of the President by whom they were two previous instances, received a: practical appointed;'for all others an indefinite terui, construction. In the case of'Mr. Tyler,'and ending when a successor shall have been afp'again in that of Mr. Fillmore, the Vice Presi- pointed and duly qualified. These two pro'dent took th'e oath as President, assumed the visions are wholly unlike each other. Both are name and designation, and was recognized as intended to applyto the present and the futO'Mre constitutionally President of the United States, and to include all who may come within'theit with the universal assent and consent of the na- scope. Does Mr. Stanton, by any fair c-ontion. Each was fullyrecognized and acknowl- struactin, come within either? How can he edged to be President, as fully and completely, be included in'the general clause, when the and to all intents, as if elected to that office. Secretary of War is expressly excepted'from Mr. Johnson then became President. Did itsoperation? The language is, "' Evey per h have a term of office? Was he merely -the son holding any civil office, &c., shall be enii tenant or holder of the term of another, and titled to hoild such office," " except as hereit that other his predecessor, President Lincoln? otherwise provided." Then follows the pro. Did Mr. Lincoln's term continue aftet his viso, in which the Secretary of War is spetcifie death, as has been argued? It is quite mani- ally designated, and by which another and A fest that two persons cannot be said to have different tenurie, is provided for the Secretary one and the same term of the Presidency at of War. Surely, it would be violating etver the same time. If it was Mr. Lincoln's term, rule of construction to hold that either an office it was not Mr. Johnson's. If it was Mr. John- or an i-ndividual expressly excluded from the son's, it was not Mr. Lincoln's. If Mr. John- operation of a law can be subject to its pro, son had no term, when do the Secretaries visions. appointed by him go out of -office, under the Again, does Mr.'Stanton come within the act of March 2, 1867? When does the'one proviso?,What s the term therein fixed and mronth after " the expiration of the term of established for the Secretary of Wa'? -Specificthe President by whom they have been ap- ally, the term )of the President by whom he pointed" expire? A President without a term was appointed, and one mnonth thereafter. H6 of office would, under our system, be a singu- was appointed by President Lincoln, and the lar anomaly, and yet to such a result does this term of President Lincoln existing at the tinhi argument lead. Iam unable to give myassent of his appointmen -expired on the 4th of to such a proposition. March, 1865. Can anyone doubtthathadatla If Mr. Stanton was legally entitled to hold been in existence on that day similar to that the office of Secretary of War on the 21'st of of March 2, 1867, Mr. Stanton would havti February, 1868, as averred it the first article, gone out of office in one- month thereafter? he must have been so entitled by virtue of his Th-e two terms of Mr. Lincoln were as distinct original appointment by President Lincoln, for as if held by different persons. Had he beet he had received no other appointment. If the then reappointed by Mr. Lincolni and coni act of March 2, 1867, terminated his office, he firmed, and a law similar to that of March 2, must, to be legally in office on the 21st of Feb- 1867, been then in existence, is it not equally ruary, 1868, have been again appointed and clear that he would have again gone out of confirmed by the Senate. He must, there- office in one month after the expiration of Mr. fore, be assumed to have held under the com- Lincoln's second term? If so, the only quesmission by the terms of which he held " dur- tion would have been whether Mr. Lincoln's in'g the pleasure of the President for the time term expired with him, or continued, notwith, being." After the death of President Line standing his death, until the 4th day of March, 940 1869, although he could no longer hold and from the general provision because expressly execute the office, and although his successor, excepted from its operation, and from thQ elected and qualified according to all the forms proviso by not coming within the terms of of the Constitution, was, in fact and in law, description. President of the United States. How could It not unfrequiently happens, as every lawyer all that be, and yet that successor be held to is aware, that a statute fails to accomplish all have no term at all? To my apprehension such the purposes of those who penned' it, from an a construction of the law is more and worse inaccurate use of language, or an imperfect than untenable. description. This may be the case here. But The word "term," as used in the proviso, when it is considered that this proviso was when considered in connection with the obvious drawn and adopted by eminent lawyers accusdesign to allow to each person holding the tomed to legal phraseology, who perfectly well presidential office the choice of his own confi- knew and understood the position in which dential advisers, must, I think, refer to the certain members of Mr. Johnson's Cabinet period of actual service. Any other construc- stood, not appointed by him, but only suffered tion might lead to strange conclusions. For to remain in office under their original commisinstance, suppose a President and Vice Pres- sions from President Lincoln; and when it is ident should both die within the first year of further considered that the object of that prothe term for which they were-elected. As the viso was to secure to each President the right law now stands, a new election must be held of selecting his own Cabinet officers, it is diffiwithin thirty-four days preceding the first cult to suppose the intention not to have been Wednesday of December then next ensuing. to leave those officers who had been appointed A new term of four years would commence by President Lincoln to hold under their oriwith the inauguration of the new President ginal commissions, and to be removable at before the term for which the preceding Pres- pleasure. Had they intended otherwise it was ident was elected had expired. Do the heads easy so to provide. That they did not do so is of Departments appointed by that preceding in accordance with the explanation given when President hold their offices for three years of the proviso was reported to the Senate, and the term of the new President and until one which was received with unanimous acquimonth after the expiration of the term for escence. which such preceding President was elected? It has been argued that Mr. Johnson has Such would be the consequence of giving to recognized Mr. Stanton as -coming within the the word "term" any other meaning than the first section of the act of March 2, 1867, by term of actual service. It must be evident, suspending him under the provisions of the therefore, that the word "term" of the Pres- second section. Even if the President did so ident, as used in the proviso, is inseparable believe, it by no means follows that he is guilty from the individual, and dies with him. of a misdemeanor in attempting to remove him, If I am right in this conclusion, Mr. Stan- if that.view was erroneous. The President is ton, as Secretary of War, comes neither within not impeached for acting contrary to his belief, the body of the section nor within the proviso, but for violating the Constitution and the law. unless he can be considered as having been And it may be replied that, if the President did appointed by Mr. Johnson. entertain that opinion, testimony was offered to Words used in a statute must, by all rules show that his Cabinet entertained a different of construction, be taken and understood in view. Whatever respect the opinion of either their ordinary meaning, unless a contrary in- may be entitled to, it does not settle the questention clearly appears. As used ih the Con- tion of construction. But a sufficient answer stitution, appointment implies a designation- to the argument is that, whether Mr. Stanton an act. And with regard to certain officers, comes within the first section of the statute or including the Secretary of War, it implies a not, the President had a clear right to suspend nomination to the Senate and a confirmation him under the second section. That section by that body. A Secretary of War can be ap- applies to all civil officers, except judges of pointed in no other manner. This is the legal the United States courts, " appointed as aforemeaning of the word appointed. Is there any said;" that is, "by and with the advice and evidence in the act itself that the word ap- consent of the Senate;" and Mr. Stanton was pointed, as used in the proviso, was intended such an officer, whatever might have been his to have any other meaning? The same word tenure of office. The same remark applies to occurs three times in the body of the section, the eighth section, in relation to the dlesignaand in each case of its use evidently has its tion of General Thomas. That section covers ordinary constitutional and legal signification. every "person" designated to perform the There is nothing whatever to show that it had, duties of any office, without the advice and conor was intended to have, any other sense when sent of the Senate. Both of these sections are used in the proviso. If so, then it cannot be general in their terms and cover'all persons contended that Mr. Stanton was ever appointed coming within their purview, whether included Secretary of War by Mr. Johnson, and he can- in the first section or not. not, therefore, be considered as included in I conclude, then, as Mr. Stanton was apthe proviso. The result is, that he is excluded pointed to hold " during the pleasure of the 941 President for the time being," and his tenure the time no vacancy in the office of Secretary was not affected by the act of March 2, 1867, of War. the President had a right to remove him from In the view I have taken of the first article office on the 21st of February, 1868, and, con- there was legally a vacancy in the Department sequently, cannot be held guilty under the first of War, Mr. Stanton having been removed on article. that same day, and the letter of authority states Even, however, if I were not satisfied of the the fact, and is predicated thereon. It is a construction given herein of the act of March well-established principle of law that where 2, 1867, I should still hesitate to convict the two acts are done at the same time, one of President of a high misdemeanor for what was which in its nature precedes the other, they done by him on the 21st of February. The must be held as intended to take effect in their least that could be said of the application of natural order. The question then is whether, the first section of that act to the case of Mr. a vacancy-existing, the President had a legal Stanton is that its application is doubtful. If, right to fill it by a designation of some person in fact, Mr. Stanton comes within it, the act to act temporarily as Secretary ad interim. done by the President did not remove him, and The answer to this question will depend, to a he is still Secretary of Wai. It was, at most, great extent, upon an examination of the an attempt on the part of the President, which statutes. he might well believe he had a right to make. The frst provision of statute law upon this The evidence utterly fails to Show any design subject is found in section eight of an act apon the part of the President to effect his pur- proved May 8, 1792, entitled "An act making pose by force or violence. It was but the sim- alterations in the Treasury and War Departple issuance of a written order, which failed of ments. its intended effect. To depose the constitu- That section empowers the President, "in tional chief magistrate of a great nation, elected case of death, absence from the seat of Govern: by the people, on grounds so slight, would, in ment, or sickness" of the Secretaries of State, my judgment, be ain abuse of the power con- War, or the Treasury, "or of any officer of ferred upon the Senate, which could not be either of said Departments, whose appointment justified to the country or the world. To con- is not in the head thereof, in case he shall think strue such an act as a high misdemeanor, it necessary, to authorize any person or perwithin the meaning of the Constitution, would, sons, at his discretion, to perform the duties when the passions of the hour have had time of the said respective offices until a successor be to cool, be looked upon with wonder, if not appointed, or such absence or inability by sickwith derision. Worse than this, it would inflict ness may cease." a wound upon the very structure of our Gov- It will be noticed that this act provides for ernment, which time would fail to cure, and one case of vacancy and two of temporary diswhich might eventually destroy it. ability, making the same provision for each It may be further remarked that the Presi- case. In neither case does it require any condent is not charged in the first article with any sent of the Senate, or make any allusion to offense punishable, or even prohibited, by stat- the question whether it is or is not in seslion. ute. The removal of an.officer contrary to It is viewed as a mere temporary arrangement the provisions of the act of March 2, 1867, is in each case, and fixes no specific limit of punishable, under the sixth section, as a high time to the exercise of authority thus conmisdemeanor. The attempt so to remove is ferred. Nor does it restrict the President in not declared to be an offense. The charge is, his choice of a person to whom he may confide thlat the President issued the order of Febru- such a trust. ary 21, 1868, with intent to violate the act, by By an act approved February 13, 1795, chapremoving Mr. Stanton. If, therefore, this ter twenty-one, to amend the act before cited, attempt is adjudgedto be a high misdemeanor, it is provided " thab in case of vacancy" in it must be so adjudged, not because the Presi- either of the several Departments of State, dent has violated any law or constitutional War, or the Treasury, or of any officer of provision, but because, in the judgment of the ei.ier, &c., Senate, the attempt to violate the law is in "i shall be lawful for the President,". * * * itself such a misdemeanor as was contemplated "in case he shall think it necessary, to by the Constitution, and justifies the removal authorize any person or persons, at his discretion, to by the C onstitution, and justifies the removal perform the duties of the said respective offices until of the President. from his high office. a successor be appointed or such vacancy be filled: The second article is founded upon the letter Provided, That no one vacancy shall be supplied in, of authority addressed by the President to Gien- manner aforesaid for a longer term than six months." eral Lorenzo Thomas, dated February 21, 1868. This act, it will be observed, applies only to The substantial allegations of the article are, vacancies, and does not touch temporary disthat this letter was issued in violation of the abilities, leaving the latter to stand as before, Constitution and contrary to the provisions of under the act of 1792. It still leaves to the the "act regulating the tenure of certain civil President his choice of the person, without offices," without the advice and consent of the restriction, to supply a vacancy; and while it Senate, that body being then in session; and provides for all vacancies, arising from whatwithout the authority of law, there being at ever cause, like the law of 1792, it makes no allusion to the Senate, or. to. whether or not absen.ce and- sickness, specified in the: act of: that body is in session. But this act differs 1792,. will it be contended that in, such a case. from its predecessor in this, that it specifically the power conferredin that act in caseof death limits the time during which any one vacancy would have been repealed by the act of 1863?1i can be supplied to six months. If not, by parity of reasoning the enumeration. Thus stood the law down to the. passage of of a vacancy by resignation in the act of 1863,, the act of February 20, 1863. (Statutes-at- would extend no. further than to, take that case Large, vol. 12, page 656.). In the meantime out, of the act of 1795- leaving the- cases, of four other Departments bad been created, to removal:and expiratioa of term still subject to..either of which were the provisions before its, operation, The conclusion, therefore, is, c ited applicable. And yet it appears from the that whatever power the President had by thei record that almost every President in. offie act. of 1795 to-appoint any person ad interim,, since the creation of those Departments. had, in case of removal, remains unaffected by the. in. repeated instances, exercised- the same act of 1863. power and authority in supplying. temporary It has been argued that the authority vested. yvacancies and disabilities, n the new. Depart- in thePresidentby the act of 1795 is repealed; iients which. he was authorized to- exercise in by the sixth sectin. of the: act of March 2, those originally created, without objection, 1867, which prohibits and punishes "the makand even without remark. * ing, signing, sealing, countersigning, or issuing: The act of February 20, 1863, provides- of any commission, or letter of authority, for "That in case- of the death, resignation, absence or in respect to any such appointment. or? from'the seat of Government. or sickness ofthead employment." If the act of 1795ais repealed of any executive Department, or of any officer of en t m t oprt in le mer either of said Departments," &c., " it shall be lawful by this section, it must operate in like manner.forthe President" * * * * "to authoize upon the.act of.1863. The consequence.would. the head of any other executive Department, or be that in no case, neither in. recess nor- ik other officer in either of- said Departments whose appointment is vested in the President," to perform session, neither in case of vacancy, howevert.he duties" ** * * "until a successor arising, absence or sickness, would the Presi?be appointed, or until such absence or disabilit dent have power, even for a day, to autha shall cease * pro That no e bility dent have power, even for a dayj to authorize shall-cease: Provided, That no one vacancy shall be, sappliedin manner aforesaid for a longer term than any person to discharge the duties.of any office six months." in any of the, Departments, which is filled, bySection two repeals all actsaor parts of acts- presidential appointment. All. must remain inconsistent, &c. as.they are, and all business, must stop, during This act, it will be observed,, covers, in. terms, session or in recess, until they can be filled by. the cases provided for in the -act of 1792, and legal appointment. This could not. have been one more —avacancybyresignation. It limits intended. The words above cited from the: the range of selection, by confining it to cer- sixth section of the act of 1867: are qualified.: tain specified classes of persons. It limits the by the words "contrary to the provisions of time for which any vacancy may be supplied to this act." The language is "'commission or six months, and it extends the power of so- letter-of authority for or in respect to any suchsupplying vacancies and temporary absence appointment or employment;' to wit, a "re. and tisability to all the. Departments. Clearly, moval, appointment, or employment made, therefore, it repeals the act of 1792, covering had, or exercised contrary to the provisions of. all the cases therein enumerated, and being in this act." If, therefore, the removal is not several important particulars inconsistent with contrary to the act, neither is the designation. it. There was-nothing left for the act of 1792 of a person to discharge the duties temporarily; which was not regulated and controlled by the and a letter of authority issued in such a case act of 1863. is not prohibited. How was it with the act of 1795? That act In confirmation of this view it will be noticed covered all cases of vacancy. Had it repealed that the eighth section of the act of March 2,. the prior act of 1792? It had applied the 1867, expressly recognizes the power of the limitation of six months for any one vacancy, President, " without the advice and consent-'and to that extent was inconsistent. with the of the Senate," to "designate, authorize, or. act of 1792, so far as a vacancy by death wks employ" persons to perform the duties of cerconcerned. But it left the cases of sickness tain offices temporarily-thus confirming the and absence untouched. The power conferred: authority conferred by the preceding acts. by the act of 1792 in those cases remained, My conclusion, therefore, is that, as the Presand was exercised, without question, in a mul- ident had a legal right to remove Mr. Stanton, titude of cases, by all the Presidents, down to notwithstanding the act of March 2, 1867, he the passage of the act of 1863. had a right to issue the letter of authority to In like manner, the act of 1863, while it General Thomas to discharge the duties of the took out of the operation of the act of 1795 Department of War, under and by virtue of the case of vacancy by resignation, and made the act of 1795. a new provision for it, left untouched vacancies It has been urged, however, that the six, by removal and by expiration of a limited ten- months' limitation in the act of 1795 had ex, ure of office. Suppose the act of 1863 had pired before the 21st of February, 1868, in provided in terms for only the two cases of consequence of the appointment of General. Grant as. Secretary. of Warad itrm on the_ transactio - of busine.ss and which the Pres. Grant as Sere8&re.y of W-ar ad interin. on the transaction of busme~ and wlxich the Prew 12th day of August, 1867. I am unable to see, dent might well be justified in believing at the force of this argu-ment. Whatever- may thorized by existing law, was a high misdehave been the opinion of the President, as to- meanor justifying the removal of the President his power of suspending an officer under the of the United States from office, would, in my Constitution, (and I am of the opinion that he. judgment, be, in itself amonstrous perversion had no such power,) he clearly had the right of justice, if not of itseif a violation of the Conto suspend Mr. Stanton under the second sic- stitution. tion of the act of March 2, 1867, and must be Thefirst two articles failing, the third, fourth, held in law to have acted by virtue of the law- fifth, sixth, seventh, and eighth must fail witht ful authority thereby conferred; moreespecially them. 4s he saw fit to conform in all respects to its The third differs from the second only inthe provisions. The action of the Senate upon allegation thatthe President appointed Lorenzo. that suspension restored Mr. Stanton to his- Thomas Secretary ad interim without the as. office of Secretary of War. This suspension sent of the Senate, that body being then in cannot be considered as a removal, and the session and there being no vacancy in said subsequent removal on the 21st of February office. The answer to this allegation is, first, created a vacancy in the office from that date. it was not an appointment requiring the assent The designation of General Thomas cannot, of the Senate, but a simple authority; to aet therefore, be considered as a continuation of temporarily; and second, there: Uws a legal the original designation of General Grant on, vacancy in the office existing at the time. the 12th day of August, 1867. Of article four it is sufficient to say that But even if I am wrong in this conclusion, there is no evidence to sustain it. There ia and the President had no power by existing nothing bearig -upon it except the idle vaporlaws to appoint a Secretary of War ad-interim, ing of Thomas himself of what he intended to yet if Mr. Stanton did not come within the first do; and he testifies under oath that the Pres,: section of the act of 1867 the seeond artic!e dent never authorized or suggested the use of fails. The gravamen of that article is the vio- force. What was said by Thomas was: said: lation of the Constitution and the act of March out of doors, not to Mr. Stanton, nor commu2, 1867, by issuing the letter of authority, with nicated to him by message. The interviewsintent to violate the Constitution, &c., "'there between General Thomas and Mr. Stanton being no vacancy in the office of the Secretary were of the most pacific character. The reply of War." If a legal vacancy existed the ma- of Mr. Stanton when the letter of the Presiterial part of the accusation is: gone. A letter dent was delivered to him was of a nature to of authority, such as. that issued to Thomas, is repel the idea of resistance, and the testimony in no sense an appointment to office as under- of General Sherman shows that the President stood by the Constitution. If it be, then the did not anticipate resistance. power to issue such a letter in any case. with- It is essential to the support of this fourth out the assent of the Senate cannot be conferred article, and also of article sixth, that intim-n by Congress. If it be, the acts of 1792, 1795, idation dad threats should have been contemand 1863 are unconstitutional. The sixth sec- plated by the parties charged with the conspirtion of the act of March 2, 1867, recognizes acy, under the act of July 31, 1861. These the distinction between an appointment and a failing, the charge fails. with them in both letter of authority. The practice has been fre- articles. quent and unbroken, both with and without As to the fifth and seventh articles, the at the authority of statute law, to issue letters of tempt is made to sustain them under a law of authority in cases of vacancy and temporary Congress, passed February 27, 1804, extenddisability almost from the formation of the ing the criminal laws of Maryland over so Government. It has been called for by the much of the District as was part of that State. necessity of always having some one at the Inasmuch as the common law was, so far as it head of a Department. There is no law pro- had not been changed by statute, the law of hibiting such a designation in case of a vacancy Maryland, and conspiracy a misdemeanor, the in a Department. If the President had no President is charged with a misdemeanor by authority to issue the letter in this individual conspiring with Thomas to do an act made case, it was, at most, a paper having no force unlawful by the act of March 2, 1867. This is: and conferring no power. It was no violation the only interpretation which I am able, with either of the Constitution or the law. The fact the aid of the arguments of the Managers, to that on the very next day a nomination was place upon these articles. Granting the po: actually sent to the Senate, though, as the Sen- sitions assumed as the foundation for the ate had adjourned, it was not communicated charges in these articles, they must fail if the until the succeeding day, goes to show that act which the President proposed to do was a there might have been no design to give any- lawful act, and he did not propose to accomthing but the most temporary character to the plish it by unlawful means. The removal of appointment. To hold that an act of such a Mr. Stanton is the means proposed in order to character, prohibited by no law, having the prevent him from holding his office, as charged sanction of long practice necessary for the in the fifth, and to take and possess the prop 944 erty of the United States in his custody, as States," and which particular Congress he accharged in the seventh article. The right to re- cused of encroaching upon constitutional rights move him, therefore, disposes of both articles. and violating the fundamental principles of Outside of any of these considerations, I government. have been unable to look upon either of these It may be remarked'that those words were four articles as justifying a charge of conspir- not official. They were spoken in reply to an acy. The legal idea of a conspiracy is totally address made to him by a committee of his inapplicable to the facts proved. The Pres- fellow-citizens-spoken ofthe Congress and not ident, if you please, intends to remove a per- to it. The words did not in terms deny that it son from office by an open exercise of power, was a constitutional Congress or assert that it against the provisions of a law, contending that had no power to pass laws. He asserted what he has a right so to do, notwithstanding the was true in point of fact, that it was a Congress law, and temporarily to supply the vacancy of only a part of the States. Granting that thus created. He issues an order to that effect, the words spoken would seem to imply that he and at the same time orders another person to had doubts, to some extent, of the true chartake charge of the office, who agrees to do so. acter of that Congress and the extent of its How these acts, done under a claim of right, powers, so long as several States were excluded can be tortured into a conspiracy, in the ab- from representation, he did not, in fact or in sence of any specific provision of law declar- vubstance, deny its constitutional existence; ing them to be such, is beyond my compre- while in all his official communications with' hension. that Congress he has ever treated it as a conArticle eight is disposed of by what has been stitutional body. Is there another man in the said on the preceding articles. Republic, in office or out of office, who had not Article nine is, in my judgment, not only on that day a perfect right to say what the Preswithout proof to support it, but actually dis- ident said? Would any one think of punishing proved by the evidence. any member of Congress for saying out of doors With regard to the tenth article, the specifi- precisely the same things of the body of which cations are sufficiently established by proof. he was a member? Is the President alone They are three in number, and are extracts excluded from the privilege of expressing his from speeches of the President on different oc- opinions of the constitution of a particular Concasions. It is not pretended that in speaking gress and of denouncing its acts as encroachany of the words the President violated the ments upon " constitutional rights" and the Constitution, or any provision of the statute or " fundamentalprinciples ofgovernment?" In common law, either in letter or spirit. If such process of time there might possibly be a Conutterance was a misdemeanor, it must be found gress which would be justly liable to the same in the nature of the words themselves. criminations of a President. In such a case I am not prepared to say that the President is he to remain silent, and is he forbidden by might not, within the meaning of the Constitu- the Constitution, on pain of removal from office, tion, be guilty of a misdemeanor in tle use of to warn the people of the United States of words. Being sworn "to preserve, protect, their danger? and defend the Constitution," if he should in It is not alleged that the President did not words persistently deny its authority and en- believe what he said on this occasion to be deavor by derisive and contemptuous language true. Whether he did, or not is a question to bring it into contempt and impair the respect between him and his conscience: If he did, and regard of the people for their form of gov- he had a perfect moral right so to speak. If ernment, he might, perhaps, justly be con- he did not, his offense is against good morals, sidered as guilty of a high misdemeanor in and not against any human law. There is, in office. Other cases might be supposed of a my judgment, nothing in these words to prove like character and leading to similar results. the allegation that the President's intent in It remains to inquire what wa the character speaking them was to impair and destroy the of the words proved. respect of the people for the legislative power Those spoken on the 18th day of August, of Congress, or the laws by it duly and consti1866, contained nothing calculated to impair tutionally enacted, or to set aside its rightful the confidence of the country in our form of authority and powers. If the words were degovernment or in our cherished institutions. signed to bring that particular Congress into They did not contain severe reflections upon contempt, and to excite the resentment of the the conduct of a coordinate braqnch of the Gov- people against it, however much I may disernment. They were not an attack upon Con- approve both words and intention, I do not gress as a branch of the Government, but upon think them an impeachable offense. the conduct of the individuals composing the The remarks contained in the second and Thirty-Ninth Congress. He did not speak of third specifications present themselves to my Congress generally as "hanging upontheverge mind in the same light. They, too, contain of the Government, as it were," but of a par- severe reflections upon the Thirty-Ninth Conticular Congress, of which he spoke as assuming gress; nothing more. I have not been able to to be " a Congress of the United States, while discover any menaces or threats against Con - in fact it is a Congress of only a part of the gress, unless they are found in the declaration 945 that he would veto their measures; and this, Second. By unlawfully attempting to devise I think, must in fairness be taken as applying means to prevent the execution of the approto measures of a certain character, of which he priatiop act for the support of the Army for had been speaking. The speeches at Cleve- the fiscal year ending June 30, 1868. land and St. Louis, though highly objectionable And that further, in pursuance of said declain style, and unbecoming a President of the ration, he unlawfully attempted to prevent the United States, afford nothing to justify the execution of the so-called reconstruction act allegation that they were menacing toward of March 2, 1868. Congress or to the laws of the country. To Whereby he was guilty of a high misdemeanor consider their utterance a high misdemeanor, in office on the 21st day of February, 1868. within the meaning of the Constitution, would, I have already stated, in commenting on the in my view, be entirely without justification. tenth article, that I do not consider the PresiSo highly did the people of this country esti- dent's declaration, on the 18th of August, mate the importance of liberty of speech to a 1866, as fairly liable to the construction there free people, that, not finding it to be specific- put upon it and repeated in this article. There ally guarantied in the Constitution, they pro- were no such words said, nor can they be fairly vided for it in the first amendment to thiat implied. The words were that it was not a instrument. " Congress shall make no law Congress of the United States, but only of a abridging the freedom of speech.7" Undoubt- part of the States. Taken literally, these words edly there are great inconveniences, and per- were true. But a Congress of a part of the haps positive evils, arising from the too frequent States may be a constitutional Congress, capaabuse of that freedom; more, perhaps, and ble of passing valid laws, and as such the Presgreater from an equally protected freedom of ident has uniformly recognized the Thirtythe press. Butthe people of the United States Ninth Congress. The declaration being perconsider both as essential to the preservation fectly susceptible of an innocent meaning, and of their rights and liberties. They, therefore, all his official acts being consistent with that have chosen to leave both entirely unrestrained, meaning, it would be unjust to suppose a difsubjecting the abuse of that liberty only to ferent one, which he did not express. remedies provided by law for individual wrongs. In this view the foundation of the articleTo deny the President a right to comment fails. freely upon the conduct of coordinate branches But whether in pursuance of that declaraof the Government would not only be denying tion or not, did he unlawfully devise means to, him a right secured to every other citizen of prevent the execution of the law of March 2, the Republic, but might deprive the people of 1867, in the manner charged? the benefit of his opinion of public affairs; and The first specification rests, if upon anyof his watchfulness of their interests and wel- thing, upon the letter to General Grant, dated fare. That under circumstances where he was February 10, 1868. This letter must be taken called upon by a large body of his fellow-citi- as a whole, and not considered by detached; zens to address them, and when he was goaded parts. by contumely and insult, he permitted himself From that letter I am satisfied that the Presito transcend the limits of proper and dignified dent expected General Grant, in case the Senspeech, such as was becoming the dignity of ate should not concur in the suspension of Mr. his station, is matter of deep regret and highly Stanton, to resign the office to him, so that her censurable. But, in my opinion, it can receive might have an opportunity to fill the office beno other punishment than public sentiment fore Mr. Stanton resumed the performance of alone can inflict. its duties, with a view of compelling Mr. Stan — If I rightly understand the accusation con- ton to seek his remedy in the court. If the tained in the eleventh article it is substantially President had such-a design, it could only be this: carried out legally by removing Mr. Stanton, " That, on the 18th day of August, 1866, the Presi- before he should have time to resume the funcdent, by public speech, declared, in substance, that tions of Secretary of War, if the President the Thirty-4inth Congress was not a Congress of the ad a riht to remove h. It has been seen United States, authorized to exercise legislative ad a right to remove him. It has been seen power, thereby intending to deny that the legisla- by my remarks upon the first article, that I tion of said Congress was valid or obligatory on him, think the President had such right. The except so far as he saw fit to approve the same, and design, then, if the President entertained it, thereby denying, and intending to deny, the power of said Thirty-Ninth Congress to propose amend- was not unlawful. ments to the Constitution." As to the second specification, it has not, And " in pursuance of said declaration" the that I can see, any proof to sustain it; and if President, on the 21st day of February, 1868, it had, it is not quite apparent how an attempt attempted to prevent the execution of the act to prevent the execution of the act for the supof March 2, 1867: port of the Army can be considered as proof First. By unlawfully attempting to devise of an intention to violate the civil-tenure means to prevent Mr. Stanton from resuming act, which seems to be the gravamen of this the functions of Secretary of War, after the article. Senate had refused to concur in his suspension. No evidence whatever was adduced to show C. I.-60. that the President had devised means, or in in times of high party excitement, when the any way attempted, to prevent the execution passions of the people are inflamed against a of the " act to provide for the more efficient perverse and obnoxious public officer. If so, it government of the rebel States." is a power to be exercised with extreme cauIt has been assumed in argument by the tion when you once get beyond the line of managers that the President, in his answer, specific criminal offenses. The tenure of public claims not only the right under the Constitu- offices, except those of judges, is so limited in tion to remove officers at his pleasure, and to this country, and the ability to change them by suspend officers for indefinite periods, but also popular suffrage so great, that it would seem to fill offices thus vacated for indefinite periods hardly worth while to resort to so harsh a -a claim which, if admitted, would practically remedy, except in extreme cases, and then. deprive the Senate of all power over appoint- only upon clear and unquestionable grounds. ments, and leave them in the President alone. In the case of an elective Chief Magistrate The President does claim the power of removal, of a great and powerful people, living under a and that this includes the power of suspension. written Constitution, there is much more at But a careful examination of his answer will stake in such a proceeding than the fate of the show that he claims no other power than that individual. The office of President is one of conferred by the act of 1795, to fill vacancies the great coordinate branches of the Governin the Departments temporarily, and for a ment, having its defined powers, privileges, and period not exceeding six months, not by ap- duties; as essential to the very framework of pointment without the consent of the Senate, the Government as any other, and to be touched but by designation, as described. in the act-a with as careful a hand. Anything which conpower conferred by Congress, and which can duces to weaken its hold upon the respect of be taken away at any time, if it should be the people, to break down the barriers which found injurious, to the public interest. surround it, to make it the mere sport of tenEven, however, if the claim of the President porary majorities, tends to the great injury of did go to the extent alleged, it is not made a our Government, and inflicts a wound upon charge against him in the articles of impeach- constitutional liberty. It is evident, then, as ment. And however objectionable and repre- it seems to me, that the offense for which a hensible any such claim might be, he cannot Chief Magistrate is removed from office, and'be convicted of a high misdemeanor for as- the power intrusted to him by the people transserting an unconstitutional doctrine, if he has ferred, to other hands, and especially where the made no attempt to give. it practical effect, hands which receive it are to be the same which especially without a charge. against him and a take it from him, should be of such a character trial upon it. as to,commend itself at once to the minds of I am unwilling to close the consideration of all right-thinking men as, beyond all question, this remarkable proceeding before adverting to an adequate cause. It should be free from the some other points which have been presented taint of party; leave no reasonable ground of in the argument. suspicion upon the motives of those who inflict The power of impeachment is conferred by the penalty, and address itself to the country the Constitution in terms so general as to occa- and the civilized world as a measure justly sion great diversity of opinion with regard to called for by the gravity of the crime and the the nature of offenses which may be held to necessity for its punishment. Anything less constitute crimes or misdemeanors within its than this, especially where the offense is one intent and, meaning. S0ome contend, and with not defined by any law, would, in my judggreat force of argument, both upon principle ment, not be justified by a calm and considerate and authority, that only such crimes and mis- public opinion as a cause for removal of a demeanors are intended as are subject to indict- President of the United States. And its inevment and punishment as a violation. of some itable tendency would be to shake the faith known law. Others contend that. anything is a of the friends of constitutional liberty in. the crime or misdemeanor within'the meaning of permanency of our free institutions and the' the Constitution which the appointed judges capacity of man for self-government. choose to consider so; and they argue that the Other offenses of the President, not speciprovision was left indefinite from the necessity fled in the articles of impeachment, have been of the case, as offenses of public officers, in- pressed by.the managers as showing the nejurious to the public interest, and for which the cessity for his removal. It might be sufficient offender ought to be removed, cannot be accu- to reply that all such were long prior in date rately definedbeforehand; that the remedy pro- to those charged in the articles, have been fully vided by impeachment is of a political char- investigated in the House of Representatives, acter, and designed for the protection of the were at one time decided by a majority of the public against unfaithful and corrupt officials. learned Committee on the Judiciary in that Granting, for the sake of the argument, that body to present no sufficient ground for imthis latter construction is the true one, it must peachnment, and were finally dismissed by the be conceded that the power thus conferred House as not affording adequate cause for might be liable to very great abuse, especially such a proceeding, by, a vote of nearly, if not quite, two to one. But it is enough to say that OPINION they are not before the Senate, and that body has no right to consider them. Against them or the President has had no opportunity to HON. GEORGE H. WILLIAMS. defend himself, or even to enter his denial. To go outside of the charges preferred, and to con- Deeply impressed with a sense of my revict him because, in our belief, he committed sponsibility and duty in the case now before the offenses for which he is not on trial, would be Senate, I shall vote for the conviction of the to disregard every principle which regulates President upon the first three articles of imjudicial proceedings, and would be not only a peachment upon the ground that the removal gross wrong in itself, but a shame and humili- of Secretary Stanton and the appointment of ation to those by whom it was perpetrated. Adjutant General Thomas, as charged in said It has been further intimated by the Man- articles, were in violation of the Constitutioil agers.that public opinion calls with a loud voice of the United States. for the conviction and removal of the Presi- To decide otherwise would be to say that the dent. One Manager has even gone so far as Presidenthastheabsolute andunlimited poweito threaten with infamy every Senator who at all times and under all circumstances, to revoted for the resolution passed by the Senate move from and appoint to office, and that.(j touching the removal of Mr. Stanton, and who much of the Constitution as provides that the shall now vote for the President's acquittal. President "shall nominate, and by and wi'th Omitting to comment upon the propriety of the advice and consent of the Senate appoint,.'* this remark, it is sufficient to say, with regard is of no effeot. Nothing would be necessary td to myself, that I not only did not vote for that annihilate all participation by the Senate in resolution, but opposed its adoption. Had I appointments, except to call the appointee, iii so voted, however, it would afford no justifica- case of removal, an officer ad interim-that is, tion for convicting the President, if I did not, an officer to hold until it suits the purposes of on examination and reflection, believe him the President to send a nomination to the S-eaf guilty. A desire to be consistent would not ate to which it is willing to agree. excuse a violation of my oath to do " impartial Untiring and exhaustive researches on bejustice." A vote given in haste and with little half of the President do not show, and I opportunity for consideration would be a lame venture to assert that not one single instance apology for doing injustice to another, after can be found in the history of the Government, full examination and reflection. where the head of a Department has been reTo the suggestion that popular opinion de- moved and a successor appointed while the mands the conviction of the President on these Senate was in session without the advice and charges, I reply that he is not now on trial consent of that body. Nothing is clearer to before the people, but before the Senate. In my mind than that the power of the President the words of Lord Eldon, upon the trial of over the offices of the country during the! se:the Queen, "I take no notice of what is pass- sion of the Senate is one thing, and his power ing out of doors, because I am supposed con- during the recess of the Senate is another and stitutionally not to be acquainted with it." a different thing. And again, "It is the duty of those on whom When the Constitution says that the Presi — a judicial task is imposed to meet reproach dent may fill up all vacancies that may happen and not court popularity." The people have during the recess of the Senate: it certainbl~ not heard the evidence as we have heard it. confers upon him a power which he does not The responsibility is not on them, but upon possess and cannot exercise while the Senate us.* T.hey have not taken an oath to " do im- is in session. partial justice according to the Constitution When removals have been made during theand the laws." I have taken that oath. I recess of the Senate it has been argued that cannot render judgment upon their convic- vacancies made in this way have happened; tions, nor can they transfer to themselves my therefore they could be filled temporarily by punishmerft ifI violate my own. And I should.the President; but now it is proposed, by buildconsider myself undeserving the confidence of ing one inference upon another, to include a, that just and intelligent people who imposed session as well as a recess, and so abrogate upon me this great responsibility, and unwor- the authority of the Senate and invest the Execthy a place among honorable men, if for any utive with absolute and despotic power. I ani fear of public reprobation, and for the sake of *very certain that the practice of removals and securing popular favor, I should disregard the temporary appointments stands uponthatclause conviction of my judgment and my conscience. of the Constitution which refers to the recess The consequences which may follow either of the Senate, and in my judgment it is not from conviction or acquittal are not for me, only a total departure from the precedents, but with my convictions, to consider. The future a plain violation of the Constitution, to make is in the hands of Him who made and governs one of its sections which applies exclusively to the universe, and the fear that He will not a recess apply also and equally to a session of govern it wisely and well would. not excuse me the Senate. for- a violation of His law. Congress, if it should try, could not delegate 948 any such power to the President. Congress by the application of two familiar rules of law. may vest the appointment of certain inferior One is, that the act of March 2, 1867, embraced officers in the President alone, in the courts of and provided for the temporary and permalaw, or in the heads of Departments; but Con- nent appointment and removal of every officer gress can no more vest the power in the Pres- whose appointment is vested in the President ident of removing and appointing the head of and the Senate; and the other is, its clear rea Department without the advice of the Senate pugnancy to all preceding legislation on the than it can vest the power in the President to subject. make a treaty without the concurrence of the Great effort has been made to show that the Senate. removal of Stanton and the appointment of The practice of the Governmenthas not been Thomas were unimportant infractions of the inconsistent with this view of the Constitution. statute, and therefore the President ought to Pickering's case, in 1800, is cited, but there be acquitted. the removal and nomination to the Senate were Adopting the views of the President that this simultaneous acts. President Adams did not Senate is a court, and finding that the accused attempt to make any appointment. has committed an act which the law declares Some cases of ad interim appointments to to be a high misdemeanor, then it follows, acprovide for casualties have been produced, but cording to all rules governing judicial tribunals, no case call be found where the President, uno that a judgment for conviction must be given, flatu, removed and appointed the head of a no matter what Senators may think of the wisDepartment while the Senate was in session dom of the law or the nature of the offense. without its consent. Much of the argument for the defense proceeds President Johnson cannot say that he was upon the ground that the President has a right mistaken as to this point, for, in addition to to decide for himself as to the constitutionality what he must have learned from many years of of an act of Congress. Whatever may be the public service, he declared in a speech which correct view of this question, it must be admithe delivered in the Senate on the 10th of Jan- ted that if the President violates a penal law uary, 1861, in the most emphatic manner, that of Congress he does so at his peril. When the President had no such power as he has ex- impeached for such an act, if the Senate upon ercised in the removal of Stanton and the the trial holds the law to be unconstitutional appointment of Thomas. and void, he must, of course, be acquitted; I do not find that the act of 1789 or subse- but if the Senate holds the law to be constituquent acts upon this subject have ever been tional and valid, it must necessarily convict. so construed as to warrant the executive acts Any public officer or private citizen may test in question, and they could not be so construed the validity of a criminal statute by its violawithout ignoring the clear distinction which the tion, but in so doing he undertakes to suffer its Constitution makes between a recess and a penalties, if, upon his trial, it is upheld and session of the Senate. Concerning the decis- enforced by judicial authority. ion of 1789, which is made the head and front To allow any person not acting judicially of the defense in this case, it may be said that when arraigned for crime to plead, in bar of it was brought about by the arguments of the prosecution, his mistaken opinion of the James Madison in the House and the casting justice or validity of the law, would be to devote of Vice President Adams in the Senate, liver over the land to anarchy and crime. both of whom at the time expected to fill the Two questions only as to this law are before executive office, and both of whom, it has been the Senate. One is, Is it constitutional? and said, looked upon a contrary decision as ex- the other is, Has it been violated by the Prespressing a want of confidence in the then ad- ident? Webster said, in one of his great ministration of Washington. Most, if not all, speeches, that "'the regulation of the tenure of the distinguished legislators and judges of of office is a common exercise of legislative the nation, such as Webster, Clay, Calhoun, authority, and the power of Congress in this Kent, Story, and the Supreme Court of the particular is not at all restrained or limited by United States, with Marshall at its head, have anything contained in the Constitution, except affirmed the incorrectness of that decision, and as to judicial officers;" and I am very sure that experience has demonstrated its mischievous the Senate, after having three times decided and corrupting tendencies and effects. Web- by more than a two-thirds vote of the memster, commenting on this decision, and speak- bers present each time that the tenure-of-office ing of the framers of the Constitution, in act is constitutional, will now regard that ques1835, said: tion as res adjudicata. "I have the clearest conviction that they looked Has the President broken any of the proto no other mode of displacing an officer than by im- visions of the act? Nobody denies that the peachment. or by the regular appointment of another body of the first section, which provides that every person appointed to office by and with I think it wholly unnecessary to discuss the the advice and consent of the Senate shall acts of 1792, 1795, and 1863, because they have hold until his successor is in like manner apbeen swept out of existence by the tenure-of- pointed and qualified, embraces the Secretary Office act of March 2, 1867. This is established of War; but an attempt is made to construe 949 the proviso to the section so as to exclude that and with the advice and consent of the Senate, officer from the protection of the act. To is suspended, and the Senate do not concur in maintain this construction reliance is chiefly the suspension, such officer shall forthwith placed upon some remarks of Senator SHER- resume the functions of his office. MAN, in connection with the bill. I presume, E. M. Stanton was appointed by and with on this account, it may be proper for me to say the advice and consent of the Senate. He was that I introduced the original bill, and had the suspended. The Senate did not concur in his honor to be chairman of the committee of suspension. It was then his right and duty conference by whom this proviso was reported. forthwith to resume the functions of his office; When the bill passed the Senate the heads of but the President would not allow him so to Departments were expressly excepted, but the do, for he not only cut off all official relations House of Representatives amended it by strik- with Mr. Stanton, but appointed, received, and ing out that exception, and the conference recognized another person as Secretary of War. committee agreed to the House amendment, What quibble can be found to excuse this plain with a modification as to the time during which violation of the law? Admitting, for the sake such officers should be under the protection of of argument, that the President could legally the law. There was no suggestion or intima- remove Mr. Stanton, then I deny that he could tion in the committee that the act did not ap- legally appoint Thomas ad interim, for the ply to Mr. Johnson's Cabinet, and the* only reason that the second section of the tenurepurpose of the proviso was to put a limitation of-office act declares that upon the suspension upon the holding of Cabinet officers, and that of an officer an ad interim appointment may is its fair construction. be made, "and in no other case." When Great stress has been put upon the words Stanton was suspended, the ad interim appoint" except as herein otherwise provided" just ment of General Grant was legal; but any ad preceding the proviso, but the fact is that these interim appointment upon a removal is absowords were in the bill before the proviso was lutely prohibited. Vacancies in office can only attached and refer to the fourth section, and, be filled in two ways under the tenure-of-office therefore, instead of being an exception, the act. One is by temporary appointment, as proviso is a mere qualification of the general provided in the Constitution, during the recess words of the section. I do not see how it is of the Senate, and the other is by an appointpossible to conclude that Mr. Stanton is not ment by and with the advice and consent of protected by the body of the section or the the Senate during the session. proviso. If he is within the proviso, then he One might reasonably suppose that the conhas a right to hold for one month after the end struction of this act was settled, so far as the of some presidential term, and cannot in the Senate was concerned. mean time be removed without the consent of On the 12th of December the President comthe Senate. That is the time expressly fixed municated to the Senate the fact that, on the by the proviso when a Secretary ceases to be 12th of the preceding August, he had suspended under the protection of the Senate, and it Mr. Stanton, and gave his reasons therefor; makes no difference whether the present is and the Senate, assuming that Mr. Stanton was Lincoln's or Johnson's presidential term. If within the protection of the tenure-of-office act, Mr. Stanton is not affected by the proviso, proceeded to consider the President's reasons then he is necessarily within the body of the and, under the leadership of the distinguished section, for that includes every officer in the Senator from Maine, [Mr. FESSENDEN,] reUnited States appointed by and with the advice fused, by an overwhelming vote of thirty-five an4 consent of the Senate, which is exactly to six, to concur in the suspension. Every one Stanton's case. of the majority then understood that the effect The idea that this act took effect two years of that vote was to reestablish Mr. Stanton in before it was enacted, so as to remove anybody his office under the provisions of the tenure-offrom office at that time, is a simple absurdity. office act. Considerable discussion has taken place as to On the 21st of February, 1868, the President whether or not the present is Mr. Lincoln's informed the Senate that he had removed or Mr. Johnson's presidential term. This, as Mr. Stanton and appointed Adjutant General it seems to me, is an unimportant but not Thomas Secretary of War ad interim, and the doubtful question. When the Constitution Senate proceeded to consider that communicaspeaks of the term of the President, it means tion, and, after protracted argument, decided, a definite period of four years, not an uncer- by a vote of twenty-seven to six, "that, under tain time dependent upon the death, resigna- the Constitution and laws of the United States, tion or removal of the person who takes pos- the President has no power to remove tlhe session of the office; and therefore the pres- Secretary of War and to designate any other ent is Mr. Lincoln's term, unless there can be officer to perform the duties of that office ad two presidential terms between the 4th of interim." March, 1865, and the 4th of March, 1869. Among those who voted to affirm this Let us look at the second section of the doctrine was the distinguished Senator from tenure-of-office act. That provides that when Illinois, [Mr. TRUMBULL.] any officer appointed as aforesaid, that is, by Now, after these proceedings, which go upon 950 the express ground that Mr. Stanton is within Stanton and the appointment of Thomas were the provisions of the tenure-of-office act, we to get up a law-suit is a shallow and miserable are asked to eat up our own words and resolu- subterfuge. tions and stultify ourselves by holding that the One question made is that the President has Oct did not apply to Mr. Stanton. not removed Mr. Stanton. Stanton was either President Johnson is also fully committed to removed or he was not.. If he was not rethe same construction of the act. On the 12th moved, then the appointment of Thomas was of August he suspended Mr. Stanton, a pro- a clear violation of the sixth section of the ceeding provided for by said act, but otherwise tenure-of-office act, for it was an appointment unwarranted by law and unknown to the prac- to fill a vacancy where no vacancy existed. tice of the Government. Assuming that the tenure-of-office act is On the 14th day of August, 1867, bhe notified valid, and applicable to Mr. Stanton, then the the Secretary of the Treasury, as follows: President could not remove him. "SIR: In compliance with the requirements of the Suppose Stanton, to avoid conflict under the act entitled'An act to regulate the.tenure of certain orders of the 21st of February, bad given poscivil offices,' you are hereby notified that on the 12th session of. the War Office to Thomas, He istant, Hon. Edwin M. Stanton was suspended from his office as Secretary of Warand GeneralU. S. Grant would still have been Secretary of War, be*uthorized and empowered to act as Secretary ad cause those orders were illegal and void. What interim." the tenure-of-office law intended to prohibit He also reported his reasons to the Senate and punish was the action of the President as for the suspension of Mr. Stanton within twenty to removals and appointments without the condays from its meeting, as required by said act. sent of the Senate, though, of course, such acHaving vainly tried to oust Mr. Stanton by an tion, being in contravention of law, would have observance of the act, he boldly determined no force. Great effort has been made to show upon its violation by Stanton's removal. This that the removal of Stanton and the. appointhe admits, but says it was with a view to test ment of Thomas were insignificant eacts. They the constitutionality of the act, forgetting, as might possibly be so regarded if there were harit seems, that such a question could not possi- mony and peace in the country. bly arise if the act did not apply to Mr. Stanton. Congress has passed laws for the reconstrueTo argue, in view of these facts, that the Pres- tion of the States lately in rebellion, and the ident removed Stanton through a mistaken execution of these falls within the jurisdiction idea that the law did not apply to him, is tri- of the War Department. The President holds fiing with common sense. them to be unconstitutional, and is bitterly Taking the ground of the President that the opposed to their existence. Stanton is underpresent is his presidential term, then, I say, to stood to be friendly to this legislation. He all intents and purposes, bhe has appointed stands, therefore, in the way of the President, Stanton Secretary of War. Time and again, and his removal and the appointment of an in official communications to the Senate, he executive puppet in his place may involve the has declared Mr. Stanton to be Secretary of lives and liberties of thousands of citizens, and War, and in his message of December 12, 1867, perchance the peace and integrity of the nation. he submitted to the Senate the question as to During this trial we have been treated to whether or not Mr. Stanton should continue to much from the writings of James Madison. be Secretary of War, and the Senate confirmed Arguing about executive powe in the Cohim in that position; so that, without the usual gress of 1789t, he said: forms, there has been that concurrence be- If an unworthy officer be continued in office by tween the Executive and the Senate as to the an unworthy President, the House of Representasecretaryship of Mr. Stanton which the Con- tives can at any time impeach him and the Senate can remove him, whether the President chooses or stitution contemplates. The commission s not" no part of the appointment. The President Speaking again of the President, he says: cannot hold and treat Mr. Stanton as his Sec- "I contend that the wanton removal of mpritoriretary of WTar for two or three years, and then, ous officers would subject him to impeachment and when questioned for an illegal act upon or removalfrom hishightrust." through such Secretary, deny his official char- No man can deny that E. M. Stanton, by ecter and relations. If he was the President's his ability and experience, his patriotism and Segretary of War for executive purposes he personal integrity, is eminently fitted for the was such Secretary of War for the purposes head of the War Department. of Congress. Andrew Johnson has removed him because Much discussion has taken place in this case his unbending loyalty made him an obstacle as to the intent of the President. There is to the President's ambitious and partisan purnothing of this question. His intent was to poses, and appointed to his place a man wholly transfer the War Department from E. M. incompetent, whose only merit is abject serStanton to some other person of his choice vility to the will of his master. If James Madi-_ without the consent and in defiance of the will son was a judge here to-day he would vote for of the Senate. This is obvious and undeniable, impeachment upon that ground alone. and every Senator must believe it. The pre- We have been earnestly warned by the Prestext that all his proceedings for the removal of ident's counsel not to encroach upon the exec 951 ative department of the Government. Con- to decide that the President may at any time, sidering that the Presideiit usurped the legis- irrespective of the provisions of the Constitulative control and reconstruction of the States tion, and illn open and undisguised contempt lately in rebellion; that he has vetoed fifteen of the authority and will of the Senate, remove acts of Congress, to say nothing of those he from and appoint to office. has pocketed; that he comes now by his con- To acquit is to hold that the laws of the fidential counsel to say what he has before said, land are not what they are written down in that there is no Congress and we are no Sen- the statute-books of the country to be, but are ate; that, without acknowledging our authority, the unwritten and, it may be, unknown will he appears simply to avoid civil commotion, of one man who happens to fill the executive and we are prepared to appreciate the modesty office of the nation. and grace of this admonition. All courts may take judicial notice of hisI am surprised to find so many holding the tory, and by what I have a right to know in opinion that the President is not impeachable this case I have been sorrowfully and relucfor anything that the law does not declare a tantly brought to the conclusion that Andre* crime or a misdemeanor. Cannot he be im- Johnson is a bad man; that the policy of his peached for a violation of the Constitution? administration has been to rule or ruin; that Suppose he should declare war or borrow he has endeavored by usurpation and the abuse money or levy taxes without authority of law? of his veto to subordinate the legislative power Is there no remedy? Suppose, for partisan to his personal views and purposes, and that purposes, he should veto all the acts of Con- his official career and example have been to gress, or in some mad freak pardon all the injure, degrade, and demoralize the country; criminals of the United States. Suppose by and I believe that his removal from office will drunkenness and debauchery he should become invigorate the laws, vindicate the Constitution, incompetent to perform the duties of the office. and tend greatly to restore unity and peace to Is Congress bound to tolerate wickedness, cor- the nation. ruption, and treachery in the executive office so............_: long as there is no violation of a penal statute? I shall vote for conviction on the tenthON article. OF Whenever the Chief Magistrate of this coun- HON. HE N R Y WI L SO N. try, whose wisdom and virtue ought to exalt the nation, makes a public blasphemer of him- The past seven years have been to gentlemen self, and going about the country in speeches occupying seats in this Chamber years of pressexcites resistance to law and defends mob ing duties and stern trials. In the trying times violence and murder, I think he ought to be through which.the nation has passed and is removed from office. passing it has sometimes happened that Sen, This is no question of taste or good manners ators of large capacity, ripe experience, and or of unfriendly criticism upon Congress. eminent public service have widely differed in Those speeches were crimes. When they were the interpretation of the Constitution and the delivered they took the wings of the wind. construction of the laws. Whenever the high They were published and read throughout the duties imposed upon Senators by the exigenturbulent South; They imparted boldness to cies of the country have pressed for action, violence and revenge, and I have little doubt and our deliberations have been distracted by that many a poor man is sleeping in a bloody the diverse opinions of Senators learned in the srave in consequence of those speeches. Offi- law, I have striven to discharge my duty by cial duties and relations impose restraint upon'giving whatever doubts clouded my judgment freedom of speech as well as upon freedom of or embarrassed my action to patriotism, to action. liberty, and to justice-to the security of my Suppose ajudge of the Supreme Court should country and the rights of all its citizens. In go about making speeches and telling the glancing back over these years I find few votes people that the reconstruction or other acts of I would recall by following this rule of action. Congress were void, and that he would so de- In this great trial, imposed upon the Senate by cide when opportunity should arise, is there the Constitution of our country and the Repreany doubt that he could be impeached for con- sentatives of the people, I shall give whatever duct so indecent and so disastrous to the peace doubts have arisen to perplex or embarrass to and good order of society? my country rather than to its Chief Magistrate, West H. Humphreys, United States district now arraigned as a violator of the Constitution, judge for Tennessee, was convicted by the unan- a violator of the laws, and a violator of his oath imous vote of this Senate of high crimes and to faithfully execute the laws. By a too rigid misdemeanors for what he said in a public adherence to forms and technicalities the subspeech in the city of Nashville on the 29th stance is often lost. Discarding forms and December, 1860. technicalities and looking only to the substance, Whether Andrew Johnson shall be removed I shall so vote as to secure the ends of justice. from office or not is the least question in this I am not, I trust, unmindful of the gravity case. Made up as the issues are, to acquit is of the occasion, of the solemnity of my oath, _952 nor of the obligation ever resting upon me " to Constitution and its true meaning; believing be just and fear not." I know that the vote I that the power should be exercised whenever shall give in this great trial will be criticised the security of the country and the liberties of sharply in our age and in ages to come. The the people imperatively demand it; and bePresident is on trial before the Senate-the lieving by the evidence adduced to prove the Senate is on trial before the present age and charges of violating the Constitution and the before the coming ages. I intend to vote for tenure-of-office act, and by the confessed and the conviction of the President and for his justified acts of the President, that he is guilty removal from his high office, and to submit of high misdemeanors, I unhesitatingly vote my motives and my action to the judgment of for his conviction and removal from his high the present and of the future. From the ver- office. dict of the Senate the President has no appeal; The President is charged by the House of from the verdict of posterity the Senate has Representatives with violating the Constitution no appeal. I propose to state, with brevity, and the tenure-of-office act in removing Mr. some of the reasons why I shall vote for the Stanton from the office of Secretary of War conviction of the President of the United and in appointing Adjutant General Thomas States upon the charges preferred by the Rep- Secretary of War ad interim. The removal of resentatives of the people. Mr. Stanton and the appointment of Adjutant The framers of the Constitution well knew General Thomas, and the violation of the tenthe seductive, grasping, and aggressive nature ure-of-office act, if Mr. Stanton be within that of executive power. They knew that for ages act, stand confessed and justified in the answer the contest had been " to rescue," in the words of the President to the charges of the House of Daniel Webster, "liberty from the grasp of of Representatives. The answer of the Presexecutive power," and that "our security was ident, without any other evidence, is to my in our watchfulness of executive power. " They mind conclusive evidence of his guilt. Upon knew that the champions of human freedom in his answer, confessions, assumptions, and justthe Old World, though often baffled, had strug- ifications I have no hesitation in recording my gled for generations to limit and restrain ex- vote of "guilty." The assumptions of power ecutive power. They sought to make the exec- put forth by the President in his defense canutive power of the nation useful to the country, not but startle and alarm all men who would but not dangerous to the liberties of the people. maintain the just powers of all branches of the They gave to the President a short term of Government. Had the President inadvertently office, and clothed the Representatives of the violated the Constitution and the laws; had people with power to arraign him before the he pleaded in justification misconstruction Senate, not only for high crimes, but for high of the Constitution and the laws, I might misdemeanors, too. Jealous of executive have hesitated to vote for his conviction. But power, the framers of the Constitution gave to he claims the right to remove civilofficers and the House of Representatives-a body repre- appoint others ad interim during the session senting the interests, the sentiments, the opin- of the Senate. If that claim of power is adions of the' people, and their passions, too- mitted by a vote of acquittal, the President can complete authority to arraign the Chief Magis- remove during the session of the Senate tens trate of the nation before the tribunal of the of thousands of civil officers, with their millions Senate. They clothed the Senate of the Uni- of compensation, and appoint his own created States, composed of gentlemen quite as tures to fill their places without the advice and liable as are the members of the House of Rep- consent of the Senate, and thus nullify that resentatives to be influenced by the interests, provision of the Constitution that empowers the opinions, the sentiments, and the passions the Senate to give its advice and consent to of the people, with ample power to try, con- appointments. vict, and remove the President, not only for Not content with this assumption of power, the commission of high crimes, but for high the President claims the right to pronounce a,misdemeanors. law of Congress unconstitutional, tb refuse to High misdemeanors may or may not be vio- execute it, although he is sworn to do so, and lations of the laws. High misdemeanors may, to openly violate it with a view of testing its in my judgment, be misbehavior in office detri- constitutionality in the courts, although no mental to the interests of the nation, danger- means may exist for months or years to come ous to the rights of the people, or dishonoring to test the constitutionality of the law so vioto the Government. I entertain the conviction lated in the judicial tribunals of the country. that the framers of the Constitution intended The President claims and has exercised the to impose the high duty upon the House of right to declare Congress an unconstitutional Representatives to arraign the Chief Magistrate body, incapable of enacting laws or of proposfor such misbehavior in office as injured, dis- ing amendments to the Constitution; to hold honored, or endangered the nation, and to im- the laws in abeyance; to refuse to execute pose upon the Senate the duty of trying, con- them, and to defiantly violate them in order to victing, and removing the Chief Magistrate test their constitutionality. These are the poproved guilty of such misbehavior. Believing sitions assumed by Andrew Johnson. These this to be the intention of the framers of the assumptions, if admitted, radically change the 953 character of our Government. If they are sus- men who had striven for four years on bloody tained by a verdict of acquittal the President fields to destroy their country, to perpetuate ceases to be the servant of the law and becomes the slavery of the very men surrendered to the master of the people, and a law-non-exe- their control. cuting power,~ a law-defying power, a law- To lighten the burdens and partially protect breaking power is created within the Govern- and defend the endangered rights of the freedment. Instead of an Executive bound to the men, Congress passed a Freedmen's Bureau faithful execution of the laws of Congress the bill; the President arrested it by a veto. Connation has an Executive bound only to execute gress passed another Freedmen's Bureau bill; the laws according to his own caprices, whims, the President endeavored to defeat it by another and sovereign pleasure. Never can I assent, veto, and when it passed into law he strove to by a vote of acquittal, to executive assump- embarrass and thwart its operations. To protions so unconstitutional, so subversive of the tect the freedmen he had wickedly abandoned Government, so revolutionary in their scope to the control of their enemies and the nation's and tendency. These assumptions will intro- enemies, Congress passed a civil-rights bill; the duce into our constitutional system, into our President attempted to arrest it by a veto; and Government of nicely-adjusted parts, derange- failing in that, he has utterly neglected to enment, disorganization, and anarchy. force it., Congress endeavored, by submitting Criminal acts raise the presumption of wrong an amendment to the Constitution, to secure motives, intentions, and purposes. The Presi- the reconstruction of the Union; the President dent's acts, claims, and assumptions, made met it by a denial of the authority of Congress against the well-known protests of vast masses to submit an amendment, and by an invocaof the people, the organs of public opinion, tion to his governments in the rebel States to the Congress of the United States, and the reject it. The rebel States having failed to laws of the land,.afford ample evidence that adopt the constitutional amendment, Congress his motives, intentions, and purposes were un- passed the reconstruction measures over Exworthy, if not criminal. We are sworn to give ecutive vetoes. Those measures of restoration this arraigned President a trial as impartial as have encountered in their execution the hosthe lot of humanity will permit. But we can- tility of the President. Faithful generals have not close our eyes to the records of the past been removed for their fidelity and efficiency, three years, nor can we wholly shut out from and others have been rebuked and thwarted. all influences our personal knowledge of his The history of the past three years records intentions, purposes, and acts. The framers it, and our personal knowledge attests it, that of the Constitution, when they empowered the President has sought to prevent the enSenators to sit in judgment upon an arraigned forcement of the laws passed over his vetoes. Chief Magistrate, must have presumed that In every form he has striven to prevent the Senators would know something of the motives, restoration of the Union on a basis of loyalty intentions, and purposes, and te familiar with to the country and the equal rights and privithe public record of him who should exercise leges of the people. The evidences legally executive power in their time. The framers before us, the records of the country, the perof the Constitution knew, when they gave Sen- sonal knowledge of Senat6rs, show the motives, ators the power to try an arraigned Chief intentions, and designs of President Johnson. Magistrate, the country knows, and we know, To accomplish his purposes and designs, that personal knowledge anid the historic rec- Mr. Johnson sought, by the use of executive ords of the country cannot but influence in some patronage, to corrupt the American people. degree the feelings and judgments of men. When Congress, by the casting vote of Vice Four years ago eleven States were wrenched President Adams, decided, in the beginning from the Union, their governments were ar- of Washington's Administration, that the Senrayed against the country, the land was des- ate was a part of the appointing power, but olated with civil war, the nation was -strug- not of the removing power, the office-holders gling ta restore and maintain the unity of the of the country were but a few hundred in numcountry, the supremacy of the Government, ber, and received a compensation amounting and the freedom of millions made free by to but a few thousand dollars. In our time executive proclamation and a constitutional the Federal office-holders are counted by tens amendment. The faith of the nation was of thousands, and their compensation amounts plighted to restore the broken Union on the to many millions. To defeat the will of the basis of loyalty, and to maintain the freedom people, the President, in the interests of disof millions of emancipated bondmen. The loyalty, inequality, and injustice, sought to men pledged to liberty and union accepted An- use the corrupt and corrupting influences of drew Johnson, supported and trusted him. executive patronage. The Postmaster GenComing into power, he at once, in spite of the eral made the shameless declaration, that offifears and protests of the loyal men who had cers who ate the President's bread should supconfided in him, entered upon a policy that port the President's policy. To maintain the placed the conquered rebel States in the keep- cause of the country, as well as to protect ing of traitors, and put loyal men and the honest public officers who would not betray freedmen completely under the authority of their country, Congress enacted the civil-ten 954 ure act. It met the executive veto, the exec- crease the lawlessness, disorder, and outrage utive denunciation of unconstitutionality, and now so prevalent in the States lately in rebelthe executive violation. Mr. WILLIAMS, of the lion. His conviction and removal from office House of Representatives, who drew the pro- will rebuke lawlessness, disorder, and crime, viso to the first section of the act, tells us that and inspire hope and courage among loyal and he intended that the act should.protect Mr. law-abiding men. I cannot contemplate withStanton. out the deepest anxiety the fatal effects, the The Senator from Oregon, [Mr. WILLIAMS,] suffering and sorrow that must follow the acwho introduced the original bill, and who was quittal of the President. The disastrous conon the committee of conference, and the Sen- sequences of his acquittal seem to flash upon ator from Vermont, [Mr. EDMUNDS,] who re- me whichsoever way I turn. Conscious of the ported the bill from the Committee on the responsibilities that rest upon me, I shall unJudiciary, and who was also on the committee hesitatingly vote for the conviction of the of conference, both claim that Mr. Stanton is President, for his removal from office, and for protected by the act. A fair and logical con- his disqualification from hereafter holding any struction of the language of the act gives its office under the Constitution he has violated protection to Mr. Stanton. A large majority and the Government he has dishonoredin Congress voted for the bill in the belief that,.. it threw its protection over the great War Sec- OPINION retary, who stood before the country one of the foremost champions of Congress in its OF struggle against the anarchical, disorganizing, HON. GEORGE VICKERS. and unpatriotic action of the Executive. Mr. Stanton was suspended by Mr. Johnson; the The Constitution secures to the President of reasons for his suspension were submitted to the United States the nomination of civil offiCongress; the reasons were pronounced in- cers and their appointment, if the Senate shall sufficient by more than a three fourths vote of advise and concur. He is the initiating and the Senate; Mr. Stanton returned to his office; acting power, and gives character and form to the President refused to acknowledge him; the proceeding before it is presented to the and, after several days, issued the order for consideration of the Senate, which body has his removal, and he appointed Adjutant Gen- no power to present the name of any one to eral Thomas Secretary of War ad interim- the President as an object of official favor. all in direct violation of the tenure-of-office The act of 1789, which created the Department act. of War, does not limit the tenure of the office The President refused to send a nomination of the Secretary of that Department, but asto the Senate, knowing that it was the will of signs such duties as shall be enjoined upon and the Senate and of the nation that Mr. Stanton intrusted to him by the President, agreeably should remain at the head of the War Depart- to the Constitution. ment. He had vainly sought to induce Gen- Soon after the Government went into operaeral Grant to be a party in thwarting the will tion the power of removal from office was of the Senate by preventing the return of Mr. exercised by the Executive during the session Stanton to the War Office. He had failed to as well as in the recess of the Senate; the compersuade Lieutenant General Sherman to aid missions to the Secretaries and many other him in removing Mr. Stanton from his office. officers contained the statement that they held He then took Adjutant General Thomas, at the pleasure of the President. A practice through whom all communications must go to immediately arose and prevailed,and was conthe Army, and made him Secretary of War tinued down to the year 1867, of removal from ad interim. The law requires all communica- office by the Executive; the power of removal tions to the Army to go through General Grant. was claimed as an incident to that of appointMight it not have been, by placing Thomas in ment,- and as essential to a faithful execution $he War Department, while holding the office of the laws, on the ground that unless the of Adjutant General, the purpose of the Pres- President possessed it he could not remove a ident to have the means of communication faithless officer who might be engaged in obwith the Army under his control, and substan- structing the execution of the laws or in embezstantially to set aside the law requiring such zling the public funds; the duty of the Presicommunications to go through the General of dent under the Constitution, to take care that the Army? the laws should be faithfully executed, could In support of the acts of the President, not be efficiently discharged unattended by the claims are made and powers asserted by Mr. power of removal. Although differences of Johnson and his counsel hostile to the spirit opinion may have existed upon this as well as and genius of our institutions, to the integrity other provisions of that instrument, yet the of the Government, and to the security of pub- practice uninterruptedly continued, with the lie liberty. The acquittal of the President will implied assent of the Legislature, for upward give the sanction of the Senate to the monstrous of seventy-five years, and constituted a legispowers assumed, claimed, and exercised by lative construction which was affirmed by difthe President, and will, in my judgment, in- ferent Attorneys General of the United States, 955 whoee attention had been specially called to President's veto, was intended to alter and the subject. change the settled construction of the ConstiThe acquiesoence by Congress in that con- tution, and to empower the Senate to continue struction, whether originally correct or not, a Cabinet officer in commission against the was fully sufficient to justify President Johnson will and wishes of the Executive, and to rein its exercise. Although it may be termed an strain and check his wonted power of removal; implied power, it is as valuable and essential the statute trenched upon and materially imto a coordinate department as an express grant. paired what the President and his legal adThe power to create banks and of erecting visers, including the Secretary of War, believed custom and light-houses is derived by impli- and declared to be a constitutional right and cation. The concurrent authorities of Kent prerogative of the executive department. The and Story refer to the power of removal of President having sworn to "preserve, protect, officers by the President, as established by and defend the Constitution of the United usage and acquiescence, as well as by the opin- States," considered it to be his duty, as custoions of the most eminent lawyers, judges, and dian of the executive department, to treat the statesmen, as the settled construction of the act as unconstitutional, and to exert the power Constitution. It was advocated and practiced claimed and exercised by all his predecessors. by Jefferson, Madison, Monroe, Jackson, Van The statute of 2d Marchr 1867, essays to create Buren, and other Presidents, down to Mr. an offense of high misdemeanor in any one who Johnson. The elder Adams removed Mr. may attempt to violate it, and for this effort of Pickering, Secretary of State, during the ses- the President to maintain the integrity of his sion of Congress, and without consulting it; department until the judiciary, the only arbiter he requested Mr. Pickering to resign, and on to determine a question of such magnitude in. his refusal removed him by a peremptory order, the last resort, should decide, the impeachand nominated John Marshall his successor. ment is predicated. The right of Mr. Adams does not seem to have If one department shall attempt or do what been questioned. The act of 1789, in its second another department shall believe to be an section, provides for the appointment of a chief essential and vital encroachment upon its high clerk in the Department of War, who, whenever powers or functions, the law of self-defense is the principal officer, the Secretary, shall be as applicable as it would be to a personal attack removed by the President, or in any other case by one upon another. It cannot be expected of vacancy, shall have the charge and custody that the executive department is to be the of all the records and papers in the office. The agent for executing a statute upon itself which language of this act recognizes an existing is to dismember and deprive it of half its right in the President, under the Constitution, vigor or vitality; the duty enjoined upon the to remove a Secretary at his discretion. President to see that the laws are executed was The debates in Congress in 1789, by the not designed to operate in such a case, for the ablest men of the nation, show that the power practical recognition of such a principle might of removal from office was conceded to be in be used to work the destruction of the whole the President, and the bills establishing the frame of the Government and make the ConDepartments and regulating the duties to be stitution its own destroyer. The allegation performed were framed purposely to conform that if the President shall be permitted to contothat construction of the Constitution. Thus, travene a statute which he and his Cabinet in the act relating to the Treasury Department, believe invades and infracts the constitutional the seventh section provides that the assistant limits and powers of the department over which'shall take charge of the records, books, and he presides, and feels bound to preserve, that papers "whenever the Secretary shall be re- he may be at equal liberty to disregard any law moved from office by the President of the Uni- of a different character and object, has no more ted States, or in any other case of vacancy." force than that the right of self-defense may be In the same year the Department of Foreign extended to justify an individual in assaulting Affairs*was created, and in the second section every person he may chance to meet. If it is of the act it is declared that there shall be ap- in the lawful competency of Congress to punish pointed an inferior officer, to be called the the infraction of every law by- pains and penalchief clerk, and who, " whenever the said prin- ties, and to deprive the courts of the United cipal officer shall be removed from office by States of their jurisdiction over the same, Conthe President of the United States, or in any gress would soon become omnipotent, the other case of vacancy, shall, during such va- coirdination of the departments be destroyed, cancy, have the charge and custody of the and the structure and genius of our Governrecords," &c. These three statutes do not ment be changed by the action of one departconfer the power of removal, but they treat it ment. as existing in the executive department, and It may well be questioned if the Cabinet offiwere designed and drafted to exclude the cers who were appointed by a former Presipresumption of implication of a grant of that dent, and not reappointed in a second term, power to the President by legislative authority. either by that President or by Mr. Johnson, The act of the 2d March, 1867, regulating his successor, were intended to be embraced by the tenure of civil offices, and passed over the the act of 2d March, 1867; if it were a matter 956 of doubt the accused would be entitled to the duties, but an appointment to office, legally benefit of it. From a careful examination of and technically, has three essential elements: the act, taken in connection with the avowed 1. A nomination by the President. 2. A conpurpose of it, as declared in the Senate and firmation or approval by the Senate. 3. A House of Representatives by the committees commission signed, sealed, and delivered to of conference at the time of its final passage, the appointee. A concurrence of all is necesmy opinion is that such officers were not, nor sary to its consummation. The designation intended to be, included in it. Entertaining of a person to take possession and fulfill the the views I have expressed, I do not consider duties is but for a temporary purpose, till a that the first and eighth articles of impeach- suitable successor can be found and his nomment are sustained. ination sent to the Senate; the public interest The act of Congress of 1795, chapter twenty- may demand such a course of action. one, provides for the filling of all vacancies by The proceedings in this case abound with the President, by appointments ad interim for instances of ad interim employments, directed a period not exceeding six months. The power by all the Presidents from Mr. Adams (the of removal or suspension necessarily carries elder) to Mr. Johnson, including President with it the right to fill the vacancy temporarily Lincoln. The designation of General Thomas on the ground of publi.c necessity; the exigency was on the 21st February, and the nomination may exist at any time, whether during the ses- of Mr. Ewing was sent to'the Senate on the sion or in the recess of the Senate, and the 22d February, but in consequence of an early public interest and service may require the adjournment, and the next day being the Sabpromptest action by the President.' The acts bath, it was not actually received by the Senate of 1863 and 1867 do not, by implication, repeal till Monday, the 24th of that month. But if the cases provided for and covered by the act the President, the Attorney General, and other. of 1795, which embraces all cases of vacancy Cabinet officers were mistaken in their confrom whatever cause, and authorizes ad in- struction of the law, which I do not think, such terim employments, but only such as are occa- an error was a venial one, and cannot properly sioned by death, resignation, absence, or sick- be considered a high crime or high misdeness, leaving the vacancies occasioned by re- meanor. moval and expiration of commission unre- But if none of the laws alluded to authorized pealed. the ad interim appointment of General Thomas, The act of 1867, regulating the tenure of cer- yet, if Mr. Stanton's case is not covered by the tain civil offices, by its second section, empow- first section of the act of March 2, 1867, called ers the President to fill vacancies which may the tenure-of-office law, the second article and happen during the recess of the Senate, by others into which it enters are not subjects of reason of death or resignation, and in such impeachment. Mr. Stanton was appointed by cases to grant commissions, which shall expire Mr. Lincoln in 1862, during the first term of at the end of the next session thereafter, but his Presidency; his term expired with Mr. makes no provision for filling vacancies which Lincoln's as definitively as if the latter had not may occur during the session of the Senate, been reilected; he was not reappointed either leaving such to be filled under existing laws by Mr. Lincoln or by President Johnson, and and the usages of the department. The eighth only held by courtesy and sufferance. The section of the tenure-of-office act declares that month allowed to the Cabinet officers appointed whenever the President shall, without the ad- by Mr. Johnson and confirmed by the Senate vice and consent of the Senate, designate, does not apply to officers appointed by Mr. authorize, or employ any person to perform Lincoln, and who held no legal term under the duties of any office, he shall notify the Sec- President Johnson. retary of the Treasury, &c. This recognizes The latter, therefore, committed no misdethe right of the President to make ad interim meanor in designating General Thomas to perappointments without the consent of the Sen- form the duties till a regular nomination could gte. This class of appointments is not the be made; first, because Mr. Stanton's case is same mentioned in the third section of that not protected by the first section of the act of act, because he is authorized by that section 1867, all the subsequent sections having referto issue commissions to expire at the end of ence to the cases only which are included in the next session; but in the eighth section it that section, the sixth section, relating to ad inis stated to be a mere designation or employ- terim appointments, expressly declaring them ment of some person to perform the duties of to be I" contrary to the provisions of this act," an office. According to usage, from the neces- and if not within the first section it cannot be sity of the case, and the act of 1795, unrepealed within the sixth; secondly, because no other in part by the act of 1863 or the act of 1867, the act forbids such appointments; and thirdly, President had the power to designate General because it was in conformity to the settled pracThomas to perform, for a brief period, the tice ofthe executive department since its formduties of the Department of War. To avoid ation, acquiesced in by all the departments, circumlocution I have sometimes used the and necessary to a proper and faithful execuword appointment instead of designation or tion of the laws. In any aspect of the case the employment in connection with ad interim second and third articles are nbt maintainable. 957. With the views already expressed, that the gust, 1866, attempted to prevent the execution President is not guilty of the principal charge, of the tenure-of-office act, passed on the 2d which is modified and extended over other March, 1867; then follows a vague allusion to articles, it follows that he is not punishable on the means by which he made the said attempt, to the charge for conspiring to do the acts men- wit: on the 21st February, 1868, by unlawfully tioned in the fourth, fifth, and seventh articles, devising, contriving, and attempting to devise and especially not in the absence of all proof and contrive means to prevent E. M. Stanton of any such conspiracy. from forthwith resuming the functions of the The sixth article charges a conspiracy to office of Secretary of War, which had been seize and take by force the property of the peaceably and quietly resumed on the 13th JanUnited States in violation of the conspiracy uary, 1868, about five weeks prior to the alleged act of July, 1861. This statute does not, in my contrivances, as appears by Mr. Stanton's opinion, applyto the removal of an officerunder affidavit to procure a warrant for General claim of constitutional right; besides, no proof Thomas's arrest, and also by the first article of was offered of any authority from the Pres- impeachment. ident to use force, (none was used,) and no The other means are to prevent the execulegitimate inference of such an intention can tion of the act making appropriations for the be drawn under an act penal in its character support of the Army, of which no proof was when the presumptions are favorable to the offered exceptthat in relation to the ninth articitizen, and especially to a high public func- cle in reference to General Emory's interview tionary of the Government in the discharge of with the President. The last means charged official duty. are to prevent the execution of an act to proThe ninth article, which alleges an attempt vide for the efficient government of the rebel to seduce an officer of the Army from his duty States, passed 2d March, 1867; the only evito promote sinister purposes of the President, dence introduced was a telegram to Governor appears to be wholly unsupported by proof. Parsons, dated several weeks prior to the pasThe Commander-in-Chief has an undoubted sage of the said act alleged to be violated. This right to consult with his subordinates, to inquire eleventh article seems to be made up by uniting into the disposition of the military forces, and fragments or portions of other articles; if septo express opinions; the relation between them arately the articles in full are not sustained, the precludes the presumption of an unlawful pur- joining together of some of their disunited parts pose in making proper inquiries and communi- cannot impart to them additional strength or cations. In such a case the charge should be vitality. There is no proof of any connection expressly proved; but there was not only no between the speeches referred to and the tenevidence offered tending to prove it, but a laud- ure-of-office act, nor between that act or any able motive was proved by the Secretary of the alleged violation of it and the means and conNavy, who suggested to the President the pro- trivances imputed to the President. It was priety of making the investigation. contended on the part of the prosecution that The tenth supplemental article is in refer- the act of 1789, and not the Constitution, conence to certain public speeches of the Presi- ferred upon the President the power of redent, and charges that they are high misde- moval from office and separated that power meanors in office. These speeches were made from that of appointment. The act of 1867 in a private, and not in an official capacity, and does not essay to punish a removal under the however injudicious some may think portions act of 1789 unless made in the recess of the of them, and to be regretted, I know of no law Senate, and as Mr. Stanton's removal was durwhich can punish Mr. Johnson with a removal ing the session of that body, the prohibition of from office because they were made. As we the act is not applicable. The act of 1789 is have no law to punish those who may indulge general, and not confined in its operation to in political discussions, it cannot reasonably be the recess of the Senate or to its sessions; its expected that the President should be removed language is, " whenever the said principal offor exercising a privilege enjoyed by every ficer (the Secretary being meant) shall be reAmericatt citizen; the first amendment to the moved from office by the President of the Constitution declares that Congress shall pass United States," the inferior officer shall have no law abridging the freedom of speech or of charge of the records, books, and papers apperthe press. taining to the Department. The eleventh article is anomalous, indefinite, A President and his Cabinet may be called and liable to the objection of multiplicity. If upon to examine and determine the meaning, it were possible to put it in the form of an in- scope, and operation of statutes they may be dictment or of a declaration in a civil action, required to execute materially affecting the it would be quashed on motion by a court of powers, duties, and practice of the executive law. The first item or paragraph is not in the department of te Government. Judgment is form of a charge, but is the recital of a speech necessarily involved in that examination and contained in the tenth article and appears to be consideration. If, after a candid and diligent only introductory, or alleged as inducement to investigation and mature deliberation, the a charge which follows, namely, that the Presi- President acts upon the conclusion thus formed, dent, in pursuance of said speech made in Au- can it be contended that for doing so he is 958 guilty of a high crime or misdemeanor and the Constitution and laws, it seeks to exerpunishable by removal from office? There cise its ancient far-reaching sway. All this i$ must be some willful and manifest abuse of an- very plain. Nobody can question it. Andrew thority, usurpation, or corruption in such a Johnson is the impersonation of the tyrannica case to justify a proceeding so degrading in its Slave Power. In him it lives again. He is the character and consequences. If Congress, by lineal successor of John C., Calhoun and Jeflegislation of two thirds, after the exercise of fef-son Davis. And he gathers about him the the veto by the Executive, should assume the same supporters. Original partisans of slavery power of making appointments to office, irre- North and South; habitual compromisers of spective of his right of nomination, of nego- great principles; maligners of the Declaration tiating and confirming treaties, of diminishing of Independence; politicians without heart; his compensation during the term for which lawyers, for whom a technicality is everything,, he was elected, can- it be said that he would and a promiscuous company who at every stage: have no right to judge of the constitutionality of the battle have set their faces against Equal of these acts; and, if he should refuse to re- Rights;-these are his allies. Itis the old troop gard them, to be subjected to impeachment of slavery, with a few recruits, ready as of old and removal, as well as to fine add imprison- for violence-cunning in device and heartless ment, although they attempted to abstract the in quibble. With the President at their heady essential attributes of his office and reduce the they are now entrenched in the Executive Department to a subordinate and inferior con- Mansion. dition'? Surely such a proposition could not Not to dislodge them is to leave this country be seriously advocated, a prey to one of the most hateful tyraanies But further, suppose that Congress by its of history. Especially is it to surrender the acts should grant titles of nobility and require Unionists of the rebel States to violence and the President to issue com-missions to, perfect bloodshed. Not a month, not a week, not a them, or pass bills of attainder or ex post facto day should be lost. The safety of the Republaws, or lay a capitation tax without reference lic requires action at once. The lives of innato the census, and devolve the execution of cent men must be rescued from sacrifice. the statutes upon the President; shall he be I would not in this judgment depart from bound, regardless of his oath to protect and de- that moderation. which belongs to the oceafend the Constitution, to execute them against sion; but God forbid that, when called to-deal his own convictions and against the unanimous with so great an offender, I should affect a coldopinion and advice of the Attorney General ness which I cannot feel. Slavery has been and, his other constitutional advisers? If in: our worst enemy, murdering our children, fill-. any case the right of judgment is to be exer- ing our homes with mourning, and darkening cised, no criminality can be legally imputed the land with tragedy; and now it rears its for its honest exercise, though the conclusion crest anew with Andrew Johnson as its repremay be erroneous. sentative. Through him it assumes once more For these reasons, independent of those to rule the Republic and to impose its cruel already assigned, and from a careful consider- law. The enormity of his conduct is aggraation of the evidence adduced and of the cir- vated by his barefaced treachery. He once cumstances of the case, I do not think that the declared himself the Moses of the colored race, first eight and the eleventh articles- can be Behold him now the Pharaoh. With such maintained. treachery in such a cause there can be no parley. Every sentiment, every conviction, every vow, f\T>TlOPINION against slavery must now be directed againsthim. Pharaoh is at the bar of the Senate for OF judgment.. E HON. a E CHARL ES; S UMNER. The formal accusation is founded on certain recent transgressions, enumerated in articles: * I voted against the rule of the Senate allow- of impeachment, but it is wrong to suppose ing opinions to be filed in this proceeding, and t t this imp the wholet merely on these artongregretted its adoption. With some hesitation to try this unpardonable to hieachment merely on these artds I now take advantage of the opportunity, if and phrases hen for more than two years the not the invitation, which it affords. Voting and phrases Whensions of than two years the "guilty" on all the articles, I feel that there evidence before the Senate, as I shall showis no need of explanation or apology. Such a have been manifest in their terrible, heartvote is its own best defender. But I follow the rending consequences. example of others. IMPEACHMENT A POLITICAL, AND NOT A JUDICIAL PROBATTLE WITH SLAVERY. CEEDING. This is one of the last great battles with Before entering upon the consideration of slavery. Driven from these legislative Cham- the formal accusation, instituted by the House. bers; driven from the field of war, this mon- of Representatives of the United: States in strous power has found a refuge in the Ex- their own name and in the name of all the ecutive Mansion, where, in utter disregard of people thereof, it is important to understand 959 the nature of the proceeding; and here on the It is difficult to understand how this term, threshold we encounter the effort of the de- which plays such a part in present pretenfense, which has sought in every way to con- sions, obtained its vogue. It does not appear found this great constitutional trial with an in English impeachments, although there is drdinary case at Nisi Prius and to win for reason for it there, which is not found here. the criminal President an Old Bailey acquittal, From ancient times Parliament, including where on some quibble the prisoner is allowed both Houses, has been called a court, and the to go without day. From beginning to end House of Lords is known as a court of appeal. this has been painfully apparent, thus de- The judgment on impeachments embraces not grading the trial and baffling justice. Point merely removal from office, as under our Conbypoint has been pressed, sometimes by coun- stitution, but also punishment. And yet it sel and sometimes even by Senators, leav- does not appear that the Lords sitting on iming the substantial merits untouched, as if peachments are called a court. They are not on a solemn occasion like this, involving the so entitled in any of the cases, from the first safety of the Republic, there could be any in 1330, entitled simply, "Impeachment of other question. Roger Mortimer, Earl of March, for Treason," The first effort was to call the Senate, sitting down to the last in 1806, entitled, " Trial of for the trial of impeachment, a court, and not Right Honorable Henry Lord Viscount Melville a Senate. Ordinarily names-are of little con- before the Lords House of Parliament in Westsequence, but it cannot be doubted that this minster for High Crimes and Misdemeanors appellation has been made the starting-point whereof he was accused in certain articles of for those technicalities, which are so proverbial Impeachment." In the historic case of Lord in courts. Constantly we have been reminded Bacon, we find, at the first stage, this title, of what is called our judicial character and of "Proceedings in Parliament against Francis the supplementary oath we have taken, as if a Bacon Lord Verulam," and after the impeachSenator were not always under oath, and as if ment was presented, the simple title, "Proceedother things within the sphere of his duties ings in the House of Lords.": Had this simwere not equally judicial in character. Out of plicity been followed in our proceedings, one this plausible assumption has come that fine- source of misunderstanding would have been spun thread which lawyers know so well how removed. to weave. There is another provision of the ConstituThe whole mystification disappears when we tion which testifies still further, and, if possible, look at our Constitution, which in no way more completely. It is the limitation of the speaks of impeachment as judicial in charac- judgment in cases of impeachment, making it ter, and in no way speaks of the Senate as a political and nothing else. It is not in the court. On the contrary it uses positive lan- nature of punishment, but in the nature of proguage, inconsistent with this assumption and tection to the Republic. It is confined to reall its pretended consequences. On this head moval from office and disqualification; but, as there can be no doubt. if aware. that this was no punishment, the ConBy the Constitution it is expressly provided stitution further provides that this judgment that "the judicial power shall be vested in one shall be no impediment to indictment, trial, Supreme Court and in such inferior courts asthe judgment, and punishment "according to law.'; Congress may from time to time ordain and Thus again is the distinction declared between establish, " thus positively excluding the Senate an impeachment and a proceeding "-according, from any exercise of "the judicial power." to law." The first, which is political, belongs And yet this same Constitution provides that to-the Senate, which is a political body; the the Senate shall have the sole power-to try latter, which- is judicial, belongs to the courts, all impeachments." In the face of these plain which are judicial bodies. The Senate removes texts it is impossible not to conclude that in try- from office; the courts punish. I am not alone ing impeachments Senators exercise a function in drawing-this distinction. It is well known which is not regarded by the Constitution as to all who have studied the subject. Early in "judicial," or, in other words, as subject to the our history it was putforth by the distinguished ordinary conditions of judicial power. Call it Mr. Bayard of Delaware, the father of Sensenatorial or political, it is a power by-itself ators, in the case of Blount, and it is adopted and subject to its own conditions. by no less an authority than our highest comNor can any adverse conclusion be drawn mentator, Judge Story, who was as much from the unauthorized designation of court, disposed as anybody to amplify the judicial: which has been foisted into our proceedings. power. In speaking of this text, he says, that This term is very expansive and sometimes impeachrent "is not so much designed to punvery insignificant. In Europe it means the ish the offender as to secure the State against household of a prince. In Massachusetts it is gross official misdemeanors; that it touches still applied to the Legislature of the State, neither his person nor his property; but simply which is known as the General Court. If ap- divests him of his political capacity. (Story, plied to the Senate it must be interpreted by Commentaries, Vol. I, sec. 803.) All this seems the Constitution, and cannot be made in any to have been forgotten by certain persons on, respect a source of power or a. constraints the present- trial, who, assuming that impeach 960' ment was a proceeding "according to law," this also the President is expelled. Salus have treated the Senate to the technicalities populi suprema lex. The proceedings in each of the law, to say nothing of the law's delay. case must be in subordination to this rule. As we discern the true character of impeach- There is one formal difference, under the ment under our Constitution we shall be con- Constitution, between the power to expel a strained to confess that it is a political pro- Senator and the power to expel the Presiceeding, before a political body, with political dent. The power to expel a Senator is unlimpurposes; thatitisfoundedonpoliticaloffenses, ited in its terms. The Senate may, "with the proper for the consideration of a political body concurrence of two thirds, expel a member," and subject to a political judgment only. Even nothing being said of the offense; whereas the in cases of treason and bribery the judgment President can be expelled only "for treason, is political, and nothing more. If I were to bribery or other high crimes and misdemeansum up in one word the object of impeachment ors." A careful inquiry will show that, under under our Constitution, meaning that which it the latter words, there is such a latitude as to has especially in view, and to which it is prac- leave little difference between the two cases. tically limited, I should say expulsion from This brings us to the question of impeachable office. The present question is, Shall Andrew offenses. Johnson, on the case before the Senate, be expelled from office? POLITICAL OFFENSES ARE IMPEACHABLE OFFENSES. Expulsion from office is not unknown to our So much depends on the right understanding proceedings. By the Constitution a Senator of the character of this proceeding, that even may be expelled with " the concurrence of two at the risk of protracting this discussion, I canthirds;" precisely as a President may be ex- not hesitate to consider this branch of the subpelled with I" the concurrence of two thirds." ject, although what I have already said may n each of these cases the same exceptional render it superfluous. What are Impeachable vote of two thirds is required. Do not the Offenses has been much considered in this trial two illustrate each other? From the nature and sometimes with very little appreciation of of things they are essentially similar in char- the question. Next to the mystification from acter, except that on the expulsion of the Pres- calling the Senate a court has been the other ident the motion is made by the House of mystification from not calling the transgressions Representatives at the bar of the Senate, while of Andrew Johnson impeachable offenses. on the expulsion of a Senator the motion is It is sometimes.boldly argued, that there can iMade by a Senator. And how can we require be no impeachment under the Constitution of a technicality of proceeding in the one which the United States, unless for an offense defined is rejected in the other? If the Senate is a and made indictable by an act of Congress; court, bound to judicial forms on the expul- and, therefore, Andrew Johnson must go free, sion of the President, must it not be the same unless it can be shown that he is such an ofon the expulsion of a Senator? But nobody fender. But this argument mistakes the Conattributes to it any such strictness in the latter stitution and also mistakes the whole theory of case. Numerous precedents attest how, in impeachment. dealing with its own members, the Senate has It mistakes the Constitution in attributing to sought to do substantial justice without refer- it any such absurd limitation. The argument ence to forms. In the case of Blount, which is this. Because in the Constitution of the is the first in our history, the expulsion was on United States there are no common-law crimes, the report of a committee, declaring him therefore, there are no such crimes on which "guilty of a high misdemeanor, entirely in- an impeachment can be maintained. To this consistent with his public trust and duty as a there are two answers on the present occasion; Senator." (Annals of Congress, Fifteenth first, that the District of Columbia, where the Congress, 1797, page 44.) At least one Sen- President resides and exercises his functions, ator has been expelled on simple motion, even was once a part of Maryland, where the comwithout reference to a committee. Others have mon law prevailed; that when it came under been expelled without any formal allegations the jurisdiction of the United States it brought or formal proofs. with it the whole body of the law of Maryland, There is another provision of the Constitu- including the common law, and that at this day tion, which overrides both cases. It is this: the common law of crimes is still recognized' each House may determine its rules of pro- here. But the second answer is stronger still. ceeding." The Senate on the expulsion of its By the Constitution expulsion from office is own members has already done this practically "on impeachment for and conviction of treaand set an example of simplicity. But it has son, bribery, or other high crimes and misdethe same power over its " rules of proceeding" meanors;" and this, according to another on the expulsion of the President; and there clause of the Constitution, is "the supreme can be no reason for simplicity in the one case law of the land." Now, when a constitutional not equally applicable in the other. Technic- provision can be executed, without superadded ality is as little consonant with the one as with legislation, it is absurd to suppose that such the other. Each has for its object the Public superadded legislation is necessary. Here the &Sfety. For this the Senator is expelled; for provision executes itself without any reenact 961 ment; and as for the definition of " treason" and justice, honesty and utility, as well as in legal"bribery" we resort to the common law, so ity, may be the ground of impeachment; and for the definition of " high crimes and misde- the administration should in all great matters meanors" we resort to the Parliamentary Law of policy be subject to the two Houses of Parand the instances of impeachment by which it liament; the House of Commons to impeach is illustrated. And thus clearly the whole tes- and the House of Lords to try. Here again timony of English history enters into this case the case of Andrew Johnson is provided for. with its authoritative law. From the earliest Our best American lights are similar in text-writer on this subject (Woodeson, Lec- character, begining with the Federalist itself. tures, Vol. II, p. 601,) we learn the undefined According to this authority impeachment is for and expansive character of these offenses; and "those offenses which proceed from the misthese instances are in point now. Thus, where conduct of public men, or, in other words, from a lord chancellor has been thought to put the the abuse or violation of some public trust; great seal to an ignominious treaty; a lord ad- and they may with peculiar propriety be deemed miral to neglect the safeguard of the seas.; an political, as they relate to injuries done immeambassador to betray his trust; a privy coun- diately to society itself." (No. 65.) If ever cillor to propound dishonorable measures; a injuries were done immediately to society itself; confidential adviser to obtain exorbitant grants if ever there was an abuse or violation of public or incompatible employments, or where any trust; if ever there was misconduct of a public magistrate has attempted to subvert the funda- man;-all these are now before us in the case mental law or introduce arbitrary power; all of Andrew Johnson. The Federalist has been these are high crimes and misdemeanors, ac- echoed ever since by all who have spoken with cording to these precedents by which our Con- knowledge and without prejudice. First came stitution must be interpreted. How completely the respected commentator, Rawle, who specithey cover the charges against Andrew John- fies among causes of impeachment "the fondson, whether in the formal accusation or in the ness for the individual extension of power;' long antecedent transgressions to which I shall " the influence of party and prejudice; " "' the soon call attention as an essential part of the seductions of foreign States;" the baser appecase, nobody can question. tite for illegitimate emolument;" and "the Broad as this definition may seem, it is in involutions and varieties of vice too many and harmony with the declared opinions of the best too artful to be anticipated by positive law;" minds that have been turned in this direction. all resulting in what the commentator says are Of these none so great as Edmund Burke, who, " not inaptly termed political offenses." (Page as manager on the impeachment of Warren 19.) Andthus Rawle unites with the Federalist Hastings, excited the admiration of all by the in stamping upon impeachable offenses the varied stores of knowledge and philosophy, epithet "political." If in the present case illumined by the rarest eloquence, with which there has been on the part of Andrew Johnsonhe elucidated his cause. These are his words: no base appetite for illegitimate emolument and "It is by this tribunal that statesmen who abuse no yielding to foreign seductions, there has been their power are tried before statesmen and by states- most notoriously the influence of party and premen, upon solid principles of State morality. It is here judice, also ton unprecedented degree an that those who by an abuse of power have polluted the udice, an unprecedented degree an inspirit of all laws can never hope for the least protection dividual extension of power, and an involution from any of its forms. It is here that those who have and variety of vice impossible to be anticipatedi refused to conform themselves to the protection of law y positive l aw, all of which, in gross or in detail can never hope to escape through any of its defects." [Bond, Speeches on Trial of Hastings. vol. 1 p. 4. is impeachable. Here it is in gross. Then The value of this testimony is not diminished comes Story, who writingwith the combined tesbecause the orator spoke as a manager. By a timony of English and American history before professional license an advocate may state him and moved onlyby a desire of truth, records opinions which are not his own; but a man- his opinion with all the original emphasis of ager cannot. Representing the House of Rep- the Federalist. His words are like a judgment. resentaties and all the people, he speaks with According to him the process of impeachment the responsibility of a judge, so that his words is intended to reach "personal misconduct, or may be cited hereafter. In saying this I but gross neglect, or usurpation or habitual disrefollow the claim of Mr. Fox. Therefore, the gard of the public interests in the discharge of words of Burke are as authoritative as beautiful. the duties of political office;" and the comIn different but most sententious terms, Mr. mentator adds that it is "to be exercised over Hallam, who is so great a light in constitu- offenses committed by public men in violation tional history, thus exhibits the latitude of of their public trust and duties;" that " the impeachment and its comprehensive grasp: offenses to which it is ordinarily applied are "A minister is answerable for the justice, the hon- of a political character;" and that strictly esty, the utility of all measures emanating from the speaking " the power partakes of a political Crown, as wellas their legality; and thus the Executive character."' (Story's Commentaries, vol. 2, administration is or ought to be subordinate in all great ~746, 764.) Every word here is like an Xgis matters of policy to the superintendence and virtual control of the two Houses of Parliament."-Hallam, for the present case. The later commentator, Constitutional History, vol. 2, chap.-. Curtis, is, if possible, more explicit even than Thus, according to Hallam, even a failure in Story. According to him an "impeachment C. I. —61. 962 is not necessarily a trial for crime," "its pur- and yet this obvious distinction is constantly poses lie wholly beyond the penalties of the disregarded. The authorities, whether English statute or customary law;" and this commen- or American, do not leave this question opeu tator does not hesitate to say-that it is a " pro- to doubt. ceeding to ascertain whether cause exists for An impeachment is not a technical-proceedremoving a ptublic officerfrom office;" and he ing, as at Nisi Prius or in a County:Court, adds that "such cause of removal may exist where the.rigid rules of the common law prewhere no offense against public law has been vail. On the contrary, it is a proceeding accommitted, as, where the individual has, -from cording to Parliamentary Law with rules of its immorality or imbecility, or maladministra- own, unknown in ordinary courts. The formal tion, become unfit to exercise the office." (Cur- statement and reduplication of words, which tis on the Constitution, p. 360.) Here again constitute the stock-in-trade of so many lawthe power of the Senate over Andrew Johnson yers, are exchanged for a broader manner is vindicated, so asto make all doubt or question more consistent with the transactions of actual absurd. life. The precision of history is enough with-I close this question of impeachable offenses out the technical precision of an indictment. by asking you to consider that all the cases, In declaring this rule I but follow a memorable which have occurred in our history, are in con- judgment in a case which occupied the attenformity with the rule, which so many comment- tion of England at the beginning of the last ators have announced. The several trials of century. I refer to the case of the preacher Pickering, Chase, Peck, and Humphreys ex- Sacheverell, impeached of high crimes -and hibit its latitude in different forms. Official misdemeanors on account of two sermons, in misconduct, including in the case of Chase which he.put forth the doctrine of non-resistand Humphreys offensive utterances, consti- ance and denounced the revolution of 1688, tuted the high crimes and misdemeanors for bywtich English libertywas-saved. Afterthe which they were respectively arraigned. These arguments on both sides, thejudges on questions are precedents. Add still further, that Madi- from the Lords answered that by the law of son, in debate on the appointing power, at England and constant practice "the particular the very beginning of our Government said: words supposed to be criminal ought to be spe"II contend that the wanton removal of merito- cified in indictments.":And yetin face of this rious officers would subject the President to declaration, by the judges of England, of a impeachment and removal from his own high familiar and indisputable rule of the common trust." (Elliot's Debates, vol. 4, p. 141.) But law we have the rule of Parliamentary Law, Andrew Johnson, standing before a crowd, said which was thus set forth: of meritorious officers that "' he would kick f meritorious officers that "he would kick "It is resolved bythe Lords spiritual and temporal them out," and forthwith proceeded to execute in Parliament assembled, that by-tho law and usage his foul-mouthed menace. How small was all of Parliament in prosecutions by impeachments for that Madison imagined; how small was all that high erimes and misdemeanors by writing or speaking, the particular words supposed to be criminal are was spread out in the successive impeachments not necessary to be expressly specified in such impeachof our history, if gathered into one case, com- ments."-Howell's State Trials., vol. 15, p. 467. pared with the terrible mass now before us. The judgment here does not extend in terms -From all these concurring authorities, Eng- beyond the case in hand; but plainly the prin-;lish and American, it is plain that impeach- ciple announced is that in impeachments the ment is a power broad as the Constitution technicalities of the common law are out of itself, and applicable to the President, Vice place, and the proceedings are isubstantially President, and all civil officers through whom according to the rule of reason. A mere techthe Republic suffers or is in any way imper- nicality, much more a quibble, such as is often illed. Show me an act of evil example or in- so efficacious on a demurrer, is a wretched fluence committed by a President and I show anachronism when we are considering a quesyou an impeachable offense which becomes tion of history or political duty. Even if tolgreat in proportion to the scale on which it is erated on the impeachment of an inferior funcdone and the consequences which are menaced. tionary, such a resort must be disclaimed on the The Republic must receive no detriment; and trial of a Chief Magistrate, involving the public impeachment is one of the powers of the Con- safety. stitution by which this sovereign rule is main- The technicalities of the law were made for tained. protection against power, not for the imrnmuTJNTECHNICAL FORM OF PROCEDURE. nity of a usurper or a tyrant. They are reThe Form of Procedure is a topic germane to spectable when set up for the safeguard of the the last head and helping to illustrate it. Al- weak; but they are out-of place on impeachready it has been noticed in considering the ments. Here again I cite Edmund Burke: political character of impeachment; but it " God forbid —that those who cannot defend themdeserves further treatment by itself. Here we selves upon their merits and their actionsmay defend meet the same latitude. It is natural that the themselves behind those fences and intrenchments trial of political offenses, before a political that are made to secure the liberty of the peopled that power and the abuses of power should cover body, with a political judgment only, should themselves by those things which were made toeseRure have:less of form than a trial at common law; liberty." —Bond's Trial of Hastings, v61 I,rp.10. 193 Never was there a case where:this principle artificial rule to shut out the truth. It would belonging to the law of impeachment, -was more allow no such thing on the expulsion of a Senapplicable than now. ator. How can it allow any such thing on the The origin of impeachment in our -own Con- expulsion of a President? On this account I stitution and contemporary authority vindicate voted to admit all evidence that was offered this very latitude. One of the apologists sought during the trial, believing, in the first place, to sustain himself in an argument against this that it ought.to be heard and considered; and, latitude, by insisting that it was with much hes- in the second place, that even if it were shut itation, and only at the last moment that this out from these proceedings, it could-not be shut jurisdiction over impeachment was originally out from the public or be shut out from history, conferred on the Senate. This is a mistake, both of which must bethe ultimate judges. On as will appear from a simple statement. The the impeachment of Prince Polignac and his proposition to confer this jurisdiction on the colleagues of the Cabinet, in 1830, for signSupreme Court was made before it had been ing the ordinances which cost Charles X his determined that the judges should be-appointed throne, some forty witnesses were sworn withby the President with the advice and consent of out objection, in a brief space of time, and no the Senate. The latter conclusion was reached testimony was excluded. An examination of by a unanimous vote of the Convention Sep- the two volumes entitled Proces des Dernmiece tember 7, 1787. On the next day, September Missistres de Charles Xwill confirm what I say. 8, Roger Sherman-raised the objection that This example was to my mind not unworthy the Supreme Court was "improper to try of imitation on the present occasion. the President because the judges would be There are other rules, which it is not too appointed by him.'. This objection prevailed, late to profit by. One of these r6lates to the and the trial was at once intrusted to the Sen- burden of proof and is calculated to have a ate by the vote of all the States with one ex- practical bearing. The other relates to matters ception; and then immediately thereafter, on of which the Senate will take cognizance withthe same day, the scope of impeachment was out any special proof, thus importing into the extended from treason to bribery," so as to case unquestionable evidence, which explains embrace " other high crimes and misdemean- and aggravates the transgressions charged. ors,)" and thus intrusted and.thus enlarged it (1.) Look carefully at the object of this trial. was made to embrace "the:Vice President, Primarily it is for the expulsion of the:Presiand other civil officers of the United States." dent from office. Its motive is not punishFrom this simple narrative it appears that, ment, not vengeance, but the Public Safety. while the Supreme Court, a judicial body, was Nothing less than this could justify the pondercontemplated for thetrial of impeachments, the ous proceeding. It will be for the criminal jurisdiction was restrained to two well-known courts to award the punishment due to his ofcrimes at common law, which have since been fenses. The Senate considers only how the defined by statutes of the United States; but safety of the people, which is the supreme law, this jurisdiction, when confided to the Senate, can be best preserved; and to this end the a political body, was extended to political ordinary rule of evidence is reversed. If on offenses, in the trial of which a commensurate any point you entertain doubts, the benefit of discretion followed from the nature of the case. these doubts must be given toyour country; and It was in this light that the proceeding was this is the supreme law. When tried on an explained by the Federalist, in words which indictment in the criminal courts Andrew Johnshould be a guide to us now: son may justly claim the benefit of your doubts;' The nature of the proceeding can never be tied but at the bar of the Senate on the question down by such striet rules, either in the delineation of of his expulsion from office, his vindication the offense by the prosecutors or in the construction must be in every respect andon each charge of it by the judges, as in common cases serve to limit g the discretion of courts in favors of personal secur- beyond a doubt. He must show that his longer ity."-Federalist, No. 65. continuance in office is not inconsistent with This article was by Alexander:Hamilton, the Public Safety: writing in concert with James Madison and Or, at least so prove it, That the probation bear no hinge or loop John Jay. Thus by the highest authority at To han probation bear no hinge or loop the adoption of the Constitution we find that Anything short of this is to trifle with the impeachment " can never be tied down by strict rules," and that this latitude is applicable to blic an it transcendent fortunes "the delineation of the offense," meaning " the delineation of the offense," i meaning It is by insisting upon doubts that the apolothereby the procedure or pleading, and also to gists of the President, at the bar and in the the "construction of the offense," in both of Senate, seek to save him. For myself, I can which cases the " discretion" of the Senate see none such, but assuming that they exist, is enlarged beyond that of ordinary courts. then should they be marshaled for our country. This is not a criminal trial, where the aRULES OFr EVIDENGE. rule prevails; better that many guilty men From the form of procedure I pass to the should escape than one innocent man should Rules of Evidence; and here again the Senate suffer. This rule, which is so proper in its must avoid all technicalities and not allow any place, is not applicable to a proceeding for 964 expulsion from office; and who will undertake on which the impeachment is founded. It was to say that any claim of office can be set against in this Chamber, in the face of the Senate and the Public Safety? the ministers of Foreign Powers, and surIn thus stating the just rule of evidence, I rounded by the gaze of thronged galleries, do little more than apply those time-honored that Andrew Johnson exhibited himself in maxims of jurisprudence which require that beastly intoxication while he took his oath of every interpretation shall be always in favor office as Vice President; and all that he has of Liberty. Early in the common law, we done since is of record here. Much of it apwere told that he is to be adjudged impious pears on our Journals. The rest is in authenand cruel who does not favor Liberty; Impius tic documents published by the order of the et crudelis judicandus est qui libertati non Senate. Never was a record more complete. favet. Blackstone, whose personal sympa- Here in the Senate we know officially how he thies were with power, is constrained to con- has made himself the attorney of slavery-the fess that " the law is always ready to catch at usurper of legislative power-the violator of anything in favor of Liberty." (Blackstone's law-the patron of rebels-the helping hand of Commentaries, vol. 2, p. 94.) But Liberty rebellion-the kicker from office of good citiand all else are contained in the Public Safety; zens-the open bung-hole of the Treasurythey depend on the rescue of the country from the architect of the'whisky ring"-the stuma presidential usurper. Therefore, should we bling-block to all good laws by wanton vetoes now, in the name of the law, " catch at any- and then by criminal hinderances; all these thing" to save the Republic. things are known here beyond question. To the (2.) There is another rule of evidence, which, apologists of the President who set up the quibthough of common acceptance in the courts, bling objection that they are not alleged in the has peculiar value in this case, where it must articles of impeachment, I reply, that, even if exercise a decisive influence. It is this: excluded on this account from judgment, they Courts will take judicial cognizance of certain may be treated as evidence. - They are the resmatters, without any special proof on the trial. ervoir from which to draw in determining the Some of these are of general knowledge and true character of the latter acts for which the others are within the special knowledge of the President is arraignedpand especially the intent court. Amongthese, accordingto expressdecis- by which he was animated. If these latter ion, are the frame of Government and the public acts were alone, without connection with the officers administering it; the accession of the transgressions of the past, they would have Chief Executive; the sitting of Congress and its remained unnoticed. Impeachment would not usual course of proceeding; the usual course have been ordered. It is because they are a pf travel; the ebbs and flows of the tide; also prolongation of that wickedness under which whatever ought to be generally known within the country has so long suffered, and spring the limits of the jurisdiction, including the from the same bloody fountain, that they are history of the country. Besides these matters now presented for judgment. They are not of general knowledge a court will take notice alone; nor can they be faithfully considered of its own records, the conduct of its owni offi- without drawing upon the past. The story of cers, and whatever passes in its ownpresence or the God Thor in Scandinavian mythology is under its own eyes. For all this I cite no au- revived, whose drinking-horn could not be thority; it is superfluous. I add a single illus- drained by the strongest quaffer, for it comtration from the great English commentator: municated with the vast and inexhaustible "If a contempt be committed in the face of ocean. Andrew Johnson is our God Thor, the court, the offender may be instantly appre- and these latter acts for which he stands imhended and imprisoned, at the discretion of peached are the drinking-horn whose depths the judges, without any further proof or exam- are unfathomable. ination." (Blackstone's Commentaries, vol. ~4, p. 286.) a OUTLINE OF TRANSGRESSIONS OF ANDREW JOHNSON. If this be the rule of courts, a fortiori, it From this review of the character of this promust be the rule of the Senate on impeach- ceeding, showing how it is political in characments; for we have already seen that, when ter-before a political body-and with a politsitting for this purpose, the Senate enjoys a ical judgment, being expulsion from office and latitude of its own. Its object is the Public nothing more; then how the transgressions of Safety, and, therefore, no aid for the arrival the President, in their protracted line, are emat truth can be rejected. No gate can be braced under "' impeachable offenses;" then closed. But here is a gate opened by the sages how the form of procedure is liberated from of the law and standing open always, to the the ordinary technicalities of the law; and end that justice may not fail. lastly how unquestionable rules of evidence Applying this rule to the present proceed- open the gates to overwhelming testimony, I,ing, it will be seen at once how it brings be- pass now to the consideration of this overfore the Senate, without any further evidence, whelming testimony and how the present ima long catalogue of crime, affecting the char- peachment became a necessity. I have already acter of the President beyond all possibility of called it one of the last great battles with efense, and serving to explain the latter acts Slavery. See now how the battle began. 965 Slavery in all its pretensions is a defiance gress." On two separate occasions, in July of law; for it can have no law in its support. and September, 1865, he confessed the power Whoso becomes its representative must act of Congress over the subject; but when Conaccordingly; and this is the transcendent crime gress came together in December, this conof Andrew Johnson. For the sake of Slavery fesser of congressional power found that he and to uphold its original supporters in their alone had this great prerogative. According to endeavors to continue this wrong under another his new-fangled theory, Congress had nothing name, he has set at defiance the Constitution to do but admit the States with the governand laws of the land, and he has accom- ments which had been instituted through his panied this unquestionable usurpation by bru- will alone. It is difficult to measure the vasttalities and indecencies in office without pre- ness of this usurpation, involving as it did a cedent, unless we go back to the Roman em- general nullification. Strafford was notbolder, peror fiddling, or the French monarch dancing when, speaking for Charles I, he boasted that among his minions. This usurpation with its "the little finger of prerogative was heavier brutalities and indecencies became manifest as than the loins of the law;" but these words long ago as the winter of 1866, when, being helped the proud minister to the scaffold. No President, and bound by his oath of office to monarch, no despot, no Sultan, could claim preserve, protect, and defend the Constitution more than an American President; for he and to take care that the laws are faithfully claimed all. By his edict alone governments executed, he took to himself legislative powers were organized, taxes were levied, and even the in the reconstruction of the rebel States, and, franchises of the citizen were determined. in carrying forward this usurpation, nullified Had this assumption of power been inan act of Congress, intended as the corner- cidental, for the exigency of the moment, as stone of reconstruction, by virtue of which under the pressure of war, and especially to rebels are excluded from office under the Gov- serve the cause of Human Rights to which beernment of the United States, and thereafter, fore his elevation the President had professed in vindication of this misconduct, uttered a such loud-mouthed devotion, it might have scandalous speech in which he openly charged been pardoned. It would have passed into the members of Congress with being assassins, and chapter of unauthorized acts whigh a patriot mentioned some by name. Plainly he should people had condoned. But it was the oppohave been impeached and expelled at that early site in every particular. Beginning and conday. The case against him was complete. That tinuing in usurpation, it was hateful beyond great patriot of English history, Lord Somers, pardon, because it sacrificed the rights of has likened impeachment to Goliath's sword Unionists, white and black, and was in the inhanging in the temple to be taken down only terest of the rebellion and of those very rebels when occasion required; but if ever there was who had been in arms against their country. an occasion for its promptest vengeance it was More than one person was appointed Prothen. Had there been no failure at that time visional Governor, who could not take the we should be now nearer by two years to res- oath of office required by act of Congress. toration of all kinds, whether political or finan- Other persons in the same predicament were cial. So strong is my conviction of the fatal appointed in the revenue service. The effect remissness of the House, that I think the Sen- of these appointments was disastrous. They ate would do a duty in strict harmony with its were in the nature of notice to rebels everyconstitutional place in the Government, and where, that participation in the rebellion was the analogies of judicial tribunals so often ad- no bar to office. If one of their number could deced, if it reprimanded the House of Repre- be appointed Governor, if another could be sentatives for this delay. Of course the Senate appointed to a confidential position in the could not originate an impeachment. It could Treasury Department, then there was nobody not take down the sword of Goliath. It must on the long list of blood who might not look wait on the House, as the court waits on the for preferment. And thus all offices, from Grand Jury. But this waiting has cost the Governor to constable, were handed over to a country mrore than can be told. disloyal scramble. Rebels crawled forth from Meanwhile the President proceeded in his their retreats. Men who had hardly ventured transgressions. There is nothing of usurpa- to expect their lives were now candidates for tion which he has not attempted. Beginning office, and the Rebellion became strong again. with an assumption of all power in the rebel The change was felt in all the gradations of States, he has shrunk from nothing in the government, whether in States, counties, towns, maintenance of this unparalleled assumption. or villages. Rebels found themselves in places This is a plain statement of fact. Timid at of trust, while the true-hearted Unionists, who first he grew bolder and bolder. He saw too had watched for the coming of our flag and well that his attempt to substitute himself for ought to have enjoyed its protecting power, Congress in the work of reconstruction was were driven into hiding-places. All this was sheer usurpation, and, therefore, by his Secre- under the auspices of Andrew Johnson. It was tary of State, did not hesitate to announce that he who animated the wicked crew. He was at " it must be distinctly understood that the res- the head of the work. Loyalty everywhere was toration will be subject to the decision of Con- persecuted. White andblackwhose only offense was that they had been true to- their country, whom; a new organization, known as. the *ere insulted, abused, murdered. There was "Whisky Ring," has been able to prevail over no safety for the loyal man except within the the Government, and to rob the Treasury of flash of our bayonets. The:story is as authentic millions, at the cost of tax-paying citizens, as hideous. More than two thousand murders: whose burdens are thus'increased. Laws enhave been reported in Texas alone since the- acted by Congress for the benefit of the colored; surrender of Kirby Smith. In other States race, including that great statute for the estabthere was a similar carnival. Property, person0 lishment of the Freedman's Bureau, and that life, were all in jeopardy. Acts were done " to other great statute for the establishment of make a holiday in Hell." At New Orleans civil rights, were first.attacked by his veto,: there was a fearful massacre, which, consider- and when finally passed by the requisite maing the age and the place, was worse than that jority over his veto were treated by him as of St. Bartholomew, which darkens a century little better than dead: letters, while he boldly of France, or that of Glencoe, which has printed attempted to prevent the adoption of a constiIn ineffaceable stain upon one of the greatest tutional amendment by which the right of citireigns of English history. All this is directly zeus and the national debt were placed: under traced to Andrew Johnson. The words of the guarantee of irrepealable law. During bitterness uttered at another time are justified, these successive-assumptions, usurpations,.and while Fire,Famine,and Slaughter shriek forth- tyrannies, utterly without precedent in- our his"He let me loose, and cried Hallool tory,: this deeply guilty man ventured upon To him alone the praise is due." public speeches, each an offense to good- moraCCUMULTION OF IMPECHBLE OFFENSES s, where, lost to all shame,: he appealed in coarse words to the coarse passions of the This is nothing but the outline, derived from coarsest people-scattering firebrands of sedi, historic sources which the Senate on: this occa:- tion-infaminganew therebel spirit-insulting sion is bound to recognize. Other acts fall good citizens, and, with regard to office-holdwithin the picture. The officers he had ap- ers, announcingin his own characteristic phrase pointed in'defiance of law were paid also in that he would "kick them out"-the whole the same defiance. Millions of property were succession of speeches being from their brutalturned over without consideration to railroad ities and indecencies in.the nature of a " erimcompanies, whose special recommendation was inal exposure of his: person,-' indictable at their participation in the rebellion. The common law, for which no judgment can be too Freedman's Bureau, that sacred charity of the severe; but even this revolting transgression is Republic, was despoiled of its possessions for aggravated when it is considered that through the sake of rebels, to whom their forfeited these utterances the cause of justice was irnestates were given back after they had been periled and the accursed demon- of civil feud vested by law in the United States. The pro- was lashed again into vengeful fury.. All these ceeds of captured and abandoned property, things from beginning to end are plain facts, lodged under the law in the national Treasury, already recorded in history and know.n to all. were ravished from their place of deposit and And it is further recorded in history, and sacrificed. Rebels were allowed to fill the ante- known: to all, that, through these enormities, chambers of the Executive Mansion and to any one of which is enough for condemnation, enter into his counsels. The pardoning power while all together present an aggregation of was prostituted, and'pardons were issued in lots crime, untold calamities havebeen broughtupon to suit rebels, thus grossly abusing that trust our country; disturbing business and finance; whose discreet exercise is so essential to the. diminishing the national revenues; postponing administration of justice. The powers of the specie payments; dishonoring the Declaration Senate over appointments were trifled with and of Independence in its grandest truths; arrestdisregarded, by reappointing persons who had ingthe restoration of the rebel States; reviving been already rejected, and by refusing to com- the dying rebellion;: and instead of that peace municate the names of others appointed by and reconciliation so much longed for, sowing him during the recess. The veto power, con- strife and wrong, whose natural. fruit, is vioferred by the Constitution as a remedy for ill- lence and blood. considered legislation, was turned by him into a weapon of offense against Congress and into din instrument to beat down the just opposition For all of these or any one of them Andrew Which his usurpation had aroused. The power Johnson should have been impeached and exof removal, which patriot Presidents had ex- pelled from office. The case required a stateercised so sparingly, was seized as an engine ment only; not an argument. Unhappily this of tyranny and openly employed to maintain was not done. Asa petty substitutefor thejudghis wickedt purposes by the sacrifice of good ment which should have been pronounced and citizens, who would not consent to be his tools. as a bridle on presidential tyranny in "kicking Incompetent and dishonest creatures, whose out of office," Congress enacted a law known only recommendation was that they echoed his as the Tenure-of-Office Act, passed. March 2, voice, were appointed to office, especially in -1867, over his veto by the vote of two thirds: of the collection of theinternal Revenue, through both Houses.~ And, in 6rder to prepare the 967 way forimpeachment, by removing certain scru- its moving cause. The articles themselves ples of technicality, its violation was expressly are narrow if not technical. But they are filled declared to be a high misdemeanor. The and broadened by the transgressions of the President began at once to chafe under its past, all of which enter into the present restraint. offenses. The whole is an unbroken series Recognizing the act and following its terms with a common life. As well separate the he first suspended Mr. Stanton: from office, Siamese twins as separate the offenses now and then, on his restoration by the Senate, charged from that succession of antecedent made an attempt to win General Grant into a crimes with which they are linked, any one of surrender of the Department, so as to oust Mr. which is enough for judgment. The present Stanton and to render the restoration by the springs from the past and can be truly seen Senate ineffectual. Meanwhile Sheridan in only in its light, which in this case is nothing Louisiana, Pope in Alabama, and Sickles in less than " darkness visible." South Carolina, who, as military commanders, ARTICLES OF IMPEACHMENT. were carrying into the pacification of these States all the energies which had been so bril- In entering upon the discussion of the artiliantly displayed in the war, were pursued by cles of impeachment, I confess my regret that liantly displayed in the war, were pursued by the same vindictive spirit. They were removed so great a cause, on which so much depends,, should be presented on such narrow ground, by the President, and rebellion throughout that although I annot doubt that the whole past whole region clapped its hands. This was done although I ca intholeregionclapped its hands. This wasdone must be taken into consideration in determinin theexercise ofn his powers as Commander- ing the character of the acts alleged. If there in-Chief. At'last, in his unappeased rage, he has been a violation of the Constitution and openly violated the Civil-Tenure Act, so as to laws, the apologists of the President then inbring himself under its judgment, by the defiant attempt to remove Mr. Stanton from the War sist that all was done with good intentions. In Department without the consent of the Senate reply to this it is enough if we point to the and. the appointment of Lorenzo. Thomas, Ad- past, which thus becomes a part of the case. jutant General of the United States, as Secre- But of this hereafter. It is unnecessary for me tary of War ad interim. to take tirqe in setting forth the articles. The abstract already presented is ernugh. They IMePEaACI MENT AT LAST. will naturally come under review before the The Grand Inquest of the nation, which close of the inquiry. had slept on so many enormities, was awakened Of the transactions embraced by the articles, by this open defiance. The gauntlet was flung the removal of Mr. Stanton has unquestionably into its very Chamber, and there it lay on the attracted the most attention, although I cannot floor. The President, who had alreadyclaimed doubt that the scandalous harangues are as everything for the Executive with impunity, justly worthy of condemnation. But the former now rushed into conflict with Congress on the has been made the pivot of this impeachment. very ground selected in advance by the latter. So much so that the whole case seems to reThe field was narrow, but sufficient. There volve on this transaction. Therefore, I shall was but one thing for the House of Represent- not err, if, following the articles, I put this atives to do. Andrew Johnson: must be im- foremost in the present inquiry. peached, or the Tenure-of-Office Act would This transaction may be brought to the touchbecome a dead letter, while his tyranny~ would stone of the Constitution, and also of the tenreceive a letter of license, and impeachment ure-of-office act. But since the allegation of as a remedy for wrong-doing would be blotted a violation of this act has been so conspicuous, from the Constitution. and this act maybe regarded as a congressional Accordingly it wasresolved that the offendter interpretation of the power of removals under whose crimes had so long escaped judgment, the Constitution, I begin with the considerashould be impeached. Once entered upon this tion of the questions arising under it. work, the House of Representatives, after setting forth the removal of Mr. Stanton and the appointment of General Thomas in viola- The general object of the tenure-of-office act tion of the law-and Constitution, proceeded was to protect civil officers from removal withfurther to charge him in different forms with out the advice and consent of the Senate; and conspiracy wrongfully to get possession of the it was made in express terms applicable to War Department; also with an attempt to cor- every person holding any civiloffice to which rupt General Emory and induce him to violate an act of Congress; also~ with L- scandalous and consent of the Senate.," To this provision, speeches, such as no President could be justi- so broad in its character, was appended a profled in making; concluding with: a general visoasfollows: article setting forth attempts on his part to pre- "Psur. ofided, Thatof the Secretyariesd of Stante, of the vent the execution of certain acts of Congress. the Postmaster General, and the Attorney General Such is a simple narrative, which brings us shall hold their offices'respectively for and during the to the- Articles of Impeachment. Nothing that tem of the President by whom they may have been appointed and for one month thereafter, subject to I have said thus far is superfluous; for it shows removal: by and with the advice and consent of the the origin of this, proceeding, and illustrates Senate." 968 As this general protection from removal with- question would have arisen but for the hasty out the advice and consent of the Senate might words of the Senator from Ohio, [Mr. SHERbe productive of embarrassment during the re- MAN,] so often quoted in this proceeding. cess of the Senate it was further provided, in a Unquestionably the Senator from Ohio.when second section, that during such recess any the report of the conference committee of the person may be suspended from office by the two Houses was under discussion, stated that President on reasons assigned, which it is made the statute did not protect Mr. Stanton in his his duty to report to the Senate within twenty office; but this was the individual opinion of days after the next meeting of the Senate, and this Senator, and nothing more: On hearing it if the Senate concurs, then the President may I cried from my seat, " The Senator must speak remove the officer and appoint a successor; for himself; " for I held the opposite opinion. but if the Senate does not concur then the It was clear to my mind that the statute was suspended officer shall forthwith resume his intended to protect Mr. Stanton, and that it functions. did protect him. The Senator from Oregon, On this statute two questions arise, first'as [Mr. WILLIAMS,] who was the chairman of the to its constitutionality, and secondly, as to its conference committee and conducted its delibapplication to Mr. Stanton, so as to protect erations, informs us that there was no suggeshim from removal without the advice and con- tion in the committee that the statute did not sent of the Senate. It is impossible not to protect all of the President's Cabinet, includconfess in advance that both have been already ing, of course, Mr. Stanton. The debates in the practically settled. The statute was passed House of Representatives are the same way. over the veto of the President by a vote of two Without undertaking to hold the scales in which thirds, who thus solemnly united in declaring to weigh any such conflicting opinions, I rest its constitutionality. Then came the suspen- on the received rule of law that they cannot be sion of Mr. Stanton, and his restoration to office taken into account in determining the meaning by a triumphant vote of the Senate, being no of the statute. And here I quote the judgment less than thirty-five to six, thus establishing of the Supreme Court of the United States, not only the constitutionality of the statute, but pronounced by Chief Justice Taney: also its protecting application to Mr. Stanton. "In expounding thiidaw, the judgment of the court And then came the resolution of the Senate, cannot in any degree be influenced by the construction adopted after protracted debate on the 21st placed upon it by individual members of Congress in the February, by a vote of twenty-seven to six, de- tives or rea ce on its passage, nor by the moclaring, that under the Constitution and laws opposing amendments that were offered. The law of the United States the President has no power that passed is the will of the majority of both Houses to remove the Secretary of War and to desig- and the only mode in which that will is spoken is in to remove the Scretry ofWar nd todesi - the act itself; and we must gather their intention nate any other officer to perform the duties of from the language there used, comparing it, when that office ad inter im; thus, for the third time any ambiguity exists, with the laws upon the same affirming the constitutionality of the statute, subject, and looking, if necessary. to the public history afirming the constitutionality of the times in'whichit was passed.-Aldridge vs. Wiland, for the second time, its protecting appli- liam8s, 3 Howard's Reps., 24. cation to Mr. Stanton. There is no instance It is obvious to all acquainted with a legisin our history where there has been such a lative body that the rule thus authoritatively succession of votes, with such large majorities, declared is the only one that could be safely declaring the conclusions of the Senate and applied. The Senate in construing the present fixing them beyond recall. "Thrice is he statute must follow this rule. Therefore, I armed who hath his quarrel just;" but the repair to the statute, stopping for a moment tenure-of-office act is armed thrice by the votes to glance at the public history of the times, in of the Senate. The apologists of the President order to understand its object. seem to say of these solemn votes, " Thrice Already we have seen how the President, in the brinded cat hath mewed;" but such a three- carrying forward his usurpation in the interest fold record of the Senate cannot be treated of the Rebellion, had trifled with the Senate in with levity. regard to appointments, and abused the traThe question of the constitutionality of this ditional power of removal, openly threatening statute complicates itself with the power of good citizens in office that he would "kick removal under the Constitution; but I shall them out," and filling all vacancies, from high not consider the latter question at this stage. to low, with creatures whose first promise was It will naturally present itself when we con- to sustain his barbarous policy. I do not stop sider the power of removal under the Consti- to portray the extent of this outrage, constitution which has been claimed by the Presi- tuting an impeachable offense according to the dent. For the present I assume the constitu- declared opinion of Mr. Madison, one of the tionality of the statute. strongest advocates of the presidential power of removal. Congress, instead of adopting the ITS APPLICATION TO MR. STANTON. remedy suggested by this father of the ConstituI come at once to the question of the appli- tion and expelling the President by process of cation of the statute to Mr. Stanton, so as to impeachment, attempted to wrest from him the protect him against removal without the con- power he was abusing. For this purpose the sent of the Senate. And here I doubt if any Tenure-of-OfficeActwaspassed. Itwasdeemed 969 advisable to include the Cabinet officers within I have no hesitation in saying that no other its protection; but, considering the intimate conclusion is possible without doing violence relations between them and the President, a to the statute. I cannot forget that, while we proviso was appended securing to the latter are permitted "to open the law on doubts," the right of choosing them in the first instance. we are solemnly Warned " not to open doubts Its object was, where the President finds him- on the law." It is Lord Bacon who gives us self, on accession to office, confronted by a this rule, whose obvious meaning is, that where hostile Senate to secure to him this right of doubts do not exist they should not be invented. choice, without obliging him to keep the Cabi- It is only by this forbidden course that any net of his predecessor; and accordingly it says question can be raised. If we look at the statto him, " Choose your own Cabinet, but expect ute in its simplicity, its twofold object is apparto abide by your choice, unless you can obtain ent; first, to prohibit removals; and, secondly, the consent of the Senate to a change." to limit certain terms of service. Th'e proAny other conclusion is flat absurdity. It hibition to remove plainly applies to all. The begins by misconstruing the operative words limitation of service applies only to members of the proviso, that the Cabinet officers " shall of the Cabinet. I agree with the excellent Senhold their offices respectively for and during ator from Iowa [Mr. HARLAN] that this analysis the term of the President by whom they are removes all ambiguity. The pretension that appointed." On its face there is no ambiguity any one of the Cabinet was left to the unchecked here. It is only by going outside that any can power of the President is irreconcilable with be found, and this disappears on a brief in- the concluding words of the proviso, which quiry. At the date of the statute Andrew declares that they shall'be subject to removal Johnson had been in office two years. Some by and with the advice and consent of the Senof his Cabinet were originally appointed by ate;" thus expressly excluding the prerogative President Lincoln; others had been formally of the President..appointedbyhimself. But allwerethereequally Let us push this inquiry still further by lookby his approval and consent. One may do an ing more particularly at the statute, reduced-to act himself, or make it his own by ratifying it a skeleton, so that we may see its bones. It is when done by another. In law it is equally his as follows: act. Andrew Johnson did not originally ap- (1.) Every person holding any civil office, by point Mr. Stanton, Mr. Seward, or Mr. Welles, and with the advice and consent of the Senate, but he adopted their appointments, so that at shall be entitled to hold such office until a sucthe passage of the statute they stood on the cessor is appointed. same footing as if originally appointed by him. (2.) If members of the Cabinet, then during Practically and in the sense of the statute, they the term of the President by whom they may were appointed by him. They were a Cabinet have been appointed and one month thereafter, of his own choice, just as much as the Cabinet unless sooner removed by consent of the Senate. of his successor, duly appointed, will be of Mr. Stanton obviously falls within the genhis own choice. If the statute compels the lat- eral class, "every person holding any civil ter, as it clearly does, to abide by his choice, it office;" and he is entitled to the full benefit is unreasonable to suppose that it is not equally of the provision for their benefit. obligatory onAndrew Johnson. Otherwise we As obviously he falls within the sub-class, find a special immunity for that President whose " members of the Cabinet." misconduct rendered it necessary, and Con- In this latter class his rights are equally clear. gress is exhibited as legislating for some future It is in the discussions under this head that the {unknown President, and not for Andrew John- ingenuity of lawyers has found the amplest son, already too well known. play, mainly turning upon what is meant by Even the presidential apologists do not ques- "term " in the statute. I glance for a moment tion that the members of the Cabinet commis- at some of these theories. sioned by Andrew Johnson are protected by (1.) One pretension is that the "term" exthe statute. How grossly unreasonable to sup- pired with the life of President Lincoln, so that pose that Congress intended to make such a Mr. Stanton is retroactively legislated out of distinction among his Cabinet as to protect office on the 15th May, 1865. As this is a penal those whose support of his usurpation had statute this construction makes it ex postfacto, gained them seats which they enjoyed, while and therefore unconstitutional. It also makes it exposed to his caprice a great citizen, whose Congress enact this absurdity that Mr. Stanton faithful services during the war had won the had for two years been holding office illegally, gratitude of his country, whose continuance in whereas he had been holding under the clearest office was regarded as an assurance of Public legal title, which could no more be altered by Safety, and whose attempted removal has been legislation than black could be made white. A felt as a national calamity. Clearly, then, it construction which makes the statute at once was the intention of the statute to protect the unconstitutional and absurd must be rejected. whole Cabinet, whether originally appointed by (2.) The quibble that would exclude Mr. Andrew Johnson or originally appointed by his Stanton from the protection of the statute, predecessor and continued by him, because he was appointed during the first 970 "term" of President Lincoln, and the statute THE SUSPENSION OF MR. STANTON RECOGNIZED HIM does not speak of "terms," is hardly worthy AS PROTECTED BY THE STATUTE. of notice. It leads to' the same absurd results Here I might close this part of the case; but as follow from the first supposition, enhanced there is still another illustration. In suspendby increasing the retroactive effect. ing Mr. Stanton from office as long ago as (3.) Assuming that the statute does not term- August the President himself recognized that inate Mr. Stanton's right a month after Presi- he was protected by the statute. The facts are dent Lincoln's death, it is insisted that it must familiar. The President, in formal words, untake effect at the earliest possible moment, and dertook to say that the suspension was by virtue therefore on its passage. From this it follows of the Constitution; but this was a dishonest that Mr. Stanton has been illegally in office pretext in harmony with so much in his career. since the 2d March, 1867, and that both he and Whatever he may say, his acts speak louder the President have been' guilty of a violation than his words. In sending notice of the susof law, the former in exercising the duties of pension to the Secretary of the Treasury, and an office to which he had no right, and the then again in sending a message to the Senate latter for appointing him, or continuing him, in- assigning his reasons for the suspension, both office, without the consent of the Senate, in vio- being according' to the requirements of the lation of the Constitution and the statute in statute, he testified that, in his judgment at that question. Here is another absurdity to be time, Mr. Stanton came within its protection. rejected. If not, why thus elaborately comply with its (4.) Assuming, as it is easy to do, that it is requirements? Why the notice to the SecrePiresident Lincolns." term" we have the better tary of the Treasury? Why the reasons to the thlieory, that it did not expire with his life, but Senate? All this was novel and without excontinues until the 4th March, 1869, in which ample. Why write to General Grant of " being event Mr. Stanton is clearly entitled to hold sustained" by the Senate? The approval or. until a month thereafter. This construction is disapproval' of the Senate could make no difentirely: reasonable and in harmony with the ference in the exercise of the power which he Constitution and legislation under it. I con- now sets up. The approval could not confirm fess that it is one to which I have often inclined. the suspension; the disapproval could not reThis brings me back to the construction with store the suspended Secretary of War. In fine, which I began, and I find Andrew Johnson is why suspend at all?' Why exercise the power the President who appointed Mr. Stanton. To of suspension when the President sets up the make this simple, it is only' necessary to read power of removal? If Mr. Stanton was unfit'chosen" for " appointed" in the statute, or, for office and a thorn in his side, why not reif you please, consider the continuance of Mr. move' him at once? Why resort to this long Stanton in: office, with the concurrence of the and untried experiment merely to remove at President, as' a practical appointment equiva- last? There is but one answer. Beyond all lent thereto. Clearly Mr. Stanton was in office question the President thought Mr. Stanton prowhen the statute passed from the "choice" of tected by the statute, and sought to remove him the President. Otherwisehe would have been according to its provisions, beginning, thereremoved. His continuance-was like another fore, with his suspension. Failing in this, he commission. This carries out the intention; of undertook to remove him in contravention of the framers of the statute, violates no sound the statute, relying in justification on his precanoni of construction, and is entirely reason- tension to judge of its constitutionality or the able in every' respect. Or, if preferred, we pusillanimity' of Congress or something else may consider the " term" to be that of Presi- "'to turn up " which should-render justification dent Lincoln, and then Mr. Stanton would be unnecessary. protected' in office until one month after the Clearly the- suspension was made under the 4th March next. But whether the I" term" be tenure-of-office act and can be justified in no of Andrew Johnson or of President Lincoln, other way. From this conclusion' the foll'owpe is equally protected:. ing dilemma results: If Mr. Stanton was within Great efforts have been made to show, that the statute, by what right was he removed? If Mr. Stanton does not come within the special he was not, by what right was he suspended? protection of the proviso, without considering The President may choose his horn. Either the irresistible consequence that he is: then will be sufficient to convict. within the genrreral protection of the statute, I should not proceed further-under this head being "a person holdinga civil office." Turn but for the new device, whichn makes its aphim out of the proviso and he falls into the pearance under the auspices of the Senator statute, unless you are as imaginative as one from Maine, [Mr. FESSENDEN,]who tells us that of the apologists, who placed him in a sort of "whether Mr. Stanton came under the first intermediate limbo. But the imagination of section of the statute or not, the President had this conception cannot makeus insensible to its a clear right to suspend, him under the second." irneffableabsurdity. Itis utterlyunreasonable, Thus, a statute, intended as a bridle on the and every construcgtion mast be rejected which President, gives to the President the power to anunot'tstand thetouch-stone of common sense. suspend Mr. Stanton, but fails to give to Mr. Staiiton any protection against the President. of prerogative which is his guide. Here is an, This statement would seem to be enough. The assumption of power. In point of fact, Mr. invention of the Senator is not less fallacious Stanton was at his office quietly discharging than the pretext of the President. It is-a device its: duties, when the President! assumed that well calculated to help the President and to there was a "vacancy" and forthwith sent the: hurt Mr. Stanton, with those who regard devices valiant Adjutant General to enter upon- posmore than the reason of the statute and: its session. The assumption and the commission spirit.:were on a par. There is nothing in any law Study the statute in its reason and its spirit, of the land to sanction either. Each testifies and you cannot fail to see that the second sec- against the offender. tion was intended merely as a pendant to the The hardihood; of this proceeding becomes first and was meant to apply to the cases in- more apparent, when it is understood, that this eluded in the first and none other. It was a very statute of 1795, on which the offender sort of safety-valve, or contrivance to guard relies, was repealed by the statute of February against the possible evils from bad: men who 20, 1863, passed in our own day and freshly could not be removed during the recess of the remembered by many of us. The latter stat-: Senate. There was no reason to suspend a ute by' necessary implication obliterated the person who could be removed. It is absurd to former. Such is the obvious intention, and I suppose that a President would resort to a do not hesitate to say, that any other construedilatory and roundabout suspension when the tion leads into those absurdities which constishort cut of removal was open to him. Con- tute the staple of the presidential apologists. 9truing the statute by this plain reason its The object of Congress was to provide a- substisecond section must have precisely ihe same tute for previous; statutes, restricting at: oCes sphere of operation as the first. By the letter the number of vacancies which might be filled Ar. Stanton falls within both; by the intention and the persons who might fill them. And this it is the same. It is only by applying to the was done. first section his own idea of the intention' and As by the Constitution, allappointments must by availing himself of the letter of the second, receive the consent of the Senate, therefore that' the Senator is able to limit the one and to any legislation in derogation thereof must be enlarge the other, so as to exclude Mr. Stan- construed strictly; but the President insists ton from the protection of the statute, and to that it shall be extended even in face of the include him in the part allowing suspensions. constitutional requirement. To such pretenApplying either letter or spirit consistently, the sions is he driven. The exception recognized case is plain. by the Constitution is only where a vacancy I turn for the present from the tenure-of- occurs during the recess of the Senate, when office act, insisting that Mr. Stanton is within the President is authorized to appoint until he its protection, and being so, that his removal can obtain the consent of the Senate and no was, under the circumstances, a high misde- longer. It is obvious, however, that cases may meanor, aggravated by its defiant purpose and: arise where a sudden accident vacates the office the long series of transgressions which pre- or where- the incumbent is temporarily disaceded it, all showing a criminal intent. The bled. Herewas theoccasionforan adiinterim apologies of the President will be considered appointment, and-the repealing statute embodyhereafter. ing the whole law of the subject, was intended to provide for such cases; securing- to the THE SUBSTITUTIOMN OF TrOMAS AD INTERIM. President time to selbet a successor, and also The case of Mr. Stanton has; two branches: power to provide for- a temporary disability, first, his removal, and, secondly, the su'bstitu- Such is-the underlying principle of this statute7 tiOn of General Thomas as Secretary of War which it is' for us to- apply on the present ocs dd interim. As the first was contrary to pos- casion. The expiration of a commission, which itive statute, so also was the latter without ordinary care can foresee, is not one of these support'i the acts of Congress. For the pres- sudden emergencies for which provision must nrit I content myself with this latter proposi- be made; and, assuming that vacancies by tion, without opening the question' of the pow- removal were contebmplated, which must be deers of the President under the Constitution. nied, it is plain- that the delay required for the The offender rests his case: on the act of examination of the case would give time to Congress of February 13, 1795, (I Statutes-at- select a successor, while a removal without Large, 415,) which authorizes the President, cause would never be made, until a successor "'in case of vacancy in the office of Secretary was ready. of War, whereby he cannot perform the duties Look now at the. actual: facts and you will of said office, " to appoint "any person" until see howlittle they come within thereason of an a successor be appointed' or such vacancy be ad interim appointment. Evidently the: Presftlled; and the supply of the vacancy is lim- ident had resolved to remove Mr. Stanton last ited to six months. Under this early statute summer. Months passed, an'dhe did not conthe President defends himself by-insisting that summate his purpose till February. All the there was a'"vacancy,'" when, in; fact, there intervening time was his to select a successor,,Was none. All this is in that unfailing spirit being a period longer than the longest fixed for 972 the duration of an ad interim appointment the recess by an act of Congress. This conby the very statutes under which he professed elusion would be irresistible, were the Senate to act. In conversation with General Sher- always in session, but since it is not, and since man, a month before the removal, he showed cases may arise during the recess, requiring that he was then looking for a successor the immediate exercise of this power of read interim. Why not a permanent successor? moval, it has been argued that at least during It took him only a day to find Mr. Ewing. the recess it must be in the President alone. If, as there is reason to suppose, Mr. Ewing From this position there has been a jump to was already selected, when General Thomas the next, and it has been insisted that since, was pushed forward, why appoint General for the sake of public convenience, the power Thomas at all? Why not, in the usual way, of removal exists in the President, he is at send in Mr. Ewing's name as the successor? liberty to exercise it, either during the recess For the excellent reason, that the offender or the session itself. Here is an obvious exknew the Senate would not confirm him, and tension of the conclusion which the premises that, therefore, Mr. Stanton would remain in do not warrant. The reason failing, the conoffice; whereas through an ad interim appoint- clusion must fail. Cessante ratione cessat etiam ment he might obtain possession of the War ipsa lex. Especially must this be the case Department, which was his end and aim. The under the Constitution. A power founded on ad interim appointment of General Thomas implied necessity must fail when that necessity was, therefore, an attempt to obtain posses- does not exist. The implication cannot be sion of an office without the consent of the carried beyond the reason. Therefore, the Senate, precisely because the boffender knew power of removal during the recess, doubtful that he could not obtain that consent. And all at best unless sanctioned by act of Congress, this was under the pretext of an act of Con- cannot be extended to justify the exercise of gress, which, alike in letter and spirit, was that power while the Senate is in session, ready inapplicable to the case. to act conjointly with the President. Thus does it appear, that, while Mr. Stan- Against this natural conclusion we have the ton was removed in violation of the tenure-of- assumption that a contrary construction of the office act, General Thomas was appointed Sec- Constitution was established after debate in retary of War ad interim in equal derogation 1789. Without considering minutely what wag of the acts of Congress regulating the subject. really determined on that occasion, I content myself by asking, if at best it was anything but REMOVAL AND SUBSTITUTION AD INTERIM A VIOLATION a congressional construction of the ConstituOF THE CONSTITUTION. tion, and as such subject to be set aside by It remains to consider if the removal and another voice from the same quarter. It was, substitution were not each in violation of the moreover, a congressional construction adopted Constitution. The case is new, for never until during the administration of Washington, whose now could it arise. Assumingthatthe tenure- personal character must have influenced opinof-office act does not protect Mr. Stanton, who ion largely; and it prevailed in the House of is thus left hung up in the limbo between the Representatives only after earnest debate, by a body of the act and the proviso, then the Pres- bare majority, and in the Senate only by the ident is remitted to his prerogative under the casting vote of the Vice President, John Adams, Constitution, and he must be judged accord- who from position, as well as principle, was not ingly, independent of statute. Finding the inclined to shear the President of any prerogpower of removal there, he may be justified; ative. Once adopted, and no strong necessity but not finding it there, he must bear the con- for a change occurring, it was allowed to go unsequences. And here the tenure-of-office act altered, butnotunquestioned. JuristslikeKent firnishes a living and practical construction of and Story, statesmen like Webster, Clay, Calthe Constitution from which there is no appeal. houn, and Benton, recorded themselves adFrom the Constitution it appears that the versely, and it was once reversed by the vote of power of appointment is vested in the Pfresi- the Senate. Finally, this congressional con-'dent and Senate conjointly, and that nothing struction, born of a casting vote, and questioned is said of the power of removal, exceptin case ever since, has been overruled by another conof impeachment, when it is made by the Senate. gressional construction, which has been twice Therefore the power of removal is not ex- adopted in both Houses, first by large majoripress, but implied only, and must exist if at ties on the original passage of the tenure-ofall, as a necessary consequence of the power office act, and, then, by a vote of two thirds on to appoint. In whom must it exist? It is a the final passage of the same act over the veto familiar rule, that the power which makes can of the President; and then again adopted by unmake. Unless thisrulebe rejected, the power a vote of more than two thirds of the Senate, of removal must exist in the President and when the latter condemned the removal of Mr. Senate conjointly; nor is there anything un- Stanton; and all this in the light of experireasonable in this conclusion. Removal can ence, after ample debate and with all the conalways be effected during the session of the sequences before them. Such a congressional Senate by the nomination and confirmation of construction must have a controlling influence, a successor, while provision can be made for and the fact that it reversed the practice of 973 eighty years and overcame the disposition to substitution of Lorenzo Thomas as Secretary of stand on the ancient ways, would seem to in- War ad interim, the offender violated not only crease rather than dinminish its weight. the acts of Congress for the supply of vacanNow, mark the consequences. Originally, in cies, but also the Constitution. Knowing that 1789, there was a Congressional construction, he could not obtain possession of the office which, in effect, made the Constitution read: with the consent of the Senate, he sought to "The President shall have the power of removal." accomplish this purpose without that consent. For the next eighty years all removals were Thus, under color of a statute, he practically thisFcontru n the Tenure set the Constitution at defiance. Mark here made under this construction. The Tenure' his inconsistency. He violates the Tenure-ofof-office act was a new Congressional con- office act, alleging that it is against the Construction, overruling the first and entitled to stitution, whose champion he professes to be, equal if not superior weight. By virtueofthis and then takes advantage of the acts of ConCongressional construction, the Constitution gress for the supply of vacancies to set aside the Constitution in one of its most important "The President shall not have the power of re- requirements; for all which he is justly charged with an impeachable offense. It follows, then, that in removing Mr. Stanton All this seems clear. Any other conclusion the President violated the Constitution as now gives to the President the power under the Conconstrued. stitution to vacate all national offices and leaves The dilemma is this: If the President can the Republic the wretched victim of tyranny, remove Mr. Stanton during the session of the with a ruler who is not even a constitutional Senate, without any power by statute, it is only monarch, but a king above all laws. It was by virtue of a prerogative vested in him by the solemnly alleged in the articles against Charles Constitution, which must necessarily override I of England, that "being admitted king of the Tenure-of-office act, as an unconstitu- England, and therein trusted with a limited tional effort to abridge it. If, on the other power to govern by and according to the laws hand, this act is constitutional, the preroga- of the land and NOT OTHERWISE," he neverthetive of removal is not in the President, and he less undertook "' to rule according to his will violated the Constitution when he assumed to and to overthrow the rights and liberties of exercise it. the people." These very words might be The Tenure-of-office act cannot be treated adopted now to declare the crime of Andrew otherwise than constitutional. Certainly not Johnson. in the Senate, where some among the apolo- THE APOLOGIES. gists of the President voted for it. Therefore Here I might close; but the offender has the prerogative of removal is not in the Pres- found apologists, who plead his cause at the ident. The long practice, which grew up under bar and in the Senate. The apologies are a a mere reading of the Constitution, has been strange compound, enlargingrather than dimindeclared erroneous. To this extent the Con- ishing the offenses proved. There is, first, the stitution has been amended, and it is as absurd Apology of Good Intentions; next, the Apology to plead the practice under the first reading in of making a case for the Supreme Court, being order to justify an offense under the second, the Moot Court Apology; and, then, the Apolas to plead the existence of slavery before the ogy, that the President may sit in judgmenton constitutional amendment in order to justify the laws, and determine whether they shall be this monstrosity now. executed, which I call the Apology of PrerogaThus must we conclude that the offender tive. Following these is a swarm of technicalhas not only violated the Tenure-of-office act, ities, devices, and quibbles, utterly unworthy but also the Constitution; that, even assuming of the Senate and to be reprobated by all who that Mr. Stanton is not protected by the stat- love justice. ute, the case is not ended; that this statute, if construed so as to exclude him, cannot be THE APOLOGY OF GOOD INTENTIONS. rejected as a Congressional construction of the I begin with the Apology of Good Intentions. Constitution; and that, under this Congres- In the light of all that has occurred, with the sional construction, which in value is second volume of history open before us, with the only to a constitutional amendment, the prerog- records of the Senate in our hands, and with ative of removal without the consent of the the evidence at the bar not utterly forgotten, Senate does not belong to the President. Of it is inconceivable that such an Apology can be course the power of suspension under the Cola- put forward. While making it the apologists stitution,which is only an incident of the larger should be veiled, so that the derisive smile on pretension. must fall also. Therefore, in the their faces may not be observed by the Senate defiant removal of Mr. Stanton, and also in to whose simplicity it is addressed. It is hard the pretended suspension under the Constitu- to treat this Apology; but it belongs to the tion with which the transaction began, the case, and, therefore, I deal with it. President violated the Constitution, and was Of course a mere technical violation of law, guilty of an impeachable offense. with no evil consequences and without any And so, also, we must conclude that, in the claim Qf title, is followed by nominal damages 974 only. If a person steps on a field of grass be- ofAndrew Johnsoii, "as ifcommitted by George longing to another, without permission, he is Washington." Here is the paradox in its length a trespasser, and the law furnishes a familiar and breadth. I deny it. I scout it. On the proceeding against him; but if he has done contrary, I say, that we mustijudge. all these acts this accidentally, and without any real damage, as if committed by Andrew Johnson, and noit would be hard to pursue him, unless the as- body else. In other words, we must see things sertion of the title were thought important. as they are. As well insist that an act of guilt But if this trespasser is an old offender, who should be judged as the mistake of innocence. from the beginning has broken fences, ruined As well argue that the stab of the assassin trees,.and trampled down the garden, and who should be judged as the cut of the surgeon. now defiantly comes upon the field of grass, To the Apology of Good Intentions, I opinsisting upon absolute -ownership, then it is pose all that long unbroken series of transgresvain to set up the Apology that very little dam- sions, each with a voice to drown every preage is done. The antecedent transgressions, text of innocence. I would not repeat what-I ending in a claim of title, enter into the pres- have already said, but in the presence of this ent trespass.and make it aquestion whether apology it is my duty to remind the Senate the rightful owner or the trespasser shall hold how the career of this offender is compounded possession. Here the rightful owner is the peo- of falsehood and usurpation; how, beginning ple of the United States, and the trespasser is with promises to make treason odious, he soon Andrew Johnson. Therefore in the name-of installed it in authority; how, from declared the people is he impeached. sympathy with Unionists, white:and black, he This simple illustration opens the whole case. changed to be their persecutor; how in him The mere technical violation of a statute or are continued theworst elementsof slavery, an of the:Constitution, without antecedents and insensibility to right and.a passion for power,; without consequents, would not jstifyan im- how in this spirit he usurped great prerogapeachment. All of us can recall such even in tives which did not belong to him; how in the the administration of Abrah.am Lincoln, and-I maintenance of this usurpation he stuck at cannot doubt, that, since this proceeding be- nothing; how.he violated law; how he abused gan, the Chief Justice violated the Constitution the pardoning power; how he prostituted the when he undertook to give a casting vote, not appointing power; how he wielded the power being a member of the Senate. But these of removal to maintain his- tyranny; how he were accidents, besides beinginnocuous. From sacrificed the Freedmen's.Bureau and lifted up a violation of the Constitution or of a statute, the Whisky Ring; how he patronized massacre the law ordinarily infers evilintent, and where and bloodshed, and gave a license to the Ku.such a. case is submitted to judgment, it throws Klux-Klan; how, in madness, he entered into upon the violater the burden of exculpation. conflict with Congress, contesting its rightful Ile must show that his conduct was innocent; power over the reconstruction of the rebel in other words, that it was without evil intent States, and, when Congress would not succumb or claim of title. In the present cause we to his usurpation, how he thwarted and vilihave a denial of evil intent, with a claim of fled it, expectorating foul-mouthed utterances, title. which are a disgrace to human nature; how he The question of intent thus raised by this so far triumphed in his wickedness that in nine offender cannot be considered narrowly. This States no Union man is safe and no murderer is a trial of impeachment, and not a criminal of a Union man can be punished; and, lastly, case in a county court. It is a proceeding for for time fails, though not the long list of transexpulsion from office on account of political of- gressions, how he conspired against the patriot fenses, and nota suit at law. When the offender Secretary of War,:because:he found in.thalt sets up Good Intentions, he challenges inquisi- adamtantine character an obstacle to his revotion, according to the latitude of such a pro- lutionary career. And now, inthe face of this ceeding. The whole past is unrolled by him- terrible and indisputable record, entering into,self and he cannot prevent the Senate from and filling this impeachment, I hear a voice seeing it. By a commanding rule of evidence saying that we must judge the acts in question it is all before us without any further proof. "as if committed by George Washington. You cannot shut it out; you cannot refuse to The statement of this pretension is enough. look at it. And yet we have been seriously I hand it over to the.contempt it deserves. told that we must shut out from sight everything but the technical trespass. It only re- MOOT- COURT APOLOGY. mains that, imitating the ostrich, we should.Kindred to the Apology of Good Intentions, thrust our heads in the sand and, not seeing or, perhaps, a rib out of its.side, is the Mootdanger, foolishly imagine it does not exist. Court Apology, which pretends that the PresThis may do at Nisi Prius; it will not do in ident, in removing Mr. Stanton, only wished the Senate. to make a case for the Supreme Court, and To such extent has this ostrich pretension th.us submit to this tribunal the constitutionbeen carried, that we have been solemnly ad- ality of the Tenure-of-office act. monished at the bar, and the, paradox has found By this pretension the Supreme Court is voice in the Senate, that.we must judge the acts converted into a moot-court to sit in judgment 975 on acts of Congress, and the President becomes pelled to hold only by virtue of the law and the what, in the time of Charles II, Roger North Constitution. In answer to the writ he would saidgood lawyers must be, a "put case. " Even have pleaded this protection, and the court must assuming against the evidence that such was his have decided the validity of the plea. Meanpurpose, it is hard to treat it without repro- while he would have remained in office. Had bation. The Supreme Court is not the arbi- he left, the process would have failed, and ter of acts of Congress. If this pretension there was no other process by which he could ever found favor, it was from the partisans of raise the question. The decision of the SuSlavery and State Rights, who, assured of the preme Court in Wallace vs. Anderson would sympathy of the court, sought in this way to prevent a resort to a quo wcrranto on his part, assure an unjust triumph. The power claimed is while the earlier case of Marbury vs. Madison tribunitial in character, being nothing less than would shut him out from a mandamus. The a Veto. Its nearest parallel in history is in apologists have not suggested any other remedy. the ancient Justitia of Arragon, which could It is clear, therefore, that Mr. Stanton's poeset aside laws as unconstitutional. Our Con- session of the office was a sine qua non to a stitution leaves no doubt as to the proper func- case in the Supreme Court; -and that this could tions of the Supreme Court. It may hear and be only by quo warranto. The local attorney determine "'all cases in law and equity arising employed by the President testifies that a judgunder the Constitution, the laws of the-United ment in such:a case could not be reached States, andthetreatiesmadeundertheirauthor- within a year. This was enough to make:it ity;" but this is all. Its business is to de- impracticable; for, if commenced,:it would cide "cases;" not to sit in judgment on acts leave the hated Secretary at his;post for the of Congress and issue its tribunitial Veto. If remainder of the presidential term. During a "'case"' arises where a statute is said to the pendency of the proceeding Mr. Stanton elash with the Constitution, it must be decided would continue the legitimate possessor of the as any other case of conflict of laws. But office. Therefore the commencement of:a nothing within the just powers of the court case would defeat the presidential passionfor can touch an act of Congress except incident- his instant removal. True to his passion he ally, and then its judgment is binding only on removed the Secretary, well knowing that in the parties. The incidental reason assigned, this way he prevented a case for the court. as, for instance, that a statute is unconstitu- Against this couclusion, where all the testitional, does not bind anybody, not even the mony is harmonized, we have certain fruitless parties or the court itself. Of course, it can- conversations with his Cabinet, and an attempt not bind Congress. to raise the question on a habeas corpus after the On the evidence it is clear enough that the arrest of General Thomas. The conversations, President had no honest purpose to make a whose exclusion has given a handle to the apolcase for the Supreme Court. He may have ogists which they do not fail.to: use, only-show talked about it, but he was never in earnest. thatthe President had made this question a subWhen asked by General Sherman "Why the ject of talk, and that, in the end, it was appalawyers could not make a case?" he said in re- rent that he could not make a case for the ply that " it was found impossible, or that a court so as to remove Mr. Stanton during 1his case could not be made up." And so at each term, and as this was his darling object the stage we find him practically discarding the whole idea was abandoned. The arrest.of idea. He issues the order of removal. Mr. General Thomas-seemed for a moment tofurStanton disobeys. Here was exactly.his op- nish another chance; but it is:enough to say portunity. Instead of making the case by com- of the futile attempt at that time, that it-w.as mencing the proper process, he tells General not only after the removal.of Mr. Stanton but Thomas to "go on and take possession of the after the impeachment had.been voted by the office;" and then, putting an end to this whole House. pretension of a case for the court, he proceeds:tHad the President.been in earnest,:it was to treat She latter in every respect, whether of very easy for him to make a case by proceedlaw or fact, as Secretary, welcomes him to his ing against a simple postmaster; but this did Cabinet, invites him to present the business of not suit him. He was in earnest only to!re-his Department, and, so far from taking advan- move Mr. Stanton. tage of the opportunity he had professed to Nothing is clearer than that this Moot-Court desire, denies its existence. How could he Apology is a wretched pretension and afterinquire by what authority Mr. Stanton assumed thought. It is:the subterfuge of a criminal bto to hold the office of Secretary of War, when he cover up his crime-as if a surgeon had comrndenied, in fact, that he was holding it? mitted murder-and then set up the apology that Look a little further and you cannot fail to it was an -experiment in science. see the reason of this indifference. The old writ of quo warranto was the only process by THE APOLOGY OF PREROGATIVE. which a case could be made; and this could:Then comes the Apology of Prerogative, be issued only at the suit of the Attorney Gen- being nothing less than the intolerable preteneral. Had the President made an order of sion, that the President can sit in judgment.on removal, the Secretary would.have been com- Iaets of Congress, and, in his discretion, refuse 976 to execute them. This Apology is in the to suppose it sanctioned by the Supreme Court nature of a claim of right. Let this be estab- than for the apologists to suppose it sanctioned lished, and, instead of a government of laws, by Congress. The enactment would be aselfwhich is the glory of a Republic, we have only evident monstrosity, and therefore must be disthe government of a single man. Here is the obeyed as much as if one of the ten commandOne-Man Power with a vengeance. ments were reversed, so that it should read, Of course, if the President can sit in judg- "Thou shalt kill." Such extreme cases serve ment on the Tenure-of-office act, and set it no good purpose. The Constitution is the aside as unconstitutional, there is no act of supreme law of the land, and the people will Congress which he may not treat in the same not allow its axiomatic requirements to be set way. He may set aside the whole succession aside. An illustration outside the limits of of statutes for the government of the Army; reason is of no value. and his interview with General Emory attests In the cases supposed, the unconstitutionhis willingness to venture in that direction. ality of the enactment is axiomatic,'excluding In that spirit of oppression which seems to opinion or argument. It is a matter of fact govern him, he may set aside the great statute and not a matter of opinion. When the case is for the establishment of Civil Rights without one on which there are two sides or two differdistinction of color. But why confine myself ent views, it is then within the domain of to instances? The whole statute-book will be argument. It is in no sense axiomatic. It is subject to his prerogative. Vain is the require- no longer a matter of fact but a matter of ment of the Constitution that "the President opinion. When submitted to the Supreme shall take care that the laws be faithfully exe- Court it is for their I" Opinion." Without cuted." Vain is that other requirement, that occupying time with refinements on this head, a bill, approved by two thirds of both Houses I content myself with asserting that the judgover his veto, "shall become a law." His ment of the court must be a matter of opinion. veto is perpetual; nor is it limited to any One of the apologists has asserted that such a special enactment. It is as broad as the judgment is a matter of fact, and, generally, whole recorded legislation of the Republic. that the constitutionality of a statute is a matter There is nothing which it cannot hurry into of fact. I assert the contrary. When a bench that maelstrom ingulfing all. of judges stands five to four, shall we say that The President considers the statute uncon- the majority declare a fact and the minority stitutional, say the apologists. A mistake in declare an opinion? judgment on such a question is not an im- Assuming, then, what I think cannot be de. peachable offense, add the apologists. To nied, that the constitutionality of a statute is which I reply, that it is not for a mistake in a matter of opinion, the question occurs, what judgment but for usurpation in undertaking to opinion shall be regarded for the time as deexercise his judgment at all on such a question cisive. Clearly the opinion of Congress must that he is impeached; in other words, he is control all executive officers from the lowest impeached for undertaking to set aside a stat- to the President. According to a venerable ute. Whether the statute is constitutional or maxim of jurisprudence, all public acts are not is immaterial in this view. The President, presumed to be correct; omnia ritepresumunafter the statute has become a law, is not the tur. A statute must be presumed constituperson to decide. tional, unless on its face the contrary; and no Ingenuity seeks to perplex the question by decision of any court is required in its favor. putting impossible cases. For instance, sup- It is the law of the land, and must be obeyed pose Congress should have lost its wits, so far as such. The maxim which presumes constias to enact that the President should not be tutionality is just as binding as the analogous Commander-in-Chief of the Army and Navy, maxim of the criminal law, which presumes or that he should not have the power to grant innocence. The President reversing all this pardons; and suppose still further, that Con- has presumed the statute unconstitutional, and egress, in defiance of the positive text of the acted accordingly. In the name of prerogative Constitution, should undertake to create " titles he has set it aside. of nobility," must not tfe President treat such The apologists have been driven to invoke enactmentsas unconstitutional? Ofcoursehe the authority of President Jackson, who asmust; but such instances do not help the pre- serted for himself the power to judge the conrogative now claimed. Every such enactment stitutionality of an act of Congress which, in would be onitsfaceunconstitutional. It would the course of legislation required his approval, be an act of unreasoning madness, which the although the question involved had been already President, as well as the courts, must disre- adjudged by the Supreme Court. And he was gard, as if it were plain nonsense. Its uncon- clearly right. The court itself would not be stitutionality would be like an axiom, not to be bound by its adjudication. How could it conquestioned. No argument or authority would strain another branch of the Government? be needed. It proves itself. Nor would the But Andrew Jackson never put forth the preduty of disobedience be less obligatory, even if tension that it was within his prerogative to the enactment had been sanctioned by the Su- nullify a statute, which had been passed over preme Court; and it is not more violent for me his veto in the way prescribed by the Consti "977 tution. He was courageous, but there was no eling from law point to law point, or rather such unconstitutional audacity in his life. seeing law point after law point skip before The apologists have also summoned to their him, at last he lights upon one of the largest aid those great instances, where conscientious dimensions, and this he boldly seizes and precitizens have refused obedience to unjust laws. sents to the Senate. Such was the case of Hampden, who set an According to him there is no allegation in example for all. time in refusing to pay ship the Articles, that the order for the removal of'ooney. Such also was the case of many in Mr. Stanton was actually delivered to him, our own country, who spurned the Fugitive and, this being so, the Senator declares that Slave Bill. These exalted characters, on their "if there is evidence of a delivery to be found conscience, refused to obey the law and suffered in the proceedings it cannot be applied to this accordingly. The early Christians were re- article in which there is no charge or averquired by imperial mandate to strew grain on ment." And this is gravely uttered on this the altar of Jove. Though good citizens, they transcendent occasion, when an indignant peow preferred to be martyrs. Such a refusal can ple has risen to demand judgment of a crimbe no apology for a President, who, in the inal ruler. The article alleges that the order name of prerogative breaks the great oath which was "unlawfully issued," and nobody doubts he has sworn to see that the laws are faithfully that its delivery was proved; but this is not executed. Rather do these instances, in their enough, according to this Senator. I chalmoral grandeur, rebuke the offender. lenge history for another instance of equal Here I turn from this Apology of Preroga- absurdity in legal pretension. The case which tive, regretting that I cannot say more to un- approaches it the closest is the famous paradox fold its destructive character. If anything of the Crown lawyer in the British Parliament, could aggravate the transgressions of Andrew who, in reply to the argument of our fathers, Johnson, stretching in long line from the be- that they could not be taxed without repreginning of his administration, it would be the sentation, bravely insisted that they were repclaim of right which he sets up. Under such resented, and sustained himself by saying that, a claim the slenderest violation of law becomes under the colonial charters, the lands were a high crime and misdemeanor, to be pursued held "in common socage as of the borough and judged by an indignant people. The of Greenwich in Kent," and, as Greenwich supremacy of the laws must be preserved or was represented in Parliament, therefore the. the liberties of all will suffer. colonies were represented there. The pretension was perfect in form, but essentiallySWARM OF TECHNICALITIES AND QUIBBLES. absurd. The Senator from West Virginia has I now come upon that swarm of technical- outdone even this climax of technicality. Other ities, devices, quirks and quibbles which, from generations, as they read this great trial, with the beginning, have infested this great pro- its accumulation of transgressions ending in ceeding. It is hard to speak of such things the removal of Mr. Stanton, will note with without giving utterance to a contempt not wonder that a principal reason assigned for entirely parliamentary. To say that they are the verdict of Not Guilty was that there was nO. petty and miserable, is not enough. To say allegation in the articles, that the order for that they are utterly unworthy of this historic the removal was actually received by Mr. Stanoccasion, is to treat them politely. They are ton, although there was a distinct allegation nothing but parasitic insects, like "vermin that it was "unlawfully issued,'and, in point gendered in a lion's mane, and they are so of fact, itwas in evidence that the order was nimble and numerous, that to deal with them, received by him, and no human being, not even as they skip about, one must have the patience the technical Senator, imagined that it was not. of the Italian peasant, who catches and kills, There is another invention, which has in its one by one, the diminutive animals that infest support, some of the ablest of the apologists, his person. like the Senator from Iowa, [Mr. GRIMESi I can kive specimens only, and out of many the Senator from Maine, [Mr. FESSENDEN,]; I take one which can never be forgotten. It and the Senatorfrom Illinois, [Mr. TRUMBULL. ] is the Opinion of the Senator from West Vir- It is said that " as Mr. Stanton did not go out, ginia, [Mr. VAN WINKLE,] which, from begin- therefore there was no removal;" and therening to end, treats this impeachment as if it fore Andrew Johnson is not guilty. If on an were a prosecution for sheep-stealing in the occasion like the present the authority of names' Police Court of Wheeling, and brings to the could change the unreal into the real, then this defense all the unhesitating resources of a pretension might have weight. But it is imwell-trained criminal lawyer. This famous possible that anything so essentially frivolous Opinion, which is without a parallel in the should be recognized in this proceeding. Such annals of jurisprudence, must always be ad- are the shifts of a cause to be defended only by mired as the marvel of technicality in a pro- shifts. Clearly the offense of the President ceeding where technicality should not intrude. was in the order " unlawfully issued," and this It stands by itself, solitary in its originality. was complete the moment it was delivered. Others have been technical also; but the Sen- So far as depended upon him, Mr. Stanton was ator from West Virginia is nothing else. Tray- removed. This was the way in which the count C. I.-62. 978 try saw the transaction; and this is the way in I know not how such a question can be called which it will be recorded by history. "trifling." Often a great cause is presented But these same apologists, with curious in- on a narrow issue. Thus it was when English consistency, when they come to consider the liberty was argued on the claim of ship- money, appointment of General Thomas, insist that which was a tax of a few shillings only. Bethere was a vacancy in point of law, called by hind this question, called trifling by the kingly the Senator from Maine a legal vacancy. If apologists of that day, loftily stood the great there was such a vacancy, it was because there cause of the People against Prerogative, being had been a removal in point of law. There is the same which is now pending before the Senno escape from this consequence. If there ate. That other cause, on which at a later was a removal in point of law, and there was day hung the destinies of this continent, was no right to make it, the President was guilty presented on a narrower issue still. There of a misdemeanor in point of law and must was a tax of threepence a pound on tea, which take the consequences. our fathers refused to pay. But behind this It would be unprofitable to follow these inven- question, so trifling to the apologists of pretions further. From these know all. In the rogative, as behind that of ship-money, stood face of Presidential pretentions, inconsistent loftily the same great cause. The first cost with constitutional liberty, the apologists have Charles I his head. The second cost George contributed their efforts to save the criminal by III his colonies. If such a question can be subtleties, which can secure his acquittal in disparaged as of small moment, then have the form only, as by a flaw in an indictment, and martyred dead in all times suffered in vain; they have done this, knowing that he will be then was the costly blood lavished for the supleft in power to assert his prerogative, and that pression of our Rebellion an empty sacrifice. his acquittal will be a new letter of license. Constantly we are admonished that we must Nothing which the skill of the lawyer could confine ourselves to the articles. Senatorsexsupply has been wanting. This learned pro- press a pious horror at looking outside the fession has lent to the criminal all the arts in articles, and insist upon directing attention to which it excels, giving all to him and forget- these only. Here the Senator from Maine is ting the Republic. Every doubt, every scru- very strong. Itisthe"specificoffensescharged" ple, every technicality, every subtlety, every and these only that he can see. He will not quibble has been arrayed on his side, when, by look at anything else, although spread upon every rule of reason and patriotism, all should the record of the Senate, and filling the land have been arrayed on the side of our country. with its accumulated horrors. Of course such a The Public Safety, which is the supreme law, system of exclusion sacrifices justice, belittles is now imperiled. Are we not told by Black- this trial, and forgets that essential latitude of stone, that the law is always ready to catch at inquiry which belongs to a political proceedanything in favor of liberty? But these apolo- ing, having for its object expulsion from office gists " catch at anything " to save a usurper. only and not punishment. It is easy by looking The trick of the apologists has been this: by at an object through the wrong end of an opera the stringent application of technical rules to glass to find it dwarfed, contracted and solishut out all except the offenses charged in the ar- tary. This is not the way to look at nature; ticles, and then, when stress was laid upon these nor is it the way to look at Andrew Johnson. offenses to cry out, that at most they were only This great offender should be seen in the light technical, and too trifling for impeachment. To of day; precisely as he is: nor more, nor less; satisfy lawyers the House weakly declined to with nothing dwarfed; with no limits to the act on the bloody transgressions of two years; vision, and with all the immense back-ground but they sought to provide against the future. of accumulated transgressions filling the horLike the Roman ambassadors, they traced a izon as far as the eye can reach. The sight line about the offender, which he was not to might ache; but how else can justice be done? ass except at his peril. This was the line of A Senator who begins byturning these articles law. At last he passed this line, openly, know- into an inverted opera glass, takes the first step ingly, defiantly, and now, that he is arraigned towards a judgment of acquittal. Alas I that for this plain offense; we are told that it is the words of Burke are not true, when, assertnothing, only a little technicality, One of the ing the comprehensive character of impeachcounsel at the bar, Mr. Groesbeck, in a speech ment, he denied, that, under it " they who'which showed how much feeling and talent have no hope in the justice of their cause can could be given to a wrong side, exclaimed: have any hope that by some subtleties of form, " It almost shocks me to think that the President some mode of pleading, by something, in short, of the United States is to be dragged out of office on different from the merits.of the case they may these miserable little questions whether he could prevail." (Bond's Trial of Hastings. vol. 1, make an 4d interimn appointment for a single day." p. 11.) The orator was right in thus indigOnly by excluding the whole context and all its nantly dismissing all questions of pleading and antecedents, could the question be reduced to all subtleties of form. This proceeding is of this trivial form; and yet, even thus reduced, substance and not of form. It is on the merits it involved nothing less than the Supremacy only that it can be judged. Anything short of the Laws. of this is the sacrifice of justice. 979 Such is the case of this enormous criminal. great cause. The forms of law lend themselves Events, belonging to history enrolled in the to the betrayal. It is impossible to forget that records of the Senate, and familiar to the coun- the worst pretensions of prerogative, no matter try are deliberately shut out from view, while how unblushing, have been shouldered by the we are treated to legal niceties without end. lawyers. It was they who carried ship-money The lawyers have made a painful record. against the patriot exertions of Hampden; and Nothing ever occurred so much calculated to in our country it was they who held up slavery bring the profession into disrepute; for never in all its pretensions from beginning to end. before has been such a theater where lawyers What is sometimes called the legal mind of were the actors. Their peculiarities have been Massachusetts, my own honored State, bent exhibited to the world. Here was a great ques- before the technical reasoning which justified tion of justice, appealing to the highest seriti- the unutterable atrocities of the fugitive slave ments and involving the best interests of the bill, while the supreme court of the State country-one of the greatest questions of all adopted it from the bench. Alas I that it time; but the lawyers, in their instincts for the should be so. When will lawyers and judges dialectics of the profession, forgot that ever- see that nothing short of justice can stand? lasting truth which cannot be forgotten with impunity. They started at once in full cry. A GUILTY ON ALL THE ARTICLES. quibble is to a lawyer what Dr. Johnson says After this survey it is easy for me to declare it was to Shakspeare: "He follows it at all how I shall vote. My duty will be to vote adventures; it is sure to lead him out of the guilty on all the articles. If consistent with way; it. has some malignant power over his the rules of the Senate I should vote, "Guilty mind and its fascinations are irresistible. A of all and infinitely more." quibble is the golden apple for which he will Not doubting that Mr. Stanton was protected always turn aside from his career; a quibble, by the tenure-of-office act, and that he was poor and barren, as it is, gives him such delight believed to be so by the President, it is clear that he is content to purchase it by the sacri- to me that the charges in the first and second fice of reason, propriety and truth." In this articles are sustained. These two articles go Shaksperian spirit our lawyers have acted. together. I have already said in the course of They have pursued their quibbles with the this Opinion, that the appointment of General ardor of the great dramatist; and even now are Thomas as Secretary of War ad interim was chasing them through the Senate Chamber. without authority of law, and under the cirUnhappily this is according to history, and cumstances, a violation of the Constitution. our lawyers are not among the splendid excep- Accordingly the third article is sustained. tions. But there is a reward for those who Then come what are called the conspiracy stand firm. Who does not honor the exalted articles. Here also I am clear. Plainly there magistrate of France, the Chancellor L'Hos- was an agreement between the President and pital, who set such an example of justice above General Thomas to get possession of the War laws? Who does not honor, those lawyers of Department, and to prevent Mr. Stanton from English history, through whose toils liberty continuing in office, and this embraced the was upheld? There was Selden, so wise and control of the mails and property belonging to learned; Pym, so grand in statesmanship; the Department, all of which was contrary to Somers, who did so much to establish the best the tenure-of-office act. Intimidation and securities of the constitution. Nor can I for- threats were certainly used by one of the conget at a later day, that greatest advocate, spirators, and in the case of conspiracy, the CEskine, who lent to the oppressed his wonder- acts of one are the acts of all. The evidence ful eloquence; nor Mackintosh and Brougham, that force was intended is considerable, and all who carried into the courts that enlarged intel- this must be interpreted by the general charligence and sympathetic nature which the pro- acter of the offender, his menacing speeches fession of the law could not constrain. These and the long series of transgressions which preare among the names that have already had ceded this conspiracy. I cannot doubt that the their reward, above the artful crowd which in conspiracy was to obtain possession of the War all times has come to the defense of preroga- Department, peaceably if it could, forcibly if it tive. It is no new thing that we witness now. must. As such it was a violation of law, worthy The lawyer in other days has been, as we know of the judgment of the Senate. This disposes him, prone to the support of power and ready of the fourth, fifth, sixth, and seventh articles. with his technical reasons; whichever side he The eighth article charges that General takes he finds reasons, plenty as pins. When Thomas was appointed to get the control of free to choose and not hired, his argument is the moneys appropriated for the military serthe reflection of himself. All that he says is vice and the Department of War. All this his own image. He takes sides on a law point would be an incident to the control of the War according to his sentiments. Cultured in the Department. In getting the control of the law, and with that aptitude which is sharpened latter he would be able to wield the former. by its contests, too easily he finds a legal rea- The evidence applicable to the one is also apson for an illegal judgment. Next to an out- plicable to the other. right mercenary, give me a lawyer to betray a The ninth article opens a different question. 980 This charges a wicked purpose to corrupt Gen- give a license to utterances that shock the eral Emory and draw him from his military moral sense, and are a scandal to human inaduty. Not much passed between the Presi- ture. Spirit of John Milton! who pleaded so dent and the General; but it was enough to grandly for this great liberty, but would not show that the President was playing the part allow it to be confounded with license, speak of Iago. There was a hypocritical profession to save this Republic from the shame of surof regard for the Constitution, while he was render to this insufferable pretension! betraying it. Here again his past character The eleventh article is the most comprehenexplains his purpose, so as not to leave any sive of all. In some respects it is an omnium reasonable doubt with regard to it. gatherum. Here in one mass is what is conThen came the scandalous speeches, proved tained in other articles, and something else as set forth in the articles, so that even the beside. Here is an allegation of a speech by Senator from Virginia [Mr. VAN WINKLE] the President in which he denied that Conmust admit that the evidence and the pleading gress was a Congress; and then, in pursuance concur. Here is no question of form. To my of this denial, it is alleged that he attempted to mind this is one of the strongest articles. On prevent the execution of the tenure-of-office this alone, without anything else, I should act, also of an important clause in the Army deem it my duty to vote for expulsion from appropriation act; and also of the reconstrucoffice. No person capable of such speeches tion act; and then the evidence followed sus. should be allowed to govern this country. It taining completely the allegation. The speech is absurd to tolerate the idea. Besides being was made as set forth. The attempt to predegraded, the country cannot be safe in such vent the execution of the tenure-of-office act, hands. The speeches are a revelation of him- who can question? The attempt to corrupt self, not materially different from well-known General Emory is in evidence. The whole incidents; but they serve to exhibit him in his history of the country shows how earnest the true character. They show him to be unfit for President has been to arrest the reconstruction the official trust he enjoys. They were the ut- act and generally the congressional scheme of terances of a drunken man; and yet it does not reconstruction. The removal of Mr. Stanton appear that he was drunk. Now it is accord- was in order to be relieved of an impediment ing to the precedents of our history that a per- to his purpose. I accept this article in gross son disqualified by drunkenness, shall be re- and in detail. It has been proved in all its moved from office. This was the case of parts. Pickering in 1804. But a sober man, whose CONCLUSION. conduct suggaests drunkenness, is as bad at least Ii the judgment which I now deliver I canas if he were drunk. Is he not worse? If not hesitate. To my vision the path is clear without the explanation of drunkenness, he as day. Never in history was there a great made such harangues, it seems to me that his case more free from all just doubt. If Andrew unfitness for office becomes more evident, inas- Johnson is not guilty, then never was a politmuch ashis deplorable condition is natural and ical offender guilty before; and, if his acquittal not abnormal. The drunken mhn has lucid is taken as a precedent, never can a political intervals; but where is the assurance of a lucid offender be found guilty again. The proofs are interval for this perpetual offender? Derange- mountainous. Therefore, you are now determment is with him the normal condition. ining whether impeachment shall continue.a It is astonishing to find that these infamous beneficent remedy in the Constitution, or be utterances, where ribaldry vies with blasphemy, blotted out forever, and the country handed have received a coat of varnish from the Sen- over to the terrible process of revolution as its ator from Maine, [Mr. FESSWNDEN,] who tells sole protection. If this milder process cannot us that they were not "official;" nor (lid they be made effective now, when will it ever be? "violate the Constitution, or any provision of Under what influences? On what proofs? You the common or statute law, either in letter or wait for something. What? Is it usurpation? spirit." In presence of such apologies for You have it before you, open, plain, insolent. revolting indecencies it is hard to preserve a Is it the abuse of delegated power? That, too, proper calmness. Were they not uttered? you have in this offender, hardly less broad than This is enough. The drunkenness of Andrew the powers he has exercised. Is it the violation Johnson, when he took his oath as Vice Presi- of law? For more than two years he has set dent, was not " official;" but who will say that your laws at defiance, and when Congress, by it was not an impeachable offense? And who a special enactment, strove to constrain him, will say that these expectorations differ in vile- he broke forth in rebellion against this constiness from that drunkenness? If they did not tutional authority. Perhaps you ask still for violate the Constitution or any provision of the something more. Is it a long catalogue of common or statute law, as is apologetically crime, where violence and corruption alteralleged, I cannot doubt that they violated the nate, while loyal men are sacrificed and the spirit of all laws. And then we are further rebellion is lifted to its feet? That also is reminded by the apologists of that " freedom here. of speech," which is a constitutional right; and The apologists are prone to remind the Senthus, in the name of a great right, we are to ate that they are acting under the obligation 981 of an oath. So are the rest of us, even if we Nor learning, nor private virtues, nor venerdo not ostentatiously declare it. By this oath, able years, could save him from justice. In which is the same for all, we are sworn to do the great pillory of history he stands, and there: "impartial justice." It is justice, and this he must stand forever. justice must be impartial. There must be no The people cannot witness with indifference false weight and no exclusion of proper weights. the abandonment of the great Secretary, who Therefore, I cannot allow the quibbles of law- organized their armies against the rebellion yers on mere questions of form to sway this and then organized victory. Following him judgment against justice. Nor can I consent gratefully through the trials of the war, they to shut out from view that long list of transgres- found new occasion for gratitude when he stood sions explaining and coloring the final act of out alone against that wickedness which was defiance. To do so is not to render impartial lifted to power on the pistol of an assassin. justice, but to depart from this golden rule. During these latter days, when tyrannical pre. The oath we have taken is poorly kept if we rogative invaded all, he has kept the bridge, forget the Public Safety in devices for the crim- When at a similar crisis of English history inal. Above all else, now and forever, is that Hampden stood out against the power of the justice which "holds the scales of right with. Crown, it is recorded by the contemporary hiseven hand." In this sacred name, and in the torian, Clarendon, that "he became the arguname also of country, that great charity era- ment of all tongues; every man inquiring who bracing so many other charities, I now make and what he was, that durst at his own charge this final protest against all questions of form support the liberty and property of the kingat the expense of the Republic. dom and rescue his country from being made a Something also has been said of the people, prey to the Court." Such things are also said now watching our proceedings with patriot with equal force of our Secretary. Nor is it solicitude, and it has been proclaimed that forgotten that the Senate, by two solemn votes they are wrong to intrude their judgment. I of more than two thirds, has twice instructed do not think so. This is a political proceed- him to stay at the War Department, the Presiing, which the people at this moment are as dent to the contrary notwithstanding. The competent to decide as the Senate. They are people will not easily understand, on what printhe multitudinous jury, coming from no small ciple of Constitution, law, or morals, the Senvicinage, but from the whole country; for, on ate can twice instruct the Secretary to stay, this impeachment, involving the Public Safety, and then, by another vote, deliberately surrenthe vicinage is the whole country. It is they who der him a prey to presidential tyranny. Talk have sent us here, as their representatives, and of a somersault; talk of self-stultification; are in their name to consult for the common weal. not both here? God save me from participaIn nothing can we escape their judgment, least tion in this disastrous wrong, and may He of all on a question like that now before us. temper it kindly to our afflicted country. It is a mistake to suppose that the Senate only For myself, I cannot despair of the Repubhas heard the evidence. The peoplehaveheard lic. It is a life-boat, which wind and wave it also, day by day, as it was delivered, and cannot sink; but it may suffer much and be have carefully considered the case on its mer- beaten by storms. All this I clearly see before its, properly dismissing all apologetic subtle- us, if you fail to displace an unfit commander, ties. It will be for them to review what has whose power is a peril and a shame. been done. They are above the Senate, and Alas! for all the evil that must break upon will "rejudge its justice." Thus it has been the country, especially in the suffering South, in other cases. The popular superstition which as it goes forth that this bad man is confirmed long surrounded the Supreme Court could not in the prerogatives he has usurped. save this tribunal from condemnation, amount- Alas! for that peace and reconciliation, the ing sometimes to execration, when, by an odious longing of good men, now postponed. judgment, it undertook to uphold Slavery;: and Alas! for that security, so important to all, down to this day Congress has justly refused to as the only foundation on which to build, politplace the bust of the Chief Justice, who pro- ically or financially. This, too, is postponed. nounced this judgment, in the hall of that tri- How can people found a government or plant bunal where he presided so long. His prede- or buy unless they are first secure! cessors are all there in marble; no marble of Alas! for the Republic degraded as never Taney is there. The present trial, like that in before, while the Whisky Ring holds its orgy the Supreme Court, is a battle with Slavery. of corruption and the Ku-Klux-Klan holds its Acquittal is another Dred Scott decision, and orgy of blood I another chapter in the Barbarism of Slavery. AlasI for the hearts of the people bruised How can Senators, who are discharging a po- to unutterable sadness, as they witness the litical function only, expect that the voice of cruel tyranny installed anew I the people will be more tender for them than Alas! for that race so long oppressed, but it was for a ChiefJustice, pronouncing judgment at last redeemed from bondage, now plunged from the bench of the Supreme Court in the back into another hell of torment. exercise of judicial power? His fate we know. Alas! for the Unionists, white and black 982 alike, who have trusted to our flag. You now and was there recognized as Secretary of War. surrender them to those persecutors, whose Such is the support upon which the main representative is before you for judgment. burden of the larger portion of the articles of They are the last in my thoughts, as I pronounce impeachment rests. that vote which is too feeble to save them from The first article charges in substance that on intolerable wrong and outrage. They are fel- the 21st day of February, 1868, Andrew Johnlow-citizens of a common country, brethren of son, President of the United States, in violaa common Humanity. I offer them at this tion of the Constitution and laws of the United terrible moment the sympathy and fellowship States, did unlawfully issue an order in writing of a heart that suffers with them. So just a for the removal of Edwin M. Stanton from the cause cannot be lost. Meanwhile may they office of Secretary for the Department of War, find in themselves, and in the goodness of an without the advice and consent of the Senate, overruling Providence, that rescue and protec- then and there being in session, and against the tion which the Senate refuses to give. provisions of " An act regulating the tenure of certain civil offices," passed March 2, 1867. OPINION The second article charges that, in violation OF.of the Constitution and the law, as mentioned in the first article, on the same day the PresiHON. JUSTIN S. MORRILL. dent issued and delivered a letter of authority to Lorenzo Thomas, empowering him to act as An explanation of a vote in the Senate may Secretary of War ad interim, and to immebe desirable and sometimes useful, but no diately enter upon the discharge of the duties explanation can ever rise in value above that of that office, there being no vacancy therein. of the record of the vote itself; and there is The third article varies from the second no vote which can be taken under any circum- article by charging the same acts to have been stancesfrom which the consciences of Senators done in violation of the Constitution and withcan be separated from an oath. In an im- out authority of law. peachment trial the obligation is more impres- To ascertain whether the Constitution has sive by being made special instead of general. been violated it is necessary, after finding that The duty is changed, and a corresponding the principal facts as alleged have been proved change is made in the form of the oath. That or admitted, to carefully examine what are its change freshly requires of us impartiality ac- provisions, and we find that the President cording to law and the facts. Our votes upon shall have power tothe articles of impeachment will stand for all "Nominate, and by and with the advice and concoming time as the embodiment of our view of sent of the Senate shall appoint, embassadors, other public ministers and consuls, judges of the Supreme the merits of the whole case. It is that upon Court, and all other officers of the United States which I hope to justify a clear conscience, and whose appointments are not herein otherwise pronot upon making a better argument than has vided for, and which shall be established by law; been- maepooeidotethr. but Congress may by law vest the appointment of yet been made upon one side or the other. such inferior officers as they think proper in the I shall not attempt an exhaustive examina- President alone, in the courts of law, or in the heads tion of any one of the articles of impeachment, ofDepartments. The Presidentshall have power to fill all vacancies that may happen during the recess but shall give my opinions upon some of the of the Senate by granting commissions which shall topics raised by the questions at issue, and the expire at the end of their next session." results of those opinions when applied to the The power of removal being nowhere exseveral articles. pressly given to the President, it is only an The guilt or innocence of President John- implied power resulting from the power to apson as charged in the eleven articles presented point, and the power to appoint is confided to by the House of Representatives largely rests the President by and with the advice and conupon facts standing upon the record. In their sent of the Senate, including the latter as subnature the proofs are irrefragable, and we must stantially as the former, except in the case of take them as we find them. The written Con- inferior officers, which Congress may think stitution, the written law, the written order to proper by law to vest in the President alone, Secretary Stanton to surrender his office, and in the courts, or heads of Departments. the written authority to Lorenzo Thomas to As an implied power derived from that of take possession of the office of Secretary of appointment, it must attach to those having War, with its papers and effects, are all before the power to appoint. It cannot be claimed -us, and the issue on trial depends chiefly, as it that the office of Secretary of War is an infeappears to me, upon a correct interpretation rior office, nor that any existing law vests auwhich we may be expected to give to these thority in the President alone to appoint a Secdocuments. In addition to this there is much retary of War during a session of the Senate, documentary evidence and the testimony of nor yet that the power to nominate carries with living witnesses, and especially that of General it the power to confer upon any such nominees Lorenzo Thomas, who testifies that he has the right to take and hold office, with all the acted as Secretary of War so far as to meet emoluments, without an appointment by and with the President at meetings of his Cabinet, with the advice and consent of the Senate. 983 It is true the President may temporarily fill session of the office to-morrow. If that be so, vacancies which happen during the recess of then Senators who by their votes reinstated Mr. the Senate; but it is going too far to assume Stanton in his office inflicted a great wrong that he may first do an act not allowed by the upon him, and have given to Congress and the Constitution in order to open the door so that he country a very unnecessary excitement. It may do another thing which is allowed; that seems to me that there was no constitutional he may empty under the power only to fill; or authority for the removal of Stanton by the that. he may make a vacancy to happen with a President, and still less for the appointment view to an exercise of the power to fill a va- of Thomas as Secretary ad interim. cancy. Things happen by chance-as by death, The next thing I propose to consider is the resignation, absence-not by previous contriv- act regulating the tenure of certain civil offices, ance. An insurance policy is valid when the passed March 2, 1867, as follows, namely: ship happens to get foundered, not when it is "That every person holding any civil office to designedly scuttled and sunk by the owner. which he has been appointed by and with the adThe power to create vacancies at will, to fill vice and consent of the Senate, and every person who shall hereafter be appointed to any such office, them with A, and then to come to the Senate and shall become duly qualified to act therein, is, for advice and consent to fill them either and shall be, entitled to hold such office until a suewith A, or with B, is an absurdity. The faith- cessor shall have been in like manner appointed and duly qualified, except as herein otherwise provided: ful daughter asks parental advice and consent Provided, That the Secretary of State, of the Treasbefore she gets married, not after. The power ury, of War, of the Navy, and of the Interior, the claimed by President Johnson to create vacan- Postmaster General, and the Attorney General, shall hold their offices respectively for and during the term cies at will would blot out one of the most of the President by whom they may have been apimportant functions of the Senate, designed to pointed, and onemonth thereafter, subjectto removal be one of the highest safeguards of the Con- by and with the advice and consent of the Senate." stitution against executive indiscretions and As its title declares, this act regulates the usurpations, as even appointments consented tenure of certain civil offices-authorizing all to during the session of the Senate, if the claim persons in office, whether for fixed or indefiof unlimited power of removal by the President nite terms, to hold the same until their successwere to be tolerated, might be set aside the ors " shall have been appointed by and with moment after the adjournment of the Senate the advice and consent of the Senate," (as for other and different appointments never contemplated by the Constitution,) except that advised and never consented to by the Senate. the heads of the Executive Departments are All stability would be lost, and all officers of to " hold their offices respectively for and durthe Government would hold their places at the ing the term of the President by whom they mere will and caprice of the President. It would may have been appointed, and one month thereenthrone the one-man power against all else. after, subject to removal by and with the advice Such a power in a free Government would be and consent of the Senate." neither prudent nor safe, though placed in the This is not an unusual exercise of legislative most scrupulous hands; and if, by chance, in power. The subjectis onethathas been legisother hands it would be dangerous. lated upon by Congress both early and late, Yet President Johnson, in face of the plain and whatever laws may be on the statute-book provision of the Constitution, not only deliber- of a prior date in conflict with the latest act ately makes a removal of the Secretary of War, must be held to be superseded, and need not be but officially authorizes another man, an obe- considered so far as this case is concerned. I dient subordinate, to discharge the duties of understand this to be the legal view, and it is the office. It matters little by what name the certainly a common-sense view of the rules of President designated him, or for how long a construction. The law of March 2, 1867, time, or whether as Secretary ad interim, for holds the President and Senate simply to the one day or indefinitely, he intended that Lorenzo requirements of the Constitution and fixes the Thomas should be for the time the actual Sec- term of office. The question whether it inretary of War, so to be recognized by himself, cludes members of the Cabinet appointed by and so to be recognized by all the Executive President Lincoln is the only one deserving Departments of the Government, and to im- consideration. Intended as a permanent statmediately enter upon the discharge of the duties ute, it was provided that.the term of the heads of the office, although there is no more lawful of the Executive Departments should expire power to authorize than to appoint to office, or one month after the term of the President by to issue a letter of authority than to make an whom they were appointed had expired. The actual appointment, and no more power to term of the President under the Constitution appoint an ad interim Secretary than a Sec- is fouryears-no more and no less-fixed by law retary in full. Nothing but the illegality of to commence on the 4th of March next after the the act of the President now keeps Thomas out presidential election; and, though the Presand Stanton in office as Secretary of War. If ident may die or become insane and his place the Senate decide to-day that the President be filled by another, the term will expire at has not transcended his lawful authority in the precisely the same time it would had he lived removal of Mr. Stanton, by force of that decis- or remained sane. When the Vice President ion Adjutant General Thomas may take pos- becomes President by accident, by death, or 984 otherwisc, he serves out the remainder of the ognized the fact officially in all possible forms. term for which his predecessor was elected, When the act was before him fobr approval he and no more, be the fraction longer or shorter. clearly comprehended its provisions, as appears Neither legally nor nominally has he any term. by his veto message. He also admits in his The time of service is purely accidental, and message to the Senate, December 12, 1867, cannot be foreseen nor fixed by law. referring to his Cabinet, that "if any one of It has been even questioned whether the these gentlemen had then said to me that he person so acting as President, though not so would avail himself of the provisions of that elected, should receive the official title of Presi- bill in case it became a law, I should not have dent; but it has not been doubted that the term hesitated a moment as to his removal," showof his official existence was that of the deceased ing that he had not failed to understand its full President, and to be terminated at the end of import. It is also worthy of notice from this the four years for which the latter had been declaration of President Johnson that no head elected. A Senator or a member of the House of any of the Executive Departments, whatsoof Representatives dies during his term of ser- ever might have been his merits or demerits vice, and another is elected to fill out the va- otherwise, could then have given an opinion cancy, but the new Senator or new member has in favor of the bill but at the peril of instant no term of office himself: he serves out the re- ejection from office; and if all gave opinions mainder of the term to which he has succeeded against it, as has been intimated, the President of his predecessor. The presidential term must might very well feel safe from any embarrass. be analogous to that of Senator or member of ments in the future in retaining them. But the House. If this be deemed a fair conclusion when Secretary Stanton came to considerlaws it will be seen that the proviso as well as the not affecting himself so much as the nation, body of the act of March 2, 1867, prevents the and failed to second President Johnson in his removal of Mr. Stanton without the advice and policy of obstruction to the reconstruction acts consent of the Senate. Contemporary con- passed in July. 1867, then President Johnson struction of the language of a statute cannot sought to crush out the Secretary as promptly be held to set aside its plain meaning; but when as he undoubtedly would have succeeded in it sustains that plain meaning it is not unfair to doing had no such law as the tenure-of-office consider it. The House of Representatives, it act been passed. is well known, in framing the tenure-of-office After the bill became a law Mr. Stanton act, strenuously contended that the members of obeyed it, even though it be true that, not the Cabinet should be included and protected; foreseeing the full extent of the President's but the Senate only proposed to prevent the perverse policy and purposes, he had not sweeping removal of all civil officers except favored its passage; but the President determCabinet officers. The Minister of War had ren- ined not to obey it. Even when, in complidered conspicuous service, and, whether he ance with the letter of the law, he suspended needed or desired protection against sudden Mr. Stanton in August, 1867, informing other removal without the consent of the Senate or Departments that he had so suspended him, not, the House was urgent to have it awarded. and reported the reasons for the suspension to Beyond all doubt they so intended to have it, the Senate (in strict accordance with the law) and with reason believed they had accom- within twenty days after the commencement plished their purpose. As a member of the of the next session, itwould only seem to have louse I so understood the language of the act been done in good faith, provided the Senate then, and I am unable to give it a different con- consented to the suspension; but if the Senate struction now. On its final passage General should not so consent it was the President's SCHENCK, of the committee of conference, said: purpose to prevent Mr. Stanton from resuming "It is in fact an acceptance by the Senate of the the office of Secretary of War, according to position taken by the House." his own confession, in his letter to General Could anything be more emphatic? The Grant, February 10, 1868; or, in other words, Senate manager, [Mr. WILLIAMS, of Oregon,] if he could not bend the Senate to his will he who had most to do with the language of the had already determined to defy the law. The bill in the committee of conference, where it suspension of Mr. Stanton in August would took its final shape and form, had no doubt have been lawful had there been, instead of then, and, as I understand. has none now, that mere pretexts, any valid charges of misbeit did and does include all members of the havior or disability against him worthy of the Cabinet. Nor is there anything wrong in such just consideration of the Senate; but there a conclusion as applicable to President John- were no such charges, and he was properly son. When the presidential office fell upon restored by the Senate. President Johnson him the tenure-of-office act had not been passed, could now, while the Senate is in session, by and he might undoubtedly have changed his obtaining its, advice and consent, oust Mr. Cabinet officers at his pleasure; whetherwisely Stanton at any moment, or any other civil or not it is unnecessary to consider. By not officer, by only nominating a fit and proper, doing so he both legally and morally adopted person for his successor; but solitary and alone.them as his owl as much as he could have done he cannot legally remove him, nor does it even by actual appointment. He has daily so rec- appear probable that the Secretary of War ad' 985 interim, Lorenzo Thomas, to use his most practice. Franklin Pierceissued such a procenergetic words, can " kick him out." lamation on the 16th day of February, 1857, The constitutional power of the President for the Senate to convene at twelve o'clock m, has not been invaded by Congress, but the on the 4th of March, 1857, and it did so conjoint power of the Senate has been solemnly vene and remain in session for ten days. James asserted and ought not now to be surrendered Buchanan issued a like proclamation in the to any President, and especially not to one same words February 11, 1861. Now, if the who manifests so much avidity to monopolize President can make removals and appointthe political control of the Government as does ments of Cabinet officers, or manufacture any the present incumbent. Without passingupon ad interim substitutes, without the advice and the question as to whether the tenure-of-office consent of the Senate, why do these extraoract is in every respect expedient or not, I see dinary executive sessions of the Senate so no reason to question its expediency now, nor regularly appear and reappear in our history? its constitutionality at any time. That ques- The main facts set forth against the Presition has been twice solemnly decided by more dent in the first, second, and third articles are than two thirds of each branch of Congress, confessedly true, and they are, in my opinion, and recently by a still larger proportion of the without any constitutional or lawful justificaSenate. Not one of these legislators, under tion. That they come within the range of imtheir oath of office, could have voted for this peachable offenses there can be no reasonable law believing it was unconstitutional, and it doubt. would be pitifully absurd to suppose that they The fourth article charges that the President have suddenly changed their opinions, or that did unlawfully conspire with Lorenzo Thomas the country will be very swift to accept the and other persons with intent, by intimidation opinions of President Johnson and his advisers and threats, to hinder Edwin M. Stanton from as of more weight than the combined authority holding the office of Secretary of War, in violaof more than two thirds of both Houses of tion of the provisions of "An act to define and Congress. punish certain conspiracies," passed July 31, Precedents have been cited to sustain the 1861. action of the President, and it should be noted It does not appear to me that sufficient proof first that they all, such as they are, bear date has been produced to sustain the charge of prior to the passage of the tenure-of-office act, "intimidation and threats," as- alleged. The when there might have been some lawful au- President told General Sherman that Stanton thority to justify the same; but it is hardly too ".was cowardly," but it does not appear that much to claim that there is not one valid pre- he has yet acted on the idea of trying to opercedent in the whole history of our Government ate upon him through his fears, nor does it where a President has positively removed a appear that he authorized General Thomas so Cabinet officer while the Senate. was in session to operate. without its consent. The case of Timothy The fifth article charges- that the President Pickering, under. President Adams, was no did unlawfully conspire with Lorenzo Thomas exception; for on the same day the Senate and other persons to prevent and hinder the advised and consented to the appointment of execution of the tenure-of office act, passed John Marshall in the place of Pickering. Ad- March 2, 1867, and did unlawfully attempt to mit President Johnson's pretensions and he prevent Edwin M. Stanton, then Secretary of might at once, without any barrier, remove War, from holding said office. McCulloch or F. E. Spinner and put any gen- It is very evident that President Johnson:eral of the Army into power as Secretary of was ready to accept aid, and that he sought it the Treasury ad interim or as Treasurer ad from various quarters to prevent and hinder interim. He has certainly as much power the execution of the tenure-of-office act, and over the purse as over the sword of the nation, that he did attempt to prevent Mr. Stanton and no more. from holding the office of Secretary of War by Sanction this pretension of the Executive making an unlawful agreement or by conspiring and our Republic would be no more a free with Lorenzo Thomas. It is clear, also, that Government than that of the French empire. at last the President found General Thomas I shall cite one more significant fact that grateful for his recent restoration to the office fully confirms the views already expressed. As of Adjutant General of the Army, who with is well known, every outgoing President, some the Constitution and the laws on his lips agreed weeks prior to the close of his term, as an act and was ready to carry out his unlawful orders, of official courtesy due to his successor, issues designs, and purposes. If any further proof a proclamation to convene the Senate at twelve was required beyond his many abortive strugo'clock m. on the 4th of March next succeed- gles to accomplish his ends, the admissions of ing, " to receive and act upon such com.mu- the President: in his letter to General Grant, nications as may be made to it on the part February 10, 1868, would be conclusive on of the Executive," and this is done to give the this point. incoming President a'chance to have a new The sixth article varies from- the fourth in Cabinet by and with the advice and consent charging that the President conspired by force of the Senate. This has been the universal to seize, take, and possess the property of the 986 United States in the Department of War, in The ninth article charges that the President, violation of the conspiracy act of July 31, on the 22d day of February, 1868, brought 1861, and of the tenure-of-office act of March before him General William H. Emory, the 2, 1867. commander for the department at Washington, That Adjutant General Thomas had revolved and sought to instruct him that a certain law, in his own mind the idea of force, if it should requiring military orders from the President or be necessary, to get possession of the War Secretary of War to be issued through the GenDepartment, there is no doubt from his own eral of the Army, was unconstitutional, with testimony, as well as that of others, especially intent to induce the said Emory to violate the that of Samuel Wilkeson; but the President same, and with further intent thereby to enable appears to have pocketed the order suggested the President to prevent the execution of the by Thomas for a call upon General Grant for tenure-of-office act, and to prevent Mr. Stana military order, and it hardly seems right to ton from holding the office of Secretary of make President Johnson responsible for the War. utterances or the acts of this frivolous old man, The particular subject of conversation here Adjutant General Thomas, notwithstanding he censured appears to have been first introduced was the President's trusted agent, and, per- by General Emory, and not by the President. haps, as liable to put on a coat of mail as any Each expressed frank opinions, and those of more peaceful mask. Furthermore, it does General Emory being the most commendable, not appear to me that the act of July 31, 1861, the President appears to have been, and ought;" to define and punish certain conspiracies," to-have been, quite as much instructed as was one of the legislative necessities arising during General Emory. If any guilty purpose was the war, was intended to apply or can properly entertained on the part of the President it did be made to apply to the present case. not ripen into a disclosure in the presence of The seventh article varies from the fifth in the main witness, General Emory. charging the President with unlawfully con- The tenth article charges President Johnson spiring with Lorenzo Thomas to unlawfully with having in various speeches made declaraseize, take, and possess the property of the tions, threats, and scandalous harangues, inUnited States in the Department of War, in tended to excite the contempt and odium of disregard of the act of March 2, 1867. the people against Congress and the laws of The facts and reasons touching the fifth arti- the United States duly enacted thereby. cle are applicable to the seventh, and the same The facts here alleged seem to have been conclusions follow. abundantly proved, and there is no doubt of The eighth article charges the President with the stain brought upon the country and upon intent unlawfully to control the disbursements the President by these intemperate and indeof the moneys appropriated for the military cent utterances. They are evidences of bad service and the Department of War, contrary taste and violent temper, such as are not to "An act regulating the tenure of certain infrequently exhibited in political discussions, civil offices;" and, without the advice and con- and sometimes, it is to be regretted, have apsent of the Senate, then being in session, did, peared as foul blots in legislative discussions. on the 21st day of February, 1868, issue and It would be hardly just to give these presideliver aletter of authority to Lorenzo Thomas. dential harangues any interpretation beyond empowering him to act as Secretary of War ad their political significance. We may regret interim. them because of the stigma and scandal thereby This article is controlled by most of the facts brought before the nation. If these discreditand arguments belonging to the second article. able speeches had been made with a view to I shall only add that the main purpose of excite armed rebellion, or had been made in wresting the office of Secretary of War from time of war, the charge would be far more the hands of Edwin M. Stanton could not have serious. I do not, however, think it a stretch been to deprive him of the barren honor of the of charity to suppose the President when makofficial title, but to get the control of its depart- ing them had no other than a political object mental power. The control of the disburse- in view. To President Johnson it will be a ments of moneys for the preservation of the cruel and unavoidable punishment, unparalpublic peace in the rebellious States, or for the leled in our history, that such speeches are to maintenance of the Freedmen's Bureau, by be perpetuated as a prominent feature of his which much or nothing may be done, accord- future presidential fame. I do not desire to ing to the discretion of those in authority, place any greater burden upon his back. would be no barren scepter within the grasp The eleventh article charges, first, that the of one whose profoundest hatred seems to be President declared by public speech that the excited when beholding such disbursements Thirty-Ninth Congress was not a Congress, made for the protection of the Union men of intending to deny its power to propose amendthe South, now more than ever struggling for ments to the Constitution; in pursuance of this life and liberty, and who are seeking to restore declaration, that the President attempted to rebellious States to their practical relations prevent the execution of the tenure-of-office with the Union on the basis of freedom, equal- act by devising means whereby to prevent Mr.. ity, and justice. Stanton from forthwith resuming the functions 987 of the office of Secretary of War, notwithstand- The various charges in the articles of ing the refusal of the Senate to concur in his impeachment raise the question whether the suspension; and, further, devised means to President can do certain acts with impunity. prevent the execution of the act making appro- Can he, in violation of his oath, refuse to take priations for the Army for the year ending June care that the laws be faithfully executed? Can 30, 1868; and also to prevent the execution of he, in violation of the Constitution, exercise " An act to provide for the more efficient gov- an exclusive power to remove and appoint to ernment oftherebel States," passed March 2, office? Can he, in violation of the laws of 1867. the land, disobey such parts of the laws as he There are not less than four distinct charges pleases, and when he pleases? With so much here made, any one of which, if proved, affords he appears to have been justly charged, and sufficient foundation to sustain this article, and, such acts would not seem to be improperly so far as the facts are similar to those embraced characterized when called high misdemeanors. in several of the'preceding articles, the argu- If they are not, what are they? Certainly they ment need not be repeated. Some of the are not innocent acts. Whatisa misdemeanor? charges appear to have been sustained by the The definitions given in Webster's dictionary' proof, and that is sufficient to determine the are as follows: proper vote, though other allegations contained I "1. Ill behavior; evil conduct; fault; mismanagein the article may or may not be sustained by ment. proper proof. After saying this it may be use- "2. (Law.) Any crime less than afelony. The term less to pursue the subject further; but among applies to all offenses for which the law has not furthe independent charges here clustered to- nished a particular name." gether there is one of the gravest in the whole If we limit the term to the law definition, it series made against the President in relation to would still be a very modest name for the the execution of the act for the more efficient offenses. government of the rebel States, upon which a If the President is guilty, he cannot be guilty brief comment may not be inappropriate. of anything less than a misdemeanor. If the Nearly all of the other unlawful acts charged facts charged do not amount to a misdemeanor, upon AndrewJohnson have been done by him then the power to impeach the President might in order to enable him to accomplish his great as well forever be abandoned. crowning purpose of defeating the legislation But the issues immediately involved in the of Congress for the rebel States. Proof in articles of impeachment only thinly cover other relation to any other allegations, therefore, and graver matters, identical in character with in the end contributes to the support of this some of the great questions raised by the recent charge, as well as whatever proof may be found rebellion. It is a serious question whether the on the record particularly relating to it. Evi- executive department of the Government shall dence in relation to such a charge to a large be permitted to absorb some of the most imextent must necessarily be circumstantial, portant powers conferred upon Congress by the where the party, while ostensibly executing Constitution; but it is an aggravation of the the law, predetermines its miscarriage, and question when this absorption is struggled for must be surrounded by difficulties, but it does in the interest of disloyal citizens, and in benot seem easy to dismiss the matter as having half of the fallen fortunes of slavery. It is as no foundation whatever. much the duty of Congress to maintain its own The animus of the President has been made rights as it is its duty not to trench upon the. offensively conspicuous in his assignments and just powers of the Executive; but the mainChanges of the commanders of the several tenance of the rights of Congress looms up to military departments, and especially by the higher importance when it is seen that just now removal of General Sheridan and the appoint- hereon hangs the right of ten States to a repubment of General Hancock in Louisiana, whose lican form of government, to freedom, and the action in that department, regarded as a dread protection of equal laws. To concede that laws calamity by Union men, so enraptured the made by a vote of two thirds of each branch of President that he even ventured upon the offi- Congress, the President's objections to the concial impudence of asking Congress to tender trary notwithstanding, may be litigated or disto the new commander a vote of thanks, well regarded and set at defiance by a vetoing Presiknowing that Congress could have no other dent, would be to yield a plaid provision of the feeling than that of painful solicitude, if not Constitution. Even to allow such laws to be of disgust, in regard to the part which the avoided, or to wink at a halting execution of President had persuaded one of our veteran such laws, would soon undermine and destroy generals to assume in the execution of the the check which it was intended should be reconstruction acts; but all such facts, which placed upon an ambitious and self-willed Exhave not been formally offered in evidence, may ecutive. Ifthe President can make and unmake, be excluded from our view of this article, and remove and appoint the chief officers of the there will enough remain of substance in other Government at his own will and pleasurecharges of the article to justify the conclusion having in view no other consideration than that it should be considered as having been whether they are or are not subservient to his conclusively supported by the proof. policy —then, instead of being the agent of the 988 Constitution to "take care that the laws be a bad intent, and there is little or no proof of faithfully executed," he becomes the agent of good intent other than theofferof proof through governmental patronage, to bend both the members of his Cabinet of what the President lawmakers and the people to his will. If had at some time said to them, or what they the Senate has the right to be consulted as to had at some time said to him. Suppose this be appointments, this right cannot be abrogated admitted: that his Cabinet, one and all, proby Congress nor nullified by the President. nounced the law unconstitutional; that it did In time of war the power of the Executive not include the Secretary of War; and that the stretches out its strong arm over a new and question as to the validity of the law ought tovast field; but even in time of war, and over be carried to the Supreme Court. All this military and naval officers, the power of the would only show that the President gave and President does not extend to the latitude which received bad advice, which, to say the least, is President Johnson claims in time of peace in not the best evidence of good intent, and, regard to officers in the civil service. instead of diminishing the offetse, theoretically It would be wrong to convict President John- increases it; for, after all, the President, by son upon a merely technical violation of the whomsoever advised, must be held responsible law, without violence to substance and harm- for his own acts, and, in addition thereto, to ing nobody, and it would be equally wrong to some extent, for the acts of his ministers. If exonerate him upon a mere techicality while he choose to break the law he must do it at his. the practical breach of the law was flagrant, own peril and take the consequences. The If he has been substantially guilty of the un- advice of his Cabinet, if good, would only lawful offenses charged, then our duty to the shield the President if practically adopted, but Government and the people requires his con- it would be monstrous to shield him from the viction. If throughinadvertence, or compelled fact that bad advice had been given to him when by any haste, he made a mistake in his inter- it is too plain that the tender of good advice, pretation of the law acting with entire good if unpalatable, would be at the peril of the faith, a mistake that he would gladly repair on instant removal of the party by whom given. the first opportunity. then he perhaps might It is quite plain that the President intended to be forgiven. But this is no such case, and the oust Mr. Stanton at all hazards-by fair means President of the United States, of all men, if he could, but at any rate to bust him-and, should not ask to be excused on account of he did not intend himself, whatever others ignorance of the law. It is, however, rather might do, to resort to any lawsuit in the proan obstinate adherence of the President to his cess. The testimony of General Shermau own predetermined will. He does not think shows that the President believed Mr. Stanton he has made a mistake. His veto message of would yield because, as he said, he was " cowthe 2d of March, 1867; the suspension of Mr. ardly;" so when General Thomas brought to Stanton, August 5, 1867, under the act, with the White House the account of his doings on the appointment of General Grant as Secretary the 21st of February, the President said, " Very ad interim; and his report to the Senate of well; go and take charge of the office and December 12, 1867, of the reasons for the sus- perform the duties." pension of Mr. Stanton, all prove that the There was then no hint of disappointment President fully comprehended the law, and he at the lack of a lawsuit. It was not until the must have acted with deliberation when he next day, when the masquerade was over and exercised his constitutional right to withhold Adjutant General Thomas found himself in the his assent from the bill before it became a law, clutches of the law, that the President again and with equal deliberation when he subse- said, according to General Thomas, "'Very quently conformed to the strict letter of the well; that is the place I want it, in the courts." law in the suspension of Stanton, though giv- Though others might litigate the question, it ing unsatisfactory reasons therefor. When he is not clear that he ever sought to initiate any flatly disobeyed the law by removing Stanton, legal proceedings himself. But the assump. February 21, 1868, and authorized Thomas to tion on the part of the President that it was fill his place, he did not act inadvertently-he his privilege, if not his duty, to violate the had pondered long how to break the law with law rather than to faithfully execute it, in order personal impunity —and, although it is not pre- to make up a case for the decision of the courts, tended that this list move of President Johnson instead of showing good intent, exhibits an was devised or advised by any of his constitu- obstinate purpose not to yield to a law passed tional advisers, it cannot have been made by a constitutional majority of Congress against through a mere blunder as to the meaning of his objections. And the pretense that the the law, but it appears more like a bold attempt courts would decide against the constitutionto trample the law under the heels of executive ality of the law is sheer assumption. Even if power. there had been reasonable doubt as to its conIf the intent of the President was good, that stitutionality, it was the law of the land until should mitigate and possibly shield him from decided otherwise by the Supreme Court, the the extreme penalty hanging over him for the only tribunal having authority to stay the force offenses charged and either proved or admitted. of any law for a single moment. Certainly A positive breach of the law carries. on its face the President, who swears to maintain the 989 Constitution, which makes it one of his chief him but loyalty to the Constitution and the duties to take care that the laws be faithfully laws. " Yes, Senators," says Mr. Stanbery, executed, cannot, at his own will, elect what "' with all his faults, the President has been laws he will execute and what he will ignore. more sinned against than sinning. Fear not But there is hardly more reason to suppose to acquit him. The Constitution of the counthe Supreme Court would decide the tenure- try is as safe in his hands from violence as it of-office act unconstitutional than any other law was in the hands of Washington." among our statutes. This appeal would be more apt not to go Nor can good intent be found in the mode unheeded if Mr. Stanbery himself could be pursued by the President in striving to get rid considered an impartial judge as to what course ofthehatedWarMinister. When hesuspended the President ought to pursue, and had not Mr. Stanton, in August, 1867, in order to pre- heretofore failed to discover anything in that vail upon the Senate to consent to the suspen- man but loyalty; but it is painful to be obliged sion, he made General Grant Secretary of War to presume that Mr. Stanbery, as one of the ad interim —entirely an unexceptionable ap- chief advisers of the President's most obnoxpointment. But after he quarreled with Gen- ious measures, is entitled to some share of the eral Grant because he did not, when the Senate doubtful honor of our Chief Magistrate's presrefused to consent to the suspension, aid and ent position. abet him in placing the office in the lap of the Neither the facts surrounding this case nor President before Mr. Stanton could repossess those making the history of President Johnit, then he proposed to act independently of son's administration show evidences of good the law and of the Senate, and took General intent or justify future confidence. Ever since Thomas, so utterly unfit that his very designa- Andrew Johnson reached the Presidency more tion impeaches the judgment if not the integ- or less pressure has been felt that it was necesrity of the appointing power. Later nomina- sary for Congress to remain in session-adtions are open to criticism, either as bad, or, journing late to meet early and at extraordiwhen otherwise, they appear too evidently nary and inconvenient seasons-lestgrave evils extorted in the nature of a propitiation to the and perplexing complications should be preSenate sitting on the trial of the impeachment cipitated upon the country by his headstrong, of Andrew Johnson. The general history of if not treacherous, action in the absence of the conduct and manner of the President, in the legislative branch of the Government. his various attempts to remove Mr. Stanton, Decide the charges here in his favor now; say, certainly fails to furnish evidence of any good that he has done no wrong; admit that the intent; nor is it to be believed, if the field had House of Representatives are all at faulti and been opened -for a wider search, that it would Congress or the Senate never more need to have been attended by any happier result. remain here as the guardians of law and of a Having been among those who were origin- representative form of government, or as a ally for living down the administration of bulwark against the encroachments of execuPresident Johnson rather than to attempt to tive power. President Johnson and all future bring it to an abrupt close by an impeachment, Presidents may break laws or make appointalthough admitting his culpability, I have yet ments at will, and do anything which goes to had no other desire than to be able to render a make up the character of an uncurbed despot. just and impartial verdict. Summoning to I am glad to remember that at the commy aid all the light with which the case has mencement of the late rebellion Andrew Johnbeen illuminated, and at the close of the trial son took a bold, outspoken stand in behalf of the culpability still appearing no less, I can- the Union; and that fact shall protect him, so not, under the solemnities of an oath, declare far as my vote is concerned, from any other the President innocent. The example of Pres- penalty for his recent great offenses than ident Johnson, were it possible so gross a a simple removal from office. I would not wrong could have passed unheeded, might deprive him of the poor privilege of being a have been comparatively harmless; but when candidate for the suffrages of any portion of the solemnly adjudicated, with the eyes of the people who may think him worthy, whether world fixed upon it, establishing, as it will, a for President or alderman. But his appointprecedent to be quoted and followed in all ment to office of men supposed corruptly to future time, I cannot consent to ignore or be putting more money into their own pockets waive it as a light matter, and thereby ingraft than into the Treasury; his discreditable use the idea into the republican Constitution of of the pardoning power; his unmasked threat the United States that the Executive is para- in his last annual message that it might become'mount, and may dominate at will over the proper for him to "adopt forcible measures or legislative branch of the Government. such as might lead to force " in opposing an Mr. Stanbery, counsel for the President and unconstitutional act of Congress; his appointlate Attorney General, has made a feeling ap- ment, in violation of law, to places of honor peal to us in behalf of his client. He has seen and trust, rebels not able to take the oath of him often tempted by bad advice, in preference to loyal men; his malign that evil counselors were around him more attempts to foist upon the country his policy than once, but never discovered anything in of restoring the rebellious States without secur 990 ity for the future and against the measures of the articles of impeachment, and admitted in salutary reform proposed by Congress; and the answer, or proven on the trial, then the his bitter and active efforts to defeat the adop- verdict of conviction must not be withheld. To tion of the constitutional amendment proposed this point I now address myself. by the Thirty-Ninth Congress, known as arti- The first, second, and third articles of imcle fourteen, and known, also, as the great seal peachment relate to the removal of Mr. Stanof security for the broad principles of national ton from the office of Secretary of War and freedom and human rights: these facts, and the appointment of Lorenzo Thomas as Secsuch as these, do not allow me to gratuitously retary of War ad interim on the 21st day of credit the President with good intent in the February, 1868, without the advice and conpast, nor can I, notwithstanding his counsel' s sent of the Senate, then in session, there being appeal, in the face of such a record, by a ver- no vacancy in the office of Secretary, and havdiet of acquittal, become responsible for his ing been none during the recess of the Senate. conduct in the future. These official acts of Mr. Johnson are averred to be in violation of the tenure-of-office acts OPINION and of the Constitution of the United States. OF It is set up in defense or excuse1. That Mr. Stanton was not removed on HON. SAMUEL C. POMEROY. the 21st day of February, and is still Secretary of War. As no man can see with the eyes of another, 2. That Mr. Stanton is not Secretary of War, so no one can control his judgment upon the because his term expired at the death of Mr. precise views and opinions of others. And Lincoln. although other Senators may, and have, given 3. That Lorenzo Thomas was not appointed better and perhaps more logical reasons for Secretary of War ad interim on the 21st day their votes upon questions involved in this of February. great trial of impeachment of the President, 4. That Lorenzo Thomas was lawfully apstill as my own judgment must be controlled pointed Secretary of War ad interim, Mr. by my own views and opinions, I propose to Johnson having the constitutional power to set them forth, as briefly as possible, in the appoint him, without the advice and consent opinion and views I now submit. of the Senate. The people of the United States, through 5. That the act regulating the tenure-ofthe House of Representatives in Congress office is unconstitutional. assembled, have, in constitutional form, pre- 6. That Mr. Johnson has the "power at any sented at the bar of the Senate eleven articles and all times of removingfrom office all execof impeachment against Andrew Johnson, utive officers for cause to be judged of by the President of the United States, for high crimes President alone." and misdemeanors in office. The charges have 7. That the removal and appointment were been answered by him; and after over forty made only to test the validity of the tenure-ofdays of patient trial, the time has come when office act before the judicial tribunals. Senators are required or allowed to state their It needs but a glance to see that the grounds conclusions upon the pleadings and proofs. of defense are absolutely inconsistent with each This brief statement will explain the reasons- other, conflict with the Constitution and act of the judgment I am prepared to give by my of Congress, and tend to overthrow the form response to each article. and spirit of republican government. In considering the questions to be decided, No question has been discussed so fully it is to be borne in mind that this proceeding since the foundation of the Government as is not a suit between Andrew Johnson and the constitutionality of the tenure-of-office act, Edwin M. Stanton, or between the persons and four successive times the Senate's judgappearing here as managers and Andrew ment pronounced the act to be in conformity Johnson. with the Constitution, and that judgment of * The Senate of the United States has no the Senate was pronounced deliberately by jurisdiction of such controversies, nor should Senators upon their official oaths; no less solthey be influenced by considerations relating emnly than the oath under which they have to individual persons. conducted this trial. No new view or arguThe proceeding is national. The people of ment has been presented on this trial to shake the United States impeaching through their the validity of that act. constitutional agents a public officer, high in The effort, on the ground of former preceplace and power, for his public acts, and dents, to excuse the removal of Stanton and demanding judgment against him, not for a the ad interim appointment of Thomas withprivate injury, but for public wrongs, viola- out the advice and consent of the Senate in tions of the Constitution, which they formed session, and no vacancy existing in the office, and adopted for the general welfare, and trans- fails, because no similarinstance can be found, gressing laws enacted by them through their but in every case, save one, there was an constitutional representatives in Congress as- existing vacancy; and in that one the removal sembled. If these violations are set forth in was accomplished by the submission of an 991 appointment to the Senate, and a distinct 4. By the continual recognition of Mr. recognition of its constitutional authority. The Thomas as Secretary of War ad interim from President on the 21st of February, by an that until the present day. order of that date, declared that Mr. Stanton The fact of removal being thus established, was thereby removed from the office of Secre- it is sought to justify it on two grounds: first, tary of War; and by another order of the same that the tenure-of-office act is unconstitutional; date, " on that day, Mr. Stanton was removed and second, that, if valid, its provisions do not from the office of Secretary of War, and Lorenzo restrict the President from removing Mr. StanThomas appointed Secretary of War ad in- ton. Without entering into a protracted discusterim." And also, on the same day, by an sion, it is sufficient to say that the constitutionofficial message to the Senate, announced the ality of the "tenure act" was fully discussed removal and the appointment. in the Senate before its original passage, and If in the face of his own official acts and by a large and solemn vote it was held to be records he can send lawyers to the bar of the constitutional. Senate to plead and pretend there was no The objection was again specifically made removal, and that his message to the Senate by the President in his veto message, and the was false, it would be an example of official act was again held to be constitutional by a vote prevarication without a parallel in the history exceeding two thirds of the Senators present. of mankind! The question was a third time made in the Finally, the claim set up in Mr. Johnson's Senate by the President in his message relating answer of power at any and alltimes to remove to Mr. Stanton's suspension; and was a fourth executive officers, for cause to be judged of by time decided upon the consideration of the him alone, effectually abrogates the constitu- message of the 21st of February announcing tional authority of the Senate in respect to Mr. Stanton's removal. No question, I repeat, official appointments, subverts the principles has been so fully and thoroughly considered or of republican government, and usurps the un- so often deliberately decided as the constitulimited authority of an autocrat. It moreover tionality of the tenure-of-office act. And in puts to flight the ridiculous pretense that the the discussion during this trial the counsel for President designed only to submit the tenure- the President have advanced no new views or of-offce act to the test of judicial decision. arguments which had not been several times In my deliberate judgment, therefore, I must considered in the Senate. So that if any quesbelieve the people of the United States have tion can be settled by this Senate and put by us, clearly maintained and substantiated the alle- at least forever at rest, so that there is no room gations contained in the first, second, and third for further dispute, it is the constitutionality of articles of impeachment. the tenure-qf-office act. That Mr. Stanton's But to be more particular I will for a few tenure of office as Secretary of War was at the moments consider these first three articles time of his removal within the provisions of that separately and in detail, as we must answer, in act, and hence his removal was a violation of our judgment, of guilty or not guilty upon each the act is also equally plain. one separately. The first clause of the first section of the act The first article charges a violation of the applies to all civil officers and prohibits their act of Congress regulating the tenure of civil removal without the advice and consent of the offices by the unlawful removing of Edwin M. -Senate. The proviso makes an exception and Stanton from the office of Secretary of War. limitation in respect to Cabinet officers. It was The fact of removal, as I have said, is fully admitted that Mr. Stanton had been duly apestablished by official acts and records, namely: pointed Secretary of War by Mr. Lincoln, and 1. The President's order of removal on the was serving out, as was Mr. Johnson, the res21st day of February, 1868, which states that idue of Mr. Lincoln's term. If the Cabinet Mr. Stanton is " hereby removed from the office were not within the proviso, then by the first as Secretary for the Department of TWar," and clause of the first section of the act they were that his functions as such would terminate upon not subject to removal or suspension without the recdipt of said communication, and directs the sanction of the Senate. If within the prohim to transfer to Lorenzo Thomas, as Secre- viso, they could not be removed without such tary of War ad interim, "'all records, books, sanction until the expiration of thirty days papers," &c. after the term of appointment. So that it 2. The order of same date to said Lorenzo makes no difference which horn of the dilemma Thomas, declaring that Edwin M. Stanton Mr. Johnson selects, for in either case he trans-" having been this day removed from the office gressed the law. Mr. Johnson is, moreover, as Secretary for the Department of War," he, concluded absolutely on this point by his own the said Thomas, was authorized and empow- official acts and records. During his Adminered to act as Secretary of War ad interim, istration treaties with foreign nations have and directed immediately to enter upon the been made, foreign territory has been purdischarge of the duties pertaining to that office. chased. Every civilized nation of the globe 3. By the message of the same date to the has been dealt and negotiated with by Mr. President of the Senate announcing that he Seward as Secretary of State. Loans have had removed Mr. Stanton. been contracted, revenues collected, taxes 992 imposed, thousands of millions of dollars in and empowered to act as Secretary of War ad money or public credit have been expended interim, and directed immediately to enter or invested by Mr. McCulloch as Secretary of upon the discharge of the duties pertaining to the Treasury. Fleets have been dismantled, that office; that the Senate was in session on naval vessels and armaments sold by Mr. the 21st day of February last; that there was Welles as Secretary of the Navy. Armies have no vacancy in the. office of Secretary of War, been disbanded, a new army raised and or- and that the President on that day did issue the ganized, and millions of dollars of military letter of authority as charged, are fully proved: disbursements expended every month under first, by the letter of authority having the genthe direction of Mr. Stanton as Secretary of nine signature of Andrew Johnson; second, War. The Departments of State, Treasury, by the statement in the said letter of authority War, and Navy for three years have been held that Edwin M. Stanton had " been'this day reunder the same tenure. How, then, can it moved from office as Secretary of War;" and, now be pretended by Mr. Johnson that the third, by the President's message of the same term of these officers expired at the death of date to the Senate. Mr. Lincoln, or that a new appointment was Issuing this letter of authority to Lorenzo necessary, when none was made? What, in Thomas was a direct violation of the tenure-ofsuch a view, would be the condition of our office act. Now, if that act be constitutionalforeign relations or national credit? But the as I have shown-then the President's guilt objection now raised by or in behalf of Mr. under the second as well as the first article Johnson is not only answered by these acts stands without defense; and hence I am forced done under his authority, but it is also re- to the conclusion that the President is guilty pelled by the most solemn records under his as he stands charged in the second article of own hand. The order suspending Mr. Stan- impeachment. ton was addressed to him as "Secretary of The third article charges that on the 21st War," and professed to suspend him from that of February last, while the Senate was in sesofice. The veto message of the tenure act sion, Andrew Johnson, President, &c., withinsisted that its operations extended to Cab- out authority of law, did appoint one Lorenzo inet officers. The annual message urged that Thomas Secretary of War ad interim without specific objection. The message to the Senate the advice and consent of the Senate, with the relating to the suspension of Mr. Stanton again intent to violate the Constitution of the United pressed that point. And the order of removal States, no vacancy in said office having hapspecially stated that he was on that day (Feb- pened during the recess of the Senate, and no ruary 21, 1868) removed from office as Secre- vacancy existing at the time of the appointtary for the Department of War. The ad ment of the said Thomas. That the President interim appointment of Thomas, the appoint- did make the appointment, that the Senate ments of Ewing and Schofield declare Mr. was in session, that no vacancy existed at the Stanton "removed," not pretending that his time of the appointment, are all facts undeoffice had expired by the death of Mr. Lincoln. nied and fully proved by the evidence referred Without pursuing the subject further, the to in the preceding article. terms of the Constitution, the plain words of But the President sets up in defense that the act of Congress, the acts and the official similar appointments were made by his prederecords of the President, and the solemn judg- cessors, and that he is vested, as President, ment of the Senate, determine clearly as hu- with "the power at any and all times of reman understanding can comprehend that the moving from office all executive officers for tenure-of-office act is constitutional, and that cause to be judged of by the President alone." Mr. Stanton did lawfully hold the office of Sec- This ground of defense fails, because no tenretary of War on the 21st day of February last ure-of-office law prohibited his predecessors by the tenure-of-office actbeyond removal with- from making such appointments; and because out the advice and consent of the Senate; and no case has been found in which a President that his removal "on that day" by Andrew assumed the right to create a vacancy by *Johnson was in contemptuous disobedience and removal and then make an appointment withflagrant violation of the law, constituting a high out the advice and consentof the Senate, when misdemeanor I and, consequently, that Andrew this body was in session. Johnson isguilty in mannerandform as charged Before Mr. Johnson usurped authority indein the first article of impeachment. pendent of the Senate, removals during the The second article charges that on the 21st session recognized in every instance the conday of February, 1868, the Senate being in stitutional authority of the Senate over the prosession, and there being no vacancy in the office posed appointment. Its denial would deprive of Secretary of War, with intent to violate the the Senate of that constitutional check which Constitution of the United States and the act constitutes one of its most important functions, of Congress regulating the tenure of certain and would establish the distinctive claim of incivil offices, Andrew Johnson, President, &c., dependent, exclusive executive power, now, for did issue and deliver to Lorenzo Thomas a the first time in our national history, boldly letter of authority, set forth in the article of and defiantly avowed. impeachment, whereby Thomas was authorized The act of President Johnson is not only 993 unsanctioned by precedent, but on principle bursements-especially when aided by Cooper, the claim of power set up is contrary to the unlawfully in the door of the Treasury-thus Constitution, which says "' the President may putting the Treasury within reach of the arm nominate, and by and with the advice and con- of the President alone. This is both a crime sent of the Senate appoint," &c, but it is also and a misdemeanor; and therefore he is guilty incompatible with the honor, safety, and exist- in manner and form as charged in the eighth ence of ourform of government. article of impeachment. Regarding the act of the President, in ap- The ninth article charges that the President pointing Lorenzo Thomas Secretary of War instructed General Emory, commander of the ad interim, as an unlawful usurpation of power, military department of the District of Columviolating the Constitution and an act of Con- bia, that the law which required all orders and gress, the Piesident is guilty, in my judgment, instructions relating to military operations be in manner and form as charged in the third issued through the General of the Army was article of impeachment. unconstitutional and in contravention with The fourth, fifth, sixth, and seventh articles General Emory's commission, and this was of impeachment charge an unlawful conspiracy done with intent to induce General Emory, in by Mr. Johnson with Lorenzo Thomas, to ac- his official capacity as commander of the decomplish the unlawful object specially set forth partment, to violate the provisions of the act in each of the before-named articles. What- of Congress aforesaid, and with further intent ever conclusion might be formed on these arti- to prevent the execution of the tenure-of-office cles, if they stood alone, unaccompanied by act and to prevent Mr. Stanton from holding any overt acts, in furtherance of the objects and executing the duties of the office of Secstated, the evidence in this case, taken in con- retary of War. nection with the several acts named, compels The fact that the President did instruct the the belief that there was a clear, distinct un- military commander of this department that derstanding, combination, and conspiracy be- the law requiring military orders to be issued tween Johnson and Thomas, with the intent by the President through the General of the and purpose set forth in the several articles. Army was unconstitutional is distinctly proved. His efforts to have orders issued and obeyed by General Emory. Why was such instrucwithout (as provided bylaw) their going through tion given at that time, and why were there the office of the General of the Army; his find- such suspicions aroused because officers were ing a mar who " would obey his orders with- called at General Emory's headquarters? It out regard to the law," and appointing him for was only on account of what the President the time being; his reappointment of Colonel had decided to do — to control the DepartCooper after he had been rejected by the Sen- ment of Warl It was in furtherance of what ate at this very session; all these acts taken he had said to General Grant-" that as early together, and others of the same character, as last August he had determined to disposcompel in me the belief that the President did sess Mr. Stanton of the War Office at all hazunlawfully conspire with others to violate the ards." These whisperings to General Emory law, and hence is guilty in manner and form have a peculiar significance to my mind, when as charged in the fourth, fifth, sixth, and sev- I remember what was at that moment in the enth articles of impeachment. mind-of the President relating to getting posThe eighth article charges that the letter of yession of the Department of War and disauthority of February 21, 1868, was issued by possessing Mr. Stanton and getting around,President Johnson to Lorenzo Thomas with General Grant by issuing orders direct to his intent to control the moneys appropriated to subordinate officers. be disbursed for the military service in viola- It, to my mind, admits of no other motive-or tion of the Constitution and of the civil-tenure intention than that which, is charged, and, act. taken with all attendant circumstances, forces It is not denied that the appointment of the conclusion that the President is guilty in LorenzoThomas Secretary of War ad interim manner and form as charged in the ninth article would give him, while he acted under such of impeachment. appointment, the same control exercised by a The tenth article charges that at sundry times Secretary of War duly nominated and con- and places therein set forth, Andrew Johnson, firmed by the Senate. The military disburse- President, &c., made certain intemperate, inments, amounting to many millions of dollars, flammatory, and scandalous harangues, and were thus placed in the hands and at the power uttered loud threats and bitter menaces as of a mere appointee of the President and the well against Congress as the laws of the United creature of his will, made and unmade by the States, with intent and design to set aside the breath of his power alone. powers of Congress, and to bring the LegisIt is an invariable maxim that every man- lature and the several branches thereof into and especially every high official-intends the disgrace, ridicule, hatred, and reproach, and, consequences of his own acts; and hence that to impair and destroy the regard and respect IMr. Johnson designed to invest Lorenzo of the good people of the United States for Thomas with power over the military dis- Congress and the legislative powers thereof, C. I. —63. 994 and to excite odium and resentment against in his-approval. The powers of Congress are Congress and the laws duly and constitution- thus abrogated; and the Government of the ally enacted. And all this while the Presi- United States is practically vested in Andrew dent was under his oath to see that the laws Johnson l were faithfully executed. It has been estab- It is vain to treat this and the preceding lished beyond dispute that the scandalous- article with levity or affect to pass them over harangues set forth in this article were made with contemptuous indifference or frivolous by the President atthe times and places stated. excuse. They are public declarations by the Their intent is manifest as plainly as human Chief Executive, preceded, accompanied, and speech can exhibit the motive and impulse of followed by acts in strict accordance with the man's heart. And these denunciations, threat- theme. They have thus become significant ening to "veto their bills," were spoken out facts, full of enormity in themselves, and boldly: of the " abundance of the heart " which led threatening the peace, welfare, and existence him thus to " impromptu speak,s" and to defy. of constitutional government. the very laws he was sworn to execute, While some of the articles, which would Our Government was framed to rest upon seem to operate in the first instance only on opinion and reason, and not upon force. The an individual, the offenses charged in the tenth good will of the nation toward the laws and and eleventh articles embrace in their range the law-makers is of the highest importance to all the powers of the Government, and the secure obedience, and. the man or the public validity of all the legislation of Congress since officer who, by act or speech, strikes at this the rebellion began. The national debt, the foundation, does an irreparable injury. taxes imposed and collected by acts of ConThe history of republican governments gress, the collection of the revenue-in short, shows that the first efforts of tyrants and usurp- every operation of the Government depending ers has been directed to undermining and de- upon the action of Congress during and since stroying the faith of the people in their rep- the rebellion, are struck at by the hand of the resentative and legislative bodies. President. And if I was to declare, on my In his harangues, Andrew Johnson fol- oath, for the acquittal of the President under lowed with more than usual directness the these articles, charged and proved, then, inbeaten path toward the overthrow of con- deed, would I feel myself to be guilty of pervertstitutional government-a government which ing the trust imposedupon me under the Conencourages and secures the largest freedom of stitution of the United States as a member of speech consistent with its own perpetuity; a this high court of impeachment. government, too, that has provi edfor striking If I am to vote for acquittal I shall sancdown the sappers and miners who work at its tion these new violations of law and of the own foundations. Under this charge and by Constitution. I shall consent that the Presi — the proofs the President must stand guilty of dent may possess himself- of each and all dethe high misdemeanor charged in this tenth partments of this Government, and merge intoarticle of impeachment. one head all the independent prerogatives of The eleventh and last article charges that each of the departments as were wisely provided on the 18th day of August, 1866, Andrew by the early framers of our representative GovJohnson, President, &c., did, by a public ernment. speech, declare and affirm, that the Thirty- I cannot be thus false to.my convictions of Ninth Congress was not a Congress authorized duty, false to the trusts imposed by my posiby the Constitution to exercise legislative tion as a Senator sitting upon this great trial, powers; that its legislation was not valid or nor false to my loyal, earnest, and devoted conobligatory upon him, except so far as he might stituency, whose every impulse I feel, nor false approve the same, and also denied its power to my anxious countrymen, whose eyes are to propose amendments to the Constitution. upon me. Conviction to my mind is a duty, This article further specifies: certain of his ay, a necessity, under my oath as a Senator official acts done: in pursuance of that declara- trying this cause. I cannot escape if I would tion, devising and contriving, among other the conviction which the evidence in this cause things, to prevent the execution of the tenure- forces upon me. And conviction is, to my of-office act, and to prevent the execution of vision, peace. It is quiet to our long distracted other laws, especially the " acts to provide for country. It means restoration upon the basis the more efficient government of the rebel of loyalty, liberty, and equal suffrage, which States." secures and perpetuates equal rights to all The public speeoh referred to in this article. American freemen-now, thank God, Ameriwas -made before a large assemblage at the can citizens I Executive Mansion, and clearly proved, as well Charged by the Constitution with a share in as substantially admitted. It imports nothing this trial, I cannot shut my eyes to the crimes less than a total denial of the constitutional and misdemeanors charged, and proved also, power of Congress to pass any laws but such in this the eleventh article of impeachment; as he approves. It usurps the whole law- and with uplifted hand and heart I declare my making power, and vests its validity absolutely belief to be that the President is guilty I 995" OPINION the answer and defense of the President as to OF several of the charges fail of such justification, I shall content myself with a statement of the HON. LOT M. MORRILL. grounds of my opinion upon a portion of the articles only. Tlfe President is impeached by the House The first three articles and the eleventh reof Representatives of high crimes and misde- late to the attempt to remove Mr. Stanton from meanors, in that on 21st of. February last he the office of Secretary of War; the authority issued an order for the removal from office of to General Thomas to take possession and to Edwin M. Stanton, Secretary of War, with do the duties of the office; the appointment intent to violate the tenure-of-office act, and of General Thomas as Secretary of War ad to remove said Stanton from office. interim; and the attempt to prevent Mr. Stanton In that on said 21st February he issued to from, resuming the duties of his official officeGeneral Thomas a letter- authorizing and em- after his suspension had been non- concurred in powering him to act as Secretary of War, there by the Senate. being no vacancy in that office, With intent to The question arising under these articles' violate the tenure-of-office act. turns chiefly upon the question whether theIn that on the said 21st of February he did tenure-of-office act is in conflict with the Conappoint said Thomas to be Secretary for the stitution of the United States, and the case of Department of War ad interim, without the Mr. Stanton was affected by it. advice and consent of the Senate, no vacancy These are understood to be the grounds upon having: happened in said office, with intent to which the counsel for the President place the violate the Constitution of the United States. defense to these articles, and that upon which In that'he conspired with said Thomas to opinion divides in the Senate. hinder and prevent said Stanton from filling Is the tenure-of-office act unconstitutional, said office; to prevent and hinder the execu- and is Mr. Stanton embraced in its provisions tion of the tenure-of-office acti; to get posses- so as to be protected by it? sion of the War Office, and of the property of As to the' firat proposition as between the the United States in the Department of War. Senate and the President, it is not a new quesIn that, with intent to violate the tenure-of- tion, and it is difficult to perceive how it can office act, he authorized said Thomas to act as properly be regarded by either as an open quesSecretary of War, there being no vacancy in tion. The act had been fully considered when said office, and the Senate then being in session. it was first enacted in the Senate, was reconIn that he attempted unlawfully to induce sidered after it had been returned by the PresGeneral Emory to obey his orders, and not ident with his objections fully stated, and again those issued by the General of the Army, with passed with that unanimity necessary to give it intent to enable him to defeat the tenure-of- the force of law, his objections to the contrary office act, with intent to prevent said Stanton notwithstanding, and calculated:to leave little from holding his office. doubt as to the confidence with which the SenIn that, to bring Congress into contempt, ate held its opinions. and excite the odium of the people against The legislative and executive precedents and Congress and the laws by it enacted, he made practice in our history touching the power of certain public addresses, indecent and unbe- the President to remove from office, relied coming in the Chief Magistrate, by the means upon by him as authoritative interpretation of whereof he brought the office into contempt, the Constitution, were known and familiar to ridicule, and disgrace. Congress at the time. It is not'suggested that In that he attempted to prevent said Stanton the act was hastily or inconsiderately passed, from resuming the office of Secretary of War, as it will not be doubted that Congress had, in after the refusal of the Senate to concur in his the recent examples of the exercise of this suspension; also to prevent the execution of power by the Executive, abundant opportunity the act of 2d March, 1867, making appropria- of judging of the expediency of a further contions for the sqpport of the Army, and an act tinuance of this practice. to provide for the more efficient government The binding forceof this practice of removal of the rebel States. by the President rests upon the interpretation The President, answering, does not contro- given to the Constitution by the First Congress. vert the essential facts charged, but insists that It is not insisted that this interpretation by the acts complained of are authorized by the that Congress was authoritative and conclusive Constitution and laws; and further, that if in upon succeeding Congresses, and it is admitted any respect this plea fails of a complete justi- that the extent of its authority is as a precedent fication he should still be acquitted, as those only. The question was therefore open to acts were all done in good faith in the perform- further legislative regulation, and the practice ance of public duties, arising in the execution which had obtained under the act of1789 could of his office, imposed upon him by the Consti- properly and should necessarily be modified tution and laws and in defense and execution or reversed, as experience should dictate that of them. Concurring in much of the reason- the public interests demanded. The Congress ing of the Senators who are of opinion that of 1867, it will not be denied, had all the power 996 over the subject that the Congress of 1789 is and consent of the Senate; and to get rid of supposed to have had. Mr. Stanton's case he is forced to the construcBesides, it is well known that the Congress tion.that the words "except as herein otherof 1789 were far from having been unanimous wise provided" "except him out of the body in their opinions and action. One branch was of the section;" while the Senator from Iowa equally divided upon the measure, and it finally accomplishes the same result more diremtly, passed by the casting vote of the Presiding but not less erroneously, by denying altogether Officer; and that from that time to the date of that his case is included in the body of the the act in question the interpretation of the section. It admits of no argument that this First Congress had been repeatedly the subject last opinion is unsound, and that conclusions of grave debate in Congress, and was believed drawn from such premises are untenable. The by the most eminent of our statesmen, jurists, words " every person holding any civil office," and commentators upon the Constitution to be &c., by the force of the unavoidable meaning unsound. of language, it must be conceded, embrace the Indeed, the President is not understood to case of Mr. Stanton, then holding the office invoke the Senate now to declare void for con- of Secretary of War. flict with the Constitution a law which had so re- But leaving this discrepancy of deduction I cently received its sanction, and that after his turn to the construction of the act of Judge objections to it had been fully considered, but Curtis, which seems to be the generally received that the argument presented is rather in extenu- interpretation of those who hold that Mr. ation of his refusalto obey and enforce it. For Stanton's case is not provided for in the act. the purpose of these proceedings, the act in He concedes that the words " every person question may properly and must necessarily be holding any civil office," &c., include Mr. regarded as valid, unless, indeed, it should be Stanton, but insists that the words " except as deemed advisable that Congress should repeal herein otherwise provided," taken in connecall laws the validity of which may be questioned tion with the proviso that follows, operate to by the President, which he may deem inexpe- exclude him from this general description of dient, or to which he does not yield a willing persons. obedience. The words " except as herein otherwise proWe are then brought to consider the question vided," it is plain, either standing alone or whether the case of Mr. Stanton was affected taken in connection with the proviso, are not by the tenure-of-office act. The first section entitled to the force of terms of absolute of that act is as follows: exclusion, but rather are used in the sense "That every person holding any official office to of qualifying some antecedent provision in the which he has been appointed by and with the advice body of the section. Now, what are these and consent of the Senate, and every person who shall antecedent words or provision to which these hereafter be appointed to any such office, and shall become duly qualified to act therein, is, and shall be, qualifying words relate, and which they are entitled to hold such officeuntilasuccessorshall have supposed to modify? Do they qualify the probeen in a like manner appointed and duly qualified, von every person holding any civil office, except asherein otherwise provided: Provided, That vision every person holding any civil office, the Secretaries of State, of the Treasury, of War, of &c,, I" except as herein otherwise provided,". the Navy, and of the Interior, the Postmaster Gen- or the words " is and shall be entitled to-hold eral, and the Attorney General, shall holdtheir offices his said office until his successor shall in like respectively for and during the term of the President by whom they may have been appointed, and for one manner be appointed and qualified?"' except month thereafter, subj ect to removal by and with the as herein otherwise provided." advice and consent of the Senate." Do the qualifying words operate to exclude The counsel for the President contend that a portion of the persons, from holding office' out of this body of the section it is explicitly under this act altogether, or do they operate to declared that there is to be excepted a partic- qualify the condition of holding? The former ular class of officers,' except as herein other- construction, it is submitted, does violence to wise provided.' " The Senator from Iowa, the intent of the act; besides, it is an obvious,[Mr. GRIMES,] in his published opinion, says: misapplication of the qualifying words to a "Mr. Stanton's case is not within the body of the portion of the section to which they do not first section. The tenure whigh that provides for is relate. It is clear that it was the intent of the not the tenure of any Secretary." act to regulate a tenure of office of some sort Other Senators, who agree with Mr. GRIMES of all the persons described in the body of the in the conclusion to which he comes, adopt section, that is, "every person holding any civil the views of the counsel for the President. office," &c.; but by thisconstruction aportion These views are the opposites in statement and of those persons fail to be provided for altoprinciple, and cannot be reconciled with each gether; while the adoption of the other view other. provides for them a tenure of office, but differThe construction of Judge Curtis is, that the ent in its conditions, and is thus in harmony body of the section-the words " every person with the objects of the law. holding any civil office, appointed with the If it be accepted that the Secretaries are not advice and consent of the Senate" —necessarily excepted out of the body of the section, and' includes Mr. Stanton's case, as he was a civil that the effect of the proviso is simply to proofficer who had been appointed with advice vide and determine what their tenure of office 997 shall be, the only remaining question is whether Lincoln as unimportant in the view taken of the provision does make such tenure for Mr. the question. Their terms of office, as a period Stanton. It is contended that it does not, as of time, were identical; and whether he is servhe was not the appointee of Mr. Johnson, and ing out Mr. Lincoln's term of office, as Vice that the term of Mr. Lincoln, whose appointee President, upon whom devolve the duties of he was, was determined by death. It is con- the office of President, by death, can have no ceded that Mr. Stanton was appointed by Mr. influence upon the general fact of what was Lincoln in his first term of office, by and with Mr. Stanton's term of office. In either case the advice and consent of the Senate, to hold his term would be the same. during the pleasure of the President for the But if, as is contended by counsel for the time being; that he was duly holding office President and those who adopt his views, the under that appointment in the second term of proviso failed to provide a tenure for Mr. StanMr. Lincoln and up to his death. He was, ton, he being conceded to be in the body of the therefore, the appointee of Mr. Lincoln by section, then as to him the words, "except as original appointment in his first term, and not herein otherwise provided," fail to have any less so in his second term, in effect, by adop- effect, and leave his tenure unaffected, and the tion and continuance in office under the first same as that provided in the body of the secappointment, the person and office being iden- tion for the description of persons mentioned. tical, and there being no limitation in the ten- I conclude, therefore, that the act did not fail ure of office, except the pleasure of the Presi- of its object, namely, to regulate the tenure of dent for the time being. Mr. Stanton -was, office of " everyperson holding any civil office therefore, properly holding office by appoint- to which he has been appointed by and with the ment of Mr. Lincoln in his second term at his advice and consent of the Senate;" that Mr. death. He continued to hold under such Stanton's case was not excepted out ofitsproappointment and commission from Mr. Lincoln visions; that the proviso does regulate for him after the succession of Mr. Johnson, and by a tenure of office; but if it do not, then it is his adoption and continuance in office, and was clear that it is regulated as is provided in the so holding at the passage of the tenure-of-office body of the section for " every person holding act. any civil office,"'&c., and that his removal was But it is said that if he is to be regarded as a clear violation of this act. the appointee of Mr. Lincoln in his second But it is said that it is at least doubtful if term he is still not embraced in the terms of the act did affect Mr. Stanton's case, and that this act, as that term closed with the death of the effort to remove him from his office on the Mr. Lincoln, and that since that event he has 21st of February last was an attempt on the been holding in the term of Mr. Johnson. It part of the President which he might well betherefore becomes necessary to determine what lieve he had a right to make; that the attempt was the "term" of President Lincoln. Was it did not succeed, and that it would be an abuse an absolute period of four years, or was it that of power to remove him from his high office period during which he served in his office; on grounds so slight. the period for which he was elected, or the But did the President truly believe that he period he held and occupied his office? -Was had the right, that it was clear, and that the the term of his office subject, in the language public welfare justified and demanded its exerof the counsel for the President, to a "' condi- cise? He had refused his assent to the tenuretional limitation?" The term of the presiden- of-office act, stating in his message, among his tial office, by the Constitution, is four years, reasons expressed for refusal so to do, that its and that without regard to the contingency of provisions deprived him of control over his holding or period of actual service. It de- Cabinet. scribes the period for which the office lasts,.He had suspended Mr. Stanton under its and is without limitation. The tenure of his provisions-so stated to the Secretary of the office is subject to the contingencies of death, Treasury-as required by its provisions. He resignation, or removal; but that relates to had communicated his reasons for this susthe condition of actual holding or period of pension, agreeably to the terms of the act, to service, and in no way affects the term or period the Senate. He had been advised of the for which he was elected. Now, the language action of the Senate upon that suspension, and of the proviso is, " shall hold for the term of of the acquiescence of General Grant in its the President bywhom appointed." Mr. Stan- determination of the case, and had witnessed ton was appointed by Mr. Lincoln, whose term the return of Mr. Stanton to his office and its of office was absolutely four years, under the duties in accordance with the imperative proConstitution. The statute adopts the same visions of this act. With these acts and this word, term, and this makes the period of hold- knowledge upon the record it is difficult to ing identical with the period of the presidential believe that the President was acting in that office, and does not subject it to the contin- measure of good faith and in the presence and gencies of the tenure of his office or the period under the pressure of a public necessity which of his service. would justify the defiance of a law of even I pass the question whether Mr. Johnson is doubtful import; that in this attempt to put or not serving out his own or the term of Mr. aside a high officer of the Government without 998 charge of misconduct in office, and after his had been suspended, he defies its authority by purpose had been overruled by the Senate, it his removal, appoints General Thomas Secreis submitted there is apparent less of desire to tary of War ad interim, holds him out to the consult the public interests and faithfully to country as the rightful Secretary of War, treats execute the laws than to execute his own pur- him as a constituent member of his Cabinet, poses upon a public officer who had incurred ignores Mr. Stanton altogether, and thus subhis personal displeasure. Nor is it easy to jects the conduct of the office of the Departadopt the opinion that the charges and proof ment of War to the dangers, embarrassments, in support of these may properly be regarded and perils which may come of these conflictas slight or unimportant. ing pretensions, and must come if these preThe President may not arbitrarily and with- tensions are made good by his acquittal. If out cause depose a high public officer with im- to these-be added the spirit of defiance manipunity independent of the act under consider- fest in his message to the Senate of February ation. Wantonly to do it would constitute the 22 last, and his determination, at any and all essence of arbitrary and unbridled power, and.hazards to the public interests, to cause a pertend to establish that irresponsible license over sonally obnoxious public officer "to surrender the laws fatal to republican government, the his office," I am persuaded that the peril to first appearance of which demand to be rebuked our republican structure of government will and resisted. The officers and the office be- have become imminent when such conduct in long and are amenable to the law; they are its the President shall come to be regarded and Servants and not the " satraps " of the Presi- tolerated as slight and trifling, and shall not, dent. The right of removal is not an arbitrary on the contrary, be held as high misdemeanors right in any respect; and, subject to removal in office. Mr. Madison, -in commenting upon himself, the President could have no right to this subject, says: complain of the enforcement of a rule against "I contend that the wanton removal of meritorious him which he couldapply to thosein his power. officers would subject him lthe President] to impeachThe public interest, and that alone, must ment.and removal from his own office." justify the action. A different question is presented on the The President declares in his answer that so second and third articles. On the 21st Febearly as Augustlast he had determined to cause ruary, assuming to have removed Mr. Stanton, Mr. Stanton " to surrender his office of Secre- the President, in writing, authorized General tary of the Department of War." To that Thomas to act as Secretary of War, and apend, on the 12th of the same month, he sus- pointed him Secretary of War ad interim, there pended him from his office on pretense of being no vacancy in that office, or pretense of misconduct in office, as now in his answer vacancy, except the letter to Mr. Stanton of claimed, under the exercise of a power before the same date, the Senate then being in sesunheard of, and certainly never before prac- sion and not being advised upon the subject. ticed or asserted by any of his predecessors, The President, in his answer; insists that at namely, the power to suspend from office in- the date of the letter and its delivery to General definitely, and at his pleasure, not until meet- Thomas there was a vacancy in the office of ing of the Senate, "as incident to the right Secretary of War caused by removal; that, of removal;" and having so suspended, kept notwithstanding the Senate was in session, it that officer out of his office and out of the was lawful and in accordance with long-estabpublic service for many months, and long lished usage to empower said Thomas to act as after Congress and the Senate had convened, Secretary of War ad interim; and that, if the and for reasons stated in his message to the tenure-of-office act be valid, in doing so he Senate, wholly inade qute, unsatisfactory, and violated none of its provisions. unjustifiable in the judgment of that body, and Whether there was or not a vacancy in that which, if not trifling, were characterized by office will depend upon the effect.given to the letpersonal rather than public considerations. ter of removal addressed to Mr. Stanton, which It will be observed that he at once invokes was not acquiesced in, and under which no re-:the aid of the tenure-of-office act to enable him moval defacto was effected; and whether the to suspend from office a public officer who had attempted removal or order of removal was incurred his personal displeasure, and after- justified by any usage arising under any proward, when that had failed, attempts to remove vision of law. It is not pretended that any him in defiance of its authority and in contempt act of Congress expressly confers this power of its validity. He at once invokes and violates while the Senate is in session, much less that the act of 1795. He professes to have appointed the power is drawn from any express provision General Grant Secretary of War ad interim of the Constitution. No parallel in the history under it, and then violated it by retaining him of the Government is shown or is believed to in office contrary to its provisions. exist. The only case at all approaching it is He invokes the judgment of the Senate on that of Timothy Pickering, where the removal the suspension of Mr. Stanton, and after that and the nomination to the Senate of his sucjudgment has been pronounced against him, cessor were simultaneous, and were essentially and under it the officer had returned to his one and the same act, and was in and of itself duties in obedience to the act under which he the mode adopted by the President of obtain 999 ing the advice and consent of the Senate to ciary who reported the act, Hon. Mr. TRUMthe removal. But in this case was an attempted BULL, that it was his understanding that it did removal without reference to the Senate and repeal all former acts upon that subject. independent of it, and the appointment of a But this precise question of the removal of Secretary ad interim, and no nomination to Stanton and appointment of General Thomas the Senate of a successor. Neither by the was fully adjudicated by the Senate and conimplication of the Constitution, laws, nor usage cluded by its action on the 21st February last. was the removal of Mr. Stanton:and the des- This is its record: ignation of General Thomas as Secretary of "Whereas the Senate have received andconsidered War ad interim -authorized. the communication of the President. stating that ho But it is insisted that the removal of Mr. had removed Edwin M. Stanton, Secretary of War, But it is insisted that the removal of Mr. and had designated Lorenzo Thomas to act as SecreStanton having created a vacancy the President tary of War ad interim: Therefore, was authorized to fill it temporarily by the "Resolved by the Senate of the United States, That designation of General Thomas, under the act under the Constitution and laws of the United States the President has no power to remove the Secretary of 1795, and that that act was not repealed by of War and designate any other officer to perform the.act of 1863. This latter act repeals all the dutiesof that office ad interim." acts and parts of acts inconsistent with its Was that adjudication of an act done and provisions; and it is said that its provisions submitted to the Senate for its consideration are not inconsistent in some one or more par- erroneous? The resolution finally passed the ticulars with the former act upon the same Senate without division. subject, and to that extent at least is not re- To those who would weaken the force of this pealed. This construction is quite too narrow. record, or find excuse for the President in the The question is not whether the repealing act unimportance of the transaction, it may be in any particular negatives the former act, but replied that if the Senate would retain its selfwhether in its object and scope it was a:sub- respect or command the respect of others it stantial revision of the law upon the particular must stand by its decrees until reversed for subject. If so, then, by well-established rules error, and not for the reason that the Presiof legal interpretation, it does operate to repeal dent defies them or refuses to yield obedience the former laws upon that subject. to them. The President tells the Senate, in Now, it is apparent from an examination of his communication upon the subject, that as those statutes that the act of 1863 was such stat- early as August last he had " determined to:ute of revision. The act of 1792, upon the cause Mr. Stanton to surrender the office of,same subject, made provision for the case of Secretary for the Department of War." That vacancy by death, and certain temporary dis- issue is now for the third time distinctly before abilities in the State, War, and Treasury De- the Senate, twice by the action of the Presipartments. That of 1795 provided that "in dent, and now by the action of the Represent-,case of vacancy," &c.; and both alike in the atives of the people. A surrender of the cases contemplated provided that the Presi- record of the Senate is a surrender of a pubdent might " authorize any person or persons, lie officer to the predetermined purpose and at his discretion, to perform the duties," &c. personal will of the President. It is needThe act of 1863 provides that in case of resig- less to say such a result would be the deposination, death, absence from the seat of Gov- tion of a high public officer without cause, a ernment, or sickness in the heads of any of triumphant defiance of the law of the land: the existing Departments, the President may and of the supreme legislative authority of the authorize any head of any other Department, country.:&c., to perform the duties, &c. Whoever contemplates such a result with The act of 1863 is a revision of the law on indifference may prepare for the advent of the subject, as it embraces the objects of both executive usurpation totally subversive of our prior statutes; provides for vacancy by resigna- system of government. tion, not provided for specifically, and changes It only remai4s to consider the proposition the rule of both prior statutes as to the per- of the counsel for President that he should not sons to be authorized to perform the duties be held guilty on an assumed innocent mistake temporarily, and makes provision for the other in interpreting the law. In judging of the Departments, and adapts the existing laws to intent with which the President acted, the pubthe present changed state of affairs. Can it lic record of the officer, his acts, speeches, and be doubted that the act of 1863 was intended policy, the current events of history connected to be a revision of the whole law upon the therewith, may properly be considered. The subject; that it did provide and was intended quality of the particular act may be reflected to provide one uniform rule for all the Depart- from the body of official reputation and public ments, and not that in case of vacancy by death, conduct, good or bad. resignation, &c., authorize the appointment of In determining the character of the acts heads of Departments, &e., and in case of complained of touching the intent of the Presvacancy byremovaltoauthorize " anypersonor ident, we may consider whether they relate to persons? " That the act of 1863 was intended his antecedent official conduct, whether they to have this effect is clear from the statement were purely public and official or private and of the chairman of the Committee on the Judi- personal, whether they arose out of some real 1000 or supposed pressing public exigency, or stood alone in the Cabinet, and the difference whether, as in the case of Mr. Stanton, the of opinion could not be reconciled." real or assumed misconduct of a public officer, Those are the "public considerations of a or from a settled determination to get rid of high character," stated in the note of August one who had become disagreeable to him at 5, which was a request for the resignation of all hazards, and because it was his pleasure the Secretary, and which led to his suspension no longer to tolerate him in his office. In this and subsequent removal, to prevent his relight consider some of the facts connected with suming the duties of his office after the action the removal of Mr. Stanton and the- designa- of the Senate. tion of' General Thomas as Secretary of War When before in the history of the Governad interim. In his note of 5th of August last, ment did a President hold that " differences requesting the resignation of Mr. Stanton, the of opinion" of a Cabinet officer as to the policy President says he is constrained to do so from of a law of Congress, or of its constitution"public considerations of a high character." ality, or of the propriety of its enforcement, The precise nature of these considerations it were "public considerations of a high charac. is left to conjecture. ter," which not only "constrained" him to In his message of December 12, 1867, assign- request his resignation of office, but impelled ing the reason for the suspension of Mr. Stan- him to a determination to "'cause him to surton, he says he deemed the reply to his note render the office"-to suspend him-and, deabove referred to as a defiance and expres- feated in that by the adverse action of the Sension of a loss of confidence in his superior, and ate, to remove him, to "prevent him from " that it must necessarily end our most im- resuming the duties of the office?" It is cerportant relations." tain that differences of opinion " in the CabAlso, that Mr. Stanton held opinions upon inet" are not unknown in our history, as to the suffrage bill for the District of Columbia the expediency, the policy, and the interpretand the reconstruction acts of March 2 and 23, ation of laws; that they were marked in the 1867, which could not be reconciled with his Cabinet of Washington, and that they were not own or the rest of the Cabinet, and that there supposed and were not held to be "public was but one result that could solve the diffi- considerations of a character" demanding reculty, and " that was the severance of official moval from office. relations." The present case is especially noticeable, As these reasons antedate those assigned for from the fact of public notoriety, as well as the immediate suspension of Mr. Stanton, and declared in the President's answer and mesare the only causes of recent occurrence, it is sage, that the " difference of opinion " coInfair to presume that the note which is declared plained of was that the opinions of the Secreto have led to the suspension was induced by tary of War were in harmony with those of a predetermination to sever the relations ren- Congress upon the acts mentioned, while those dered necessary, in his opinion, by that want of the President were opposed, as had been of " unity of opinion" existing in the Cabinet expressed in his veto message, and that "difon account of the conflicting opinion of Mr. ficulties " from such " differences of opinion," Stanton. and which could only be solved by suspension In his answer to article one the President and removal from office, were such as are pubsays that on or prior to August 5, 1867, " he licly known to have arisen on the question of had become satisfied that he could not allow the execution of the reconstruction acts of Mr. Stanton to continue to hold the office of March 2 and 23. Secretary for the Department of War without It is observable that no public exigency is hazard to the public interests." " That the stated by the President to have arisen demandrelations between them no longer permitted ing action in Mr. Stanton's case; no malverthe President to resort to him for advice, or be sation or misconduct in office; no disobedience responsible for his conduct of, the affairs of the of, or refusal or neglect to obey orders of the Department of War," and that therefore he President, is alleged or suggested. Besides, ldetermined that he ought not longer to hold the Senate had been recently in session, since said office, and considered what he might law- the " relations and difference of opinion had fully do to cause him to surrender said office. developed," in two different periods, affording Those are understood to be the reasons for ample opportunity for the appointment of his the suspension, as also for the removal, or successor, if the public interests demanded a attempted removal, of the Secretary of War. change of that officer and were of a character They are, substantially, that the " relations to commend themselves to that body. between them " had become such in August, Some stress has been laid upon the want of 1867, as not to "permit the President to resort "confidence" in the Secretary, which would to him for advice, or be responsible for his not permit a resort to him for advice, and renconduct of the Department of War as by law dered it unsafe that the President should be required;" and these "relations" are the responsible for his official conduct. " differences of opinion" upon the "suffrage It is difficult to appreciate the importance bill," and the reconstruction acts of the 2d and which seems to be attached to this statement. 23d March, 1867, " upon which Mr. Stanton The Secretary of War is certainly not the cona 1001 stitutional adviser of the President in his gen- meanors in his office, which, as a remedy for eral administration, noristhePresidententitled the present disorders which afflict the nation to his opinion, except in the case contemplated consequent upon them, and for the future sein the Constitution, and that upon affairs aris- curity against the abuse of executive authority, ing in his own Department, and in relation demand, in harmony with the provisions of the thereto. Constitution, his removal from office. Nor is it obvious what is intended by the statement in the answer by being responsible for his conduct of the affairs of the Department OPINION of War. OF What is the nature of this supposed respon- HON. RICHARD YAT ES. sibility, and how imposed? We are not informed in the answer. No such responsibility is understood to be imposed by the Constitu- It is difficult to estimate the importance of tion, and none is believed to exist in the laws this trial. Not in respect merely to the exalted creating the Department of War and defining position of the accused, not alone in the fact the duties of the Secretary of War. that it is a trial before the highest tribunal By no provision of the Constitution or laws known among us, the American Senate, upon is it believed that the President is chargeable charges preferred by the immediate Representwith the consequences of the misconduct or atives of the sovereignty of the nation, against neglect of duty of that officer with which he the President of the United States, alleging himself is not connected. the commission by him of high crimes and misThe Secretary, and he alone, must answer to demeanors; it is not alone in these respects the violated law for his misconduct and neglect that the trial rises in dignity and importance, of duty, and the assumption that the President but because it presents great and momentous is responsible for them is to assume that the issues, involving the powers, limitations, and War Department is under the direction and at duties of the various Departments of the Govthe discretion of the President, and not under ernment, affecting the very form and structure the statute creating it and by which it is con- of the Government, and the mightiest interests ducted. of the people, now and in the future. It is difficult to believe that in the suspension It has been aptly termed the trial of the Conof and subsequent removal of Mr. Stanton the stitution. Constructions of our Constitution President was actuated solely by " public con- and laws here given and precedents established siderations," and especially does he fail to by these proceedings will be quoted as standard make it clear that he was acting on the pres- authorities in all similar trials hereafter. We sure of a State necessity or public exigency have here at issue, before this highest judicial which justified him in first experimenting with tribunal, in the presence of the American peoa law of Congress by suspending a public offi- ple and of the civilized world, whether our cer under it, and failing of his declared pur- Constitution is to be a landmark to the citizen, pose in that, namely, " to cause him to surren- a guide to the statesman, and authoritative over der his" office, then to defy its authority by the magistrate, or whether this is a land of disregarding it altogether, and remove the offi- anarchy, crime, and lawless usurpation. Itis cer so suspended, confessedly to prevent his a trial which challenges the broadest compreresuming the duties of the office, after the ad- hension of the statesman, the highest intellect verse action of the Senate upon the case sub- and clearest discrimination of the jurist, and mitted to it for its consideration. the deepest solicitude of the patriot. Its issues The doubts which are invoked to shield the are to be determined by clearly ascertaining the President fail to protect him, as he fails to show duties and powers of the coordinate branches any case or public necessity for the exercise of the Government, all jealous of encroachof doubtful power under the Constitution and ments upon their functions, and all in danger laws, vChile his official conduct plainly shows a if one shall usurp powers which by virtue of spirit of hostility to the whole series of acts of the Constitution and laws belong to others. Congress designed for the reconstruction of the Although it seems to me that no man of late insurrectionary States and the pacification honest judgment and true heart can have a of the country, and an intent to obstruct rather possible doubt as to the guilt of the respondent than faithfully to execute these laws. in this cause, and although he has long since If, therefore, doubts arise on the record they been indicted and found guilty in the judgment belong to the country and to the violated laws, and conscience of the American people of a and presumption of innocence cannot obtain giant apostacy to his party-the party of Amerwhere the sinister purpose is apparent. It is ican nationality and progress-and of a long impossible to withhold a conviction of the Pres- series of atrocious wrongs and most daring ident's guilt under the articles presented by the and flagrant usurpations of power, and for House of Representatives for usurpations of three years has thrown himself across the path power not delegated by the Constitution, and of the country to peace and a restored Union, for violation and obstruction of the laws of the and in all his official acts has stood forth withland, and so guilty of high crimes and misde-' out disguise, a bold, bad man, the aider and 1002 abettor of treason, and an enemy of his coun- clause which I have read, to invest the Presi-.try; though this is the unanimous verdict of dent with the power to make a treaty without the loyal popular heart of the country, yet I the concurrence of two thirds of the Senate, shall strive to confine myself, in the main, to which is, as all agree, inadmissible. Any law a consideration of the issues presented in the authorizing the class of appointmentsjust.menfirst three articles. Those issues are simply: tioned, withoutthe Senate'sconcurrence, would whether in the removal of Edwin M. Stanton, be just as much a violation of the constitutional Secretary of War, and the appointment of Lo- provisions which I have read as would a law renzo Thomas Secretary of War ad interim, providing that the President should not nomon the 21st day of February, 1868, the Presi- inate the officer to the Senate at all. No dent willfully violated the Constitution of the appointment is complete without the two actsUnited States, and the law entitled " An act nomination by the President and confirmation regulating the tenure of certain civil offices," by the Senate. in force March 2, 1867. I think my colleague [Mr. TRUMBULL] had Upon the subject of appointments to civil not well considered when he made the stateoffice the Constitution is very explicit. The ment in his argument that "the Constitution oposition may be definitely stated that the makes no distinction between the power of the President cannot, during the session of the President to remove during the recess and:the Senate, appoint any person to office without sessions of the Senate." the advice and consent of the Senate, except The clause of the Constitution which I shall inferior officers, the appointment of whom now quote shows very clearly that the power may, by law, be vested in the President. The of the President to fill vacancies is limited to following is the plain letter and provision of vacancies happening during the recess of the the Constitution defining the President's power Senate: of appointment to office: "The President shall have power to fill up all "He shall have power, by and with the advice and vacancies that may happen during the recess of the consent of the Senate, to make treaties, provided Senate by granting commissions which shall expire two thirds of the Senators present concur; and he at the end of their next session." shall nominate, and by and with the advice and con- His power to fillvacancies during the recess, sent of the Senate shall appoint, embassadors, other public ministers and consuls, judges of the Supreme without the advice and consent of the Senate Court, and all other officers of the United States whose at the time, proceeds from the necessity of the appointments are not herein otherwise provided for, and because the which shall be established by law; but the Congress case, public service would sufer may by law vest the appointment of such inferior unless the vacancy is filled; but even in this officers as they think proper in the President alone, case the commission of the temporary incumin-the courts of law, or in the heads of Departments." bent is to expire at the end ofthe next session Is it not plain, very plain, from the first of the Senate, unless the Senate, during said clause above set forth, that the appointment next session, shall have consented to his apof a superior officer, such as a Secretary of pointment. The reason of this limitation upon War, or the head of any Department cannot be the President to the filling of vacancies hap*made during the session of the Senate without pening during the recess, and why he cannot its advice and consent? It is too clear for appoint during the session of the Senate with-:argument.that the Constitution does not confer out consent, is clearly because the Senate, the prerogative of appointment of any officer being in session, may at the time of the nomupon the President alone during sessions of ination give its advice and consent. The prothe Senate, and that he can only appoint infe- vision that "the President shall have power rior officers even, by virtue of laws passed by to fill all vacancies during the. recess of the Congress, so that the appointment of a head Senate by granting commissions which shall of a Department cannot be made without the expire at the end of the next session," excludes concurrence of the Senate, unless it can be the conclusion that he may create vacancies shown that such appointment is, in the words and fill them during the session and without,of the Constitution, "otherwise provided for;" the concurrence of the Senate. If this view and it is not pretended that any such other is not correct, it would seem that the whole provision can be shown. provision of the Constitution on this point is The framers of the Constitution wisely im- meaningless and absurd. posed this check upon the President to secure The conclusion of the whole-matter is, that integrity, ability, and efficiency in public offi- if the President issued an order for the removal cers, and to prevent the appointment of men of Mr. Stanton and the appointment of Thomas, who, if appointed by the President alone, might without the advice and consent of the Senate, be his mere instruments to minister to the pur- it being then in session, then he acted in palposes of his ambition. pable violation of the plain letter of the ConI maintain that Congress itself cannot pass stitution, and is chargeable with a high misdea law authorizing the appointment of any offi- meanor in office. The production of his own cer, excepting inferior officers, without the order removing Stanton, and of his letter of advice and consent of the Senate, it being in authority to Thomas, commanding him to take session at the time of such appointment. It is possession of the War Office, are all the proofs just as competent for Congress, under the necessary to establish his guilt. And when it 1003 appears, as it does -most conclusively in the is military despotism;" * * * * "the evidence before us, that he not only did -not mere authority to command an army is not an authority have the concurrence of the Senate, but its to disobey the laws of his country., Besides, all the powers of the President are execuabsolute, unqualified dissent, and that he-was five merely. He cannot make a law. He cannot notified of that dissent by a certified copy of a repeal one. He can only execute the laws. He can neither make nor suspend nor alter them. He canresolution to that effect, passed tby the Senae, not even make an article of war." under all the forms of parliamentary deliberation, and that he still willfully and defiantly Secton three, article one of the Constitution, says: persisted, and does still persist in the removal of Mr. Stanton, and to this day -stubbornly "The Senate shall have the sole power to try all impeachments." retains Thomas as a member of his-Cabinet, impeachments." then who shall say that he has not wickedly I was present on the 15th day of April,.1865, trampled the Constitution under his feet, and the day of the death of the lamented Lincoln, that he does not justly deserve the punishment when you, Mr. President, administered to due to his great offense? Andrew Johnson the oath of office as PresiThat the facts stated are proved and substan- dent of the United States. He then and there tially admitted in the answer of the President swore that he would " preserve, protect, and to article first will not be denied by the coun- defend the Constitution of the United States," sel for the respondent nor by his apologists on and " take care that the laws should be faiththe floor of the Senate. fully executed." The next question to which I invite attention On the 2d of March, 1867, Congress passed is whether the President has intentionally a law over the veto of the President entitled violated the law and thereby committed a "An act to regulate the tenure of certain civil misdemeanor. Blackstone defines a misde- offices," the first section of which is as follows: meanor thus: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assem"A crime or misdemeanor is an act committed or bled, That every person holding any civil office to omitted in violation of a public law either forbidding which he has been appointed by and with the advice or commanding it." and consent of the Senate, and every person who may Misdemeanor in office, and misbehavior in hereafter ble appolinfited to act tsuch eioff is, and shall office, or official misconduct mean the same be, entitled to hold such office until a successor shall thing. Mr. Madison says, in Elliott's Debates, have been in like manner appointed and duly qualified, except as herein otherwise provided: Provided, thatl- That the Secretaries of State, of the Treasury, of " The wanton removal of meritorious officers would War, of the Navy, and of the Interior, the Postmaster subject him [the President] to impeachment and General, and the Attorney General, shall hold their removal from his own high trust." offices respectively for and during the term of the President by whom they may have been appointed, Chancellor Kent, than whom no man living and for one month thereafter, subject to removal by or dead ever stood higher as an expounder of and with the advice and consent of the Senate." constitutional law, whose commentaries are This law is in entire harmony with the Conrecognized in all courts as standard authority, stitution. "Every person appointed or to be and whose interpretations are themselves appointed"' to office with the advice and conalmost laws in our courts, says, in discussing sent of the Senate shall hold the office until the subject of impeachment: a successor shall "in like manner," that is, "The Constitution has renderedhim [the President] " by the advice and consent of the Senate," be directly amenable by law for maladministration. The appointed and qualified. This is obviously in inviolability of any officer of the Government is pursuance of the Constitution. incompatible with the republican theory as well as *ith the principles of retributive justice. Now, if we construe this section independ"If the President will use the authority of his ently of the proviso, we shall see that the station to violate the Constitution or law of the land, removal of Mr. Stanton without the advice and the House of Representatives can arrest him in his career by resorting to the power of impeachment."- consent of the Senate, and before his successor 1 Kent's Corn., 289. was appointed with the advice and consent of Story,*of equal authority as a commentator the Senate, was a misdemeanor, and was so on the Constitution, says: declared and made punishable by the sixth "In examining the parliamentary history of im- section of the same act. And, again, if Mr. peachments, it will be found that many offenses not Stanton's case is excepted from the body of easily definable by law, and many of a purely polit- the act, and comes without the proviso, then ical character, have been deemed high crimes and his removal without the concurrence of the misdemeanors worthy of this extraordinary remedy." s rem oval without the on of the Senate, was a violation of the law, because, Judge Curtis, one of the distinguished.coun- by the terms of the proviso, he was only subsel for the respondent in this case, said in 1862: ject to removal by and with the advice and " The President is the Commander-in-Chief of the consent of the Senate. Army and Navy, not only by force of the Constitu- But my colleague r. TRumBULL] contends tion, but under and subject to the Constitution, and to every restriction therein contained, and to every. that Mr. Stanton was not included in the body law enacted by its authority, as completely and of the section, because there is a proviso to it clearly as the private in the ranks. He is General- which excepts him and other heads of Departin-Chief; but can a General-in-Chief disobey any law ha a of his own country.? When he can he superadds to his ments from "every other civil officer," and rights as commander the powers of a usurper, and that yet he argues that he is not in the proviso 1004 itself, which certainly is strange logic. He ton's term expired with the death of Lincoln, argues that his tenure-of-office was given under and Mr. Johnson did not reappoint or comthe act of 1789, and that by that act the Presi- mission him, then from the death of Mr. Lindent had a right to remove him. If this be so, coin until the commencement of this trial there why did not the President remove him under was no legal Secretary of War, and the Presithat act, and not suspend him under the ten- dent permitted Stanton to act without authority ure-of-office act, and why did my colleague act of law, to disburse millions of public money, under the tenure-of-office law in restoring Mr. and to perform all the various functions of Stanton? Secretary of War without warrant of law, which It is claimed that Mr. Stanton is not included would of itself be a misdemeanor. I believe within the civil-tenure-of-office act, because he it was the Senator from Maine [Mr. FESSENDEN] was not appointed by Mr. Johnson, in whose who said "dead men have no terms." When term he was removed; that he was appointed that Senator was elected for six years to the by Mr. Lincoln, and that Mr. Stanton's term Senate, does it not remain his term though he expired one month after his (Mr. Lincoln's) should die or resign before its expiration, and death, and that Johnson is not serving part of would not his successor chosen to fill the Mr. Lincoln's term. vacancy serve simply for the remainder of his The true construction of the whole section, term, and not a new term of his own for six including the proviso, is that every person years? I could consentto the construction of appointed and to be appointed, with the advice the Senator from Maine if, instead of limiting and consent of the Senate, is to hold the office the presidential term to four years, it had until his successor shall have been in like man- provided that his term should be four years or ner appointed and qualified, except the heads till the death of the President, in case of his of Departments, who are to hold their offices, decease before the expiration of the four years; not till their successors are appointed, but but it does not so provide. during the term of the President by whom they The meaning of the word "vice" in Vice may have been appointed and for one month President is, " instead of" or "to stand in longer, and always "subject to removal byand the place of;" " one who stands in the place with the advice and consent of the Senate." of another." Therefore, Mr. Johnson sucNow, the only object of the proviso was to ceeded, not to his own, but to Mr. Lincoln's confer upon the Secretary of War, and other term, with all its conditions and incidents. heads of Departments, a definite tenure of Death does not terminate a man's term of office, and a different term from that given in office. If a tenant of a farm for a term of the body of the act. Can anything be plainer seven years dies at the end of his first year, than that the case of Stanton is embraced in the remainder of the lease vests in his legal the meaning of the section, and that he is representatives; so the remainder of Mr. Linentitled either to hold until his successor shall coln's term at his death vested in his succeshave been appointed, by and with the advice sor, Mr. Johnson. It follows that Mr. Stanand consent of the Senate, or during the term ton's term, ascertained by the act of March 2, of the President, not "in which he was 1867, does not expire till one month after the appointed," but " during the term of the Pres- 4th of March, 1869, and that his removal and ident by whom he was appointed?" the appointment of an officer in his place, withAt the time of the passage of the act of out the advice and consent of the Senate, was March 2, 1867, Mr. Stanton was holding the a violation of the law. office of Secretary of War for, and in the term The second section provides that when the of, Mr. Lincoln, by whom he had been ap- Senate is not in session, if the President shall pointed, which term had commenced on the deem the officer guilty of acts which require 4th of March, 1865, and will end March 4, his removal or suspension, he may be sus1869. The Constitution defines the President's pended until the next meeting of the Senate; term thus: " He shall hold his office during and that within twenty days after the meeting the term of four years." It further says that of the Senate the reasons for such suspension the term of the Vice President shall be four shall be reported to that body; and if the Senyears. In case of death or vacancy " the duties ate shall deem such reasons sufficient for such of his office shall devolve on the Vice Presi- suspension or removal, the officer shall be condent." When Mr. Lincoln died Mr. Johnson's sidered removed from his office; but if the term was not a new one, but he succeeded to Senate shall not deem the reasons sufficient Mr. Lincoln's office and performs its duties for suspension or removal, the officer shall for the remainder of Mr. Lincoln's term. Mr. forthwith resume the functions of his office, Stanton was appointed by Mr. Lincoln, and, and the person appointed in his place shall according to the proviso, holds for the term cease to discharge such duties. ofthe President "by whom he was appointed, That is to say, when any officer, appointed and one month thereafter," and can be re- in manner and form as provided in the first moved only by the appointment of a successor, section-that is, by and with the advice and with the advice and consent of the Senate, consent of the Senate-is suspended, and the before the expiration of his term. Senate does not concur in the suspension, such If, as contended by the President, Mr. Stan- officer shall forthwith resume the functions of 1005 his office. Mr. Stanton, having been appointed are we to stultify ourselves, and swallow our by and with the advice and consent of the Sen- own words and resolutions passed in the most ate, was suspended, but the Senate refused to solemn manner? Can we say that the Presiconcur in his suspension. According to the dent did not violate the law? That he did not law he was then entitled to resume the func- become liable to conviction for violating the tions of his office, but the President does not provisions of the tenure-of-office act, after he permit him to do so and refuses to have official has admitted, in his answer upon this trial, relations with him, and has appointed and recog- that he tried to rid himself of Stanton by comnized as a member of his Cabinet another plying with the act; and after he has acknowlSecretary of War. Is not this a palpable vio- edged that he was acting under the law of lation of the very letter of the law? By what March 2, 1867, as shown by his letter to the technical quibble can any Senator avoid the Secretary of the Treasury, dated August 14, conviction of the culpriit' who thus defies a 1867, as follows: statute? If it is admitted that the President " SIR: In compliance with the act entitled'An act can legally " remove " Mr. Stanton, that proves to regulate the tenure of certain civil offices,' you are too much, because the second section of the hereby notified that on the 12th instant Hon. Edwin too much, because the second section of the M. Stanton, Secretary of War, was suspended from act in question declares that the President his office as Secretary of War, and General Grant shall only" suspend" the officer, and in the case authorized and empowered to act as Secretary ad of suspension, and that only, and during recess, nterim. may an ad'interim appointment be made. An To show, also, how trifling is the plea of the ad interim appointment upon a removal is President that the law did not apply to this absolutely prohibited. As was well said by the case, after he had acted upon it as above Senator from Oregon, [Mr. WIALLAMS:] stated by himself, and after he had reported "Vacancies in office can only be filled in two ways the reasons for suspension within the twenty under the tenure-of-office act. One is by temporary days, as required by the act, there is the furor ad interim appointment during the recess of the ther and still more conclusive proof that the Senate; the other is by appointment, by and with forms of commissions and official bonds were the advice and consent of the Senate, during theform o rqens of e ses88sion. altered to conform to the requirements of the Let us see-the Senate being the sole tribu- same tenure-of-office act, and under his own nal to try impeachments and to decide upon sign-manual issued to his appointees commisthe validity and violation of this law-what sioned since its passage. If it be admitted, action the Senate has already taken. then, that Mr. Stanton's case did not come On the 12th day of August, 1867, the Senate within the provisions of the first section of the then not being insession, the Pact, yet is the President clearly guilty under then not being in session, the President then not bei second section? pended Edwin M. Stanton, Secretary of the I shall now ask attention to the sixth section Department of War, and appointed U. S. of the act, which is as follows: Grant, General, Secretary of War ad interim. On the 12th day of December, 1867, the Sen- "That every removal, appointment, or employment made, had, or exercised contrary to the proate being then in session, he reported, accord- visions of this act, and the making, signing, sealing, ing to the requirements of the act, the causes countersigning, or issuing of any commission or letof such suspension to the Senate, which duly ter of authority for or in respect to any such appointment or employment, shall be deemed, and are took the same into consideration, and by an hereby declared to be, high misdemeanors; and upon overwhelming vote of 35 to 6 refused to concur trial and conviction thereof every person guilty in the suspension, which action, according to thereof shall be punished by a fine not exceeding $10,000. or by imprisonment not exceeding five years, the tenure-of-office act, reinstated Mr. Stanton or both said punishments, in the discretion of the in office. The President, bent upon the re- court." moval of Stanton, in defiance of the Senate If this section stood alone, who can deny that and of the law, on the 21st day of February, by his order to Thomas appointing him Secre1868, appointed one Lorenzo Thomas, by letter tary of War ad interim, and commanding him of authority or commission, Secretary of War to turn Mr. Stanton out of office and take posad interimh, without the advice and consent of session of the same, its books, and papers, he the Senate, although the same was then in did commit a misdemeanor, especially when, session, and ordered him (the said Thomas) to by the very terms of this section, the issuing take possession of the Department of War and of such an order is expressly declared to be a the public property appertaining thereto, and high misdemeanor, and punishable by fine and to' discharge the duties thereof, and notified imprisonment'? the Senate of his action. The Senate consid- The second article charges that the Presiered the communication, and, after debate, by dent violated this law by issuing to General a vote of 29 to 6, passed the following resolu- Thomas a letter of authority as Secretary of tion: War ad interim. How, then, can my colleague "Resolved by the Senate of the United Stdtes, That use the following language: under the Constitution and laws of the United States the President has no power to remove the Secretary "Considering that the facts charged against the of War and to designate any other officer to perform President in the second article are in no respect conthe duties of that office ad interimz." trary to any provision of the tenure-of-office act, they do not constitute a misdemeanor, and are notforbidAnd now, after such action under our oaths, den by any statute." 1006. How can he justify such a statement, when watchtower of liberty, he gave the people wara he admits that the letter of authority was issued, ing against Johnson's schemes of mad ambiand it is specifically declared in.the act to be a. tion. misdemeanor? In proof of the respondent's malicious inAgain, it is said that the prosecution is bound tent to violate the law I refer you to his attempt to prove criminal intent in the President. Such to induce General Grant to aid him in. open, is not the law. The act itself proves the intent, avowed violation of the law, as proved in his if deliberately done by the party committing letter to Grant dated January 31, 1868. He it. Such is the construction and the practice therein declared his purpose to eject Stanton, in all courts. If any person voluntarily com- "whether sustained in the suspension or not," mits an unlawful act the criminal intent is and upbraided Grant because, as he alleges, presumed. The principle is as old as our civ- Grant agreed, but failed, to help him keep ilization, recognized in all courts of our own Stanton out by refusing to restore the office to and other countries, that any unlawful act, vol- Stanton, as by the second section of the act untarily committed by a person of sound mind of March 2, 1867, he was required to do. He and mature age, necessarily implies that the says: person doing it intends all the consequences "You had fund in our first conference'that the necessarily resulting therefrom. The burglar President was desirous of keeping Mr. Stanton oat who breaks into your house in the night, with of office, whether sustained in the suspension or not.' revolver in hand, mcay plead for the burglary, You knew what reasons had induced the President to ask from you a promise; you also knew that in larceny, and even murder itself, the not un- case your views of duty did not accord with his own worthy motive that his only purpose was to convictions it was his purpose to fill your place by pirocure subsistence for his starving wife and~ another appointment. Even ignoring the existence rocure subsistence for his starving wife and of a positive understanding between us, these conlittle ones. Booth, the vilest of assassins, clusions were plainly deducible from our various condeclared, while committing the bloodiest crime versations. It is certain, however, that even under in time's frightful calendar, that he murdered these circumstances you did not offer to return the place to my possession, but, according to your own a tyrant for the sake of humanity and in the statement, placed yourself in a position where, could sacred name of patriotism. I have anticipated your action, I would have been But it is not necessary to insist upon the compelied to ask of you, as I was compelled to ask of your predecessor in the War Department, a letter technical rule that the criminal intent is to be of resignation, or else to resort to the more disagreepresumed on proof of the act; for if there is able expedient of suspending you by a successor." one thing that is directly proved, that stands That he intended to violate the law by preout in bold relief, that is plain as the sun at venting Mr. Stanton from resuming the funcnoonday, it is that the President willfully, wick- tions of his office, as provided by law, should edly, and defiantly violated the law; and that, the Senate non-concur in his suspension, is after due notice and admonition, he wickedly clearly proved by his other letter to General and with criminal perverseness persisted in Grant of February 10, 1868, from which I quote violating the Constitution and the laws, and in as follows: bold usurpations of power unsettling the proper "First of all, you here admit that from the very checks, limitations, and balances between the beginning of what you term'the whole history' of departments of the Government; with malice your connection with Mr. Stanton's suspension, you aforethought striving to eject from office a faith- intended to circumvent the President. It was to carry out that intent that you accepted the appointful servant of the people, whose only crime was ment. This was in your mind at the time of your his loyalty, and substituting in his stead a man acceptance. It was not, then, in obedience to the Pwho was to be his willing instrument in thwart- order of your superior, as has heretofore been suping the policy and legislation of the people's posed, that you assumed the duties of the office. You ingthepolicy and legislation of thepeople's knew it was the President's purpose to prevent Mr. Representatives and in placing the Govern- Stanton from resuming the office of Secretary of ment again in the hands of rebels, who with War." corrupt hearts and bloody hands struck at the If you want intent proved, how can you more nation's life. clearly do it than to use his own words that it Edwin M. Stanton, Mr. Lincoln's faithful was his "purpose to do the act, and that Grant minister and friend; whom the people learned knew that was his purpose from the very to trust and lean upon in the dark hours of the beginning, when Stanton was suspended?" Republic, who wielded that mighty enginery Is it necessary to dwell upon the subject of by which our army of more than a million of intent when in his own answer he confesses to men was raised, clothed, armed, and fed; who having violated the law which expressly says with the genius of a Napoleon comprehended that the officer, for good reasons only, should the vast field of our military operations and be suspended until the next session of the organized war and victory with matchless skill Senate, and coolly tells us that he " did not -a man of unstained honor, spotless integrity, suspend the said Stanton from office until the unquestioned loyalty, having the confidence of next meeting of the Senate," as the law proall loyal hearts in the country-this was the vided, " but by force and authority vested in man who incurred the bitter hatred of John- him by the Constitution he suspended him inson because he opposed his usurpations and deJinitely, and at the pleasure ofthe President, his policy ad acts in the interest of traitors, and that the order was made known to the and because, like a faithful sentinel upon the Senate of the United States on the 12th day 1007 of December, 1867. " In other words, he says not until the ghost of impeachment, the terto the Senate with most complacent effrontery, rors of a broken oath, and removal from the "Your law says I shall only suspend Stanton high trust which he has abused, as a punishto the end of twenty days after the beginning ment for violated law, rose up to confront him of your next session. I have suspended him that he resorted to the technical subterfuges of indefinitely, at the pleasure of the President, his answer that the law was unconstitutional, and I defyyou to punish or hinder me." With and the specious plea that his purpose in resistall this the respondent's counsel ask for proof ing the law was to test its validity before the of criminal intent. Supreme Court. He tells the law-making power of the sover- In the whole history of these transactions he eign people that he sets up his pleasure against has written as with a pen of steel, in dark and the.positive mandates of law. He tells the imperishable lines, his criminal intent to vioSenate, " I do not acknowledge your law, late the law. First, he attempted to seduce which you by your votes on your oaths adopted General Grant to his purpose, but he indigand declared constitutional. I think it uncon- nantly refused; then General G. H. Thomas; stitutional, and so said in my veto message, then General Sherman; then General Emory; and I will not execute the law, but I will exe- and, finally, he selected General Lorenzo cute my veto; the reasons of my veto shall be Thomas, a man who was willing, as he testimy guide. I understand the constitutionality fies, " to obey the President's orders;" and of the law better than Congress, and although who, in pursuance of those orders, threatmy message vetoing the bill was overruled by ened to "kick Stanton out;" and "if the two thirds of Congress, and though you have doors of the War Office were barred against declared by law that I can only suspend Stan- him" he would " break them down by force;" ton, I choose, of my own sovereign will, which and who says on his oath that he would have is above law, to remove him indefinitely. Fur- executed his threats on the following day but thermore, your law says, that in case his sus- for his arrest after his return from the masquepension is not concurred in by the Senate, Mr. rade ball. Stanton shall forthwith resume the functions And now, as Senators, we are exhorted to of his office, and you have by resolution, a find him guiltless in violating a law which we copy of which I confess to have received, have often declared constitutional and valid, refused to concur with me in suspending him. upon the subterfuge, the afterthought of the I shall not, however, suffer him to hold the criminal, the excuse of a law-breaker caught in office, and I have appointed Lorenzo Thomas the act, the plea born of fear and the terrors Secretary of War, not with your advice and of impeachment, and shown bythe record made consent, but contrary to the same." This is by his own hands to be utterly false. For one the- offense of the President which, in thejudg- I cannot be so false to conviction, so regardment of the President's apologists, is so "tri- less of fact, so indifferent to consistency, so fling" that we ought to pass it by in silence, blind to evidence, so lenient to crime, so reckor rather excuse by approving it in our verdict. less of -my oath and of my country's peace. But what shall we say of the President's Ours is aland of law. The principle of subcrime when to the violation of law he adds mission to the authority of law is canonized in falsehood and deception in the excuses he the hearts of the American people as a sacred gives for its violation? His plea that he vio- thing. There are none too high to be above lated the law because of its unconstitutional- its penalties, none too low to be beyond its proity and his desire to refer it to the Supreme tection. It is a shield to the weak, a restraint Court is shown to be a mere subterfuge-an to the strong, and is the foundation of civil afterthought-by the fact that in August last, order and peace. When the day comes that when he designated Grant to perform the duties the laws: may be violated with impunity by of the War Office, he distinctly avowed that he either high or low all is lost. A pall of darkwas acting under the act of March 2, 1867; by ness will shut us in with anarchy, violence the fact that he had caused the Departments and blood as our portion, and I fear the sun of to so alter the forms of commissions and bonds peace and liberty will never more illumine our as to make them conform to this very statute; nation'spath. Thenationlooks foramostcareby the fact that he reported reasons for the ful observance of the law by the highest officer suspension, as required in the act, in an elab- known to the law, because he has an " oath orate message to the Senate; and, finally, by registered in Heaven" that he " will take care the fact that nowhere in said message does he that the laws shall be faithfully executed." If intimate that he does not recognize the valid- the President of the United States, who should ity of the act, but argues distinctly that he be the high exemplar to all the people, shall vioproceeds under the same. He did not tell late his oath with impunity, at his mere pleasSenators in that message that the act was ure dispense with or disregard or violate the unconstitutional, and that he had suspended law, why may not all do the same? Why not Stanton indefinitely. And I assert that every at once sweep away the Constitution and laws, Senator was led to believe that it was the pur- and level to the earth our temples of liberty pose of the President to regard the act valid, and and justice; resolve society into its original to abide the judgment of the Senate. It was elements, where brute force, not right, shall 1008 rule, and chaos, anarchy, and lawless violence yet if it is passed over his veto by two thirds dominate the land? of the Senate and House of Representatives. The Constitution and the laws passed in pur- his power ceases and his duties are at an end, suance thereof are "'the supreme law of the and it becomes a law, and he is bound by his land." The President admits in his answer oath to execute it and leave the responsibility and in his defense that he acted in violation where it belongs, with the law-makers, who of the provisions of a statute, and his strange must answer to the people. If he then refuses and startling defense is that he may suspend to execute it, what is this but simple resistthe operation of a law; that is to say, in plain ance, sedition, usurpation, and, if' persisted terms. violate it at his pleasure, if, in his opin- in, revolution? Is it in his discretion to say ion, the law is unconstitutional; " that being it is not a law when the Constitution says, in unconstitutional it is void, and that penalties the plain English vernacular, it is a law? Yes, do not attach to its violation." Mr. President, it is a law to him and to all Mr. President, I utterly deny that the Pres- the people, to be obeyed and enforced throughident has any such right. His duties are min- out all the land. isterial, and in no sense judicial. It is not his It is a plain provision of the Constitution prerogative to exercise judicial powers. He "that all legislative power granted by this must execute the laws, even though the Legis- Constitution shall be vested in a Congress, lature may pass acts which in his opinion are which shall consist of a Senate and House of unconstitutional. His duty is to study the law, Representatives." The President is no part not with the purpose to set it aside, but that of this legislative power. His veto message is he may obey its injunctions strictly. Can a merely suggestive, and if his reasons are deemed sheriff, sworn to execute the laws, refuse to insufficient he is overruled, and the bill becomes hang a convicted murderer because, in his a law "in like manner" as if he had approved judgment, the law'under which the criminal it. The doctrine contended for by the Presihas been tried is unconstitutional? He has no dent is monstrous, and if admitted is the end remedy but to execute the law in manner and of all free government. It presents the quesform as prescribed, or resign to a successor tion whether the people of the United States who will do so. are to make their own laws through their RepI quote from the Constitution to show how resentatives in Congress, or whether all the laws become such, and that when certain pre- powers of the Government, executive, legisscribed forms are complied with the require- lative, and judicial, are to be lodged in a sinmeents of a law must be observed by all as long gle hand? He has the executive power, and as it remains on the statute-book unrepealed is Commander-in-Chief of the Army and the by the Congress which made it, or is declared Navy. Now, if it is his province to judicially of no validity by the Supreme Court, it of interpret and decide for himself what laws are course having jurisdiction upon a case stated: constitutional and of binding validity upon him, " Every bill which shall have passed the House of then he has the judicial power, and there is no Representatives and the Senate shall, before it be- use for a Supreme Court; and, if having comes a law, be presented to the President of the decided a law, n his opinion, to be unconstiUnited States; if he approve, he shall sign it, but if.not, he shall return it with his objections to that tutional, he may of his own will and sovereign House in which it shall have originated, who shall pleasure set aside, dispense with, repeal, and enter the objections at large on their Journal and pro- violate a law which has passed over his veto, ceed to reconsider it. If. after such reconsideration, two thirds of that House shall agree to pass the bill, then he has the legislative power, and Conit shall be sent, together with the objections, to the gress is a myth, worse than " an excrescence other House, by which it shall likewise be reconsid- on the verge of the Government." ered, and if approved by two thirds of that House it shall become a law." * * * * * * Thus the purse and the sword, and all the " If any bill shall not be returned by the President powers which we heretofore considered so within ten days (Sundays excepted) after it shall have nicely balanced between the various Departbeen presented to him, the same shall be a law in like manner as if he had signed it, unless the Con- ments of the Government, are transferred to hicss by their adjournment prevent its return, in a single person, -and the Government is as essentially a monarchy or a despotism as it Every bill which has passed the House of would be if the Constitution and Congress Representatives and the Senate, and been ap- were obliterated and the whole power lodged proved by the President, "shallbecomealaw." in the hands of the President. When such If not approved by him, and it is again passed questions as these are involved shall we wonder by two thirds of each House, " it shall become that the pulse of the popular heart of this a law;" and if he retains it more than ten nation beats and heaves with terrible anxiety days, whether he approve or disapprove, it as we near the final judgment on this great shall still "become a law." No matter how trial, in which the life of the nation hangs pertinent may be his objections in his veto trembling in the scale, as much so as when it message; no matter with how much learning was struggling for existence in the perilous or law he may clothe his argument; no matter hours of the war through which it has recently how vividly he may portray the evil which may passed. Am I, as a Senator and one of this result from ifs execution, or how flagrantly it high court of impeachment, called upon to may, in his view, conflict with the Constitution, register, not that the Constitution and the laws 1009 shall be the supreme law, but that the will of what some future decision of a court having one man shall be the law of the land? no jurisdiction in the case might be. Let us look at another point in the defense. Impeachable misdemeanors partake of the The President says he violated the law in re- nature of both political and criminal offenses. moving Stanton for the purpose of making a Hence the Constitution -has wisely conferred case before the Supreme Court, and thus pro- upon the people, through their Representatives curing a decision upon the constitutionality of in Congress, the right and duty to become the the law. That is, he broke the law in orderto prosecutors of great offenders for violations of bring the judiciary to his aid in resisting the laws and crimes tending to the destruction of -will of the people. I would here commend to social order and the overthrow of government, his careful attention the opinion of Attorney and has devolved the trial of such cases upon General Black, his whilom constitutional ad- the Senate, composed of men supposed to be viser. He says, in 1860: competent judges of law and facts, and who *' But his [the President's] power is to be used only are allowed larger latitude of rulings than perin the manner prescribed by.the legislative depart- tains to courts. With this view I have tried to iment. He cannot accomplish a legal purpose by weigh mpartially the testimony in this case. illegal means, or break the laws himself to prevent weigh impartially the testimonyin this case.do them from being violated by others."-9 Opinion I would not wrong the respondent, nor do I:Attorneys General, 516. wish harm to come to the institutions of this It is to be regretted that considerations of land by his usurpations. I also desire to be at gravity prevented the President from consistent with myself so far as I may justly do ipearing here by counsel thus committed to so. I voted, not in haste, but deliberately, that:a view of the extent of executive authority at the action of the President in removing or once so just and so acceptable to the candid attempting to remove Stanton was unconstipatriot. tutional and in violation of law. Inasmuch as it has already been shown that Is it possible that there is some newly-disgood intentions do not justify the violation of covered "quirk" in the law, not understood known law, I am unable to see the propriety on the 24th of February last, which renders of stopping the wheels of Government and Johnson's act less criminal than it then apholding in abeyance the rights of many indi- peared? Did not Senators believe the act of viduals, and paralyzing the usefulness of our March 2, 1867, constitutional when they voted Army, until the President sees fit to proceed for it? After the President had arrayed all through all the formalities and tedious delays conceivable objections against it in his veto, of the Supreme Court, or any other court. If did not two thirds of this and of the other the President can do this, why may not any House still vote it constitutional and a valid and all parties refuse compliance with the re- law? Did they not by solemn -resolution quirements of inconvenient laws upon the declare that the President had violated it same plea? To oppose such a view with argu- and the Constitution in removing Stanton and.ment is to dignify an absurdity. appointing Thomas? How can we say, while One other point of the defense I wish to notice under oath we -try this man, that he is innobefore closing. It is argued at length that an cent? Is it not trifling with the country, a offense charged before a court of impeachment mockery of justice, an insult to the representmust be-an indictable one, or else the respond- atives of the people, and a melancholy instance ent must have a verdict of acquittal. Then of self-stultification, for us to solemnly declare why provide for impeachment at all? Why the President a violator of law, thus inviting did not the Constitution leave the whole matter and making it the duty of the House of Repto a grand jury and the criminal courts? Noth- resentatives to prosecute him here, and, after:ing can be added to the arguments and cita- long investigation, at large expense of the peo-:tions of precedents by the honorable Managers ple's money, with both confession of the crimon this point, and those most learned in the inal and large and conclusive proofs of the law cannot strengthen that view which is obvi- crime-all this and more-for us to declare ous to tbhe most cursory student of the Consti- him not guilty? tution, namely, that impeachment is a form The position in which Senators are placed of trial provided for cases which may lack as by the votes which they have heretofore given well as those which do contain the features of is so well stated in an editorial of a leading indictable crime. Corresponding to the equity newspaper of my own State, the Chicago Tribside of a civil court, it provides for the trial une of May 7, 1868, that I extract from it as and punishment not only of indictable offenses, follows: but of those not technically described in rules of criminal procedure. The absurdity of the "Johnson disregarded the Constitution and the of criminal procedure. The absurdity of the law, and broke them both by appointing a Secretary -respondent's plea is the more manifest in this of War without the consent of the Senate when no case, because, not the Supreme Court, butthe vacancy existed." * * * * * Senate of the United States is the only tribunal * "No man can tell how black-letter lawyers may be Senate of the United States is the only tribunal influenced by hair-splitting niceties, legal quirks, and to try impeachments, and the President's vision musty precedents." * * * * * * should rather have been directed to what the _" Now, to acquit Andrew Johnson is tQ impeach the Senate, sitting as a -court of impeachment, Senate, to insult and degrade the House, and to betray Senate, sitting as a court the people. If Johnson is not guilty of violating the would decide, than to have been anticipating law and the Constitution. the Senate is guilty of susC. I,-64. 1010 taning Stanton in defiance of the Constitution; is inate use of the pardoning power, his removal guilty of helping to pass an unconstitutional law; s of our most faitful military officers from their guilty of interfering with the executive prerogatives. posts, that he has been the great obstacle to Every Senator who voted for the tenure-of-office bill. posts, ts een te grea osace who voted that Johnson's removal of Stanton was in the reconstruction of the Union. violation of that law, who voted to order the Presi- With his support of Congress in its measures dent to replace Stanton, and who now votes for the acquittal of Johnson, stultifies and condemns him- every State would long since have resumed its self as to his previous acts, and the whole country friendly and harmonious relations to the Govwill so understand it. ernment, and our forty millions of people would "The Senate knew all the facts before the Houseorte i oped impeached; the Senate's action made impeachment have rejoiced again in a restored and happy obligatory on the part of the House, and on the heads Union. It is his perverse resistance to almost of the Senators rests theresponsibility of defeating a every measure devised by Congress which verdict of guilty against a criminal who stands self- ye confessed asguiltyof breaking the law and disregard- retarded the work of reconstruction, reanimated ing the Constitution. No matter what personal the hopes and reinflamed the virus of rebellion antipathy Senators may feel for the man who will in the southern States. The Freedmen's Bubecome Johnson'ssuccessor, no matter aboutthe plots reau bill, the civil rights bill, and the various and schemes of the high-tariff lobby, the Senate has reau bill, the civil rights bill, and the various a solemn duty to perform, and that is to punish a reconstruction bills were remorselessly vetoed willful and malicious violation of the law. If the by him, and every obstacle thrown in the way President, in disregard of his oath, may trample on of their proper a the law, who is bound to obey it? If the President of their proper and efficient execution. His is not amenable to the law, he is an emperor, a des- unvarying purpose seems to have been to save pot; then what becomes of our boasted government the rebel oligarchy from the consequences:y law, of our lauded free institutions?" which our victory pronounced upon it, and to?My colleague is certainly in error when he enable it to accomplish by his policy and ~~~~~says ~: ~abuse of his power what could not be accom"It is known, however, that the resolution coupled auhed by the power wacudobe the two things, the removal of the Secretary of War pwer of the sword. The reand the designation of an officerad interim, together, bellion lives in his vetoes and acts. so that those who believed either without authority If some daring usurper, backed by a powerwere compelled to vote for the resolution." ful faction, and the Army and Navy subject to Just the reverse of that is the true doc- his call, should proclaim himself kin'g or dicta. trine. If a Senator believed one branch of tor, would not the blood leap in the heart of the proposition to be true and the others false, every true American? And yet how little less he was bound by his oath to vote against the than this is the condition of our public affairs, resolution. and who has not seen on the part of Andrew Where two allegations are made, one of Johnson a deliberate purpose to override the which is true and the other false, there is no sovereign power of the nation and to usurp obligation to affirm both. dangerous, dictatorial, and kingly powers? Mr. President, I ought, in justice to those And what true patriot has not felt that in such who may vote for acquittal, to say that I do conflicts of power there is eminent peril to the not judge them. Nor do I think it a crime to life of the Republic, and that if some check, vote in a minority of one against the world. by impeachment or otherwise, be not put upon When I have taken an oath to decide a case these presidential usurpations the fruits of the according to the law and the testimony I war will be lost, the rebellion triumph, and the would patiently listen to my constituents, and last hope of a permanent reunion of the States be willing, perhaps anxious, to be convinced be extinguished for ever? by them; yet no popular clamor, no fear of For reasons such as these-and for proof of punishment or hope of reward, should seduce which there is much of evidence in the docume from deciding according to the conviction ments and records of this trial-but more espeof my conscience and my judgment; therefore, cially for the violation of the Constitution and I judge no one. Our wisest and most trusted of positive law, I cannot consent that with my men have been often in a minority. I speak vote the President shall longer work his treachfor myself, however, when I say it is very hard erous and despotic will unchecked upon my for me to see, after what seems to me such suffering countrymen. plain proof of willful and wicked violation of Mr. President, this is a tremendous hour for law, how any Senator can go back upon him- the Republic. Gigantic interests and destinies self and his record, and upon the House of concentrate in the work and duties of the eventRepresentatives and the country, and set loose ful moments through which we are passing. the greatest offender of modern times, to repeat I would do justice, and justice requires conat pleasure his acts of usurpation, and to plead viction; justice to the people whom he has so the license and warrant of this great tribunal cruelly wronged. I would be merciful, mercifor his high crimes and misdemeanors. ful to the millions whose rights he treacherIn the eleventh article, among other things, ously assails by his contempt for law. I would it is charged that the President did attempt to have peace; therefore I vote to remove from prevent the execution of the act of March 2, office this most pestilent disturber of public 1867, providing for the more efficient govern- peace. I would have prosperity among the ment of the rebel States. It is plain to me people and confidence restored to capital; from his veto messages, his proclamations, his therefore I vote to punish him whose turbulence appointment of rebels to office, his indiscrim- makes capital timid and paralyzes our national 1011 industries. I would have economy in the ad- earnestly supported those principles of govministration of public affairs; therefore I vote ernment and public policy which, like divine to depose the promoter and cause of unheard ordinances, protect and guide the race of man of official extravagance. I would have honesty upthe pathway of history and progress. As in the collection of the public revenues; there- a juror, sitting on this great cause of my counfore I vote to remove this patron of the cor- try, I wish it to go to history and to stand upon ruptionists. I would have my Government the imperishable records of the Republic, that respected abroad; therefore I vote to punish in the fear of God, but fearless of man, I voted him who subjects us to dishonor by treating law for the conviction of Andrew Johnson, Presiwith contempt. I would inspire respect for law dent of the United States, for the commission in the youth of the land; I therefore vote to of high crimes and misdemeanors. impose its penalties upon the most exalted criminal. I would secure and perpetuate OPINION liberty, and I therefore vote to purge the citadel of liberty of him who, through murder, succeeded to the chief command and seeks to HON. THOMAS W. TIPT ON. betray us to the enemy. I fervently pray that this nation may avoid a When the act regulating the tenure of civil repetition of that history, in which apostates offices passed Congress on the 2d day of March, and usurpers have desolated nations and en- 1867, Edwin M. Stanton was Secretary of War, slaved mankind. Let our announcement this having been appointed to said office by Mr. day to the President, and all future Presidents, Lincoln and confirmed by the Senate January and all conspirators against the liberties of this 15, 1862, and commissioned to hold the office country, be what is already the edict of the "during the pleasure of the President of the loyal millions of this land, "You shall not United States for the time being." The first tear this temple of liberty down." Let our section of the act is as follows: warning go down the ages that every usurper "That every person holding any civil office towhich and bold violater of law who thrusts himself he has been appointed, by and with the advice and in the path of this Republic to honor and re- consent of the Senate, and every person who shall hereafter be appointed to any such office, and shall nown. whoever he may be, however high his become duly qualified to act therein, is and shall be title or proud his name, that, Arnold-like, he entitled to hold suchofficeuntil a successor shall hbave shall be gibbeted on every hilltop throughout been in like manner appointed and duly qualified, except as herein otherwise provided: Provided, That the land as a monument of his crime and pun- the Secretaries of State, of the Treasury, of War, of ishment, and of the shame and grief of his the Navy, and of the Interior, the Postmaster Gencountry. eral, and the Attorney General, shall hold their offices respectively for and during the term of the We are not alone in trying this cause. Out Presdent by whom they may-have been appointed on the Pacific shore a deep murmur is heard and one month thereafter, subject to removal by and from thousands of patriot voices; it swells with the advice and consent of the Senate." over the western plain, peopled by millions Before the passage of the above recited secmore; witheveryincreasingvolumeitadvances tion the only limit to a Secretary's term was on by the lakes and through the busy marts the pleasure of the President; but it was deof the great North, and reichoed by other mil- termined to make the termination definite, and lions on the Atlantic strand, it thunders upon hence we have a time specified beyond which us a mighty nation's verdict, guilty. While it could not extend, namely, one month after from out the smoke and gloom of the desolated the expiration of the term of the President by,South, from the rice-fields and along the great whom appointed. rivers, from hundreds of thousands of perse- The question relative to the Secretary of the cuted and basely-betrayed Unionists, comes Interior to be settled, would be: How long also the solemn judgment, guilty. will his commission run? while the answer The criminal cited before this bar by the would be, just one month after the termination people'd Representatives is, by his answer and of the term of Mr. Johnson, by whom he was, the record, guilty. by the advice and consent of the Senate, apAppealing for the correctness of my verdict pointed. So his term would expire on the 4th to the Searcher of all hearts and to the en- day of April. 1869, which would be the end lightened judgment of all who love justice, and of one month after the expiration of Mr. in accord with this "cloud of witnesses," I Johnson's term, in case he filled the full unvote guilty. expired term of Mr. Lincoln. He being in Standing here in my place in this mighty office on the 2d of March, 1867, under a comtemple of the nation, and as a Senator of the mission which was a precise copy of Mr. Stangreat Republic, with all history of men and ton's, I would look forward, not backward, nations behind me and all progress and human to find the period of time when the law would happiness before me, I falter not on this occa- put an end to his term of office, unless sooner sion in duty to my country and to my State. removed by and with the advice and consent In this tremendous hour of the Republic, of the Senate. trembling for life and being, it is no time for To find the limit of Mr. Stanton's term I me to shrink from duty, after having so long would lookforward also, and as he is serving 1012 with the Secretary of the Interior, upon the him as the legal head of the War Department, same term, and under the same identical cornm- and all Departments of the Government having mission, I would declare- him liable to removal indorsed the legality of his acts to the last by force of law, just as soon as one month shall hour of his previous term, the Secretary must have passed after the expiration of the term, be regarded in the light of one of his original which is being served out alike by himself and appointments and retire accordingly. the Secretary of the Interior. By every reasonable rule of construction it To the objection that the Secretary of the seems perfectly plain that Mr. Stanton has not Interior was appointed by Mr. Johnson, and been removed by force of the civil-tenure act, is serving out his term, while Mr. Stanton was and consequently is entitled to its protection, appointed by Mr. Lincoln, whose term had ex- which was accorded to him by the Senate when pired nearly two years before the date of the they restored him from suspension by theirvote act limiting terms, I reply that the terms of of January 13, 1868. Having attempted to these Secretaries are one and the same, and accomplish that, independent of the Senates there is no period of time subsequent to the which he failed to secure when admitting the date of the act at-which one Secretary shall constitutionality of the act by yielding to its retire in advance of another. provision for suspensions, the President has In regard to Mr. Stanton's term having ex- certainly been guilty, as charged in the first pired according to the limitations of this law, article, of a " high misdemeanor in office." one month after the death of Mr. Lincoln, I The plea which he makes in his answer, that deny the proposition: first, because the law he does not believe the act of March 2, 1867, was not in existence until about two years sub- constitutional, cannot avail him, since, when sequent:to that event. Second, because itcould Congress passed the act and laid it before him not, on the 2d day of March, 1867, act back for his signature, he having vetoed it, it was and produce a vacancy in an office already then passed over the veto by three fourths of filled, every act of which has been regarded each branch of Congress-the provision of valid by every branch of the Government. the Constitution being that a bill passed by two Third, because Mr. Stanton has been in office thirds of each House over the President's veto ever since the date of the law, and is still per- "shall become a law." Having thus become forming the functions of Secretary of War. As a law, he had no discretion but to enforce it as Mr. Johnson received from Mr. Lincoln the such; and by disregarding it merited all the War Office with its Secretary, just as he re- penalties thus incurred. ceived each one of the other Departments of He is not to be shielded behind the opinions Government with its Secretary, each-and all of of his Cabinet, although they may have advised them with subsequent appointments must be him to disregard the law, since their only busiregarded as of his own appointment, for all ness is to enforce and obey the laws governing,purposes of the civil-tenure act; and as it is their several Departments, and neither to claim impossible to r emove a portion in the past and or exercise judicial functions. the balance in the future, they must all share The plea of inhocent intentions is certainly,the same fate -and be subject to the same limit- not to vindicate him for having violated a law, ations. for every criminal would be able to plead jusHereafter there will be no trouble in con- tifiable motives in extenuation of punishment, ttruingthe law, for one month subsequent to the till every law was broken and every barrier of {termination of a-President's term will vacate safety swept aside. every Secretaryship; and if this act had been The strongest possible case that can be stated in force at the time of Mr. Lincoln's death would be that of a Senator who might have.Mr. Johnson would have had all the heads of declared his belief of the unconstitutionality:Departments at his disposal one month there- of the act of March 2, 1867, before its passage after. To claim, therefore, that Mr. Johnson over the veto, and now being called upon to can remove Mr. Stanton without the advice decide upon the right of the President to disand consent of the Senate is to affirm an regard the provisions of this same act. I hold impossibility, inasmuch as the only period of that he would be bound by his oath of office to time at which a President can get clear of a demand of the President obedience to its pro-'Secretary independent of the Senate is at the visions until such time as it should be repealed end of a month subsequent to the end of a by Congress or annulled by the decision of a President's term. And unless Mr. Johnson court of competent jurisdiction. The Presiwill receive a reelection he shall never reach dent must take care that the laws are faithfully that official hour in which Mr. Stanton would executed. -vacate, by force of law, one month subsequent It is very astonishing that the President to the expiration of Mr. Johnson's term. But should deny that Mr. Stanton is protected in if he should ever reach a second inauguration, office by the civil-tenure act, after having sus-.and the month had expired, and Mr. Stanton pended him from office under that act on the -.-,s inclined to remain, he could demand his 12th of August, 1867, and having reported him removal independent of the Senate, on the to the Senate under the same act as being igrounds that having received him when he re- legally suspended, and having, under a special -ceived Mr. Lincoln' sWtem, and having adopted provision of the same act, notified the Secre 1013 tary of the Treasury of his action in the prem- ing and supervising power of a prostrate and ises; for unless he was legally Secretary of War insulted tribunal. he was not subject to such suspension. The first article, affirming the illegal removal It has been argued that as Mr. Stanton has of Secretary Stanton; the second, charging the, continued to occupy the War Office, and the illegal issue of the letter of authority to Thomas,. removal has not been entirely completed, the and the third, affirming the ad interim appointpenalty for removal cannot attach; but Mr. ment of General Thomas, admitted as facts Johnson receives General Thomas as Secre- and established by evidence, are the foundas tary of War at his Cabinet meetings, thus tions of the whole impeachment superstructure. affirming his belief that Thomas is entitled to The fourth, relative to an unlawful conspiracy be accredited as such. It should be remem- with respect to intimidating the Secretary of bered, in this connection, that it is a high mis- War; the fifth, affirming a combination to predemeanor to attempt to do an act which is a vent the execution of alaw; the sixth, charging misdemeanor. The removal of Mr. Stanton a conspiracy to seize and possess the property; against law would be a high misdemeanor, and of the War Department in viotation of an act a persistent effort in that direction, issuing of 1861; the seventh, charging a like intent in orders, withdrawing association from him, and violation of an act of 1867; and the eighth, accrediting another, does, in my opinion, con- charging the appointment of Thomas with. stitute a high misdemeanor. intent to control the disbursements of the War By article two he stands charged,; during Department, are all more or less incidental, the session of the Senate, with having issued a acts, springing from or tending to the samae letter of authority to Lorenzo Thomas, author- criminal foundation charges, and may or mar izing him and commanding him to assume and not be considered established without affecting exercise the functions of Secretary of the De- the: original articles. If, however, the firat partment of War, without the advice and con- three are not sustained, these will not be likely, sent of the Senate, which is charged to have. to receive more than a passing notice. been in violation of the express letter of the The ninth article charges the Presidentwith Constitution and of the act of March 2, 1867. having instructed General Emory that part of Of his power to appoint the C onstitution, a law of the United States, which provides that, article two, section two, says: "-all orders and instructions relative to mili" He shall nominate, and by and with the advice operations issued by the President or See and consent of the Senate shall appoint." retary of War shall be issued through the Gena In this case he claimed a vacancy to which eral of the Army, and, in case of his inability, In ths case the nextinrank," was unconstitutional he might appoint independent of the Senate, throughthenextin rank, wasunconstitutional and in contravention of the commission of said while the Constitution affirms that the Pres- Emory, in order to induce him to violate tho ident shall have power to fill up all vacancies laws and military orders. that may happen during "the recess of the It appears that while General Emory was Senate, not during the session of the Senate. acting under a commission requiring him to It is only necessary to quote the charge, the observe and follow such orders and directions text of the Constitution, and his own admis- as he should receive from the President and sion in his answer, that he "did issue and other officers set over him by law, an order deliver the writing as set forth in said second reached him embodying a section of law, which article, in order to establish the commission law had been previously approved by the Preos of an unconstitutional act." But the language ident himself, but, as it provided that orderm, of the act of March 2, 1867, is equally explicit. from the President and Secretary of War should itaffirms in section six — be issued through the General of the Army, or " That every removal, appointment, or employ- next in rank, and the President being engaged ment made, had or exercised contrary to the pro- to remove the Secretary of War and thwart visions of this act. and the making, signing, sealing, countersigning, or issuingof any commission or letter the action of the Senate, in a discussion with of authority for or in respect to any such appoint- General Emory, as to his duty as an oaticer, declared to be, mshallbemdeeai eds and aurepbrebya said, " This (meaning the order) is not in cont declared to be, misdemeanors; and upon trial and rmity with the Constitution of the Unitedi conviction thereof every person guilty thereof shall formitywith the Constitution of the Unit be punished by a fine not exceeding $10,000, or by States, which makes.me Commander-in-Chieft imprisonment not exceeding five years, or both said or with the terms of your commission. " While punishments, in the discretion of the court." Genera moy was nclined to obe General Emory was inclined to obey the order If Mr.. Stanton was protected by the: first the President could not command him but clause of section one, the issuing of the letter through General Grant's headquarters, and to Thomas drew upon the: author the penalty thus would have to make public his military lut if he: was covered by the proviso, the va- orders; but, if General Emory could be made eaney had not happened and: the consequence to believe the order was in conflict with his was the same. And if the President, during commission and the Constitution, and could session of the Senate, can remove one officer be induced to disregard it, then the President and appoint ad interim, so he may remove any could secretly issue orders to him and accomor all,. and thus usurp Departments and affices, plish his designs. He: could only have desired whiii the people seek i vain. for: t Sestralu- to cause General Emory to sen his duty in 1014 such light as to disregard this legal order, and, defy the people's representatives and defeat the if Emory had yielded to his construction of solemnly-expressed enactments of their will. law and Constitution, he could have sheltered Believing that the stability of government himself under his commission and trampled depends upon the faithful enforcement of law, the law under foot. and the laws of a republic being a transcript This effort to tamper with an officer who of'the people's will, and always repealable by was obeying the law of his Government is char- their instructions or change of public servants, acterized very mildly by the charge of repre- I would demand their enforcement by the hensible. It should be make a crime of serious President, independent of any opinion of his magnitude for a President to command a mili- relative to necessity, propriety, or constitutary officer to violate a law which was promul- tionality. gated in orders, in accordance with all the forms of national legislation. In this case the OPINION experiment upon the officer's fidelity and firmness seems to have gone no further than to OF discover that General Emory could not be HON. THOMAS A. HENDRICKS. tampered with, and then the effort was dropped on the very verge of criminality. In the eleven articles of impeachment the The tenth article charges the President with President is charged, in the different forms of having, at Washington city, Cleveland, Ohio, statement, with six acts of official misconduct, and St. Louis, Missouri, indulged in language as follows: tending to bring into disgrace and ridicule, 1. The removal of Mr. Stanton from the office contempt and reproach, the Congress of the of Secretary of War. Unit6d States, which utterances were "highly 2. The appointment of Lorenzo Thomas, the censurable in any, and peculiarly indecent and Adjutant General of the Army, to the office of unbecoming in a Chief Magistrate." Secretary of War ad interim. Under ordinary circumstances I would allow 3. The conspiracy with said Thomas to prethe utmost latitude of speech, and would never vent the execution of the tenure-of-office act by attempt to apply a corrective only where the hindering Mr. Stanton from holding the office crime became magnified by virtue of the pecu- of Secretary of War. liar surroundings. If the President had gone 4. The instructions to General Emory that upon the stump with inflammatory language in the second section of the act of March 2, 1867, order to assist in leading or driving States out requiring all military orders made by the Presiof the Union, then I would hold him responsi- dent or Secretary of War to be issued through ble for the character of his act. And when the the General of the Army, was unconstitutional. very life of the nation is imperiled by the 5. The President's speeches against Conabsence of ten States, and all legal efforts are gress. making to induce their early return, if I find 6. The denial of the authority of the Thirty him denying the legal and constitutional au- Ninth Congress by the attempt on the part of thority of Congress, and charging disunion, the President to prevent the execution of the usurpation, and despotism upon the represent- tenure-of-office act, the Army appropriation atives of the loyal people, thus strengthening act, and the act to provide for the more effithe evil passions of malcontents and rebels, on cient government of the rebel States. account of the tendency of his teachings, I The sixth charge is found in the eleventh should not hesitate to declare his conduct a article. The respondent in his answer has high misdemeanor. taken exception to the sufficiency of the stateFor the reasons just specified I would find ments containedin that article, upon the ground him guilty of a misdemeanor on the evidence that the alleged acts of the President, which sustaining the first allegation of the eleventh he did in his attempts to prevent the execution article, which charges him with denying the of the said laws, are not stated, but it is averred authority of Congress to propose amendments only that he did unlawfully devise and contrive to the Constitution. I would also hold him and attempt to devise and contrive means to responsible for devising means by which to prevent their execution. The exception seems prevent Edwin M. Stanton from resuming the to be sufficiently supported by the well estabfunctions of Secretary of War on the Senate lished and reasonable rule of pleading, that having voted his restoration from the Presi- charges preferred against a party in any judident's suspension. And of his guilt relative cial proceeding shall be stated with such reato impeding the proper administration of the sonable certainty that the accused may know reconstruction laws of Congress, by discour- the nature of the charge, its scope and limit, aging and embarrassing officers of the law, the character of evidence that may be brought and using such defiant language as had all the against him, and the class of evidence that may force of commands upon rebels, I have not be invoked in his defense. Until accusations the shadow of a doubt. are stated with such reasonable certainty courts The only matter of astonishment is that an do not require the accused to answer. The Executive so unscrupulous and so ddfiant of eleventh article should have stated what means coordinate power has been allowed so long to were devised and contrived, or attempted to 1015 be devised and contrived, so that this court In our country, as long as the Constitution might decide whether they amount to a high stands, no legislative body can make it a crime misdemeanor; and if so, that the respondent to discuss the conduct of public officers with may know the nature of the evidence that may entire freedom, and the House of Representbe brought against him, and the character of atives cannot, by any proceeding whatever, evidence he may offer in his defense. This shield itself from individual criticism and popview in the pleading is not removed by the ular review; and any effort to do so betrays averment that the means were devised and con- conscious weakness, and disturbs public contrived to prevent Mr. Stanton's return to the fidence. War Department after the decision of the Sen- The ninth article rests upon the conversaate upon the reasons for his suspension. Rea- tion between the President and General Emsonable certainty requires that the means de- ory. In that part of the President's conduct vised and contrived should be stated. If the no fault can be found, much less a violation means were stated, the Senate might not agree of law. He had been informed by a member with the House of Representatives that they of his Cabinet that there were evidences of were "unlawfully" devised, but might hold important changes of the military forces at and them lawful and proper. If the device and con- near this city. It was his right and, perhaps, trivance were the appointment of a successor, his duty to become informed of the extent and or proceedings in the courts to test a right purpose of any such movements. He sent claimed on the one side, and denied on the fbr General Emory to make the necessary inother, then the averment that it was "unlaw- quiries. In the course of the conversation ful" would fall. General Emory called his attention to the But beyond the question of pleading, the order issued in pursuance of the section of the question arises whether the eleventh article law requiring all military orders from the Presdefines any high misdemeanor, or even any act ident to be issued through the General of the of official misconduct. As inducement, it is Army; and then the President expressed the stated, that as far back as August, 1866, the opinion that it was unconstitutional thus to President, in public speeches, did question the control him in the exercise of his constitulawful authority of Congress; and it is then tional powers as Commander-in-Chief of the' averred that as late as February, 1868, in pur- Army. He went no further than the expressuance of that declaration, he did "attempt to sion of that opinion; he gave no orders to prevent the execution of" the said several acts, General Emory, nor does it appear that at any by "devising and contriving, and attempting time he has disregarded the said law. In any to devise and contrive, means by which he proceeding less grave than the present it would should prevent" Mr. Stanton from resuming be regarded as frivolous to charge it as a crime the functions of the office of Secretary of War, that an opinion had been expressed upon the and to prevent the execution of the other acts. constitutionality of any law. Passing over the question whether an attempt The fourth, fifth, sixth, and seventh articles to prevent the execution of a statute without charge a conspiracy between the President and success is a misdemeanor, when the statute General Lorenzo Thomas to prevent Mr. Standoes not so declare, the question arises whether ton's holding the office of Secretary of War, it can be a crime or misdemeanor in a single and to obtain the custody and charge of the person, without combination or conspiracy with property of the United States in the War Deothers, to devise and contrive means without partment. It is not necessary to notice the executing the schemes? To devise or contrive averments, in two of these articles, of a pur-,is an intellectual process, and when not exe- pose to resort to intimidation and threats, and cuted by acts done cannot be punished as a to use force, inasmuch as the evidence wholly crime, however unworthy or vicious. Can we fails to show that the President at any time undertake the punishment of the thoughts, contemplated a resort to either; and it does opinions, purposes, conceptions, designs, de- appear that there was no resort to either. In vices, and contrivances of men when not car- the absence of intimidation, threats, and force ried into.acts? The eleventh article does not in the purpose and conduct of the President attempt the definition ofacrime, unless, indeed, and General Thomas no case is made within we hold the vicious thoughts and evil purposes the conspiracy act of July 31, 1861. But it of public officers to be such in the absence of appears to me that it cannot be said that the any law so declaring. President and General Thomas conspired toIn the presence of the provision of the Con- gether when the former issued to the latter the stitution of the United States which protects ad interim appointment, and the latter acthe right of free speech, and in the absence of cepted it. It is plain that the President issued any law, State or Federal, declaring its exer- the orders under a claim of legal right, and cise in any manner or by any person to be a that General Thomas received them because, crime, it is not necessary to examine the tenth as a subordinate officer, he thought it was his article, which rests its charge of a misdemeanor duty. Such conduct does not define a conupon the President's speeches made to the spiracy. people, in response to their calls, in his capacity It only remains for me to consider the conas a citizen, and not in the exercise of his office. duct of the President in issuing the order for 101-6 the removal of Mr. Stanton from the office of and for one mouth thereafter." Not having Secretary of War, and the ad interim appoint- been appointed during the existing presidenment of General Thomas. The force and effect tial term, Mr. Stanton has no new term beof the ad interim appointment must depend stowed upon him, but he still holds, in the upon the validity of th'e order for the removal language of his commission, "during the pleas. of Mr. Stanton. If the removal did not in law ure of the President." This obvious construce take place upon the issue of the order, then, as tion of the language is strengthened by a conMr. Stanton did not surrender the office, the sideration of the history of the tenure-of-office appointment did not clothe General Thomas bill. It first passed the Senate in such form with any authority-it was a blank, without as expressly to exclude all Cabinet officers. In legalforce ormeaning. If Mr. Stanton'scom- the House it was so amended as to include mission did not become revoked, the appoint- them. The Senate disagreed to that amendment of General Thomas was of no more force ment. A committee of conference was the or consequence than a second deed by the result of this disagreement between the two: same grantor. Houses. In this condition of the measure it. Had the President the authority to remove will be observed that the Senate insisted that Mr. Stanton'? According to the provisions of Cabinet officers should not be included at all, the act of August 7, 1789, creating the War and the House insisted that they should be; Department and the terms of his commission, included just as other officers are. The conMr. Stanton held the office " during the pleasure ference committee considered this question of of the President of the United States for the disagreement and settled it upon the propo, time being." That act expressly recognized sition, then supposed to be just, that each] the power of the President to remove the Sec- President shall have the selection of his own retary of War at any time. It did not confer Cabinet officers, and shall not be required to the power, but recognized it as already pos- continue the Secretaries of his predecessor, sessed, the provision being that "whenever The Senate conceded that a President, having the said principal officer (the Secretary) shall selected his own Cabinet, shall continue them be removed from office by the President of the during his term, and the House conceded that United States, and in any other case of va- he shall not be required to continue the Cabicancy," the chief clerk of the Department net of his predecessor, or any member thereof.. shall for the time being have charge of the Upon that adjustment the bill passed. Thia records, books, &c. Under that law, Mr. construction was then put upon the proviso in Stanton received his commission from Presi- the Senate-for when the bill came back from dent Lincoln, January 15, 1862, " to hold the the committee with the proviso, as the comsaid office, with all the powers, &c., during promise between the two Houses, Mr. SHBRthe pleasure of the President of the United MAN, of the committee, said: States for the time being." Has that law been " That this provision does not apply to the presrepealed or amended in that respect. The ent case is shown by the fact that its language is so tenure of-office act of March 2, 1867, has no framed as not to apply to the present President. The Senator [Mr. DOOLITTLE] shows that himself, and repealing clause, and therefore repeals or argues truly that it would not prevent the present modifies the act of 1789 only so far as the President from removing the Secretary of War, the two acts cannot stand together. Mr. StantoI's Secretary of the Navy, and the Secretary of State." term of office, as fixed by the law and his com- This construction of the bill was then acquimission, was during the will of the President, esced in by the silence of the other members and I think a proper construction of the first of the conference committee, and not disagreed section of the tenure-of-office act leaves that to by any Senator; and thereupon the Senate unchanged. He was appointed during Mr. agreed to its passage, And now, by adhering Lincoln's first term, which expired on the 4th to that construction, we have just what the of March, 1865, and therefore it is unnecessary Senate then intended, what is plainly just and to consider the question which has been dis- right-that the President shall select his own cussed, whether Mr. Johnson is filling the constitutional advisers-and what will promote bffice for Mr. Lincoln's unexpired term, or the harmony and. efficient action of the execwhether he has his own term of office; for it utive department, and we avoid a question of is quite certain that heis not in the term during serious difficulty. If the act be so construed which Mr. Stanton was appointed. The first as to include Mr. Stanton's case, the constituand second terms of the presidential office for tional question arises whether Congress can by which Mr. Lincoln was elected were as distinct, law extend the term and change the tenure of under the Constitution, as if another had been, an office after the appointment has been made elected in his stead for the second. with the consent of the Senate. Such cowIf the tenure of Mr. Stanton's office be struction; would allow that after the appointing changed by the tenure-of-office act it is by the power under the Constitution had bestowed the proviso to the first section, and clearly the pro- office, the legislative department, having no viso has no such effect. The proviso is that the power of appointment, might bestow an addiCabinet officers " shall hold their offices re- tional term upon the officer, and thus become, spectively for and during the term of the Pres- an appointing power. It is gratifying that the iant by whom they may have been appointed, language of the act, the history of its enact' 101.i ment, the legislative construction, the obvious shall think it necessary, to authorize any person or intention of the Senate, and the highest inter- persons, at his discretion, to perform the duties of ests of the public service all allow me to so the said respective offices until a successor be ap~ests of hepuli srvcealo eoso pointed or such vacancy be filled: Provided, That no construe the act as to avoid this grave question. one vacancy shall be supplied in manner aforesaid Mr. Stanton's case not being within the tenure- for alonger term than six months." of-office act, the power of the President to It will be observed that this act of 1795 pro. make the removal is beyond doubt; and the vides a temporary supply of the service in all only question remaining is, did he have the cases of vacancies, whether caused by death, power to make the appointment of General resignation, removal from office, or expiration Thomas ad interim? There is great force in of the term, but makes no provision for the the opinion that has been expressed that the cases of temporary disability already provided constitutional obligation upon the President to for by the act of 1792, and therefore does not see that the laws be executed carries with it repeal that act. Both acts remained in force the power to use such agencies as may be without further legislation on the subject until clearly necessary in the absence of legislative the passage of the act of February 20, 1868, provision. In that view it would appear that, in which is as follows: the case of a vacancy in an office and until it "That in case of death, resignation, absence from could be filled, in the case of sickness, absence the seat of Government, or sickness of the head of from the post of duty, or other disability of an any executive Department of the Government, or of officer to discharge the duties, the President any officer of either of the said Departments whose appointment is not in the head thereof, wherebythey might designate some person to discharge them cannot perform the duties of their respective offices~ in the mean time, to the end that the laws might' it shall be lawful for the President of the United be executed and the public service suffer no States, in case he shall think it necessary, to authorize the head of any other executive Department, or harm. And this opinion seems to have been other officer in either of said Departments, whose entertained by our most eminent and revered appointment is vested in the President, at his dis, Presidents, for themade very many such ad cretion, to perform the duties of the said respective Presidents, for they made very many such atd offices until a successor be appointed, or until such interim appointments without the pretense of absence or inability'by sickness shallcease: Provied, legislative authority. But in the case now be- That no one vacancy shall be supplied in manner aforesaid for a longer term than six months." fore this court we need not consider this question, for, in my judgment, the authority of the The legislative purpose in the enactment of President to make the ad interim appointment,, this law was not to repeal the act of February as well during the session as the recess of the 13, 1795, but to extend the provisions of the Senate, is clearly established by law. act of May 8, 1792, to the other Departments. Section eight of the act of May 8, 1792, pro- During the previous month President Lincoln vides as follows: had called the attention. of Congress to the " That in case of the death, absence from the seat subject in the following message: of Government, or sickness of the Secretary of State. WASHINGTON, January 2, 1863 of Secretary of the Treasury, or of the Secretary of To the Senate and House of Repreeentatives: the War Department, or of any officer of either of I submit to Congress the expediency of extending the said Departments whose appointment is not in to other Departments of the Government the authorthe head thereof, whereby they cannot perform the ity conferred on the President by the eighth section duties of their said respective offices, it shall be law- of the act of the 8th of May, 1792, to appoint a person ful for the President of the United States, in case he to temporarily discharge the duties of Secretary of shall think it necessary, to authorize any person or State, Secretary of the Treasury, and Secretary of persons, at his discretion, to perform the duties of War, in case of the death, absence from the seat of the said respective offices until a successor be ap- Government, or sickness of either of those officers. pointed, or until such absence or inability by sick- ABRAHAM LINCOLN. ness shall cease." It was in response to that message that the It will be observed that this section author act. of 1'863 was passed, and it does not appear ized ad interim appointments only in three of that the attention of Congress was at all called the Departments, that is, in the Departments to the act of 1795. Neither its history nor the of State, Treasury, and War; and only in three provisions of the act of 1863 justify us in believcases, that is, the cases of death, absence from ingthat it was the intention of Congressthereby the selt of Government, and sickness of the to repeal the act of 1795. The acts are not head of the Department or other officer. It inconsistent; both can stand; both must refails to provide for the temporary supply of main, for the act of 1795 provides for two cases the service of any vacancy occurring otherwise of vacancy-by removal and by expiration of than by death. That omission was in part the term —not provided for in the act of 18638 supplied by the act of February 13, 1795, hut It is not questioned that the act of 1795, ifaunonly as to the same three Departments. That repealed, confers upon the President the power act is as follows: to provide temporarily for the service in the "Beit enacted bytheSenateand use of Representa- case of a removal, and, therefore, I need not tives of the United States of America in Congres assem- further consider this part of the case, except to bled, That in case of vacancy in the office of Secretary add that theoffice act does not, of State, Secretary of the Treasury, orof the Secretary tenure-of-office act does not, in of the Department of War, or of any officer of either terms or by implication, repeal either the act of the said Departments whose appointment is not in of 1795 or the act of 1863. It has no repealthe head thereof, whereby they cannot perform thend there is no such inconsistency duties of their said respective offices, it shall be law- ing clause, and there is no such inconsstency ful for the President of the United States, in case he in the provisions of the acts as to cause a repeal 1018 by implication. There is the same necessity On the 20th of June, 1864, the Senate being for a supply of the temporary service by ad in- in session, President Lincoln removed Isaac terim appointments, in cases of vacancy, sick- Henderson from the office of navy agent at ness, absence, or other disability, as before the New York, and instructed a paymaster of the passage of the tenure-of-office act, and Con- Navy to take charge of the office. gress cannot be understood to have intended On the 26th of December, 1864, the Senate to leave such cases unprovided for. being in session, President Lincoln removed Whoever proposes to convict the President James S. Chambers from the office of navy as of a crime for the ad interim appointment agent at Philadelphia, and placed Paymaster of General Thomas should stop to consider Watson in charge. These two offices were the many cases in which his illustrious prede- highly important, both in view of the duties to cessors exercised the same power during the be discharged and the emoluments received by session of the Senate, as well as during the the incumbents. recess, under the Constitution, and without the On the 19th of December, 1840, Thomas pretense of legislative authority. In this opin- Eastin, the navy agent at Pensacola, was, by ion but a few of the many cases proven can be order of President Van Buren, " dismissed cited. It will be borne in mind that the acts from the service of the United States," and of 1792 and 1795, authorizing temporary ap- Purser Dudley Walker appointed to take charge pointments, did not include the Navy, Interior, of the office. The Senate was then in session. and Post Office Departments, and that until These are but a few of the hundreds of cases 1863 no law extended the authority over them, that might be cited to show that the pradtice and therefore appointments made by the Presi-'of making ad interim appointments has been dent in those Departments to supply the tem- uniform, whether authorized by statute or not. porary service were made under the constitu- I cannot concur in the opinion that has been tional duty and authority to see that the laws expressed, that if a technical violation of law be executed and not under any statute. has been established the Senate has no discreOn the 9th July, 1836, President Jackson tion, but must convict. I think the Senate appointed John Boyle, the chief clerk of the may judge whether in the case a high crime Navy Departmelit, to discharge the duties of or misdemeanor has been established, and Secretary during the absence of the Secretary. whether in the name of the people the proseThe Senate had then adjourned five days. cution ought to be made and sustained. Van On the 6th October, 1838, President Van Buren was not impeached for the removal of Buren made the same appointment. the Pensacola navy agent and the designation On the 19th March, 1841, President Har- of Purser Walker to take charge of the office. rison appointed John D. Simmes to be acting President Jackson was not impeached for the Secretary of the Navy during the absence of ad interim appointment of Boyle as Secretary the Secretary. of the Navy under a claim of constitutional auOn the 13th May, 1851,.President Fillmore thority, without any statute allowing it. Presappointed C. M. Conrad, the Secretary of War,. idents Harrison and Fillmore were not imto be "acting Secretary of the Navy ad in- peached for making ad interim appointments terim" during the absence of the Secretary; of Secretary of the Navy, with no statute auand on the 3d August, 1851,. the same Presi- thorizing it. President Buchanan was not imdent appointed W. A. Graham, the Secretary peached for removing the postmaster at New of the Navy, to be acting Secretary of the Orleans and filling the place ad interim, not Interior. for removing Fowler, the postmaster at New And on 22d September, 1862, President York, during the session of the Senate, and Lincoln appointed John B. L. Skinner, then supplying the place ad interim, with no statuthe acting First Assistant Postmaster General, tory authority; nor was he impeached for auto be acting Postmaster General ad interim, thorizing Joseph Holt to discharge the duties the Postmaster General being absent. of Secretary of War ad interim upon the resOn the 29th of June, 1860, four days after ignation of John B. Floyd, though the Senate the adjournment of the Senate, the postmaster called upon him for his authority, and in his of New Orleans was removed and the office reply he cited one hundred and seventy-nine placed in the hands of a special agent by precedents, not going back of Jackson's adPresident Buchanan, Joseph Holt being Post- ministration. Mr. Lincoln was not impeached master General. for the appointment of General Skinner PostOn the 10th' day of May, 1860, the Senate master General ad interim, without any statute then being in session, President Buchanan authorizing it, nor for the removal of Isaac removed Isaac V. Fowler, the postmaster at Henderson, navy agent at New York, during New York, and placed the office in the hands the session of the Senate, and the ad interim of a special messenger. appointment of Paymaster Gibson to the office; On the 21st of January, 1861, the Senate nor for the removal of Chambers, the navy being in session, he took the Milwaukee post agent at Philadelphia, during the session of office out of the hands of the postmaster, and the Senate, and the appointment of Paymaster placed it in the charge of a special agent. Watson ad interim to the office, there then Hon. Joseph Holtwas then Postmaster General. being no statute authorizing it. He was not 1019 impeached for continuing Major General Frank fairs." Now, I insist that what powers are' P. Blair in command long after the.Senate had or are not in the Constitution cannot be proved declared by resolution that in such case the by reference to the annals of debates or to the office could not be held "without a new ap- Statutes-at-Large. The Constitution speaks pointment in the manner prescribed by the for itself. What its framers intended must be Constitution;" nor for appointing at one time gathered from the clauses to which they agreed, any more generals in the Army than the laws and not from clauses agreed to by any Conallowed. gress whatever. Supported by a long line of precedents, com- But if the debate and the statutes were both ing through our whole history, unchallenged evidence upon the point they would not prove and unrebuked by Congress, President John- the power in question to be in the Constituson stands before us upon these clfarges; and tion. That debate commenced on the 19th of I ask my brother Senators what answer we will May, 1789, upon the proposition to make the make to the people when they ask us why we Secretary for Foreign Affairs "removable at selected him for a sacrifice for doing just what the pleasure of the President." It was objected was always recognized as right in his prede- that, by the terms of the Constitution, an officer cessors? Upon my oath I cannot strike such could only be removed by impeachment before a blow. the Senate. On the contrary, Mr. Madison The judgment of the First Congress was that said "he believed they would not assert that the President has the right under the Consti- any part of the Constitution declared that the tution to remove the Secretaries, and that judg- only way to remove should be by impeachment is supported by the uniform practice of ment. The contrary might be inferred, bethe Government from that day till the meeting cause Congress may establish offices byl Jaw; of the Thirty-Ninth Congress. The evidence therefore most certainly it is in the discretion shows that Mr. Johnson was advised by every of the Legislature to say upon what terms the member of his Cabinet, including Mr. Stanton, office shall be held, either during good behavior that he had that right under tfie Constitution, or during pleasure." During that debate no and that Congress could not take it from him less than twenty-five speeches were made. nor impair it, and therefore it was his duty to Throughout the debate the issue was, Can Conveto the tenure-of office bill; and that the bill gress authorize the President to remove from did not include the appointments made by Mr. office, or is impeachment the only method of Lincoln; and that, notwithstanding the pas- removal allowed by the Constitution? sage of the bill, he would have the right to Nearly a month later, on the 16th of June remove the Secretaries of War, of State, and following, the debate was renewed upon a bill of the Navy. This advice was given by the to establish a Department of Foreign Affairs. members of the Cabinet under the obligations The first section provided that the Secretary of the Constitution and of their oaths; and should "be removable at the pleasure of the now, if we say that he, being so informed and President." Mr. White, of Virginia, moved advised, was guilty of a crime in demanding to strike out these words. Upon that motion a the right to select his own constitutional ad- long debate ensued, running through several visers, as it has been conceded to all the Pres- days. In the course of it Mr. Madison assumed idents, and for that drive him from his office a new ground of defense. In the former and give it to a member of this body, it does debate he had asserted that Congress could fix seem to me that we will do an act of such the tenure of the office as it pleased; that that flagrant injustice and cruelty as to bring upon power was a necessary incident of the power our heads the indignant condemnation of all to create the office. In this debate he started just men, and this impeachment will stand the idea, for the first time, that the President itself impeached before the civilized world. could control the tenure as an incident of executive power. OPINION The idea was broached cautiously and with evident hesitation. He acknowledged it was OF an afterthought. And he introduced it in these HON. TIMOTHY O. HOWE. words: I have, since the subject was last before the One of the questions involved in the con- House, examined the Constitution with attention. sideration of this cause is, whether the Presi- and I acknowledge that it does not perfectly corredent is or is not intrusted by the Constitution spond with the idea I entertained of it from the first dent is or is not intrusted by the Constitution glance. I am inclined to think that a free and syswith the power to remove the heads of the tematic interpretation of the plan of Government Executive Departments. Those who now assert will leave us less at liberty to abate the responsibility Executive D epartments. Those who nowaassert than gentlemen imagine." he has such power, instead of attempting to.a"By a strict examination of the Constitution on prove it from the text of the Constitution, gen- what appears to be its true principles, and considererally prefer to rely upon the debate which ing the great Departments of the Government in the relation they have to each other, I have my doubts took place in the House of Representatives of whether we are not absolutely tied down to the con1789, and the act of July 27 of that year, "for struction declared in the bill." establishing an executive Department to be Of those who affirmed and those who denied denominated the Department of Foreign Af- the power of removal to be in the President, 1020 during the debate, the numbers were about sible to ascertain from the records how many equal. Upon taking the vote on the motion supported the bill, because they regarded it as to strike out, the noes were 34, while the ayes a declaration that the President had the power were but 20. to remove; or how many supported it as a decBut it is evident from the nature of the laration that he ought to have it; or how many question that the majority numbered all those supported it for the sake of according with the who believed the Constitution conferred the majority, and because it declared neither one power of removal on the President, and all thing nor the other. those, also, who thought Congress could and The idea that the President had the power ought to confer it on him. of removal under the Constitution was not adMr. Sedgwick, of Massachusetts, called at- vanced for nearly a month after the debate comtention to this fact at the time. He said: menced, and there is not the slightest reason " If I understand the subject rightly there seem to for believing that the bill received a single vote be two opinions dividing the majority of this House. for it Some of these gentlemen seem to suppose that, by s passage in either House which it would the Constitution. and by implication and certain not have received if that idea had never been deductions from theprinciplesof the Constitution, the conceived. power rests in the President. Others think that it is 1789 ever had authority as a matter of legislativedetermination, and that they must give it to the President on the principles of the a legislative decision upon the true meaning Constitution." of the Constitution, that authority has been The minority do not seem to have been sat- annulled. by repeated decisions of the same, isfied with the victory achieved by that com- tribunal to the contrary. bination of forces. Accordingly, on the 22d First in order of time I cite the act of May of June, Mr. Benson, of New York, who was 15, 1820, entitled "An act to limit the term of of the majority, proposed once more to strike office of certain officers therein named, and for out those words in the first section which were other purposes." The first section of that act equivalent to an express grant of the power of re- is in the following words, to wit: moval and in lieu thereof to insert in the second. "That from and after the passage of this act, all section, which provided for a chief clerk, who district attorneys, collectors of the customs, naval in casq of " vacancy" should have custody of officers and surveyors of the customs, navy agents, - es f vcn receivers of public moneys for lands, registers of the the books, papers, &c., the words "whenever land offices, paymasters in the Army, the apothecary the said principal officer shall be removed from general, the assistant apothecaries general, and tire office by the President of the United States, or commissary general of purchases, to be appointed under the laws of the United States, shall be in any other case of vacancy," shall, during appointed for the term of four years, but shall be such vacancy, have custody, &c. He explained removable from office at pleasure." that "he hoped his amendment would succeed That section asserts the precise authority in reconciling both sides of the House to the claimed for Congress by Mr. Madison on the decision and quieting the minds of gentle- 19th of May, 1789, the authority to determine men." when and how official tenure should end. He seems to have persuaded himself that as It was superfluous for Congress to enact that the law in that form would not assert either the President might remove officers if he had that the President could remove under the the same authority under the Constitution. Constitution or that he might remove under And it was useless for Congress to attempt to the act, but only mildly suggested "removed limit the tenure of an office to four years if the by the President" as an event possible to hap- President may extend it to twenty years, as he pen without specifying whether it was likely to clearly can if the Constitution has vested in happen from an exercise of constitutional or him alone the power of removal. statutory authority, no one would have any par- By that act Congress assumed to grant to the ticular objection to it. This expectation does Executive the power of removal. Six years not seem to have been realized. The amend- later a committee of the Senate, of which Mr. ment to the second section was carried by Benton was chairman, made an elaborate reeven a less majority than was obtained against port, assuming the right of Congress to restrict amending the first section. The vote was 30 the power of removal. It does not appear to ayes to 18 noes. have been considered by the Senate. Then the question was renewed to strike out In 1835 another committee, of which Mr. from the first section the words "to be remov- Calhoun was chairman, reported a bill which able," &c., and it was carried by 31 ayes to practically denied the constitutional authority 19 noes. Thus amended, the bill went to the of the-President to remove from office. As Senate and passed that body by the casting such it was received and considered by the vote of the Vice President. Senate. It led to a protracted and exhaustive Such is in brief the character of the debate discussion. The debate of 1789 was thoroughly of 1789, and such the conclusion in which it reviewed. Among those who denied the power issued. It has frequently been cited as a legisla- now claimed by the President were Mr. Caltive interpretation of the Constitution, as a houn, Mr. Clay, Mr. Webster, Mr. Benton, legislative decision, that the Constitution vested and Mr. Ewing, of Ohio, whose name the in the President the power of removal. But President recently sent to the Senate as the it ought not to be so regarded,, for it is impos- successor of Mr. Stanton, whom he claimed 1021 to have removed from;office under the very ity," approved April 4, 1862, be, and the same are, authority Mr. Ewing then vehemently denied hereby repealed; and no officer in the military or iand ably controverted. Upon the passage of naval service shall be dismissed from service except upon and in pursuance of the sentence of a courtthe bill the vote of the Senate was as follows: martial to that effect, or in commutation thereof.""YEAs-Messrs. Bell, Benton, Bibb, Black, Cal- See Congressional Globe, First session Thirty-Ninth houn, Clay Clayton, Ewing, Frelinghuysen. Golds- Congress,p. 3254. borough, Kent, King of Georgia, Leigh, McKean, The amendment, as offered, was agreed to Mangum, Moore, Naudain, Poindexter, Porter, Prentiss, Preston, Tyler, Waggaman, Webster, and without division and without objection. When White-31. the bill was returned to the House of Repre"NAY s-Messrs. Brown, Buchanan, Cuthbert, sentatives it was committed, together with the Hendricks, Hill, Kane, King of Alabama, Knight, Linn, Morris. Robinson, Ruggles, Shipley, Talmadge, Senate amendment, to the Committee on ApTipton, and Wright-16," propriations. On the 25th of June the amendBut this vote, although a very emphatic ments were reported back from that commitexpression of the opinion of that Senate upon tee with the recommendation that the House the power in question, and very suggestive of non-concur in that amendment among others.:the opinion of that age, cannot strictly be con- (bid., p. 8405.) sidered a decision of that Congress, since the The bill subsquently was referred to a combill did not pass, and was not considered by mittee of conference, consisting on the part of the House of Representatives. the Senate of Messrs. SHERMAN, WILSON, and But in 1863 Congress passed an act to pro- YATEs; and on the part of the House of Messrs. vide a national currency. The first section pro- SCIIENCK, NIIBLACK, and Thayer. vided for a Comptroller of the Currency, and That committee reported that the House enacted as follows: agree to the amendment of the Senate, with an'"He shall be appointed by the President, on the amendment inserting the words'in time of nomination of the Secretary of the Treasury, by and peace," after the word " shall." with the advice and consent of the Senate, and shall In that form the amendment was accepted, hold his office for the term of five years, unless sooner removed by the President, by and with the advice without a dissenting vote in either House. and consent of the Senate." The Senate which passed that act with such Of course, if the Constitution confers upon unanimity was composed substantially of the the President the power to remove from office, same individuals who now compose this trithis provision was in palpable conflict with it, banal. Moreover the act was approved by the and yet both Houses agreed to it, and President respondent himself on the 12th of July, 1866. Lincoln approved the act, as President Monroe In his answer filed in this cause the respondapproved the act of 1820, above referred to. ent dwells upon the reluctance he felt to surCongress again asserted the same control rendering any one of the prerogatives which over the power of removal in the first section the Constitution had intrusted to the presiof an act to provide a national currency dential office. Such a reluctance, if sincere, secured by a pledge of United States bonds, becomes a President always. But the respondand to provide for the redemption thereof, ent's professions of reluctance in 1867 were which act was also approved by the President surely ill-timed, admitting they were sincere. on the 3d of June, 1864. (See Statutes-at- He had already surrendered this prerogative Large, vol. 13, p. 100.) in the solemn manner possible. Again, the fifth section of the act making No one has asserted, and no onewill assert, appropriations for the support of the Army for that the Constitution vests in the President the year ending June 30, 1867, contains the any sort of control over the tenure of civil following provision: offices that he does not possess over that of "And no officer in the military or naval service military or naval offices. shall, in time of peace, be dismissed from the service If under the Constitution he can dismiss a except upon and in pursuance of the sentence of postmaster, he can dismiss also the General a court-martial to that effect or in commutation of the Army and the Admiral of the Navy; and thereof." of theArmy and the Admiral of the Navy; and The Legislative history of this provision is a statute forbidding the dismissal of either is brief. It is strikingly suggestive of how much but idle words. of this clamor against the constitutionality of If Congress can lawfully forbid the President the tenure-of-office act is attributable to parti-to remove any military or naval offcer, as was san zeal, and bow much to real conviction, done in the act above mentioned, surely it canFor this reason I refer to that history here. not be denied that Congress may prohibit the The Army appropriation bill being under removal of any civil officer, as was subsequently consideration in the Senate on the 19th of done by the tenure-of-office bill. June, 1866, Mr. WILSON offered an amend- Either, then, the respondent now asserts ment in the following words, to wit-: power which he believes to be unconstitutional,;' And be it- further enacted, That section seventeen or he then approved a statute which he believed of an act entitled "An act to define the pay and to be unconstitutional. For myself I cannot emoluments of certain officers of the Army," ap- help thinking the judgment of 1866 was the proved July 17, 1862, and a resolution entitled "A most candid and unbiased. He was then resolution to authorize the President to assign the under every obligation to defend he Constitucommand of troops in the same field or department under every obligation to defend the Constituto officers of the same grade without regard to senior- tion that rests upon him now. But he is now 1022 manifestly under a necessity of defending him- through you do not find this of removal from self, which he was notunder then. office. enumerated among executive powers, If the respondent were proved to have nor any other power like it. The one duty claimed to own an estate which he had by deed charged upon the President which is most like, conveyed to another, he would be held guilty or rather which is least unlike, the duty in of slandering the title of his grantee. And question. is this: "He shall take care that the when he is heard, in answer to a charge of laws be'faithfully executed." He is not to usurping power, to assert an authority which execute the laws, but to " take care that the he has solemnly abjured, he must be held guilty laws be" " executed." It is very little he can of slandering the Constitution and the prerog- lawfully do to execute them. If, because he atives which that Constitution vests in Con- is charged to see that the laws are executed, he,gress. may provide any one of the means or methods Following the act of 1866 came the act of or instruments of their execution, he may proMarch 2, 1867, entitled "An act regulating the vide all not otherwise expressly provided for. tenure of certain civil offices." If, because he is to' see that the laws be exeIn substance it prohibits the President from cuted, he may remove any officer who may be removing certain civil officers, except upon employed in their execution, why should he certain conditions, as the act of the preceding not select all officers to be employed? Why year prohibited him from removing military and not contrive and establish the offices they are naval officers, except upon certain conditions. to fill? Why not define the duties they are to The principles'of the two acts are precisely discharge —the parts they are severally to perthe same. The power to pass them must be form? Why not fix the compensation which the same. There may be considerations of they may receive? expediency opposed to one which cannot be No one will pretend that either of these urged against the other. But the President, powers belongs to the President, though each who approved the first act, so far as I know, one is as much executive in its nature as is the without hesitation, vetoed the second, upon power of removal. No office not established the ground of unconstitutionality. This will by the Constitution can be created but by an be thought strange; but it will not be thought act of Congress. Congress alone can determstrange that Congress, adhering to a principle ine the manner of filling it, define its duties, so often asserted in former acts, passed this and fix its emoluments. And yet it is strangely act by a majority of more than two thirds of claimed that when the legislative power has each House, the President's objections to the done all this the executive power may praccontrary notwithstanding. tically defeat it all; not by abolishing the Upon all these instances I conclude that the office or changing the duties or the rate of constitutional power to remove from office can- compensation, but by creating a vacancy in not be proved by the decisions of Congress. the office whenever he chooses. And so his Congress has never in terms affirmed its exist- duty to see the law faithfully executed istransence once. On the contrary, it has, as I have formed into a power absolutely to defeat the shown, denied it repeatedly and explicitly. It whole purpose of the law. He is charged by can as little be proved by reference to the text the Constitution to see that the laws are faithof the Constitution itself: fully executed, and yet he cannot transfer an Those who, in the debate of 1789 or in sub- old musket from one citizen to another withsequent discussions, have ventured to seek for out making himself liable as a trespasser. this baleful authority in the text of the Con- The President of the United States recently stitution have claimed to find the warrant for commanded an army of more than a million of it in the first section of the second article. men; but with all that force at his command They assume that the power of removal is an he could not lawfully eject from his cabin the executive power, and therefore that it is con- humblest squatter on the public domain. Posferred upon the President by that section. The session is stronger, in the eye of the law, than terms of the section are these: the President, and before that naked posses"The executive power shall be vested in a Presi- sion the Commander-in-Chief must halt, no dent of the United States of America." matter what the physical force he commands. In my judgment, the sole office of that clause Only when the wrongfulness of that possession is to fix the style of the officer who is to possess has been determined by the judicial power executive authority, and not to define his juris- in a procedure prescribed by the legislative diction-to prescribe what the Executive shall power; not until the national precept has be called, and not what he may do. It seems issued, attested not by the President, but by a to bear the same relation to the executive judge, can that possession be disturbed. And department that the first clause of the first arti- even that writ must be executed by the very cle does to the legislative department, and the person to whom Congress requires it to be first clause of the third article to the judicial directed. Whoever else attempts to serve it department. To ascertain what is executive is a trespasser, although it be the President power we must examine other provisions of himself. the Constitution.' And yet it is strangely asserted that this But when you have searched the Constitution I officer, who is so impotent to redress so pal 1023 pable a wrong, may, at his own pleasure, with- dishonest men may refuse to pay their just dues out judicial inquiry, without writ, in a moment on demand. I readily confess that some govby a command, in defiance of a statute, remove ernmental contrivance by which official posifrom the duties, the labors, the honors and tions could be instantly taken from unfaithful emoluments of official position the army of hands and placed in faithful ones, and by which officers employed in the civil, the military, and all wrongs could be redressed and all rights naval service of the United States, not because enforced, instantly, and without the necessity the Constitution anywhere says he may do so, of trial or deliberation or consultation, is a but because the Constitution charges him with desideratum. But the men who made our Conthe duty of seeing the laws faithfully executed. stitution did not provide any such contrivance. This power of removal is, then, not vested I do not think they tried to. It seems to me in the President by anything said in the Con- they studiously avoided all such effort. I think stitution, nor by anything properly implied they believed what the world's whole history from what is said. It seems to me, on the most impressively teaches: that while the adcontrary, it is positively denied by the manifest ministration of law is intrusted to fallible men, purpose of the Constitution. That manifest deliberation is safer than expedition. purpose is that the principal offices shall be Absolute monarchies are the handiest of all eld by those in whose appointmentthe Senate Governments for that very reason, because has concurred. The plain declaration is that theycan execute justice and punish rascalityso "He (the President) shall nominate, and by promptly. But the men who made our Conand with the advice and consent of the Sen- stitution, looking back upon the experience of ate appoint, embassadors," &c. But this pur- a few thousand years, came to the conclusion pose may be wholly defeated if the President that absolute monarchs could just as promptly have, by the Constitution, the unrestricted execute injustice and punish goodness. They power of removal; for it is as plainly declared resolved to discard the whole system. I am that "the President shall have power to fill not yet satisfied they were mistaken, and am all vacancies that may happen during the not, therefore, willing to see their decision recess of the Senate, by granting commissions reversed. which shall expire at the end of their next I readily concede that if we were sure the session." If, then, the President has also the President would always be an honest, wise, power during the recess of the Senate to make unselfish, unprejudiced man, it might promote vacancies at his pleasure by removal, his choice the efficiency of the public service to intrust is supreme and the Senate is voiceless. He is him with the delicate and responsible duty of only to remove all officers in whose appoint- removing a bad officer and replacing him by a ment the Senate has concurred immediately good one. upon the adjournment of that body and com- But the men who made our Constitution did mission others in their places. They will hold not act upon any such hypothesis. They knew until the end of the next session. Just before it was possible not only for bad men to become that event he must nominate again to the Sen- assessors of internal revenue, but to become ate the officers he removed, or some others Presidents as well, else they would not have. whom the Senate will confirm, and when the provided this august tribunal for the trial and Senate has confirmed them and adjourned the deposition of a delinquent President. I grant President may again remove them all and that when you have a true man for President restore his favorites once more, to hold until it is convenient and not dangerous that he the end of another session, when the same have the power of removal, for thereby he ceremony must be repeated. maybe able to replace an incompetent district A deed which should grant a house to "A" attorney with a competent one, or a dishonest and his heirs and to their, use forever, but inspector of customs with an honest one, withshould also declare that "B" and his heirs out waiting to consult the Senate or with the should forever occupy it free of rent, would law-makingpower. Butif;,instead, you happen probably be held void for repugnancy. I do to have a false man for President, then if he not think the Constitution a nullity; and so I have the power of removal it is a power which cannot concede that the President has in it a removes all honesty from the public service and power implied so clearly repugnant to a power fills it throughout with rottenness and corplainly declared to be in the Senate. ruption. But it is urged that it is necessary to the My conclusion is that the President derives well-being of the public service that the Presi- no authority from the Constitution to dismiss dent should be clothed with this extraordinary an officer from the public service. A lawyer power. It is urged that unless he have it is not warranted in asserting it. A member unfaithful men may be obtruded upon the public of the Thirty-Ninth Congress, who assented to service, and it would take time to displace them. the act of July 12, 1866, cannot be justified in It is true, incompetent or dishonest men may asserting it. The respondent, who approved get into the custom-houses or the marshalships. that act, cannot be excused for asserting it. It would be folly to deny that. And so dis- Whatever authority the President had on the honest men may get possession of other men's 21st of February last to dismiss the Secretary property and refuse to make restitution; and of War, he derived, not from the Constitution, 1024 but from statute. The only authority -he de- the removal of Mr. Pickering before Mr. Marrived from the statute is found in the second shall was confirmed; but as Mr. Marshall was section of the act of 1789 creating the office of nominated to the Senate on the same day the Secretary of War. order for Mr. Pickering's removal was dated, That section is in the words following: and as the former was confirmed by the Senate "That there shall be in the said Department -an promptly on the following day, it is evident the inferior officer, to be appointed by the said principal President acted in full confidence that the Senofficer, to be employed therein as he shall deem proper, and to be called the chief clerkin the Depart- ate would assent, and it is not certain that the ment of War; and who, whenever the said principal order for the removal of Mr. Pickering was officer shall be removed from office by the President enforced or even served upon him before the of the United States, or in any other case of vacancy, Senate had assented. shall, during such vacancy, have the charge and cus-Senate had assented. tody of all records, books, and papers appertaining Indeed, I am of opinion the people of this to the said Department." country have not delegated any such irresponIt was copied from the act to esAtablish a sible power to any agent or officer of theirs as Department of Forelgn Affairs, which had been is claimed by the President. Every officer is passed by the same Congress at the same ses- held responsible in some form for the manner sion. It is evidently to be construed as the in which he employs' every power conferred same words used by the samemen in the former upon him. Some are responsible to the courts act are to be construed. of law, some to the tribunals of impeachment, And whether we look at the terms employed and all, even the members of this high court, in the section, or at the terms employed in the are responsible to the people, by whom and debate which preceded the enactment, it is very for whose use all power is delegated. evident that the power conferred is something "in addition to all the precautions which have very different from the arbitrary and irrespon- been mentioned to prevent abuse of the executive sible power of removal claimed by-the Presi- trust in the mode of the President's appointment, his dent in his answer —" the power, at any and term of office, and theprecise and definite limitations dent in his answer-'" the power., at any and. imposed upon the exercise of his power, the Constiall times, of removing from office all executive tution has also rendered him directly amenable by officers for cause to be judged by the President law for maladministration. The inviolability of any alone.'",. officer of the Government is incompatible with the alone.".,.republican theory as well as with the principles of On the contrary, the power contained in this retributive justice."-1 Kent'8 Com., 289. section is insinuated rather than asserted, im- But, fairly construed, I think the act above plied rather than expressed, allowed rather referred to does imply in the President the than conferred. It is not a powergranted him power to remove a Secretary of War in a to be wielded wantonly and according to his proper case. I think, also, he is primarily own pleasure, but a power intrusted to him in the judge of what is or is not a proper case. confidence that it will be sacredly employed to But he is not the sole or the final judge. This promote the public welfare, and not to pro- court may review his judgment. For a wanton, mote his personal interests or to gratify his corrupt, or malicious exercise of the power he personal spites. may, and, in my judgment, should be, held In the debate to which I have referred Mr. responsible upon impeachment. Or if he Goodhue urged that "the community would be wantonly or corruptly refuse to exercise the served by the best men when the Senate con- power he may also make himself liable to curred with the President in the appointment; impeachment. If a President wickedly rebut if any oversight was committed, it could move an officer known to be faithful, or wickbest be corrected by the superintending agent." edly refuse to remove one known to be corMr. Madison, in reply to the suggestion that rupt, undoubtedly he may be impeached. if the President were empowered to remove at And this suggests the inquiry as to the his pleasure he might remove meritorious-men, offenses for which an officer may be impeached. said: Only for "treason, bribery, and other high "In the first place he will be impeachable by this crimes and misdemeanors." Such is the'lanHouse before the Senate for such an act of malad-,ministration; forI contend that the wanton removal guage of the Const of meritorious officers would subjecthim to impeach- "high crimes and misdemeanors?" ment and removal from his own high trust." They are, say the counsel for the respondHow delicate the power was felt to be is ent, "only high criminal offenses against the apparent from the fact that from the passage United States, made so by some law of the of the act down to the 20th of February last United States existing when the acts comit is certain the power had never been ex- plained of were done." That rule is clearly erted but once, and it is not certain that it was stated and easily understood; and it must be ever exerted even once. Often Secretaries correct, or the other rule is absolutely correct, have been nominated to the Senate in place of to wit: that those -are high crimes and misdeothers then in office. and upon receiving the meanors which the triers deem to be such. assent of the Senate the new Secretaries have By one or the other of these standards every displaced the former ones. It is claimed that officer when impeached must be tried. Either in 1800 a Secretary of State was removed by high crimes and misdemeanors are those acts President Adams without the assent of the Sen- declared to be such by the law, or those held ate. It is certain that he issued an order for to be such by the court. 1025 Against the first construction we have the tional remedy by impeachment, with a single protest of all the authority to be found in comment upon it. judicial, legislative, or political history. The Constitution declares: If opinions or precedents are to have any'The President, Vice President, and all civil officers weight with us, they are wonderfully accord- of the United States shall be removed from office on ant. They are against the rule contended for impeachment for, and conviction of, treason, bribery, by the respondent, and they are abundant. A or other high crimes and misdemeanors." collection of them prepared for this record Clearly the President may be impeached for occupies more tihan twenty-five pages. any cause for which a Secretary may be. I will cite here but one precedent and one Judgment in case of impeachment may not authority: extend beyond removal from office. It cannot "Although an impeachment may involve an in- " extend further than to removal from office and iulry wh~ether a crime against any positive law has disqualification to hold and enjoy any office of been committed, yet it is not necessarily a trial for honor, trust, or profit under the United States." crime; nor is there any necessity in the case of crimes The Constitu declares that the House of -committed by public officers for the institution of The Constitution declares that the House of any special proceeding for the infliction of the pun- Representatives " shall have the sole power of Ishment prescribed by the laws, since they, like all impeachment. " other persons, are amenable to the ordinary jurisdiction of courts of justice in respect of offenses "The Senate shall have the sole power to try all against positive law. The purposes of an impeach- impeachments. ment lie wholly beyond the penalties of the statute " No person shall be convicted without the concuror the customary law. The object of the proceeding rence of two thirds of the members present." is to ascertain whether cause exists for removing a public officer from office. Such a cause may be found As we have seen, there is not one word in in the fact that either in the discharge of his office the Constitution which in terms authorizes the or aside from its functions he has violated a law or President to remove a Secretary for any cause comnimitted what is technically a crime. But a cause for removal from office may exist where no offense whatever. against positive law has been committed, as where It was the opinion of many learned jurists the individual has, from immorality or imbecility or and able statesmen in the commencement of maladministration, become unfit to exercise the office." —Curti's History of the Constitution of the Uni- this Government that no civil officer could be ted States, vol. 2, p. 260. removed during his term except by impeachSuch is the opinion of that learned cor- ment that impeachment was the only mode nentator as to offenses for which an ofjficer sanctioned by the Constitution for ridding the may be impeached. Not alone for what the civil service of incapacity, of dishonesty, or law defines to be a crime, but for what the of crime. -court think such immorality or imbecility or But, according to this new rendering of the maladministration as makes him unfit to exer- Constitution, we are asked to say that whatcise the office. ever may be the opinion of the merits of a. In 1804 a judge of the United States district Secretary entert'ained by the House of Repre-:court for the district of New Hampshire was sentatives, they cannot hope, and must not ask, impeached and removed from office. There to remove him by impeachment, until they can were four articles in the impeachment; three convince, not a majority, but two thirds of the of them presented the defendant for malad- Senate; not upon probable cause, but upon ministration in making certain orders in court; legal proofs; not of official incapacity however the fourth charged him with the immorality of gross, or of official delinquency however glardrunkenness. Neither charged an indictable ing, but of official misconduct such as the law offense. has anticipated and has forbidden under heavy e The respondent's counsel brushes all prece- penalties; yet thatathe President may remove dents and all authority aside. Ignoring the at will, upon his own motion, without trial or unanimous judgment of two hundred years, he notice, the same Secretary, simply because he insists upon a new interpretation of the old is distasteful to him, and thereby renders their words employed in our Constitution, an inter- personal relations unhappy, although he may pretatioi which seems to me invented for and be the ablest and the purest statesman who adapted to this particular case. His words ever held a portfolio. Thus the power of imare: peachment, expressly conferred upon the two "In my apprehension the teachings, the require- Houses by-the Constitution, is loaded with ments, the prohibitions of the Constitution of the conditions which render it useless to the ReUnited States prove all that is necessary to be at- public, except against the most daring crimitended to for the purpose of this trial. I propose, nals; and we are asked to accept in its place therefore, instead of aseareh through the precedents, which were made in the time of the Plantagenets, an irresponsible power of removal, resting the Tudors, and the Stuarts, and which have been upon no express grant, but only upon an unrepeated since, to come nearer home and see what reasonale and violent implication, to be exprovisions of the Constitution of the United States bear on this question, and whether they are not suffi- erted by a single man, which, in its practical cient to settle it. If they are it is quite immaterial operation, confounds all distinctions between what exists elsewhere."-Curtis's Argument, p. 404. official merit and official demerit, and which, This appeal from the agreement of centuries in my judgment, upon the experience of half is so boldly made that I cannot forbear to pre- a century, has done vastly more to debauch sent the respondent's theory of the constitu- the public service than to protect it. C. I.-65. 1026 If this most anomalous interpretation of the 2, 1867; and accordingly in the first article the Constitution is defended upon any theory of order of removal is charged specifically as a the transcendent importance ofthepresidential violation of the last-mentioned act, known as over the ministerial office, I reply that no such the tenure-of-office act. distinction is warranted by the law or the facts. Of course, with the views I have already In law the functions of a Secretary are as expressed of the true construction of the Conimportant to the nation as those of the Presi- stitution, I can entertain no doubt of the entire dent; and in practical administration the validity of the tenure-of-office act. I earnestly labors of each one of the seven heads of supported its passage in the- Senate. With Executive Departments are worth sevenfold whatever ability I had I endeavored to extend more to the public thran the labors of the its protection to the heads of the Executive President. Departments. I cannot, therefore, accept this new interpret- But while the action of the House accorded ation of the laws of impeachment. I hold, with with my own views, the Senate, by three difthe elder authorities, with the late authorities, ferent votes, rejected those views. The dis' with all the authorities, that impeachment is agreement between the two Houses led to * a process provided, not for the punishment of committee of conference. crime, butfortheprotectionoftheState. And so The committee reported the first section as holding, Imustgive judgment, not as to whether it now stands in the law, in the following the acts proved upon the respondent are de- words: dared by the criminal code to be crimes, but "That every.person holdingany civil office to which whether I think them so prejudicial to the he has been appointed by and with the advice and State as to warrant his removal. When the consent of the Senate, and every person who shall hereafter be appointed to any such office, and shall written law refuses to guide me, my own con- become duly qualified to act therein, is and shall be science must. I cannot accept the opinions entitled to hold such office until a successor shall of another man. The State must furnish me have been in. like manner appointed and duly qualiwith the rule of judgment or my own convic- fled, except as herein otherwise provided: Provided, ith the rule of judgment or my own convc- That the Secretaries of State, of the Treasury, of tions must supply one. There can be no other War, of the Navy, and of the Interior, thePestmasumpire. ter General, and the Attorney General, shall hold What, then, are the acts charged upon the their offices respectively for and during the term of thePresidentbywhomtheymayhavebeenappointed, President? how far are they proved? and to and for one month thereafter, subject to removal by what extent are they criminal? and with the advice and consent of the Senate." I believe I am not mistaken in saying that This section was explained to the Senate by the specific acts charged against the respondent members of the committee at the time it was in the first eight articles are, that on the 21st day reported as not designed to affect the power of February last he issued ap order removing of the President to remove the Secretary of Edwin M. Stanton from the office of Secretary War. Upon examining the provisions then it War, and that onthe same day he issued another was my own opinion that it did not affect his order authorizing Lorenzo Thomas to act as Sec- authority in that regard. And after all the retary of War ad interim. These two acts are debate I have heard upon the point since, I charged in different articles, in various forms, have not been able to change that opinion.,as done with various intendments and with If Mr. Stanton had been appointed during -various legal effects. They are relied upon as the present presidential term, I should have -specific violations of the Constitution and as no doubt he was within the security of the law. violations of different laws. They are relied But I cannot find that, either in fact or in legal;upon as evidences of a conspiracy to prevent intendment, he was appointed during the pres-r. Stanton from holding the office of Secre- ent presidential term. It is urged that he was tary of War, and as evidences of an attempt appointed by Mr. Lincoln, and such is the fact. to drive him from office by threats, intimida- It is said that Mr. Lincoln's term is not yet tion, and force. expired. Such I believe to be the fact. But the That the respondent issued both orders is language of the proviso is, that a Secretary fully proved by the evidence and fully admit- shall hold, not during the term of the man by ted by the answer. whom he is appointed, but during the term of It only remains for me to consider the cir- the President by whom he may be appointed. cumstances under which they were issued in Mr. Stanton was appointed by the President order to determine whether they constitute an in 1862. The term of that President was limimpeachable offense. ited by the Constitution. It expired on the The respondentjustifies the order of removal 4th of March, 1865. That the same incumunder the double warrant of constitutional bent was reielected for the next term is conauthority and of authority conferred by the ceded, but I do not comprehend how that fact second section of the act of 1789 creating the extended the former term. Department of War. Entertaining these views, and because the The first claim I have already considered first article of the impeachment charges the and rejected. The second claim is resisted order of removal as a violation of the tenureupon the ground that the authority given in of-office act, I am constrained to hold the Presthe act of 1789 is revoked by the act of March ident not guilty upon that article. 1027 But, even if the tenure-of-office act had never But the reason urged why the President been passed, it does not follow thatthe respond- could not resort to the Secretary for advice ent would not be guilty of a high crime in is, that the latter differed from him upon three issuing the order of removal. The order might points of public policy, the suffrage bill for the conclude Mr. Stanton. But it does not follow District of Columbia and the reconstruction that the people could not resent it and impeach acts of March 2 and March 23, 1867, "unity the President for issuing it. of opinion was gone." Two of the articles-in the impeachment of If unity of opinion had still existed, it is Judge Pickering charged him with making difficult to understand of what advantage Mr. certain orders in a judicial procedure pending Stanton's advice could have been to the Presbefore him. He had undoubted jurisdiction ident. to make the orders, and they were binding upon I do not readily perceive of what importance the parties until reversed. But the Senate it was to the President to resort to a minister found him guilty upon both articles, not because for advice if the advisory authority of the latter the making them was a usurpation of authority, was to be limited to echoing the President's butbecause it was an abuse of authority. I can- own opinions. not find, for reasons already stated, that the But it is very suggestive in this connection respondent's order removing Mr. Stanton was that the points of difference between the a usurpation of authority, but was it not an respondent and the Secretary were upon three abuse of authority? If Mr. Stanton was a public statutes. The President is known to meritorious officer, and yet the respondent have disapproved them all. They were, in fact, sought wantonly to remove him, he committed passed over lhis veto. the precise offense which Mr. Madison declared The inference seems irresistible that the in the debate of 1789 to be impeachable. Secretary approved them. But since they had The cause assigned by the President for the all been passed into solemn laws of what imorder of removal is — portance were the opinions of either, unless, "That the relations between the said Stanton and indeed, the respondent had resolved to defeat the President no longer permitted the President to their execution, and demanded a change in resort to him for advice or to be, in the judgment of he ar Ofce, not to aid him more efficien the President, safely responsible for his conduct of him more efficiently the affairs of the Department of War as by law in the execution of the laws, but to aid him in required, in accordance with the orders and instruc- defeating their execution? ticns of the President; and thereupon by force of the But another reason for wishing to get rid of Constitution and laws of the United States, which devolve on the President the power and the duty to the Secretary urged by the President is that he control the conduct of the business of that executive could not "safely be responsible for his conDepartment of the Government, and by reason of the duct of the affairs of the Denartment. Perconstitutional duty of the President to take care thate Department the laws be faithfully executed, this respondent did haps that was so; although the evidence is not necessarily consider and did determine that the said apparent. But the sufficient reply to that is, Stanton ought no longer to hold the said office of that he was not responsible forhis coiduct any Secretary for the Department of that he was not responsible for his conduct any further than he directed or sanctioned it. The The cause for these unhappy personal rela- suggestion that any President is responsible for tions is explained by the respondent in a mes- the conduct of subordinate officers is a groundsage sent to the Senate on the 12th of Decem- less pretext by whomsoeverurged. If a Presber, 1867, and which is made a part of the ident were responsible for the conduct of his answer in this cause. subordinates, the respondent would not only That explanation is as follows: have been impeachable, but would probably, "The subsequent sessions of Congress developed have been in the penitentiary long before this new complications when the suffrage bill for the District of Columbia and the reconstruction acts of March 2 and March 23, 1867, all passed over the veto. fared any better. It was in Cabinet consultations upon these bills that But upon this whole question, of the cause a difference of opinion upon the most vital points assigned for t was developed. Upon these questions therewas per- he exclusion of Mr. Stanton, the feet acco d between allthe members of the Cabinet Senate has already passed. The President and myself, except Mr. Stanton. He stood alone, himself, by his message of the 12th December and the difference of opinion could not be reconciled. That unity of opinions which upon great questions last, called for the judgment of the Senate upon of public policy or administration is so essential to them. I then voted them insufficient. Neverthe Executive was gone." theless the respondent issued the order of reThe respondent does not allege that Mr. moval; and if I am now to say that that act Stanton would not advise him and advise him does not constitute an impeachable offense, I honestly, but only that he, the respondedt, must either reverse the decision I then made " could not resort to him for advice." If the upon the cause of removal, or I must reverse fact was so, and if the advice of the Secretary the decision of Mr. Madison upon the nature was essential to the proper discharge of the of an impeachable offense. President's duty, as I have no doubt it was, I perceive no reason for reversing either. it would seem to show disqualification on the But upon the question of Mr. Stanton's part of the Executive rather than on thepartof merits as an officer, I am not left to rely upon the Secretary, and to demand the resignation of my own judgment alone. Of course my own the former rather than the removal of the latter. judgment must guide my own decision, since 1028 there is no Aiuthoritative law upon tle subject. Why didhe' leave him to suppose, as he told But I am glad to remember that my opinion was Mr. Wilkeson, that he should overcome the then in accord with that of a large majority of objection of Mr. Stanton, not through the aid the Senate, and also manifestly in accord with of the Attorney General, but by help of the what the opinion of the respondent himself General of the armies; or, as he told Karsner,'had been, and with that of his predecessor, that he was to use kicks and not writs?. If he attested by both in the most solemn manner. intended no more than a lawsuit, why did he President. Lincoln employed Mr. Stanton as not so inform Lieutenant'General Sherman Secretary of War during the last and the larger when he offered him the place of Secretary ad part of his administration. Mr. Johnson also interim some days before? At that time the employed him from the time of his accession General invited his attention to the propriety to the Presidency for nearly two years before of a lawsuit, but the President repudiated the the tenure-of-office bill was passed. And after suggestion as impracticable. But above all, its passage he continued to employ him until if he intended nothing more than a lawsuit, Congress had adjourned, had reassembled, why has he not had one? The courts have and adjourned again. Not until August, 1867, been always open to him. No lawyer needs to did he commence the labor of excluding him be told that the Attorney General could have from office. Of course the respondent cannot proceeded to try the title to the office upon an be allowed to say now in his own justification information filed upon the relation of General that he was employing in a high trust during Thomas as well as upon the relation of Mr. all that time an incompetent or an unfaithful Stanton. It has been suggested that the man. He must assign some reason for wish- respondent's hopes of a lawsuit were frustrated ing to exclude him from the service which did by the discontinuance of some criminal pro. tot exist before he commenced the attempt. ceedings taken against General Thomas upon This the;respondent does. He assigns three complaint of Mr. Stanton, soon after the order such reasons. They were found in the fact was issued. that the Secretary approved of three different The President, however, does not in his statutes of which the President disapproved. answer urge that explanation. And it is hardly So -an American President pleads before the credible that the President relied upon getting Senate, as a justification for his dismissal of a into court in that particular way. Every other Ininister, that the minister approved of certain way has been and still is open to him except public laws I A British minister leaves office one. He does not seem to have been able, so the moment a law passes which he cannot far, to get into the law courts as defendant, approve. And if a British sovereign were to and that seems to have been regarded by him assign such a reason for the dismissal of a min- as a sine qua non to any litigation. At liberty ister, he would not be impeached, indeed, at all times for nearly a quarter of a year to because the British constitution does not war- sue upon the right of General Thomas to rerant such a proceeding; but there is no ques- cover possession, he has failed to do so. But tion he would have to quit the throne by the he leaves us to infer that if he could have sncauthority not conferred upon but inherent in ceeded in putting General Thomas once in the Parliament as the representatives of the possession he would have been content to conpeople of the realm. test a suit by Mr. Stanton even had it taken a Commissioned as I am by the express letter year to determine it. of the Constitution to pass judgment upon the So far I discover absolutely nothing to reconduct of this respondent, and sworn as I am lieve the respondent from the guilt of having to give true judgment, I cannot hesitate to say issued an order for the removal of an able and that the attempt to drive an American minister faithful officer, long trusted by himself and by from the public service because he approved his predecessor, and still trusted by a large -the public laws, is of itself a high crime against portion of the country, charged with no fault, {he State. but that he approved of certain laws which the It is urged that his only purpose in issuing President condemned, and of removing him the order was to raise the question of his power against the advice of a large majority of the to remove, and obtain the judgment of the Senate. On the contrary, it seems to me this courts of law upon it. But when there was no guilt is greatly aggravated by. the disposition just cause for removal why should the Presi- the respondent sought to make of the office. dent have been so anxious to vindicate his To remove a meritorious public officer, Mr. power to remove? But I dismiss this allega- Madison declared, constituted an impeachable tion with the remark that I cannot believe it. offense. To remove such an officer and leave All the testimony in the case contradicts it. the office vacant, with no one to discharge the There is not a syllable to support it. If when duties, would doubtless be held to enhance the he issued the order of removal he intended guilt. To remove- a faithful and competent only a lawsuit, why did he not say so to Gen- officer, and supply his place with an incompeeral Thomas, to whom he gave the order? tent and dishonest one, would enhance it still, Why did he leave the Adjutant General to more. believe, as he told Dr. BURLEIGH, that he was To remove a good man from office, and to to gain possession not by suit but by force? replace him with a bad man, without any 1029 advice and without any sort of legal authority, tion. That commission can be issued under the: seems to me an offense against the public Constitution as promptly as a person maybe. interests which, if it go unrebuked, will excuse authorized under the act. The commission any possible offense that leaves the President and the authorization have the same practical outside of a penitentiary. effect; so that the provision made by the Coae That the respondent attempted to do all this stitution for cases of "vacancy" would seem is charged upon him, and, in my judgment, is to be ample and render legislation unnecessary. proved upon him. But if a Secretary be absent or. sick it is At the same time that he issued the order evident there is no one to discharge the duties of removal he issued another order, authorizing of the office; nor does the Constitution provide the Adjutant General of the Army to act as any mode of supplying the want. The office Secretary ad interim. The fitness of General is not "vacant," but the incumbent is disabled. Thomas for the office of Secretary is not fairly To provide for such a case was, as I supin issue in this cause, and consequently we can pose, the main purpose of the eighth section know but little about it. A few things, how- of the act of May 8, 1792, entitled "An act ever, are disclosed in the evidence. It is shown making alterations in the Treasury and Wal that the same position was tendered, afewdays Departments." In fact the section does a before, to Lieutenant General Sherman, and he little more than provide for cases of disability. declined it. But when it was offered to General It provides for one kind of vacaincy. The Thomas, he not only accepted it promptly, but language is: he addressed a letter of thanks to the President " In case of death, absence from the seat of Govfor the " honor done him. " When the Adjutant' ernment, or siqkness of the Secretary of State. SeGeneral gives thanks for a trust so high, so del- retary of the Treasury, or of the Secretary of theq War Department," &c., " whereby they cannot per'. icate, so solemn that Lieutenant General Sher- form the duties of their said respective offices. it shal man shrinks from and declines it, it suggests be lawful for the President of the United States, in the inference that the former is not exactly the case he shall think it necessary, to authorize andr man for the place. person or persons, at his discretion, to perform the Tman dor *he plae. 1 uties of the said respective offices until a successor It does appear, also, from the testimony that be appointed or until such absence or inability by the General of the Army had recommended sickness shall be removed." his retirement from the military service alto- Thus the law stood until 1795. All vacan, gether. One whom General Grant thinks no cies were provided for by the Constitution? longer fitted for the post of Adjutant General and temporary disabilities and vacancy by does not afford the highest evidence of fitness death were provided for by the law of 1792. for the post of Secretary of War. Then the law was passed the whole of which But the respondent's legal right to put Gen- was quoted above. It is entitled'"An act to eral Thomas in possession of the War Office is amend the act of 1792." In terms it provides put in issue by the second and by some other for all cases of vacancy, whether by death, articles in the impeachment. resignation, or otherwise; and it provides for The respondent claims authority under the no case of disability. What the Constitution act of February 13, 1795. That is as follows: had done well, the act does over again; what the Constitution had not done at all, the act " That in case of vacancy in the office of Secretary omits to d he of State, Secretary of the Treasury, or of the Secre- omits to do. tary of the Department of War, or of any officer of But it is evident from every part of that either of said Departments whose appointment is short statute that the draftsman had no not in the head thereof, whereby they cannot per- definite idea of the mischiefs he wished to form the duties of their said respective offices, it *shall be lawful for the President of the United remedy. He does not even seem to have contates, in case he shall think it necessary, to author- sidered what a "vacancy " was, or to have ize any person or persons, at his discretion, to per-ed from a form the duties of the said respective offices until a been conscious that a vacancy differed from a successor be appointed or such vacancy be filled: disability. Hence the act attempts to qualify Provided. That no one vacancy shall be supplied in a vacancy in at office by the circumstance that manner aforesaid for alongerterm than sixmonths." it shall prevent the incumbent of the offie I cannot admit the claim for three reasons: from discharging its duties-as if there were First, there is reason to suppose that the some vacancies which did not prevent the statute of 1795 was never regarded as a valid regular discharge of duty. law. Second, it seems to mae to have been Again, it limits, in terms, the duration of clearly repealed by the act of 1863. And the ad interim appointment " until a successor third, if it were in full force it did not authorize be appointed or such a vacancy be filled," as the order issued to General Thomas. if two sorts of vacancy were provided for, one If a vacancy occur in the office of the Sec- of which was to determine by the appointment retary during a session of the Senate it may, of a "successor," and the other by being under the Constitution, be filled immediately " filled." The main purpose of the act seems by a new nomination and confirmation. If the to be to limit the extreme duration of an ad vacancy occur during the recess of the Senate interim appointment. And in this endeavor the Constitution empowers the President to fill it collides hopelessly with the Constitution. it by a new commission, to hold until the Sen- The Constitution says the President may ate convenes and can act upon a nomina- supply a vacancy occurring during the recess 1030 of the Senate by commissioning a person to every power which had ever been exerted act until the end of the next session. The act under that act was also copied. All provisions says that no vacancy shall be supplied longer in former laws inconsistent with the provisions than six months. It would seem that an act ofthe last-mentioned act are expressly repealed. so incongruous ought not to be relied upon as And yet it is gravely argued that this power authority for anything. I can find no evidence of supplying a vacancy caused by removal with that it ever was quoted as authority before. an ad interim appointment still survived; not In Little & Brown's edition of the Statutes-at- only that it survived the act of 1863, but the Large it is marked " obsolete." But if it ever act of March 2, 1867, also, which deprives the was a living law, it seems to me indisputable President of all power to create a vacancy by that both the acts of 1792 and of 1795 are removal except in case of a head of Departrepealed by the act of February 20, 1863. ment where no such vacancy ever was created It has been seen that neither of the former more than once, if at all. So, in spite of the acts made provision for cases out of the three acts of 1863 and of 1867, we are asked to exDepartments of State, War, and Treasury. In press, from the mere husks of that poor, mis1863 it was found that no provision had been shapen statute of 1795-denounced as obsolete made for temporary disabilities in either of in the code where it stands-the authority to the other Departments. There was evidently follow the removal of a Secretary made when occasion for further legislation, and it seems the Senate is in session with an ad interim to me to have been made the occasion for appointment. For one I cannot consent to revising the whole subject and of embodying torture the laws in order to extort from them in a single act not only all the provision to be permission for the respondent to strip the high made, but all the cases to be provided for. trust of Secretary from Edwin M. Stanton and The title of the act and the purview of the act place it in the hands of Lorenzo Thomas. alike prove this. The title shows that the act It is said that repeals by implication are not is not amendatory of, or supplementary to, the favored by the courts. That is true. Neverformer acts; but that its aim is to do effectually theless, a statute may be repealed without just what the other acts did partially. naming it. It is entitled "An act temnporarily to supply " It is a well settled rule that where any statute is vacancies in the Executive Departments in revised or one act framed from another, some parts 6crtain cases. being omitted, the parts omitted are not to be revived The body of the act shows unmistakably bY construction. but are to be considered annulled. To hold otherwise would be to impute to the Legisthat the draftsman had both the former acts lature gross carelessness or ignorance, which is altobefore him. He copied from both. The act gether inadmissible."- Wilde. J., Ellis vs. Paige et al., provides for cases oif death, absence, and sick- 1 Pickering. 44: 5 English, 588; 3 Greenleaf, 22; 3 hess, as did the act of 1792. It provides for HoEard, 645; 12Mass.y 545; 14r, 34. cases of resignation, and provides the six Encouraged by these authorities, I venture months' limitation, as did the act of 1795. to conclude that when Congress embodied in Every case provided for by both the former the act of 1863 every single power which ever acts is embraced within the terms of the act had been seen in the act of 1795, and every of 1863, unless the case of removal be an use which ever had been made of it, they did exception. not intend to preserve the act just to sustain a It is argued that the act of 1795, as it au- power which never had been seen in or a use thorized an ad interim appointment in all which never had been made of it. cases of vacancy, authorized one in case of But if the act of 1795 had been in full force vacancy by removal. That is conceded. But on the 21st of February last, it would not have it should be remembered that the power to authorized the order given by the respondent supply a vacancy caused by removal with an to General Thomas. Manifestly it was the ad interim appointment is a power not named purpose of all these laws (that of 1792, of 1795, in the statute of 1795, since the power so to and 1863) to enable the President to supply create a vacancy is not in that statute. The some one to discharge the duties of an office power to make a vacancy by removal is found temporarily when, by reason of a vacancy in n the acts of 1789 and 1820. So one in look- the office or the disability of the incumbent, ing at the act of 1795 does not see the specific the duties could not otherwise be discharged. authority which the respondent asserted on the It was not intended he should use either of these 21st of February. Those who drew the statute laws to replace a regular officer with a provisof 1863 could have seen it only by collating ional one. Yet such is the use the respondent the act of 1795 with the acts of 1789 and 1820. attempted to make of the act of 1795. There The act of 1795 had been on the books for was no vacancy in the office of Secretary of more than seventy years. The archives of War on the 21st of Februarylast. Mr. Stanton the Government have been ransacked and fail was in the regular discharge of its duties; to show that in that whole period a single re- sieither sick nor absent. moval was ever by any President followed with But it is urged that the President had power an ad interim appointment. Every power, to remove Mr. Stanton, and, as he issued an therefore, which could be seen by reading the order for that purpose, there was a " vacancy act of 1795 was copied into the act of 1863; in law." 1031 If there is any such thing as a " vacancy in I do not suspect him of an attempt to deceive law" it is excluded from the operation of the General Sherman; but, on the contrary, I hold act of 1795 by its very terms. That author- him upon his own declarations guilty of an izes an ad interim appointment only in cases attempt to drive Mr. Stanton from office by of such rational vacancies as prevent the in- threats and intimidations, as is charged against cumbents from discharging the duties of their him. offices. This "legal vacancy" was not of that I hold also that he conspired with General kind. It did not prevent Mr. Stanton from Thomas to do this, as is charged in article four. discharging the duties of his office. On the I hold that the testimony discloses every fact contrary, he continued to discharge them regu- necessary to constitute a crime against the act larly in spite of the alleged "vacancy," and, of July 31, 1861. on the trial of this very cause, copies of records If, instead of being arraigned before a court have been read in evidence, certified by him, of impeachment, the respondent was on trial as Secretary, to be true copies, which certifi- before a criminal court, I do not see how a jury cates were made many weeks after the "legal could fail to convict him. Surely it will not be vacancy" is said to have occurred, and were denied that the office of Secretary of War is read without objection to their competency such an office as is described in that act. It from any quarter. But when General Thomas will not be denied that on the 21st of February was authorized to act as Secretary ad interim last Mr. Stanton was holding it. It will not be there was no "legal vacancy," nor any pre- denied that it was the purpose of both the tense of one. Mr. Stanton not only had not respondent and of General Thomas to prevent retired from the War Office, but he had received him from holding it longer. To that end they no notice to retire. conspired together. Both were unfriendly to The testimony shows that while Mr. Stan- Mr. Stanton. The respondent avows it in his ton was in the regular discharge of his duties answer. The Adjutant General does not avow as Secretary, at the War Office, without notice it, but it is clearly inferable from the facts of an order for his removal or of a purpose to stated by him, that for several years he had remove him, General Thomas was called to been relieved from the post of Adjutant General the White House, and there presented with a by the Secretary, and that he had been but rewarrant making him Secretary ad interim. As cently restored by the direct order of the Pressuch he was at once assigned to duty. And ident, and against the wishes of the Secretary. the first duty assigned to him was that of mak- It does not appear that any other human ing a vacancy by executing the order for the being was advised of this purpose common to removal of Mr. Stanton. those two individuals. On the contrary, there It seems to me that any one who will open is strong presumptive evidence that no other his eyes may plainly see that the authorization person was advised of it. to General Thomas was issued, not as a means It would seem natural that upon a measure of supplying a vacancy, but as a means of of so much gravity the President should have making one; not to provide for the discharge consulted his Cabinet. The gentlemen comof the duties of Secretary, but to prevent Mr. posing that Cabinet were severally produced in Stanton from discharging them. If the re- court. The counsel for the respondent offered spondent had believed his simple order of to prove by them what advice they gave, the removal would have made a vacancy in the President upon some questions of law, but no office he would have proceeded to fill it by intimation was given that they were consulted, nomination, as President Adams did in 1800, or that they advised upon the expediency of and as sooner or later the respondent knew he this attempt to place the War Office in the hands must; and as in fact he did proceed, the next of General Thomas, to the exclusion of Mr. day, when he found the order of removal did Stanton. The means selected for that purpose not make a vacancy. But he did not expect were, as we have seen, two written orders, the Mr. Stanton would obey his order of removal. one directing Mr. Stanton to turn over the office He kmqew Mr. Stanton had other views of the to the Adjutant General, and the other orderlaw. He thought to surprise him into acquies- ing the Adjutant General to take possession cence by confrontinghim suddenly with another and discharge the duties. It maybe said such pretender to the office. I believe this, because methods were not calculated to intimidate Mr. it is the only rational interpretation of his con- Stanton. The result shows they did not intimiduct, and because it is the very explanation date him. But the testimony shows that the he himself gave to General Sherman. respondent reasoned otherwise. He told GenIn his answer the respondent denies that he eral Sherman that just such papers in his hands used or intended to use intimidation or threats, would intimidate the Secretary. If it be said as is charged in some of the articles. But it that the President had the legal authority to seems to me he must either intend to deceive issue the orders, and might, therefore, calcu-' us by that denial, or he meant to deceive late on the obedience of Mr. Stanton, I reply General Sherman when he offered him the that he did not revoke the orders when he found appointment of Secretary atd interim, for he Mr. Stanton denied his authority and did not then tried to persuade him that Mr. Stanton obey. If it be said no force was employed to was a coward, and would be intimidated by it. compel obedience, I reply that force was threat 1032 ened by the Adjutant General, both to Dr. him to be punished for it. If the end aimed BURLEIGH and Mr. Wilkeson. at be good the means will be generously critIf it be said that those threats were not sanc- icised. tioned by the respondent, I reply that the Adju- But the respondent was aiming to do what tant General, while he says the President did the Senate advised should not be done, and not specifically direct the employment of force, what the Lieutenant General of the Army, a yet did authorize it by the order commanding man animated by great courage and great canhim to take possession, and that on Friday, on dor and inspired by no party or personal Saturday, on Monday, and on Tuesday when attachments, admonished him not to do. I told by the Adjutant General that Mr. Stanton cannot help believing he was moved, not by refused to surrender, the respondent'suniform any regard for the public welfare, but by the reply was substantially, "Go on; take posses- hope of gratifying his personal resentments. sion and discharge your duties;" that he never When malice dictates the end judgment must once cautioned him against the use of force, not mistake the means. and never once directed him to resort to the But I see no reason for excusing the acts of courts. And, finally, General Thomas says he the respondent upon the ground of mistake. abandoned the idea of force not because he If he was mistaken on the 21st of February he doubted his authority to use it, but because he is mistaken still. He has not recalled his did not wish to cause bloodshed. orders. He is impeached by the Represent, And it cannot be allowed to the respondent atives of the people because of them, and the to urge that he is not responsible for what Gen- issue he tenders is not that he was innocently eral Thomas did and what he threatened to do mistaken, but that he was right, and that what within the scope of the warrant given him by he did he would have done if he had known the respondent himself in furtherance of the that his conviction was certain. He still emcommon purpose. One of the reasons assigned ploys General Thomas at the meetings of his by him for wishing to get rid of Mr. Stanton, Cabinet as Secretary ad interim while Mr. was that he could not safely be responsible for Stanton discharges the duties of Secretary at his conduct. And yet he now protests that he the War Office; and the astounding spectacle is not responsible for the conduct of his suc- is exhibited of two rival claimants to that high cessor, even when going right from his pres- office, the one recognized by the Legislature ence to prosecute a specific purpose with plen- and by every other executive officer and actuary instructions to execute it, and with no sort ally discharging'the duties but excluded from of restriction as to the means to be employed Cabinet meetings, while the other is recogin the execution of it. nized by the President and entertained at minA few words of comment upon some consid- isterial consultations but is disowned everyerations urged in defense upon this part of the where else. And yet, for almost three months, case. the President has not taken the first legal step And first, it is said his attempt to eject Mr. to terminate the pretensions of either. Stanton and install General Thomas did not If one is indicted for the larceny of a coat, succeed, and so he ought not to be punished. and appears in the dock with the coat on his I cannot think the position is well taken. back, urges his title to it in his defense, and Whatever he could do to insure success he proclaims to the court that he would have taken did. If his orders were illegal he cannot it if he had been sure of going to the penitenplead Mr. Stanton's lawful disobedience in his tiary for it, a jury would not be apt, after findown justification. If his orders were legal he ing all the facts against him, to acquit, upon cannot plead Mr. Stanton's unlawful resist- the assumption that he might have appropriated ance in his own justification. Mr. Stanton's the coat under mistake. conduct cannot make his acts either guilty or I see nothing criminal in the interview beinnocent. If one aim a blow at another he is tween the respondent and General Emory. not held innocent because the intended victim Nor am I satisfied it was prompted by any wards it off, and so is not felled by it. sinister purpose. - And, therefore, upon the Again, it is said the unlawfulness of his order ninth article I must find the respondent not is not clear, and the respondent might have guilty. been mistaken, and that it would be hard to The tenth article is of different purport from impeach him for a mere mistake of law. Cer- anything heretofore considered. In it the retainly it would. No reasonable man would spondent is presented for certain utterances think of doing so. made by him on different occasions. I cannot In my opinion the respondent has made reproduce here the language attributed to him. graver mistakes as to his constitutional powers It is set forth at length in the article, and there than are proved in this record. Many of his is no dispute, I believe; that is proved subpredecessors have made as grave and palpable stantially as avowed. ones. But I do not hold that either should The Representatives of the people present have been impeached for them. When a Pres- these speeches as official misconduct. For the ident, faithfully striving to promote the public defense, it is said the issue involves nothing good, exerts a power which the law does not more than a question of personal taste. Howvest in him, a just people would not permit ever improper the words were, it is argued that 1033 the respondent must be protected in the use duct and his speech. Counsel have treated of them, because the Constitution guarantees this article as if it were an attempt to punish freedom of speech to all wen. To this the a citizen for animadverting upon the policy of reply is that speech is not, and never was, a Congress. The purpose, if I understand it, designed to he free. Unrestrained speech is is widely different from that. The article, fatal to freedom as the old restraints of despot- after setting out the words of the respondent ism. Speech is not free in this country, nor used on the occasions referred to, concludes in any country where there is both liberty and as follows: law. The Constitution has indeed commanded, " Which said utterances, declarations, threats, and in stern rebuke of an old form of despotism, harangues, highly censurable in any, are peculiarly that Congress shall make no law abridging the indecent and unbecoming in the Chief Magistrate of the United States, by means whereof said Andrew freedom of speech. Thereby fell the star- Johnson has brought the high office of the President chamber and all government censorship. The of the United States into contempt, ridicule, and disclamps were struck from the organs of articu- grace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the lation. Thereby the tongue was made free as United States, did commit, and was then and there any other member. But no more so. Violent guilty of a high misdemeanor in office." patients in a retreat for the insane are often The principle of the tenth article is precisely put in straitjackets to avoid the possibility of the reverse of the law of 1798. That law promischief. But sane men are permitted to walk posed to punish the people for criticising the about in society with arms free and unconfined. ill'conduct of their servants in the GovernBut it does not follow that because they are ment. By the tenth article the people propose unfettered they may use their arms as they will, to remove one of their servants for ill conduct. and with impunity. The law still lays its im- Because the servants may not tell their masperious command upon every citizen, that he -ters, the people, what to say, it does not follow use not his freedom of limb to the injury of that the people may not tell their servants any man's person or property, or to the injury what to say. of the State. Whoever disregards the com- A law which should prohibit a man undet mand must answer for the wrong. The same penalties from tearing the siding from the command is laid upon human speech. Who- house he owns, to make repairs, might be ever speaks to defame the character of his thought rather harsh, and yet it might not be fellow, or to injure his property, or to incite thought unreasonable to prohibit a tenant from to crime against the State, may be held respon- splitting up the floors and bedaubing the fressible for so doing. coes in the house he hires. "Every freeman has an undoubted right to lay The people of the United States own the ~what sentiments he pleasesbefore the public; to for- office of President. They built it. It is con*bid this is to destroy the freedom of the press. But secrated to their use. In it they thought to if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own crystallize and employ the excellence of the temerity." Republic. They claim the right to protect it That sentiment is quoted from the Comrn from desecration. Their Representatives aver mentaries of William Blackstone by Justice that Andrew Johnson has disgraced that offioe. Story, and with his hearty approval. (Story's They tell us wherein. And the simple quesCommentaries on the Constitution, section tion presented in the tenth article is whether 1878.) the language and the conduct proved under it And Chancellor Kent instructs us that-. are or are not degrading to the office of Chief " It has become a constitutional principle in this Magistrate. country that every citizen may freely speak, write, It is urged, in reply, that if it is disgraceful and publish his sentiments on all subjects, being the Senate ought not to condemn it, because responsible for the abuse of that right; and'that no law can rightfully be passed to restrain or abridge the Representatives who prosecute have somethe freedom of the press."-1 Kent'8 Corn., see. 241. times used language quite as bad, and that Speech is not, therefore, of necessity inno- even in the Senate, which tries the case, words cent because it is not muzzled. have been heard at times not much better. Is the respondent amenable for the speeches This defense is ingenious, but hardly good in attributed to him in the tenth article? law. The law of set-off is not unfamiliar. to We are admonished that to hold him so the practice of the courts; but I have never would be to repeat upon him the wrong which known it extended beyond settling of debts the so-called sedition law of 1798 inflicted upon between the immediate parties to the recordr the people of the country. Clearly, there is I have never heard a defendant sued for the no analogy between the offense charged against amount of his grocer's bill object that the the President in this article and the offenses court could not give judgment against him proscribed by the second section of the act of because the judge himself owed a bill at the, 1798. That was a proposal by the Govern- same shop. *I fear the respondent's counsel ment to punish citizens for too free criticism do not justly appreciate the presidential officp upon the conduct of their own servants. The when they gravely plead in justification of the House of Representatives propose no more harangues set out in this article the worst than to remove a servant of the people from specimens of discussion found in the debates office which they say he disgraces by his con- of the two Houses of Congress. Much might 1034 be urged in palliation of those precedents, but denied that the Thirty-Ninth Congress was a all I care to say is that, instead of being a legitimate body authorized to enact laws for the justification for anything, they cahnot be justi- United States, but that it was only a Congress fied of themselves. of a part of the States; and for having, in purWere those utterances disgraceful to one suance of such declarations, set himself against holding the presidential office? the execution of several of its enactmentsIt has been urged that he did not speak as a the acts fixing the tenure of civil offices and magistrate, but as a citizen. That, I appre- reconstructing the rebel States among them. bend, is a mistake. From the time one assumes The respondent denies that he said the Thirtythat high office until he retires from it he is Ninth Congress was a Congress of only part always President. Not all he does is neces- of the States " in any sense or meaning other sarily official, but all he does should be con- than that ten States of the Union were denied sistent with the exalted character of the office. representation therein." No worse meaning The office of Chief Magistrate is not a garment than that could be imparted to the words he to be laid off or put on at the pleasure of the used. incumbent. When once those high responsi- "Ten States of the Union were excluded bilities are assumed they must be maintained. from the body. But the Constitution requires If the incumbent weary of them, he may resign. that Congress should be composed of two SenIf he abuse them, he may be removed. ators and a given number of Representatives But on the occasion referred to in the article from every State; consequently this body was the respondent was acting semi-officially. He not the Congress of the United States." That was not discharging any duty imposed on him was the doctrine he meant to teach. But he as President, but he was exercising a high says free speech is secured to him, and he had privilege belonging to him as such. Not as a a right so to teach. Of course. His right so citizen of Tennessee, but avowedly as Presi- to teach is as unquestionable as the right of dent of the United States of America, was he the people to impeach him for it; but I cannot then visiting and being visited by his great conceive of teachings more mischievous than constituency. these. He is sworn to see the laws executed. Was his conduct such as became his char- If that body was the Congress of the United acter? I cannot find any rules in the law by States its enactments were laws; if not, they which to try those utterances. I cannot con- were not laws. One of two conclusions, then, sent to try them by the models furnished from is inevitable. Either he meant to instruct the the proceedings of the Houses of Congress. people that the enactments of that body might I can try him only by my own estimate of what be disregarded, because not passed by a Conthe bearing of a Chief Magistrate should be, gress, or he meant to tell them they must subwhen I say that in my judgment the conduct mit to enactments of a body which was not, and the language proved against the respondent but only assumed to be, a Congress. Either was wholly unbecoming the office he filled, and conclusion, in my judgment, shows a criminal such as, if often repeated, would be fatal to purpose. The article avers the first to be the the respect with which the people have hith- true conclusion, and that in pursuance of that erto cherished it. That judgment, I believe, conclusion he himself undertook to obstruct is in strict accord with the opinion of the great the execution of the tenure-of-office act and maJority of the American people as expressed some other enactments of that Congress. at the time. I do not mean to speak figure- The case shows that on the 12th of August, tively when I say the people then hung their 1867, the respondent, in accordance with the heads in mortification-not his political ene- provisions of the tenure-of-office act, susmies alone, but his political-friends as well, pended Edwin M. Stanton from the office of And of those friends I doubt if there is one in Secretary of War; that, in accordance with the Senate who has not often declared his the same, he made General U. S. Grant Secbelief that but for the very matters charged in retary ad interim; that, in accordance with,the tenth article the people would have sanc- the same, on the 12th of December, he comtioned the policy which the respondent then municated his reasons for the suspension to urged upon them, and which his friends pro- the Senate. All this was in strict accord with fessed to believe was vital to the peace and the provisions of the act, if not in pursuance welfare of the country. How they can now of them. All these steps were authorized by vote conduct to be innocent to which they then the act of March 2, 1867, above referred to. ascribed such disastrous results they can doubt- But that act also required that if the Senate less explain; I cannot. Many a lieutenant did not approve the reasons for which the sushas been cashiered for "conduct unbecoming pension was made the office should be restored. an officer and a gentleman." Is it possible Now, the case shows that the respondent the people cannot remove a President for the designed and contrived to prevent that restortome offense, and that, too, exhibited on great ation in spite of the act. His letter to Genpublic occasions? eral Grant, on page 234 of the record, shows The eleventh article alone remains to be that beyond all possibility of mistake. True, noticed. In that the respondent is presented he does not confess to have designed his for having, on the 18th day of August, 1866, exclusion longer than to try the right of Mr. 1035 Stanton in the courts of law; but that right he attempted to do it against the advice of the could not be so determined during the remain- Senate, without consultation with his Cabinet, der of this presidential term. But what was and without previous notice to the people; the question to be tried? Not the question and because, in furtherance of that unlawful of his right to remove Mr. Stanton, for he had purpose, he sought to commit the powers of that not removed Mr. Stanton; he had only sus- high office to Lorenzo Thomas, and did, withpended him. Not the constitutionality of the out any authority of law, issue his warrant to tenure-of-office act, for the validity of that act that effect, before said Stanton had surrendered could not be put in issue in a suit between Mr. those powers, and when he had no just reason Stanton and General Grant; for, if the act was to believe said Stanton would surrender them; valid, it commanded Mr. Stanton to be restored, and because he did intend and contrive thereby' because the Senate had found the reasons for to intimidate said Stanton into a surrender of his suspension insufficient. If it was invalid the those- powers by making him believe that force order of suspension itself was without author- would be employed to compel his surrender; ity, and General Grant never had any right in and because I believe he did use the language the office. So, in such a suit, the respondent charged upon him by the Representatives of would have been exhibited in the attitude of the people, and that sucf utterances are of asserting the validity of the tenure-of-office evil example, of pernicious tendency, and calact, in order to get Mr. Stanton out of the culated to degrade the office of President in office, and of denying it to prevent his getting the estimation of the people; and because he back. did publicly teach that the Thirty-Ninth ConTo avoid this monstrous predicament the gress was not a body whose enactments had respondent, in his answer, asserts what seems the authority of law; and because he did himto me, if possible, still more monstrous. He self set the example of disobeying the-enactasserts that he did not suspend Mr. Stanton ments of that Congress by endeavoring to by virtue of authority conferred by the act of induce the General of the Army to retain posMarch 2. True, every step he took was a step session of the office of Secretary of War, after prescribed by that act, and yet he avers, in his the Senate had decided, in pursuance of one answer, that he did not suspend Mr. Stanton of the laws of that Congress, that said Stanton in pursuance of that act "until the next meet- should and ought to repossess the same; thereing of the Senate, or until the Senate should fore I find the respondent guilty of high crimes have acted upon the case, but by force of the and misdemeanors respectively charged in artipower and authority vested in him by the Con- cles two, three, four, five, seven, eight, ten, stitution and laws of the United States indefi- and eleven. nitely and at the pleasure of the President." It has come to that. The respondent, to OPINION justify his acts, not only asserts authority OF under the Constitution to remove all officers OF appointed by the joint act of himself and the HON. JACOB M. H O W ARD. Senate, in spite of laws to the contrary, and to replace them with others commissioned by ABSTRACT OF CHARGES. himself alone, but' he also claims the power ARTICLEI. That Johnson issued the order of reto suspend them all and fill their places with moval with intent to violate the tenure-of-office act and to remove Mr. Stanton. ad interim appointments. The first is a power ART. II. That he issued the letter of authority to which gives the President absolute control of Thomas with intent to violate the Constitution and one incumbent for each office known to the the tenure-of-office act. laws. The last is a claim which gives him the ART. III. That he appointed Thomas Secretary of laws. The last is a claim which gives him the War ad interim. right to duplicate the number. ART. IV. That he conspired with Thomas and So far as I know, this extraordinary power others unknown unlawfully to hinder and prevent was never heard of until the responent's Mr. Stanton from exercising the office of Secretary was never heard of until the respondent's of War. answer was filed. I never saw a syllable in ART. V. That he conspiredwith Thomas and others the Constitution to warrant the claim. No toprevent and hinder the execution of the tenureossible exigency of the service could require of-office act, and in pursuance of said conspiracy did possible exigency. of the service could require attempt to prevent Mr. Stanton from holding his t; and to mymindthe whole pretense, instead office. of excusing the respondent's acts, only aggra- ART. VI. That he conspired with Thomas and others to seize by force the property of the United vates their guilt. States in the War Department, contrary to the conBecause, therefore, the testimony in this case spiracy act of 1861, and the tenure-of-office act. compels me to believe that the respondent, in ART. VII. That he conspired with Thomas with intent to seize and take such property, contrary to order to punish Edwin M. Stanton for his the tenure-of-office act. fidelity to the laws, did seek to remove him ART. VIII. That with intent to control the disfrom the office of Secretary of War, in which bursements for the War Department, and contrary d to the tenure-of-office act. and in violation of the he had long and ably served his country; and Constitution, he issued the order appointing Thomas. because he perverted to that purpose the sol- ART. IX. Thatheinstructed Emorythat the clause emn trust reposed in the Executive by the act in thqappropriation act of 1867; requiring that all orders should pass through the General of the Army, of August 7, 1789, therein acting in wanton was unconstitutional and in contravention of Emodisregard of the public welfare; and because ry's commission, with intent to induce Emory to 1036 accept orders-directly from him, and with intent to dent. Without this advice, this consent, the violate the tenure-of-office act. office cannot be conferred The appointment ART. X. That with intent to bring into disgrace, offic e cannot be onferred. The appointment ridicule, hatred, contempt, and reproach, the Con- thus becomes the joint act of the Senate and gress of the United States and the several branches the President. There are thus created by the thereof, and to impair and destroy the respect of the Constitution two constituents instead of one. people for them, he made the speeches at the Execu- Two wills must concur in the aointment to tive Mansion, at Cleveland, and St, Louis. Two wills must concur in the appointment to ART. XI. That he attempted to preventthe execu- an office. It is plain that one was intended tion of the tenure-of-office act by unlawfully devis- as a check upon the other against imprudent ing means to prevent Mr. Stanton fropa resuming the aointments. T functions of his office, and to prevent the execution appointments. This check is in the hands of of the said clause in the appropriation act of 1867, the Senate, to whom the name of the person and thereconstruction act of March 2, 1867. selected for the office by the President is first It has never been claimed that the power of to be submitted in the shape of a nominathe President to remove an incumbent from tion, before the office can be conferred upon office is granted expressly; that is, in plain him. Their advice and consent must first be terms, by the Constitution. All admit, all obtained, as an indispensable prerequisite. have from the first admitted, that if it exists This check was intended for the public good, in him it exists by infplication; in other words, for the public safety; and was doubtless sugthat it is derived from and is necessary to the gested by the monstrous abuses practiced in execution of powers or duties granted or im- the Colonies by the unchecked power.of the posed in plain terms by the instrument; that Crown in appointing unworthy favorites to it is an induction from express clauses. Only office among them, who, in the language of three clauses have ever been relied upon as the Declaration of Independence, had been foundations of this induction or implication. licensed to " eat out their substance." At any They are the clause in the second section of the rate, it was a measure of wise and sound presecond article giving him the power to nomin- caution against the tyranny of an irresponsiate, and by and with the advice and consent of ble appointing power, and the corruption and the Senate to appoint, all officers of the United favoritism of uncontrolled. unexamined, secret States whose appointments are not therein appointments to office. Against these, "the otherwise provided for, the clause in section advice and consent of the Senate" were esone of article two declaring that " the execu- teemed sufficient safeguards. tive power shall be vested in a President of./rhe " appointment " is then the joint act of the United States," and section three of the the Senate and the President; I say joint act, same article imposing upon him the duty to because that act which to become complete and "take care that the laws be faithfully ee: effectual, requires the concurrence of two wills, cuted." is, in morals as in law, a joint act. I shall speak of these in their order. It follows, logically, that if, as is conceded I assert, then, that the appointing clause I and undeniabl'e, the power of removal is an have mentioned does not imply the power of incident to or a part of the power of appointremoval by the President alone and without ment, the appointment cannot be revoked; the the consent of the Senate. office cannot be recalled; the officer cannot be Here I hold the advocates of the power to removed, but by the concurrence of the same the concession upon which alone their reason- wills that acted in the appointment. The reving proceeds, namely, that the power of re- ocation must, in point of authority, be coexmoval is an incident to or rather a part of the tensive with the authority that granted the power of appbintment. This concession is as power; or, to speak more correctly, the old as the controversy. It is an historical ele- authority must be the same. ment in the debate coeval with its origin. It It follows that the President has no power ib founded upon the uncontroverted and in- of removal without the consent of the Senate; controvertible principle that the author of an because the power of removal is necessarily the agency, the constituent, may revoke and annul same power that made the appointment. No it at pleasure. It rests upon tile freedom of distinction can in the nature of things be drawn the will and the right of every man to act for between the former and the latter. They are himself in matters pertaining to him. This not two powers, hut one and the same. The concession arises from common sense, from division of them, and some have divided or necessity, and is irrevocable. It is the rule sought to divide them, is a mere metaphysical not only of the common law, but of the civil subtlety, a mere play upon words. The words law and of universal law, that the constituent' appointment" and "by and with the advice may revoke the power he has granted. and consent of the Senate" are intended for But who, under this clause, is the constitu- practical use, and are addressed to us in a ent? From whom does the power, the official practical sense, for the purpose of conferring power created by law, proceed? Whose will a public benefit; not as a theme of metaphysimparts the agency, confers the office? Not ical disputation and wrangling. They are of the President's alone: his sole will cannot no utility whatever unless they are held to confer the office; but the will, that isd the mean that the constituent power necessary to "'advice and consent of the Senate," must an appointment to a public office is made up unite with the will and purpose of the Presi- of the will of the President and the will of the 1037 __.____.... Senate; and as it is this double consent, this that all political power in England is vested in joint concurrent will, that gives the appoint- Parliament. It is true that, in administration ment, it cannot be revoked without the exer- the king is to attend to the execution of the eise of exactly the same concurrent will, this laws by commissioning agents or officers for double consent. that purpose; but he cannot claim it as a legal To say that one of the two joint constitu- right against an act of Parliament. He might ents can undo an act which it required both to complain of such an act as an encroachment do is to give to one the power of both, which upon his prerogatives, but should Parliament is a contradiction in terms; for an act which appoint the officers by direct act of legislation, requires the concurrence of two parties can- no one will pretend that this mode of constinot be undone by one of them without yield- tuting them would be illegal and void. ing to the one the power of both, which is The very omnipotence of Parliament is a absurd. standing denial that the executive powers of It is no answer to this to say that, after the our own Constitution are to be defined by consent of the Senate has been given, it rests reference to those of the British king; and all with the President alone whether he will ap- explanations of the expression sought for in point the person nominated and consented to. the Government of France, Austria, or any This is literally true, but it is equally true that other continental nation, afford, if possible, he can make no appointment whatever with- less light by the way of definition than that of out that consent. He may change his mind Great Britain. The reason is that none of as to the first nomination, and may refuse to ap- those Governments possesses a written constipoint the person named; but whoever is in the tution by which the political authority of the end appointed by him must receive the con- people is parceled out among the various sent of the Senate. This consent is, by the functionaries. With us the case is different. terms of the clause, as indispensable as the Here the people, the source and fountain of *consent of the President. An appointment all political power, have seen fit to write down cannot be made without the consent of both. in their own Constitution what political powers The power to invest the person with the office or bundles of powers may be exercised by the is lodged in both by the plain terms of the three departments or faculties of the Governinstrument, and the Senate might as well assume ment, namely, the legislative, the executive, to appoint without the consent of the Presi- and the judicial. They carefully declare that dent as the latter to appoint without the con- I" all legislative powers herein granted shall be sent of the Senate. vested in a Congress of the United States." The power claimed is not, then, derived from Then follows a list or enumeration of all these the appointing clause of the Constitution. legislative powers and of the subjects upon The next provision relied upon is the clause which they may be exercised. Nobody doubts contained in section one of article two, declar- that an attempt to legislate beyond these powing that "the executive power shall be vested ers, or upon subjects not embraced in the in a President of the United States ofAmerica." enumeration, would be void and inoperative. This clause is generally appealed to as imply- Why? Because the power thus to legislate is ing a grant of the power of removal from office. not granted, and the object is not within the It is said that the power of removal is in its reach of Congress. Their legislation ceases, nature an executive power. But the first ques- withers, and dies, the moment it passes the tion arising here is one of definition. What is line of constitutional limitation. here meant by the executive power? The Another department or faculty of the Gov-,surest mode of obtaining a true meaning is ernment is called in the Constitution the undoubtedly to show what the expression can- "judicial power." The extent of its applinot be presumed to mean. Was this expres- cation is in like manner laid down in the sion used in reference to the so-called executive instrument, and all the cases to which it can be power of the English Government? Surely applied are therein carefully made known, and not. For at that time, as in all former and in the restrictions upon this attribute of the Govall subsequent times, there was not and has not ernment are equally perceptible in the lanbeen anything deserving of the name of a defi- guage of the Constitution. nition or classification of the executive powers Thus it appears that the framers, under the of that Government. Nor can there be; for so respective heads of legislative power and judilong as the theory remains true that the British cial powers, were careful to enumerate and Parliament possess unlimited power, such a designate the legislative and the judicial attriclassification is, of course, impossible. By that butes of the Government, and to insert terms theory, and by the practice of the Parliament, of limitation and exclusion, so as to bind up as history shows, there is no power, faculty, or those two departments specifically to the duties prerogative of the British Crown which may imposed upon them. It was the policy of the not be modified, limited, or even taken away Constitution to delegate, define, and limit the by act of Parliament. Indeed, that body pos- powers of those two branches. This is admitted sesses the unquestioned power both of directing by all. It is a fundamental principle, a postuthe descent of the Crown and of deposing the late. Now, this being the case in reference to sovereign at will. And it is practically true the legislative and judicial branches, who would 1038 think of deriving unrestricted executive power him to fill it by a temporary commission to from that clause of the Constitution declaring some other faithful and competent man, as that the " executive power shall be vested in a provided in the next preceding clause. He President?" No one will deny that this lan- does not execute the laws personally, and guage is a general grant of the executive power. there is neither a word nor an intimation in But it is, of course, a grant-a grant not the whole instrument that he is expected to do of all or of any imaginable executive power- so; but he is only to take care that they are not a grant of royal prerogatives or of unlim- executed; that is, he is to use vigilantly and ited despotic power-but a grant of powers faithfully the power of nomination given to him which in their, nature were as easily defined separately, and the power of appointment given and ascertained, and were, to say the least, as to him jointly with the Senate and the power deserving of designation and description as the to fill vacancies so happening, given to him other powers; and no reason can be devised solely for the purpose of causing the laws to be -why the Convention should have so carefully faithfully executed for the good of the people. defined the powers of the other two branches The doctrine, asserted broadly and unconand left the executive branch undefined and ditionally in Mr. Johnson's answer, that he unlimited. Such an omission would be con- has, as a separate and independentpower under trary to the very genius of constitutional gov- the Constitution, the power of removal, leads ernment, and would argue a culpable inatten- to the most fatal consequences. It directly tion and neglect on the part of the Convention. subverts the popular character of the GovernThis reproach cannot be cast upon them, for ment. If, by virtue of the clause I am considwe find them equally assiduous and watchful ering, he can remove an officer, he may, of in defining all the powers they delegate to the course, leave the office without an incumbent President of the United States. They grant to for an indefinite period of time, thus leaving him no undefined powers. They had granted its duties wholly unperformed; thus wholly none to the other two branches, and the rea- defeating the commands of the law, and the sons for definition and restriction were and are people in the mean time may be deprived of of equal stringency in each of the three. the benefits of the law. If, therefore, the other two branches are to It is absurd to call this taking care that the look for their powers in the Constitution, and laws be faithfully executed; it is the exact among the enumerated powers, and out of and reverse of it, and proves the futility of the claim. regardless of the two general phrases, "all Again, if this clause gives him the power of legislative powers" and " the judicial power thus rendering an office vacant and continuing of the United States," which are in their it vacant, (no matter under what pretext,) it nature and office'mere captions or headings of gives him full, complete, and unlimited power chapters, we must by parity of reasoning look to constitute and create, of his own will, the for the executive powers in the chapter or agents by whom the laws shall be executed; clauses enumerating them. And among these for, if the clause imparts any power whatever, there is not to be found any such power as the it is unlimited and undefined. The language power of removal from office. It is not there is, " shall take care that the laws be faithfully set down. It is not at all implied from that executed." The means are not mentioned, which is set down, and it is mere assumption and if they are not to be looked for in the other and not a logical deduction to derive it from clauses relating to the President, then, I repeat, what is expressed. if the clause grants any power whatever, it is Again, it is insisted that the power is deriv- without limitation and supreme. He may resort'able from the clause of section three of article to any means he chooses. He may give a lettwo. which declares that "he shall take care ter of authority to any person to do the acts that the laws be faithfully executed;" and it required by the law, and this without any is said he cannot do this unless he has the power reference to the Senate. He may appoint as of removal. well as remove at will; and he becomes, so'far This clause creates no power. Its language as the execution of the laws is concerned, an implies no grant of authority. To " take care" autocrat and the government an absolutism. means to be vigilant, attentive, faithful. The The mode of constituting the officers of the law, language imports nothing more than an admo- pointed out by the appointment clause, becomes nition to him to keep himself informed of the a positive superfluity, a dead letter; and he manner public officers intrusted with legal duties may totally, and without incurring the least perform them, and, in cases of delinquency, to responsibility, disregard it. And this is what apply any corrective in his power. Laws can- he has done in ten distinct instances in appointnot be put in force without agents, incumbents. ing provisional governors for the rebel States, The power and duty of nominating them are the boldest invasion of the power of Congress cast upon him. He must designate them to ever before attempted, tending directly to a onethe Senate in the first instanc; and in order man despotism. that the laws may be'faithfully executed he It is no reply to say that the claim of power must nominate faithful and competent officers. under this clause is confined, or should be Should a vacancy happen in an office during confined, merely to the power of removing an the recess of the Senate, this clause requires officer, and that it does not or should not be 1039 extended to creating an officer or agent. If seeks by cunning glosses and jesuitical construcit grants to him the power of causing the laws to tions to establish and maintain absolutismbe faithfully executed-which is the whole claim the one-man power-when the fathers of the in its essence and reality, as no one can deny- Constitution fondly imagined they had put up it is impossible to make any distinction between firm barriers against it. a removal and an appointment or authorization. It is true thatthe First Congress, in 1789, did, Both are in their nature equally necessary, as the President's answer sets up, by the act equally incidental, indispensable to that end. organizing the Department of State, recognize I am in error: an appointment or an author- and admit the power of removal in the Presiization is by far the more necessary. dent. But it must not be forgotten that this And if this claim is well founded, why can legislative construction of the Constitution was he not of his own motion levy and collect sanctioned by a majority of only twelve in the taxes, under pretense of taking care that the House, while the Senate was equally divided laws are executed? It is a most obvious means upon it, the casting vote being given by John of so doing. Adams, the Vice President. This state of the Again, it is of the nature of legislative power vote shows plainly that the opinion thus exto prescribe by what instruments the commands pressed by the two Houses was but an opinion, of the law shall be performed. But for the and that it was contested and resisted by a very power of appointment specifically laid down powerful opposition. The dispute has conin the Constitution, the legislative power, tinued from that day, and the ablest intellects granted wholly to the two Houses, might have of the country have been ranged on the respectbeen employed in creating the officers as well ive sides; Sherman, Alexander Hamilton, as the offices. The appointment alone is with- Webster, Clay, and others of the highest emiheld from the category of legislative powers nence as jurists against the power; Madison granted by the Constitution to the two Houses. and numerous others of great ability in favor The President has no particle of these powers, of it. It has never been a settled question. but only the power of naming and commission- Mr. Webster tells us that, on the passage of ingincumbents. Thefunctionstobeperformed, the act of 1789, it was undoubtedly the great the modes and manner of performing them, the popularity of President Washingtbn and the duration of the term of tenure, all the duties unlimited confidence the country reposed in and liabilities belonging to the office, are created him that insured the passage of the bill by and defined by the legislative power solely. All moderating the opposition to it; and the-hisadmit this: the office and all its duties, all its tory of the times confirms the comment. It functions, all its responsibilities, are purely was the beginning of the lis mota. And so and exclusively the creations of the law, and doubtful has the power ever since been considlie within the legislative power granted to ered that there seems to have been no distinct Congress. The mode, the agencies, the instru- case of removal by the President during the mentalities of carrying into effect the law, are session of the Senate but by making to them a but a part of the law itself. new nomination. In a speech made by Mr. Now, if the President can, by virtue of the Webster in the Senate in 1835, on this same clause requiring him to take care that the laws question, he says:.be faithfully executed, constitute and appoint "The power of placing one man in office necessaagents to carry the laws into effect, and may rily implies the power of turning another out. If do this without the concurrence of the Senate; one man be Secretary of State and another be apo thi w itt the concurene hee Senates pointed, the first goes out by the mere force of the if he may do.it even in cases where Congress appointment of the other, without any previous act has omitted to create an office for that purpose, of removal whatever. And this is the practice of the why may he not declare and define the func- Government, and has been from the first. In all the removals which have been made, they have genertions, duties, and liabilities of such agents and ally been effected simply by making other appointthe duration oftheir terms? Of coursehe may; rments. I can find not a case to the contrary. There and thus all that portion of the legislative power s no such thing as any distinct official act of removal. I have looked into the practice, and caused inquiries relating to the creation of offices and of officers to be made in the Departments, and I do not learn to execute the laws is surrendered to him- that any such proceeding is known as an entry or completely abstracted from the general mass record of the removal of an officer from office." of legislative powers granted to Congress by I have shown that this power of removal by the first section of article one of the Constitu- the President solely is unauthorized by any tion; thus making the clause requiring him to clause of the Constitution, and that the claim take care that the laws be faithfully executed has never been acquiesced in by the country. utterly repugnant to and contradictory of the The Supreme Court has never passed upon it. terms ofthatgeneral grant of legislative powers. As a distinct question it has never been passed Such a mode of interpreting the Constitution upon by any court. It is, therefore, without -a mode that annuls and destroys one part in judicial sanction, whatever such a sanction order to give a favorite meaning to another- may be worth, for it should be remembered is contrary to all the established rules of inter- that judges are but fallible men, and courts pretation, and is suicidal and absurd to the last often overrule their own opinions on the same degree. It is, indeed, a total overthrow of the question. The peace of society requires that system of government under which we live. It in questions of private right the decisions of 1040 courts should be respected, and should be uni- power, as useless as if it had never been delform; but in a purely political question like egated. the present-a question relating solely to the There is no ground here to dispute about respective powers of the various branches of the words of this important clause. They are the Government-the great and final arbiter "vested in the Government of the United must be enlightened reason, drawing its con- States, or in any department or officer thereof." clusions from the intentions and objects of the A power vested in either of the two Houses, framers of the Constitution, to be gathered in both jointly, in the President, in the courts from the language they employ, and the his- the judges, or in individuals, is as much "vested torical circumstances which inspired their in the Government of the United States" as work. if conveyed " to the Government " in so many In this light I cannot regard what is called words; for they would, quo ad hoc, represent the legislative construction of 1789 as of any and act for the whole Government-indeed, weight in the discussion. The public mind has would be the Government in using the power. been equally divided upon it ever since. Is Hence the grant of the power of removal to the not the legislation of 1867, therefore, entitled President and Senate is a grant to the Govern, to at least equal respect as a legislative con- ment. The addition of the words " or in any destruction? The House and the Senate of 1867 partment or officer thereof" cannot, therefore, were equally enlightened, equally capable of be held to confer any power not embraced in the forming a correct opinion, far more numerous, preceding words, "vested in the Government,' and expressed their opinion with far greater but is only made from abundant caution, and unanimity. Is not this precedent even of to give, if possible, greater clearness, certainty, greater weight than the former, as a. legislative and comprehensiveness to the expression. It construction? And why may not one legisla- was to make sure that Congress should legistive construction be as potent to settle a dis- late for the purpose of carrying into execution puted constitutional question as another? And all the powers granted, whether granted to one why may it not completely set aside that other? person or set of persons, or to another. The authority is the same in both cases, and It is believed that this principle has never if the one opinion is entitled to more weight been denied. The whole current of Federal than the other, it can only be because of the legislation proceeds from this fountain; and it greater numbers and greater unanimity. is evident that the clause was inserted to The next question which arises is, if the remove difficulties which should perpetually be President has not the power in question, and raised by cavilers as to the extent of the field it belongs jointly to the President and the Sen- of legislation conceded to Congress. ate, can Congress by statute regulate its exer- The authority of Congress, then, to prescribe cise, as they have assumed to do in the tenure- in what manner this power vested in the Presof-office act of 1867? ident and Senate shall be exercised, its authorBut little time need, I think, be spent upon ity to direct how it shall be used in order to this inquiry. subserve the public interests, to prevent injusThe President and Senate have, as I have tice and abuses, is indisputable. shown, the power to remove. The invest- The act of 1867 forbids removals from office ing this power in them is investing it "in at all, except upon evidence of unfitness, satthe Government of the United States" as fully isfactory both to the President and the Senate, and completely as if it were vested in the and requires him to lay the evidence before the three branches, namely, the legislative, the Senate for their action thereon. If unsatisfacexecutive, and the judicial, altogether; and tory to them, the officer is not to be removed, this brings the case within the clause which but restored to his place; if satisfactory, he declares that- is removed and his place is to be filled by " Congress shall have power to pass all laws neces- another. sary and proper for carrying into execution the fore- This s surely a most reasonable, kindly, and going powers, and all other powers vested by this %Constitution in the Government of the United States, salutary mode of exercising the power. or in any Department or officer thereof." The act, then, is fully warranted by the ConThis power of legislation was manifestly stitution, and as valid and obligatory as any intended to cover every power granted by the other act of Congress. instrument, whether express or implied. No The next question is whether Secretary Stanone can read the Constitution without coming ton came within its provisions? to the conclusion that the power of legislation It is literally true that the first clause of the thus to be exercised in futherance of powers first section of the act prohibits the removal of granted was intended to be, and is, in fact, every officer, high or low, who had been or coextensive with those powers. A naked power shotuld be appointed by and with the consent granted to the Government-that is, to any of the Senate. The clause declares that every department or officer of the Government, for such officer shall hold his office until his sucboth expressions mean the same thing-with- cessor shall be appointed by and with their out the means of carrying it into effect by advice and consent. He shall be entitled to legislation, would, indeed, be preposterous. hold the office until that time..It would be forieAr a dormant, ineffectual The first section directs that all civil officers '1041 then in existence shall be entitled to hold their elected and he may, by the Constitution, be offices thus: elected an indefinite number of times. They " Except as herein otherwise provided: Provided, are to hold during his term, if he has appointed That the Secretaries of State, of the Treasury, of them, and forone month thereafter, no matter War, of the Navy, and of the Interior, the ost- whether he continues to hold his term or not. master General, and the Attorney General, shallhold their offices respectively for and during the term It is sufficient that it is his term, that is, the of the President by whom they may have been term for which he was elected," in which a nppointed, and for one month thereafter, subject to Secretary appointedby him is found holding removal by and with the advice and consent of theby him is found holding Senate." the office. The first clause by its terms applies to all No one can deny that the expression " may civil officers, judicial as well as executive. have been appointed," applies as well to past But the Constitution itself takes out of the cate- time as to future time. Such is the genius of gory the judges of the United States courts by our language. It covers, grammatically, both declaring that they " shall hold their offices the past and the future, as we all know from during good behavior; " so that it could not constant, daily, hourly use; and it here applies affect their tenure. with equal and unerring certainty to appointBut the clause was discussed and passed in ments that had been made and were unexpired presence of the fact that there was a multitude at the time it was used, and to those to be of offices in thq tenure of which there was a afterward made. limitation of time to a certain number of years. Uttered on the 2d of March, 1867, the lanThe general language of the clause would have guage covered, unmistakably, in my judgment, had the effect to extend these fixed and limited the case of Mr.- Stanton and his colleagues. terms beyond the legal period. Foreseeing Their appointments were within its terms and this, Congress guarded against it by declaring within the purposes of the act. I do not conthat all such officers should hold except as sider there was left any room for reasonable otherwise provided in the act. The exception doubt or debate. The office and aim of the guarding against this extension is found in proviso were to change the indefinite period section four, which declares that - to a definite period in the tenure of those " Nothing in this act contained shall be construed offices from a tenure at the will of the Presito extend the term cff any office, the duration of dent, as had been formerly understood and which is limited by law." practiced, to a tenure that was absolutely to Such is one of the exceptions out of the terminate one month after the end of the Presigeneral language of the first clause. dent's term by whom the appointment was or But there were other offices whose duration' should be made. was not limited by law. Among these were the This was another exception out of the genoffices of those same members of the Cabinet. eral language of the first clause, and to remove The then members had all been appointed by all suspicion that the general language of the Mr. Lincoln during his first term, and no limit first clause " is and shall be entitled to hold existed upon their tenure. Mr. Johnson found such office until a successor shall have been in them in legal possession of their offices when like manner appointed' and duly qualified," he became President. They had a right to might leave it still to the President alone to continue to hold indefinitely, unless removed. remove them, the proviso adds that they should Mr. Lincoln's first term had passed, and he be " subject to removal by and with the conand those Cabinet officers were holding tlheir sent of the Senate," thus expressly requiring: offices in his second term. the consent of the Senate if removed before The tenure-of-office act was passed while all that time. these facts were immediately before Congress. As to all other civil officers included in secThey knew that Mr. Stanton, like his colleague, tion one, they cannot be removed but upon. held by virtue of that appointment, and that sufficient cause, to be reported to the Senate he had a legal right so to continue to hold. as required by section two, and after a formal And theX declare that he "shall hold his office suspension. And here was another exception; for and during the term of the President by to the term of the tenure asserted in the genwhom he may have been (not shall be) appoint- eral language of the first clause. ed." Nothing can be plainer than that the The ground now taken by the counsel for the expression " the President by whom he (they) accused is that this language, covering, as I may have been appointed," is a mere descrip- have shown and as is perfectly manifest, both tio personce, or mode of pointing out the per- the existing and all future heads of Departson from whom the appointment proceeded. ments, applies only to future heads, leaving The proviso does not say that the Cabinet the existing heads wholly unaffected by it, and officers shall have been appointed during any that such was the intention of Congress, deduciparticular term of the President making the ble from the act. appointment, but only that they shall'hold This construction not only denies to the their offices during his'term. It does not re- words " the President by whom they may have quire that the appointment shall be or shall been appointed" their natural, plain, etymohave been made duringthe first, second, orany logical meaning and application, but is, as to subsequent term for which the President is those Secretaries, in direst contradiction of C. I.-66. the first clause, which, iby its; general language, pension was a -newpower-created -olelvyby-tfhisi authorizes them to haold until their successors statute. He says: are appointed with the consent:of the -Senate, "-On-theiq12h ofAugustlfs:Isupended eMr.tanton which was-exactly-their-formerright. Itwrests from -the exercise of.thesffine of fecretay of War." ~from the operation of tie act without any The statute says,: apparent motive, and, against'the perfectly "The President-may msiendsuihofficerEand desig-:notoribus wishes of.both Houses of Congress, nate some suitable person," c. the existing heads, and applies the.act to those The President, atill usingthe -language of the whom Mr. Johnson and his successors-may statute, says: appoint, and is:thus totally inconsistent with -"On the same, day I designated ieneral:Grait as the meaning and -effect of the.words " may Secretary of War ad inteim." have been appointed." No rule of construc- But this is not all. Thestatute provides that tion is better settled than ithat words shall have'the President may revoke:such suspension; and their natural and popular meaning, -unless the he tells,us the -suspension has not been revoke4. statute itself shall imply a different meaning, The-statute required him to report the fact ito and here the statute cbntains no sueh:intima- the Senate within a given time. He did so. tion. The construction is plainly at variance All this shows conclusively:thaat that time -with the very lauguage. -he regarded Mr.:Stanton ascoming.within the No one will deny that the necessity ofinclud- -act —,a -sound conclusion, -but directly,at va.iing those heads of DepaTtments was as great ance-with the;construction he -now -sets up. at least as that of:including future Secretaries, Thus it appears that the -exceptions to the unknown -to Congress.'Why should they be general language -I'is -and-shall be entitled to left to be turned out at the will of Mr. John- hold suchoice until.ascesorisin like manson without consulting the Senate, while their nper tp/pointed,",relte -:to the duration of the -auccessors for -all time,:and -all other civil offices of the-various classes.of incumbents and'officers, -high:and'low, were protected? W:hy to the peculiar modes of emoval; one mode was a special exemption enacted for'his benefit being -the immediate action of the President in reference to Mr. Lincoln's appointees whom and Senate in case,of the heads -ef Departhe -had -continued in his Cabinet for two years, ments,; the other the.preliminary suspension and one, at least, of whom, -Mr. Stanton,'he of all other offiers by the -President. The'was, he says,-aiming to turn out? No one-ca statute, it is true, nowhere asserts, in terms, answer this question'! But if, as is contended the joint power of-the Senate in removals, but -by the President's -counsel, this exception it is easy to see that the theory upon which it applies only to future Cabinets, and -does not goes is, that this power is lodged by the Conapply at:all to the then Cabinet, then it fol- stitution-in-the President and Senate jointlylows, logically and irresistibly, that they fall the true doctrine. It was, plainly -assumed as -within thefirst clause,.which expressly declares:a postulate by the committee who -drafted the that- bill. They regarded it as settled doctrine " Every person holding any civil office to which he needing no special recognition, though it is has been appointed by. and-with the advice and con- clearly recognized in the second -section, resent of the -Senate, and every person who shall here- quring th resident to report the causes of -qfter be appointed to any such — office and shall become duly qualified to act therein, is and shall be a suspension, and -the action of the -Senate entitled to hold such office -until a successor shall upon them, before the suspension can;result -have -been in lile manner appointed and duly in a removal. Such, I say, was the theory of -the bill; -the Can this proposition be made clearer by fundamental idea upon which it was framed argument? if the case of those Cabinet offi- was that the power- of removal-belonged bythe icess is not included in the special -clause or Constitution to the President and the Senate, -exception, it must be embraced in this. There - clusively, and not to the President alone. is no escape, unless it can be made out that iIf it belongs to the President alone, then the:the words " every person -holding any civil first section,:including -the proviso, and the office" do not mean what they say. ~second section, providing for:a -suspension But this construction is a mere afterthought before removal, are totally-void -for unconsti-with Mr. Johnson. It was too clearly unten- tutionality,-for Congress cannot meddle with a able for Mr. Johnson:to act upon it in the power'that:belongs.solely-to him. course of administration. His own common'Such being manifestly the theory of the bill, sense rejected it, and it makes its appear- such the -undoubted opinion of both:'Houses, ance only as the refuge of his despair at a late it would have been strange indeed for them to period. abandon the very principle-upon which the bill'When he suspended Mr. Stanton he-had no idea was framed, and to recognize in the-proviso the of this novel construction. He then treated Mr. odious claim of the President to exercise -the Stanton's case-as:within the act. In his mes- sole.power of removal of the then existing sage of December 12 last, he openly and frankly heads of Department. It-was an uncalled for tells us that he had suspended Mr. Stanton —a renunciation of the very power under which -term hitherto unklown to our laws. and a pro- they could act, if they could act at all, -on the ceeding equally unknown in our history. Sus- subject. I cannot give any weight to-the remarks-made The next questi'on is, h ether the accuseby members in debate on the passage of the ten- has committed the offense chrged in article ure-f-officeact. The question is nowbefore Us first of the impeachment-? for judicial solution, and we must be governed That offense is that on -the 21st of Febrnby the language of the act and the mischief ary, 1868, while the Senate was in session, Ie which led to its passage. We are to construe issued the order to Secretary Stanton, declarit as judges, acting on our judicial oath, not as ing, in so many words, that the latter was legislative debaters. Nothing is more unsafe "removed" from his office of Secretary. than to look to the legislative debates for the War, and directing him to turn over the rectrue judicial interpretation of a stu-te. They ords, &c., of his office.to General Lorenzt -are seldom harmonious, and this case fully Thomas, who he says, in the same letter,'.'i illustrates the truth. One honorable member -this day been authorized and empowered t-o of the conference conmmittee.viewed this pro- act as Secretary of War ad interim." riso as not applicable to the existing Cablnet Mr. Stanton did not obey, and though AG officers, while the gentleman-Manager WIL. eral Thomas made.two attempts to obtain po.LIM.S, of Pennsylvani-ho actually drew it, session and failed in both, the proof is that t9i tells us the language emlraces them, and that accused has had.no official communicatiQ0 s wch as.his intetion whatever with Mr. Stanton.since that tip, A reference to two adjudged cases will prob- and,that he has, on th e contrary, recognized ably be sufficient.n.the qutstion of -the.value Thom as Secretary of War until no.w;.nd.of such opinions. In,Eldridge us. Williams, further, that it is the settled. ppose of Tbhpm;(3 Howard's Report, pp. -23 and 24,) Chief still to obtain possession of the office under: Justice Taney ohserved: direction given him by the accused on th~e 21f t'.'In expounding this law-the compromise act of of February, and under the order. 1833 —the udgmentofthecourtcannot, in anl degree, The charge here is not that Mr. Johnao be influenced by the construction placed upon it by and members of Congress in the debate which took place actually and legally removed Secretary Sta on its passage, nor.by themotivesor reasons assigned ton. This he could not do, either by the or04 bythem for supporting or opposing amendments that or the use of force, against the will of the Secwere offered. The law as it passed is the will of a majority of both Houses, andthe only mode in which retary; for thefirst section of the statuteprothat will is spoken is in the act itself. And we must tected him and prohibited such a removal.:t gather their intention from the language there used, was, i law an impossibility Mr. Stan comparing it when any ambiguity exists with the in law it laws upon the same subject, and looking, if necessary, could not in law be removed without the cto tbe public history of the times in which it ws sent of the Senate. The charge, therefore, is, passed. that -the order was issued with intent to remove In The Bank of Pennsylvania vs. The Com- him and contrary to the provisions of the act — monwealth, (1:9 Pennsylvania State Reports, not an actual and legal ouster from and v.cap. 156,) Judge Black, one of the counsel for tion of the offiqe, although the respondent, t~:he accused upon this record, delivering the in his answer, (p. 27,)treats the order as hayopinion of the court, adopts the same view. ing that precise effect, claiming that it worked "The court," he observes, "Iin construing an an actual and legal removal. And, so far:s act will not look to what occurred when it was it has been possible for him to give it that on its passage through the Legislature; such decisive character, it.was a removal; for,the evidence is -not only valueless, but delusive:proof is clear.and.uncontradited that he!h_ iand dangerous." since that, time in no way whatever recogniz~d I am, and ever have been, fully convinced Mr. Stanton as Secretary of War, but has o~f the constitutionality of the act, and that it recognized General Thoi.a$. embraces by its terms, and was intended to Section six of the statute,declares, that embrace, the case of Mr. Stanton, and there-'' every removal," &c., "'contrary to the pro fore that he could not be removed by Mr. visions of this act, shall be deemed and is Johnson. The attempt so to do was a misde- hereby taken to be a high misdemeanor," punmeanor, as was the appointment of General ishable by" fine not exceeding $10,000, or by Thomas.' It istoo late for r. Johnson to mprisonment not exceeding five years," &c. claim the benefit of any doubt that might arjse t is certain that the accused could not, by upon the construction of the act. The act is any lawful means, have removed Mr. Stanton, too plain to admit of reasonable doubt; and because the law forbade it; and the law does that he himself entertained none s shown by not sanction, much less furnish, means for its the fact that he adopted and recognized the own violation; and as the law prphibited and true meaning in suspending Mr. Stanton. He made criminal the end which the order of recannot, after the commission of the offense, moval and appointment had in view, it prohib-,set up a doubt of the correctness of his former ited and made criminal the use of any and all construction of it by way of removing the means for the accomplishment of that end. It.criminal intent. In other words, he cannot in rendered all acts naturally calculated, and all ithis tribunal insist that he is to have the ben- attempts to commit the specific offense of efit of being himself the judge of the law. He "removal" criminal. The order of removal is brought before us that we may determine and the order appinting General Thomas were that question for his. alike criminal; the delivery of t3e paper con 1044 taining them to General Thomas on the 21st without force, evincing a purpose to prevent of February; the direction to him (p. 414) to the incumbent from holding and enjoying his deliver it to Mr. Stanton; the delivery of it to office during its fixed term as provided in sechim; the direction given by the accused to tion four of the act, or until a successor shall General Thomas on the same day to "go on have been appointed by and with the advice and take charge of the office and perform the and consent of the Senate, as provided in secduties," (p. 422,) after Mr. Stanton had ex- tion one? If the word "removal" is to be pressly refused to surrender it, as the accused taken in the sense of "amotion from office" was informed by Thomas, (p.433;) the contin- by which the title is dissolved, then it is obvious ued refusal of the accused to recognize Mr. the crime cannot be committed; for as it is the Stanton officially as the lawful Secretary of law alone that binds or attaches the office to War; and his open recognition of an intruder the incumbent, the ligament cannot be severed vested with no legal authority as such —these but by the law, and no man can make or annul facts, fully in proof, constitute a deliberate a law, nor, consequently, commit this techattempt to consummate the offense of removal nical crime of " removal." mentioned in section six of the act. He has Surely the expressions " appointment, emused all the means in his power, short of actual ployment, made, had, or exercised, contrary violence, to turn Mr. Stanton out, and the to the provisions of this act, and the making, proof is strong that he meditated force, should signing, sealing, countersigning, or issuing of other means fail; for it is indeed a tax upon any commission or letter of authority for or our credulity to ask us to acquit him of that in respect to such appointment or employpurpose, while we know the unqualified direc- ment," connected with the term removal in the tion he gave to Thomas, to "go on and take same section, cannot be construed as implying charge of the office and perform the duties," legal and effectual appointments, &c., but must and the repeated threats of the latter to " break imply mere attempts in those forms to confer down the door," to " kick that fellow out," the legal title to an office. It is too plain for and his scheme of obtaining a military force argument that the attempt merely to confer it for the purpose from General Grant. Consid- is punishable, not the actual, legal bestowering the very intimate relations then and still ment, which is rendered impossible by the existing between the accused and General penal clause prohibiting it, and section one, Thomas, it can hardly be supposed that these which also prohibits it. high-handed proceedings, contemplating actual If, then, the words " appointment," "combloodshed, could have been wholly without the mission," equally technical, must be construed knowledge and sanction of the accused, whose as mere attempts to expel an officer contrary -feelings were wrought up to a high pitch of to the statute, it is equally obvious that the resentment and hatred toward Mr. Stanton. word " removal" must have the same meanBut the proof is perfectly clear and con- ing and effect, for if the meaning I am resistvincing that, so far as was practicable for him, ing be adopted the whole statute becomes short of a violent expulsion of Mr. Stanton nugatory. from his office, he had already incurred- Th'e construction I am combating makes boldly, audaciously, defiantly, all the guilt of the act self-contradictory; for while the first removing and putting the Secretary out of his section says " every person shall continue to office. And I cannot doubt that under an hold his office," &c., the sixth section is made indictment for the specific crime of removing practically to say that he may be removed; that him contrary to the provisions of the act he is, he may be divested of the office, and lose it would be held to have committed the offense. by a removal before the allotted time. For, having done all in his power to commit It seems to me, therefore, that the true pracit, proving by his own acts that he has, so far tical construction to be given the term is such as he is concerned, committed it, and confess- as I have above indicated. That such is its ing in his plea, as he not only confesses but popular sense I need not take time to argue. claims in his answer to the impeachment, (p. What has ever been understood to be a removal 27,) that his two orders actually accomplished from office has been nothing more than the it and installed the intruder, would not a court issuing of a formal order for that purpose by of justice hold that the crime was complete? some officer having or claiming, as the accused Would it not hold that inasmuch as title to the now does, to have the power, and I cannot office rests in and wholly consists of the law, doubt but that the offense under the statute was that it cannot be dissolved and destroyed but complete the moment the order was served on in accordance with the law; and that there- Mr. Stanton. The Senate assuredly so thought, fore no person can be, technically and strictly when in their resolution of February 21, page speaking, "removed" at all by any other per- 148, they declared in answer to Mr. Johnson's son so as to divest him of his title? Would it message announcing that he had removed Mr. not hold that the word " removal," in the sixth Stanton, "that under the Constitution and laws section, must not be construed as implying a of the United States the President has no legal divestiture of the title, as it was under- power to remove the Secretary of War and stood in former statutes and the old practice designate any other officer to perform the of the Executive, but any act, done with or duties of that office ad interim." It was that 1045 order of removal that the Senate thus con- This doctrine is fully sustained by the foldemned as being contrary to the Constitution lowing English and American cases: and laws of the United States, not the legal Rex. vs. Meredith, 8 C. and P., 589; Rex. and actual removal of the Secretary, for we vs. Higgins, 2 E., 5, 17, 21; Commonwealth held that.he was in office, notwithstanding the vs. Harrington, 3 Pick., 26; Rex vs. Vaughan, order, holding in virtue of the Constitution and 4 Burr., 2494; State vs. Avery, 7 Conn., 266. of the tenure-of-office act of March 2, 1867. Many other cases might be cited affirming I think, therefore, the House of Representa- the same salutary doctrine. Mr. Russell, in tives might properly and legally have charged his Treatise on Crimes, (vol. 1, lp. 45, 46,) Mr. Johnson with having' removed" Mr. lays down the same doctrine, and it is of daily Stanton, describing the offense in the language application in the administration of justice. of the statute, instead of charging him with Commenting upon and vindicating it from having unlawfully issued the order with intent doubts and objections, Lord Kenyon said in to violate the act and the further intent to one of the cases cited that he regarded a denial remove Mr. Stanton, as is done in the first of it as a "slander upon the law." article. Did, then, Mr. Johnson cherish the intenThe first article may, in my opinion, and tion to turn Mr. Stanton out of office contrary should, be regarded as charging that the accused to the provisions of the act? In his answer actually committed the offense of a removal he tells us that he did, and that he issued the from office of Mr. Stanton; for his order and orders in question with that intent. The other other acts, in proof, are, in the, popular mind, acts of his, not evidenced in writing, prove the.all that is meant by the term "removal" in same thing. He entertained that intention the statute; and I therefore regard this article and did those acts, tending to and designed as framed directly upon the statute, charging for that sole purpose, in order to remove Mr. that the accused removed Mr. Stanton contrary Stanton from his office against his will and to it. contrary to the plain commands of the law. I add that, even without the statute, I look There can be but one conclusion. He inupon the act as a plain violation of the Con- curred the guilt, and under the first article I stitution of the United States, a violation of therefore pronounce him guilty, whether the his oath to take care that the laws be faith- article be regarded as founded directly upon fully executed, and therefore an impeachable the statute or as charging the common-law offense. Committed under the grave eircum- misdemeanor of attempting to commit the stances in evidence, I need go no further to statutory offense. find him guilty of the highest crime and mis- The second article of the impeachment demeanor he can commit, for it is an undis- charges the accused with having issued and guised attempt to subvert the legal, constitu- delivered to General Thomas the order of tional, and popular character of our Govern- February 21, authorizing and empowering him ment-one which no true friend of the Gov- to act as Secretary of War ad interim, and ernment can wink at-a step toward autoc-'directing him "immediately to enter upon the racy and absolutism-an effort to strip the discharge of the duties pertaining to that Senate of all effectual power over appoint- office," there being no vacancy in the office. ments to office, and carrying with itself, if This was too plainly to be debated, a " letunrebuked and unpunished, imminent danger ter of authority" to Thomas, and an obvious of further fundamental changes toward corrup- violation of the sixth section of the tenure-oftion and despotism. The power of impeach- office act. No one act. No one can doubt it. The section ment alone is left to the people to ward off the provides that the "making, signing, sealing, peril and to vindicate the'popular character countersigning, or issuing of any" " letter of of their Government. Never, in my judgment, authority" —not conferring the office, butwas *there, in our country, an occasion so " for or in respect to any such appointment or imperatively demanding its exercise. employment, shall be deemed, and is hereby, But ifthe first article be regarded only as an declared to be a high misdemeanor." attempt to commit the crime mentioned in the This was an open, deliberate, undisguised sixth section of the act, it is obviously sustain- commission of the offense; and if this statute able by the rules of law. No principle is better is not totally void and inoperative for unconsettled than that an attempt-not, indeed, a stitutionality, mere waste paper, the accused mere intention not evinced by any act-but must be found guilty under this article. any act or endeavor to accomplish and bring The idea, so- strongly pressed upon us by about the commission of an offense, is itself a the counsel for the accused, that this letter misdemeanor. Professor Greenleaf, in his of authority, as well as the order removing Mr. excellent Treatise on Evidence, (vol. 3, p. 4,) Stanton, are to be treated as innocent acts, on lays down the principle, derived from numerous the pretence that they were done merely to adjudged cases, that- obtain the decision of the Supreme Court as " The attempt to commit a crime, though the crime to the constitutionality of the statute, is out of be but a misdemeanor, is itself a misdemeanor. And place on this trial Nothwithstanding such to constitute suQh an attempt there must be an intent intention, if it existed, the offense was neverthat the crime shall be committed by some one, and intention, if it existed, the offense was neveran act done in pursuance of that intent."' theless actually committed, and the sole issue 10-45 the- Sena;te as to try is whether it was in the Senate, and therefore a gross violation of fact knowingly committed, niot whether the a high public duty attached to him by his oathmotives Vhat led to iwere one tling or another. of office, and a high crime tending toward and To excuse or justify the intelligent commission designed to accomplish a fundamental and of an offense 61o the ground that the motive dangerous revolution of the Geveriment in was good *ouild be monstrous indeed. Ittouldi this- resect. be' to' set aside the w'hole pental code at once, The design here t wass to pass the office absoand permit every bad man and many good mei ltely irito the hands of rhomas for him to to be judges in their own case. S6oiety could hold- for an indefinite period of time, and not exist under such a puerile and capricious independently, and to enable him to exercise system. Besides, this motive, which the evi- all its functions as freely as if he had held a dence places rather in the light, of an after- formi~al- commission with the consent of the thought than a& ruling design accompanyiing Senate and the useless Latin phrase ad inAnd coeval with his resolution to remove Mr. terimt imparts to the act no qualification, and Stanton, was properly to be addressed to the imposes no- restraint on his powers. Under House of Representatives in order tq prevent the then existing circumstances no temporary thie finding of the impeachment. It was, if appointment could be made. There was no of any weight at all, matter of mitigation and law whatever that provided for it. Mr. Stanrexcuse for committing the offense, and natu- ton was not absent, but present in the office; rally addressed itself to the discretion of that he was rot disabled by sickness, but was in body upon the question whether upon the whole full health; he had not resigned, but had it was worth while to bring him to trial; for refused to do so; he was not dead but alive.. kurely it has: no tendencey to prove that he did And it is impossible to see what magic signifi'not knowingly and willfully commit the offense. cance was attached or could be attached to We cannot, therefore, sitting in out judicial the words ad interim. If the appointment capacity and acting on our oath to decide nade Thomas Secretary of War, as the accused according to law," give this pretense any claims, then his tenure wags at the President's weight in deteimining the issue. pleasure, and he needed no confirmation, and The House had the constitutional right to was to hold until turned out by him; no law bring the accused before us: for trial. We are forbade it, and the Constitution, as construed to try him according to the law and the evi- by Mr. Johnson, allowed it. dence which the law makes applicable; and I cannot, therefore, hesitate to find him the House and the people in whose behalf they guilty under the third article. come before us have a right to demand of us The fourth, fifth, sixth, and seventh articles that he shall be so tried; and our own oath charge substantially but one offense-that of makes it equally imperatirve upon us. conspiring with Thomas unlawfully to prevent The third article charges that Mr. Johnson Mr. Stanton from remaining in the office of issued the order to General Thomas without Secretary of War and exercising its functions, Authority of law while the Senate was in ses- and unlawfully to seize and get possession of sion, no vacancy having happened during the the property of the United States in the office recess of the Senate, with intent to violate the I think this corrupt 4nd unlawful agreement Constitution of the United States. betweent Mr. Johnson and Thomas is fully This article' distinctly raises the questioon made out by the evidence. The averment of whether, while thee- Senate is in session and not the means by which the object was to be'i recess, the President can lawfully under the accomplished, whether by force, fraud, or Constitution appoint to an office without the intimnidati6n, is not naterial. It is the agreeadvice and consent of the Senate. miient entered into between them to: do the l have already shown that under the naked v~nla'wfUt act, to accomplish the forbidden end, Constitution he cannot do this, and that the that constitutes the crime. And it is not easy attempt is a violation of his oath. to see how this agreement could be more But the tenure-of-office act forbids it, by clearly proa-ved. The delivery of the letter of declaring in the first section that an officer authority to Thomas, and his acceptance of the appointed by end with the advice and consent same; the delivery to him of the order removof the Senate "shall be entitled to hold his ing Mr. Stanton and the delivery thereof by office until a successor shall have been in like Thomas to Mr. Stanton; the demand made by manner appointed and duly qualified." Thomas for possession; Mr. Stanton's perThis provision 6of course renders Thomas's emptory refusal and order to Thomas to depart; appointment unlawful, for there cannot be two his written order to Thomas forbidding him incumbents lawfully i-n possession of the office to issue any orders as Secretary of War; the of Secretary of War at the same time. report of this demand- and refusal and proBut it is sufficient under this article to say hibitory order made by Thomas to Mr. Johnthat the Constitution itself prohibited this son, and the deliberate direction given by the appointment of Thomas, for the President latter after hearing this report from Thomas could not make it during the session of the to "go and take charge of the office and per'Senate without their advice and consent. It form its duties:'-all which things happened -as a willful:attempt to usarp the powers of on the 21st of February-and the second and 1047' menacing demand- for the office by Thomas on have disbursed the moneys of the Departmeat. the next day, all show, as clearly'as human in obedienceto Johnson's orders, Of course,. conduct can show, that just such an agreement the employment of such a person would effetwas entered into by the accused and Thomas. ually subject the public moneys to the will of And it is made. perfectly clear by the- evi- the employer; and there seems to be no other dence that, but for the resolute firmness- of Mr. reason or motive for employing him except to Stanton, that agreement would have been car, give suchcontrol to the accused. Heis notaso. ried into complete performances and- all the ignorant as not to have foreseen, from all. he public property belonging to the office seized- heard and observed at that critical moment,. and possessed-by Thomas, a mere intruder.. I that a military force would have to be employed therefore find the accused guilty under the and paid: in order to carry out his design of fourth, fifth, sixth, and seventh articles of the ejecting Mr. Stanton and getting control of hmi impeachment. office; andl he claimed the right to control it The eighth article differs from the second in all respects. Such a provision naturally and third only in the averment that the order and necessarily suggested to his; designing appointing Thomas was issued "with intent mind the acquisition of money to pay the unlawfully to control the'disbursements of expenses of the tremendous- experiment. he moneys appropriated for the military service meditated; and. I cannot doubt that the emand for the Department of War." ployment of Thomas, willing as he was to obey I think such an intention fully made out by Mr. Johnson's orders, had in direct objectthe thel proof's. General Thomas. himself swears control of those moneys. I therefore find him in his direct examination (page 414) that when guilty under the eighth article. the accused appointed him he remarked that As- to the ninth article, I do not think the he- (Mr. Johnson) was' "determined to sup- proof sufficiently clear to justify me in saying port the Constitution and laws." This was a that the accused pronounced the act of 1863, very' gratuitous, idle remark, unless it: implied requiring him to transmit all orders through a design to do something unusual, some dash the General of the Army, unconstitutional, against the legislation of Congress, which he "with intent thereby to induce said Emory, so much disliked, and was, of course, uttered in his official capaeity as commander of the, with reference to the tenure-of-office act, which department of Washi.ngton, to. violate the prowas the only means by which Mr. Stanton kept visions of said act, and to take and receive, act the place he then: designed to give to Thomas. upon and obey," the orders of Mr. Johnson He was resolved to "support," &c., against not thus- transmitted. The conduct of Mr. this act, and the declaration was an invitation Johnson toward General Emory was highly to Thomas to aid him in trampling on that censurable;, but I do not think that particular statute. intention is fully -made out. The evidence On his cross-examination (page 432) General raises a suspicion that such may have been the Thomas swears the President said in this inter- case, but is consistent with. the supposition of view, "I shall uphold the Constitution and the the absence of such an intention, and the laws, and I expect you to do the same;" and doubt must go to the benefit of the accused. adds, "I said:, certainly, I would do it, and As. to the tenth article, the evidence is. conwould obey his orders." clusive that the accused made the popular I his, he says, was, as he supposes, "very harangues therein set forth. The essence of natural, speaking to his commander-in-chief." the charge is-, that these discourses were itI think not. To my mind, this strange- col- tended to set aside the rightful authority and loquy, which could not have taken place but powers of Congress, and to bring the Congress in pursuance of Johnson's unlawful and auda- of the United States into disgrace, ridicule, cious design, a design well understood by hatred, contempt, and reproach, and to: destroy Thomas, evinces unmistakably, on the part of the regard and respect of all the people of the Thomas, the supple and reckless spirit of a United States for their authority." dependent and flatterer, ready and willing to Mr. Johnson was the lawful President of obey the slightest signal of the hand that feeds the United States; one of his sworn duties him. It is an assurance to Johnson that he is was to " take care that the laws be faithfully his tool, and will obey his wishes in all things. executed." The Thirty-Ninth Congress was Contrast this low sycophancy with the manly a lawful Congress, as much so as any that and soldierly demeanor of General Emory ever sat. They were elected by exactly the when he repelled the suggestion of Mr. John- same constituency who elected Mr. Johnson son that he should accept orders from him Vice President in 1864. Under their leisdirectly, and that the requirement.of the act lation the rebellion was put down, and Mr. of 1863 to send them through the General of Johnson himself, as military governor of Tenthe Army was unconstitutional and contrary to nessee, had aided actively in carrying it out, the terms of his commission I The contrast is and had had the benefit of the joint resolution indeed striking. Thomas isalready debauched of February, 1865, excluding from the count and bows pliantly to the will of a masterI of electoral votes for President and Vice Presand had he got possession of the War Office, ident those cast in certain of the States in no one can doubt for a moment that he. would rebellion. It did not, therefore, lie in his 1048' mouth to deny, directly or indirectly, that the ties of his office with impunity? ~ His counsel Thirty-VNinth Congress was a valid, constitu- say yes. I'say no. Society must be protected tional Congress. None but such as contended by law; and in order that that protection may that the Government was broken up by the exist the laws must be respected by those secession and rebellion of the eleven States- charged with their execution, not aspersed and that is, none but a traitor could consistently trampled upon. and decently make such a declaration. And.No question of the. " freedom of speech" yet he says, in his 18th of August speech, (re- arises here. It is not because he speaks scoffferred to in the first specification,) made in ingly and contemptuously of Congress as a the Executive Mansion, and addressed to the body; not because he dissents from their legishonorable Senator from Maryland [Mr. JOHN- lation merely and expresses that dissent i not ZorD3 and vthVers5 and without Yebukc o0 reply h-ceut+e.eVs agvwt l-evinw ve, V'% wad from that learned Senator, " We have seen malicious calumny that the New Orleans riot, hanging upon the verge of the Government, which he calls "another rebellion," "had its as it were, a body called, or which assumes to origin in the radical Congress;" not because he be, the Congress of the United States, while, descends to the low business of lying about and in fact, it is a Congress of only a part of the scandalizing themf that the House has preStates; " plainly intimating that that Congres ferred this article against him, but because he had no power to pass laws for the govern- inculcates the idea that their statutes are no ment of the rebel States, and were, in fact and laws, and not to be respected by the people as in law, incompetent.to legislate for the whole laws, and because he openly threatens (in his country; a doctrine that openly encouraged St. Louis speech) to "kick them out; to kick sedition and disobedience to the laws in at least them out just as fast as he can," thus disthose States, if not in all others-the laws tinctly conveying the threat to use revolutionwhich he- alone, of all the people of the Uni- ary violence against that Congress and to disted States, was expressly bound by-oath and perse them. It was an open threat to commit the Constitution to see "faithfully executed." treason. And yet his counsel tell us that it Suppose a judge of a State court, charged was innocent and harmless. with administering the laws, should go about To my mind the tenth article charges one among the people and tell them thus openly of the gravest offenses contained in the imin public speech that the legislation of the peachment. The feelings of the whole country State was no legislation-that their laws were were shocked and disgusted by the lawless all void, and that the citizens were not under speeches of this bully President. Men and obligation to obey them-would not the power women all over the land hung their heads in of impeachment be at once brought to bear shame, and the wise and reflecting saw in him upon him? And why? Because, entertain- a coarse, designing, and dangerous tyrant. ing such opinions, he desecrates his office, and I vote him guilty under the tenth article, and is therefore UNFIT longer to remain in it. Did under each of the three specifications. we not sustain the impeachment against Judge As to the eleventh article, it charges in subHumphreys, of Tennessee, for that which was stance that he attempted to prevent the exethe exact equivalent of this charge, namely, cution of the tenure-of:office act, by unla'wfully inculcating in a public speech the right of devising means to prevent Mr. Stanton from secession from the Union and of rebellion? resuming the functions of his office, andsto What did he say, but that the Government of prevent the execution of the said clause in the the United States was in law no Government appropriation act of 1867, and the reconstrucfor the seceded States? He had committed tion act of March 2, 1867. no act of treason, and the only proof was that In finding him guilty under this whole artihe had thus spoken. And we convicted and cle I only consult his official record, his official removed him because he had thus spoken. history, and the other facts clearly in proof. The second and third specifications contain His whole policy has been that the reconstruc-,like matter. The vulgar harangues therein tion act was both improper and unconstiturecited are in denial of the legal constitutional tional, and he has detested the Thirty-Ninth validity of the statutes passed by the Thirty- and Fortieth Congresses, because they have Ninth Congress, and tend directly to excite been of an opposite opinion. This trouble has sedition and insubordination to, and disobedi- grown out of his determination to govern the ence of, those laws, the speaker being himself rebel States by his executive decrees in defispecially and solely charged by the Constitu- ance of the wishes of the people of the United tion with the official duty of taking care that States expressed through the legislation of those laws shall be "faithfully executed." He Congress; in other words, to be himself the assumes a position in direct antagonism to his ruling power in this regard. This is usurpaoath and his duty. He himself was setting the tion and tyranny, and I think it ought to be thus example of disobedience to the laws, and en- met and branded. Our position as the first couraging others to imitate his wicked exam- free nation of the world demands it at our pile. Does the law impose no responsibility hands; and whatever may chance to be the for wanton conduct like this? May a public result of this trial, whatever may be the future magistrate deny, contemn, and deride the du- fortunes of those who are now sitting in judg 1049 ment, I can desire no better authenticated right to remove cannot be drawn from the right claim to the free and enlightened approval of to nominate, and if it comes from the right to future ages than that I gave my vote against appoint, then it exists conjointly in the Presihim on this article; nor do I think myself ca- dent and Senate. pable of any act that would shed greater honor There is an objection to this doctrine, howon my posterity than thus to endeavor to vin- ever, more fundamental. We cannot by inferdicate for them and their posterity the rights ence lodge in the President a power which of a free and independent people governing would enable him to destroy another power themselves within the limits'of their own free vested expressly ir the legislative branch of the Constitution. Government. The Constitution coordinates the Senate with the President in the appointOPINION ment of the higher officials. Hamilton, in OF speaking of this, says: ON. JAMES W. PATTERSON It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to. prevent the appointment of unfit characters from State prejudice, from family connection, from perWe have been brought to a new illustration sonal attachment, or from a view to popularity. In and test of our institutions. The responsibili addition to this, it would be an efficacious source of of the Chief Magistrate to the people and their stability in the Administration." power to remove him from his place, if faithless But it will be readily seen that if the Presiand treacherous to his high-trusts, are on trial dent has the right to remove and make "ad inin the Senate. If before civil order is restored terim" appointments at pleasure, the coordinate and the animosities of war allayed the temper function of the Senate in appointments may of forty millions of people shall be self-con- become a nullity, and the purpose of the Controlled; if the currents of business are unin- stitution be defeated. It destroys at one blow terrupted and society discharges its ordinary this great safeguard against usurpation and functions without disorder, as the case passes maladministration in the Executive. to its final issue of conviction or acquittal, it Without delaying to discuss this subject will not only prove the capacity of the people further, I simply say, that to my mind a natfor self-government, but will reassure the ural interpretation of the Constitution would strength and stability of the Republic. It give the appointing and removing power to the will be a triumph of popular institutions which same parties.'must unsettle the foundations of arbitrary But the acts of 1789 and 1795 gave a legislapower, and hasten the establishment of free tive. construction adverse to' this view, and governments. whether these acts are repealed or not, if it The first of the articles exhibited by the can be shown that the President violated no House of Representatives against the Presi- law in the removal of Mr. Stanton it would be dent of the United States, charges a violation clearly unjust to impeach him for having of the Constitution of the United States, and conformed to a legislative construction of the of an act regulating the tenuYe of certain Constitution unquestioned for fifty years againpt civil offices, passed March 2, 1867, in the the views and wishes of the majority of Conissuance of " an order, in writing, for the re- gress. So heavy a judgment should not fall moval of Edwin M. Stanton from the office of upon the Chief Magistrate for having followed Secretary for the Department of War." an exposition of the fundamental law, authorIt is alleged that this was done contrary to ized by solemn enactment, and supported by the provisions of the Constitution, and with the some of the ablest among the earlier statesmen intent to violate the act above named, and was, of the Republic. therefore, a high misdemeanor, for which he The second allegation in the article is a vioshould be removed from office. lation of law in the removal of Mr. Stanton. First, was it a violation of the Constitution? The respondent urges a threefold defense An unlimited power of removal from office against this charge: cannot, I think, belong to the President by force First. That the non-execution of the act of of the Constitution. There certainly is no word March 2, 1867, " regulating the tenure of cerin that instrument which confers any such au- tain civil offices," was not a breach of executhority directly. It says " the executive power tive trusts, as the law was unconstitutional and shall be vested in a President of the United void. States of America," but that power is limited Second. That a denial of the validity of the by the letter of the Constitution, and by direct act and an intentional disregard of its provisgrants of power to other departments of the Gov- ions in order to bring the statute into court ernment. If the Executive possesses the right and test its constitutionality is not an, impeachof removal in the case of officers appointed by able offense. the cooirdinate action of himself and the Senate, Third. That the language of the statute does it must be by implication. not include Mr. Stanton, and hence his reThe Constitution says the President "shall moval was no violation of law. nominate, and, by and with the advice and con- Whether the President had or had not a sent of the Senate, appoint," &c. Now, the constitutional right to remove at pleasure offi 10f' eers confirmed by the Senate was the theme of -provision on:the subject. I am, therefore, of opinthe great debate in 1789' upon the establish- ion that it is competent for Congress to decide by law, ~msenof;the State Department. Itwas purely asone qualification of the tenure of office, thdt the menit ofhete Department. tw p incumbent shall: remain in plaoe tHl the President a question of interpretation, and was argued- shall remove him, for reasons- to be stated to-the Senupon both sides by lawyers of unsurpassed ate. And I a of opinion that this qualificqti-ou, Even th saemnwo imild" and: gentle as it is, will: have some effect hr ability. Even the great statesmen who had arresting the evils which beset the progress of the been master spirits in the, constitutional Con- Government and, seriously threaten its future pros> vention, and whose genius had passed- largely perit" * * "Aftef considering the question again and again into the:framework of the Gdvernment, entered within the lnast six years,e I am Willing to say that, i-l the lists and battled earnestly on either side. my deliberate judgment, the original decision, was'When the Constitution was before the State wrong. I cannot but think that those who denied conventions for adoption the Federalist ex- the power of 1789 had the best of the argument. It ventien fori atio the Eec elt appears to me, after thoroughaand repeated and conpressly denied this right to the Executive, but scientious examination, that an erroneous interprethe Congress of 1789 reverse~di that interpreta- tttion was given to the Constitution in this respect by the decision: of the First Congress."'f finn which had received the popular approval e ision of the Fist Cgress b a close vote of thirty-four to twenty in the: "I have the clearest conviction that they [the Condouse and by tfh'e casting vote of the Vice ventionl looked to no other mode of displacing an?resident in the Se~natoe.-~~ I~ti ils believed~ that -officer thoan by impeachment or the regular appointkre~sident in the Senate.. It is believed, that enrt of ancother person to thiese saeplace." the character of Washington, then Chief Magis- * * e o * * * *s * trate, largely influenced the result, and states- *" I believe it to be within the just power of Conlargelyinfluened, theresult andstatwho ress to reverse the decision of 1789, and I mean to' men as- patriotic and enlightened as any who ld myef at liberty to act hereafter upon- that took part in the deliberations of the First Con- question as the safety of the Government and of the gress have since deprecated a construction Constitution mayrequire." which they believe a hazardous and unwar- Mr. Calhoun and Mr. Ewing were equally ranted change of the Constitution. positive: in- their advocacy of the bill, and MatIn 1835, a committee of Congress, composed shall, Kent, and Story seem to have entertained of such men as Calhoun, Webster, and Benton, similar views in respect to, the original intent rieported a bill designed to limit the abuse of of the Constitution. executive patronage, and requiring the Presi- But there has been a; conflict of legislative dent in all cases of removal to state the reasons constructions as well as of individual opinionr thereof. In the debate,- Mr. Clay spoke as upon this subject. SubsequentCongresseshave follows: claimed and exercised, without the obstrue, " It islegislative aithority which creates the offce, tion of an executive veto:, the power to regulate' defines itsf duties, and may prescribe its duration. the tenure of office, both civil, and military. I speak, of course, of offices not created by the Con- A I of February 25, 1863, povid that Stitution, but the latW. The office coming into exist- A lw o ry 25, 1863, provides that etco by the will of Congress, the same will may pro- the Comptroller of the Currency'shall hold vide how and in what manner the office and, officer his office for the term of five years unless sooner shall cease to exist. It may direct the conditions on which he shall hold the office, and when and how he Presient by and with thi DIall be dismissed. advice: and consent of the Senate. " "It would be un-reasonable to contend that, al- By section five of an act of July 13, 1866, it is tlhough Congress, in pursuance of the public good, rilngs theoffice and te officerinto being, and assign provided thattieir purposes, yet the President has a control over No officer in the military or naval service shall the offleer which Congress cannot reach and regulate" in time of peace be dsmissedfrom service exepet ipot * * * * "The precedent of 1789 was estab- ad in pursuasnce of the sentence of a court-artsi at.tf liehed in the House of Representatives against the that eect or i commutation reof" oetinion of a large and. ableminority, and in the Senate by the casting vote of the Vice President John These are late acts,- but they are only instances Adams. It is impossible to read the debate which it of other similar acts scattered through our statoccasioned without being impressed with the convietion that the just confidence reposed in the Father utes, whose validity has never been questioned. of his Country, then at the head of the Government, There is, therefore, no deeision of the Supreme had great, if not decisive, influence in establishing Court or settled precedent of legislation which ift. It has never, prior to the commencement of the or s p gaion present administration, been submitted to the pro- can bar the right of Congress to regulate by ess of review." * * * * "No one can law both appointments to and removals from carefully examine the debate in the House of RepreSentatives in 1789 without being struck with the su- office. Never until now, so far as I know, has periority of the argumentoonlthe side of the minority, the right been questioned. Whatever differandtheunsatisfactorynatureofthat of themajority," ences of opiniorn legislators may have enterThe language of Mr. Webster was not ess tained in respect to the original grant of power, explicit or emphatic: all have acquiesced in the exercise of legisla-' thiink, then, sir, that the power of appointment iatuxrally and necessarily iacludes the power of re- Hence the claim of the President of a judi; moval, where no limitation is expressed, nor any cial right to settle ex cathedra the constitution, tenure but'that at will declared. The power of p- ity of a law upon this sbjeet isin -ssbl pointment being conferred on the President and Senate, I think the power of tfemovtl went along with and. subversive of the powers and independit, and should have: been regarded as a part of it and ence of a coordinate branch of the Governexercised by the same hands. I think the Legisla- ment. In a clear ase a legislative usurpture possesses the power of regulating the condition, duration, qualificationii and tenure of office in all ation of his constitutional prerogatives, such s mes where the Constitution hals made no express would occur in an effort to destry his veto or Fparii&nig power, he might:bejusiified in treat- of Cotig6iets *ae i'-t iha trejected- his judi-elt: iig the act s as nnllity, but tiot When C(ongress' opinion of tihe: tonstittiomility- of thhe lawt nidves in the path of authoritative precedents, ahnd had passed it by a; two-thirids vote over hias aMti where, tat fost, only a doubt can be raised veto. After' it haid reaffirned the validity of against its original right of its jurisdiction. its action and the- invaidity of his on this ver~ At uan earlier period I apprehend such a subject, anid aessnming that the r-emovail hadi claim woild not have beeit advancied. Civil been effected, he igssed;a letter of authbority t war naturally tends to' concentrate; power ii fill the eacan:. To crown the effrofftery he the chief who administers it. Forces and re- nominates General Seofield to the vacant Seesources must be at his disposal. Defeat waits retaryship, whiile urging uon the Sensate his upon the ander wo is hapeed the omi-ander who is hampered by the acquittal on the ground that the: removal wasformis and delays of law. His authority is not effected, but- only attempted. Thus duinothing if not supreme. The laws of war are plicity is m'ade the proof of innocerlce. Har — swift and absolute and cani iecognize iio per- ing put the case into a condition in which he sonal rights; rio Claims of M agna Charta. couldk not sue out a writ of quo warrOcnto, I Active warfare necessarily encroaches upon deny that he cant hnestly plead ai desire to test the domain of legislation, and familiarizes the the law. He knew full well if Stanton was noV Executive with a use of authority hazardous in in the law he could not test it by his removal a- time of peace. This defense is clearly anr afterthought. Power once possessed is soon felt to be a Having recognized the validity of the law by right and is yielded with reluctance. Our ex- conforming all commissions to its provisions; perience has added another example to the having suspended Mr. Stanton' and! appointed long record of history. The President's de- General Grant under it; having notified the fense denies the supremacy' of law and is more Secretary of the Treasury' of the change, to dangerous to the Government than the alleged wit, as follows: etime which has brought him to the bar of the " SI: In compliance with the requirements of the S'enate. If he can determine the validity of act entitled'An act to regulate the'tenUre of certaiin lAw, the Supreme Court is an empty mockery. civil offices,' you are hereby notified that on the NoI~~ atc passvta allgsto 12th instant Hon. Edwin M. Stanton was suspended No act can- pass his *eto, and all legislation from his eto, and all legislation from his office as Secretary of War, and General U. S. may be subverted at plegasure. The right to Gran-t aithoried and elmpowered ti acdt as Secret6ry substitute the judgment of the ruler for the of War ad interim"' — judgment of the people and to Override their and having afterward transmitted a message laws by his will is absolutism. If the plea is to the Senate giving the reasons for the susgood, it is a valid defense for unlimited usurp- pension, as required by the act, he cannot, ation. without criminality' under the pretext of seek) The plea of the President that he removed ing a judicial decision, set aside or trample Mr. Stanton for the purpose of securing &- de- upon the law at the point where it baffled: hi'r eision of the court uporn the constitutionality cherished political policy paand curbed a career of the law is equally untenable as a ground of which the law-makers beiieved dangerous to defense. It is inconsistent with the answer the peace and liberties of the country. If which he made by his counsel, that he eftected regard for the Constitution, and not a desire t6 the removal in the exercise of an executive get control of the Army, had been his purpose, power of which Congress could not deprive why did he not test the law in the first instance him, " because satisfied that he could not allow wheon called upoti to execute it, and when hid the said Stanton to continue to hold the office motive would have been simple and urrques~ of Secretary of the Department of War with- tioned? Facts' show that it was not the nature out hazard of the public interests.' It is irre- but the effect of the law w-hich troubled the concilable with the further answer that " in his President. capacity- Of President of the United States" The enactment wim designed to cireumscr-ibe he " did form the opinion that the case of the and limit his power, lest he should abuse it to said Stanton and his tenure' of office were not the injury of the countrry. It was effective; affected by the first section of the last named and when it arrested the execution of his pol' aict," referring thereby to the tenure-of-office icy, regardless alike of his oath and the wisheS act. of the nation, he defiantly violated the law to But, passing over the contradictory nature remove the madi who was a trammel upon his of this defense, we submit that the evidence will.; shows an anxious and persistent effort to get The evidence demotlstrates a purpose to get possession Of the War Office, and not a pur- possession of the Department ofar, and diSpose to have th-e law adjudicated. If to test the proves the pretense that he was seeking a judilaSw had been his desire, he should have sued cial decision upon the! constitutionality 6f the oiit a writ of " quo wdrranto" on the refusal law. df Stanton to obey his order of removal. Finally, was Mr. Stanton's removal a violaInstead of that, he not oily endeavored to tion of the act entitled " An ac't regulating th keep him out of office by an unworthy trick tenure of celtaifin viil offices." heien we had annulled his suspension, but The purpose of the law was to hold in office ised a letter of absolute removal in the face meni whom the policy of Mr. Johnson threAt 1052 ened to remove. It isboth claimed and denied the office of Secretary of War is brought into that the Secretary of War who held a commis- the proviso, and Mr. Stanton excluded, he is sion under President Lincoln is protected by left in the section and covered'by its provisthe law. Thetrue construction mustbedrawn ions. If not there, to what limbo have the from the letter of the statute itself, and not gods assigned him? from any conflicting opinions expressed in de- The conception of a Secretary of War withbate at the time of its passage. out an office is worthy of a lawyer without a The first section of the act reads as follows: brief. The argument is a pure creation, and a "That every person holding any civil office to miserable fallacy at that. The language of the which he has been ajpointed by and with the advice section is in relation to persons, not offices. It and consent of the Senate, and every person whong any civil office shall hereafter be appointed to any such office, and says, every person holding any civil office shall become duly qualified to act therein, is, and shall be entitled to hold," &c.; "the Secreshall be, entitled to hold such office until a successor taries, &c., shall hold their offices," &c. The shall have been in like manner appointed and duly construction of the section is simple and unmisqualified, except as herefn otherwise provided: Provided, That the Secretaries of State, of the Treasury, takable. There are certain officers referred to of War, of the Navy, and of the Interior, the Post- in the fourth section whose terms are limited master General, and the Attorney General, shall hold by law, and the proviso adds the heads of their offices respectively for and during the term ofviso adds the heads of thePresidentbywhomtheymayhavebeen appointed, Departments to this number, but the terms of and for one month thereafter, subject to removl by the law allow no officer to be removed who has and with the advice and consent of the Senate. been appointed by and with the advice and It will be observed that the body of the sec- consent of the Senate, except by the appointtion includes all persons who have been or ment of a successor in the same way. who shall be appointed to civil office by and The language of the proviso itself is, that with the advice and consent of the Senlate, the Secretaries are " subject to removal by and "except as herein otherwise provided." with the advice and consent of the Senate." This last clause which I have quoted was in' If, therefore, Mr. Stanton is not in the proviso, the bill before the committee of conference, he is in the body of the section, and the law who added the proviso, was appointed, and was violated by his removal. I will not stay undoubtedly refers to officers mentioned in the to inquire in whose term he was holding, for fourth section whose term is limited by law. the argument is perfect without it. The Secretaries were not of this number, and This is not all. The President violated the the effect.of the proviso which was added by second as well as the first section of the law. the conferees was simply to limit their time to It reads as follows: the term of the President under whom they "That when any officer appointed as aforesaid, serve and one month thereafter. excepting judges of the United States courts, shall, The meaning of the section clearly is that during a recess of the Senate, be shown, by evidence every eivil officer who has been confirmed by satisfactory to the President, to be guilty of misconevery civil officer who has been confirmed by duct in office, or crime, or for any reason shall become the Senate shall hold his office until the Senate incapable or legally disqualified to perform its duties shall confirm a successor, but provides that n such case, andn no other, the President may suspenc such officers as hold a term limited by law sch officer," &c. shall lose their office'by the expiration of their If, now, the President can suspend an offiterm without the action of the Senate. The cer during the recess only, and that for the only effect of the proviso is to bring the heads reasons specified in the law and no other, can of Departments into this last class of officers he remove him outright during the session of whose terms are limited by law. The intent the Senate, and when he is free from all the and effect of the law is to take the removal of legal disqualifications enumerated in the act? every officer confirmed by the Senate out of The act further provides, in respect to a susthe pleasure of the President; and it is a per- pension, thatversion of language to say that the proviso "If the Senate shall concur in such suspension, places the tenure of the Secretary of War, or and advise and consent to theremoval of such officer, of any other Secretary, at the option of the they shall so certifyto the President, who may thereupon remove such officer, But if the Senate shall'President. They are all removable by the refuse to concur in such suspension, such officer so confirmation of a successor or by the expira- suspended shall forthwith resume the functions of his tion of their term. office," &c. It has been said that the proviso brings the The Senate refused to concur in the suspenoffice of Secretary of War out of the body of sion of Mr. Stanton, refused to advise and conthe section into itself, but that the clause which sent to his removal, but the President removed provides that the Secretaries " shall hold their him in defiance of the letter of the act and of offices respectively for and during the term of the will of the Senate. No amount of genius the President by whom they may have been for legal sophistries can torture that act of the appointed, and for one month thereafter," President into anything less than a willful vioexcludes Mr. Stanton from it because he was lation of law. This simple statement of the not appointed by Mr. Johnson. case without argument is sufficient to command The office could not be taken out of the body the approval of every mind. of the section unless it was first in it, and if Counsel must have forgotten that the Senate, there, the Secretary was there also. If, now, acting under the solemnity of an oath, had 1053 repeatedly decided that the law applied to Mr. ability of the officer to " perform the duties of Stanton. On the 12th of December the Senate, his office." An officer removed cannot perremembering that the " tenure-of-office act" form the duties of his office, it is true, but the was passed expressly to protect officers whose natural implication of the language runs pari retention was thought indispensable to the passu with that of 1792, confining it to such public service against an abuse of executive vacancies as occur from death, absence, or power, and moved by the eloquent and power- sickness. But if we give it the broadest appliful appeal of the Senator from Maine, refused cation, and cover all vacancies, the limitation their assent to the removal of Mr. Stanton, of six months -placed upon the temporary which they had no right to do, or even act upon appointments which it authorizes is designed at all, unless he was covered by the law of clearly to cover the interim between the sesMarch 2; 1867. sions of Congress, and recognizes the hitherto Again, on the 21st of February, when the unbroken practice of the Executive to create President failed in his attempt to prevent the and fill vacancies only during the recess of the return of the Secretary by the use of General Senate. I conclude, therefore, it was not deGrant, informed this body of his absolute dis- signed to authorize by this act an appointment missal, it was resolved by the Senate- like that of General Thomas. "That under the Constitution and laws of the The act of February 20, 1863, fails equally United States the President has no power to remove to provide for this case. the Secretary of War and to designate any other But even if these statutes by a proper conofficer to perform the duties of that 6ffice ad interim." struction coven if these statutes by a proper conWith such action upon our records we have he cannot use them, for they have been swept a right to assume that argument upon this is away by the tenure-of-office act, and he is reforeclosed, and that Senators who took part mitted to its provisions alone, which explicitly with the majority in those transactions will sus- prohbited any such appointment. tain the construction wlich they helped to If the first and second sections take from establish, and upon which the conduct of the him, as I have argued, the right to remove Secretary is based. Stanton, then there.was no vacancy, and the We are brought next to consider the charges appointment of Thomas was made "contrary as stated in the second and third articles. It o the provisions of this act,' and was by the is alleged that the appointment of Lorenzo sixth section of the same ahigh misdemeanor. Thomas as Secretary of War L"ad interim," It has been urged that the last clause of the was a high misdemeanor, being made without third section empowers the President to make law, and in violation of both law and the Con- such an appointment, but an examination of stitution. The provision of the Constitution the section shows this to be a perversion. It is, that- simply provides that in case the Senate shall " The President shall have power to fill up all fail to fill a vacancy which has occurred by death vacancies that may happen [not such as he may or resination durng the recess of the same, make] during the recess of the Senate. by granting commissions which shall expire at the end of their such officers as may by law exercise such powers next session." and duties shall exercise all the powers and This certainly does not confer the right to duties belonging to such office so vacant, but make "' ad interim" appointments during the that "such office shall remain in abeyance withsession of the Senate, but, by necessary infer- out any salary, fees, or emoluments attached ence, denies it, by expressly granting the power thereto, until the same shall be filled by appointfor the recess only. Hence, to fill a vacancy ment thereto by and with the advice and conin this way, while the Senate is in session and sent of the Senate." ready to provide for any emergency, is, in the General Thomas was not so appointed. The absence of positive law authorizing it, a clear law cannot possibly be stretched to cover and violation of the Constitution. The guilt was justify his case. in this case enhanced by an attempt to fill an Equally fallacious is the interpretation which office which the respondent himself claims has has been given to the eighth section. This never been vacated. simply makes it the duty of the President to But the President is equally unfortunate in notify the Secretary of the Treasury whenever his appeal to law. The act of 1789 makes no he shall have " designated, authorized or emprovision for "ad interim " appointments. ployed any person to perform the duties of any That of May 2, 1792, authorizes temporary office" temporarily vacated, as designated in appointments in case of' death, absence, or the third article. sickness, but not for vacancies created by This is'the whole extent of its meaning, and removal. That of February 13, 1795, allows it cannot be so tortured as to authorize an the President to appoint for six months, "in "ad interim" appointment made during the case of vacancy, whereby the Secretaries or session of the Senate. any officer in any of the Departments cannot I conclude, therefore, that the President havyperform the duties of his office." ing violated the act of March 2, 1867, as alleged The construction of this act is somewhat in the first, second, and third articles, is guilty obscure and doubtful. It applies to such va- of a high misdemeanor. cancies of office as are occasioned by the in- Of the fourth, sixth, seventh, and ninth .articles, I need not speak, as the trial f-Wed th.an availability in those whom it advances to entirely, to ny apprehension, in establishing the the great trusts of society. When we.refleet allegations therein set forth by any substantial how essential to national welf.re and human proof. No satisfactory evidence.was presented progress is that liberty of speechwhichwe have.to my mind of a conspiracy~as alleged in either inherited, and how readily a -.restr-iction upon.of the articles. In:this I think the House,its abuse may turn to-an abuseuponits restricentirely failed to make good their charges. tion, we hesitate to inflict a -merited penalty The fifth article charges that the President upon -this -prominent offender..We dm it conspired with Lorenzo Thomas and others -o safer:to"-prevent and.hinder.the execution ofan act "Bear those ills we have, entitled' An act regulating the -tenure of cer- Than flyto others thatwe know-not o.",tain civil offices, and in pursuance of said There are four distinct allegations in -the conspiracy.did.unlawfully attempt to preve:t eleventh article. The first relates to the PresEdwin M. Stantn ".from. holdingthe.affice of ident's misrepresentations of Congress in pubSecretary of War. That there was an under- lic speech, and -has already been reviewed in s.xtandingbetweenthe.Presidentand Thomasatat considering the tenth article. the latter was to be substituted for Stanton in The second charges a violation of "an-aot the office of Secretary of War, in disregard of regulating the tenure of certain civil offces," the act of March 2, 1867, is clear, but that thqre by unlawfully devising and contriving, and was any,concert to use force to bring itkabout attempting to devise and contrive, me'ans tX9' does not appear from.the evidence. prevent'r. Stanton from resuming his office The eighth article,charges upon Andrew *of Secretary of War after the Senate had reJohnson a high misdemeanor, in that he issued fused to concur in his suspension. This is a letter of authority to Lorenzo Thomas, trans- charge not mentioned in any preceding articles ferring to him the office of Secretary for the and:its proof is unequivocal and satisfactory. Department of War, in.violation of law, when The'attempt was made through General there was no vacancy in said office, and when Grant, and the President's letter of reproof to:the Senate was in session, with in-tent unlaw- that distinguished citizen for defeating his fully to control the disbursements of the moneys wicked purposeby refusing to participate with.appropriated for the military service:-nd for him in a premeditated breach of law and conthe Department of War. tempt of the Senate, is-the impregnable demonI have already given my opinion upon the stration of the allegation. The following is issuance of the letter-to Thomas in what I have the language of his letter: said in.respect to the second and third articles. had found in ourst conerence That a control of the money appropriated for President was desirous'of keeping Mr. Stanton oat -the military service and the Department of of office, whether sustained in the suspension or noti War was a.principal:motive for securing the Youknew.what reasons had-induced the President tozsk:from -you alpromlse; Yeou alse knew that.iu place of Mr. Stanton is self-evident, for without case your views of dat id not accord kit hw hat in t.the office could not-be administered, and would convictions it was his purpose to fill your place )w -be a vain and useless shadow of power. I do another appointment.'ven ignoring the existenep of a positive understanding between us, these con-:not see that this article adds anything new, for -elusions were -lainly deducible from our vreous the gravamen of the charge is involved in the conv.ersations. It is certain, however, that evlen' third _article. The final judgment upon this uunder these circumstances you did not offer to retur.n:uth rbe the samTe fas udgetpon tha the' place to my possession, but, according:to your }oust be the same as upon that'. own statement, placed yourself in a position where, The -facts alleged in the tenth article are could I have anticipated your action, I would hbavp known and retd of alle men, andt are not deie been compelled'to 4sk of you, as I was compelled tp known and reid'of all men, and~are not denied ask of your predecessor' in the War'Department, a.by the respondent. That the speeches referred letter of resignation, or else to resort'to the morbh to in this;article were " slanderous harangues," - disagree.bleexpeedient of susp.ending you by..a ushowing not only a want of culture, but the censor." -entire.absence of good sense, good taste, or The -third and fourth allegatio'ns of this.artigood temper, nobody can deny. But in view cle do not seem to have -received that attenttiQo bf the liberty of speech which our laws au- which their importance would justify. Tho. thorize, in view of the culpable license of speech evidence upon the records.by which they -are which is practiced and allowed in other branches supported is very slight. I have been the more of the Government, I doubt if we can at pres- surprised at this inasmuch as -the last sets forth ent make:low and scurrilous speeches a ground that the President attempted to prevent the of impeachment. I say this in sorrow, and not execution of the act-entitled "An aet toprovide in any spirit of palliation, for the' speeches for the more efficient government of the rebel referred to in the charges were infamous and States." This I have deemed the primum blasphemous, and could not have been uttered mobile which has impelled the entire policy of by any man worthy to hold the exalted posi- the Executive. tion of Chief Magistrate of an intelligent and This has been the motive of all our excepvirtuous people. Personal decency should be tional legislation; this has prolonged and muldeemed essential to high official responsibility tiplied our sessions; this has distracted busiin this Republic, but it must be secured by a ness, and protracted the unrest of society, and public sentiment-which shall exact.virtue rather this will-be the. crowning infamy of an AdmiSa stration inaugurated;by assassination. All acts for which the former is on trial lie the these willful violations of law have drawn their three years of malignant obstruction of law inspiration from this fell intent. If they had and public order pouring a wicked intent into been only technical and inadvertent lapses or the allegations of this indictment: Back of had resulted from misapprehension they might this attempted removal of Mr. Stanton lies the be pardoned, but being specimens from a splendid record of the great Secretary, which flagrant catalogue of persistent law-breaking will hereafter thread your history like a path public safety demands a resort to constitutional of gold. Who shall fall in the final issue, he remedies. who obeys or he who defies your legislation? There may be wise and patriotic men who If conviction may impress -instability upon fear lest conviction should impress a -habit of our institutions, acquital may destroy the oriinstability upon our institutions and unsettle ginal adjustment and balance of their powers ithe foundations of society. No statesman and hasten their overthrow. The lessons of should,be censured for a prudent forecast, but history warn us rather against-the indulgence he should not hesitate to use the means which than the arrest of arbitrary power. the experience of ages has shown to be essen- When power flows back into the hands of tial safeguards of popular rights. The English the people it only returns to its original and ministry retire with every defeat, and these rightful source; but when it passes up into frequent changes of administration strengthen the hands of a usurper, the reign of despotism rather than weaken the:Government. A people is inaugurated. History'hs:been a perpetuad careless and not over-jealous of their rights struggle between popular rights and personaii are in danger of overthrow. History teaches ambition, and experience shows that:we do that great wars enhance the powers of:the not utter empty words when we say tha.t "'vgi~xecutive at the expense of popular rights, lance is the price ofliberty." and -that powers once exercised are likely to As a member of'the -House of Representabe held as an inalienable prerogative. YWe;are tives, I voted under the obligations of au oath, no exception to the rule. With us, the tempt- for the act of March 2, 1867, with a'Flear:uwation of the Chief Magistrate to overstep -his derstanding that it protected Mr. Stanton-as authority is even greater than in Governments Secretary of War against removal at pleasure where executive power iis less limited. It is by the President; and now, when he is.brought difficult for a ruler who has used for years to our bar, to be tried for the consummation without wrong the unlimited powers of war to of that act, I but discharge a solemn duty, restrict himself at once, on the return of peace, from which I cannot escape, when, as a Sento the narrow limits then essential to the ator, I pronounce Andrew Johnson guilty of security of popular rights. a violation of that law. Abraham Lincoln in a few instances transcended the ordinary exercise of -executive authority, and we -legalized it as a -military OPINION necessity. Four years of laborious, patriotic, OF suffering life, devoted to a rescue of the liber- HON. CHALES R. BUCKA ties and integrity of the Republic, -were the pledges he gave that he would not usurp or abuse his power for -the gratification of either THE STANTON ARTIOLE. revenge or ambition. Andrew Johnson has The first article of impeachment, which no such excuse and can give no such security charges the issuing of the order for thelremoval when -he oversteps his constitutioinal limits and of Edwin M. Stanton from his office of Secresets aside law. tary of War upon the 21st February, 1868, is There have been no "'public considerations the most important one of.the articles, and of a high character"-to -justify his high-handed presents itself first'for consideration. It:is usurpation of power. There was;nothing.in charged that that order was unlawfully issued the personal character and nothing in the offi- with intent to violate the tenure-of-office act of cial conduct of this distinguished.minister of -March 2, 1867, and contrary to the- Constitu-. war, who, more than the great French minister, tion of the United States, and that by issuing may be said to have " organized victory," which it the President did commit and was guilty-of could give the shadow of a pretext for his sus- a high misdemeanor in office. pension or removal. His offense was that at Was the order for the removal-of Mr. Stanthe expense of personal comfort he fulfilled ton authorized by the Constitution and laws of the purpose of.Congr!ss and checked, if he.did the United States, or was it in violation of either not baffle the effor t he the Executive to arrest or both? The argument upon this question the legal and peaceful reorganization of the has been prolonged and exhaustive; but to a South. His obedience to the spirit and letter just conclusion it will only be necessary to of our laws "constrained" the President to examine a few points and place them in their -' cause him to surrender.the office." proper relations to each other and to the genIf the President is convicted he suffers for a eral-question involved. violation of law: if acquitted, Mr. Stanton suf- As a constitutional question, the executive fers for obedience to the law. Back-of the power to remove from office may be placed 1056 upon those two provisions of the Constitution Treasury, and the Secretary of the Navy. They of the United States which declare that the were appointed by Mr. Lincoln in his first term executive power pf the Government shall be and were commissioned by him, in the usual vested in the President, and that he shall take form which then obtained, to hold theiroffices care that the laws be faithfully executed. The " during the pleasure of the President of the power to remove being executive, in its nature, United States for the time being." Theirs was and its exercise, upon fit occasions, being then a tenure at will; they were to hold atthe necessary to the due execution of the laws, it pleasure of the President who appointed them, is insisted that it is vested in the President by or of his successor, whoever that successor these provisions.of the Constitution. And such'might be. was the decision of Congress after full debate The Secretary of the Interior, the Postmaster in 1789. General, and the Attorney General had been If this construction of the Constitution be a appointed by Mr. Johnson and had received true construction there can be no doubt that commissions in the same form. So stood the the President had due authority to issue the case as to the heads of Departments when the order four the removal of Mr. Stanton. tenure-of-office act was passed. But the power of the President to remove a The proviso, therefore, in declaring that heads Secretary of W.ar from office is clearly declared of Departments should hold during the term by the second section of the act of the 7th of of the President by whom they may have been August, 1789, organizing the War Department. appointed and for one month thereafter, could That section reads as follows: not have the practical effect of expanding or "There shall be in said Department an inferior changing the tenure upon which the Lincoln officer, to be appointed by the said principal officer, Secretaries held their offices; for the term of to be employed therein as he shall deem proper to the President who appointed them, and during be called the Chief Clerk in the Department of War, esident who appointed them, and during and who, Whenever the said principal officer shall be which they were appointed, expired March 4, removed front office by the Presidenl of the United S'tates, 1865, and they were never reappointed after or in any case of vacancy. shall during such vacancy ts tion Besides, Mr. Johnson's term have the.charge and custody of' all records, books, its expiration. Besides, Mr. Johnson's term and papers appertaining to the said Department." began in April, 1865, and when the law was Whether this section simply admits that the passed, March 2, 1867, there was no term runPresident has power to remove by virtue of ning of a President by whom they had been the Constitution or confers the power upon appointed. There can be no pretense of an him is not material to our present purpose. Innt of them by Mr. Johnson or by either case it is a legislative declaration that Mr. Lincoln in his second term, from the fact he can remove the Secretary, the " principal that they held over after March 4, 1865. No officer" in the Department of War. new commissions were issued to them, and in Again, it is in evidence and undenied that fact no new appointments were possible withSecretaries of War have always been appointed out the advice and consent of the Senate, which and commissioned to hold' their office " during was never asked for or given. the pleasure of the President of the United in my opinion, all Secretaries, present and States for the time being," and Mr. Stanton's future, were within the descriptiveords of commission-the only one ever issued to him- the proviso, but the Lincoln Secretaries were is in that form. not practically within the operation of the new It only remains to inquire whether recent tenure which that proviso established. They legislation has changed the tenure of office of were within the words which distinguished and the Secretary of War so as to impair or destroy separated heads of Departments from other the President's power of removal. The first civil officers of the Government, but not effectsection of the tenure-of-office act of 2d March, ually brought within the new tenure rule. For 1867, is as follows: purposes of classification all heads of Depart" That any person holding any civil office towhich ments were named in the proviso and excluded he has been appointed by and with the advice and from the body of the section, but the tenure consent of the Senate, and every person who shall of those Secretaries was not in fact changed, q4ereafter be appointed to any such office and shall but was left as before. become duly qualified to act therein, is and shall be entitled to hold such office until a successor shall No one can doubt the complete application have been in like manner appointed and duly quali- of the tenure-of-office act to all heads of Defied. except as herein otherwise provided: Provided, partments appointed by future Presidents. That the Secretaries of' State, of the Treasury, of WarPresidents. of the Navy, and of the Interior, the Postmaster They will all hold during the term of the PresGeneral and the Attorney General, shall hold their ident who shall appoint them, and for one offices respectively for and during the term ofthe month thereafter; there *ill be no exceptions. President by whom they may have been appointed and for one month thereafter, subject to removal by If a President shall be chosen for a second and with the advice and consent of the Senate." term the members of his Cabinet must be reapThe proviso of this section puts the heads pointed if they are to hold for more than one of Departments into a class by themselves, month in his new term. But suppose a Presibut cannot have practical effect upon four of dent shall die, resign, or be removed from the Secretaries who were appointed to office by office before his term shall run out? Will his Mr. Lincoln, namely, the Secretary of State, Cabinet be fastened upon his successor for the Secretary of War, the Secretary of the one month only or for the remainder of the 1057 full term? Will a Secretary appointed March former ends with the event, whatever it may 4, 1869, be entitled to hold for a fixed and inde- be, which causes the vacancy in the presidenfeasible term of four years and one month, tial office. or may he lose his place sooner by the death, We may conclude, then, that the words " the resignation, or removal of the President who term of the President" mentioned in the tenappoints him? Now, this is, in one view, an ure-of-office act and in the Constitution is the important inquiry in fixing the construction of actual period of service of a President-inthe tenure-of-office act in its application to the eluding any time of temporary disability-and case before us. For if it shall appear thbqt that such term may end by death, resignation, upon the death, resignation, or removal of a or removal, as well as by the regular expirafuture President his Cabinet will go out at the tion of four years. It follows that Mr. Stanend of one month, there is no ground left for ton could not claim to hold his place as Secrethe argument that Mr. Stanton now holds his tary of War under the tenure created by the office under the law. He can claim to hold proviso to the first section of the tenure-ofit only upon the ground of the non-expiration office act, even though he had been appointed of Mr. Lincoln's second term. If that term in fact or constructively in Mr. Lincoln's seeexpired with Mr. Lincoln's life he has no stand- ond term of service as President of the United ing whatever in any forum of honest debate. States. In no sense can it be said that he is In my opinion, in case of the death, resig- holding his office in or during " the term of nation, or removal of a future President, his the President" by whom he was appointed. Cabinet will go out of office at the end of one But if this be granted it becomes evident month. A President takes a four-year term that his case is quite outside of the tenure-ofsubject to the implied condition that he shall office act, and wholly unaffected by it. And; live so long and shall not resign or be removed the plain words of the act of 1789, and the lanupon impeachment. His term ends when for guage of his commission, declare him to be~ any cause he vacates or is removed from his subject to removal at the pleasure of the Presoffice and can no longer perform its duties. ident. The term of the Emperor Charles V ended I shall not examine at length the adroit arguwhen he resigned his crown; that of James II ment which places Mr. Stanton's case within, when Parliament declared he had abdicated the body of the first section of the tenure-ofthe throne by withdrawing himself from the office act upon its logical expulsion from the realm. In the ordinary case of an officer of proviso. This is evidently an after thought, the United States who holds for a term of which can derive but little support from verbal years, if he die, resign, or be removed from criticism, and none whatever from the history office pending his term, the term ends and his or policy of the law. Plainly the purpose of successor takes a new full term. But it may the law was to put all heads of Departments be said that our present case is a peculiar one, in a separate class and attach them to the parbecause a Vice President is provided to fill ticular Presidents by whom they are appointed. out the term of a President, who dies, resigns, No President shall have Secretaries imposed or is removed. The Constitution does not say upon him whom he has not selected, nor (as that. It says that in case of the death, &c., I construe the law) shall he be compelled to of the President, the duties of the presidential retain in a second term those he had selected, office shall devolve upon the Vice President. in his first. He may once in any termn freely If it be a case of temporary disability of the choose his advisers, (subject only to senatoriaI! President the Vice President will perform the confirmation,) but if reeilected he is notbound duties of the office until the disability shall be to keep them, nor can he in any case impose removed. If it be a case of vacancy in the them upon his successor. The law only bindt presidential office the Vice President will per- him to retain them (when once chosen) during form the duties of the office during the time or the term, or remainder of the term, in which term for which he was elected Vice President. they are selected, and then they retire. He becomes President in fact, not for the But this evident policy of the law is in flat term of another, but for his own. contradiction of the argument which places: The Constitution provides that when there is Mr. Stanton's case within the body of the secno President or Vice President to discharge tion, and assigns to him a tenure of indefinite the duties of the presidential office, such duties duration in the future. No future President' shall be discharged by some other officer to be (any more than the present one in case of his designated by law, until a new President shall reelection) could shake off this Secretary with!be chosen. But under an existing law (act out the consent of the Senate) if this argument of March 1, 1792) such choice of a new Pres- be sound. ident may possibly be made by electors, two Not one word was uttered in either House or three years before the running out of the of Congress when the act was passed indicatformer President's term, and yet the new Pres- ing that the Lincoln Secretaries were included ident will be chosen and will hold for a full or intended to be included in the body of the four-year term. The old and the new terms first section; but a most explicit statement was will not overlap each other in such case, will made by Senator Sherman (without dissent not be coexistent to any extent, because the from any quarter) that they were excluded C. I.-67. 1068 from the protection of -the act and would re- the House. (8 Senate Journal, 77, 78, 92.) main subject to removal by the President. It was necessary, therefore, that a -nomination It is charged in the first article of impeach- of a successor should be sent to the Senate,ment as an ingredient of the offense therein "as soon as they should sit" on Monday, in alleged to have been committee by the Presi- order to confirmation before the final adjourndent, or as a serious aggravation thereof, that ment of the session. the order for the removal of Mr. Stanton was MIir. Pickering's answer, refusing to resign, issued during a session of the Senate and with- is dated on Monday, the 12th, and it is-a fair out senatorial:advice and consent. This par- if not inevitable conclusion, from the facts ticular accusation was supposed by many in known to us, that it was sent to the President the outset of this controversy to be unanswer- on the morning of that day. For the Presiable. But it possesses no importance what- dent had requested that the answer should be ever. For neither the constitutional argument sent to him on or before that morning, and he for executive power to make removals from took action upon the answer, which indicates office, nor the act of 1789 organizing the War that he received it at that time. He issued at Department, nor any other former statute re- order dated the 12th, peremptorily discharging lating to removals, nor the practice of the Gov- Mr. Pickering from further service as Secreernment; recognizes any distinction of time tary of State, and as soon as the Senate met, (in making removals) between session and re- on the same day, sent to it a message nominatcess. The President in all cases where he is ing "John Marshall, of Virginia, to be Secreauthorized to remove an officer may remove tary of State in place of Timothy Pickering, him during a session of the Senate as well as removed." (Trial, pp. 356, 857.) in a recess between sessions, for aught that On May 12, a resolution passed both Houses appears in the constitutional reasoning, in the extending the session to the 14th, (3 Senate legislation, or in the practice of the past. Journal, 92, 94,) and on Tuesday, the 13th, the Prior to 1867 all removals were to be made Senate, in executive session, confirmed the by the President upon his own responsibility, nomination of Judge Marshall as Secretary of without senatorial advice or consent. Whether State. (Trial, p. 359.) the Senate was in session -ornot when a removal It is clear, then, that Mr. Pickering was was made, was, therefore, wholly immaterial removed during a session of Congress and of to his exercise of his power. The presence of the Senate; that he was removed before a nomthe Senate was of importance only when a new ination of his successor was transmitted to the and complete appointment was to be made to Senate, and that his successor was tonfirmed fi11 a vacancy, whether produced by removal or and appointed on a subsequent day. other cause. The views of the managersof the impeachUpon the whole we must come to the con- ment upon the Pickering case, as expressed by elusion, that if Mr. Stanton holds under the them to the Senate upon this trial, appear to tenure-of-office act he cannot be removed, be quite groundless. One of them [Mr. BTeither in session or in recess, without the con- LER] was of opinion:that the nomination of:sent of the Senate; but if he does not hold Marshall was sent to the Senate before the under that act, then, under the'prior -laws and order of dismissal was sent to Pickering, (Trial, practice of the Government, he may be removed pp. 358, 359, 360,) while another [Mr. BINGby the President at any time. In either case HAM] insisted at length that the order of rethe charge that he was removed during a ses- moval was issued before the Senate " had comision of the Senate is unimportant, if not absurd. menced its session," and thatPresident Adams The order for the removal of Mr. Stanton was " did not consider that it was proper even under in exact conformity with the precedent in the the law of 1789 for him to make that removal case of Timothy Pickering, Secretary of State, during the session of the Senate." (Trial, p. who was removed from office by President 1173.) Neither -one of these contradictory Adams on the 12th of May, 1800.. opinions can stand. It is very evident that the The first session of the Sixth Congress began removal of Pickering preceded the nomination December 2, 1799, and ended May 14, 1800. of Marshall, and it is beyond dispute that the (Trial, p. 595.) The removal was therefore entire transaction was during a session of the during a session of the Senate. On Saturday Senate, and not in recess. The Senate had May 10, President Adams wrote to Mr. Picker- been in session for months; it sat on the preing requesting him to resign, and stating his ceding Saturday, (3 Senate Journal, 92,) and desire for an answer to his communication there can be no pretense of a vacation or recess "on or before Monday morning, because the on the Monday when Pickering was removed nomination of a successor must be sent to the from office. Senate as soon as they shall sit." This last The Pickering case is therefore a decisive remark was obviously made with reference to authority in support of the order for the removal the adjournment of Congress; for by resolution of Stanton. of the 21st of April the two Houses had agreed THE THOMAS ARTICLES.'to adjourn the session on Monday, May 12, The second, third, and eighth articles of and a resolution of the Senate to extend the impeachment charge the designation by the session to the 14th had just been rejected by President of General Thomas to perform the 1059 duties of Secretary of War ad interim, as l any executive Department of the Go.vernment, oat unlawful, and as constituting a high misde- ofanyofficerofeitherofthesaidDepartments whos mmeanor in office. appointment is not in the head thereof, whereby they ~~~meanoe~~r in office.cannot perform the duties of their respective offices I think that that act of the President was it shall be lawful for the President of the Unitea authorized by the act of 13th February, 1795, States, in case he shall think it necessary, to authorBut in view of ize the head of eny other executive Department, or (1 Statutes-cat-Large, 416.) Butin viewof the other officer in either of said Depattments whose argument that the law of 1795 is no longer in appointment is vested in the President, at his discreforce, it becomes necessary to consider, in tion, to perform the duties of the said respective....e, itbcme eesaytooffiices until a successor be appointed, or until skuqh connection, the several laws -which relate to absence or inability by sickness shall cease:' ProOfficial vacancies and disability of officers in vided, That no one vacancy shall be supplied in man. the several Executive Departments. ner aforesaid for a longer term than six months.' The act of 8th of May, 1792, section 8, pro- It will be observed that:this act follows ~vides: mainly the language of the act of 1792. The "In case of the death, absence from the seat of particulars in which it departs from it are Government, or sickness of the Secretary of State, these: -Secretary of the Treasury, or of the Secrerary ofthe 1. It extends to all the seven Executive War Department, or of any officer of either of the said Departments whose appointment is not in the Departments instead of being confined to the head thereof, whereby they cannotlperform the duties three which were in existence in 1792. of theirsaid respective offices, it shall be lawful for It appli the President of the United States, in case he shall think:it necessary, to authorize any person or persons nation. at his discretion, to perform the duties of the said 8. It authorizes the employment in tempos respective offices until a successor be appointed. or until such absence or inability by sickness shall rar service in a Department of officers of ceae."" —l.Stat., 281. another Department, instead of" any person'" This act, it will be seen, was confined to. the as in the former laws; and lastly, it borrows Departments of State, of the Treasury, and of from the actof 1795 the limitation of six months War, which were the only ones organized when upon the term of special service in each oase the act was passed. It will be seen, also, that provided for. the act applies only to cases of vacancy occa- Now the question is presented-did this act sioned by death, and to cases of disability of'1863 repeal by necessary implication the occasioned by sickness or absence from the vacancy act of 1795? Itprovides for the cases seat of Government. of disability covered by the act of 1792, and for The act of 13th of February, 1795, in its cases of vacancy occasioned by death covered first section, makes further provision, as fol- by the same act. But it provides further for lows: cases of vacancy occasioned by resignation " In case of vacncy in the office of Secretary of which were not within the act of 1792, but would State, Secretary of the Treasury, or of the Secretary appear to be within the act of 1795. of the Department of War, or of any officer of either It is clear that when a later statute entirely of the said Departments, whose appointment is not le th in the head thereof, whereby they cannot perform upplies the place of a former one it works its the duties of their said respective offices, it shall be repeal. And so where a later statute contralawful for the President of the United States, in case dicts a former one, or is plainly inconsistent he shall think it necessary, to authorize any personw falls. In each se or persons, at his discretion, to perform the duties of said respective offices until a successor be ap- supposed,'there is an implied or constructive pointed or such vacancy be filled: Provided, That no repeal of the old law. one vacancy shall be supplied in manner aforesaid nd when the place of an old law is supplied for a longer term than six months." And when the place of an old aw isupplied This act has no application to cases of tem- in ponsisart by a new one, or is ien part plainly )orary disability, but to cases of vacancy alone t akes plac e as to suc h unnecessary or inconbut as to such it is comprehensive and includes takes place as to such unnecessary or inconthose of every description. It is, however, sistent parts of the old law. like that of 1792, confined to the Departments the act of 1863 makes provision only for vacancies caused by death or resignation, Next follows the act of 20th of February, whereas the act of 1795 extended to all cases Next'follows the act of 20th of February, of vacancy, including those caused by removal 1863. (12 Statutes-at-Large, 65.)_ its passage or expiration of term of service. As there is was recommended by President Lincoln in a special message dated 2d of January, 1863, no express repeal of the old law, and as the which reads as fo'llows:.new one does not fillly supply its place, the old law must remain partly in force and still apply " I submit to Congress the expediency of extending to cases of vacancy cansed by removal or to other Departments of the Government the author- to cases of vacancy caused by removal or ity conferred on the President by the eighth section expiration of term. of the act of the 8th May, 1792, to appoint a person to And this view is strengthened by considertemporarily discharge the duties of Secretary of State, the fact that the act of 1863 was asked for Secretary of the Treasury, and Secretary of War, in ing case of the death, absence from the seat of Govern- by Mr. Lincoln for no purpose -of repealing ment, or sickness, of either of these officers." former laws, but to extend the disabilities act In pursuance of this recommendation the act of 1792 to all the Executive Departments. was passed in the following words: It may be insisted upon further, that whereas "In case of the death, resignation, absence from the act of 1795 did not repeal the act of 1792, the seat of Government, or sickness of the head of that of 1863 cannot be held to repeal the 1060 act of 1795. Now, the act of 1792 was often liberally, so'as to secure fully their object. acted upon in the practice of the Government These and other rules sanctioned by the wisdom down to recent times, and it was referred to by of ages fully protect the statute of 1795 against Mr. Lincoln as a subsisting law in his corn- the argument of the prosecution, and give to munication to Congress of 2d January, 1863. it a complete sanction as an existing law. AsIf, then, the act of 1795 did riot repeal the suming that that act continued in force as to act of 1792 because it provided for a case of vacancies occasioned by removal, it justified, vacancy by death, and thus far supplied the beyond all question, the letter of authority to former law, the act of 1863 cannot be held to General Thomas of 21st February, authorizing repeal the act of 1795 because it provides for him to perform the duties of Secretary of War cases of vacancy by death and by resignation. ad interim, and the second, third, and eighth In each case the elder statute continues in articles of impeachment are wholly without force except so far as its place is filled by the support. younger. It has been said that the tenure-of-office act The argument so far proceeds upon the repeals all prior laws which authorized ad ground that the act of 1863 is to some extent interim service in the Executive Departments, inconsistent with the former laws and partially but the fact is not so. The tenure-of-office displaces them. But is it clear that it is in- act has no repealing clause, and its eighth secconsistent with those laws? The former laws tion does most clearly recognize the validity authorize the President to designate " any of ad interim selections for executive offices. person" to discharge the duties of an office ad That section is as follows: interim in case of vacancy therein or disabil- " That whenever the President shall, without the ity of the incumbent. Is it certain that these advice and consent of the Senate, designate, authorwords, "any person," should be held to in- ize, or employ any person to perform the duties of any office, he shall forthwith notify the Secretary of elude any officer of the Government without the Treasury thereof; and it shall be the duty of the regard to the character of his office or the Secretary of the Treasury thereupon to communiduties and responsibilities charged upon him cate such notice to all the proper accounting and disbursing officers of his Department." bylaw? An officer under bond, if taken away from his proper office and appropriate duties, Passing now from the general question of could not be held responsible upon his bond ad interim legislation, it remains to inquire for any default caused thereby (nor his sure- whether the letter of authority to General ties either) without gross injustice; and many Thomas was forbidden by any provision of'the other difficulties might be suggested upon such tenure-of-office act. The sixth section of that construction of the law. At all events, one act provides: would think that a very clear, specific, express "That every removal, appointment, or employprovision by statute would be necessary to with- ment, made, had, or exercised contrary to the pr-ovisdraw an officer from the duties of an office to ions of this act, and the making, signing, sealing, countersigning, or issuing of any commission or letter which he had been assigned by due appoint- of authority, for or in respect to any such appointment under the Constitution (upon senatorial ment or employment, shall be deemed, and are hereby confirmation) and assign him to duty in an- declaredto be, high misdemeanors,"&c. other office. The act of 1863 provides spe- Now, an act done which is declared to be a cifically that this may be done, and thus gave high misdemeanor by this section must be one a legal sanction to a practice which had ob- which is "contrary to the provisions" of this tained to some extent before its passage. But act. And it is evident that it must contravene it is very doubtful whether the disability and some provision of the first, second, or third secvacancy acts of 1792 and 1795 conferred this tions, because those alone relate to the subjectpower of transferring officers from one offi.e matter of removal and appointment. But it to another upon the President. If they did has been shown already that Mr. Stanton's case not, the act of 1863 may be held as addi- is not within the first section of the act, and tional to and not restrictive of the provisions that that section could not be violated by his of the former laws, and all question of incon- removal and the designation of Thomas to sistency between them will disappear. The supply his place ad interim. Nor have we in former laws may then be held to stand good hand a case of suspension or temporary apas to all cases arising under them, and to pointment or employment, in recess, under the authorize ad interim authority to "any per- second section, nor the case of an office in sons" not heads of or presidential appointees abeyance under'the third section. in the Departments and charged with other The sixth section, therefore, can find no produties by law. vision in any other part of the law to which it The rules for the construction csf statutes can attach itself for the purpose of charging a cited on behalf of the defense on this trial misdemeanor upon the President of the United tell very strongly against the argument for the States. In other words, the letter of authority implied repeal of the act of 1795 by the act of to General Thomas not being "contrary to the 1863. Repeals by implication are not favored provisions" of the tenure-of-office act, the by the law; where a later statute is not plainly sixth section cannot declare the act of issuing inconsistent with a former one, both shall it to be a high misdemeanor, punishable by stand; remedial statute shall be construed indictment or impeachment. 1061 I shall pass the charge found in these arti- with intent to violate the tenure-of-office act, cles, that the letter of authority to Thomas whereby he did commit a high misdemeanor was issued during a session of the Senate and in office. without senaitorial consent, with the single The charges in the fourth and sixth articles, remark that it is made upon a misconception of conspiracy to use intimidation, threats, and of the nature of on ad interim order. Such force to prevent Mr. Stanton from holding his order is not an appointment, (within the mean- office, and to obtain possession of the public ing of the Constitution,) nor is it subject to property in the War Department, contrary to senatorial advice and consent. the conspiracy act of 1861, are not sustained But the question remains: suppose the act but disproved by the evidence upon the trial; of 1863 did completely repeal the act of 1795, and it is, therefore, unnecessary to subject relating to vacancies in executive offices, and them to particular examination. that there is no law which expressly authorizes The charges in the fifth and seventh articles, the letter of authority to General Thomas, of conspiracy to violate and to prevent the then was the issuing of that letter a high mis- execution of the tenure-of-office act, as well demeanor in office? Unquestionably it was as those in the fourth and sixth articles, are not, unless made such by the sixth section of founded upon the order for the removal of Mr. the tenure-of-office act, which has just been Stanton and the letter of authority to General disproved. In fact the issuing of such a letter Thomas of 21st of February, 1868, and have by the President, even without statutory au- no support whatever if those papers were lawthority, when required by the interests of the fully issue&. public service, may be not innocent merely, It is difficult to see how the simple issuing but laudable. The order issued by President of an official executive order or letter under Lincoln to General Skinner, to act as Post- a claim of right, and its acceptance or peacemaster General ad interim, although without ful action under it by a subordinate officer, can authority of law, was not a criminal offense. constitute a conspiracy in point of law. The It was a justifiable order to meet an emer- confederating together-the mutual agreement gency in the public service. A large number or plot between the parties-which is an essenof similar orders for ad interim service in the tial element of conspiracy, would in such case several Executive Departments, wholly uuau- seem to be wanting. But, certainly, if the thorized by any statute, have been put in evi- order and letter of authority were issued to dence on the present trial. They were made accomplish a lawful purpose, there is an end by President Jackson and by his successors in of all the conspiracy articles, and of all the the presidential office frequently and without other articles down to and including the eighth. question. The allegations about intimidation, threats, and THE CONSPIRACY ARTICLES. force in the fourth and sixth articles being The fourth, fifth, sixth, and seventh articles unproved or disproved, all the first eight artiof impeachment charge, in various forms, a cles rest upon the assertion that Mr. Stanton's conspiracy between the President and General case is within the tenure-of-office act, and his Thomas on 21st of February, 1868, and are, tenure defined and protected by it. If that when condensed and freed from verbiage, in assertion be refuted, all those eight articles, substance as follows: unsupported, fall into ruin. Article IV. That the President conspired THE EMORY ARTICLE. with Thomas and others unknown with intent by intimidation and threats unlawfully to pre- But few words are necessary upon the ninth vent Mr. Stanton from holding his office as article, which recites the conversation between Secretary of War, thus violating the Constitu- the President and General Emory on the 22d tion and the conspiracy act of July 31, 1861, February, 1868, in which the President exand thereby committing a high crime in office. pressed the opinion that the second section of Article V. That he conspired with Thomas the Army appropriation act of March 2, 1867, and otters to prevent the execution of the which required that all orders and instructions tenure-of-office act, and, in pursuance of that relating to military operations issued by the conspiracy, unlawfully attempted to prevent President or Secretary of War should be issued Mr. Stanton from holding his office of Secre- through the General of the Army, &c., was tary of War, thereby committing a high mis- unconstitutional. The article charges the demeanor in office. President vWith an intent to induce General Article VI. That he conspired with Thomas Emory to violate said act, and to receive and to seize by force the public property in the obey his orders in contravention thereof, with Department of War, whereof Stanton had cus- the further intent thereby to enable him (the tody, contrary to the conspiracy act of 1861, President) to prevent the execution of the and with intent to violate the tenure-of-office tenure-of-office act, and to prevent Mr. Stanton act, whereby he did commit a high crime in from holding the office of Secretary of War. office. The testimony, instead of sustaining these Article VII. That he conspired with Thomas averments of intent, repels them, and it exunlawfully to seize the public property in the plains in a satisfactory manner how the interDepartment of War, in Stanton's custody, view between the President and General 1062 Emory was brought about, and how the con- divisible cannot stand separately as charges of versation concerning the Army appropriation criminal conduct or intention; and considered act arose. It is not necessary to consider the as a whole it eludes the understanding and baflegal sufficiency of this article in form or sub- fles conjecture. While we cannot suppose it Stance as an article of impeachment when its to have been drawn in. acorn of the Senates, material averiments are disproved. before whom it was to be placed as an article THE BUTLEX -ARTrCLE. of impeachment, it would! be true to the paterThe tenth article charges the utterance of nity of a scornful spirit and a reckless brain if Certain public speeches by the President as a such paternity were assigned to it. tainh misdemeanor in offiby the President as a The matter of this article, so far as subhid`ivered at the Executive faision, in Wash- stance can- be detected in it, is drawn mostly delington on thie 18ec'lth ve day an~of A s 1 from the other articles; but that matter is ington, on the 18th day of August, 1866; the rranged,manipulated,andcombinedtogether aeond at Clevirdeland, on the - d Sepftember; in a manner to vex the student and confound and the third at St. Louis, on the 8th of Sep- the judge; and the new particulars of charge teiberi of the same year; and exrtracts froim or aggravation (whichever they may be) conthem are set forth in the specifications of this or agravation whichever they may be) ton tained in the article are hinted at rather than Article. They'are charged to have been indecent expressed, and we vainl explore the context thnd unbeoming, and made with intent to bring to discover distinctly their antecedents or the the Congress of the United States into con- lusonsto wh tempt and disgrace, and to excite the resenitment of the people against it and ~against the As no abstract can do justice to this article ars byg iti'duly ena~cted. it must be given in extenso. It is as follows: The sufficient answer to this article is, that ART. 11. That said AndrewJohnson, President o it charges n-o o~ffens-e against the laws of the the United States, unmindful of the high duties of his office, and of his oath of office and in disregard United States, and that it calls in question that of the Constitution and laws of the United States, privilege of freedom of speech which is the did, heretofore, to wit, on the 18th day of August, Ai common birthright of the American people. D. 1866, at the city of Washington, and the )istrict of Columbia, by public speech, declare and affirm, ia The President in those speeches denounced substance, that the Thirty-Ninth Congress of theUnithe Thirty-Ninth Congress for its course on the ted States was not a Congress of the United States subject of reconstruction, and inmputed to somne authorized by the Constitution to exercise legislative power under the same, but, on the contrary, of its members responsibility for the New was a Congress of only part of the States, thereby Orleans massacre. He said also that it was a denying, and intending to deny, that the legislation Congress of but a part of the States; a remark of said Congress was valid or obligatory upon him, the said Andrew Johnson, except in so far as he saw fit which was perfectly true, and did not neces- to approve the same, and also thereby denying, and earily import a denial of its constitutional intending to deny, the power of the saidThirty-Ninth powers. But neithelr these nor any other Congress to propose amendments to the Constitution powers. But eithe these nor any other of the United States; and, in pursuance of said decobservations made by him Can be brought laration, the said Andrew Johnson, President of the within the prohibitions of any law of the Uni- United States afterwards, to wit, on the 21st day of ted States. and their utterance was the exer- February, A.. 1868, atthe city of Washington, in the I~~~~~~~ ~~District of Columbia, did, unlawfully, and in disrecise of a right which eannot be questioned gard of the requirement of the Constitution, that he either in the ordinary' courts of law or in a should take care that the laws be faithfully executed court of impeachment. attempt to prevent the execution of an act entitled -o~ourt of impeachment. 6~"An actregulating thetenure of certain civil offices." The case of Judge Humphreys is not a pre- passed March 2, 1867, by unlawfully devising and cedent to sustain this article. He was im- contriving, and attempting to devise and contrive peached, to be sure, for a speech made, but the means by which he should prevent Edwin M. Stan' ton from forthwith resuming the functions of the speech was treasonable in character and effect, office of Secretary for the Department of War, notfor it incited to armed resistance against the withstanding the refusal of the Senate to concur in United States, and gave to the public enemies the suspension theretofore made by said Andrew "Id and comfort." Its utterance was an act Johnson of said Edwin M. Stanton from said office aid and comfort." Its utterance was an act of Secretary for the Department of War; and, also, of treason which, being committed by a civil by further unlawfully devising and contriving, and pofficer of the United States, rendered him attempting to devise and contrive means, then and officer of the United States, rendered him there, to prevent the execution of an act entitled liable to impeachment and removal from office. "An act making appropriations for the surport of THE STEVENS ARTICLE. the Army for the fiscal year ending June 30,1868, and for other purposes," approved March 2, 1867; and, The eleventh article is nondescript, and a also, to prevent the execution of an act entitled "An curiosity in pleading. As an article on which act to provide for the more efficient.government of to convict, its strength consists in its weak- the rebel States," passed March 2 1867, whereby the said Andrew Johnson, Presidentof the United States, ness-in the obscurity of its charges and the did, then, to wit, on the 21st day of February, A. D. intricacy of its form. As an afterthought of 1868, at the city of Washington, commit, and was the House of Representatives, or rather as a guiltyof, ahighmisdemeanor in office. reluctant concession by the House to the per- No one having been known to assert that he tinacity of its author, it is not merely supple- understood fully this article, it may be thought mentary to the other articles in position, but hazardous to attempt its exposition. But the bears upon its face the evidence of its distinct difficulty of the task will doubtless be taken and peculiar origin. Considered in parts it into due account by all generous persons in is nothing-the propositions into which it is judging its performance. 1063 The inducement contained in the first three Whether his purpose was good or bad, it did lines and the conclusion are taken from the not lead to an actual offense; and if his intenformal parts of prior articles. tion had been carried out in an act, what would The clause which sets forth the speech of that act have been? Why, obviously an order the 18th of August, 1866, and the intent of that for the removal of Stanton before he had actspeech, may be considered as constituting the ually resumed his office. But that would have body of the charge, as the ground of the charge, raised precisely the same question which was as a part of the charge, or as the- introduction raised by the order of removal of 21st Feoto the charge. Whichever it may be, it is bor- ruary, which we are to determine under the rowed from the tenth article, and, if condemned first article of impeachment. An order rethere, must fall here as a distinct charge or moving Mr. Stanton would have borne the element of accusation. same legal character whether issued to preNext, it is said that the President, " in pur- vent him from resuming his office or to turn suance" of said speech of 18th August, did, him out after he had resumed it. on 21st February, 1868, "attempt to prevent The next clauses, and the concluding clauses the execution" of the tenure-of office act by of accusation in this article, aver a devising "devising and contriving, and attempting to and contriving, &c., to prevent the execution devise and contrive, means" to prevent Stan- of the Army appropriation act, (a repetition of ton from resuming his office of Secretary of the charge in the ninth article, and unproved,) War, &c. and also to prevent the execution of the reconIs this merely a specification under the prior struction act of March 2, 1867, (also unproved.) charge, or a continuation of that charge, or a Whether these clauses relate to the same antesubstantive and distinct or separable accusa- cedents or not, and whether they are indepention? If it be the first or second of these it dent of each other or not, we need not inquire. will share the fate of the prior charge in a vote Nor is it necessary to enlarge upon the absurdof guilty or not guilty upon the whole article. ity of holding that a contriving to prevent the And the words in pursuance, with which this execution of the Army appropriation act or the division begins, may be thought to so connect reconstruction act will establish or tend to esit with the prior matter as to render this result tablish an attempt to prevent the execution of certain. If, however, this division be a distinct the tenure-of-office act; for, as these averments or separable accusation we are to examine it are not proved, their relations to prior parts of further. In that view it must aver the substance the article and to each other are unimportant. of a criminal charge. But this it does not do. It avers only certain action of the President's THE TENURE-OF-OFFICE ACT. mind-no overt act, no conduct of his, good There are several questions relating to the or bad. He "devised and contrived, and constitutionality and construction of the actof attempted to devise and contrive, means" to 2d March, 1867, (" to regulate the tenure of keep Mr. Stanton out of office. But he used certain civil offices,") which remain to be no means, and he took no steps to create or examined. They do not arise upon the conprovide them. It is true he is charged with an sideration of any one article alone, but upon the " attempt to prevent the execution of the ten- consideration of nearly all of them, and can ure-of-office act," but only by the " devising be most conveniently presented in this place and contriving, and attempting to devise and after the articles have been separately examcontrive, means" to keep Mr. Stanton out of ined. office. 1. Wasthetenure-of-officeact constitutional In brief, this accusation is that the President in its application to heads of Executive Departcogitated the means to keep Mr. Stanton out of ments who were in office at the time of its pasoffice, and thereby violated the tenure-of-office sage? This question assumes, for the purposes act I It is too plain for question that no crim- of argument, that they were brought within the inal act is charged here, nor any fact set forth act by its terms and that a new tenure was upon which a judicial investigation can be had fixed for them by it. I have no hesitation in or judgment be pronounced. But it has been answering this question in the negative, and in supposed and asserted that this part of the holding that it was not competent for Congress eleventh article refers to a desire and intention to assign to Mr. Stanton an office of more of the President, not on 21st of February, but extended duration or greater security of tenure in January before, to prevent Mr. Stanton from than that which he held under his commission resuming his office. Be it so. If we are to by virtue of presidential appointment. This build up a proper charge with a proper date seems to me too clear for doubt or denial when from materials obtained outside of the articles, we consider the character of the office and the and proceed to try the President upon it, to plain words of the Constitution. what conclusion may we arrive? Why, that The Secretary of War is the head of an the President had an intention to keep Stanton executive Department; his office as, such head out, and devised a plan or means for that pur- is expressly mentioned in the Constitution, and pose, but did not use those means or put that his appointment must be by the President by plan into execution. Here was no breach of and with the advice and consent of the Senthe tenure-of-office act, or of any other law. ate. As he is not an inferior officer, within 1064 the meaning of the appointment clause of the tion upon constitutional grounds is made, or Constitution, Congress cannot provide another can be made, to some parts of the tenure-ofmode of appointing him, much less assume the office act. The sixth section, for instance, is power of appointing him to themselves. It entirely unexceptionable, and was very propfollows that they cannot give to a Secretary a erly acted upon by the President in giving right to hold his office beyond the term for notice to the Secretary of the Treasury of Mr. which he was appointed, or to hold it freed Stanton's suspension in August, 1867. And so from a condition upon which the appointment the second section of the act, in authorizing the was made. suspension of officers between sessions of' the Let this proposition be illustrated by exam- Senate, violates no provision of the Constituples and its truth and soundness will more tion, and denies no just claim of executive clearly appear.' Take the case of a future Secre- power. It was quite competent for the Presitary, holding, under this tenure-of-office act, for dent to suspend Mr. Stanton under that section, a term of four years and one month by virtue notwithstanding his denial of the validity of the of a presidential appointment to which sena- first section, and if he had done so in express torial advice and consent has been given. Can terms he would not have exposed himself to a Congress by law extend his term? Can they charge of inconsistency. It is true he puts his by statute authorize him to hold his office for suspension of Mr. Stanton upon the executive eight or tell years instead of four? If so, the power to remove him under the Constitution, officer will hold under the statute during all holding that the power to remove includes the the time added to his term in contempt of the power to suspend, but still the act of suspenconstitutional power of appointment. Again, sion fell within the letter of the law and was in suppose the case of a Secretary appointed and all respects conformed to it. While it was from commissioned to hold during the pleasure of the President's point of view a good exercise the President. CaIn Congress by statute author- of power under the Constitution, it was also ize him to hold during good behavior, thus undeniably a good exercise of power within the making his office one for life (unless removed terms of the law; and if placed upon the latter for legal misconduct) instead of one at the ground alone it would not be an admission of pleasure of the appointing power? In this case, the constitutionality of the whole law, but only also, thle new right is conferred in derogation of so much of the second section as authorizes of the power held by the President and Senate suspensions from office. It is only necessary under the Constitution. And in the precise to add here, by way of explanation, that while case which we have before us, Mr. Stanton Mr. Stanton's case is believed not to come holding under his appointment and commission within the operation of the first section, the at the pleasure of the President, can Congress power to suspend him is clearly conferred by by statute give him a right to hold his office the second. for a term of years against the President's 3. I hold that the violation of law by a Preswill? If they can do this they can also here- ident which will constitute an impeachable high after, at their pleasure, assign him an additional crime or misdemeanor must be a willful and term of' years or give him a life estate in his intentional violation, and in its nature calcu-. office. In either case what have we but a new lated to produce serious injury to the public appointment to office by Conigress? service.' Mistake and error of judgment merely By the express words of the Constitution the are not to be punished by impeachment, but principal officers of the Government (including, only grievous and willful crime which endanI think, the heads of the Executive Depart- gers the public safety or welfare. Therefore, ments) must be appointed by the President by if there was an honest misconstruction of the and with the advice and consent of the Senate, tenure-of-office act by the President, in holdand the appointment of inferior officers may be ing that Mr. Stanton's case was not within it, vested by law in the President alone, in the he cannot be convicted. The removal of Mr. courts of law, or in the heads of Departments. Stanton was not an act calculated to injure the Each House of Congress may choose their own public service or shock the moral sense of the officers, but in no case whatever can Congress people. And the construction of the tenureappoint an officer of the United States. Being of'office act adopted by the President, whether clearly incapable of making an appointment, right or wrong, was not an unreasonable or they cannot change one afterit is made, giving rash one, but was precisely that construction it a character and duration which were not which had been assigned to it in the Senate at within the contemplation or intention of the the time of its passage, and which appears to appointing power when the office was conferred. be most consistent with its terms. I conclude, then, that if the tenure-of-office 4. Assuming that the first section of the act be construed to place the cases of Mr. tenure-of-office act was one of doubtful constiStanton and of the other Lincoln Secretartes tutionality and construction, I hold that the within a new tenure-of-office rule, it is so far President was fully justified in challenging its forth unconstitutional and void, and can afford application to his Secretaries, and in taking no support to the first eight and to the eleventh necessary steps to have its validity and conarticles of impeachment. struction determined in the courts of law. But 2. It is important to observe that no objec- his position as to his right and duty in this 1060 respect has been grossly misrepresented and, founded. The general question of presidenperhaps, greatly misunderstood. Itwas stated, tial power under the Constitution to remove however, by Judge Curtis, in his opening for officers of the United States from office at disthe defense, with a clearness and completeness cretion, has been but slightly noticed, and no which leave nothing to be desired, and remove attention has been bestowed upon those topics all excuse for misconception or complaint. He of declamation and invective which have been said: intruded into the trial. The constitutional "I am not intending to advance upon or occupy question was discussed by me at length when any extreme ground, because no such ground has the tenure-of-office act was passed, and I been advanced upon or occupied by the President do not find it necessary to repeat the arguof the United States. He is to take care that the laws be faithfully executed. When a law has been ment then made by me in order to explain or assed through the forms of legislation, either with vindicate my judgment upon these articles of his assent or without his assent, it is his duty to see. A that that law is faithfully executed so long as nothing is required of him but ministerial action. He is not relevant matters introduced into the trial, and to erect himself into a judicial court and decide that particularly into the argument, I put them the law is unconstitutional, and that therefore he will whollyide. This case is to be tried upon the notexecuteit." * * "He asserts no whollyaside. This case is to be tried upon the such power. Hehas no such idea of his duty. His idea laws which apply to it, and upon the facts of his duty is, that if a law is passed over his veto which are duly proved. The issue joined is which he believes to be unconstitutional, and that not plilujda, an-ti.pns law affects the interests of third persons, those whose political but judicial, and it is upon speinterests are affected must take care of them, vindi- cific articles of accusation. They are to be cate them, raise questions concerning them if they decided honestly and firmly, and nothing beside should be so advised. If such a law affects the gen- them is to pass into judgment. eral and public interests of the people, the people must take care at the polls that it is remedied in a In my opinion the acquittal of the President constitutional way. upon all the charges preferred against him is "But when, Senators, a question arises whether a authorized by law and demanded by justice. particular law has cut off a power confided to him by the people through the Constitution, and he alone He has committed no high crime or misdecan raise the question, and he alone can cause a meanor. He has trampled upon no man's judicial decision to come between the two branches right; he has violated no public duty. He has of the Government to say which of them is right, and after due deliberation with the advice of those who kept his oath of office unbroken, and has sought are his proper advisers, he settles down firmly upon in a lawful manner to vindicate and preserve the opinion that such is the character of the law, it the high constitutional powers confided to him remains to be decided by you whether there is any violation of hisduty when he takes theneedfulsteps by the people. He cannot and ought not to to raise that question and have it peacefully de- be punished for his opinions upon public meascided."-YPoge 382. ures and public policy; and, in contemplation And again he said, (page 391:) of law, his conduct in all the matters brought " So long as it is a question of administrative duty before us for review has been irreproachable. merely he [the President] holds that he is bound by What he has done indicates not criminal inthe law." tent but patriotic purpose; and besides, that It is admitted on all hands that a private true courage, sustained and invincible, which *citizen may proceed in a peaceful manner to re- grapples with difficulty and defies danger. sist any law which violates his personal rights under the Constitution, and may bring such law before the courts forjudicial condemnation. OPINION And even if he should be mistaken a$ to his OF right, and as to the invalidity of the law, his error-will not be imputed to him as a crime. HON JOHN. ENDERSON. And so, where a question arises as to the constitutional right of the President to change hisconstitutional adviersthemenhoon On the 21st day of February last the Presihis constitutional advisers-the men who con- dent of the United States issued an order stitute his political household, and for whose directed to Edwin M. Stanton, Secretary of acts he is responsible to the people and to the War, declaring that Stanton thereby was re law-as against a statute which invades or SWar, declaring that Stanton thereby was relaw —as agailnst a statute which invades or moved from his said office, and his functions denies to him such right, can it be doubted that moved from his said ce, and his functions he may challenge the statute.and carry it into as Secretary would cease on receipt of the the courts of law for judgment? And where On the same day he issued and delivered the statute is plainly in contempt of the past to Lorenzo Thomas, Adjutant General of the practice of the Government, and of the very Army, a letter of authority to act as Secretary highest authorities which can be cited upon of Waradinterim, in placeofStantonremoved; a question of constitutional law, and no one Stanton being directed to transfer to Thomas but the President can bring it to the test of judicial examination and judgment, is not his all therecords, books, papers and other propduty to challenge it asincontestible as his right? erty of two acts of the President, varied only These two acts of the President, varied only CONCLUSION. in the form of the charges, constitute the chief I have now concluded my examination of the offenses contained in the first eight articles of several articles of impeachment and of the act impeachment. It is true that the fourth, fifth, of Congress upon which most of them are sixth, and seventh articles charge an unlawful 1066 conspiracy between the President and Thomas to execute the law, there is no express remedy to put Stanton out and get Thomas in, and named in the Constitution except the impeachsome of these articles charge that the President ment process. The impeachment clause, it was designed to carry out this conspiracy by force at once seen, was wholly inefficient as a remedy. and violence. The offices of Government would, in the natuWaiving for the present all questions touch- ral course of things, become so numerous as to *ing the technical sufficiency of the charges, as occupy the entire time of Congress in trying well as the weight and sufficiency of the evi- the delinquencies of incumbents. And unless dence adduced to support them, I will first the offending officer could be removed by some inquire whether the President could legally do other means, the Government might be brought what he intended to do by issuing the orders. into the greatest possible danger if not entirely In my view of the law, the first and only overthrown by the treason and corruption of really important question to be settled is this: high officials, during the recess of Congress or could the President lawfully remove Mr. Stan- even during its session, but before an effective ton as Secretary of War on the 21st day of remedy could be applied. February last? I am aware that the other ques- Therefore it is that this question of removals tion has been discussed at great length, and from office challenged such early attention and not without much learning, to wit: could the was so ably and so exhaustively examined by, President, even admitting his power to remove the First Congress which met under the ConStanton, make an ad interim designation to fill stitution. Many of the men who assisted in the vacancy thus created, until an appoint- framing the Constitution were in this Congress ment could be regularly made? and participated in the debate. The first I think that to answer the former propo- offices created by this Congress were the Secresition furnishes a full answer to the latter. If taryships of Foreign Affairs, of War, and the the President could not remove Stanton, then Treasury; and the questions debated were the there was no vacancy to be filled by the desig- power of the President under the Constitution nation of Thomas. If he could legally remove to remove these officers at his will and pleasure, Stanton, a vacancy was created which under and the necessity and propriety of so declaring the laws as they existed on that day could be by law. The House of Representatives, under filled by this ad interim appointment. the lead of Mr. Madison, by a large majority, As the two questions are so intimately con- and the Senate, by the casting vote of John nected, I may examine them together, and I Adams, decided that the power of removal proceed to show that the President possessed existed in the President by virtue of the Conthe undoubted power, under the laws of Con- stitution itself. All agreed that officers must gress, to remove Mr. Stanton on the day he and should be removable in some way other attempted to do so byissuing the order. This than by impeachment. Some of the members is the opinion that I have entertained at all said the power was in the President alone; times, and which I repeatedly avowed, both others contended it rested in the President and before and after the passage of the tenure-of- Senate, precisely as did the power of appointoffice bil, ment. The Constitution "vests the executive I am aware that some persons now insist power " in the President. He is sworn faith- that the result of the votes establishing these fully to " execute the office of President," and Departments, in the First Congress, was not that he will " preserve, protect, and defend the such as to indicate a constitutional construcConstitution of the United States."' A part of tion in favor of the presidential power of rethe executive power expressly placed in his moval. I think otherwise. I am satisfied that hands is that " he shall take care that the laws a careful examination of the debate and the be faithfully executed." The Constitution is conclusion arrived at by the votes, will consilent as to the power of removing officers. It vince any unprejudiced mind that the First provides for their appointment by nomination Congress clearly and explicitly conceded this by the President with the advice and consent power to the President as a constitutional of the Senate. But if the Senate should not be prerogative which could not be limited or in session when a vacancy shall " happen," it controlled by law. Whatever we may urge is provided that the President may'-' fill up against this conclusion as a correct exposition such vacancy- of the Constitution, we cannot well doubt that " By granting a commission, which shall expire at such was the conclusion arrived at. the end of their next session; but the Congress may Judge Storyin his Commentaries on the by law vest the appointment of such inferior officers as they think proper in the President alone, in the Constitution, Chancellor Kent in his work on courts of law, or in the heads of Departments." American Law, the Supreme Court ofthe United It will be observed that ample provision is States, and the most distinguished of our statesmade for the filling of offices, but no express men, at all periods from that dayto this, admit provision is made for vacating them. It- is that the decision of the First Congress was such made the duty of the President to'I execute " as I have stated it. Many of them think the the laws, and he can only do it through the conclusion was wrong, but the fact itself is a officers provided by law for that purpose. If part of the history of the country. But whether they become corrupt or incompetent or refuse this First Congress was right or wrong in its 1067 construction of the Constitution amounts to terms that he may remove the officer at any but little as I view this subject, except as it may time, and the acts designate who shall succeed tend to interpret and explain its legislation. them in case of removal or other vacancy. Let it be kept in mind, while we refer to these In this state of the law it will be observed laws, that they were passed by men who believed that no possible difference can exist in the sucthat the power of removing all appointed offi- cession, whether the removal or other vacancy cers, except judges of the Supreme Court, should occur during the recess or session of who held by fixed tenure, was vested in the Congress. In the cases of the State and War President by the Constitution and could not be Departments, the chief clerk, and in that of the withdrawn by law. The power of appointing Treasury Department, the Assistant Secretary, their successors was in the President and Sen- must succeed by virtue of the law.ate, and the exercise of this power, they thought, And under such circumstances why should could be regulated by law. Believing that they the power of removal be confined to the recess could not take away the power of removal, if of the Senate and be dormant during the sesthey desired, they were yet further clearly of sion? No matter when the removal is made the opinion, and so expressed themselves, that the same person takes the office. If made in Cabinet officers should, and must necessarily, recess he will hold on during the succeeding be removable at the will of the President, he session, unless the President should see fit to being responsible for their acts. make a new nomination, and the Senate should On the 9th of August, 1789, the act was confirm. If made during the session, the sucpassed creating the War Department. The first cessor fixed by law holds during that session section of the act declares that the Secretary- and through the coming recess, if the President "Shall perform and execute such duties as shall so wills. Hence it seems clear that so far, at from time to time be enjoined on or intrusted to him least, as these Cabinet officers are concerned, by the President of the United States, agreeably to there is no foundation for the pretense that the Constitution relative to military commissions or to the land and naval forces, ships or warlike stores the President may remove, as General Jackof theUnited States, orto such other matters respect- son did in the case of Duane, and as other ing military or naval affairs as the President of the Presidents have done without question, during United States shall assign to said Department," &c. the recess, but cannot remove during the session, And, further, that the Secretary — There is no possible reason for the distinction, "Shall conduct the business of the said Department and in the absence of any such reason I take it insuch manner as the President of the United States the distinction itself does not exist Let it shall from time to time order and instruct." The second section provides for a chief clerk be remembered that the law was made by men who admitted that the President could remove to the Secretary, who- by virtue of the Constitution and independ. "Whenever the said principal officer shall be re-b of the Cntuioad idpn Anoved from office by the President of the Unitd ently of the law. They so woded the law as States, or in any other case of vacancy, shall. during merely to conform it to the Constitution, as such vacancy, have the charge and custody of all they understood it. If the power was a conrecords, books, and papers of the Department." stitutional power, it was surely as vigorous and' On the 27th of July preceding, the Depart- effective during the session as in the recess of ment of Foreign Affairs had been established the Senate, and the law being designed, no with precisely similar provisions, and on the doubt, to be as broad as they held the Consti2d of September following the Treasury De- tution itself to be, I cannot suppose it was partment was established with the same pro- intended to confine removals to time or limit visions, except that if the Secretary should be them by' circumstances. To the President is removed by the President, or a vacancy other- given the unlimited power to remove. If he wise occur, the Assistant Secretary, who was does remove, whenever it occurs the law has really clerk, should have charge during the fixed the successor. vacancy. Now, whether I look to the words In this state of the law I will admit that if of these acts, to the contemporaneous history the President had removed one of these Secreof their passage, to the subsequent construction taries during the session of the Senate, and given them by our statesmen and jurists, or to had nominated a successor to the Senate, this the action of the Government under them, I successor could not have entered on his duties am forced to the conclusion that whatever may until he had been confirmed. The chief clerk be the President's constitutional power in the or Assistant Secretary, as the case might be, premises, the power to remove these officers would have held the office till confirmation. absolutely.is given to the President by the laws Thus stood the law on the subject of these themselves, and was so intended at the time. three Departments until May 8, 1792. The The Departments are called Executive Depart- eighth section of the act of that date changed ments. They are required to conduct their the rule for these temporary successions in affairs as the "President shall order or in- certain cases, and extended the same rule to struct," and he is authorized to assign them other officers in the Departments beside the duties not specified in the acts, which duties heads thereof. Under the former acts, however shall be discharged " in the manner directed the vacancy might be occasioned, whether by by him." He is clearly responsible for their removal or otherwise, the person to take the conduct, and each one of the acts provides in office temporarily was fixed, and must be the 1068 clerk or Assistant Secretary. But it was now before the Senate adjourned, it is quite clear provided-. that he entertained no doubt of his power to "That in case of death, absence from the seat of remove Mr. Pickering during the session of Government, or sickness of these Secretaries, it shall that body. He had asked Pickering to resign be lawful for the President of the United States, in in language very similar to that employed by case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the Mr. Johnson in asking Stanton to resign. Pickduties of the said respective offices until a successor ering refused, and Mr. Adams issued an order be appointed, or until such absence or inability by of positive and absolute removal. It is true After the passage of this act if a va~cancy confirmation the same day, but it was declared should have been created by removal in the confirmation the sae day, butit was declared head of a Department, the President could removed i place of Timothy Pickerictlyg, esq, not have "authorized anypersonorpersons, removed." The President acted strictly in at his discretion, to take charge of the office. accordance with his previous opinions, as indicated by'his vote when presiding over the For instance, he could remove the Secretary Senate in 1789, when the laws creating the of War, but the chief clerk still would become Departments were passed. It is not reasonthe acting Secretary. He could only designate ble that he should have doubted, and surely another person in case the vacancy occurred the history of that time discloses no expresfrom death, or from temporary absence or sick- sion of doubt or censure d isclos es no expresn ness. It will be observed that this act fixes of his political opponents. no limitation of service for the temporary suc- The law on this subject remained unchanged cessor. ti this teaie the ~~~~~~cessor. ~up to February 20, 1863. At this time the The next change matde was by the act of other Departments of the Government had July 13, 1795. This act provides- been established; but the provisions of law "That in case of vacancy in the office of Secretary for temporary appointments made applicable of State, Secretary of Treasury, or of Secretary for to the first three by the acts of 1792 and 1795 the Department of War," [being the only Execu tive Departments yet established.] "it shall be law- had not, in words, been applied to those subful for the President of the United States, in case he sequently created. Mr. Lincoln having this shall think it necessary, to authorize any person or difficulty sharply presented to his mind by an persons, at hisdiscretion, to perform the duties of the. said respective offices until a successor be appointed, exigency arising in the Post Office Department, or such vacancy be filled." took the responsibility of acting outside the letThe effect of this act is simply to extend the ter of the law, and made an ad interim appointdiscretionary power of the President, in mak- ment. He, however, sent a communication to ing temporary appointments, to cases of re- Congress, dated January 2, 1863, in the followmoval and expiration of term, which were not ing words: provided for in the act of 1792. But inasmuch To the Senate and House of Representatives: as the President could now remove any of the I submit to Congress the expediencyof extending Secretaries and all subordinates in their De- to other Departments of theGovernment the authorpartments not appointed by the heads thereof, ityconferred on the President by the eighth section of the act of 8th May, 1792, to appoint a person to temand appoint others at his own will, Congress porarily discharge the duties of Secretary of State, thought it wise to limit the term of the succeed- and Secretary of the Treasury, and Secretary of War, ing temporary incumbent by adding the follow- in case of death, absence from the seat of Government, or sickness of either of those officers. ing proviso, to wit: " That no one vacancy ABRAHAM LINCOLN. shall be supplied in the manner aforesaid for a WASHINGTON, January 2, 1863. longer term than six months. " The President's [See Congressional Globe, 1862-63, part 1, p. 185. power of removal was not interfered with. He Congress took action in the premises, as could still remove in session or vacation, and requested, but seems to have directed its attennow he could designate at discretion the tem- tion rather to amending the legislation of 1792 porary successor, but at the expiration of six than that of 1795. Instead of putting the more months the office became vacant, and thus the recently-established Departments by name on Senate retained its advisory power, so far as it the same footing with those established prior chose to retain it, over appointments. It was to 1792, the act of 1863 extends the cases for under this state of the law that Mr. Adams temporary appointments from "death, absence peremptorily removed MIr. Pickering on the from the seat of Government, or sickness," 12th of May, 1800. And we can readily dis- as fixed by the act of 1792, so as to include cover a good reason-whether the true one or also cases of resignation, and then makes its not I cannot say-for Mr. Adams's desire that provisions applicable to all the Executive DeMr. Marshall's nomination should be confirmed partments. It provides: before the adjournment of the Senate. Under "That in case of death, resignation, absence from his own appointment,without the action of the the seat of Government, or sickness of the head of Senate, the office of Secretary of State would any executive Department," &c., "the President become hopelessly vacant before the next may authorize the head of another Department, or become hopelessly vacant before the next other officer in either of said Departments, to permeeting of Congress, and would remain so till form the duties." &c.; "but no vacancyshall be thus action could be had by the Senate. supplied for a longer term than six months." But whatever may have been Mr. Adams's If this act had taken away the power of rereasons for wanting Marshall's confirmation moval, as fixed by the act of 1789, then it could 1069 be possibly said that so far as this case is con- period named. When Mr. Buchanan was called cerned it renders inoperative the act of 1795. on by the Senate in January, 1861, to show But if the power to remove still remains after under what authority during its session he had this legislation, then a vacancy may be created appointed Joseph Holt, a loyal man, Secretary which is not provided for in the act of 1863. of War ad interim to fill the vacancy created Death, resignation, absence, and sickness con- by the resignation of Mr. Floyd, a rebel, hie stitute the only cases of vacancy for which presented the law so forcibly as, in my judgprovision is made in this latter act. Beside ment, to silence all cavil, and settle the question the vacancy arising from removal, if the power forever. In his communication to the Senate yet exists, (and I can find no statute, up to he truly refers to the practice of the Governthe year 1863, taking it away,) vacancies may ment, and shows that one hundred and seventyoccur from expiration of term; and this class nine such appointments in the chief Departof vacancies, too, is wholly unprovided for. ments of the Government alone had been made Upon the passage of the act of 1863, it follows from 1829 to 1856, a large number of them that if a vacancy should have occurred in the made, too, during the session of the Senate. War, Treasury or State Departments from re- It will be observed, too, from the evidence in moval or expiration of term, the President this case, that in the bureaus and inferior could still have designated " any person or offices of the Government many ad interim or persons" whatever, under the act of 1795, acting appointments have been made to fill to perform the duties for six months. But no vacancies of every character, including those such vacancy in the heads of other Depart- made by removal. If it be said that no vacancy ments could be supplied at all. In the Navy, by removal in the head of a Department was Interior and Post Office Departments the only ever thus filled, it may be answered that but vacancies that could be temporarily filled are one Secretary, up to the date of which we those occurring from death, resignation, ab- speak, ever refused, during the session of the sence and sickness. And for all the vacancies Senate, to resign when asked, and he was last named, in any of the Departments pro- promptly removed by the sole act of the Presvided for by the act of 1863, thle President is ident without consultation with the Senate. confined in selecting the temporary successor The vacancy being once created can be filled, to the head of some other Department, or to as any other vacancy, by an ad interim appointsome other officer in one of said Departments. ment. And now it may be said that the act of 1863, I come now to the act of March 2, 1867with this construction, partly failed-of its ob- the civil-tenure act. Does it change the law, ject. Even if this be so it is only what fre- as I state it to have been before its passage? quently occurs in legislation. The law-maker The act I will admit to be clearly constituoften comes short of the purposes designed by tional in all its parts. The only difficulty, in the law. But it does secure all that was asked my mind, grows out of its construction; and by Mr. Lincoln, and even more. He asked for this difficulty of construction is the result of power to fill vacancies ad interim occurring by the effort made on the passage of the bill to death, absence and sickness, and Congress reconcile a radical difference between the two gave him power to fill not only these, but also Houses of Congress on this very question of vacancies occurring by resignation. It did not Cabinet officers. It has sprung out of a most give him authority thus to fill a vacancy in the reprehensible and vicious practice-that to Post Office, Navy and Interior Departments save important measures from defeat these arising from removal or expiration of term, differences between the two Houses are to be but to fill such vacancies in the War, State, and healed and covered up in conference committees Treasury Departments he had ample power with ambiguous or unmeaning phrases. The ilider the act of 1795, which yet remains truth is, that instead of clearing up doubts, and unrepealed. making that plain which, above all things, Having now examined all the legislation up to should be plain, we often purposely obscure the the tenure-of-civil-office act of March 2, 1867, controverted point, and devolve its solution I come to the conclusion that-previous to that upon the courts, or the President, if you please, act, at least-it was quite clear that the Presi- each of as hoping, no doubt, that the solution dent possessed the undoubted powerto remove will accord with his own wishes, and ready to a Cabinet officer commissioned, as he must cavil if it does not. And so it was with this have been, to hold during the pleasure of the act. The Senate repeatedly demanded that President, either in the recess or during the Cabinet officers should be entirely excepted session of the Senate. I also conclude that if from the general provisions of the act, thereby a vacancy could be thus created, that vacancy, leaving them subject to removal as under preunder the law, could be filled by a temporary vious laws. The House insisted that they ad interim,appointment, to continue for six should be put upon the same footing with other months. Of the latter proposition I have no officers; that they should not be removed doubt at all. Whatever of offense exists in except by consent of the Senate. these articles must be found in the first one. The compromise in the conference comIf the President could remove, he could un- mittee is contained in the proviso which questionably fill the place for the limited declares that Cabinet officers "shall hold their 1070 offices respectively for and during the term of no presidential term, he being simply an ad the President by whom they may have been interim President, filling out a part of Mr. appointed, and for one month thereafter, sub- Lincoln's term, when will his Cabinet appointject to removal by and with t]ge advice and ments go out of office? The law declares that consent of the Senate." To construe thislaw they shall " hold during the term of the Presiaccording to its letter two things must be kept dent by whom" they were appointed. They in mind-first, the President who appoints; were not appointed by Mr. Lincoln, for Lincoln and second, the term during which he appoints. was dead when they came into the Cabinet, In this case Mr. Lincoln is the President who and the dead have no terms. Hence, under appointed. Mr. Stanton was appointed in this construction they would not have to retire January, 1862, and hence " the term of the at the end of a month from March 4, 1869. President " by whom Stanton was appointed I need not elaborate. This mere statement terminated under the Constitution and laws on will show the absurdity of the pretensions now the 4th March, 1865. If the act had used the set up in reference to this law. We ourselves word "terms" instead of " term," I would never gave it such a construction until that unreadily assent that Mr. Stanton's case was in- founded and extraordinary excitement sprang tended to be covered and protected by the act. up on the attempted removal of Mr. Stanton. But I cannot separate the act of appointment The Senate gave construction to this law when from the one identical and single current term it passed. I accepted that construction at the of the President who made it. For instance, time. It is according to the letter and the if Mr. Lincoln had been living when the tenure- spirit of the act. The Senate at all times proof office act passed, I cannot doubt his power tested against forcing on any President an to have removedany officer appointed by him obnoxious or disagreeable Cabinet minister. during his previous term. This law surely was The House insisted on doing so. The bill then not intended to prevent a President, should he went to a conference committee, and on that be elected to the Presidency a dozen times, committee, in behalf of:the Senate, were two from changing his Cabinet without the consent of our ablest lawyers, Messrs. SHERMAN and of the Senate at the commencement or in the WILLIAMS. When the bill was reported from middle of each Administration; and if this this conference committee Mr. HOWARiD and position be conceded, it disposes of this case. Mr. DOOLITTLE called for an explanation of If Mr. Lincoln could have removed, Mr. John- this provision. MIr. SHERMAN gave it. He said: son can also remove the same officers; and if " That this provision does not apply to the present Mr. Johnson cannot remove, the officer suc- case is shown by the fact that its language is so ceeding him, in case of Johnson's impeach- framed as not to apply to the present President. ment and removal, cannot rid himself of the The Senator shows that himself, and argues truly ment and removal, cannot rid -himself of the that it could not prevent the present President from existing Cabinet, because it is still said to be removing the Secretary of War, the Secretary of the 5Mr. Lincoln's term. Navy, and the Secretary of State." If the term which Johnson is now serving And again he said: out is Johnson's term and not Lincoln's, then "If the President dies the Cabinet goes out. If everybody admits that Stanton may be legally the President is removed for cause by impeachment removed, because he can only hold " for and the Cabinet goes out. At the expiration of the term during the term of the President by whom he of the President's office the Cabinet goes out." may have been appointed." It is only by Mr. HowARD expressed himself satisfied.; insisting that Lincoln's term does not cease the Senate was satisfied. Mr. WILLIAMS did till March 4, 1869, that Stanton is supposed not take issue on construction, but acquiesced for a moment to be protected. This position by saying thatleaves no term at all for Johnson, and if John- "The effectof thisproviso willamounttoverylittle son shall be remove~d by impeachment and one way or the other, for I presume that whenever the President sees proper to rid himself of an offenWade shall take his place and serve as Presi- sive or disagreeable Cabinet minister he will only dent till the 4th of March next, he, too, will have to specify that desire, and the minister will have no term, because Lincoln's term covers retire and a new appointment be made." the full period of his service. Now, there are Mr. HOWE, the Senator from Wisconsin, members of the present Cabinet serving who who had offered in the Senate the amendment were appointed by Mr. Johnson, to wit, Mr. to include Cabinet officers, declared that he Browning and Mr. Randall. If these gentle- was not satisfied with the bill, and clearly intimen can serve as Cabinet ministers during the mated that the House amendment had been term of the President appointing them and for abandoned; and such is yet the opinion of that one month thereafter, will some Senator indi- distinguished Senator, and hence he cannot cate to me when Browning's and Randall's convict for the removal of Stanton. It will be terms expire? The law does not seem to con- rather a bad record now to convict the Presitemplate a case of President without a term. dent of crime for taking the same view that we If Johnson has no term, then Browning and ourselves took on the passage of the act. I Randall either have no terms or their terms took that view of the law then, and have enterlast forever. tained it ever since. When Mr. Wade becomes President, he will But we are told that the President claims in surely change his Cabinet. But Wade having his answer the power to have removed Stanton 1071 under the Constitution and in defiance of law. thus abdicate his authority as a part of the I am not trying him for his opinions. I am Governmentandsufferthiscongressionalusurpcalled to pass judgment on what he has done, ation? If he does not violate such a law he not on what he claims a right to do. We must is himself perjured, for he is sworn to " prenot convict men in this country for entertain- serve, protect, and defend" not an invalid ing false notions of politics, morals, or religion. law, but "the Constitution." ILdo not claim It is often difficult to determine who is right that he may violate every law passed even for and who is wrong. In moments of temporary thepurpose of procuring a judicial construction. excitement and unfounded alarm whole masses I do not say that he may in mere wantonof people have rushed wildly to incorrect con- ness violate or disregard any law. I only inclusions. The late rebellion shows how un- sist that each case shall stand on its own merits. reasonable, how insane and foolish, large,and If the President's purpose be criminal and coroverwhelming majorities may become. And rupt, he should be removed. If he honestly in this condition they are intolerant of moder- intended only to procure what he says in this ation, and even of common sense. From this case, to wit, a judicial construction of a doubtspring miobs, derision, jeers, insults, and per- ful law, doubtful not only in its terms, but sonal violence. He who cannot resist:these doubtful in its constitutionality, what right things and proclaim the right at the risk of have we to pronounce him guilty of high personal sacrifice, cannot expect to promote crime? Mr. Lincoln, without law and against the great cause of truth, and such a man has law, increased the regular Army and the Navy. no business whatever in this body. Instead of impeaching. we applauded him and When the President attempts to exercise an passed laws to justify and protect him. Why alleged constitutional power against the law, I did we do this? Because we looked beyond will then judge of his crime. "'Sufficientunto the act to the motive. We then declared it the day is the evil thereof." For the removal proper to inquire into the animus, the intenof Stanton and the appointment of Thomas he tion of the President. I have thought it proper, has undoubted authority under the laws of also, in this case to examine into the PresiCongress. I cannot convict him of crime, dent's intentions. I am satisfied that all evieither for doing something under the law which dence tending to explain his intention should I may not approve, or for simply entertaining have gone before the court. We sit in the an opinion about the Constitution which was capacity of a court and also a jury. As a entertained and acted on by Madison, Jeffer- court we must hear all evidence; as a jury we son, Adams, Jackson, and others as patriotic must consider that only which is competent and as wise and conscientious as ourselves. and relevant. But suppose I am wrong in my construction The Constitution, in making us the " sole" of the law. Must I necessarily convict the judges of the law and the fact, presumes that President of a wicked and corrupt intent in we are sufficiently intelligent to hear all tesdoing just what nearly all our Presidents have timony offered, whether competent or incomdone under a claim of authority from the Con- petent, and to exclude from our minds that stitution itself? The President is a coordinate which is improper. When the court and jury are department of the Government. He is elected different persons it may be well to confine the by the people and responsible to them as we testimony going before the jury to that which are. He is to execute the law. But an uncon- is clearly competent and relevant; but no such stitutional law is no law at all. It never has rule applies to the court. It is the duty of the binding force. It is void from its inception. judge to be informed of the nature and the Jefferson and Jackson, as Presidents, expressly precise character of the testimony proposed claimed the right to judge in the first instance before he can determine the propriety of its of the constitutionality of laws, and even so to introduction. So in this case. An essential judge in the face of a decision of the Supreme element of guilt charged in these articles against Court. If a President is bound to execute one the President is a wicked intent to violate the void act he is equally bound to execute others. Constitution and the laws. He offered to show Suppose that Congress should pass an act that his constitutional advisers, his Cabinet depriving the citizen of the right.of trial by ministers, counseled him to the course purjury, shall the President execute it? Sup- sued, and that the whole object, end, and pose Congress shall declare that the President aim of his action in the premises was to subshall grant no certificate of pardon without ject the law to the test of judicial examination. consent of the Senate? The Constitution gives This advice, he alleges, was a part of the res him full and exclusive power "' to grant par- gestce and the foundation on which his conduct dons." If he, then, does what he and every- was based. Even Mr. Stanton had concurred body else knows he has a right to do, he may with the other members of the Cabinet that this under the law fall guilty of a high crime or very law, the tenure-of-office act, was unconmisdemeanor, but unless he violates the law, stitutional and invalid. If so, it was an inand at some time issues a pardon, this outrage fringement of the President's constitutional on the Constitution must stand forever as a powers, and the least be could do, it seems, valid law. Must the President, elected by the was to submit the differences between himself people and for a shorter term than ourselves, and Congress to that tribunal which was erected 1072 to settle such differences, and to the judgments In the first place, there is not a particle of of which we must all submit if we would avoid testimony proving a prior agreement, much anarchy and civil war. less a conspiracy between these parties. Whether the President's intentions were as Second, a conspiracy to be unlawful must conpacific and innocent as he alleges them to have template an unlawful act, or a lawful act by been, I do not pretend to say. I only insist unlawful means. The objects designed by the that competent evidence, such as this, going to President-the removal of Stanton and the explain the character of his intentions, should appointment of Thomas ad interim — were not have been rejected by the court. It should lawful acts, and hence any conspiracy based have been received and properly weighed. on these facts must fall. And no unprejudiced Even in a civil suit for damages in a case of man can say that the proof shows any purpose false imprisonment the advice of hired attor- on the part of the President to use force in the neys is competent to show a want of malice or removal of Mr. Stanton. The evidence throughcorrupt intention in instigating the prosecution. out disproves any such charge. The ninth article Why should the President, however wicked or fails to charge any offense whatever. It alleges corrupt he may be, in a great criminal proceed- that the President declared to General Emory ing, where the presumptions of law must favor that in his opinion a certain law, passed in his innocence, be deprived of this just and rea- 1867, taking away some of his prerogatives as sonable rule? If he cannot change his Cabinet Commander-in-Chief, is an unconstitutional without our consent, then we are more or less law. A great many people beside the Presiresponsible for the advice given him by the dent entertain the same opinion. The right Cabinet. We propose to force a Cabinet on of private judgment has been punished in some him against his will and compel him to be gov- countries, and some even have suffered in the erned by their advice or take the responsibility United States for this alleged offense, but the of rejecting it. If he disregards this advice he precedents are very bad, and should not be should be punished, I presume, for obstinacy followed. He who follows them far in this and dangerous purposes of usurpation. If he country will follow them to his own destruce take their advice he is not permitted to show tion. this fact in order to negative the inference of It is not charged that the President violated willful, wicked, and corrupt intentions. this. law, although he thought it unconstituA verdict of guilty on these articles, after tional. But it is said that he expressed this the exclusion of this testimony, would fail to simple opinion to Emory "to induce said command the respect and approval of an Emory, in his official capacity as commander enlightened public judgment. of the department of Washington, to violate In addition to what I have said, permit me the provisions of said act," &c. It is not preto add one other reason why no conviction can tended that Emory was influenced by the Presbe had on the articles connected with the re- ident's opinions. The President gave him no moval of Stanton and the appointment of order to violate it, nor did he insinuate that he Thomas. It is not alleged in any of them that would like to have him do so. Stanton is actually removed, nor that Thomas Andhad he so ordered, I presume that Emory is actually assigned to duty. And if it were so would not have gratified him by obedience, for charged, the evidence is wholly insufficient to he seems to have had a different opinion, and support it. The evidence shows that Stanton maintained it with great zeal and confidence is yet in the office discharging its duties, and against his Commander-in-Chief. that Thomas is yet a private citizen. He asked The truth is that after the unfortunate misunfor the office, but Stanton refused to yield it. derstanding between the President and General Stanton remained in and Thomas has remained Grant, and after the proceeding in reference to out. This is the theory of the prosecution. the removal of Stanton, the President learned Then what is the offense? Not that a removal through the Secretary of the Navy that some has been made, nor that an appointment ad extraordinary movements of military officers interimn has been effected. The worst phase of in the District were being made, to be followed the matter is that the President has attempted in all probability by some unauthorized and to do these things and failed. This attempt is dangerous disposition of troops. To show that not a high crime or misdemeanor for two rea- the President contemplated no violence in the sons: first, he had full power under the laws premises, it is sufficient to say that when he of Congress to remove and appoint as he tried removed Stanton he had not seen Emory, and to do; and second, if he had no such power, knew that General Grant was inimical to him. the attempt thus to exercise it is not by statute He seems notto have known awordabouttroops law nor by common law nor by common sense in the District. He did not know how many were a high crime or misdemeanor. here or what troops they were. He had not This, in my judgment, disposes of the first consulted a single officer, and seems not to have eight articles. I know that in the fourth, fifth, known but that all the troops had been sent sixth, and seventh articles there is an allega- away or others brought in. Being informed tion of conspiracy by the President with Gen- of these movements, and no doubt fearing that eral Thomas to seize and possess the War he himself might be violently seized by miliDepartment. tary power and dragged from the Executive 1073 Mansion, he sent for the commander of the speech or of the press." The President# like District to ascertain what was going on. The other persons, is protected under this clause. interview resulted in a conversation clearly He, too, has the right to make foolish speeches. indicating the fears of the President, and on I do not now say that there is no limit to the these fears is based this article of impeachment. enjoyment of this right, or that it might not be It will not likely receive a respectable vote, and so much abused by a President as to de/pand I dismiss it for the consideration of those who his impeachment and removalfrom office. But fild in it more than I have found. in this case the offense is certainly not of The tenth article arraigns the President for so heinous a character as to demand punishmaking grossly abusive and indecent speeches ment in the absence of a law defining the right for the purpose " of setting aside the rightful and providing specific penalties, and also in authority and powers of Congress," and to the face of a constitutional provision declaring bring Congress into "disgrace, ridicule, hatred, that the freedom of speech cannot be abridged contempt, and reproach." After setting out by law. the language df some of the speeches in the I have examined these ten articles as though form of specifications, the article concludes as the offenses were formally and sufficiently follows, to wit: charged. I have taken no technical exception, " VWhich said utterances, declarations, threats, and but have considered the indictment as good on harangues, highly censurable in any, are peculiarly its face. I look more to substance than to indecent and unbecoming in the Chief Magistrate form in this proceedin. No rules of pleadof the United States, by means whereof said Andrew proceeding. No rules of pleadJohnson has brought the high office of the President ing are prescribed for our government, and if. of the United States into contempt, ridicule, and I could find an offnse charged, however inartidisgrace, to the great scandal of all good citizens, ficially presented, I should dee it my dut whereby said Andrew Johnson, President of the Uni- ficially presented I should deem it my duty ted States, did commit, and wasthen and thereguilty to disregard the mere defects of form. But of a high misdemeanor in office." we cannot go outside of the charges presented.. In my judgment these speeches are highly If one offense is charged we cannot convict of censurable. They were, perhaps, made to bring another. If the President corruptly pardoned contempt and ridicule on Congress as charged, a convicted criminal, we cannot pronounce him; but if so made they failed of their object. In- guilty of that act on an indictment for remov — deed, it is specifically charged that they failed. ifg Stanton. If he usurped power in appointIt is alleged that the President intended to dis- ing military governors in the southern States, grace Congress, but succeeded only in dis- and violated all law in ordering them paid for gracing " the office of President." Whatever their services from the public funds, we canelse may be said of the President's intentions, not pronounce him guilty thereof on a presentor the result of his conduct on the occasions ment charging that he made a maudlin or disalluded, it may be perhaps safely assumed that graceful speech at St. Louis. he succeeded in bringing ridicule and con- If I were disposed to criticise severely the tempt, if not disgrace, upon himself.'Con- emptiness and insufficiency of these articles, I gress survived the attack. Indeed, the speeches might refer to the language of Hon. THAD, greatly assisted the friends of Congress in carry- DEUS STEVENS, in the'House of Representatives, ing the election which immediately followed. on the 3d day of March last, after they hadhbeen If this be a political or partisan trial we should adopted, and at the time whenhe offered f6r the thank the President for these disgraceful consideration of that body the eleventh article. harangues, for in a party point of view he Referring to these ten articles, he said, (advoand his policy were greatly damaged by them. eating the eleventh article:) I am inclined to thinkl that the office of Presi- "I will, therefore, read it and call it one and a dent suffered more than Congress. But that half, as, in my judgment, it is the gist and vital poroffice will survive the humiliation of these tion of this whole prosecution. I wish this to be particularly noticed, for I intend to offer it as an speeches. amendment, I wish gentlemen to examine andf see They are not official papers. They did not that this charge is nowhere contained in any of the emanate from Mr. Johnson as President, but articles reported, and unlessit be inserted there can from r. Johnson as a stump speaker. be no trial upon it; and if there be shrewd lawyers, from Mr. Johnson as a stump speaker. In his as I know there will be, andc caviling judges, and, latter capacity he forgot the dignity of his office. without this article, they do not acquit him, they are In fact he seems to have left the office behind greener than I was in any case I ever undertook him, and turned himself loose, as a private beforethecourtofquartersessions." citizen, to bandy epithets with that great I now come to the eleventh article. It is people from whom he had sprung and with the only one upon which I have ever entertained whom he longed for a short revel even before serious doubts, and I will therefore set.it out the expiration of his term. in full. It is as follows: I perceive much for criticism, and, indeed, ART. 11. That said Andrew Johnson, President of for censure, in these speeches, but I cannot for the United States, unmindful of the high duties of his office, and of his oath of office, and in disregard a moment think they contain the elements of of the Constitution and laws of the United States, crime for which the President may rightfully did heretofore, to wit, on the 18th day of August, A. be impe~ached. D. 1866, at the city of Washington, and the District of Columbia, by public speech, declare and affirm, in The Constitution provides that Congress substance, that the Thirty-Ninth Congress of the Uni" shall make no law abridging the freedom of ted States was not a Congress of the United States C. I. —C8. 1074 authorized by the Constitution to exercise legisla- struction of the rebel States; whereby it is tive power under the same, but, on the contrary, charged that the President " did then, to wit, was a Congress of only part of the States, thereby on the 21st-da ofebruary, A. D. 1868. t the denying, and intending to deny, that the legislation on the 21stday February, A.D. 1868, at the of said Congress was valid or obligatory upon him, the city of Washington, commit, and was guilty of, said Andrew Johnson, except in so far as he saw fit a high misdemeanor in office." to approve the same, and also thereby denying, and t intending to deny, the power of the said Thirty-Ninth It will be seen that the article winds up with Congress to propose amendments to the Constitution charging one single offense, and that offense is of the United States; and, in pursuance of sald dec- said to have been committed on the 21st day la-ration, the said Andrew Johnsoq, President of the of February, 1868 United States afterward, to wit, on the 21st day of February,A. D).1868, at the city of Washington, in the This produces confusion. One would supDistrict of Columbia, did, unlawfully, and in disre- pose, on first reading the indictment, that the gard of the requirement of the Constitution, that he body of the offense consisted in the declaration should take care that the laws be faithfully executed, of the offense consisted in the declaration attempt to prevent the execution of an act entitled of the President that the Thirty-Ninth Con"An act regulating the tenure of certain civil offices," s was not a lawful Congress. But that passed March 2, 1867, by unlawfully devising andt that contriving, and attempting to devise and contrive hypothesis is shaken when we reflect that this means by which he should prevent Edwin M. Stan- declaration appears to have been made on the ton from forthwith resuming the functions of the 18th of August, 1866. And again, if this decoffice of Secretary for the Department of War, not- laration of the President be the real offense, withstanding the refusal of the Senate to concur in the suspension theretofore made by said Andrew and the enumerated instances of resistance to Johnson of said Edwin M. Stanton from said office the laws passed by Congress be merely the of Secretary for the Department of War; and also, fs or eviden by further unlawfully devising and contriving, and proofs or evdences showing the President's attempting to devise and contrive, means, then and disregard or contempt of its legislation, the there, to prevent the execution of an act entitled article must fail, for two reasons: first, the "An act making appropriations for the support of inal words charged are not su the Army for the fiscal year ending June 30,1868, and crimnal words charged are not supported by for other purposes," approved March 2, 1867; and the evidence; and second, if the words were also to prevent the execution of an act entitled "An proved as laid, no mere words, declaration, or act to provide for the more efficient government of the rebel States," passed March 2, 1867, whereby the opinion, in reference to the constitutional charsaidAndrew Johnson, President of the United States, acter of Congress or the validity of its laws, did then, to wit, on the 21st day of February, A. D. can be tortured into a high crime or misde1868, at the city of Washington, commit, and wag meanr. Such an expression is not now guilty of, a high misdemeanor in office. known as a crime under any statute, and no The great difficulty presented to my mind, can make it a crime, for the reason, in connection with this article, is to ascertain as already stated, that the Constitution forwhat it really charges. It will be observed bids it. stated, that the Costitutio forthat one thing is distinctly charged, and that If, then, there be an offense charged in the is, that the Presidentin August, 1866, declared article, it must consist in the allegation that and affirmed, not in words, but'" in sub- the President devised ways and means to prestance,"n that "fthe Thirty-Ninth Congress was vent the execution of certain acts of Congress. not a Congress of the United States authorized By carefully examining the evidence, it will by the Constitution to exercise legislative be found that no testimony was offered to show power under the same, but, on the contrary, that the President attempted to prevent the was a Congress of only part of the States, execution of the reconstruction act, except a thereby denying and intending to deny that the telegram to Governor Jenkins, which telegram legislation of said Congress was valid or oblig-was sent long before the passage of the recoiatory on him," &c. The article then pro- struction act, and could have had no reference ceeds to declare that "in pursuance of said to it whatever. It will also be seen that the declaration" the President did three certain only evidence adduced to show resistance to thirngs, to wit: the Army appropriation bill is that of General 1. He attempted to prevent the execution Emory. It is the same offered in support of of the tenure-of-office act "by'unlawfully the ninth article. Instead of proving the charge devising and contriving, and attempting to it actually disproves it. Hence, nothing is now devise and contrive, means by which he should left in the eleventh article except the allegation prevent Edwin M. Stanton from forthwith re- that the President attempted to -prevent Mr. suming the functions of the office of Secretary Stanton from resuming his duties as Secretary for the Department of War, notwithstanding of War after the Senate had refused to concur the refusal of the Senate to concur in the sus- in his suspension. It is true that the President pension," &c. in a letter addressed to General Grant, on the 2. And, also, " by further unlawfully devis- 10th of February, 1868, admits that he had inig and contriving, and attempting to devise expressed to Grant a wish that he would either and contrive, means, then and there, to pre- hold the office and contest Stanton' s right to it in vent the execution" of the Army appropriation the courts or that he (Grant) would surrender act of 1867, requiring that all military orders it to the Presidentin time to fill it with another by the President to inferior officers be coun- name. On first impression it appeared to me tersigned by General Grant. And, also, that this charge was established by the-Presi3. "To prevent the execution" of the act of dent's own admission, and that, being estabMarch 2, 1867, for the government and recon- lished, it was an offense under the civil-tenure 1075 act; and so believing, I had at one time par- against this article, it might be found in the tially come to the conclusion to vote for this fact that there is absent from the proof all one single charge in all the eleven articles; pretense of a corrupt or wicked design in this but, upon a more careful examination and com- request of the President. The only evidence parison of views with fellow-Senators, I'became adduced is his own admission, and when the satisfied that the article failed to charge any whole letter is taken together it appears that the offense. President was of the opinion that Stanton was In the first place, admitting the charge al- already permanentlyremoved, and he designed leged to be fully proved, neither the civil- only to test that question before the courts. tenure act nor any other law declared it a I might extend this examination to much crime or misdemeanor. The civil-tenure act greater length. But the intelligent reader of declares a removal or an appointment made this trial will look to the charges and the evicontrary to its provisions, a misdemeanor, but dence for himself. I have not attempted to it does not make penal an effort to keep out of elaborate any point. I have simply endeavoffice one who, for the time being, stands ored to present some of the leading points legally suspended. which influence my judgment in voting against' Second. The charge itself is wholly un- this prosecution. I do not say that the Presiproved. By examining the President's letter, dent is void of offense. I have not said even in which appears the admission, it will be that he ought not to be impeached and removed seen that no attempt, nor even a declaration from office. But I have said, and I now repeat it of intention, was made by the President to with emphasis, that in my judgment a cool and prevent Stanton from resuming the War Office deliberate future will not fail to look with amazeafter the Senate had passed on the suspension. ment on this extraordinary proceeding as it is Indeed, if Senators will reflect, they will re- now presented to us, and the legal and dismember that the Senate acted on this question criminating minds of the world would visit late at night, and Stanton entered the War with deserved condemnation a judgment of Department early the next morning, and that conviction on any one of the articles now pendin the meantime there was no interview be- ing. I have taken up too much time already, tween the President and General Grant. The and hence I forbear to allude to the political only offense, therefore, consists in a mere aspects of the question. We are told that the declaration, or the expression of a wish, by people clamor for the President's conviction. the President made long before the Senate It may be so. But I cannot believe that'one acted on Stanton's suspension, and while it third of the people of this country would, as is admitted that he was legally out of the jurors, convict the President on these articles. office. Grant, it seems, partially consented If they clamor for conviction it is on account to this request of the President, but no act of other matters and for other offenses than was done either by the President or by Gene- these. Suppose, however, I am mistaken, and ral Grant to carry out this expressed wish. that nine tenths of the people desire his reThird. It will be observed that the President' s moval, is that a reason why we should surrender request to Grant was in the alternative, and our convictions of duty. We have been sworn itwas a mere request. The President did not to examine this case from a legal and not a ask him to keep Stanton out. He asked him party point of view. If this were a vote whether. either to contest Stanton's right in the courts Johnson should be elected President, or whether, or surrender the office back to him. Grant being in, he is a fit person for the exalted at first promised to do so. If, then, the office, our position might be relieved of much President devised ways and means to do an embarrassment. The question is simply one unlawful act, Grant must be implicated with of guilt under the charges as presented by the him, and nobody pretends that such is the case. House, and I cannot, in justice to the laws of Fourth. Even if-it appear that the President the land, in justice to the country or to my did all that can be charged on the subject, that own sense of right, render any other response is, if he had resolved, and even endeavored by to the several articles than a verdict of " not act, to keep Stanton out of the War Office, after guilty." the action of the Senate, it does not follow that _ he committed even an improper, much less an OPINION unlawful act. In my view of the subject, he had a perfect right to suspend Mr. Stanton under the second section of the tenure-of-office act, and HON. JAMES R. DOO.LITTLE, if the Senate found against the suspension, he Delivered orally during the consultation. had an equal right under the act of 1789 to remove him from office absolutely. Having, therefore, full and complete authority to do all Mr. Chief Justice and Senators: that the charge can possibly include, I cannot T. OF TEE REMOVAL OF STANTON. on further reflection consent that this article I concur in so much of the opinions of Sencontains matter upon which an impeachment ators HENDRICKS, GRIMES, JOHNSON, FESSENmay be properly predicated. DEN, TRUMBULL, and BUCKALEW, that I shall If any further reason were needed for voting not go over the grounds so ably stated by them, 107G_ to give a general opinion in this cause. They It is clearly within the act of 1795. I shall all concur with the Senator from Ohio [Mr. dwell no longer upon that. SHERMAN] and with my colleague [Mr. HOWE] Mr. HARLAN. I desire to call the attenthat the tenure-of-office act left the President tion of the Senator from Wisconsin to certain at liberty to remove the Secretary of War at words in the act of 1795 which I have not heard pleasure. In this opinion I agree. I think that commented upon and which may be words of opinion will command the assent of nine limitation, namely, " whereby they cannot pertenths of the legal profession of the whole form the duties of their respective offices." country. Itistooclear, in myopinion, to admit Do not these words limit the act to certain of serious argument, and I shall spend no time vacancies? upon that. Mr. DOOLITTLE. Let me remind my II. OF THE APPOINTMENT OF THOMAS AD INTERIM. honorable friend from Iowa [Mr. HARLAN] that he will find the same words in the act of Upon the question whether the act of 1863 1863 applying to vacancies caused by death and in relation to ad interim appointments repealed resignation "whereby they cannot perform the the act of 1795, I wish to say a word. There duties of their respective offices." is no express repeal. If repealed at all it Mr. BUCKALEW. The same words are must be by implication. in the act of 1792. In the acts of 1795 and 1863 The act of 1795 covers allvacancies-vacan- these words were borrowed from the act of cies by death, by resignation, by removal, and 1792. by expiration of term-four in all.ts lan- Mr. DOOLITTLE. That is true; I thank guage is, "That in case of vacancy" (includ- the Senator from Pennsylvania. I think it ing all vacancies) " it shall be lawful, for the clear that, under the act of 1795, the President President to authorize any person to perform can authorize a person to do the duties of the the duties," &c., for a term not longer than six head of the War Department in case of vacancy months. by removal, and the power to remove Mr. StanThe act of 1863 says that in case of two ton is clear under the act. The Senator from vacancies, namely, by death or by resignation, Ohio, [Mr. SHERMAN,] upon the passage of the the President may authorize some other officer act, maintained that, and, in his opinion just to perform those duties not longer than six delivered, makes that point too clear to be months. questioned. While the act of 1795 covers all vacancies, As to the other charges I concur entirely with including vacancies by removal and vacancies the opinions of Senators HENDRICKS, GRIMES, by expiration of term, as well as by death and and others, and shall not repeat what they have by resignation, the act of 1863 does not pro- so well said. vide for the two vacancies first named at all. But, Mr. Chief Justice and Senators, there Of necessity, therefore, it does not repeal or is another point upon which I wish to submit modify that act as to those two vacancies. my views, very briefly. The Senator from My colleague [Mr. HoWE] is entirely mistaken Ohio said however conscientiously the Presiin saying that the act of 1795 was made obsolete dent may have believed that he had a right to by the act of 1863. It is true, in the margin appoint Mr. Thomas ad interim, if two thirds of the volume, (first vol., 415,) the word " ob- of the Senate differ with him in opinion in the solete" is found. But immediately over it are construction of the law he must be found guilty found the words, also, "act of May 8, 1792, of a high crime or high misdemeanor, for which ch. 37. " It is the act of 1792 which is marked he should be removed from his high office. obsolete, not the act of 1795. What makes From this doctrine I dissent. The President, this certain is, the volume itself was published as the Chief Executive, is compelled officially in 1825, nearly forty years before the act of to construe the laws of Congress. He must 1863. execute them; and to do that he must know Besides, President Buchanan, in 1860, under their meaning. If he mistake the meaning of the act of 1795, appointed Mr. Holt Secretary a doubtful statute, upon which the ablest Senof War ad interim in place of Floyd. The Sen- ators and lawyers disagree, to say he can be ate, by resolution, asked him by what authority. found guilty of a high crime or high misdehe acted, the Senate being in session. His meanor because he mistakes its true meaning answer was conclusive-overwhelming; giv- while honestly seeking to find it shocks the ing more than a hundred cases of similar moral sense of the civilized world. It is a appointments ad interim. It is impossible for monstrous proposition. Intention, criminal inmy colleague to maintain that the statute of tention, is of the very essence of crime. A 1795 is obsolete. public officer may commita trespass and become Neither is the statute of 1795 repealed by liable to respond, in damages, in a civil suit, the act of March 2, 1867, so far as the case of when, mistaking the law, he violates the rights Stanton is concerned; for unless his case is of person or property of another. But to say covered by that act, and my colleague demon- that a high public officer, with good motives strates that it is not, his removal and the author- and with an honest intent to obey, though he ity issued to General ThQmas to perform the mistake the meaning of a statute, can be found duties ad interim is no violation of that act. guilty of a high crime and misdemeanor which 1077 shall subject him to the heaviest punishment candidate for the Presidency. He is no lawwhich can fall upon a public man in high office, yer. Suppose he should be elected, and the is to assert. a doctrine never before heard in Senator from New Jersey, who is learned in any court of justice. There is no evidence to the law, should be nominated and confirmed by show on his part an intention to violate the the Senate as his Attorney General, and that Constitution or the law. From a criminal act some of the many doubtful, hasty, and almost a criminal intent, in the absence of proof to unintelligible acts of Congress came before him the contrary, may be inferred. But in this for construction; if General Grant should, in case all criminal intent is positively disproved good faith, act upon the opinion of Senator by the Manfagers themselves. FRELINGHUYSEN as his Attorney General, no The message of the President which the Man- matter how erroneous that opinion might be, agers have put in evidence against him-and can any man be so lost to all sense of common there is no evidence to contradict it-distinctly justice and fair dealing as to assert that Genavers his entire good faith; and further, that eral Grant could be guilty of a high crime or he was advised by all the members of his Cab- high misdemeanor when acting in accordance inet, including Mr. Stanton: with it. And learned in the law as that honFirst, that the tenure-of-office act was un- orable Senator is, high as he deservedly stands constitutional, and therefore no law at all. in the profession in his State, it is certainly no Every student at law knows that every enact- disparagement to him to say that Mr. Stanbery ment of Congress is just as much subject to stands as high as he or any other Senator upon the higher law of the Constitution as if it this floor in personal character and legal ability. contained an express proviso in these words: Sir, much may be forgiven, much must be "' Provided that nothing herein contained shall forgiven in times of high party excitement for have any force or validity whatever unless it is the judicial blindness which it begets. But authorized by the Constitution of the United when this temporary and frenzied excitement States." In a word, an unconstitutional enact- shall have passed away, as pass it will, and ment is not a law; it is void; and void things when men shall carefully review this case and are no things atall. all the evidence given on this trial, their surAnd secondly, the message proves, also, that prise will be not that a few Republican Senevery member of his Cabinet advised him that ators can rise above party prejudice and refuse if the law were constitutional his power to re- to be driven from their clear convictions by move Stanton was not limited by the very terms party furor, but their utter astonishment will of the act. be, that any respectable Senator should ever It will be remembered,'also, the President's for one moment have entertained the thought counsel offered to prove the fact that the Pres- of convicting the President of the United States ident was so advised by every member of his of a high crime or a high misdemeanor upon Cabinet, including, of course,- the Attorney the charges and evidence produced upon this General. trial. Now, Mr. Chief Justice and Senators, whatever effect may be given to the opinions of other members of the Cabinet, the opinion of OPINION the Attorney General, given to the President, OF must be regarded as judicial so far at least in HON. F. T. FRELINGHUYSEN. the absence of bad faith in him, or in the President when acting upon that opinion, as to protect the President from all charge of crime or There is no more responsible duty than that high misdemeanior. of trying the question whether theChief MagisThe statute providing for an Attorney Gen- trate of a nation, who holds his office under the eral enacts: Constitution and by the suffrages of the people, "And there shall also be appointed a meet person shall be deposed. On the one hand, the result of learned in the law, to act as Attorney General of the the issue is serious to the individual who is on United States, who shall be sworn or affirmed to a trial, reaches to the rights of every citizen, may faithful execution of his office; whose duty it shall trial, reaches to the rights of every citizen, may be to prosecute and conduct all suits in the Supreme effect the maintenance of the checks and balCourt in which the United States shall be concerned, ances, and even the stability of the Government. and to give his advice and opinion upon questions On the other hand, to suffer the Executive of law, when required by the Presidentof the United On the other hand, to suffer the Executive States," &c. successfullyto assert the right to adjudicate on This opinion of the Attorney General, if given the validity of laws, claimed to be inferentially, and acted upon in good faith by the Presideni, though not in terms, contrary to the Constituis a protection against any charge of high crime tion, and to execute such as he approves and or high misdemeanor. The Attorney General violate such as he condemns, would be to peris chosen because he ig learned in the law, to mit the Government to be destroyed. And advise a President who may not be a lawyer at since the issue whether the law shall be obeyed all. He is confirmed by the Senate as a judge has been made before the country and before is confirmed, for his high character and legal the world, to suffer the President defiantly, learning. and to this hour persistently to disobey it, Take the case of General Grant, who is a would be to surrender the supremacy of that 1078 sovereignty for the maintenance of which hun- act entitled "An act regulating the tenure of dreds of thousands of loyal hearts have within certain civil offices," are as follows: the past few years ceased to beat. Walking "Be it enacted by the Senate and House of Representaalong this narrow pathway, with perils on either tives of the United States of America in Congress assenside, one is only secure as he rests his hand on bled, That every person holding any civil office to which he has been appointed by and with the advice the firm support of duty. and consent of the Senate, and every person who We are but the agents of the people, author- shall hereafter be appointed to any office, and shall ized to act for them only in accordance with become duly qualified to act therein, is, and shall be, entitled to hold such office until a successor shall the Constitution and the laws. If we fail to have been in like manner appointed and duly qualiprotect the trusts committed to us we are cow- fled, except as herein otherwise provided: Provided, ards; if we exceed our powers and assume. to That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postexercise our arbitrary will, we are usurpers. master General, and the Attorney General, shall IHaving on questions as to the admission of hold their offices respectively for and during the evidence exercised all the liberality that was term of the President by whom they may have been appointed and for one month thereafter, subject to consistent with principle, and having held my removal by and with the advice and consent of the opinion, subject to all legitimate influences, Senate. until the whole cause was closed, and the final "SEC. 2. And be it further enacted, That when any officer appointed as aforesaid, excepting judges of vote about to be taken, I am now prepared the United States courts, shall, during a recess of the briefly to express my views. Senate, be shown, by evidence satisfactory to the Senators are sworn in this case to do impar- President, to be guilty of misconduct in office, or Senators are sworn in this case to do impar- crime, or for any reason shall become incapable or tial justice according to the Constitution and legally disqualified to perform its duties, in such case, the laws. The obligation thus imposed may and in no other, the President may suspend such not be disregarded. The Senate, while trying officer, and designate some suitable person to perform temporarily the duties of such office until the next the President, are not only invested with the meeting of the Senate, and until the case shall be functions of a court and jury, but also retain acted upon by the Senate, and such person so desigtheir official characters as Senators intrusted nated shalltake the oathsandgive thebondsrequired intruste by law to be taken and given by the person duly apwith the interests of the nation. Were this not pointed to fill such office; and in such case it shall so, the articles of iimpeachment might as well be the duty of the President, within twenty days be tried before the quarter sessions as before the after the first day of such next meeting of the Senate, to report to the Senate such suspension, with the Senate of the United States. We may not evidence and reasons for his action in the case, and remove the President because we believe the the name of the person so designated to perform the welfare of the nation would thereby be pro- duties of such office. And if the Senate shall concur welfare of the nation would thereby be pro- in such suspension and advise and consent to the moted, if the charges against him are not removal of such officer, they shall so certify to the ptoved; but if those charges are proved, we President, who may thereupon remove such officer, may, for the well-being of the Republic, abstain and, by and with the advice and consent of the Sen-may, for the well-being of the Republic, abstain ate, appoint another person to such office. But if from the exercise of that clemency which in the Senate shall refuse to concur in such suspension, other judicial proceedings is reposed in the such officer so suspended shall forthwith resume the court and in the pardoning power, but which functions of his office, and the powers of the person n so performing its duties in his stead shall cease, and in the matter of impeachment is involved in the official salary and emoluments of such officer the verdict of the Senate. shall, during such suspension, belong to the person There are three questions to be determined, so performing the duties thereof, and not to the officer so suspended: Provided, however, Thatthe President, namely: in case he shall become satisfied that such suspension 1. Has Andrew Johnson violated the law as wasmade on insufficient grounds, shallbe authorized, at any time before reporting such suspension to the charged? Senate as above provided, to revoke such suspension 2. Does such violation amount to what in and reinstate such officer in the performance of the the Constitution is denominated a high misde- duties of his office." -eann "SEC. 6. And be it further enacted, That every remeanor? moval, appointment, or employment, made, had, or 3. Do the interests of the country demand exercised, contrary to the provisions of this act, the the enforcement of the penalty for this viola- making, signing, sealing, countersigning, or issuing tion of law, or demand the exercise of clem- of any commission or letter of authority for or ia tion of law, or demand the espect to any such appointment or employment, ency? shall be deemed, and are hereby declared to be, high There are eleven articles of impeachment misdemeanors, andupon trialand conviction thereof the President. shall con hall be punished by a fine not exceeding $10,000, or presented againt the President. I shall con- l ipisn ote fi ve years, or bot byimprisonment not exceeding fve years, or both fine my remarks to the first three and the elev- said punishments, in the discretion of the court: enth. Provided, That the President shall have power to The first article charges Andrew Johnson make out and deliver, after the adjournment of the The first article charges Andrew Johnson Senate, commissions for all officers whose appointwith violating the' act regulating the tenure ment shall have been advised and consented to by of certain civil officers" by the removal of the Senate." Secretary Stanton. The second and third The first, second, third, and eleventh artiarticles charge a violation of the same act by cles of impeachment charge, in effect, that appointment of General Thomas as Secretary Edwin M. Stanton, being then Secretary of of War ad interim, and the eleventh article, as War, Andrew Johnson, on the 12th of August, construed by the Chief Justice, charges that 1867, suspended him from office under the the President violated the same act by "at- provisions of the second section of said act; tempting to defeat its execution." that within twenty days after the next meeting The first, second, and sixth sections of the of the Senate, to wit, on the 12th of December, 1079 1867, he reported to the Senate the reason for notifying the other Departments that Mr. Stansuch suspension, and also that he had ap- ton was removed, and informing the Senate pointed General Grant Secretary of War ad that by his order Mr. Stanton had ceased to be interim. That on the 13th of January, 1866, Secretary of War, refusing to acknowledge him the Senate having refused to concur in said sus- as such, and recognizing General Thomas as pension, and having so notified Andrew John- his successor. son, the said Edwin M. Stanton was restored It is again insisted, in defense of Mr. Johnto the functions of his said office under said son, that Mr. Stanton is not included within the act; that Andrew Johnson then devised means provisions of the tenure-of-civil-office act, and to prevent the execution of the said act by is not protected in his office thereby, and that striving to induce General Grant' to refuse to consequently his removal was legal; and that, surrender the said office to Mr. Stanton; that, a vacancy thus lawfully existing, the appoint-'failing in this effort, on the 21st of February, ment of General Thomas ad interim thereto 1868, he made the following orders for the was not prohibited by the said act. removal of Mr. Stanton and for the appoint- Let us examine whether Mr. Stanton is not ment of General Thomas as Secretary of War protected by the act. The proviso to the first ad interim. section of the act says the "Secretaries'of EXECUTIVE MANSION, State, Treasury, War, &c., shall hold their WAsHINGTON, D. C., February 21, 1868. offices respectively for and during the term of SIR: By virtue of the power and authority vested he President by whom they may have been in me as President, by the Constitution and laws of the President by whom they may have been the United States, you are hereby removed from appointed,andforonemonththereafter." The office as Secretary for the Department of War, and Constitution makes the presidential term four your functions as such will terminate upon receipt years, commencing the 4th of arch; and as of this communication. years, commencing the 4th of March; and as of this communication. You will transfer to Brevet Major General Lorenzo Mr. Lincoln's term commenced March 4, 1866, Thomas, Adjutant General of the Army, who has this this is his term, and Mr. Stanton, having been by day been authorized and empowered to act as Secretary of War ad interim, all records, books, papers, him appointed, is protected from removal by and other public property now in your custody and the words of the act. But it has been insisted chaRespectfully yours, ANDREW JONSON. that the true construction of the act is that the Respectfully, yours, ANDREW JOHNSON. lHon. EDWIN M. STANTON, Washington, D. C. Secretaries, to be protected under the act, must have been appointed during the existing WAS EINGTON, D. C., February 21 1868. presidential term, and that Mr. Stanton was SIR: Hon. Edwin M. Stanton having this day been not appointed by Mr. Lincoln after his renlecremoved from office as Secretary for the Department tion and during the existing term. There is of War, you are hereby authorized and empowered to some force in this claim, and I have only called act as Secretaryof War ad interim, and will immedi- attention to the fact at Mr. Stanton is within ately enter upon the discharge of the duties pertain- attention to the fact that Mr. Stanton is within ing to that office. the words of the act for the purpose of showing Mr. Stanton has been instructed to transfer to you that those who deny that he is under the proall the records, books, papers, and otherpublic prop- tection of the law are obliged to resort to erty now in his custody and charge. the law are obliged to resort to Respectfully. yours, ANDREW JOHNSON. intendment and construction to maintain their Brevet Major General LORENZO THO31AS, Adjutant- position. Genesal United States Armay, Washington, D. C. But let us look at the act again. The pivot The facts thus charged are proved beyond word of the act is "'successors." The body all dispute. There are many other facts of of the first section (as dintinguished from the aggravation, and showing intent, also proved, proviso) declares that " every person holding not referred to because not necessary to the or who shall hold a civil office by and with the case. advice and consent of the Senate shall be entiIf Andrew Johnson did remove Mr. Stan- tied to hold such office until a successor shall ton and issue a letter of authority for the ap- be in like manner appointed." So that neither pointment of General Thomas Secretary of the President nor the President and Senate War, or do either, contrary to the provisions of together can remove from office such civil offithe tenure-of-civiloffice act, he, by the terms cer, excepting by the nomination and confirmof the sixth section of that act, hereinbefore ation of a successor. The act, however, makes recited, is guilty of a high misdemeanor. two exceptions to this rule. It provides that It is insisted that he did not remove Mr. the rule referred to shall exist, "except as Stanton, because he is in fact still in possession herein otherwise provided;" and then we have of the War Department. The removal referred one exception to this rule in the second section, to as constituting the misdemeanor in the sixth which enacts that when the President suspends section does not mean a physical removal, but an officer he must send his reasons to the Senmeans such an act of removal as it was in the ate; and if the Senate advise and consent to'ower of the President to perform. Neither the removal of the officer, they shall so certify does the removal spoken of in the act mean a to the President, who may thereupon remove valid removal, for it would be an absurdity to him, and this without nominating a successor. hold that a valid act of the President was a And we have another exception to the rule in misdemeanor. The " removal" spoken of is the proviso to the first section, namely, that just such an act as the President performed, the Secretaries of State, Treasury, War, &c., isuing under his authority an order of removal, shall be subject to removal by and with the 1080 advice and consent of the Senate, and this are the guarded limitations of suspension if, at without a successor being appointed. will, the President can arbitrarily remove? It All civil officers, except as above excepted, is from this view that we conclude that Mr. hold their offices until a successor is appointed. Stanton is protected by the act, and that his Now, if Mr. Stanton does not come Within the removal and the appointment of General proviso to the first section, he comes within the Thomas was a violation of the statute. body of that section; and if within the proviso,.But may not the.President have been mishe can only be removed by and with the advice taken as to the true interpretation of the law? and consent of the Senate, and ifhe comes within Some Senators do not now consider that Mr. the body of the act he can only be removed by Stanton is under the protection of the law. a successor being appointed by and with the May not Mr. Johnson have fallen into the same advice and consent of the Senate. As the error? President has removed Mr. Stanton without a It is not possible that Andrew Johnson did successor being appointed by and with the not consider Mr. Stanton within the law, advice and consent of the Senate, and without because, during the recess of the Senate, he the Senate's having consented to suchremoval, suspended him under this law, and within the he has violated the law. limited period of twenty days submitted to the Ithas been argued that if the Secretary of War Senate his reasons for such suspension; and is not within the proviso he drops out of the his counsel, [Mr. Groesbeck,] in argument, act and is not protected by it, because, as is stated that the suspension was made under the said, the office of Secretary of War is in the act. Besides, there is no other authority under proviso, and the officer must remain where his which this proceeding could have been had. office is; and as you cannot carry the office If the Constitution conferred upon the Presiback to the body of the act, so you cannot carry dent the power of removal, it knows of no the officer there. The defect in this nice argu- proceeding of suspension, trial by the Senate, ment is that the body of the act as well as the and restoration to the functions of office. proviso speaks not of offices, but of persons- There are other facts which show that the the body of the act, of every person holding removal of Mr. Stanton was not the result of any civil office; and the proviso, of the Secre- any mistake. After the President had submittaries of State, Treasury, War, &c. So Mr. ted his reasons to the Senate and they had adjuStanton, either under the body of the act or dicated against those reasons, and after he had the proviso, is placed under the protection of informed the Senate that he had now removed the act. Mr. Stanton and appointed General Thomas. But why should we be technical in constru- the Senate sent the President a resolution. ing a statute that is plain? The second sec- passed by that body, to the effect that he had tion enacts that whenever any officer (except acted in violation of the Constitution and the judges of the Supreme Court) appointed as laws. The President did not annul the order aforesaid-that is, appointed by and with the of removal and appointment, but, on the conadvice and consent of the Senate-shall during trary, at the next meeting of the Senate, on a recess be guilty of misconduct in office, or the 24th of February, 1868, sent them a mescrime, or become incapable or legally disqual- sage stating, in substance, that if satisfied that ified to perform his duties, in such case, and his removal of Mr. Stanton should involve his in no other, the President may suspend such own removal, he still would have removed him. officer; and within twenty days after the next The House of Representatives then presented meeting of the Senate the President shall report articles of impeachment against him, and since to the Senate the reasons for his action. If then, for a quarter of a year, Congress has the Senate concur in such suspension, and been engaged in the investigation relative to consent to the removal of such officer, the this removal and appointment, but he has never President may remove him; but if the Senate annulled those orders, but stands to-day conshall refuse to concur in such suspension, such temning, not the Senate, but, the sovereign officer so suspended shall resume the functions power of the nation —the law. Had Andrew of his office. Mr. Stanton is, beyond doubt,. Johnson at any time withdrawn from his posiincluded within the provisions of this second tion of defiance of that law which he is sworn section, being appointed by and with the advice to execute, he might have pleaded that he was and consent of the Senate, and has been treated mistaken. The Senate has spoken, the Repby the President as within the section by being resentatives of the people have spoken, and he suspended under it. disregards their voice. He cannot plead the And now, I insist, that if the President can views of individual Senators. Neither can he, only suspend for cause during a recess of the plead the opinion of his Attorney General; for Senate, a fortiori, he cannot remove without no offer that I know of was made to prove that cause during the session of the Senate. What the Attorney General ever officially gave any an absurdity to hold that when the President opinion to sustain the President's views, cerwants to be rid of an officer he has only a tainly no proof of such an opinion after the limited power of temporary suspension, and President suspended Mr. Stanton under this yet has, at the same time, an unlimited power law. Before the nation and the world the of absolute removal! Of what possibleefficacy question Mr. Johnson forces us to determine '1081 is, whether the law in America shall or shall than the violation of a prohibitory statute lik e not be supreme. The issue joined now to be the one in question, but, so far as the Govsettled is, where is lodged the ultimate power ernment is concerned, may not be so imporof the nation-in one man or in the repre- tant. sentatives of the people? If the willful, defiant, persistent disregard of Such being the issues forced upon us, I feel law in a Chief Magistrate of a great people does that we have no election but to stand by the not constitute a high misdemeanor in office, doctrine that power is with the people. what does? The. State is infinitely less interAgain, let us inquire whether the President's ested in the personal dereliction of the official purpose may not have been to test the consti- than in a course of action, which, if tolerated, tutionality of the tenure-of-civil-office act. saps and destroys the Government; and as That act makes the consent of the Senate down to the present hour the law and its authors necessary to the removal of certain civil officers are defied, we cannot do otherwise than declare who can only be appointed by such consent. that such conduct constitutes a high misdeThe Constitution nowhere gives the President meanor in office. the right to remove from office, and to hold 3. Is this a case where the Senate by its verthat he has that power, even against the will dict should, in view of the well-being of society, of the Senate, is virtually to destroy that pro' pass over the transgression, or should they vision of the Constitution which makes the enforce the penalty of removal provided by the advice and consent of the Senate necessary to Constitution? an appointment. It is the same power that On this point the tribunal trying the Presiappoints that has the right to remove. For dent act not only as a court and as jurors, but eighty years the removal from office has been act also as Senators, bound to look at the congoverned and regulated by law. dition and to the welfare of the country. But, waiving the. constitutional argfiment, is There are considerations bearing on the questhe President to violate laws at pleasure on the tion whether the penalty of the violated law shall plea that he desires to ascertain their constitu- be enforced which seriously affect the welfare tionality? Does he not know that since the of the nation. Among those considerations formation of the Government not more than are, Mr. Johnson's desertion, at the most two or three general laws have ever been de- critical of periods, of the cherished principles dared invalid? Could he not have taken some- of the party that confided in and elected him; lessimportant case for the trial? Three months his denial of the validity and constitutionality have transpired since the removal, and the first of our Government as organized, which had step to make this test has not been taken. And just been rescued at a great price from the if this suit was now instituted it could not pos- hands of treason; the repetition of that sentisibly be determined before March next. No, ment from his lips by his counsel on the trial; such was not the President's purpose. After the declaration of his annual message that in the Senate refused to concur in his reasons for his controversy with Congress he had contemMr. Stanton's suspension his purpose was to plated a resort to force; his encouraging a carry out his own arbitrary will in defiance of s'pirit of discontent and disloyalty in the rebel the law and its authors. States by his offensive denunciations of the 2. Andrew Johnson having violated the law reconstruction measures; his assuming, withas charged, the next question is, does such vio- out right, to establish governments in the lation constitute a high misdemeanor? South which left the defenders of the Union The tenure-of-civil-office act, in its sixth unprotected; his exertion of influence against section, declares its violation to be a high mis- the adoption of the fourteenth amendment to demeanor; but that enactment is not conclu- the Constitution, to the ratification of which sive on the Senate, for if it were the legislative the people fondly looked for national har. branch of the Government, by mere statutes, mony; his obstruction to the practical workmight destroy the power of the executive branch. ing of those measures of reconstruction which The Senate are called on to determine whether the rejection of the amendment referred to the violation is such as, under the Constitution,, rendered necessary; his pardoning of rebels is subject-matter for impeachment and convic- and his appointing them to office; the fact that tion. the distrust of Congress in the Chief MagisThe Constitution makes treason and bribery trate has been such that a due regard for the (crimes eminently affecting the State) and other Republic induced them to remain in session, high crimes and misdemeanors impeachable. to convene at unusual perids of the year, and The word "high," as qualifying misdemean- induced them to enact laws requiring all miliors, clearly intends to direct and restrict im- tary orders to be issued by the " General.of peachment to such offenses as derive their the Army," and prohibiting the removal of importance from the effect they have upon the that officer by the President; the general conState. viction that the unfortunate millions just reForgery, arson, and other crimes, so far as lieved from bondage at the South who have the individual who perpetrates them is con- been true to the Union are deprived of the cerned, are more serious and higher crimes much needed protection of the Federal Goy 1082 ernment. These, and many like considera- OPINION tions, force us to the conclusion that if Andrew OF Johnson has willfully violated the law its pen- HON. ALEXANDER G. CATTELL. alty should be enforced. But we are sworn that we will do " impartial justice " in the case, and to try the ques- Having carefully considered the articles of tion whether we may not be influenced by impeachment preferred by the House of Repprejudice let us apply a severe test. resentatives against Andrew Johnson, PresiSuppose that the tenure-of-civil-office act dent of the United States, and the evidence had been in force during the administration adduced in support thereof, and having arrived of Abraham Lincoln, and that distinguished at the conclusion that the charges contained in patriot had under the law, from some personal the leading articles are fully sustained by the pique, suspended Edwin M. Stanton, a man proof, and that the acts therein charged and who has organized more victories for freedom proved being plain violations of the Constituthan any living civilian; suppose Mr. Lincoln tion and of the laws of the United States, conto have submitted his reasons for such suspen- stitute a misdemeanor in office, I prop-se to sion to the Senate, and that body, after due state the grounds and reasons for the conclusion deliberation, to have determined against the to which I have arrived. sufficiency of the'alleged cause of suspension, If it may seem presumptuous for one uneduand (as authorized by the law) to have ordered cated in the law l o deal with a question which that Mr. Stanton resume the functions of his has been illuminated by the discussions on office; and that then Mr. Lincoln, having first either side of the most learned lawyers in the endeavored to seduce the temporary incum- land, I maybe permitted to say that, profoundly bent of the office not to surrender the' office, impressed with the gravity of the issue, and and having in this failed, should have issued deeply. sensible of the responsibility which an order for the absolute and unqualified re- rests upon each individual Senator, I prefer to moval of Mr. Stanton, and for the appoint- state for myself and in my own language the ment of a successor, and that he by message grounds upon which my verdict of guilty is should have informed the Senate of what he given. I propose to confine my rerarks chiefly had done; and let us suppose that the Senate to the consideration of' the first three articles. by resolution promptly informed Mr. Lincoln Stripped of all technicality the following is the that in his procedure he had acted contrary to statement of the charges contained therein: the Constitution and the laws, and that then Article one charges the issuing of an order Mr. Lincoln had sent a message to the Senate in writing for the removal of Edwin M. Staninforming them that if he had known that his ton, Secretary for the Department of War, as own removal would be the consequence of the contrary to the Constitution and laws, and esremoval of Mr. Stanton he would neverthe- pecially as contrary to the act entitled "An act less have removed him; then suppose that the to regulate the tenure of certain civil offi'ces," Representatives of the people had presented passed March 2, 1867. articles of impeachment against Mr. Lincoln, Article two charges the issuing and delivery and the Senate had proceeded with the trial, of a letter of authority to Lorenzo Thomas, and that for three months,with all these notifi- authorizing and empowering him to act as cations, Mr. Lincoln had persisted in his defiant Secretary for the Department of War, as a vio. disobedience to the law and to the will of Con- lation of the Constitution, and especially as gress, and thus made the unavoidable issue contrary to the tenure-of-office law. whether the law should be supreme, and Article three charges that Thomas was apwhether the ultimate power of government pointed without authority of law, without the was with one intrusted only to execute law, or advice and consent of the Senate, and while it with the Representatives of the people, would was in session, when no vacancy had hapAbraham Lincoln have been entitled to an pened during the recess of the Senate, and no acquittal? No. If all the tenderness of feel- vacancy existed at the time, with intent to vioing which now clusters around the memory of late the Constitution. our martyred President had belonged to him The second and third articles, charging in while living, and the issue had been thus con- special and general terms the appointment of spicuously forced upon us, whether he should Thomas as a violation of law, may, I think, remain in office and the law be contemned, or be held to present two distinct aspects of crimhe be removed and its majesty vindicated, duty inality, namely, the unlawful appointment and would have impelled an adjudication for his the unlawful removal which was declared in removal. the letter, and which is implied in, and is of The case I have supposed is that proved necessity accomplished by, the unlawful apagainst the respondent in these proceedings. pointment; and they are sustained if it is shown That justice which would have been executed that the appointment of Thomas alone is unlawagainst Abraham Lincoln must be impartial ful, or if it is shown that it was unlawful as when applied to Andrew Johnson; and I shall including the removal of Stanton, so that the vote for conviction. two acts taken together were criminal; for 1083 the appointment to an office thereby unlawfully implications of legislative enactment. Assumed vacated includes all the criminality of an unlaw- necessity or convenience have conceded to him ful removal. the power during the recess of Congress, but But I propose to consider first the charge neither the language nor the implications of contained in the first article, namely, the issu- legislative enactments have extended the ing of the unlawful order for the removal of Mr. power; necessity or convenience do not deStanton. The fact that the order was issued is mand, nor has precedent sanctioned, its exerproved, and, indeed, is admitted, in the answer cise at any other time. of the respondent. The inquiry, then, is, was The case of Pickering, the only one cited the removal of Mr. Stanton an act contrary to which has any similarity with the case under the Constitution or laws of the United States? consideration, does not make against the prinIf it was, then it was clearly a misdemeanor ciple contended for. The fact that an immein office. diate nomination to the Senate was stated' in The Constitution gives no such power of the President's letter to Mr. Pickering to be removal directly to the President, and the necessary, and the fact that it does not appear advocates of such a power can claim it only as that the nomination of his successor did not derived by implication from that clause which precede the letter informing him of his reaffirms that "the executive power shall be moval, together with the fact that it has never, vested in the President." through sixty-eight years of immensely inNow, if.we assume that the laws regulating creased patronage, been drawn into a preceand restricting the power of removal, which dent for the exercise of such executive power, have been passed from time to time, including show that the real circumstances of the case the tenure-of-office act, are constitutional, and were not such as to assert any executive claim that the power is subject to legislative con- to'this power. struction, then this power cannot be held to But even if they were such, a single act, be a quality inherent in the executive power as standing alone and never repeated, through a conferred on the President by the Constitution. long lapse of years crowded with similar occaIf such a power ever existed as an element of sions, should have no weight as a precedent in constitutional executive power, it could not be favor of the principle which it seems to illuscurtailed or restricted by legislative enactment; trate, but, on the contrary, it may be inferred but it is restricted by these acts; and if they that the act was not accepted as correct pracare admitted to be valid laws, which hitherto tice at the time, that the principle was disaphas not been denied, the existence of the abso- proved of, and the practice ever since disconlute power of removal as an essential executive tinued. Thus it appears b me that even before quality is concluded. the passage of the "tenure-of-office law," or All the implications of the Constitution are even if Mr. Stanton's case is not included in against the idea that this power is in the Pres- it, the removal charged in the first article was ident. The fact that the power of appointment an act unauthorized by the Constitution or the is given by the Constitution to the President law, principle or precedent.' and Senate jointly would seem to deny him the I am not unaware of the fact that the views power to vacate an office which he could not which I have thus briefly stated, questioning alone fill and create a vacancy which he cannot the President's power of removal, as a constialone supply. The provision that he may fill tutional prerogative in the absence of legislavacancies "that may happenduringtherecessof tive enactment, are controverted by many. theSenate," andthen onlyuntilthenextsession, Differences of opinion on this point exist now would seem to deny him the power to fill any as they did at the time of the adoption of the vacancies other than those which happen, or to Constitution, and among the distinguished men fill any at any time other than "during the of the first Congress. An examination of the' recess of the Senate." Athing happens, in the debates which took place in the Congress of largest sense that can be given to that term, 1789 upon the acts establishing the several when it comes to pass not by the motion of the Departments, will show that the eminent statesperson whose action is affected by the happen- men of that day differed widely in their coning. A vacancy does not happen when it struction of the Constitution as to the Presioccurs by the action of him who is to fill it. dent's power in this regard. But whatever The clause, then, does not provide for the fill- differences of opinion may have existed then ing of vacancies which are made by removals, or may exist now upon this point, one thing is but confines the President's power to other clear, the power has been considered a proper vacancies, even in recess, and implies that subject for legislative construction from the there shall be no removals unless the Senate is time of the First Congress down to the present in session and advise and consent. day, and it is too late now to question the right The President, then, derives from the Con- of legislative control over the subject. stitution no power of vacating by removal, Mr. Manager BINGHAM quotes the authority except by the nomination, confirmation, and of Webster in proof of the position that the appointment of a successor. Whatever of provisions of the acts of 1789, establishing the other power of removal is rightfully exercised Departments of State and War, which provide. by him has been derived from the terms or an officer to have charge of the records, &c., 1084 i"whenever the said principal officer shall be referring, as it does, to those in office at the removed from office by the President, " was a time of its passage, as well as those thereafter grant of power, and from that day to this Con- to be appointed, includes, either in the general gress has exercised the power to grant and to provisions of the body of the section or in the regulate the power of -the Executive in this par- exception, all persons holding any civil office ticular, and the right has never been seriously appointed with the consent of the Senate. The questioned or the constitutionality of the laws words " every person holding any civil office doubted. are as comprehensive as language can make In pursuance of this practice the Thirty- them, and, in the absence of any exception, Ninth Congress passed, March 2, 1867, the act would include all, and, of course, Mr. Stanton. entitled "'An act to regulate the tenure of cer- But the fact that there is an exception makes tain civil offices," which covers the whole even this strong language more comprehensive qwestion of removal from and appointment to than before; for when an exception is menoffice in all cases not specially provided for by tioned the conclusion is strengthened that the Constitution. This law, framed to restrain nothing is left outside of the general provisions the President in the exercise of the lesser except what is included in the exceptions. power of arbitrary removal during the recess, Thus the words " all" and "' except," in concertainly by its spirit, scope, and object intends struction, include everything. to deny, and most clearly in all its terms and Besides, the express language of the general implications does deny and conclude the larger clause provides for all civil officers thus appower of arbitrary removal " during the ses- pointed, except such as are affirmatively othersion of the Senate." Let us examine the pro- wise provided for " herein;" that is, in the law visions for a moment in their bearing on this itself. This shows that the law undertakes case. The terms of the law define in strict affirmatively to provide "therein" for every language the limits of executive authority on such officer. It thus expressly says that all this subject. Its passage over the veto of the are included and provided for in the general President by two thirds of both Houses of Con- clause for whom there is not some other affirmgress exhausted all right to question its con- ative provision made in the proviso. Thus no stitutionality by the Executive, whose duty officer or class is left out of the law by implicathenceforward was to execute it as a law of the tion, for it declares substantially that every one land. excluded from the exception by its language or I shall then assume, for the purposes of this by implication, is not taken by the exception statement, that it is a valid and constitutional out of the effect of the general clause. To say, law in all its parts and that the President then, that Mr. Stanton's case is not provided knew and understood that it had been so for in the exception, is to affirm that it is indeclared with express view to his executive cluded in the general clause. It matters not, action, and that he knew if he violated it he for the purpose of this trial, whether the case was directly attacking a legislative power which of Mr. Stanton comes under the general clause the representatives of the people claimed and or the exception. The reasoning is strong that meant to assert. the case is included in the exception. The The only remaining inquiry upon this par- words of the exception are, "may have been ticular question is, does the law apply to Sec- appointed." These words seem to contemretary Stanton's case? plate, in relation to the tenure of these offices, If the removal of Stanton was against the the possible existence of the term of a Presiprovisions of this law the President is guilty dent other than the one who may be actually under it, for the only intent in question is the in office when the question of removal arises. intent to break the law, not the motive or inten- The act took effect upon offices as they existed tion with which it was done. If Stanton is at the time it passed, and when it referred to included among the officers referred to in the terms during which they were, after its passage, first section of this law, then his removal with- to expire, it referred to the term then existing out the advice and consent of the Senate was and to those which should occur in the future. against its provisions. The language of this By the Constitution the term of the Presisection is- dent continues " during four years." The "That every Derson holding any civil office to which word term means strictly limit or boundary. A hehasbeenappointedbyandwiththeadviceandcon- term of office is the time which must elapse sent of the Senate, and every person who shall here- before its limit is reached. The limit of Mr. after be appointedto any such office and shall becomeT duly qualified to act therein, is and shall be entitled Lincoln's second term was four years from the to hold such office until a successor shall have been 4th of March, 1865. When the word term was in like manner appointed and duly qualified, except used in the act, this was the term contemplated asherein otherwise provided: Provided, That the Secretaries of State, of the Treasury, of War, of theNavy, in regard to offices filled by him, and still held and of the Interior, the Postmaster General, and the by his appointees at the time of its passage. Attorney General, shall hold their offices respectively This term did not expire on the 21st of Februfor and during the term of the President by whom they may have been appointed, and one month ary, and has not yet expired. If Mr. Lincoln thereafter, subject to removal by and with the advice had been living when the act was passed it and consent of the Senate." would certainly have been held to apply to his Now, it seems irresistible that this language, present term, as it then existed, and to extend 1085 the offices to the end of it. It is not the less such suspension was made on insufficient grounds, Mr. Lincoln's term that it was also Mr. John- shall be authorized, at any time before reporting sons's who was, in the language of the Con- such suspension to the Senate as above provided, to sons, who was, in the language of the Con- revoke such suspension and reinstate such officer in stitution, chosen "for the same term." When, the performance of the duties of his office." upon Mr. Lincoln's death, Mr. Johnson came in, the powers and duties of the office devolved It will be seen that this section operates in upon him for the remainder of Mr. Lincoln's connection with the other sections of the law tern. He had no other relation to the term, to prescribe the President's relations to offices and no more or otherpower in relation to the which are not vacant. I say in connection and no more or other power in relation to the officers he found in than Mr. Lincoln would with the other sections of the law, because the officers he found in than Mr. Lincoln would law must always be construed as a whole, and have had had he lived. It matters not, as I law must always be construed as a whole, and have said, whether these views prevail or not. a particular section must be construed in relaIf they do not, it only shows that Mr. Stan- tion to the other sections. It is also true, of ton's case is not provided for in the proviso, course, that the act only operates upon what for thae reason that the term of the President the Constitution does not itself fix, and only for the reason that the term of the President by whom he was appointed had already lapsed, so far as legislative enactment may. Now, the and, therefore, the terms of the limitation of President's relations to offices for the purpose the proviso cannot be made to apply to his of absolute removal are fixed by the first seccase, and that not being " otherwise provided tion of the act in accordance with the profor therein" is not included in the exception, visions of the Constitution. This section proand, there"fore is nincluded in thegeneraltlase, vides in effect that there shall be no absolute andtherefore isincluedintegeneraca removal of the officers therein included except for every case not therein otherwise provided removam of the oacers therein included except for is covered by the general clause. by nomination and confirmation of a successor. Again, the second section of the act, which This operates to confine absolute removals to applies to all officers, (except certain classes in times when the Senate is in session. This being relation to whom the Constitution prescribes fixed, the President's relations to officers durotherwise, namely, the judges of the United ing the recess of the Senate is provided for in States courts.) and contains no other excep- the second section. This second section, in tion of any officer, of course included Mr. enacting that when any officer&c,''shall, Stanton. Theveryfactthat thissectionexcepts during the recess of the Seno other" the shon," by this special exception only such officers &e.,"insuchcaseandinnoother"thePresi confirmed by the Senate as are placed out of its dent may suspend," prescribes three governreach shows that it was intended to affect all ing things which are each essential elements of within itsreach. Byitsexpresstermsit enacts such case and of the action prescribedin that the President, within the limits and in the regard to it: manner therein prescribed, may, "during. a First. That " during the recess of the Senrecess of the Senate, suspend" an officer, in ate" the President shall do nothing more in the case therein mentioned, " and in no other." relation to any office than " suspend" in the This section reads as follows: manner provided for in this act. Second. That" duringthe recess of the Sen"SEic. 2. And be it further enacted, That when any ate" he may act in " such case " as is provided officer appointed as aforesaid, excepting judges of in the act, but "in no other. This is an the United States courts, shall, during a recess of the in the act, but in no other. This is an Senate, be shown by evidence satisfactory to the essential element of his relations to the offices President to be guilty of misconduct in office, or ".during the recess of the Senate," as precrime, or for any reason shall become incapable or scribed the by legallydisqualified to perform itsduties, in such case, ed by te act. and in no other, the President may suspend such Third. That there shall be no suspension officer and designate some suitable person to perform even, except "during the recess of the Senate" temporarily the duties of such office until the next meeting of the Senate, and until the case shall be for it is an essential element of " such case " acted upon by the Senate, and such person so desig- that it shall be during recess. nated shall take the oaths and give the bonds re- Now, the fact that this second section, which quired by law to be taken and given by the person Now, the fact that this second section, which duly appointed to fill such office; and in such case it does not refer to any officers other than those shall be the duty of the President, within twenty referred to in the first section, but assumes days after the first day of such next meeting of the to prescribe for all officers under the circumSenate, to report to the Senate such suspension, with to prescribe the evidence and reasons for his action in the case, stances not provided for in the first sectionand the name of the person so designated to perform that is, during the recess-is without any excepthe duties of such office. And if the Senate shall concur in such suspension, and advise and consent tion which would exclude Mr. Stanton, seems to to the removal of such officer, they shall so certify to be conclusive that he is not omitted in the first the President, who may thereupon remove such offi- section, which covers the time of the session; cer, and, by and with the advice and consent of the ection which covers the tim e of the session; Senate, appoint another person to such office. But for why make the second section broader than if the Senate shall refuse to concur in such suspen- the first, and restrain the President's power sion, such officer so suspended shall forthwithresume over Mr. Stanton during recess, and leave him the functions of his office, and the powers of the person so performing its duties in his stead shall unprotected during the session of the Senate? cease, and the official salary and emoluments of such Then the third section of the act, suppleofficer shall, during such suspension, belong to the mentary to the first and second sections, preperson so performing the duties thereof, and not to the officer so suspended: Provided, however, That scribes in respect to the filling of offices in case the President, in case he shall become satisfied that of the happening of a vacancy during the re 1086 cess of the Senate, and the condition of these and how the suspension may be made, and offices after the constitutional power of the forbids one under all other circumstances. President in relation to them has been ex- The President acted strictly under the provishausted. The third section reads as follows: ions ofthis law; first, in the form of the sus"SE.8. Aind beit furtherenacted, ThatthePresident pension; second, in the authorization of Genshall have power to fill all vacancies which may eral Grant; third, in the notice to the Secrehappen during the recess of the Senate by reason of tary of the Treasury; fourth, in his report to death or resignation, by granting commissions which the Senate. Indeed, how could he intend, as shall expire at the end of their next session there- he ntend, o e inte after. And ifno appointment, by and with the advice he claims that he did intend, to test in the and consent of the Senate, shall be made to such office courts the constitutionality of the law by the so vhcant or temporarily filled as aforesaid during removal of Mr. Stanton, if he thought that his such next session of the Senate, such office shall remain in abeyance, without any salary, fees, or emol- case was not included in the law? uments attached thereto, until the same shall be filled Again, by the second section, which applies by appointment thereto, by and with the advice and without question to Mr. Stanton, the President consent of the Senate; and during such time all the powers and duties belonging to such office shall be was not authorized " during the recess of the exercised bysuch other officer as may by law exercise Senate" to "remove" him; he was only. such powers and duties in case of a vacancy in such authorized, and only claimed to be authorized, to "suspend" him, although it was during the Thus it will be perceived that these three recess. Now, upon whatever implication of sections of this act, taken together, provide, constitution or law the power of removal or subject to the provisions of the Constitution, a suspension is assumed for him, that implicageneral rule of governmental action, and thus, tion is certainly, on principle and precedent, while the letter of the first section includes, as stronger in favor of the power during a recess certainly as general language can, the case of of the Senate than during its session. Upon Mr. Stanton, an examination of the tenor and what principle, then, in view of the authorita. effect of the whole law confirms this construc- tive declaration of Congress that he may only tion. It would, upon every principle of legal " suspend" an officer "during the recess," can construction, require an express exception to he claim to remove him during the session? take an officer outside of the terms of a law But, again, this second section in terms setintended as a general rule. On no principle ties the question of removal against him. The can this be done by implication. Implication section is admitted to include Stanton within avails only where the letter of the law is doubt- its general provisions. It provides that the ful, and its spirit, as derived from the law itself, President may, under certain circumstances, would require an exception to some general suspend an officer during the recess. This he provision. This law, then, covers, and was did. It provides that having done so, he shall, intended to cover, in connection with the pro- when the session occurs and within a limited visions -of the Constitution, every possible con- time after its commencement, report the susdition of offices, and to apply to all without pension, with his reasons, to the Senate. This exception. he also did. It also provides that, if the SenIf this law provides, wherever the Constitu- ate shall concur and advise and consent, and tion does not, a general rule in relation to so certify, he may "thereupon remove." It all offices, it repeals, to its extent, all former will be observed that this is during the session laws, and destroys the effect of all previous of the Senate, and that the removal is only to customs, rules, or precedents; and if it pro- be made upon the advice and coisent of the vides such general rule in relation to all condi- Senate. He may remove him " thereupon," tions of offices, without exception, it covers the that is, not otherwise. In Mr. Stanton's case subject-matter of all former laws on the same the Senate did not concur, and the condition subject, and overlies and repeals them. of his removal being wanting, the President It is apparent, then, that after the passage could not remove him, but under the provisof this act the whole law in relation to both ions of this section he "forthwith resumed the removals and appointments of civil officers functions of his office." He holds his office, requiring confirmation was to be found in the then, by the provisions of this law, contained Constitution and the tenure-of-office act. These in a section which certainly applies to him, together constitute the general governing rule contrary to the will of the President, under the of action on this subject, and all lawful action action of the Senate, whichis thus by law made must be under and in accordance with it, and capable of preventing his removal. Why any official act in disregard of or contrary to should he so hold it, and why is this power it is a violation of law and a misdemeanor in declared by law to be in the Senate, and the office. President's power thus restrained, if the PresThat the President understood that this was ident may the next moment remove him withthe effect of the tenure-of-office law is con- out consent and despite the action of the Senclusively apparent. His action in August last ate? And does not this show that this law is in regard to Mr. Stanton, and his suspension intended to comprehend the whole subjectfrom office, was had under the second section matter, and to regulate in all respects the power of this law, otherwise it could not lawfully have of the President in this regard? Is it not conbeen had atall, forthat section prescribes when elusive that all power of suspension and re 1087 moval, except by nomination and confirmation, officer of one of the Departments to perform under the Constitution, is exhausted by these the duties "until a successor is appointed, or.proceedings? What becomes of the claimed such absence or inability by sickness shall Implication of a power of removal in the Pres- cease. " ident, without precedent, or even with. prece- This was the condition of the law before the dent, in the face of the irresistible language passage of the "'tenure-of-office act." and implication of this law, that the Senate The act of 1792 had been superseded by the must concur in all removals, and that any act of 1795, and this had been followed in turn removal without such concurrence is a direct by the act of 1863. This last act was, I doubt defiance of the legislative authority, and a not, intended to supersede the act of 1795, as it misdemeanor in office? provides that the vacancies to which it applies The remaining question on these three arti- shall be filled with a select class.of persons, cles is, was the appointment of Thomas, as set and there could have been no reason why all out in the second and third articles, an act vacancies in the same office, however proauthorized either by the Constitution or by duced, should not be filled by the same select law? If not, then these articles are sustained. class. The act appears to be intended to A general power of appointment by the provide for the temporary supplying of all Executive, by and with the advice and consent vacancies in the offices referred to, and by of the Senate, a special power himself to fill omitting from its list of vacancies vacancies vacancies " which may happen " during the by removal, it seems, by its later implication, recess, and the power to appoint inferior offi- to conclude the President's power of removal, cers where such power has been given him by as derived from the implications of the earlier legislative enactment —these comprise all the laws of 1789, creating the Departments. authority of the President for this purpose, But if it is conceded that the President regiven in or to be derived from the Constitution. tained the power of removal during the recess, Whatever rightful authority, then, was exer- after the passage of the act of 1863, it must cised by the President in making this appoint- also be conceded that the act of 1863 did not ment to the War Department, must have been cover all the subject-matter of the act of 1795, derived by the express terms of some legislative and does not, therefore, completely supersede enactment. it. It will be seen that none of these laws By the eighth section of the act of 1792, affirmatively recognize or imply a power of making alterations in the Treasury and War removal in the President during the session of Departments, it is made lawful for the Presi- the Senate, and consequently they- give him dent, in case of the death, sickness, or absence no power of appointment to a vacancy made by of the Secretary, to authorize some person to him at such time, while not one precedent can perform the duties of the office until a successor be found that goes to this extent, so that this is appointed, in case of death or the absence power is claimed contrary to the necessary or inability from sickness shall cease. The implications of the Constitution, and without only actual vacancy contemplated by this act authority either of law or precedent. But the is one happening by death. tenure-of-office act clearly covers and regulates The act of 1795, amendatory of the last this whole subject-matter, and supersedes the mentioned act, declares, generally, that in every previous laws, including the act of 1795. case of vacancy in the Department " it shall be We have already seen that this act applies to lawful" for the President to authorize any per- this case. son to perform the duties of the office until a The second section certainly does apply, and successor be appointed, "provided that no one if the vacancy which is said to exist in the vacancy shall be supplied in manner aforesaid War Department is claimed to have been made for a longer term than six months." This act " during a recess" in August last, it must have contemplates lawful vacancies only, for none been under that section, for it provides that others are vacancies which can be lawfully " during the recess of the Senate" vacancies filled. We have already seen that the President shall only be *made by the President by suscould not lawfully make a vacancy without the pension, and that no suspension shall be had, coicurrence of the Senate while it was in ses- except in a case made under its provisions, sion to take concurrent action; and to claim and that " in such case and in no other" the that the President is authorized by this act to President may designate a suitable person temmake an appointment to a vacancy made dur- porarily to perform the duties; but if the Sening a session of the Senate by his separate ate does not consent the suspended officer action, is simply begging the whole question. shall "forthwith resume the functions of his If there was no lawful vacancy, it could not office." So if the vacancy was made in vacalawfully be filled, and there is nothing in the tion that vacancy no longer existed after the law which makes any vacancy lawful which was refusal of the Senate to consent to it, and the not lawful before its passage. By the act of appointment of Thomas was without authority February 20, 1863, it is made lawful for the of law. But the terms of the President's letter President, in case of the death, resignation, of February 21 to Mr. Stanton assume that he sickness, or absence of the head of any execu- was then in office, and was thereby removed tive Department, to authorize the head or other " during the session of the Senate." We have 1088 already seen that all removals at such times the unlawful removal, but is in itself an affirmare regulated by the first section of the tenure- ative, while the other is, in some sense, but a of-office act, and that the case of Stanton is negative act of usurpation. included by its provisions; but by that sec- Whatever plea of misinformation, mistake, tion all temporary or ad interim appointments or absence of intent may be set up by his friends to the offices referred to therein are abolished, or his counsel the President makes no such and ihe officer appointed by and with the plea. He has claimed, and does claim in his advice and consent of the Senate is " entitled, answer and by the lips of his special repreto hold" his office until a successor shall have sentatives among the counsel, that he has been appointed " in like manner,s" that is, with removed Mr. Stanton and appointed Thomas the concurrence of the Senate. The appoint- by virtue of power vested in him as the Chief ment of Thomas was not " in like manner." Executive, notwithstanding the tenure-of-office It will also be perceived that the words in act. And it is proved that he intends to carry the body pf the first section immediately pre- out his attempts should this trial result in his ceding the proviso are " except as herein oth- favor. By a verdict of acquittal, then, the Senwise provided." This language refers to the ate must either recede from their position on whole act. Its meaning is except as is other- this act, or must submit that the President may wise provided in this act. Now the term of defy its spirit and violate its express provisions office, and the manner of removal from and with impunity. appointment to office, are distinct propositions In the consideration of this question I have contained in the body of the section. The assumed the constitutionality of the tenure-ofproviso relates only to the term of the officers office act. I cannot consent to even consider therein named; but that part of the subject- this a debatable point. The Senate has solmatter of the general clause which provides emnly adjudicated this question for itself on how the successors of all civilofficers requiring four distinct occasions, each individual Senator confirmation shall be appointed, namely, " by acting under the obligation of an oath as solemn and with the advice and consent of the Sen- and binding as that administered at the comate," is not affected bythe proviso. This sub- mencement of this trial, of the solemnity of ject is " not otherwise providedfor" in that which we have been so often reminded by the proviso in relation to any officers, and the pro- counsel for the President. First, by the pasvision of the general clause in relation to it, is sage of the bill in question, after a full discusnot restricted by the terms or implications of sion of its provisions, by a vote of 29 yeas to the proviso. 9 nays. Secondly, the bill having been subTo take the officers mentioned in the excep- mitted to the President for his approval and tion wholly outside of the provisions of the returned to the Senate with his objections in general clause, which covers other subject- an elaborate veto message arguing against the matter besides that covered by the exception, constitutionality of the measure, the Senate the language must have been except the offi- again passed the bill in the face of the argucers hereinafter mentioned, or something of ments submitted, by a vote of more than two like effect. Thus, whether Mr. Stanton's case, thirds of the members present and voting. as far as relates to the tenure of his office, is Upon the question " Shall the bill pass, the within the general clause or the exception of objections of the President to the contrary this section, or within neither, his successor's notwithstanding?" the vote was as follows: case is clearly within the general clause, and "YEAs-Messrs. Anthony, Cattell, Chandler, Conno one can be lawfully appointed to succeed ness, Cragin, Edmunds, Fessenden, Fogg, Foster, him except " iln like manner," as he was him- Fowler. Frelinghuysen, Grimes, Harris, Henderson, Howard, Kirkwood, Lane, Morgan, Morrill, Nye, self appointed; that is, with the concurrence Poland, Pomeroy, Ramsey, Ross, Sherman, Sprygue, of the Senate. Stewart, Sumner, Trumbull, Van Winkle, Wade, Again, the reasoning on the spirit of the Willey, Williams, Wilson, and Yates-35. "NAYs —Messrs. Buckalew, Cowan, Davis, Dixon, second section of the act is irresistible. Does Doolittle, Hendricks, Johnson, Nesmith, Norton, it not seem a ridiculous claim that the Presi- Patterson, and Saulsbury-11." dent may, " during a session of the Senate," Thirdly, the Senate recognized the validity appoint a successor or locum tenens, of any kind, of this law when, in response to the message for an officer whom the Senate has just, under of the President communicating the fact that express authority of law, refused to remove, he had "during the recess" suspended Mr. and who has just, under like authority, resumed Stanton, the Senate took action, under and in the functions of his office? accordance with the said law, and after due The appointment of Thomas, then, was un- consideration refused to concur in the suspenauthorized by any law, and was an unlawful sion of that officer, and informed the President attempt, by the exercise of usurped executive thereof. Fourthly, when the President, after power, to seize upon and control a most im- having exhausted all legal means to displace portant department of the Government, in this faithful and efficient officer, and rid himself violation of' express legislative enactment. of what his counsel chooses to call "a thorn in This crime, so clearly shown, is really a his heart," deliberately, willfully, and knowhigher and more dangerous one than the re- ingly violated the provisions of this act by the moval of Mr. Stanton, for it not only includes arbitrary removal, or attempted removal, of 1089 Mr. Stanton and the appointment of Lorenzo more than imperial power to make the laws Thomas, and defiantly flaunted his action in the and judicially pass upon them, as well as the face of the Senate, this body again reaffirmed duty to take care that they " be faithfully exethe validity of the tenure-of-office act by cuted; " but, in my judgment, the American declaring that the action of the President was people will be slow in arriving at any such without lawful authority. conclusion. So monstrous a proposition as I submit, then, that the tenure-of-office bill, that which virtually surrenders to one man all having been passed over the President's veto the power of our great Government is not by a vote of two thirds of both Houses, by worthy of serious consideration. express provision of the Constitution " it Mr. President, for the first time in the hisbecame a law;" a law to the President, and a tory of our Government we are confronted law to all the people; a law as valid and bind- with a clear, decided, and flagrant act of exing as any on the statute-book; and I cannot ecutive usurpation. For his offense against believe that the Senate will consent to stultify the majesty of the law the House of Repreitself by the admission that its oft-repeated sentatives, in accordance with the provisions action upon this bill was in violation of the of the Constitution, and in the name of all the Constitution, which each member had solemnly people of the United States, have impeached sworn to support. Andrew Johnson for high crimes and misdeMoreover, the President himself recognized meanors, and have brought him to the bar of the validity of the law by taking action under the Senate to answer to the charges exhibited its provisions in the suspension of Mr. Stanton, against him. The issues involved in these proas I have already shown in the course of this ceedings are of the gravest character, reaching argument. Upon what principle may he con- down to the vefy foundation of our system of sider a law valid and binding to-day and of no government, and it behooves us as the repreforce or effect to-morrow? The law was suf- sentatives of forty million people to see to it that ficient so long as he thought he could accom- impartial justice is done as between the people plish his purpose to get rid of Mr. Stanton and the accused. If this, the highest tribunal under it; but when he failed in this, by the of the nation, shall render a verdict of acquittal, refusal of the Senate to concur in the proposed it will be a virtual admission of the President's removal, he overrides the law and then attempts assertion of " the power at any and all times to shelter himself, when arraigned for the of removing from office all executive officers offense, under the plea that it is not a consti- for cause to be judged by the President alone." tutional law. It will be a complete surrender of the constiBut admitting, for the sake of argument, that tutional power of the Senate over all appointthere were no doubts as to the constitutionality ments to office, for of what practical value will of the law, who clothed Andrew Johnson with be the required advice and consent of the judicial power to settle that question? Under Senate to an appointment if the person so what clause of the Constitution does he pre- appointed may the next hour be removed by sume to derive the power to decide which of the action of the Executive alone, regardless the enactments of Congress are valid and bind- of, and, indeed, in despite of, the wishes of the ing and which are not? If he may exercise Senate? judicial functions in regard to one law, why It will, moreover, be a virtual surrender of not in regard to all laws? As I read the Con- what has been claimed from the origin of the stitution, the President is enjoined to "take Government to this day, the right to regulate care that the laws be faithfully executed." I and control, by legislative enactment, the execufind no provision in that instrument which tive power over removals from office of such cloth-es him with the more than regal power to officers as require confirmation by the Senate, decide which laws he will execute and which and it will give to the President the unrehe will not. strained control of the officers of the Army and If judicial power is a prerogative of the Navy, as well as those of the civil service. Executive, of what use is the Supreme Court? It will give license to Andrew Johnson and Why not abolish so useless an institution? all future occupants of the presidential office Nay, more, if a law of Congress, though to disregard at pleasure the enactments of the passed by the constitutional vote of two thirds legislative department, and to plead in justifiof both Houses, may not "become a law" cation that you have so ruled by your verdict unless it meets the sanction of the Executive- in this case. if he may suspend or virtually repeal by ren- It will tend to destroy the harmonious reladering inoperative the enactments of Congreqs, tions of the several departments of the Govwhy not abolish the legislative department of ernment, so nicely adjusted, with checks and the Government? balances and limitations by the wisdom of It may be that Andrew Johnson is wiser than the fathers of the Constitution, by increasing the Senate and House of Representatives; it immensely the powers and privileges of the exmay be that wisdom will die with him; it may ecutive at the expense of the legislative departbe unfortunate that the Constitution under ment. Thenceforward the ruler will no longer which we live has not given to him who claims be the servant of the people, but the people will to be its especial custodian and guardian the be the servants of the ruler, and we shall not C. I.-69. 1090 be able hereafter to say, in the sublime lan- I deeply regret that the necessity for these moguage of the martyred Lincoln, that ours is mentousproceedingshasarisen. I wouldgladly'"a Government of the people, by the people, have escaped the solemn responsibility of this and for the people." hour. But this may not be, and I must, thereBelieving, as I conscientiously do, that such fore, upon the law and the evidence, in accordare the results which must follow the acquittal ance with the dictates of my conscience, and of Andrew Johnson by this tribunal, and believ- in view of the solemn obligations of my oath, ingthatthe House of Representatives have made declare that in my judgment Andrew Johnson goodthematerialchargespreferredagainsthim, is guilty of high crimes and misdemeanors as I cannot doubt as to my duty in the premises. charged by the Representatives of the people. APPENDIX. PREFACE. The proceedings in the Senate on the 5th and 6th of March, though not belonging strictly to the trial, are of such relevancy as calls for their embodiment in this volume, and they are accordingly given here in the form of an Appendix. The elaborate argument of Hon. CHARLES SUMNER upon the right of the Chief Justice, presiding in the Senate, to rule or vote, has attracted much attention. Frequent inquiry by members of the legal profession and others for the pamphlet issue of this argument suggested the propriety of appending it to this volume; and it appears here with the sanction of Mr. SUMNER, who has carefully revised it for this publication. A few authorities in addition to those composing the brief prepared by Hon. WILLIAM LAWRENCE, M. C., from Ohio, and presented by Mr. Manager BUTLir as a part of his opening argument, have been furnished by the first-named gentleman, and conclude this Appendix. DEBATE ON THE RIGHT OF SENATOR WADE TO SIT AS A MEMBER OF THE COURT. IN SENATE, March 5, 1868. TON, NYE, PATTERSON of Tennessee, POMEThe PRESIDENT pro tempore. The morn- ROY, RAMSEY, Ross, SHERMAN, SPRAGUE, ing hour having expired, all legislative and STEWART, SUMNER, THAYER, TIPTON, TRUMexecutive business of the Senate is ordered to BULL, and VAN WINKLE. cease for the purpose of proceeding to busi- The Secretary then called the name of Mr. ness pertaining to the impeachment of the WADE, who rose from his seat in the Senate President of the United States. The chair is and advanced toward the Chair. vacated for that purpose. Mr, HENDRICKS. Before the Senator just The PRESIDENT pro tempore then left the called takes the oath I wish to submit to the chair. presiding officer and to the Senate a question. The Chief Justice of the United States en- The Senator just called is the Presiding Officer tered the Chamber, accompanied by Mr. Jus- of this body, and under.the Constitution and tice Nelson, and escorted by Senators POME- laws will become the President of the United ROYt WILSON, and BOUCKALEW, the committee States should the proceeding of impeachment, appointed for that purpose. now to be tried, be sustained. The ConstituThe CHIEF JUSTICE took the chair and said: tion providing that in such a case the possible Senators, I attend the Senate in obedience to successor cannot even preside in the body duryour notice, for the purpose of joining with ing the trial, I submit for the consideration of you in forming a court of impeachment for the the presiding officer and of the Senate the trial of the President of the-United States, and question whether, being a Senator, representI am now ready to take the oath. ing a State, it is competent for him, notwithThe oath was administered by Mr. Justice standing that, to take the oath and become Nelson to Chief Justice Chase in the following thereby a part of the court? I submit that words: upon two grounds, first, the ground that the "I do solemnly swear that in all things appertain- Constitution does not allow him to preside ing to the trial of the impeachment of Andrew John- during these deliberations because of his posson, President of the United States, I will do impar- sible succession; and second, the parliamenttial justice according to the Constitution and laws. ary or legal ground that he is interested, in So help me G~od." view of his possible connection with the office, [The Senators rose when the Chief Justice in the result of the proceedings, he is not comentered the Chamber and remained standing petent to sit as a member of the court. till the conclusion of the administration of the Mr. SHERMAN. Mr. President, this quesoath to him.] tion, I think, is answered by the Constitution of The CHIEF JUSTICE. Senators, the oath the United States, which declares that each will now be administered to the Senators as State shall be entitled to two Senators on this they will be called by the Secretary in succes- floor, and that the court or tribunal for the trial sion. [To the Secretary.] Call the roll. of all impeachments shall be the Senate of The Secretary proceeded to call the roll the United States. My colleague is one of the alphabetically, and the Chief Justice adminis- Senators from the State of Ohio, he is a memtred the oath to Senators ANTHONY, BAYARD, her of this Senate, and is therefore made one BUC.KALEW, CAMIERON, CATTELL, CHANDLER, of the tribunal to try all cases of impeachment. COLE, CONKLING, CONNESS, CORBETT, CRAGIN, This tribunal is not to be tested by the ordiDAviS, DIXON, DRAKE, FERRY, FESSENDEN, nary rules that may apply in cases at civil FOWLER, FIrELINGHUYSEN, GRIMES, HARLAN, law; for the mere interest of the party does HENDERSON, HENDRICKS, HOWARD, HOWE, not exclude a person from sitting as a member JOHNSON, MCCREERY, MORGAN, MORRILL of of the Senate for the trial of impeachment, Maine, MORRILL of Vermont, MORTON, NoR- nor does mere affinity or relation by blood or 5 marriage. The tribunal is constituted by the Ohio who now offers to take the oath is but Constitution of the United States, and is com- the President pro tempore of the Senate. It posed of two Senators from each State, and is possible, and merely' possible, that he may Ohio is entitled to two voices upon the trial of remain in that capacity until the conclusion of this case. It seems to me, therefore, that the these proceedings; but at the same time it is question ought not to be made. not to be overlooked that it is but a possibilIf this were to be tested by the rule in ordi- ity. The Senate has in its power at all times nary civil tribunals the same objection might to choose another President pro tempore to have been made to one other Senator, who has preside over its proceedings. I cannot, therealready taken the oath without objection, being fore, see any such interest in the question as connected by ties of marriage with the person would seem to justify the objection which is accused before us. It is, therefore, perfectly taken by the honorable Senator from. Indiana. clear that while the rule might exclude the I hope the Senator from Ohio, the President Senator from Ohio in deciding in ordinary pro tempore of this body, will proceed to take cases, or he might retire from exercising his the oath. right to vote, that is a question for him alone Mr. JOHNSON. Mr. President, the questo determine. So far as the court is concerned tion is a purely legal one, and is to be decided he is entitled to be sworn as one of the triers upon principle. I have no doubt that the honin this case as Senator from the State of Ohio, orable member from Ohio will, as far as he without regard to his interest in the result of may be able under the temptations to which the trial. he may be subjected unknowingly to himself,. I have, as a matter of course, as the col- decide upon the issues which are involved in league of the Senator who is now proposed to the impeachment trial with as much imparbe sworn, looked into this matter, and I have tiality as any of us. It is not, therefore, any no doubt of it.. I was prepared, to some extent, objection to the honorable niember which infor the raising of this question, though I hoped duces me to say a word to the Senate on the it would not be presented. How far the Sen- subject. ator from Ohio, my colleague, may participate The general rule, we all know, is applicable in the proceedings of impeachment, how far to a jury as well as to a court, that no one he shall vote, when he shall vote, and upon should serve in either tribunal who has a clear what questions he shall vote, are matters that interest in the result of the trial. The honormust be left to him, and not for the tribunal able member from Ohio [Mr. SHERMAN] and or for any Senator to make against'him. His the honorable member from Michigan [Mr. right as a Senator from the State of Ohio is HOWARD] tell us that the Constitution provides complete and perfect, and there is no exclusion that the court in this instance is to consist of of him on account of interest, affinity, blood the Senators of the several States. That is relationship, or for any other cause. true; but that does not prove that a Senator Mr. HOWARD. Mr. President, I do not may not be in a situation which should exclude suppose that under the Constitution any Sena- him from the privilege of being a member of tor is to be challenged, even for cause, upon the court. The Constitution of the United the trial of an impeachment. I concur entirely States provides that the Supreme Court shall with the view presented by the honorable Sen- consist of a Chief Justice and associate jusator from Ohio [[Mr. SHERMAN] which he has tices; the law from time to time has regulated just expressed. The objection raised by the their number; but I never heard it questioned honorable Senator from Indiana [Mr. HEND- that, although by the Constitution and the laws HICKS] is in the nature of a challenge, if I un- cases within the jurisdiction of that tribunal derstand it properly, upon the ground of inter- are to be tried by them, a judge would not be est in the question about to be decided by the permitted to sit in a case in which he had a Senate sitting for the trial of an impeachment. direct interest. It by no means follows, thereNow, sir, as has been very justly remarked, fore, that because the honorable member from each State has the right to send to the Senate Ohio [Mr. WADE] is a Senator, and as such two members, and the Constitution declares, entitled to be a member of this court, he is whatever may be the character of those mem- not as liable to the objection of interest in the bers, whatever may be their relation to the result which your honor, the Chief Justice of accused or their interest in the question in- the Supreme Court, would be liable to in a case volved, that they shall be component parts of before your high tribunal in which you had a the body trying the impeachment. If an objec — direct interest in the possible result. tion upon the ground of interest is tenable an This is, as the honorable member from Ohio objection upon the ground of affinity must also [Mr. SHERMAN] says, the only tribunal to try be available. The Senate has already seen such a case as is now before us. That is true; one member of its body proceed to take the but if the honorable member and the Senate oath prescribed in our rules who is known to will look to the sixty-fifth number of the Fedbe related by affinity to the accused. I can eralist they will find why it was that the court see no distinction between an objection resting was constituted when the President is to be upon interest and one resting upon affinity. on trial as it is constituted by the Constitution. Besides, sir, the honorable Senator from It wasbecause of the manner in which impeach ments are tried in the mother country. There tice, that you are here to preside over the dethey are tried in the House of Lords. And I liberations of this court, shows that, in thd have a recollection, not altogether distinct —I judgment of our fathers, it was improper that did not know that the question was to be raised any man should be placed in the situation in to-day or I should have refreshed my'recollec- which the honorable member from Ohio will tion-that when in the case of the Senator: from be placed if he is admitted to be a member of New Jersey, Hon. Mr. Stockton, who had this court and exercises that function. Our been received as a Senator on this floor upon fathers thought, and they have incorporated his credentials, and it was proposed to exclude the thought into the Constitution, that he who him, which required a majority vote, the hon- is to be benefited by the result should not be orable member from Massachusetts, [Mr. SUM- permitted even to preside over the deliberaNER,] and I think several other members, but tions of this court when the President of the particularly the honorable member from Mas- United States is on trial; that the Vice Presisachusetts, in order to satisfy the Senate that dent of the United States, who is entitled only Mr. Stockton had no right to vote in his own to vote in case of a tie, of an equal division case, cited many instances in the House of of the Senate, should not be permitted even.to Lords in which it had been held that a mem- be a member of the court to preside over its ber of the House of Lords was not competent deliberations. It was, Mr. Chief Justice, beto decide in a case in which he had an inter- cause our fathers were deeply versed in the esti It was upon the authority of those cases, history of the world, perfectly acquainted with as well as upon the general ground which runs the frailties of man's nature as: exhibited in through the whole of our: jurisprudence and the history of all political bodies, that they the jurisprudence of the mother country, and denied, in a case of this description, to the is founded in the nature of things, that Mr. Vice President of the United States the priviStockton was denied the privilege of voting in lege even of presiding over the deliberations of his own case. such a court, much less of voting, and by his Now what was his case as compared in point vote bringing about the judgment which was of supposed influence to the case of the hon- to make him President. orable member from Ohio? He was to have Mr. President, I do not know that we are a temporary seat in this body, invested only able to decide this question at once. My imwith that proportion of the power -of the legi's- pression is such as I have stated; but it is a lative department of the Government which grave question, an important question. It will one member of this body has in reference'to be considered a grave and important question the whole number composing the body and the in the eyes of the country, and it should'be by numbers which compose the House of Repre- the Senate of the'United States s6 esteemed. sentatives. His voice, therefore, would be It is a new question; and I submit to you and comparatively unimportant. And yet it was the Senate whether it is not better to postpone adjudged by the Senate, as well as I remem- the decision of it in this case until to-morrow, ber, and almost with unanimity, especially by above all for the purpose of ascertaining what those who thought Mr. Stockton was not enti- are the precedents of the House of Lords. tiled to his seat, that he should not be permit- Should they prove to be what I think they are, ted to vote upon that question. How does his then, unless we are disposed to depart from case compare with that of the honorable mem- the model upon which was formed this high ber from Ohio? The honorable member tribunal, I am sure the Senate ought to decidebecomes in a contingency which this impeach- and I have no doubt the honorable member ment seeks to bring about, a judgment of from Ohio will acquiesce cheerfully in that guilty, the President of the United States, decision, and will himself see the propriety of invested with all the executive power of the so acting-that he is not entitled to take his Government. Is it right, would anybody de- seat as a member of this court. I move, theresire, to be subjected to such a temptation, fore, that the question be postponed until towhich might lead him, unknowingly to himself, morrow. into an erroneous judgment? The whole Mr. DAVIS. Mr. President, I will make a executive powers of the United States, to say remark on this question before the vote is nothing of the pecuniary compensation belong- taken. If the Senator from Ohio [Mr. WADE] ing to the office, $25,000 a year, are to be his asks tb be excused from taking any part in this in a certain result of the prosecution; and his trial it must be upon some principle estabvote may produce that result. lished by the Constitution. The Vice PresiI submit, then, and certainly without the dent presides in every case of impeachment, slightest feeling of disrespect for the honorable except upon the trial of the President, and member from Ohio, that it is due to the cause there he is expressly excluded by a provision of impartial justice, it is due to the character of the Constitution-upon what reason? Beof the Senate, in its management of this pro- cause of his interest in the question from the ceeding, that there should not be established fact that if there is a judgment of amotion a precedent which may in the end produce from office against the President the Vice excitement and bringinto disrepute the Senate President is to succeed to his place. The Conitself. The reason why it is, Mr. Chief Jus- stitution thus establishes a principle, and that principle is this: that when the President of any Senator, to raise the objection of disqualithe United States, whether he has been elected fication against any other Senator; and, thereby the electoral vote or has succeeded to the fore, there is no party here properly to raise office by the amotion of the President from the objection against the administration of the office-when a President who actually holds oath. Whenever the proper parties appear the office is under trial the man who is to take here on the one side and the other, either for the place, if he be removed upon that trial by the people or for the respondent, then the court the judgment of the court which is to try him, will be in a condition to hear objections to the is disqualified from forming a part of the court. constitution of the body; then the people will That is the principle. Now, can the Senator be represented, and may put the inquiry as to from Michigan or any other Senator adduce the constitution of this court, and then, also, any principle that would require the exclusion the respondent may institute the same inquiry. of the Vice President from presiding over a It may turn out that we are so constituted that court of impeachment of the President of the it will be necessary to raise this question and United States that will not apply to the Pres- to determine it; but at the present moment it ide.nt pro tempore of the Senate when there is seems to me that there is no option and no no Vice President, when the President pro discretion but to administer the oath to all tempore is Presiding Officer of the Senate, and those who, by the Constitution, are Senators when by the Constitution and laws of the representing the States. United States, if the acting President, as he is Mr. HENDRICKS. Mr. President, I do not sometimes called, is removed, the President propose at this time to protract the debate; pro tempore of the Senate is to take his place? but I wish to reply to the technical point made Mr. President, my argument is that the Con- by the Senator from Maine. It is inherent in stitution itself, in relation to this court, has a court to judge of its own organization; it is established a principle, and that principle is a power necessarily possessed by the court that any man standing in a position where he is itself; and it is not for the suitors to present the to succeed to the office of the President in the question whether a party claiming a seat in a event of his conviction cannot form a part of court composed of more than one member is the court of impeachment that is to try whether justly and legally entitled to that seat. It is for the President shall be removed or not. It the court itself to decide whether a member seems to me clearly that, although the exclu- piroposing to exercise the right to sit in that sion of the President pro tempore of the Sen- court is entitled to that right. Therefore, sir, ate does not come within the strict letter of the the question is not prematurely presented. Constitution, it does plainly and unequivocally To the point made by the Senator from Michwithin its principle and spirit. To every law- igan, which is not upon the merits, I have just yer it is. a familiar principle that where a law this to reply: that the possibility that the Senby its language and express terms does not in- ator now proposing to be sworn may cease to elude a case, but that case comes clearly within be President of the Senate pro terhpore is not its principle and meaning, the law shall be an answer to the objection. He is now the extended by force of its spirit to comprehend Presiding Officer of the Senate, and as such will the case that is not strictly within its letter become the President of the United States if but is clearly and undeniably within its prin- the impeachment be sustained and he continue ciples. to be the President pro tempore until the termiIt seems to me, therefore, clear as a consti- nation of the trial. If he ceases, during the tutional principle that the President pro tem- progress of the trial, to be the Presiding Officer pore of the Senate, on the occasion of the of this body, then he becomes competent, and impeachment trial, occupies the same position under the second rule which has been adopted, in relation to the office of President that the if the rules should be recognized by the court, Vice President would if he was here and was he will be sworn in as a member of the court. the Presiding Officer of the Senate; and the Vice The point I make is, that now being the PrePresident being excluded for the reason and siding Officer of the Senate, and now being comupon the principle that he is to take no part in petent to become the President in case impeachthe trial because he is to succeed to the vacant ment be sustained, he is now incompetent to place if there be a judgment of amotion from participate in the trial. ofice, the same principle, clearly, undeniably, The substantial merits of this question were in its full force and reason, applies to the Presi- settled in the case referred to by the Senator den pro tempore of the Senate, and therefore from Maryland-the case of Senator Stockton, he is excluded by the spirit and by the prin- from New Jersey. There the Senate decided ciple of the Constitution. that a member of the body could not be a party Mr. MORRILL, of Maine. Mr. Chief Jus- to a decision in the Senate in which he is intertice, it strikes me that the whole proceeding is ested; and the possibility of holding an office premature, for the obvious reason that there is was regarded as an interest by the Senate. no party here to take the objection. If this is Nor do I think the poinrt.made by the Sena court there is no party before the court to ator from Ohio [Mr. SHERMAN] a good one, raise this objection. It certainly does not lie that, being a Senator from a State, the Prein the mouth of any member of this court, of siding Officer has the right to participate in all 9 the proceedings of the Senate. The standing case to be determined, without having had an rules of this body as a Senate contradict that oath administered to me like other members? argument. One of the standing rules of the Is this question to be decided at this time? Is Senate is that a Senator shall not vote when there any court organized that can decide this he has an interest in the result of the vote; so j question? I do not know exactly what the that the Senate itself has restricted those gen- question is. Is it a challenge that has been eral rights and powers which the Senator from submitted by a Senator to a -fellow-Senator? Ohio thinks belongs to each Senator as a rep- If that be so it is an extraordinary proceeding. resentative of a State. The Senate has said, I never heard that one juror could challenge 1)y its standing rules, that neither one of us another juror; I never heard that one judge can vote if we have an interest in the result could challenge another judge. When the of that vote. But, sir, in my judgment, the necessary preparations are made for the trial, constitutional ground is higher than this ground it may be that the Managers on the part of the of interest. The Presiding Officer has an inter- House of Representatives and the accused will est in the result of an impeachment trial; he be willing and desire to have the Senator from shall not even preside; he shall not even main- Ohio participate in this trial. Is it not their tain order and decorum in the body during the privilege? Suppose they both agree to that progress of the trial; he shall vacate his seat and to waive all objections? Then I am conthat the Chief Justice may preside; and what fident that they have the right to make this does that mean? It means something, sir. It question, and not any Senator. means that the relation which the Vice Presi- The Senator from Indiana suggests that no dent of the United States sustains by possi- judge who is interested in a question was ever bility to the office of President of the United known to preside when that question was conStates is such that he shall take no part in the sidered. Is not that altogether a matter left great trial. That is what the Constitution to the judge? Did the honorable Senator means. It is not a matter of form and cere- ever know a court to adopt a rule and declare morny and dignity that the Chief Justice shall that a member of that court should not partipresid% here. It is of the very substance that cipate in any decision? Whenever a question, he who, by possibility, can fill the office if the is presented to a court, the judge decides for Senate shall make it vacant, shall not sit here himself as to whether or not it is a case in even to preserve order and decorum while the which he can take any part? If he decides great proceeding is going on. that he cannot participate in the trial, he withI hope, sir, that I need not disclaim any per- draws from the bench; but the court never sonal feeling in this matter. I make the point undertakes to prescribe the rule for his action, now because I think that the Constitution itself to say that he shall or shall not participate in controls the organization of this court. I think the decision. But I do not propose to discuss that the Constitution itself does settle it, that the question. I make this point, however, that no man shall help to take from the President at this time this body, with a part of the memhis offce when that man is to fill the office if bers sworn and a part unsworn, cannot decide the proceeding succeed. There is no analogy the question, because it is a question that rebetween this and the case suggested by the lates to the rights of the country and of' the Senator from Michigan.. Affinity does not of accused; and before I am called upon to passitself by common and universal law exclude a upon this question, it is necessary, it seems to man from presiding in court; it must be done me, that I should be sworn as well as the other by express statute, and it is so provided in the members who have not been called upon to codes of the different States. But here the take the oath. Constitution itself says that no man shall pre- Mr. DAVIS. Will the honorable Senator side who may succeed to the office. I hope, answer me a question? sir, in view of the importance of this question, Mr. WILLIAMS. Certainly. that the motion made by the Senator from Mr. DAVIS. Suppose this was a trial of Maryland, to postpone its consideration until articles of impeachment against the President to-mdrrow, will prevail. of the United States when there was a Vice Mr. WILLIAMS. Mr. Chief Justice, I sub- President in being, and suppose that Vice mit that the motion or question made by the President was to present himself here and Senator from Indiana is altogether premature, offer to become a part of the court, could not for this reason: it is either addressed to the the Senators exclude him from that position? Senate of the United States or to the court Mr. WILLIAMS. Mr. Chief Justice, I do for the trial of an impeachment. If it be to not propose to argue that question; but the the Senate, then I respectfully submit that the case propounded by the Senator is not parallel Presiding Officer of the Senate should occupy to the case before this body, because the Conthe chair; if to a court, then there is no court stitution expressly excludes the Vice Presiorganized competent to pass or decide upon dent from any participation in this trial, but it this question. Some of the members here provides that each Senator shall vote. have been sworn, others have not. Am I to Mr. DAVIS. The honorable Senator sugbe called upon to decide on this question gested that it rested with the Senator himself which, perhaps, relates to the merits of the whether he should form part of the court or 10 not, and that the residue: of the body could administration of the oath to the honorable not make the exception. I presented that Senator from Ohio be merelypassed over until example for the purpose of showing that under it has been administered to other gentlemen that state of case the body of the court itself whose names come after his upon the list, and would exclude the Vice President, though he then the question can be decided. even offered to become a component part of Mr. CONNESS. My only objection to the the court. proposition now made is that in my judgment Mr. WILLIAMS. What I said was simply the Senate have no such right. They have no in response to the suggestion of the Senator right to pass directly or indirectly, in my opinfrom Indiana, that the Senator from Ohio could ion, any reflection upon the right of any Sena. not participate in these proceedings because a tor to participate in the proceedings that are judge who was interested in a case could not taking place. The question as it seems to me participate in the hearing of it. I say it is is settled. It was settled when the credentials always in every case left for the judge to de- of the Senator were presented, and he was cide for himself as to whether he will or will admitted to his seat. It is not competent for not participate in the trial, and the court itself the Senate, in my opinion, to attempt to does not undertake to exclude him. deprive a Senator of his vote; and, so far as I does not follow, as it strikes me, because the suggestion or proposition casts doubt upon this court is organized as the Constitution re- the question, it does not meet the approbation quires, each Senator taking an oath, that every of my judgment. I prefer very much that a Senator will necessarily-participate in the trial vote shall now be taken, not upon the direct and vote upon the questions involved. He question, as suggested by the Senator from may take the oath; he is required to take the Indiana, but that it take the form of a motion. oath; and then, after he is qualified to act, it I think, the question whether a Senator has an will be for him to determinewhether or not he interest in these proceedings such as woald will participate in the trial, and'not for the prevent him from voting and acting as sach Senator to say now before the court is organized pending the trial is a question for him-self alone, that he shall not be allowed to take the oath. and that no other Senator nor the Senae comHe is a Senator, and the Constitution says that bined can impose any restriction upon his legitieach State shall have two Senators, and that mate participation in these great proceedings. each Senator shall have one vote. The Con- Mr. FESSENDEN. I desire simply to say stitution gives to each Senator a right to vote that, in making the suggestion, I did not mean upon every question in the Senate. That is a to be understood as expressing the slightest constitutional right; but if he is interested in opinion in any way, but to avoid the difficulty any way, then he may not participate in the suggested by the honorable Senator from Oredecision if he sees proper. gon. He sayshe isnotyetamemberofthecourt; Mr. JOHNSON. What becomes of our rule he has not been sworn. If we are to take a vote on that point? upon this question directly, are we all to vote Mr. WILLIAMS. That rule is not one that or not? Certainly the larger number have can override the Constitution; and if any Sen- been sworn, but some have not been sworn. ator, notwithstanding that rule, upon any ques- There is nothing in the shape of reflection or tion should insistupon his right to vote, I main- even the intimation of an opinion. one way or tain that he can vote notwithstanding the rule, the other, in simply suggesting that it would because the Constitution says that every Sen- be well to have all those who are to vote upon ator shall have a right to vote upon everyques- the question sworn, inasmuch as part have tion. It may be indelicate and improper for a been sworn, before the vote is taken. That is Senator to vote upon many questions; but as all; and I see no difficulty such as has been I said I did not intend to argue that question suggested by the honorable Senator from Caliand was drawn off from the point which I in- fornia. The honorable Senator from Ohio tended to make, which is, that at this time it can be presented again; there is nothing in is not competent for this body to decide as to any rule that requires the oath to be taken whether or not the Senator from Ohio can take alphabetically as the names are called; that the oath. is a mere matter of convenience. Certain Mr. FESSENDEN. Mr. President, I do gentlemen are absent now from their seats; not design to discuss the matter. I merely they will be allowed unquestionably to take rise to make the suggestion which wouldfollow the oath when they come in. My suggestion from what has been said by the Senator from went to that extent and no further, that we Oregon, that it would be better to organize who are to act upon the question, if we are to the court fully before deciding the question, if act at all, should be placed upon a level bewe are to decide it at all. There is no diffi- fore we proceed to act, and that the court culty in postponing the administration of the should be duly organized as a court, which it oath to the honorable Senator from Ohio until is not yet. If the suggestion is not agreeable all have been sworn except him, and then the to gentlemen, it makes not the slightest differcourt will be properly organized so far as to ence to me; I care nothing about it one way enable all gentleman to act as members of the or the other. I have no opinion to express at court. I would suggest, therefore, that the present upon the subject. 11 Mr. HOWARD. Mr. President, we are now considered and decided by ourselves sitting in sitting in a judicial capacity for the trial of a our judicial capacity. particular impeachment. We are organizing Mr. MORTON. Mr. President, if it should ourselves for the purpose of proceeding to con- now be determined that the Senator from Ohio sider the facts of the case; but this must be shall not be sworn.it would be an error, a blunregarded, I think, as a part of the trial. Oth- der of which the accused would have just right erwise, Mr. President, we should not expect to complain when he should come here. If a to see you presiding over us. Now, sir, the judge is interested in a case before him, or if Constitution declares that " each Senator shall a juror is interested in the result of the issue have one vote;" and it further declares that which he is called upon to try, it is an objec"no person shall be convicted without the con- tion that the parties to the case have the right currence of two thirds of the members pres- to waive; and they have always had that right ent." There may be absentees —no matter under any system of practice that I have known how many-so be that a quorum of the body anything about. remains present and voting. As was suggested by the Senator from Maine The honorable Senator from Ohio is present, [Mr. MORRILL] and the Senator from Oregon, not absent. He is now ready to take the oath [Mr. WILLIAMS,] it is not an objection to be prescribed by the Constitution, to participate made by a fellow-juror, by another member in the trial, like the rest of us. I do not un- of the court, or by anybody except the parties derstand upon what ground it is at this stage to the case; and if we now, in the absence of of the proceeding that an objection can be sus- the accused, say that the Senator from Ohio tained to his taking the oath. Certainly itwill shallnotbe sworn, the President,when he comes not be claimed that we are now acting in our here to stand his trial, will have a right to say, ordinary capacity as a Senate; but we are acting " A Senator has been excluded that I would in a judicial capacity as a Senate; or, in other willingly accept; I have confidence in his inwords, if you please, for brevity's sake, as a tegrity; I have confidence in his character and court. What right, I beg to inquire, have the in his judgment, and I am willing to waive the members of the Senate, who do not yet under question of interest. Who had the right to the Constitution constitute a part of the court, make it in my absence?" The Senator from to say that a particular member of their body Indiana, my colleague, and the Senator from shall not take the oath prescribed by the Con- Kentucky have no right to make the question stitution? Howareweto getatit? Whoare unless they should do it in the character of the persons authorized to vote on this objec- counsel for the accused, a character they do tion which is raised, and declare that the Sen- not maintain. ator from Ohio shall not take the oath? Is it Mr. President, I desire to say one thing furthe right of the court, or, to speak more accu- ther, that this objection made here, in my rately, of the comparatively few members of judgment, proceeds upon a wrong theory. It the court who have by their oath become such, is that we are now about putting off the charto exclude a Senator? That is a very strange acter of the Senate of the United States and view to take of the question. Of what interest taking upon ourselves a new character; that we is it to us, let me inquire, even if we were or- are about ceasing to be a Senate to become a ganized as a court, that the Senator from Ohio court. Sir, I reject that idea entirely. This should not take the oath prescribed by the is the Senate when sworn, this will be the SenConstitution? If there be an interest any- ate when sitting upon the trial, and can have no where, that interest is only available on the other character. The idea that we are to bepart of the accused, who is not yet before us. come a court, invested with a new character, He can avail himself of it only in the nature of and possibly having new constituents, I reject a challenge for cause, which I do not now as being in violation of the Constitution itself. propose to discuss; at the same time, how- What does that say? It says that " the Senate ever, denying the right of any such challenge. shall have the sole power to try all impeachBut, as the Senate are now situated, it is ments." The Senateshallhavethesolepower entirely clear to my mind that we have no to try; it is the Senate.that is to try, not a right whatever to pass a' resolution or order high court of impeachment-a phrase that is.prohibiting the honorable Senator from Ohio, sometimes used-that is to be organized, to or any other Senator, if he sees fit, from be created by the process through which we taking the oath prescribed by the Constitution, are now going; but, sir, it is simply the Senand which we are now in the act of taking. It ate of the United States. The Senate,' when is an act coram non judice, without jurisdiction sitting for that purpose, shall be on oath or or color on our part to perform. affirmation." That does not change our charI would suggest, therefore, that this objec- acter. We do not on account of this oath or tion should, for the present, be withdrawn. affirmation cease to be a Senate, undergo a The honorable Senator from Indiana must of transformation, and become a high court of course see that at the proper time, after a proper impeachment; but the Constitution simply proorganization, all he seeks to obtain now by vides that the Senate while, as a Senate, trying his objection will be raised by learned counsel this case, shall be under oath or affirmation. upon the trial, fully discussed by them, and It is an exceptional obligation. The duty of 12' trying an impeachment is an exceptional duty, [Mr. MORTON.] He tells us it is for the Presjust as is the ratification of a treaty; but it is ident of the United States-applying his restill simply the Senate performing'hat duty. marks to the case which is to be and is before "'When the President of the United States is us-himself to make the objection, and that tried the Chief Justice shall preside." Pre- he may waive it. With all due deference to side where? In some high court of impeach- the honorable member, that is an entire misapment, to be created, by the transformation of prehension of the question. The question inan oath? No, sir. He is to preside in the Sen- volved in the inquiry is what is the court to ate of the United States, and over the Senate; try the President? It is not to be such a triand that is all there is of it.'And no per- bunal as he chooses to try him. It is a quesson shall be convicted without the concurrence tion in which the people of the United States of two thirds of the members present." Two are interested, in which the country is interthirds of the members of the Senate. ested; and by no conduct of the President, by Mr. President, if I am right in this view, it no waiver of his can he constitute this court settles the whole question. The Senator from in any other way than the way which the ConOhio is a member of the Senate. My colleague stitution contemplates; that is to say, a court has argued this question as if we were about having all the qualities which the Constitution now to Organize a new body, a court, and that intends. the Senator from Ohio is not competent to be- The honorable member tells us that we are come a member of that court. That is his still a Senate and not a court, and that we cantheory. The theory is false. This impeach- not be anything but a Senate and cannot at any ment is to be tried by the Senate, and he is time become a court. Why, sir, the honoralready a member of the Senate, and he has a able member is not treading in the footsteps of constitutional right to sit here, and we have no his fathers. The Constitution was adopted in power to take it from him. As to how far he 1789. There have been four or five cases of shall participate, as to what part he shall take impeachment, and in every case the Senate has in our proceedings, as has been correctly said, decided to resolve itself into a court, and the that is a question for him to decide in his own proceedings have been conducted before it as mind. But, sir, he is already a member of a court and not as a Senate. To be sure, these this body; he is here; he has his rights already component elements of which the court is conferred upon him as a member of this body, composed are Senators, but that is a mere and he has a constitutional right to take part descriptio personarum. They are members in the performance of this business as of any of the court because they are Senators, but other business, whether the ratification of a not the less members of a court. The Contreaty, or the confirmation of an appointment, stitution contemplated their assuming both or the passage of a bill, which may be devolved capacities. As a Senate of the United States on this body by the Constitution of the United they have no judicial authority whatever; States. Because he has been elected President their powers are altogether legislative; they pro temnpore of the Senate, does that take firom are to constitute aud do constitute only a him any of his rights as a Senator? Those portion of the legislative department of the rights existed before, and he cannot be robbed Government; but the Constitution for wise of them by any act of this Senate. purposes says that in the contingency of an But, sir, aside from this question, which impeachment of a President of the United goes to the main argument, this entire action States or any other officer falling within the is premature. There is nobody here to make clause authorizing an impeachment they are this challenge, even if it could be made legiti- to become, as I understand, a court. So have mately. The Senators making it do not repre- all our predecessors ruled in every case; and sent anybody but themselves. The accused who were they? In the celebrated case of the might not want it made. He might, perhaps, impeachment against Mr. Chase, who was one prefer the Senator from Ohio to any other of the associate justices of the Supreme Court member of this body to try his case. It is of the United States, there were men in the always the right of the defendant in a criminal Senate at that time whose superiors have not proceeding and of the parties in a civil action been found since, nor at any time before, and to waive the interest that a juror or a member they adopted the idea and acted upon the idea of the court may have in the case. that the, Senate in the trial of that impeachMr. JOHNSON. Mr. President, the motion ment acted as a court and not as a Senate. that I made to postpone the question now be- I submit, therefore, that the honorable memfore the Senate till to-morrow was made with ber from Indiana [Mfi. MoaToN] is altogether no view to impede at all the organization of mistaken in supposing that we are not a court. the court, so far as it can be organized by But look at the power which we are to have. swearing all the other members; and I with- We are to pronounce judgment of guilty or not draw the motion now and put it in another guilty; we are to answer upon our oaths whether form, namely, that the question lie on the table the party impeached is guilty or not guilty of until the other members are sworn. the articles of impeachment laid to his charge, WVhile I am up permit me to say a few words and having pronounced him guilty or not guilty, inreply to the honorable member from Indiana, we are' then to award judgment. Who ever 13 heard of the Senate of the United States in its that each Senator shall have a vote, and the legislative capacity awarding a judgment? Constitution further declares that each Senator But besides that, why is it, -Mr. Chief Justice, shall take an oath in cases of impeachment. that you are called to preside over the court, The right of my colleague to take the oath, or the Senate when acting as a court to try an his duty to take it, is as clear in my mind as impeachment? Itis because it is a court. You any question that ever was presented to me as have no legislative capacity; your functions are a Senator of the United States. The Constito construe the laws in cases coming before tution makes it plainly his duty to take the you; and the very fact that upon the trial of an oath. He is a Senator, bound to take the oatlP impeachment of the President of the United according to my reading of the Constitutior,; States the Vice President is to be laid aside, and every precedent that has been cited, and and the ordinary Presiding Officer, if the Vice every precedent that has been referred to, President himself does not exist, and you are bears out this construction. If after he has to preside, shows that it is a court of the highest taken the oath as a member of the Senate of -character, demanding the wisdom and the learn- the United States, for the purposes of this trial, ing of the Chief Justice of the United States. anybody objects to his right to vote on any The honorable member says, and other mem- question that may be presented to this court or bers have said, that a question of interest or to the Senate hereafter, the objection can then no interest is not involved in an inquiry of this be made and discussed; but his right in the description. Does the honorable member mean preliminary stages to take the oath, and his to say that if the honorable member from Ohio duty to take it, is made plain by the Constituhad a bill before the Senate awarding to him a tion itself. If, hereafter, when the impeachsum of money upon the ground that it was due ment progresses, his right to vote on any questo him by the United States he could vote upon tion is challenged the question may be discussed the question of the passage of the bill? Why and decided. not if the honorable member from Indiana is The case cited by my honorable friend from right? He is a Senator. If he is right that Maryland is directly in point. Mr. Stockton the Constitution intends that each State shall came here with a certificate from the State of have two votes upon every question coming New Jersey in due form; he presented it, and before the body, then in the case supposed the was sworn into office. Did anybody object to -honorable member from Ohio would have a his being sworn? At the same time other right to vote himself, and by his own vote to papers were presented to the Senate challengplace money in his own possession. Who ever ing his right to be sworn, saying that the Legisheard that that was a right that could be ac- lature of New Jersey had never elected Mr. corded anywhere? Stockton; but because of that did anybody Mr. President, courts have gone so far as to object to the oath being administered to Mr. say that a judgment pronounced by a judge in Stockton? No one; although his right to take a court of which he was the constitutional offi- the oath was challenged, and a protest, signed cer in a case in which he had a direct interest, by a very large number of the members of the was absolutely void upon general principles; New Jersey Legislature, against his right to the not void because of any statutory regulation on seat, was presented. He was sworn in and this subject, but void upon the general ground took his seat here by our side, and voted and that no man shall be a judge in his own case. exercised the rights of a Senator. When the Does it make any difference what may be the question of the legality of his own election character of the interest? If the honorable came up the Senate decided that he was not member from Ohio was the sole party under legally elected, and the question referred to the Constitution to try this impeachment, could arose upon his right to vote in that particular he try it? Would not everybody say it is a case. The question was whether he could vote, casus omissus? There can be no trial as long being interested in the subject-matter. The as he continues to be the sole member of the Senator from Massachusetts made the objeccourt, because he has a direct and immediate tion, and offered a resolution that he had not a interest in the result; because the judgment right to vote in the particular case; and after would be absolutely void as against the general debate that was decided in the affirmative, principle founded in the nature of man, that no although by a very close vote. My own conman should be permitted to adjudge a question viction then was, and is yet, that Mr. Stockton in which he has a direct interest. as a Senator from the State of New Jersey I propose to say nothing more. I will sus- had a right to vote in his own case, although pend the motion I before made, and move now it might not be a proper exercise of the right. that the question of right of the honorable So, sir, this question has been decided two member from Ohio be laid aside until the other or three times in the House of Representatives. members of the Senate are qualified. In the celebrated New Jersey case, where a Mr. SHERMAN. Mr. President, I cer- certificate of election was presented by certain tainly do not appear here to represent my col- members from the State of New Jersey and league on this question; but I represent the they were excluded, public history has proState of Ohio, which is entitled to two Sena- nounced their exclusion to have been an untors on this floor. The Constitution declares justifiable wrong upon the great seal of the 14 State of New Jersey. I believe that action is have been sworn. Then let him decide for now generally admitted and conceded to have himself whether in a case in which his interest been wrong. Those men presented their cre- is so deeply affected he will vote on any quesdentials in the regular form, and they had the tion involved in the impeachment. If he de-right to be sworn. So in many other cases, cides to vote when his vote is presented, then, where the right of persons to hold office is in not the Senator from Indiana, but the accused dispute, those who have the prima facie right may make the objection, and we shall decide are sworn into office, and then the right-is ex- the question as a Senate or as a court, for I amined and finally settled. I had a matter consider the terms convertible; we shall then presented to me once in which I was personally decide the question of his right to vote. interested, and where I was sworn into office. Sir, several things have been introduced into I was directly and personally interested; but this debate that I think ought not to: have been I took the oath oP office, and I discharged my introduced. The precise character ofthis tribuduties as a member of the House of Represent- nal, whether it is a court or a Senate, has nothatives; and when the question came up whether ing to do at present with this question. The JI should vote on the election of a particular only question before us is whether BENJAMIN officer, I being a candidate for the office, I re- F. WADE, acknowledged to be a Senator from;fused to vote. But it was my refusal which the State of Ohio, has a right to present him_prevented my vote from being received. If I self and take the oath prescribed by the Con.-'had chosen to vote, I had the right as a mem- stitution and the laws in cases of impeachber from the State of Ohio, even for myself. ment. He is not the Vice President; he is I have no doubt whatever of that. It is the not excluded by the terms of the Constitution. right of the State; it is-the right of the peo- He is the Presiding Officer of the Senate, holdple; it is the right of representation. The ing that office at our will. You have no right power of the State and the power of the people to take away from him the power to take the must be exercised through their Senators and oath of office and then to decide for himself as through their Representatives. to whether, under all the circumstances, he In the particular case here I do not suppose, ought to participate in this trial. I do not know, at least, whether the question Mr. BAYARD. Mr. President, I incline to -will ever arise. My colleague is required to the opinion that the objection made by the hontake this oath as a member of the Senate of orable Senator from Maine [Mr. MORRILL] to the United States. You have no right to as- the motion of the'honorable Senator from Indisume, nor have Senators the right to assume, ana, [Mr. HENDRICKS,] and also that made by that he will vote on questions which may affect the honorable Senator from Oregon, [Mr. WILhis interest. That is a matter for him to de- LIAMS.] is correct. I cannot see how a Senator cide; but the right of the State to be represented is to object to another Senator being sworn in, here on this trial of an impeachment is clear although I think there may be some doubt enough. Whether he will exercise the right, raised on the question for this reason: the or whether he will waive it, is for him to de- Constitution provides that in a case where the.termine. You have no right to assume that President of the United States is tried under an he will exercise the right or power to vote for impeachment the Chief Justice of the United himself where he is directly interested in the States, not the Vice President, shall preside; result. and though that was intended originally to look It. seems to me, therefore, that no Senator to the Vice President alone, yet if another here has the right to challenge the voice of the person, from the death of the Vice President, State of Ohio, and the right of the State of or from his absence or his acting as President, Ohio to have two votes here is unquestionable, stands in precisely the same relation to the unless when the question is raised in due form office of President under the law and the Conit shall be decided against my colleague. In stitution, whether he be a Senator or not, ought the preliminary stages, when we are organizing not the principle equally to apply? this court, he ought to be sworn, and then if It certainly excludes the Vice President from he is to be excluded by interest, unfitness, or being a member of the court. Does it not any other reason, the question may be determ- equally exclude the Presiding Officer of the ined when raised hereafter; but no Senator Senate? It does not make him, being a Senhas the right now to challenge his authority to ator, less a Senator of the United States in his -appear here and be sworn as a Senator from legislative capacity; but the clause of the ConOhio. His exclusion must come either by his stitution prevents and is intended to prevent own voluntary act, proceeding on what he the influence of the man who would profit as deems to be just and right according to gen- the necessary result of the judgment of guilty eral principles, or it must be by the act of the in the case. It supposes that he cannot be or Senate upon an objection made by the person may not be -sufficiently impartial to sit as a accused in the trial of the impeachment. It judge in that case or to preside in the court seems to me that is clear, and therefore I ob- trying it. That is the object, as I suppose. ject to any waiver of the matter. I think my But, sir, there is great force in the objection -colleague has a right to present himself and that that point must come by plea or motion, be sworn precisely as I and other Senators if you please, from the party accused; and I 15 should not have thought fbr a moment of em- ment, and yet in that case there is conclusive barking in this discussion had it not been for evidence that no one interposed the idea that the renewal by the honorable Senator from the body was not organized into a court, a Indiana [Mr. MORTON] of the endeavor to-dis- judicial tribunal, and accordingly the defendprove the idea that the Senate must be organ- ant appeared-he had been expelled by the ized into a court for the purpose of a judicial Senate under their other powers-and he trial. Now, sir, whether it is to be a high pleaded to the articles of impeachment, and court of impeachment or a court of impeach- the case was argued at length on both sides, ment, or to be called by the technical name and the Senate determined to dismiss the articourt, is, in my judgment, immaterial; but cles, and in announcing their decision to the the honorable Senator's argument did not House of Representatives the Presiding Officer touch the Constitution. The Senate is to con- of the Senate said in terms " the court after stitute the court; the Senate is to try. Is there consideration have adjudged" or "determnothing in the provisions of that article which ined"-I forget the exact language; but it gives the judicial authority-for it is not legis- spoke of the court. This was the communilative, it is judicial authority conferred, a cation of the Presiding Officer of the Senate judicial authority in special cases-is there in the presence of the Senate, to the Managers nothing in that article which, of necessity, of the impeachment, that the court had determmakes the body a judicial tribunal whenever ined to dismiss the articles, and the defendant it assumes these functions, and not a legisla- was discharged. Is the precedent of no worth? tive body? Otherwise, how comes the pre- Does the honorable Senator from Indiana say siding officer who now fills the chair to be in that the men of that day, the Hillhouses and the seat which he occupies? When the Con- Tracys, and other men who then constituted stitution says that the Senate shall have the the Senate, did not understand the language in sole authority to try impeachments is it neces- which the Constitution was adopted as well as sary that it should say that the Senate shall be we do now? They were able lawyers. The a court for the purpose of trying impeach- case was one perfectly free from the bias of ments if every clause of the Constitution shows political excitement of every kind. And from that it must be a judicial tribunal and must be that day to this, until this idea is now suggested a court, or else the language is meaningless that you are to try as a Senate, and not as a which is applied to its organization? The judicial tribunal, the President of the United members of the body are to be sworn specially States on an impeachment for high crimes, no in the particular case as between the accused one has ever doubted that the Senate must be and the impeachers. Is not that the action resolved into a court for the purpose of -perof a court? They are to try ani individual in forming such functions. a criminal prosecution. Is not that judicial Sir, it is against this, which I consider a action? Is not the entire judicial power of heresy, that I desire to protest. For my own the United States vested in the Supreme Court part I cannot conceive on what ground such and the inferior courts, with that exception, by an idea should be thrown into this case, or the very terms of the Constitution? what effect it can have, unless it be to let loose But, further, the body is to give judgment, partisan passion by escaping from judicial reto pronounce judgment, a judgment of removal sponsibility. No one doubts that the court is from office always as the result of conviction; to be composed of the Senate of the United and if they please to carry it still further, they States. Why it should not be called a court, may pronounce judgment of disqualification in the face of the precedents, the face of the from hereafter holding any office. Do not provisions of the Constitution, all of which these terms of necessity constitute a court? confer on it judicial power and the modes of Did the Constitution mean, taking all its lan- action which belong to a court, is to me inguage, that the Senate in its legislative capa- scrutable. city, or as a Senate of the United States with- The question is collateral, I admit, because out any change whatever, should participate I think this is not the time to object to the in the judicial power of the Government; or honorable Senator from Ohio being sworn in. did it mean to give judicial power? And if My mind is somewhat in doubt; but my opinion it gave judicial power, and prescribed the mode inclines that way, that the objection must come of its exercise in such a manner that it neces- from the party arraigned, unless, indeed, the sarily converted it into a court, why should it honorable Senator, looking to the particular not be called a court? circumstances of the case, should ask to be But, sir, the precedents are conclusive. I excused from being sworn. That is a question cited the case of Blount on a former occasion which it is not for me to decide; but it is for in the Senate. - He was impeached in 1798, him to decide to that extent, I admit. But, nine years after the Constitution went into sir, I cannot admit the doctrine I have heard operation. Many of the members of the Sen- enunciated here, that the great, eternal prinate at that time had been members of the:Con- ciple, that no man shall be a judge in his own vention which formed the Constitution, and all cause, does not apply to this case whenever the of them were conversant with its history and question is properly raised. What is the state meaning. It was the first case of impeach- of facts? The Senate of the United States is 16 constituted into a judicial tribunal; that can- United States; nor can we add to them a tittIe not be denied. They have the powers not only by calling ourselves a court or calling ourof judges, but of jurors; and if there be one'selves a Senate. There they are in the Conprinciple more sacred than another it is as stitution. Search its text and you will find to the juror, who finds facts that he must be them. The Constitution has not given us a omni exceptione major. The great, general name, but it has given us powers; and those principle that a man shall not be a judge in his we are now to exercise, The Senate has the own cause applies everywhere, and commends sole power to try impeachments. No matter itself to the universal sentiment of mankind. for the name, sir. I hope that I do not use Now, what is the case here? The Senate an illustration too familiar when I remind you are the judges of the facts, as well as of the that a rose under any other name has all those law, when organized into a court for the trial qualities which make it the first of flowers. of an impeachment. If the case was pre- I should not at this time have entered into sented of the trial of the most ordinary misde- this discussion if I had not listened to objec-. meanor in a court of justice by an unquestion- tions on the other side which seem to me ably qualified juror in all other respects, if it founded, I will not say in error, for that would was shown that that juror had a direct interest be bold when we are discussing a question of in the conviction or the acquittal of the de- so much novelty, but I will say founded in a fendant, would it not be a sufficient objection? reading of history which I have not been able Can there be any doubt about the directness to verify. Senator after Senator on the other of the interest here? Your judgment, if the side, all distinguished by ability and learning, accused is convicted, must be removal from have informed us that the Constitution inoffice. It must go that far. The effect, then, tended to prevent a person who might become of a judgment rendered by this court, were it President from presiding at the trial of the rendered by the aid of the honorable Senator President. I would ask learned Senators who from Ohio sitting as a judge, would be to ele- have announced this proposition where they vate him to the position of the executive head find it in the Constitution? The Constitution of this great nation. Is not that an interest? says: It is the necessary result of such a judgment "When the President of the United States is tried when it is rendered that he has a right to the the Chief Justice shall preside." office, and is entitled to the office. Whether This is all; and yet on this simple text the he choose to relinquish it or not would not superstructure of Senators has been reared. alter the case. The interest is direct; and if The Constitution does not proceed to say there ever was a case in which the principle why the Chief Justice shall preside; not at all: that a man shall not be a judge in his own nothing of the kind. Senators supply the cause applied it surely must apply to the case reason and then undertake to apply it to the where the members of the tribunal which is actual President of the Senate. Where, sir, organized are judges, not only of the law, but do they find the reason? They cannot find the also of the facts. Human nature is not to be reason which they now assign in any of the trusted that far; that is the foundation of the contemporary authorities illustrating the Conprinciple, and no man who knows his own stitution. They cannot find it in the debates heart, no man who knows how delusive and of the national Convention reported by Madihow deceptive are the illusions of humanity, son, or in any of the debates in the States at could for a moment tolerate any other prin- that time, nor can they find it in the Federalciple. It has universally obtained as a great ist. When does that reason first come on the general truth. scene? Others may be more fortunate than I, I trust, sir, that whenever the case comes but I have not been able to find it earlier than properly before us there can be no question 1825, nearly forty years after the formation of as to what must be the decision of the Senate. the Constitution, in the Commentaries of WilAs I saidbefore, I hope, however, thatwe shall liam Rawle. We all know the character of be relieved from the necessity of any decision this' work, one of great respectability, and in a case like this, as we can be relieved by which most of us in our early days have read the action of the honorable Senator from Ohio. and studied. How does he speak of it? As He must, of course, decide that question for follows: himself in the first instance; but, for my own "The Vice President, being the President of the part, I can only say that if I stood In the same Senate, presides on the trial, except when the Presiposition the wealth of worlds could not tempt dent of the United States is tried. As the Vice President succeeds to the functions and emoluments me for an instant to think of sitting as a judge of the President of the United States whenever a in a case where my interests were so directly vacancy happens in the latter office, it would be inpersonally involved. consistent with the implied purity of a judge that a person under a probable bias of such a nature should Mr. SUMNER.. Mr. President, I shall not participate in the trial, and it would follow that he attempt to follow learned Senators in the ques- ought wholly to retire from the court." tion whether this is a Senate or a court. Th4t Those are the words of a commentator on question, to my mind, is simply one of lan- the Constitution. They next appear ten years guage and not of substance. Our powers at later in the Commentaries of Mr. Justice Story, this moment are under the Constitution of the as follows. After citing the provision "when 17 the President of the United States is tried the Senate was declared to have the sole power to try Chief Justice shall preside," the learned corn- impeachments it was by necessary implication mentator proceeds: invested with the pouter incident to every "The reason of this clause has been already ad- court, and known historically to belong to the verted to. It was to preclude the Vice President, English court of impeachment, from which ours who might be supposed to have a natural desire to was borrowed, of suspending the party accused. succeed to the office, from being instrumental in procuring the conviction of the Chief Magistrate." All this was apparent at the time, if possible, And h cites in his note wle on the more clearly than now. It was so clear that constitutiond page 216,s beingotheeverywords it furnishes an all-sufficient reason for the Constitution, page 216," being the very words that I have already read. Here is the first provision that the Chief Justice should preappearance of this reason which is now made side on the trial of the President, without reto play so important a part, being treated even sorting to the later reason which has been put as a text of the Constitution itself. At least I forward in this debate. been able to meet it at an earlier day. But we are not driven to.speculate on this have not been able to meet it at an earlier day question. While the Constitution was under If you repair to the contemporary author- discussion in the Virginia convention George ities, including the original debates, you will Mason objected to some of the powers confind no such reason assigned; nothing like it ferred upon the President, especially the parnot even any suggestion of it. On the con- doning power. This was on June 18, 1788 trary, you will find Mr. Madison, in the Vir- and will be found under that date in the reports ginia convention, making a statement which of the Virginia convention. This earnest o explains in the most satisfactory manner the of the V onvention said that the Prest oprequirement of the Constitution. No better ponent of the Constitution said that the Presirequirement of the Constitution. No better dent might "pardon crimes which were advised authority could be cited. Any reason supplied by h imself," and thus further his own ambiby him anterior to the adoption of the Con- by himself," and thus further his own ambiby him anterior to the adoption of the Con- tious schemes. This brought forward Mr. stitution must be of more weight than any ex schemes. This brought forward Mr. ttution must be of more weight than any ex Madison, who had'sat, as we all know, throughpost facto imagination or invention of learned out the debates of the national Convention,. out the debates of the national Convention, If we trust tcommentas of historys. the and had recorded its proceedings, and who, If we trust to the ligts of history the rea- of all persons, was the most competent to tesonstitu for the introduction ofwas because this clause inof the tify at that time as to the intention of the Constitution was because the framers of the his eminent authority? I framers. What said this eminent authority? I Constitution contemplated the possibility of the give you his words: suspension of the President from the exercise There is one security in this ase to which gentleof his powers, in which event the Vice Presi- men may not have adverted. If the President be dent could notbe in your chair, sir. IfthePresi- connected in any suspicious manner with any perdent were suspended the Vice President would son, and there be grounds to believe he will shelter' be in his place. The reports will verify what ~him, the House of Representatives can impeach him:' be in his place. The reports will verify what they" — I say. If you refer to the debates of the na- Evidently referring to the Senate, or the tional Convention under the date of Friday, Senate in connection with the HouseSeptember 14, 1787, you will find-the following can remove him if found guilty; they caci suspend entry, which I read now by way of introduction him when suspected, and the power will devolve upon to what follows at a later date, on the authority the Vice President." of Mr. Madison himself: TMark well these words: "they can suspend "Mr. Rutledge and Mr. Gouverneur Morris moved him when suspected." If only suspected:the that persons impeached be suspended from their President can be suspended. What next? offices until they be tried and acquitted. "Mr. Madison. The President is made too depend- "And his power will devolve upon the Vice ent already on the Legislature by the power of one President;" in which event, of course, the branch to try him in consequence of an impeach- Vice President would be occupied elsewhere ment by the other. This intermediate suspension will put him in the power of one branch only. They than in this Chamber. can at any moment, in order to make way for the Those were the words of James Madison, functions of another who will be more favorable to spoken in debate in the Virginia convention. their views, vote a temporary removal of the existing Magistrate. Taken in connection with the earlier passage "Mr. King concurredinthe oppositionto the amend- in the national Convention, they seem to leave ment." little doubt with regard to the intention of the The proposition was rejected by the decisive framers of the Constitution. They were unvote-eight States in the negative to three in willing to give to the other House alone the the affirmative. We all see in reading it now power of suspension, but they saw that when that it was rejected on good grounds. It would they authorized the Senate to try impeachobviously be improper to confer upon the other ments they gave to it the power of suspension, branch of Congress the power, by its own vote, if it should choose to exercise it; and the susto bring about a suspension of the Chief Magis- pension of the President necessarily involved trate. But it did not follow, because the con- the withdrawal of the Vice President from this vention rejected the proposition, that a suspen- Chamber, and the duty of supplying his place. sion could take place on a simple vote of the I submit, then, on the contemporary testiHouse of Representatives, that, therefore, the mony, that the special reason why the Chief President could not be suspended. When the Justice is called to preside when the President A C-2 18 is on trial is less what learned Senators have porary history which supplies another reason. assigned than because the Vice President Unless I am much mistaken this disposes of under certain circumstances would not be able the objections, proceeding from so many Senato be present. It was to provide for such a con- tors, that the Senator from Ohio cannot take tingency, being nothing less than his necessary the oath because he may possibly succeed to absence in the discharge of the high duties of the President now impeached at your bar. He Chief Magistrate, that a substitute was neces- may vote or not as he pleases, and there is no sary, and he was found in the Chief Justice. authority in the Constitution or any of its conAll this was reasonable. It would have been temporary expounders to criticise him. unreasonable not to make such a provision. This is all, sir, I have to say at this time on But this is not all. There is an incident this head. There were other remarks made by immediately after the adoption of the Consti- Senators over the way to which I might reply. tution which is in harmony with this authentic There was one that fell from my learned friend, history. The House of Representatives at an the Senator from Maryland, in which he alluded early day acted on the interpretation of the to myself. He represented me as having cited Constitution given by Mr. Madison. The first many authorities from the House of Lords tendimpeachment, as we all know, was of William ing to show in the case of Mr. Stockton that Blount, a Senator, and in impeaching him the this person at the time was not entitled to vote House of Representatives demanded "that he on the question of his seat. The Senator does should be sequestered from his seat in the Sen- not remember that debate, I think, as well as I ate." This was in 1797. The Senate did not do. The point which I tried to present to the comply with this demand, but the demand Senate, and which, I believe, was affirmed by nevertheless exists in the history of your Gov- a vote of the body, was simply this: that a man ernment, and it illustrates the interpretation cannot sit as a judge in his own case. That which was given at that time to the powers of was all, at least so far as I recollect; and I the Senate. The language employed, that the submitted that Mr. Stockton at that time was a person impeached should be " sequestered," judge undertaking to sit in his own case. is the traditional language of the British con- Pray, sir, what is the pertinence of this citastitution, constantly used, and familiar to our tion? Isit applicableat allto the Senator from fathers. In employing it, the House of Rep- Ohio? Is his case under consideration? Is resentatives gave their early testimony that the lie impeached at the bar of the Senate? Is Senate could suspend from his function any he in any way called in question? Is he to person impeached before them; and thus the answer for himself? Not at all. How, then, House of Representatives unite with Madison does the principle of law, that no man shall in supplying a sufficient reason for the provision sit as a judge in his own case, apply to him? that on the trial of the President the Chief How does the action of the Senate in the case of Justice shall preside. Mr. Stockton apply to him? Not at all. The In abandoning the reason which I have thus two cases are as wide as the poles asunder. traced to contemporary authority you launch One has nothing to do with the other. upon an uncertain sea. You may think the Something has been said of the "interest" reason assigned by the commentators to be of the Senator from Ohio on the present occasatisfactory. It may please your taste; but it sion. "Interest!" This is the word used. cannot be accepted as an authentic statement. We are reminded that in a certain event the If the original propositions were before me I Senator may become President, and that, on should listen to any such suggestion with the this account, he is under peculiar temptations greatest respect. I do not mean to say now which may swerve him from justice. The Senthat, as a general rule, it has not much in its ator fiom Maryland went so far as to remind favor. But I insist that so'far as we are in- us of the large salary to which he might sucformed the reason of the commentators was ceed, not less than $25,000 a year, and thus an afterthought, and that there was another added a pecuniary temptation to the other disreason which sufficiently explains the rule now turbing forces. Is not all this very technical? under consideration. Does it not forget the character of this great I respectfully submit, sir, that you cannot proceeding? Sir, we are a Senate, and not a proceed in the interpretation of this text upon court of nisi prius. This is not a case of asthe theory adopted by the learned Senators sault and battery, but a trial involving the desover the way. You must take the text as it tinies of this Republic. I doubt if the quesis; you'cannot go behind it; you cannot ex- tion of "interest" is properly raised. I speak tend it. Here it is: " When the President of with all respect for others; but I submit that the United States is tried the Chief Justice it is inapplicable. It does not belong here. shall preside." That is the whole, sir. "The Every Senator has his vote, to be given on Chief Justice shall preside." No reason is his conscience. If there be any "interest" assigned. Can you assign a reason? Can you to sway him it must be that of justice and the supply a reason? Especially can you supply safety of the country. Against these all else one which is not sustained by the authentic is nothing. The Senator from Ohio, whose contemporary history of the Constitution; and vote is now in question, can see nothing but particularly when you have authentic contem- I those transcendent interests by the side of 19 which office, power, and money are of small wipe out one or the other of these clauses from account. Put in one scale these interests so the Constitution for the time being. dear to the heart of the patriot, and in the Sir, this being the language of the Constituother all the personal temptations which have tion, if that were all of it, would there be any been imagined, and I cannot doubt that if the doubt that upon the trial of a President upon Senator from Ohio holds these scales the latter impeachment the Vice President would sit will kick the beam. where you now sit? If there were no other Mr. POMEROY. I suggest that this ques- provisions of the Constitution but these, and tion lie on the table, as we cannot take a vote a President were to be put upon trial on imuntil all the members are sworn. I cannot peachment, would any one suggest that the make that motion, because no motion can be Vice President should leave his chair and the acted upon, as we are partly sworn and partly Chief Justice of the Supreme Court be placed not. I think by unanimous consent, and by in it? But the impropriety of the Vice Presthe consent of the Senator from Indiana, his ident sitting there would be just the same if proposition may lie on the table until the oath the Constitution had taken no notice of it as be administered to the remaining Senators. it is now, and just the same as is the improMr. HOWE. If the Senator will indulge priety of this oath being administered to the me in a remark, as this is the first time I have Senator from Ohio. The men who made the felt called upon to make one on this-occasion, Constitution foresaw that and provided for it, it seems to me he has presented the most con- and therefore said that in case the President elusive argument, if he is right, against the be impeached the Vice President shall not preobjection that is taken here. An objection is side, as the Constitution had before declared taken which the Senator says we cannot vote he should, but the Vice President shall leave upon, and his proposition is that we ignore it, his chair and the Chief Justice shall preside go around it, lay it on the table. Suppose we during that trial; and it is because the Condo not choose to go around it; then this pro- stitution says so that the Vice President does ceeding stops, if the objection is well taken. leave his chair on such an occasion. But here, It seems to me it cannot be well taken unless in reference to this question, there is no such here is a tribunal which can pass upon it, and direction in the Constitution. pass upon it now, dispose of it in some way. Now, as to the objection which is taken and It seems to me the objection cannot be well as to the time of taking it. It seems to me if taken if we are obliged to run away from it, anything is plain which is not written in the Conbecause, whether we be a court or a Senate stitution it is the objection taken by the Senawithin the meaning of the Constitution, both tor from Maine, [Mr. MORRILL.] If there is are dissipated necessarily by the raising of a any objection to the qualifications of the Sensingle objection to administering an oath to a ator from Ohio to try this question it is an single member. objection which one of the parties to this litiOne word further, as I am up. It seems to gation has a right to urge, and nobody else in me that this would not be a difficult question the world; and, so far as I know, neither of the to determine, and by this very tribunal, if we parties to that litigation are here. If both were were willing to read what is written and abide here would they not have a right to waive the by it, for it is written that " the Senate of the objections, if there were any? Could we exUnited States shall be composed of two Sen- elude a member of this Senate against the proators from each State." That is written, and test of both the parties to the litigation and it is elsewhere written that Ohio is a State; say, when they were consenting, that this man and nowhere is anything written to the con- or that should not be a member of the Senate? trary; and if Ohio is a State and this-the Con- Clearly not. stitution-is law, Ohio is entitled to two Sen- But, then, what is the objection itself? That ators on this floor at this time. It is also he is interested, is it? And how interested? written that " the Senate," composed in this Why, that in a certain contingency, if the issue way, " shall have the sole power to try all im- of the trial be in one way, the Senator whose peachments." The Senateshall have the sole right to take this oath is objected to would power to try all impeachments-nobody else- cease to be President of the Senate and would and I cannot understand why that is not the become President of the United States. It end of the law. If there were elsewhere in this was well replied by the Senator from Michigan instrument any qualification or modification of that that is not certain; that that is not an ineither of those provisions then we should be dvitable consequence; that is a non sequitur. bound to attend to them; but if there is none It does not follow that he would become PresI do not see why this is not the end ofthe law. ident of the United States. If he continued Whatever may be the impropriety or indelicacy to be President of the Senate up to the time of the Senator firom Ohio, whose right to take when the judgment of amotion was pronounced, the oath is now questioned, acting here-gen- I suppose, by the terms of the Constitution, he tlemen are at liberty to entertain their own would be President; but if he should not opinions upon that point-the law of the case continue to be President of the Senate up to is here; he is a Senator; he is a member of the that time he would not be. Admit that he is tribunal which tries impeachments; or we must now in possession of the office, which would 20 give him the succession under the Constitution Senate, alphabetically taken. If it had been in case of amotion; but the office, the condi- the very first one the objection could have been tion, the predicament which is his position just as well taken and decided by a Senate to-day may be the reversion of any one of us not one single member of which had yet been to-morrow; we are remainder-men if he should sworn in the matter of impeachment. happen to retire from that office by the judg- Mr. President, for these reasons, aside from ment of the Senate. all others, I hold that there is no person here Mr. FRELINGHUYSEN. And consequent- who can pass upon this question; the President ly all of us are interested. of the Senate cannot pass upon it; or even if Mr. HOWE. All his interest would thus he, in virtue of his presidency, could pass upon be removed, and that same interest would be questions in the course of this trial, the court, vested in some one of the rest of us; I do not if you call it so, is not yet organized; it is only know exactly who; but the same possible in- in the process of organization. There are terest, contingent interest, which is objected to members of the court here, if you call it a to-day in him is an objection which can be court, waiting to be sworn; and you stop the urged against every one of us, because we are whole thing here and vote, do you, upon this liable to be, before the termination of this liti- question, when the vote of those four members gation, placed in precisely the same predica- that are waiting to be sworn might change the ment, and no one of us can be fit, because of determination one way or the other? this possible interest, to try this question. Sir, the whole thing resolves itself at last Mr. President, I believe, by a rule of the into a question of order, of entertaining this bcdy governing this proceeding, the remarks proposition at all. I will venture to say that of members are limited to ten minutes. I have if the court had been organized and the pressaid all I care to say upon the question. ent incumbent of the presidency of the Senate Mr. DRAKE. Mr. President, I do not pro- had been accustomed, as he is in another tripose to go over any of the grounds that have bunal, to announce the decision upon questions heretofore been taken by other Senators on of order, he would instantly have decided that this subject; but there are one or two questions this question was out of order at the time it which seem to me to lie in the foreground of was raised. These are the views about this this matter, and to which I should like to call matter which have led me to participate for the attention of those gentleman who insist these few minutes in the debate on this subject. upon this exception at this time. If the objec- Mr. THAYER. Mr. President, it seems to tion has any vitality, any legal validity what- me that the question might with propriety be ever, it is one that requires to be passed upon asked, what is there in a name? With alldue affirmatively or negatively by some body; and respect for the honorable Senators who have I should like to know who is to pass upon it at by argument attempted to convince the Senate this stage of the proceeding? Is it addressed that this is a court, I am compelled to think that to the Presiding Officer of the Senate, as if he it is a waste of words. It is true that in the had the right to pass upon it? I imagine not. earlier trials of impeachment the term " high I suppose it will hardly be contended that so court of impeachment" was used; but it was, grave a question as this can be passed upon by in my judgment, a matter of taste or of form. that officer, even if any question in this trial We are, after all, obliged to come back to the can be passed upon by him at all. If not to plain, pointed, Explicit language of the Constibe passed upon by the Presiding Officer of the tutionSenate, then what body is to determine the " The Senate shall have the sole power to try all question affirmatively or negatively? The Sen- impeachments. When sitting for that purpose"ate is not yet constituted for the trial of the Sitting as a Senate for the trial of an imimpeachment. peachmentBesides the honorable Senator from Ohio, they shall be on oath or affirmation." there are no less than four other Senators in Could language be plainer? Could meantheir seats on this floor at this time waiting to ing be more apparent than this? If we have have the oath required by the Constitution passed into a "high court of impeachment" administered to them. They are entitled to when did that transposition take place? This vote upon all questions which may arise in Senate was sitting as a Senate to-day from the Senate sitting in the matter of impeach- twelve o'clock till one. It did not adjourn. ment. Are you going to stop the proceedings What became of it? Where is it if we are of the Senate at this point and exclude four here as a court to-day? The Senate does not of the Senators here that are ready and wait- die. The Senate is in existence. It is here in ing to take the oath? If you are, then if it this body, or is this body sitting as a Senate to had so happened that the first name on the roll try a question on a case of impeachment? had been that of the President pro tempore of But, after all, that is not material. I have the Senate, all the remainder on the roll after risen more for the purpose of noticing the obhim might, before being sworn, have under- jection raised by the honorable Senator from taken to adjudge that he should not be sworn. Indiana, [Mr. HENDRICKS.] The question of It just so happens that the name of the Sena- interest is made against the taking of the oath tor from Ohio is low down on the roll of the by the honorable Senator from Ohio, [Mr. 21 WADE,] upon a rule of law in the courts that a ation of power. He is here as a Senator in the person having an interest in the verdict which possession and exercise of every right of a may be rendered is excluded from sitting upon Senator until you expel him by a vote of two that jury. If that rule is to prevail here I am thirds of this body. Then he ceases to have surprised that the honorable Senator from In- those rights, and not till then. diana did not raise the question at an earlier Again, on this question of interest, suppose stage in the progress of these proceedings to- some ten or fifteen Senators were related in day. There is another rule of law, orthe same some way to the accused; if the rule holds rule applicable with equal force, which excludes good you might reduce this body below a quc from the jury a person related by blood or mar- rum, and thus defeat the very object which th,. riage to the accused. If the objection is good Constitution had in view in creating this as the in one case is it not equally good in the other? tribunal to try questions of impeachment. If it should exclude the honorable Senator Again, in courts of law, if objections are from Ohio why should it not exclude the hon- made to any one sitting upon a jury, and he is orable Senator from Tennessee, [Mr. PATTER- excluded, an officer is sent out into the streets soN?] I cast no imputation upon that Sen- and the highways to pickup talesmen and bring ator; I do not question his determination to them in to fill up the jury. Can you do that try this case justly and fairly according to the here? Suppose you exclude the honorable SenConstitution, the law, and the evidence; I ator from Ohio, can you send an officer of this make no objection to the Senator from Ten- Senate out into the lobbies or into the streets nessee; but I desire to say that if this objec- of Washington to bring in a man to take his tion is to be raised in the case of the honor- place? By no'means. I need not state that. able Senator from Ohio it ought, by the same Thus I come back to the proposition that we rule of law and of evidence and of construe- are a Senate, composed of constituent members, tion, to be applied to the honorable Senator two from every State, sworn to do our duty as from Tennessee. Senators of the United States; and when you But, sir, in regard to the question of interest, attempt to exclude a Senator from the perif that objection is valid against the Senator formnance of that duty you assume functions from Ohio it lies against every member of this which are not known in the Constitution and body, only one degree more remote. If, by cannot for a moment be recognized. When the verdict to be rendered in this trial, the you attempt to exercise the power, and do Senator from Ohio should pass from that chair exercise it, are you any longer the Senate of into the more exalted position of President of the United States? The Senate, no otherparthe United States, it devolves upon thisSenate ties or bodies forming any part of it, is the only to elect one of the Senators sitting here to fill body known to the Constitution of the United that vacancy. Human life is in the hands of States forthis purpose, and the Senate is comOne who is above all human tribunals, and in posed of two Senators from each State. the course of human events the honorable Sen- Mr. HOWARD. I do not rise to prolong ator from Ohio, elevated to the position of the debate, and I entertain the hope that we Chief Magistrate of this nation, may pass away, may be able to dispose of this question very and that Senator sitting here on this trial who soon. I rise more for the purpose of calling has been elevated to the position of Presiding the attention of the Chair to the real matter Officer of this body may become the successor before us, and of inquiring whether the propoof him to whom objection is made to-day in sition now made to us is in order. I believe the office of President of the United States. I the motion is, that other Senators shall be repeat that the interest lies with every Senator called to take the oath, and the Senator from here, only one degree more remote. Ohio be passed by for the present, until other But, Mr. President, it has been said repeat- Senators are all sworn in. If I am mistaken edly this afternoon, and it is not necessary for about that, I should like to be corrected. me to dwell upon it, that we are here as a Sen- The CHIEF JUSTICE. The Senator from ate of the United States. The honorable Senator Ohio [Mr. WADE] presents himself to take the from Ohio is here as a Senator of the State oath. The Senator from Indiana [Mr. HENDof Ohio, clothed with the rights and all the RICKS] objects. The question then is, Shall power possessed by any other Senator on this the Senator from Ohio be sworn? Pending foor. He is the equal in every particular of that proposition, the Senator from Maryland every Senator who is now sitting as a mem- [Mr. JOHNSON] moves that in administering ber of this body. I challenge the honorable the oath to Senators the name of the Senator Senator from Indiana or the honorable Senator from Ohio [Mr. WADE] be omitted in the call from Maryland to point me to one iota in the until the remaining names on the roll shall Constitution which recognizes the right of this have been called.. That is the question now body to deprive any individual Senator of his before the body. vote. No matter what opinionswe may enter- Mr. HOWARD. Yes, Mr. President, I so tain as to the propriety of the honorable Sena- understood; and that is a question. allow me tor from Ohio casting a vote on this question, to say, which I suppose to be entirely within he is here as a Senator, and you cannot take the competency of the Chair. There is no rule away his right to vote except by a gross usurp- requiring the members to be called alphabet 22 ically to take the oath. If the Chair should ration in the Constitution found its way there see fit upon his own responsibility to call them simply because the practice previously in the illn reverse order undoubtedly he could do so. Government which preceded our present one I do not see, therefore, any necessity of spend- had been to vote by States. I suppose that ing further time in the discussion of this par- that clause of the Constitution has no other ticular motion; but at the same time I must office or meaning. Most certainly it does not confess, on reflecting upon this objection, that it bear any such signification as that attempted seems to me to resolve itself into a pure ques- here to be assigned to it, to oblige us upon tion of order. The Senate of the United States every possible question, whether we be acting are endeavoring to assume their judicial func- in a legislative, executive, or (as now) in a tions in a particular case, and are sitting, or judicial capacity, to admit every single memendeavoring to sit, upon the trial of an im- ber to vote upon every single question which peachment. Therefore, it seems to me, it can arise. That is simply the rule by which must be held that the trial has commenced. votes shall be given in the Senate-" each If I am correct in this, it appears to me that Senator shall have one vote "-but the Conbut one conclusion can be arrived at by the stitution does not attempt to define the cases Chair. where each member can vote. It does not at"The Senate shall have the sole power to try all tempt to exclude cases where his vote would impeachments. When sitting for that purpose, they be improper or might be excluded by law or shall be on oath or affirmation." by rule. In conformity with this view the The Constitution is mandatory; it is imper- Senate has already adopted a rule for excludative in its very terms. When Senator offers, ing votes in particular cases. It is the practherefore, to take the oath, it becomes the duty tice of this body-and I believe in that respect of the Chair, under the Constitution, to admin- our practice conforms to that of all other ister the oath to him, and any objection to his bodies of similar constitution —it is a rule taking the oath such as is made here seems founded innatural propriety and justice, that to me to be out of order, because it implies no man shall express his voice, although he be that we may, or somebody here may, disobey a representative, in a case where he shall have and disregard this imperative mandate of the a direct personal interest in the decision to be fundamental law. That will be a question, I made. apprehend, for the President of the Senate to Gentlemen seem to feel great difficulty of decide. mind, because, as they say, without the swearMr. BUCKALEW. I should like to inquire ing in of the Senator from Ohio the court will of the Senator from Michigan if his own rules, not be fully constituted; that we are at present for the adoption of which he has asked our in an imperfect condition; that the taking of assent some days since, do not provide that the an oath by him, and the taking of a place Presiding Officer may submit any question to among us by him in the new capacity which the Senate for decision? Having called upon we are assuming, is necessary and essential us to adopt such a rule, and we having assented to the constitution of the body. That arguto his request, I think it very extraordinary ment has no weight with me in determining that he endeavors to place upon the Chair the the question which has been raised by the entire responsibility of deciding this question objection of the Senator from Indiana. Sir, in any of the varied forms which it may assume, this is a difficulty which may arise in the oreven assuming it to be (which I do not) a ques- ganization of any body made up of many memtion of order, pure and simple. bers. It may arise in a judicial, in a legislative, Gentlemen read to us a section of the Con- or in a popular body anywhere; a question with stitution which says that the Senate shall be regard to the membership of the body in its composed of two members from each State, organization. Questions of this kind have and that each Senator shall possess one vote. been continually occurring from the foundaI suppose, if we were to be curious upon a tion of the Government in the two Houses of point of constitutional history, we might ascer- Congress. Formerly, in the Senate, the practain that that last clause was put in the Consti- tice was that a member who presented his cretution with reference to the previous practice dentials was sworn, and afterward, in case there in the Congress of the Confederation, where was objection to his right, his case was investithe votes were taken by States. This clause, gated and determined. Recently, however, the declaring that each member of the Senate, Senate seem to have fallen into a different pracrepresenting a State under the new system, tice. - Upon one or more occasions recently, should give a single direct vote, was to exclude, one notably in my mind, the recent case from I suppose, the practice which had previously Maryland, a member appearing in the Senate obtained of voting by States. A fundamental and claiming a right, to a seat, with regular idea in constituting bodies consisting of more credentials from his State, upon an objection than one person is that the members shall be made was not sworn. The objection was susequal; that each shall possess an equal voice tained. The case was sent to a committee in its proceedings. I take it, therefore, that of this body and investigated through many upon principle each member of the Senate months, and the case was, in fact, acted upon ought to possess one vote; and that this decla- at a subsequent session of the Senate, when a 23 decision was arrived at an'd the judgment of shirk our duty of declaring his incompetency the Senate was pronounced. ~ on the first occasion when the question is made. Now, sir, in what respect does this case Now, sir, upon what ground is it that gendiffer in principle from that? Here the Senate tlemen would deprive us of that ordinary power is about to-organize itself into a court; its mem- which exists in the nature of things, to debers to be put under oath. The Chief Justice, cide upon the constitution of our own body? of the Supreme Court is called to preside over As I said before, this is not a question of chalthe proceedings, and we are to proceed as lenge for partiality, nor even for interest under judges of law and of fact to decide the gravest some law which gives it to a party in a court question which can be presented to any tribunal of justice. It is a question which arises under in this country. The Senator from Indiana, the Constitution as to the organization of our when the Senator from Ohio appears, sug- own body-who shall compose it; and we are gests-not as a challenge in the ordinary Way, to meet that question, and decide it, in the or upon ordinary principles-that under the very outset of our proceedings. Constitution of the United States the member The Senator from Massachusetts has read to from Ohio cannot sit in this court. Now, sir, us what Judge Story wrote about 1830, in that question involves the question of his right which he stated an opinion similar to that to be sworn, and it is made at the proper time, which was contained in a communication from for it is made when the question arises legiti- yourself, sir, to the Senate yesterday; and mately in the course of our proceedings. If that was that when the President of the United the objection be well grounded in the Consti- States is on trial upon articles of inmpeachtution of the United States this is the time to ment the Chief Justice is called to preside make it for a very plain reason. If it be not because the Presiding Officer of the Senate is now made, assuming it to be a just objection, a party in interest, and it would be a scandal what will be the consequence? That a mem- to have him preside in a case where his own ber not qualified to act will become a member possible accession to the office of President of of the court and take part in its proceedings; the United States was involved. I am content and he will remain a judge in the case, entitled for the present to take the opinion of the presto vote upon all questions which may arise, eat Chief Justice of the Supreme Court of the until at some future time, perhaps days, weeks, United States, and the opinion of the most or months hence, a Manager for the House or eminent commentator upon American law, in an attorney for the accused may raise the ques- preference to the opinion of the Senator from tion of his right to sit by a motion or challenge. Massachusetts pronounced here in debate. I Then only (according to the argument) can our think it would be an impropriety, if nothing power of action upon this question be duly worse, for the Senate to proceed at this moexerted. ment, upon the strength of his opinion and of The argument has been made by a member his argument against the highest authorities, to in debate that perhaps the counsel who come pronounce that the Senator from Ohio is enin here will not make the objection to this par- titled, as a member of the Senate sitting as a ticular member; and what then? The Senate court of impeachment, to try the present case. is to be unable at any time during the trial to In the courts of justice I understand that relieve itself from an incompetent member! challenges are to be made to jurors before they Then an unlawful member may continue to sit are sworn. If that time has passed by, and from the beginning to the end of the proceed- the juror is charged, under oath, with the trial ing! At all events it is insisted that some of the case, it is too late to object; and, unattorney-at-law or manager must raise the doubtedly, if, during the progress of this trial, question in order that we may assume jurisdic- an objection should be made to the competency tion over it and decide it. Can anything be of one of the members of the court to sit in more absurd than that? the case, the answer which would be made When you pursue this argument to its con- before us and pressed upon our attention would sequences, I think it becomes manifest that be that the objection came too late, that the this is the time to raise the question; and I member had already been sworn. believe that it is not only within our power to Mr. FRELINGHUYSEN. I should like to raise the question now, but that it is our duty ask the Senator from Pennsylvania whether to determine it. We are acting under the he considers that the respondent, the accused, Constitution of the United States. Most of us has waived his right to challenge, if any such have already been sworn by you, sir, to obey right exists, as to all those members of the that Constitution; and if, indeed, itbe true that Senate who have been sworn; and if he has by that provision of the Constitution which not waived that right, is not that conclusive calls you here to preside over our proceed- proof that this is not the time to interpose the ings-not to give dignity to them merely, but objection, but that the challenge, if a challenge for the other and better and higher purpose, to can be made, must be made to giving the vote, give purity and a disinterested character to not to taking the oath? those proceedings-if, indeed, it be true that Mr. BUCKALEW. I am not arguing the by that provision the member from Ohio (our question of a challenge which may be presented Presiding Officer) is disqualified, we cannot during the trial. All that I was alluding to at 24 the moment the Senator interrupted me was lawful thing? That was done in the very bethe point that the particular argument I men- ginning of the proceedings, before the memtioned would be made. I am not treating this bers of the Senate were sworn at all-earlier as a question of chlfllenge by a party before than the S'enator from Indiana now interposes us. 1 am not arguing on that ground. The in the present case upon this question of swearquestion has not been put upon that ground ing the Senator from Ohio. The Senate did by the Senator from Indiana or the Senator not resent that demand of the House of Repfrom Maryland. A right of challenge is a resentatives. They made no objection to it. right given by a statute to a party in court to Subsequently, however, for good reasons, interpose in a particular manner and raise a which I need not now recite, they did what particular question. 1We have nothing of that was more effectual: they expelled Blountfromn kind here. It is not involved in the present membership by virtue of the constitutional debate. The question now before us and for power which they possessed. By a two-thirds our decision is this: in proceeding to consti- vote they not only sequestered him from the tute ourselves into a court, an objection being Senate during the trial, but deprived him of made that a particular Senator is not qualified his seat during his whole term. That was the to sit in that court at all, is it not our duty to action of the Senate. meet the question and decide it? The prac- Now, Mr. President, if the House of Repretice that I was going to point out of- both sentatives has a right to ask the Senate to reHouses of Congress, at least in recent times, move or to sequester a member from this body would seem fully to sustain this course. I because he is interested in the trial which is to have already mentioned the case of the Sen- take place, it must be upon'an affirmance of the ator firom Maryland. In the House of Repre- very point in this debate, that is, that the Sensentatives, when members have appeared there ate, in constituting itself into a court, has a in the present Congress, the whole delegation right in a proper case to omit a member from from a State have had their cases referred. being sworn, from becoming a part of the body Their being sworn in was deferred for the time as reorganized forthe special purpose. I insist, until some investigation took place. It is an therefore, that this case, to which the Senator ordinary mode of proceeding, and it is a power from Massachusetts has referred as authority, which may be assumed by any body, unless will instruct us that it is our duty now to act there be somie statute or constitution to pre- upon this case, and, by omitting to swear the vent it, in deciding upon the qualifications of Senator from Ohio, to leave him to his general its own members. The Senate has a general rights as a Senator; but, for a particular conpower to decide upon the qualifications of its stitutional reason not to permit him to act with own members. Now, when we come to act in us in this particular trials when the result of a particular capacity and under oath, have we the trial, if conviction takes places, will be to not the power to decide upon the qualifica- place him in the office of President of the Unitions of the members of the Senate who are ted States. to act in this new capacity, and if there be any I repeat, sir, from my point of view, this is incapacity to declare it? not in the nature of a challenge by a party. One point more, and I will leave the debate. Nor is it an objection made as a matter of favor The Senator from Massachusetts informs us to either party in this proceeding. It is made that in 179S, when the House of Representa- as a constitutional objection, as a question of tives presented articles of impeachment against membership, as a question upon the organizaSenator Blount, they made a demand of the tion of the Senate into a court of impeachment. Senate that he should be sequestered from his As to the capacity in which the Senate act, seat. Like the Senator from Ohio, he was a it seems to me there is no difficulty. The old member of this body, as it was then constituted, writers and the old commentators used clear sitting here under oath, speaking the voice of language-"the Senate of the United States a State, having, one would suppose, as much sitting as a court of impeachment." That was authority and power as any of his colleagues. the description of bodies like the one we are What did the House of Representatives do? about organizing, in olden times, and the uniThey asked the Senate, for the purposes of the form language applied to them down to this trial and during the whole trial, to sequesterhim day. It is still the Senate of the United States, from his seat; that is, to remove him from it; but it sits as a court; for the time being it must to say he should not sit and take part in the act upon judicial rules, and must administer proceedings. That was the demand of the the laws of the United States which are appliHouse of Representatives at a time when that cable to the particular case. Its legislative House was composed of giants in intellect, who powers and functions are left behind it. It has had participated in the formation of the very taken on a new character and is performing a Constitution under which this proceeding takes new function, judicial in its nature and judicial place. They made that demand of the Senate. only. That is the whole of it. Was it repelled? Was it supposed to be an Mr. MORTON. I respectfully submit that unreasonable or an impertinent demand? Was the latter part of the argument of the Sefator it supposed that the House of Representatives from Pennsylvania does not accord well with asked the Senate to do an unreasonable or un- the first part. The distinguished Senator from 25 Pennsylvania started out by saying that we now; and the Constitution says it shall be were now organizing a court. He then used the under oath. The Senator from Ohio had no words, "We are about to constitute a court." choice but to take the oath. As to what he He talked agreatdeal about the creation or con- shall do hereafter on the challenge of the acstitution of a court. He proceeded upon the cused is a question that I willnot discuss now. theory, as did my colleague in his first argu- It is enough to say that all this talk about a ment, that we were about to constitute a court high court of impeachment, about a tribunal which was to be selected from the members of yet to be constituted, yet to be organized, is the Senate. Mr. President, the error of this outside of the Constitution. We are sitting whole argument is right here. The Constitu- simply as a Senate, as much so as when we tion has constituted the tribunal itself. We pass a bill or as when we ratify a treaty. The have no right to organize a court. We have Constitution says so, and there is nobody that no right to constitute a court. The tribunal is is authorized to say no. constituted by the Constitution itself, and is Mr. DIXON. Mr. President, the President simply the Senate of the United States. of the United States is about to be tried before The remark was made, I believe, by the Sen- this body, either as a Senate or as a court, ator from Ohio, and perhaps by the Senator upon articles brought against him by the House from Massachusetts, that it was immaterial of Representatives, charging him with high whether you call it a court or a Senate. It is crimes and misdemeanors. In case of hisnot very material what you call it; but it is Mr. GRIMES, (to Mr. DixoN.) Will you material that you shall proceed simply on the give way for a motion to adjourn? idea that it is a Senate and nothing else. That Mr. DIXON. If the Senate wish to adis material; for if you abandon that plain and journ I will not take up the time of the Senate simple idea and adopt the theory that this now. tribunal is yet to be constituted you will wan- Mr. GRIMES. I understand that the Chief der from the Constitution itself. The Consti- Justice of the United States has been sitting in tution settles the whole' question in a few words. the Supreme Court and in this Chamber since It says, " the Senate shall have the sole power eleven o'clock this morning without an opportotry all impeachments;" and when it has said tunity to leave his chair. I think it is due to that it has itself constituted the tribunal. The him and to the Senate that we should now adSenate is th% tribunal. Who compose that journ, and settle this questionto-morrow morntribunal? The Senator from Ohio [Mr. WADE] ing. I therefore make that motion. is one of the men who now compose that tribu. Mr. HOWARD. What is the motion? nal, and we cannot get away from that con- Mr. GRIMES. To adjourn until to-morclusion. row. It may be said that while the Senate is try- Mr. HOWARD. To adjourn what until ing an impeachment it is exercising judicial to-morrow? powers. That makes no difference. Why, Mr. GRIMES. This court. sir, when we come in here to counsel as to the Mr. HOWARD. We have a rule bywhich confirmation of an appointment of the Presi- the Senate, sitting for the trial of an impeachdent we are not acting as a legislative body; ment, may adjourn itself, and still the ordiour functions are decidedly executive in their nary business of the Senate continue, so that character; but still we act not as an executive we may relieve the Chief Justice without body, or as part of the Presidency of the Uni- adjourning the Senate. ted States, but we act simply as the Senate. Mr. GRIMES. My motion is that the court Our duties are then executive in their charac- adjourn until to-morrow at one o'clock. ter; but we are performing them simply as the Mr. ANTHONY. I think the proper moSenate. So when we exercise what may be tion would be that the Senate proceed to the called judicial power in this case, we do not consideration of legislative business. do it as a court; we are doing it simply in the The CHIEF JUSTICE. The court must character of the Senate of the United States, first adjourn. Senators, you who are in favor performing certain powers or duties that are of adjourning the court until to-morrow at one imposed upon us by the Constitution. o'clock will say ay, and those of the contrary All this talk about organizing a court; all opinion will say no. this talk, in the language of my friend from The question being put, the motion was Pennsylvania, of constituting a tribunal, it agreed to. seems to me, is idle.' The Constitution has The CHIEF JUSTICE thereupon declared done that for us. It only requires that when the court adjourned until one. o'clock tothis tribunal shall act in this capacity it shall morrow, and vacated the chair. be sworn. We have no right to refuse to be sworn. If I were to refuse I should violate my duty. If the Senator from Ohio should IN SENATE, March 6, 1868. refuse he would violate his duty. It seems to The PRESIDENT pro tempore. The time me this is the whole of it. The simple idea is, having arrived for the Senate to proceed to the that it is a Senate and the tribunal is already consideration of matters connected with the formed-is not to be formed, but is formed impeachment of the President of the United 26 States, the chair will be vacated for the Chief peachment of - -, now pending, I will do Justice of the United States. impartial justice according to the Constitution and The President pro tempore thereupon retired laws. So elp me God." from the chair. That is the form of the oath prescribed by The Chief Justice of the United States en- our rules. It is the form in which the presidtered the Senate Chamber, escorted by Mr. ing officer of this boby himself is sworn. It POMEROY, the chairman of the committee ap- is the form in which we all, thus far, have been pointed for that purpose, and took the chair. sworn. And so far as the rules are concerned, The CHIEF JUSTICE. The Senate will I insist that they have already been adopted come to order. The proceedings of yesterday and recognized by us, so far as it is possible will be read. during the condition in which we now are of The Secretary read the'" proceedings of the organizing ourselves for the discharge of our Senate sitting on the trial of the impeachment judicial duty. I therefore made it a point of of Andrew Johnson, President of the United order that the objection made to the swearing States, on Thursday, March 5, 1868,," from the in of Mr. WADE is out of order; and also that entries on the Journal kept for that purpose by the motion of the Senator from Maryland, to the Secretary. postpone the swearing in of Mr. WADE, is out The CHIEF JUSTICE. At its adjournment of order under the rules and under the Conlast evening the Senate, sitting for the trial of stitution of the United States; and I ask most impeachment, had under consideration the respectfully, but earnestly, that the President motion of the Senator from Maryland, [Mr. of the Senate, the Chief Justice of the Supreme JOHNSON,] that objection having been made Court of the United States, now presiding in to the Senator from Ohio [Mr. WADE] taking the body, will decide this question of order, and the oath his name should be passed until the without debate. remaining members have been sworn. That Mr. DIXON. Mr. Presidentis the business now before the body. The Sen- Mr. HOWARD. I object to any further ator from Connecticut [Mr. DIXoN] is entitled debate. to the floor on that motion. Mr. DIXON. The very question before the Mr. DIXON. Mr. President Senate is whether under this rule the Senator Mr. HOWARD. Excuse me one moment. from Ohio can be sworn. Mr. President, I rise to a question of order. Mr. DRAKE. Mr. President, I call the The CHIEF JUSTICE. The Senator from Senator from Connecticut to order. Michigan will state his point of order. The CHIEF JUSTICE. The Senator from Mr. HOWARD. By the Constitution the Connecticut is called to order. The Senator Senate sitting on the trial of an impeachment from Michigan has submitted a point of order is to be on oath or affirmation; each member for the consideration of the body. During the of the Senate, by the Constitution, is a com- proceedings for the organization of the Senate ponent member of the body for that purpose. for the trial of an impeachment of the PresiIThere can, therefore, be no trial unless this dent the Chair regards the general rules of the oath or affirmation is taken by the respective Senate as applicable, and that the Senate must Senators who are present. The Constitution determine for itself every question which arises, of the United States is imperative; and when unless the Chair is permitted to determine it. a member presents himself to take the oath I In a case of this sort, affecting so nearly.the hold that as a rule of order it is the duty of organization of this body, the Chair feels himthe presiding officer to administer the oath, self constrained to submit the question of order and that his proposition to take the oath can- to the Senate. Will the Senator from Michinot be postponed; that other members have gan state his point of order in writing? no control over the question, but that it is a While the point of order raised by Mr. simple duty devolved upon the presiding offi- HOWARD was being reduced to writing at the cer of the body to administer thezoath. desk, Further, sir, the Senate, on the second day Mr. DIXON. I rise to a question of order. of the present month, adopted rules for their The CHIEF JUSTICE. A point of order government on proceedings of this kind. Rule is alreadypending, and a second point of order 8 declares that- cannot be made until that is disposed of. "Before proceeding to the consideration of the Mr. DIXON. I submit to the presiding articles of impeachment, the presiding officer shall officer whether a point of order can be made administer the oath hereinafter provided to the with regard to that question, and, with the members of the Senate then present"- consent of the Chair will state consent of the Chair. [ will state Mr. WADE is present and ready to take the The CHIEF JUStrICE. The Chair is of oath- opinion that no point of order can be made "and to the other members of the Senate as they pending another point of order. shall appear,whose dutyit shallbetotakethesame." Mr. HOWARD'S point of, order having been The form of the oath is also prescribed in reduced to writing, our present rules, and is as follows: The CHIEF JUSTICE. Senators, the point "I solemnly swear (or affirm, as the case may be) of order submitted by the Senator from Michthat in all things appertaining to the trial of the im- igan is as follows: " That the objection raised 27 to administering the oath to Mr. WADE is out is, whether as a question of order of the orderly of order, and that the motion of the Senator proceedings of this tribunal the Senator from from Maryland, to postpone the administering Ohio'Mr. WADE] can be sworn; and it is upon of the oath to Mr. WADE until other Senators that question that I now propose to address this are sworn, is also out of order, under the rules body. adopted by the Senate on the 2d of March Mr. President, when I had the honor yesterinstant, and under the Constitution of the day of addressing this tribunal, and gave way United States." The question is open to to a motion to adjourn, I was remarking that debate. the President of the United States was about Mr. DIXON. Mr. President, as I under- to be tried before this body in its judicial s and- capacity, whether called a court or not, upon Mr. DRAKE. I call the Senator from Con- articles of impeachment presented bythe House necticut to order. Under the rules of the of Representatives. If upon the trial he be Senate questions of order are not debatable. convicted the judgment may extend to his Mr. DIXON. I would remind the Senator removal from office and to his disqualification that when questions of order are referred to hereafter to hold any office of profit or trust the Senate for their decision they are always under the United States. How far the judgdebatable. ment would extend in case of his conviction ie Mr. DRAKE. I do not so understand the is of course impossible for any one now to say. rules of the Senate. There can be a debate In all human probability it would extend at upon an appeal from the decision of the Chair; least as far as to his removal from office; and, but there can be no debate in the first instance in that event, the very moment that the judgon a question of order, as I understand the ment was rendered the office of President of rules of the Senate. the United States, with all its powers and all The CHIEF JUSTICE. The Chair rules its attributes, would be vested in the Senator that a question of' order is debatable when sub- from Ohio, now holding the office of President mitted to the Senate. of this body. The office would vest in the Mr. DRAKE. If I am mistaken in the President of the Senate for the time being rules of the Senate on that subject I should And the question for this tribunal now to like to be corrected, but I think I am not. decide is whether, upon the trial of the PresiThe CHIEF JUSTICE. The Senator from dent of the United States, the person holding Missouri is out of order unless he takes an the office of President of the Senate, and in appeal from the decision of the Chair. whom the office of President of the United Mr. DRAKE. Well, sir, if it is according States, upon the conviction of the accused, will to the rules of the Senate debatable, I have immediately vest, can be a judge in that case. nothing to say. That, sir, is the question before us. Mr. POMEROY. The Senator must be Mr. SHERMAN. I very rarely call a Senaware that when the Chair makes a decision ator to order, but I feel it my duty on this it is to be decided without debate; but when occasion to do so in regard to the Senator from it is submitted to the Senate our custom is Connecticut. I think he is not in order in the that it is debatable. discussion he is now pursuing. The point subMr. JOHNSON and others. Always. mitted to the Senate by the Chair, and to be Mr. POMEROY. But it is not always sub- settled by the Senate, is whether or not it is in mitted to the Senate. order to proceed with this discussion. While Mr. HOWARD. I ask leave of the Senate that matter is being submitted to the Senate to read the sixth of the general rules of the the Senator from Connecticut goes on and disSenate: cusses the main question that was discussed yes"If any member, in speaking or otherwise, trans- terday. It seems to me that in a tribunal like gress the rules of the Senate the Presiding Officer this each Senator should observe strictly the shall, or any member may, call to order; and when a rules of order. I therefore make the point of member shall be called to order by the President or a Senator he shall sit down, and shall not proceed order on the Senator from Connecticut, and without leave of the Senate. And every question of hope the discussion will be confined to the point order shall be decided by the President without de- of order which is submitted now to the Senate. bate, subject to an appeal to tb Senate. and the President may call for the sense of the Senate on any Mr. DIXON. If I may be permitted, I beg question of order.". to say to the Senate that I am attempting to Mr. DIXON. I understand the sense of the discuss the question of order in what seems to Senate to be as I supposed, and I take it I me a proper manner. have a right to proceed. How far I have a right The CHIEF JUSTICE. The Senator from to discuss the general question I am somewhat Ohio makes the point of order that the Senator uncertain. I suppose that the question is now from Connecticut, in discussing the pending presented merely in that different shape alluded question of order, must confine himself strictly to by the Senator from Michigan yesterday to that question, and not discuss the main queswhen he reminded the Senate that, after all, tion before the Senate. In that point of order this was. in his opinion, a question of order, the Chair conceives that the Senator from Ohio and ought to be so discussed. I take it, Mr. is correct, and that the Senator from ConnecPresident, the question now before this body ticut must confine himself strictly to the dis 28 cussion of the point of order before the bated. All questions of order, when submitted House. by the Presiding Officer himself to the Senate, Mr. DIXON. Mr. President, I commenced or when they are brought before the Senate by by saying that it was somewhat uncertain in an appeal from his decision, are always open my own mind how far it would be proper to go to debate. Then what is to be debated under into the general merits of this question upon the question of order, which is, that there is the point of order; but that I supposed it would no right to object to the honorable member be proper to discuss the general question. And from Ohio taking the oath as a member of Iwill now take the liberty to say to the presid- this court? I suppose whether he has that ing officer of this body that if I were now cor- right. The objection that the right is a matter mencing this debate without the example of which cannot be disputed assumes the whole those Senators before me who have already controversy. If itwasadmittedby every memin the fullest manner discussed the pending ber of the Senate that the honorable member question, who, up to the time when I was per- from Ohio had a right to be sworn there would mitted the privilege of the floor, made no ob- be no question before the Senate. Some of jection to a full discussion-ifI had commenced the members of the Senate think that, for before that example, I should perhaps con- reasons stated in the debate yesterday, he has sider myself more strictlylimited in the course no right to be sworn as a member of this court. of my remarks than I feel myself to be with Whether it is in order to make that objection that example before me. If permitted to necessarily involves the question whether he proceed without interruption, I will say frankly has a right to be sworn. I do not see that to the Senate that I propose to go into the there can be any other question discussed upon general merits of the question whether the the question of order raised by the honorable President pro tempore of this body can be member from Michigan but the question sworn in as ajudge in this case-the same ques- whether the honorable member from Ohio has tion which has been discussed by other Sena- under the Constitution a right to be sworn; tors. If it is the opinion of the Senate that I Mr. HENDRICKS. I ask for the teading cannot go into that question, I certainly have of the point of order. not that desire to force myself upon the atten- The Secretary again read the point of order tion of the Senate that I should insist upon submitted by Mr. HOWARD. attempting to evade a rule. I should prefer, Mr. DIXON. I think I shall be able to therefore, that Senators would inform me, or discuss that question of order. that the Chair would inform me, how far I may Mr. HENDRICKS. All that I desired to proceed, and I certainly shall not willingly be say was this, that the discussionguilty of any impropriety. But I beg leave Mr. HOWARD. If the Senator from Inagain to remind the Senate that this strict rule diana will allow me one word, I desire to call is applied to me after ten Senators at least have his attention to the twenty-third rule that we fully discussed this question; and the Senator have adopted. Possibly it may have escaped who raises the question himself has spoken, I his attention. think, at great length not less than three times. " All orders and decisions shall be made and had by Now, sir, if it is the will of the Senate that I yeas and nays, which shall be entered on the record. may proceed, I certainly shall be gratified to and without debate." do it. As I have already said, I have no desire Mr. JOHNSON. The honorable member to proceed with constant interruptions upon will permit me to make a suggestion upon the questions of order. effect of that rule. I was aware of the existMr. JOHNSON. I believe the questions of ence of the twenty-third rule, but that goes into order raised by the honorable member from force only after we have become a court. The Michigan are, that the Senator from Ohio has question now is as to the manner in which we a right to be sworn and that the Senate have are to organize ourselves as a court. After we no right to ask that it should be postponed are organized all questions of order are, by even for a day. He places it upon the ground force of the twenty-third rule, to be decided that, being a Senator of the United States, he without debate. is by the Constitution of the United States Mr. SHERMAN. I should like to ask the made a member of the court. The argument Senator from Maryland if there is any doubt yesterday on both sides was an attempt to show of the power of the Senate to prescribe the the affirmative and the negative of that propo- mode and manner of organizing the court presition. Whether it is in order to object to his liminary to the final organization? There can being sworn necessarily involves the question be no doubt of it. The last clause of the third whether, under the Constitution, he has a right rule adopted by us the other day provides thatto be sworn. The honorable member made "Before proceeding to the consideration of the another question of order, or, rather, made it articles of impeachment the presiding officer shall administerthe oath hereinafter provided to the mempart of his first question of order, that these hers of the Senate then present, and to the other points are to be decided without debate. You, members of the Senate as they shall appear." Mr. Chief Justice, have held that, as you have Now, I will ask any Senator whether another submitted the questions to the deliberation Senator may stop the execution of this imand decision of the Senate, they may be de- perative order of the Senate while it is going 29 on, and give rise to a long debate when the address the Senate and discuss the question of presiding officer, in obedience to this rule, is order. I hold that to be out of order, and executing the order of the Senate? He might upon that question I ask a ruling. just as well stop the calling of the roll when Mr. DIXON. I respectfully submit that an the yeas and nays were being taken upon a appeal is debatable. motion and begin a discussion upon the right The CHIEF JUSTICE. The Chair will of a Senator to vote on a pending motion as decide the point of order. This point of order to stop the execution of this order of the Sen- is not debatable. The twenty-third rule is a ate, while the presiding officer, in pursuance rule for the proceeding of the Senate when of the rule, is executingit. It cannQt be done. organized for the trial of an impeachment. It The presiding officer is bound to execute the is not yet organized; and in the opinion of the ruleofthe Senate inthe ordinaryway. Nothing Chair the twenty-third rule does not apply at can interrupt the execution of the order when present. once adopted. Mr. DRAKE. I take an appeal from the Mr. DIXON. With the consent of the Sen- decision of the Chair on that point. ate I propose now —if the honorable Senator The CHIEF JUSTICI. The Senator from from' Ohio [Mr. SHERMAN] calls me to order Missouri appeals from the decision of the I can proceed only by consent-to discuss this Chair. question as a question of order, under the Con- Mr. DRAKE. I do not feel disposed to stitution of the United States and the rules argue the *question at this time, consuming of this body, as specified in the written state- time upon it. I take the appeal and ask for a ment'of the question of order, as made by the decision upon it by the Senate, if we are in a Senator from Michigan. Before proceeding condition to decide anything until all the SenI will request the Secretary to read the point ators are sworn. of order once more. I wish to know precisely The CHIEF JUSTICE. Under the general what I may be permitted to say. rules of the Senate, as the Chair understands, The Secretary read as follows: an appeal being taken from the decision of the "That the objection raised to administering the Chair it must be decided without debate. oath to Mr. WADE is out of order, and that the mo- Mr. GRIMES. Oh, no; it is debatable. tion of the Senator from Maryland, to postpone the The CHIE JUSTICE. he Chair ruled administering of the oath to Mr. WADE until other The CIIEF JUSTICE. The Chair ruled Senators are sworn, is also out of order, under the that an appeal taken must be decided without rules adopted by the Senate on the 2d of March debate under an erroneous impression as to the instant, and under the Constitution of the Unitedt Evey appeal taken from States." rules of the Senate. Every appeal taken from States." Mr. DIXON. The question presented by the decision of the Chair on a question of the point of order is whether, under the Con- order is debatable, and this must necessarily be ~ ~st~itution____r ismbthrunerth Cn-debatable. [ " Question I " Question I " ] SenMr. HOWARD. Mr. President ators, are you ready for the question? The Mr. DIXON. If the Senator calls me to question is, Shall the decision of the Chair order I will yield. Iteetclmt stand as the judgment of the Senate? and upon order I will yield. Mr. HOWARD. Well, I call the Senator that question the yeas and nays will be called. from Connecticut to order, and ask the Chair Mr. FESSENDEN. I think the yeas and if it be in order now to take an appeal from nays are not called for. the decision of the Chair? Mr. GRIMES. They must be called. Mr. DIXON. I submit that is not such a Mr. MORRILL, of Maine. Why? On question of order as the Senator has a right to what rule? raise. The. only question of order that he can Mr. GRIMES. On some rule of the Senate. now raise upon me is that I am out of order. Mr. FESSENDEN. They are not always Mr. HOWARD. Very well; I raise that taken, necessarily. question distinctly. Several SENATORS. Call the roll. question distinctly. Mr. POMEROY. The point of order is not Mr. DIXON. If the Senator claims that I Mr. POMEROY. The point of order is not am out of order he can call me to order. understood. I do not know what we are to Mr. HO WARD. I call theSenatorto order. vote upon. I do not understand the point of The CHF JUSTIC. The Senator frCHIom order of the Senator from Missouri. Mr. FESSENDEN. It is an appeal from Connecticut is called to order, and will take Mr. FESSENDEN. It is an appeal from his seat until the point of order is stated. the decision of the Chair. Mir. HOWARD. Mir. President, the twenty- The CHIEF JUSTICE. The Chair decides third rule, adopted by the Senate on the 2d of that the twenty-third rule is not applicable to bIarch, adeclares that - the proceedings of the Senate when in process "All the orders and decisions"- of organization for the trial of an impeachment. Of course, d decisions of the Senate- From fliat decision the Senator from Missouri appeals. The yeas'and nays are not demanded. "shall be made and had by yeas and nays, which appeals. FERRY. call forthe yeas anded. shall be entered on the record, and without debate, except when the doors shall be closed for delibera- The yeas and nays were ordered. tion, and in that case no member shall speak," &c. Mr. DRAKE. The form of the question, The Senator from Connecticut, in defiance, if I understand it, is, Shall the decision of the as I think, of this rule, persists in his right to Chair stand as the judgment of the Senate? 30 The CHIEF JUSTICE. As many Senators The CHIEF JUSTICE. The Chair required as are of opinion that the decision of the Chair the Senator from Connecticut to proceed in shall stand as the judgment of the Senate will, accordance with the rules, confining himself when their names are called, answer yea; as strictly to the point of order raised by the momany as are of the contrary opinion will answer tion of the Senator from Michigan. But the nay. The Secretary will call the roll. Chair is greatly embarrassed when he attempts The question being taken by yeas and nays, to ascertain the precise scope of debate to be resulted-yeas 24, nays 20; as follows: indulged upon the point of order which is taken. YEAS-Messrs. Anthony, Buckalew, Corbett, Da- He is therefore not prepared to state that the vis, Dixon,Fessendenr,Fowler, Frelihghuysen,Grimes, Senator from Connecticut is out of order. Henderson, Hendricks, Johnson, McCreery, Morrill r. DIXON. r. President, I thought of Maine, Norton, Patterson of Tennessee, Pomeroy, Mr. DIXON. Mr. President, I thought Ross, Saulsbury, Sherman, Sprague, Van Winkle, that I could, without violating the rules of this Willey. and William —24. body, do justice to myself so far as to disavow NAYS —Messrs. Cameron, Cattell, Chandler, Cole, NAYS-Messrs. Cameron, Cattell, Chandler, Cole, body, do justice to myself so far as to disavow Conkling. Conness, Drake, Ferry, Harlan, Ho*ard, any personal objection to the honorable SenMorgan, Morrill of Vermont, Morton, Nye, Stewart, ator whose taking the oath has been objected to. Sumner, Thayer, TiptonWilson, and Yates-20. I could not conceive that such a statement ABSENT. —Messrs. Bayard, Cragin, Doolittle. Edmunds, Howe, Patterson of New Hampshire, Ram- from me, under the circumstances, could' be sey, Trumbull, andWade-9. considered by the Senator from California or The CHIEF JUSTICE. On this question by any Senator as being an infringement of the the yeas are 24 and the nays are 20; so the de- rules of order. cision of the Chair stands as the judgment of Now, Mr. President, what is the question the Senate. [Manifestations of applause in before this body?'Is the Senator from Ohio the galleries.] Orderl Orderl so interested in the result of this trial that he Mr. DIXON. Perhaps it will not be im- cannot properly, under the Constitution and proper for me to say, with the consent of the under the rules, be sworn in as a member of Senate, that it was my intention to speak very the tribunal? That is the question to which I briefly and in good faith to the question before propose to address myself. If the Chair shall the Senate. 1 have not come here to delay inform me that I havie no right to discuss it, I proceedings; I have not come here to violate shall, of course, not proceed with my remarks. the rules; and I propose now, so far as I can, I was speaking of the nature of the interest to confine myself to the proprieties of discus- and of its effect upon any human mind. Now, sion in attempting to show that under the Con- sir, may I be permitted to ask this tribunal stitution and the rules of this body, as expressed what is this interest? What is the question in the questions of order, it is not proper for which is to be presented to the Senator from the Presiding Officer of this body pro tempore Ohio as a judge, and to all of us? If any to be sworn in as a judge in this case. advantage or profit is to accrue to that honorWhen interrupted, I was saying that in the able Senator by any vote he may give in this event of the conviction of the President of the body, what is it? What is the nature of the United States upon the charges brought against interest? The Senator from Massachusetts him, and his removal from office, there was a [Mr. SUMNER] has spoken of it as of a very direct, apparent interest in the Senator from slight character, a very slight degree of interOhio, the Presidentpro tempore for the time est, a matter of trifling consequence. Sir, if being of this body, which rendered it improper any advantage is to accrue to this honorable for him to act as a judge. In saying that, I Senator, it is that which he is to receive in a beg leave to say, in the first place, that I am certain event which may be influenced by his not unmindful of the high character of that vote. It is nothing less than the high office Senator. I acknowledge most cheerfully that of President of the United States, the highest he is as much raised above the imperfections object in this country, and perhaps in the world, and the frailties of this weak, depraved, cor- of human ambition; an object of ambition rupt human nature of ours as any member of which the very highest in the land may properly this body. and laudably aspire to. Mr. CONNESS. I rise to a question of Mr. STEWART. I call the Senator from order. Connecticut to order. The CHIEF JUSTICE. The Senator from The CHIEF JUSTICE. The Senator from California rises to a question of order. He Nevada calls the Senator from Connecticut to will state the question of order. order. Mr. CONNESS. I understand the decision Mr. STEWART. It is not in order to disof the Chair to be, that under the general rules cuss the main question as to whether the of the Senate the Senator from Connecticut Senator from Ohio is entitled to sit in these must confine his discussion to the question be- proceedings. Nothing further than this can fore us. I submit that a discussion of the per- be in order, as I understand the ruling of the sonal qualifications or qualities of the Senator Chair: to discuss the point whether now is the from Ohio forms no part of such an argument; time to decide the question. and I ask the Chair that the Senator, if he The point of order submitted by the Senator proceed, shall be confined within the limit from Michigan is, that this is not the time to prescribed by the decision of the Chair. dispose of the question whether the Senator 31 from Ohio shall sit in our deliberations on the the letter of the Constitution. Nor am I here question of impeachment. Certainly it does to say that the Constitution of the United States not involve the main question. It only involves expressly prohibits a member of the Senate, the question of whether this is the time to dis- acting as Presiding Officer pro tempore, from pose of the main question. My point of order sitting as a judge in this or a similar case. I is, that the Senator from Connecticut is dis- am not prepared to say that there is within the cussing the main question and not the ques- letter of the Constitution an express prohibition of determining that point at this time. tion. But, sir, is it within the spirit of the The CHIEF JUSTICE. The Chair has Constitution? I take it we are here to act, not already said that it is very difficult to determine merely upon the letter, but upon the spirit of the precise limits of debate upon the point of that instrument. I take it, at least, that when order taken by the Senator from Michigan. we are under oath to act impartially, accordThe first clause of the point of order is, "that ing to the Constitution and the laws in a crimthe objection raised to the administering of the inal proceeding, the spirit of that Constitution oath to Mr. WADE is out of order;" that is, and the spirit of those laws are to govern our the objection raised by the Senator from Indi- action. What is the language of the Constiana is out of order. The nature of that objec- tution on this subject? tion and the validity of that objection, as the ""The Vice President of the United States shall be Chair conceives, must necessarily become the President of the Senate, but shall have no vote unsubjects of debate in order to the determina- less they be equally divided. tion of the point of order. The Chair, there- " The Senate shall choose their other officers, and fore, repeats that he is unable now to decide also a President pro tempore in the absence of the Vice President, or when he shall exercise the office the Senator from Connecticut out of order. of President of the United States. Mr. DIXON. I was upon the question of " The Senate shall have the sole power to try all interest. The objection made to the honor- impeachments. When sitting for that purpose they ableSenator fro Ohjio, asIuderta it, isoy shall be on oath or affirmation. When the President able Senator from Ohio, as I understand it, is of the United States is tried the Chief Justice shall thathe is interested in the result of this decision. preside; and no person shall be convicted without It became necessary for me, therefore, to con- the concurrence of two thirds of the members pressider what was his interest, and in order to ent. t in cases of impeachment shall not exascertain that it was necessary to consider tend further than to removalfrom office and disqualwhat was the advantage or disadvantage that ification to hold and enjoy any office of honor, trust, he was to receive or to avoid by the result of or profit under the United States," &c. his action. I was considering the question, Now, sir, there is no provision in -the Conwhat is this office of the President of the Uni- stitution of the United States that the acting ted States, which is the matter in controversy? Vice President of the United States, the PresiI was saying that it was an object worthy of dent pro tempore of the Senate, upon a trial the ambition of the highest and most distin- of this kind shall not vote. It seems to have guished Senators in this body or of the most been, possibly, strictly speaking, an omitted distinguished citizen of the United States, not case. The provision is, that the Vice Presibecause of its dazzling surroundings, its vulgar dent of the United States, under those circumtrappings; not because a man in that position stances, shall not even give the casting vote breathes the atmosphere of adulation, so dear which he is entitled to give when the Senate is to human nature; not because he has an oppor- equally divided. That is his sole power in this tunity, which is still more dear to a generous body; he can only give a casting vote; and mind, of doing favors to his friends, or even he cannot proceed to give a casting vote in a (which might be equally dear to men of igno- trial of this kind. And why? What was the ble character) punishing his enemies, but be- reason of tlhat provision? The reason of that cause it is a position in which the occupant of provision has already been discussed in this this great office can do immense good to his body. The Senator from Massachusetts atcountry; he may benefit the human race; he tempted to explain it. Other Senators gave a may at this time imagine that he might restore reason. It seems to me the reason is obvious. a dissevered and disunited country to prosper- It needs no explanation; and I might say, ity and to Union; and for that reason a man further, that it is not the custom and the habit of the very highest character and of the purest of the Constitution to give reasons for its motives might properly aspire to this lofty provisions. The Senator from Massachusetts position; and I venture to say that with that says that the Constitution gives no reason for motive operating upon a human mind it would this provision. The Constitution gives a reabe nothing short of miraculous if he could be son, I believe, for very few, if any, of its own impartial. Nothing short of the power of provisions. But in this case the reason was Omnipotence, operating directly upon the hu- so palpable, so manifest, that it was not necesman heart, could, under those circumstances, sary, even in contenmporaneous construction, to make any human being impartial. give a reason for the provision.. The reason Then, sir, such being the interest, what is was perfectly plain. It was because there was the manner in which this subject is treated by so direct an interest in the Vice President of the Constitution of the United States? It may the United States that it was deemed improper be said that the objection does not come within that he should act; or, in the language of the 32 present presiding officer of this body, the Chief was the honorable Senator from New York, Justice of the United States: that it seemed to him that the reason of the " It was, doubtless, thought prudent and befitting rule applied to any Senator called to the chair that the next in succession should not preside in of this body, being selected to preside, as that a proceeding through which a vacancy might be ld tend in some degree to his advancement created." would tend in some degree to his advancement That undoubtedly was the reason of this pro- in the case of the conviction of the President. That undoubtedly was the reason of this provision. I have no doubt that the framers of He proceeds to say: the Constitution went further back. They acted "A Senator made President of the Senate pro ternupon principle. They knew that in the very pore even during a trial of impeachment might expect to continue such President in the event of the nature of things, in common justice, a man advancement of the regular Presiding Officer to sucould not be a judge in his own case. They percede the President of the United States. These knew that the provisions of the common law and other considerations of safety and decorum indicated the propriety of going outside the Senate for prohibited a mlan from being a judge in his an officer to occupy the chair when the President own case. They probably remembered what should be brought to the bar, and nothing could be has been said by one great commentator, (Black- more natural or more dignified than to select the head of one of the three branches of the Governstone,) that the omnipotence of Parliament ment. The ChiefJustice, beingseparatedfrom both was limited in this respect, and that body could the political departments of the Government. was not make a man a judge in his own cas deemed the person most fit, by reason not only of his not make a man a judge in his own case. disinterestedness, but of his learning and the great Probably without that provision in the Con- consideration of his position. These reasons might stitution the Vice President would have been Fell have suggested the propriety of asking of the prevented from acting under those circum hiead of the bench that he should discharge, upon a prevented from acting under those circum-great and solemn occasion, duties with which the stances. The Constitution provides that the highestsubjectsof Englandhaveeverbeeninvested." two Houses may msake rules for their own two Houses may make rules for their own It is impossible for me, in stronger language action; and the House of Representatives has than the Senator from New York has used, proceeded to make a rule that no member shall to depict the mpropriety of a member of this cast a vote in which he is interested. This cast a vote in which he is interested. This body, under the rules and under the Constitubody has not as yet made such a rule, I sup- tion, acting as a jude in a case ich, in a pose, because it was thought impossible that cer actin event, is a udge in a case which, in a any Senator should offer or attempt to vote in certain event, is to place him in the presidenany Senator should offer or attempt to vote in tial chair. a case in which he himself was interested. a case in whisch he himself was interic rested. But, sir, it is said that this is not the time to But, sir, this body has made particular rules raise the objection; that the objection may, applying to particular cases; and when the perhaps, bewaivedby theparty accused. If a interest has'arisen, this body has decided that President of the United States, chosen by the the party having that interest could not act, as people, was actually on trial, and the Vice in the cnse of Mr. Stockton, of New Jersey. President was in the chair, and proposed to sit This being the constitutional provision with and regard to the Vice President of the United his being sworn, c asting vote, and we objected to States when he sits'in that chair as the Pre- his beng sworn, could t be said that possibly siding Officer of this body, and the President th President of the United States on trial of the'United States is tried for an offense objectight waive the objectione Canterested. The which will deprive him of an office which will objection? He is not alone interested. The fall by his removal upon the Vice President, of this whole country are interested in fall by his removal upon the Vice President, the decision of this question. The party near-, what is the character and meaning and spirit est in interestof this questio. If he party near of the Constitution in a case like that before Pof the Constitution in a case like that before resident of the United States, actually chosen us'? Why, sir, the reasons exist as strongly as such, and the Vice President, actually in this case as in the other. If it would shock chosen, were sitting in that chair, he could not humanity, if it would violate every feeling of waive that interest. He could not say, as one justice throughout the world, for a man to act Senator has supposed He might say, prefer in his own case in the first instance, would it Senator has supposed he might say, I prefer, not in the latter? I happen to have before me upon the whole, that that distinguished officer, an extract from the speech delveredafew knowing his impartiality and his love of jusdays ago by the honorable delivered a from New tice, should preside in this trial, and give the days ago by the honorable Senator from New casting vote in York, [;Mr. CON:KLING.] He gives in his own casting vote in my case; I think it would be forcible and striking language the reason for formyadvantage. Thatcouldnotbe allowed. the rule: an tikn anug terasnfrIf it is decided at all it is decided by the law and the Constitution and the general rules of "The reason in the caseof the impeachmentof the right. Therefore, the objection that this poi President for calling in some one to preside in lieuat this point of the Vice President is obvious. The Vice Presi- is made too early does not apply. It is an dent, being next to the President in the line of suc- objection which, if it can be made at all, can cession, the impropriety of his doing an3ything in a be made here at this period, and should be trial which, in one event, would result in his own advancement, is clear. made now, for it is perfectly evident that the "It can hardly be said that such a case would be distinguished gentleman now proposed to be provided for by calling some Senator to the chair, sworn in as a udge, the moment he is sworn because the fact of a Senator being selected to pre- in as a judge, the moment he is sworn side would tend in some degree to his advancemenl in, can decide important questions long before also in case of the conviction of the President." the accused party shall present himself here And so careful, so particular, so scrupulous or shall be summoned to appear here. There 33 is the question of notice, the question of time, posed of many persons. It must necessarily and there are various questions on which he arise in the organization of such bodies. It will be called upon to give a decision. If, frequently arises in the organization of the therefore, t1e objection is to be made at all, it House of Representatives, and it matters not must necessarily or with great propriety should whether the question comes up on the call of be made at this time. the first or the last name.' When an objection But, sir, I do not desire to go further into is made to the right of a Representative or to this general question. I have attempted to the right of a Senator when this body is being look at this question as a judge. I have at- organized at the commencement of a new Contempted, in considering in my own mind, gress, how is that question to be decided? If whether it be proper for the honorable Senator at the commencement of the Fortieth Congress from Ohio to act as a judge in this case, to act it had been objected that some Senator could myself as a judge, and it has seemed to me in not then take the oath required by the act of the highest degree improper in every aspect 1862, and that objection was made when the of the case. Sir, if there is anything desirable Secretary of the Senate was midway in the call, in this great trial, it is, in the first place, who would decide it? The Senate would not that impartial justice should be done; and in then be organized; and yet it is a question inthe second place, that it should appear to be cident to the organization itself, and a question just that mankind should say that impartial that must be decided before the organization justice was done. If it should so happen thaI can be completed. I say, therefore, as this is under the construction to be given to the rules a question that may arise, thdat is likely to arise, of this body and under the Constitution of the in the organization of any body composed of United States, the Senate should decide that many persons, it must be met here precisely the honorable Senator from Ohio should be a as in other cases. judge in the case, that the judge of the Presi- I am notgoing to discuss the question whether, dent is to be his successor in' office, is there organized for the purposes of this trial, the not danger that it may be said that there is Senate be technically and in name a court. doubt as to the fairness of this trial? If the In substance, Mr. President, it is a court. It future historian, in recording the fact that the is to consider questions of law and questions President of the United States had been re- of fact. It is not to consider legislative quesmoved from his office by impeachment, should tions at all; and it cannot indulge in the conalso be compelled to record the fact that his siderations of public policy which may be successor was his judge, such a record would indulged in in the Senate. The judgment of violate the sense of justice of the nation and each Senator is controlled altogether by quesshock the heart of the civilized world. tions of fact and of law. A body, by whatever Mr. HENDRICKS. Mr. President, with the name known, that has to consider only quesindulgence of the Senate, I will add a very little tions of fact and of law, and upon that considto what I felt it my duty to say upon this ques- eration to pronounce a judgment, is a judicial tion yesterday, and then, as far as I am con- body in its very essence and nature. It is no cerned, I shall relieve the Senate from any em- longer a legislative body. barrassment about it. - Then, Mr. President, we propose (calling It was said by the Senator from Nebraska the body what you may) now to pass from the [Mr. THAYER] and the Senator from Ohio consideration of legislative questions to the [Mr. SHERMAN] that the Senator who now pro- consideration of the impeachment question; to poses to take the oath is, in all respects, the cease to be a body for the consideration of equal of any other Senator, and that no objec- legislative questions and to become a body for tion can be made to his right to vote upon any the consideration only of judicial questions. question upon which other Senators have the The first step in passing from the one characright to vote. The general proposition I do ter to the other is the appearance in the chair not question, that, as a Senator, he is the peer of the. Chief Justice of the Supreme Court. of any other Senator: but to both gentlemen The next step is the taking of an oath unknown my reply is this: that by his own act he has to us as legislators, but binding us as judgesaccepted an office above that of Senator, if I as judges of the questions of law and of fact may so express it, which disqualifies him from that may arise. This is the step which we are participating in this trial. Itis his act, not the now taking. We are now taking the oath to act of the Senate, if the State of Ohio upon qualify us to discharge a peculiar and extraorthis trial be not represented by two Senators. dinary duty-the oath that as judges we will be The objection is made by the Senator from fair and just. The question arises during the -Missouri [IIr. DRAKE] that the Senate is not organization of the Senate in that character in a condition to considerthe question, for the and for that duty whether a Senator is comreason that it has not yet organized itself for the petent to participate in the adjudication. That purposes of the trial, and, therefore, there is question is incident to the organization of the no body competent to decide whether the Sen- Senate in its new character. I have not ator from Ohio may participate in that trial. changed my opinion that that question properly Sir, the question that is presented by me arises arises in the administration of the oath. frequently in the organization of bodies com- I am not going to discuss further the merits A. —3. 34 whether the Senator from Ohio, being now the draw the question which I presented for the President of the Senate and the possible suc- consideration of the President of this body and cessor should there be a vacancy in: the pres- of the Senate yesterday.'idential office, can participate in the trial, Mr. POMEROY. TheSenator proposes to except to say this:,hat at one tinme I held the withdraw the point which he made, and I think opinion that a Senator having an interest in it can be done by unanimous consent. I hope the result of a question might vote. I -held unanimous consent will be given, and let it be i:that view in Mr. Stockton's case;'but the withdrawn, and let us proceed to swear in the Senate, by a deliberate vote, overruled that other Senators. view, and established it as the law of the Senate Mr. HENDRICKS. It does -not require that he who is to be benefited by the decision unanimous consent. I canmwithdraw it myself. -to the extent of holding an office or acquiring Mr. SHERMAN and Mr. GRIMES. The an office cannot help to decide that question. Senator has a right to withdraw it. I was surprised yesterday that the Senator from The CHIEF JUSTICE. The Chair under3Massachusetts [Mr. SUMNER] should occupy in stands that the Senator from Indiana has with-;regard to this question a very different position drawn his objection. from that which he occupied when he helped Mr. POMEROY. But an:appeal has been -to decide the Stockton case. Where is the taken.'difference? Mr. Stockton was a member of Mr. GRIMES.'That makes no difference. this body. He' had credentials that prima The CHIEF JUSTICE. The Senator from "facie entitled him to participate in our delib- Ohio will take the oath. erations. He was entitled to cast a vote upon Mr. HOWARD. I beg to inquire whether:any legislative question that should come up the withdrawal of this particular motion affects to the very minute of the decision of the Senate the motion that was made by the honorable against hin. He was for the time being a Sen- Senator from Maryland, [Mr. JOHNSON?]:ator from New Jersey. When the question Mr. FESSENDEN. That falls with it, of was, shall he continue to hold that office, the course. Senate said, without an express rule on the The CHIEF JUSTICE. All the questions subject and no general parliamentary law, but incidental to the main question fall with the on a universal sentiment of justice, as it was withdrawal of it. Claimed then, right, and propriety, that he Mr.. JOHNSON. My motion was founded could not vote when his vote helped him to upon the other motion. If the first motion is hold an office. I am not able to see, when the withdrawn mine falls as a matter of course. vote of the Presiding Officer of this: body may Mr. HOWARD.:Very well, if that is; the'enable him to hold the highest office in the understanding. nlation, the distinction in the two cases. The The Secretary called the name of Mr. WADE, "Senate deliberately decided in that case that who -advanced and took the oath. the interest disqualified for the time being: the The -Secretary then continued the call of the party from voting in the Senate. roll, and the Chief Justice administered the But, Mr. President, I find that some' Sena- oath to-Senators WILLEY, WILLIAMS, WILSON, tors, among them the Senator from Delaware. and YATES, as their flames were respectively -[Mr. BAYARD,] who agree with me upon this called.'question on the merits, are of the opinion that The Secretary then called the names of Senthe question ought more: properly to be raised ators DOOLITTLE, EDMUNDS, PATTERSON of'when the court' shall be fully organized, when:New Hampshire, and SAULSBURY, who were the party accused is' here to answer. I do not not present yesterday; and MIr. SAULSBURY believe that he -can'waive a question that goes appeared, and the oath was administered to him to the organization' of the body; I believe it is by the Chief Justice.'a question for the body itself. But upon that The CHIEF -JUSTICE. All the Senators I- find some difference of opinion; and when I present having taken the oath required by the find that difference of opinion among those Constitution, the Senate is now organized for -who- agree with me upon the -merits, upon the the purpose of proceeding to the trial of the'main point, Whether he shall participate in the impeachment of Andrew Johnson, President -proceedings and judgment who may be bene- of the United States. The Sergeant-at-Arms ifited by it- while I find some Senators, who will' make proclamation.'agree with Vne upon that question, disagree- The SERGEANT-AT-ARMS. Hear ye! Hear:ing with me upon the question -whether it ye! Hear ye! All persons are commanded to ought to be raised- now or -when the Senator'keep silence on pain of imprisonment while from Ohio proposes to cast a material vote in the Senate of the United States is sitting for the proceedings, I choose to yield my judg- the trial of the articles of impeachment against'ment-my judgment, not at all upon the merits; Andrew Johnson, President of the United my judgment not at' all upon the propriety and States.:the duty of the Senate to decide upon its own Mr. -HOWARD. I move that the Secre-':organization; but I yield as to: the- time when tary of the Senate- notify the Managers on the the question shall be made in deference to''the part of the House of Representatives that the opinion of others;-:and'for myself, sir, I with- Senate is now organized for the purpose of droceeding to the trialibf the impeachment of'Mr. Manager;BINGHAM rose, and said: Andrew Johnson. Mr. President, we are instructed by the House The CHIEF JUSTICE. Before puttingthat of' Representatives, as its Managers, to demand question the Chair feels itf his duty tot submit a that the Senate take process against Andrew question to the Senate relative to the-rules of Johnson, President of the United States, that proceeding. In the judgment of the Chief he may answer at the - bar of the Senate upon Justice the Senate is now organize d as-a dis- the articles of impeachment heretofore pretinct body from the. Senate sitting in- its legis- ferred by the House of Representatives through lative capacity. It performs a distinct func- its Managers before the Senate. tion; the members are under a different oath; Mr. HOWARD. I move for an order that and the presiding officer is not the President a summons do issue to Andrew Johnson, Prespro tempore of the Senate, but the Chief Jus- ident of the United States, in accordance with tice of the United States. Under these cir- the rules which we have adopted-I refer parcumstances, the Chair conceives that rules ticularly to the eighth rule-returnable on adopted by the Senate in its legislative capacity Friday, the 13th day of March instant, at one are not rules for the government of the Senate o'clock in the afternoon. sitting for the trial of an impeachment unless The CHIEF JUSTICE. The Secretary they be also adopted by that body. In this will read the order. judgment of the Chair, if it be an erroneous The Secretary read as follows: one, he desires to be corrected by the judg-. Ordered, That a summons do issue, as required by ment of the court, or of the Senate sitting for the rules of procedure and practice in the Senate of the impeachwment of the President, hen sitting on the trial of impeachments. to Andrew the trial of the impeachment of the President, Johnson, returnable on Friday. the 13th day of which in his judgment are synonymous terms, March instant, at one o'clock in the afternoon. and therefore, if he may be permitted to do The order was adopted. so, he will take the sense of the Senate upon Mr. HOWARD. I move that the Senate, this question, whether the rules adopted on the 2d of March, a copy of which is now lying sitting upon the trial of the impeachment, do before him, shall be considered the rules of now adjourn until proceediaginthis body. C["Q uestion!"] Sen - Mr. ANTHONY. If the Senator will withators, you who think that the rules of proceed- draw his motion for a moment, I wish to offer ing adopted on the 2d of March should be Mr. HOWARD. to the rules. considered as the rules of proceeding of this Mr. OWA RDHONY. I desire to offer an body will say ay; contrary opinion, no. [The Mr. ANTHONY. I desire to offer an body will say ay; contrary opinion, no. [The amendment to the rules, to strike out the last Senators having answered.] The ayes have clause of rule seven in the following words: it by the sound. The rules will be considered as the rules of proceeding in this body. The presiding officer may, in the first instance, The Senator from Michigan moves- submit to the Senate without a division all quesThe Senator from Michigan moves —will tions of evidence and incidental questions; but the the Senator have the goodness to repeat his same shall, on the demand of one fifth of the memmotion? bers present, be decided by yeas and nays. Mr. HOWARD. My motion is, that the And in lieu of those words to insert: Secretary of the Senate notify the Managers The presiding officer of the court may rule all of the House of Representatives that the Sen- questions of evidence and incidental questions, which ate is now organized for the purpose of trying ruling shall stand as the judgment of the court unless some member of the court shall ask that a formal the impeachment against. Andrew Johnson, vote be taken thereon, in which case it shall be suband is ready to receive them. The Clerk will mitted to the court for decision; or he may, at his be good enough to put it in form. option, in the first instance submit any such question to a vote of the members of the court. The Secretary read the order, as follows: I do not desire to press this amendment at Ordered, That the Secretary of the Senate notify present if there is any disposition to debate it, the House of Representatives that the Senate is now organized for the trial of the articles of impe mh- because it is desirable, I suppose, that the ment againstAndrew Johnson, President of the Uni- court should now adjourn. I merely offer it ted States, and is ready to receive the Managers of for the consideration of the court. Let it lie the impeachment at its bar. for the consideration of the. on the table. The motion was agreed to. Mr. HOWARD. Then, Mr. President, I After a pause, and at thirteen minutes before move that the court, to use a brief expression, three o'clock, the Managers oftheimpeachment adjourn to the time at which the summons on the part of the House of Representatives just ordered is returnable-Friday, the 13th (with the exception of Mr. STEVENS) appeared instant, at one o'clock in the afternoon. at the bar, and their presence was announced Mr. SUMNER. Before that motion is put by the Sergeant-at-Arms. I should like to ask my friend, the Senator The CHIEF JUSTICE. The Managers from Rhode Island, who has brought forward of the impeachment on the part of the House this amendment, whether, under the rules now of Representatives will please take the seats adopted, he regards it as debatable. By these assigned to them. rules it is provided as follows: The Managers having been seated in the "sAll the orders and decisions shall be made and area in front of the Chair, had by yeas and nays, which shall be entered on the -36 record, and without debate, except when the doors of the Senator from Rhode Island is laid upon shall be closed for deliberation," &c. the table. The question is upon the motion to Mr. ANTHONY. I have not read the rules adjourn until Friday, the 13th instant, at one with reference to the question the Senator from o'clock in the afternoon. Massachusetts proposes to me, and as I do not The motion was agreed to; and the Chief desire to press the motion at present Justice thereupon declared the Senate, sitting The CHIEF JUSTICE. There is nothing for the trial of impeachments, adjourned to the before the Senate, inasmuch as the proposition time named and vacated the chair. ARGUMENT OF HON. CHARLES SUMNER, OF MASSACHUSETTS, ON THE QUESTION CAN THE CHIEF JUSTICE, PRESIDING IN THE SENATE, RULE OR VOTE? In determining the relations of the Chief question recurs as to the meaning of this Justice to the trial of the President we must familiar term. look, first to the Constitution; for it is solely The person who presides is simply, accordby virtue of the Constitution that this eminent ing to the language of our rules, " Presiding magistrate is transported from his own natural Officer," and this designation is the equivalent field to another, where he is for the time an or synonym of Speaker, and also of prolocutor, exotic. Of course, the Chief Justice in his each of which signifies somebody who speaks own court is at home; but it is equally clear for the House. It is not implied that he votes that when he comes into the Senate he is a with the House, much less that he decides for stranger. Though justly received with wel- the House; but only that he is the voice of the come and honor, he cannot expect member- House-its Speaker. What the House has to ship or anything beyond those powers which say it says through him; but except as the are derived directly from the Constitution, by organ of the House he is silent, unless he be virtue of which he temporarily occupies the also a member, when he superadds to his powchair. ers as Presiding Officer the powers of a memRepairing to our authoritative text we find ber also. From this brief statement it appears the only applicable words to be these: at once how limited his function must be. " The Senate shall have the sole power to try all Here I might stop. But, since this question impeachments. When the President of the United has assumed an unexpected importance, I am States is tried, the Chief Justice shall preside; and induced to go further. It will be easy to sho no person shall be convicted without the concur- to go further. It will be easy to show rence of two thirds of the members present." that the language of the Constitution, if seen This is all. The Chief Justice shall preside; in the light of English parliamentary history, but this is subject to two limitations specifically must have an interpretation identical with its declared. First, the trial is to be by the Senate natural import. solely, and nobody else; thus carefully exclud- Nothing is clearer than this. If language ing the Presiding Officer from all participation, employed in the Constitution had already, at except so far as is implied in the power topre- the time of its formation, received a definite side; and secondly, judgment of conviction meaning, it must be interpreted accordingly. can be only by a vote of "two thirds of the Thus, when the Constitution secures the "' trial members" present, thus again excluding the by jury," it secures that institution as defined Presiding Officer, unless it is assumed that he by antecedent English law. So, also, when it is a member of the Senate. declares that the judicial power shall extend On the face of this text it is difficult to find to " all cases in law and equity" arising under any ambiguity. Nobody questions that the the Constitution, it recognizes the distinction Chief Justice must preside. Can anybody ques- between law and equity peculiar to English tion that the trial must be by the Senate solely law. Courts of common law and courts of and nobody else? To change this requirement equity are all implied in this language. And, is to fly in the face of the Constitution. Can since there is no further definition of their anybody question that the judgment of convic- powers, we must ascertain them in England. tion must be by the votes of " members pres- Cushing, in determining the rules of proceedent," and nobody else? Now, since the Chief ing in our American Legislatures, says: " Such Justice is not a " member" of the Senate it is was the practice of the two Houses of the plain that he is positively excluded from any British Parliament when our ancestors emivote on the final question. It only remains grated; and such has continued to be and that he should "preside." And here the now is the practice in that body." (Cushing, 87 38 Lex Parliarnentaria, ~ 302.) This resource of Parliament" in the other. In determining has been most persuasively presented by Mr. the "course of Parliament" we may resort to Wirt, in his remarkable argument on the im- the summary of text-writers, and, better still, peachment of Judge Peck, where he has vindi- to the authentic instances of history. cated and expounded the true rule of inter- Something has been said in this discussion pretation. with regard to the example of Lord Erskine, According to this eminent authority, what who presided at the impeachment of Lord Melhe calls " the English archetypes" were the ville. This was in 1806, during the short-lived models for the framers of our Constitution. ministry of Fox, when Erskine was ChancelThe courts were fashioned after these " arche- lor. It is by a misapprehension that this intypes." They were instituted according to stance is supposed to sustain the present as" English originals, to which they were mani- sumption. When seen in its true light it will festly referred by the Constitution itself." be found to be in harmony with what appears (Trial of Peck, p. 499.) Here again I quote to be the general rule. Erskine had at the time the words of Mr. Wirt. two characters. He was Lord Chancellbr, and All this is precisely applicable to that part in this capacity was Presiding Officer of' the of the Constitution now under consideration. House of Lords, without the right to rule or vote In its essential features it was borrowed from or even to speak. Besides being Chancellor England. There is its original, its model, its he was also a member of the House of Lords, archetype. Therefore, to England we go. with all the rights of other members. It will Not only to England must we go, but also to be seen, as we advance in this inquiry, that, Parliamentary Law, as recognized in England again- and again, it has been practically deat the adoption of our Constitution. The pow- cided, that, whatever may be the powers of aersof aPresiding Officer, where not specifically Presiding Officer. who is: actually a member. declared, must be found in Parliamentary Law. of the body, a Presiding Officer who is not a The very term preside is parliamentary. It member cannot ruleorvote oreven speak. In belongs to the technicalities of this branch of making this statement now I anticipate the law. as much as indict belongs to the technic- argument. I do it at this stage only to put alities of the common law. In determining aside the suggestion founded on the instance the signification of this term it will be of little of Lord Chancellor Erskine. avail to show some local usage, or) perhaps, I begin with the most familiar authority-I some decision of a court. The usage or the mean the eminent writer and judge, Sir Wildecision ofParliament mustbe shown. Against liam Blackstone. In his Commentaries, where this all vague speculation or divination of reason will be found, in elegant form, the complete is futile. I will not encumber this discussion body of English law, you have this whole matby superfluous authorities. In now insisting ter stated in a few suggestive words: that this question must be determined by Par-'"The Speaker of the House of Lords, if a Lord of liamentary Law, I content myself with citing the Parliamlent, may give his opinion or argue any quesoften-cited words of Lord Coke in his Fourth tion in the House." Institute: Of course, if not a Lord of Parliament, he "And as every court of justice hath laws and cus- could not give his opinion or argue any questoms for its direction, some by the common law, some tion. This is in accordance with all the authorby the civil and canon laws and customs, so the High ities and unbroken usage; but it has peculiar Court of Parliament suis propriis legibus et consuetudinibus subsistit; all weighty matters in any Parlia- value at this moment, because it is the text of ment, moved concerning the peers of the realm or Blackstone, This work was the guide-book of lords or commons in Parliament assembled, ought to our fathers It first appeared in 176-69, the be determnined, adjudged, and discussed by the Court of er pe Parliamnent, and not by the civil law, nor yet- by the very period when the controversy with the common laws of this realm, used in more inferior mother country was fervid; and it is an uncourts."-Cokie, 4th Institute, p. 1-. questionable fact of history that it was read in Here is the true rule. Itis to "the course of the colonies with peculiar interest. Burke, in Parliament"' that we mustresort. It is in "'the one of his masterly orations, portraying the course of Parliament" that we must find all character of our fathers, says that more than the powers of a Presiding Officer, and all-that one half of the first edition of Blac'stone's is implied in the authority to preside. "The Commentaries was bought by them. Nothing Chief Justice shallpreside." Such isthe Con- can be clearer than that they knew it well. stitution. Nothing is specified with regard to The framers of the Constitution had it before his powers. Nothing is said. What was in- them, constantly. It was their most familiar tended was left to inference from the language work. It was to them as " Bowditch's Naviemployed, which must be interpreted accord- gator-" is to the mariner in our day. They ing to I" the course of Parliament;" precisely looked to it for guidance on the sea they were as what was intended by trial by jury is ascer- traversing. When they undertook to provide tained from the " common law." In the latter that the Chief Justice, who was not a member case we go to the' common law;" in the of the Senate, should preside at the impeachformer case we go to the " course of Parlia- ment of the President, they knew well that he. ment."' Yon may as well turn away from the could have no power " to give an opinion or common law in the one as from the " course argue any question in the House;" for Black 39 stone had instructed' them explicitly on this made long after the adoption of the National head. They knew that he was simply a Pre- Constitution, and anterior to the present considing Officer, according to the immemorial troversy. usage of the UIpper House in England, with There are occasions when the Lords have a such powers as belong to a Presiding Officer who Presiding Officer, called Lord High Steward. is not a member of the 1touse and none other. This is on the trial of a peer, whether upon The -powers of the Presiding Officer of the impeachment or indictment. Here again we House of Lords are illustrated by authority and find the same rule stated by Edmund Burke, by precedents, all in harmony with the state-: in his masterly report to the House of Comment of Blackstone. Ordinarily the Keeper mons on the impeachment of Warren Hastings. of the Great Seal is the- Presiding Officer; but These are his words: he can do little more than put the question, "Everypeer present atthe trial and every temporal.unless he is a member of the body. Any other peer hath aright to be present in every part of the person, as a Chief Justice, may be delegated proceeding, voteth upon every question of law and by royal commission. According to the rules fact; and the question is carried by the major vote, the Lord High Stewzard himself voting merely as a peer of the House, even if he is a peer, he cannot and member of that court, in common with therest of the speak without quitting the woolsack, which is peers, and inno other right."-Burke's Works, vol. 6i. the chair, and going "'to his own place as a p. 512,: Bohn's Edition. peer.' The right of speech belongs to him as In another place the report, quoting the Com~a member; but he cannot exercise it without mons' Journal, says: leaving his place as Presiding Officer. To this "That the Lord High Stewardwas but as a speaker extent is he circumscribed. or chairman for the more orderly proceeding at the A- late writer on Parliamentary Law, whose trial."-lbid., p. 515. work- is a- satisfactory guide, thus sententiously In our day there have been instances where sums up the law-and usage: the Lord Chancellor sat as, Presiding Officer " The position of the Speaker of the House of Lords without being a peer. Brougham took his seat is:somewhat anomalous, for though he is the presi- on the 22d November, 1830, before his patent dent of a deliberative assembly, he is invested with as a peer ha no more authority than any other member; andf a peer had been made out, and during this not himself a member, his office is limited to the putting interval his energies were suppressed while he of questions, and other formal proceedinizgs" —May, was simply Presiding Officer and nothing, else. Parliamentary. Practice, p. 220, chap. 7. Pariament Pracice,. 220, chap. The same was the case with that eminent lawThis statement is in obvious harmony with yer, Sir Edward Sugden, who sat as Presiding' that of Blackstone, so- that there is no differ- Officer on the 4th of March, 1852, although he ence between the-writer who is our guide to- was still a commoner; and it was also the case day, and the learned commentator who was the with Sir Frederick Thesiger, who sat as Presidguide of our fathers. ing Officer on the 1st March, 1858, although he Mr. May goes still further, and lets us know was still a commoner. These instances attest that it is only as a member of the House that practically the prevalence of the early rule the Presiding Officer can address it, even on down to our day. Even Brougham, who never points of order. shrank from speech or from the exercise of " Upon points of order the Speaker, if a peer, may power, was constrained to bend to its exigency. address the House, but as his opinion is liable to be He sat as Lord Chancellor, and in that characquestioned, like that of any other peer, he does not ter put the question; but this was all until he became a member of the House. Lord CampThus, even if a peer-even if a: member of bell expressly records that, while his name the Upper House-the Presiding Officer cannot appears in the entry of those present on the rule a. point of order nor address the House 22d November, 1830, as Henricus Brougham, upon it, except as any other, member; and Cancellarius, "he had no right to debate and what he says is open to question, like the vote till the following day," when the entry utterance of any other member. Such is the of his name and office appears as Dominusconclusion of the most approved English au- Brougham et Vaux, Cancellarius. thority. I pass from these examples of recent history American writers on Parliamentary Law con- and go back to the rule as known to our fathers cur with English. Cushing, who has done so at the adoption of the Constitution. On this much to illustrate this whole subject, says of head the evidence is complete. It will be the Presiding Officer of the Lords that "he is found in the State Trials of England, in Parinvested with no more authority for the pres- liamentary history, and in the books of law; ervation of order than any other member, and but it is nowhere better exhibited than in the if not a member: his office is limited to the Lives of the Chancellors, by Lord Campbell, putting of questions and other formal proceed- himself a member of the House of Lords and ings; if he is a peer, he may address the House a Chancellor, -familiar with it historically'and and participate in the debate as a member.;' practically. He has stated the original rule, I-Ie then says again, "'if a peer he votes with and in his work, which is as interesting as the other members; if not, he does not vote at voluminous, has furnished constantly recurring all;" and he adds, "there is no casting vote illustrations of it. In the introduction to his in the Lords." (~ 288.) This statement was 1 Lives, where he describes the office of Chan 40 cellor, Lord Campbell enunciates the rule, "from the woolsack to his seat as a peer," which I give in his own words: thus attesting that he had no voice as Presiding "Whether peer or commoner, the Chancellor is Officer. At last, when the corruptions of this not, like the Speaker of the Commons, moderator of remarkable character began to overshadow the the proceedings of the House in which he seems to land the Chief J, preside. He is not addressed in debate; he does not name the peer who is to be heard. le is not appealed Sir James Ley, was designated by the King to to asan authority on points of order, and he may cheer act as Speaker of the House of Lords. ~ Soon thesentimentsexpressedbyhis clleagues in theMin- afterward Bacon fell. Meanwhile it is said istry."-Campbell's Lives of Chancellors, vol. 1, p. 17. that the Chief Justice had very creditably perthat the Chief Justice had very creditably perThe existing rules of the Senate have added formed "the duties of Speaker of the House to these powers; but such is the rule with regard of Lords." (Ccmpbell's Lives of Chancellors, to the Presiding Officer of the House of Lords, vol. 2, p. 443.) In other words, according to even zwhen a peer. He is not appealed to on the language of our Constitution, he had prepoints of order. If a commoner, his power is sided well. still less. Then came Coventry and Finch as Lord "If he be a commoner, notwithstanding a resolu- Keepers. As the latter absconded to avoid tion of the House that he is to be proceeded against for any misconduct as if he were a peer, he has impeachment by the House of Commons Litneither vote nor deliberative voice, and he can only put tleton, Chief Justice of the Common Pleas, the question, and communicate the resolutions of the "was placed on the woolsack as Speaker." House according to the directions he receives." —bid.At a later time he received the great seal as In the early period of English history the Lord Keeper. This promotion was followed chancellors were often ecclesiastics, though by a peerage, at the prompting of no less a generally commoners. Fortescue, Wolsey, and person that the Earl of Strafford, " who thought More were never peers. This also was the he might be more useful if permitted to take case with Sir Nicholas Bacon, the father of part in the proceedings of the House as a peer Lord Bacon, who held the seals under Queen than if he could only put the question as Elizabeth for twenty years, and was the col- Speaker." (Ibid., vol. 2, p. 585.) Clarendon league in the Cabinet of Burleigh. Lord Camp- in his history says that, as a peer, he could bell thus remarks on his position as Presiding have done Strafford notable service." (HisOfficer of the House of Lords: tory of the Rebellion, book 3, p. 104.) But " Not being a peer, he could not take a share in the the timid peer did not render the expected Lords debates, but presiding as Speaker on the swoolsack service he exercised a considerable influence over their deliberations."-lbid., vol. 2, p. 104. Then came the period of civil war, when one Then again we are told: great seal was with the King and another was "Being a commoner, he could neither act as Lord with Parliament. Meanwhile the Earl of ManSteward nor sit upon the trial of the Duke of Norfolk, chester was appointed Speaker of the Upper who was the first who suffered for favoring Mary's House, and as such took his place on the woolcause."-Ibid., p. 105. sack. As'a peer he had all the privileges of a Thus early do we find an illustration of this member of the House over which he presided. rule, which constantly reappears as we travel Charles II, during his exile, had appointed down the annals of Parliament. Hyde, afterward Earl of Clarendon, as ChanThe successor of Sir Nicholas Bacon was cellor; but the Monarch was for the time withLord Chancellor Bromley, and here we find a out a court and without a parliament. On the record interesting to us at this moment. After restoration in 1660 the Chancellor at once enpresiding at the trial of Mary, Queen of Scots, tered upon all his duties, judicial and parliathe Lord Chancellor became ill and took to his mentary; and it is recorded that, " though still bed. Under the circumstances Sir Edmund a commoner, he took his place on the woolsack Anderson, Chief Justice of the Con.mon Pleas, asSpeakerby prescription." (Campbell'sLives, was authorized by the Queen to act as a substi- vol. 3, p. 187.) A year later the commoner was tute for the Chancellor, and thus the Chief Jus- raised to the peerage, thus becoming more than tice became the Presiding Officer of the House Presiding Officer. During illness from the gout of Lords to the close of the session without the place of the Chancellor as Presiding Officer being a peer. was sometimes supplied by Sir Orlando BridgThen came Sir Christopher Hatton, the man, Chief Justice of the Common Pleas, who, favorite of'Queen Elizabeth, and so famous as on these occasions, was Presiding Officer, and the dancing Chancellor, who presided in the nothing more. Lord Campbell says " he freHouse of Lords by virtue of his office, but quentlysatasSpeakerintheHouseofLords" — never as a peer. He was followed by the ex- (ibid., 279)-which means that he presided. emplary Ellesmere, who was for many years On the disgrace of Lord Clarendon, the disChancellor without being a peer, but finished posal of the great seal was the occasion of his career by adding to his title as Presiding perplexity. The historian informs us that Officer the functions of a member. The greatest "after many doubts and conflicting plans of all in the list now followed. After much among the king's male and female advisers effort and solicitation Bacon becomes Chan- it was put into the hands of a grave commoncellor with a peerage; but it is recorded in the law judge," (ibid., p. 272) being none other Lords' journals that when he spoke he removed than the Chief Justice of the Common Pleas, 41 who had already presided in the absence of Lord having no influence over the proceedings." Clarendon; but he was never raised to the peer- (Ibid., p. 245.) Thus he presided. age. Here we have another explanation of Then came the polished Cowper, at first withthe precise relation of such an official to the out a peerage, but after a short time created a House. Lord Campbell expressly remarks member of the House. Here again the histothat "never being created a peer, his only duty rian records that while he remained a comin the House of Lords was to put the question, moner " he took his place on the woolsack as and to address the two Houses in explanation Speaker, without a right to debate or vote." of the royal will on the assembling of Parlia- It appears that, " not being permitted to share ment." (Ibid., p. 281.) Here is the same in the debates of the House of Lords, heamused recurring definition of the term preside. himself by taking not~es of the speeches on the For some time afterward there seems to have opposite sides." (Ibid., pp. 304, 305.) Afterbeen little embarrassment. Nottingham, who ward, even when a peer and as Chancellor, did so much for equity; Shaftsbury, who did presiding at the impeachment of Sacheverell, so little; Guilfbrd, so famous through con- Lord Cowper did not interfere further than by temporary biography; and Jeffries, so justly saying, " Gentlemen of the House of Cominfamous, successively heads of the law, were mons," or " Gentlemen, you that are counsel all peers. But at the revolution of 1688 there fortheprisoner, mayproceed." (Ibid., p. 318.) was an interregnum, which brought into relief Harcourt followed Cowper as Keeper of the the relations between the Upper House and its great seal; but he was not immediately raised Presiding Officer. Jeffries on his flight dropped to the peerage. It is recorded that during one, the great seal in the Thames. King James year he had "onlyto sit as Speaker." (Ibid., had gone. There was, therefore, no Presiding p. 459.) That is, he had only to preside. AfterOfficer for the Lords. In order to supply this ward, as a peer, he became a member of the want the Lords, at the meeting of the Con- body. He was succeeded as Chancellor by the vention Parliament, chose one of their own Earl of Macclesfield with all the rights of numbers, the Marquis of Halifax, as their membership. Speaker, and, in the exercise of the power Lord Macclesfield, being impeached of high inherent in them, they continued to reelect crimes and misdemeanors as Chancellor, Sir him day by day.'During this period he was Peter King, at the time Chief Justice of the strictly President pro tempore. At last Sir Common Pleas, was made Presiding Officer ofRobert Atkyns, Chief Baron of the Exchequer, the Upper House, with only the limited powers a commoner, took his seat on the woolsack belonging to a Presiding Officer, who is not a, as Speaker, appointed by the Crown. Here, member of the body. Here the record is comagain, we learn that "serious inconvenience plete. Turn to the trial and you will see it all. was experienced from the occupier of the wool- It was he who gave directions to the managers;. sack not being a member of the House. " (ibid., and also to the counsel —who put the question; vol. 4. p. 53.) At last, in 1693, the great and afterward pronounced the sentence; but: seal was handed to Sir John Somers, Lord he acted always as Presiding Officer, and' Keeper; and here we have another authentic nothing else. I do not perceive that he madeillustration of the rule. Although the official any rulings during the progress of the trial. head of the English law, and already exalted He was Chief Justice of the Common Pleas, for his ability and varied knowledge, this great acting as President pro tempore. The report man, one of the saviors of constitutional lib- describing the opening of the proceedings says erty in England, was for some time merely that the articles of impeachment, with the Presiding Officer. The historian records that answer and replication, were read, "by direc" while lie remained a commoner he presided tion of Lord Chief Justice King, Speaker of on the woolsack only as Speaker," (ibid., p. the House of Lords." (Howell, StateLTrialsi 118;) that he "had only to put the question, vol. 16, p. 768.) This instance furnishes and took no part in debate." (Ibid., p. 122.) another definition of the term preside. This is the more worthy of notice because All this is compendiously describedby Lord; Somers was recognized as a consummate ora- Campbell, as follows: for. At last, according to the historian, " Ithere "Sir Peter, not being a peer, of course htad no delibwas a strong desire that he should take part in erative voice; but during the trial, as tihe organ of the the debates;" and the King, to enable him to House of Peers, he regulated the procedure without do this, pressed his acceptance of a peerage, any special vote, intimating to the managers and to the counsel for the defendant when they were to which, after some further delay, he did, and speak and to adduce their evidence. After the verhe was afterward known as Lord Somers. diet of guilty, he ordered the Black Rod to produce his prisoner at the bar; and the Speaker of the House ~~~~(Ibid.,~~ p~ 126of Commons, having demanded judgment, he, in In the vicissitudes of public life this great good taste, abstaining from making any comment, character was dismissed from office, and a suc- dryly, but solemnly and impressively pronounced the cessor was found in an inferior person, Sir sentenewhichthe Househad agreedupon."-CampMatthew Wright, who was created Lord Keeper Lives, vol. 4 p. 609. without a peerage. For the five years of his This proceeding was in 1725. At this time official life it is recorded that he occupied the Benjamin Franklin, the printer-boy, was actwoolsack, "merely putting the question, and ually in London. It is difficult to imagine that this precocious character, whose observation there, a busy observer, until after the judge in public affairs was as remarkable as in phil- was created: a peer. Even if he had been osophy, should have passed eighteen months ignorant of Parliamentary usage, or had forin London at this very period without noting gotten what passed at; the trial of Lord Macthis remarkable trial and the manner in which clesfield, he could not have failed to- note that it was conducted. Thus early in life he saw the House of Lords had for its Presiding Offithat a Chief Justice might preside at an im- cer an eminent judge who, not being a mempeachment without being a member of the ber, could take no part in its proceedings beHouse of Lords: or exercising any of the pow- yond putting the question. ers which belong to membership. Afterward, in 1790, there was a different Besides his eminence as a Chief Justice, King arrangement. Owing to a difficulty in finding was the nephew of the great thinker who has a proper person as Chancellor, the great seal exercised such influence on English and Amer- was put in commission, and Lord Mansfield, ican opinion, John Locke. Shortly after pre- Chief Justice: of England, was persuaded to siding at the impeachment as Chief Justice he act as Presiding Officer of the Upper House. became Chancellor, with a.peerage. Curiously enough, Franklin was again in EngHe was followed in his high post by Talbot land on his'third visit, and remained through and. Hardwicke, each with a peerage. Jump- the service of Lord: Mansfield: in this capacity. ing the long period of their successful admin- Thus this illustrious American, afterward a istrations, when the Presiding Officer was also member of the convention that framed thea a member of the Upper House, I come to an- National Constitution-, had at two different' other instance where the position of the Pre- times seen the House of Lords with a Presidsiding Officer became peculiarly apparent; and: ing Officer who, not being~ a member of the this, too, occurred when Benjamin Franklin body, could only put the question, and' then: was onhis protracted visit to London, as agent again with. another- Presiding Officer, who, for the Colonies. I refer to Sir Robert Hen.- being a: member of the; body, could vote and ley, who became Lord Keeper in 1757, with- speak, as well as put the question. out a peerage. The King, George II, did not But Franklin was not the only member of like him, and therefore, while placing him at the National Convention to whome these precethe head of the law,. declined to make.him a. dents were known. One- or more had been member of the House over which he was to educated at the Temple- in London. Others preside. At last, in 1760, the necessities of were accomplished lawyers, familiar with the the publice service constrained his elevation to courts of the mother country. I have already the peerage, and soon afterward George III, mentioned that Blackstone's Commentaries, who succeeded to the throne without the ani- where the general rule is clearly stated, was mos-ities of his grandfather, created him Chan- as well known in the Colonies as in the mother.cellor and Earl of Northington. country. Besides, our fathers were not ignorFor four years Henley, while still a com- ant of the history of England, which down moner, was Presiding Officer of the House of to the Declaration of Independence had been Lords. During this considerable period he their history. The English law also was theirs. was without a voice or vote. The historian Not a case in its books which- did not belong remarks that "if there had been any debates to them as well as to the frequenters of Westhe was precluded from taking part in them." minster Hall. The State Trials, involving prin(Cnmpbell's Lives, vol. 4, p. 188.) And then, ciples of constitutional law, and embodying. again, in another place, he pictures the de- these very precedents, were all known. Harfenseless condition of the unhappy magistrate grave's collection in several folios had already with regard to his own decisions in the court passed through at least four editions some below, when heard on appeal, as follows: time before the adoption of our National Con"Lord Keeper Henley, till raised to the peerage, stitution. I cannot err in supposing that all used to complain bitterly of being obliged to put the these were authoritative guides in our country question for the reversal of his own decrees, without at that time, and that the National Constitubeing permitted to say aword in supportof them.- tion was fashioned in that the N ationa l Constitbxic., vol. 1, p. 17, note. tion was fashioned in all the various lights, Ibid., vol. 1, P. 17, note. historical and judicial which they furnished. Lord Eldon, in his Anecdote Book, furnishes historical and judicial, which they furnished. another statement of.this case, as follows: The conclusion is irresistible, that, when our fathers provided that on the trial of the Pr esi"When Sir Robert Henley resided in the House dent of the United States "the Chief Justice of Lords as Lord Keeper he could not enter into debate as a chancellor being a peer does; and, there- shall preside," they used the term "preside" fore, when therewas an appeal from his judgment in in the sense it had already acquired in Parliathe Court of Chancery and the law lords;hen in the mentary Law, and did not intend to attach to House moved to reverse his judgments, he could not intend to attach to state the grounds of his opinions and support his it any different signification; that they knew decisions." —Twiss's Life of Eldon, vol. 1, p. 319. perfectly well the parliamentary distinction And thus for four years this commoner pre- between a Presiding Officer a member of the sided over the House of Lords. House and a Presiding Officer not a'member; A few months before Henley first took his that, in constituting the Chief Justice Presiding place as Presiding Officer, Franklin arrived in Officer for a special temporary purpose, they London for the second time,. and continued. had in view similar. instances in the mother 43 country, when the Lord Keeper, Chief Justice, der the parallel provision of the Constitution or other judicial personage had been appointed relating to the Vice. President, which, after to Ipreside" over the House of Lords, of which much debate in another generation, received he was not a member, as our Chief Justice is an authoritative interpretation. It is as fol appointed to preside over the Senate, of which lows: " The Vice President of the United he is tot a member; that they found in this States' shall be President of the Senate, but constantly recurring example an apt precedent shall have no vote unless they be equally difor their guidance; that they followed this vided." In other words, the Vice President, precedent to all intents and purposes, using, like the Chief Justice, shall preside in the Senwith regard to the Chief Justice, the received ate, but, unlike the Chief Justice, with a castparliamentary language, that he shall " pre- ing vote. His general powers are all implied side," and nothing. more; that, according to in the provision that he shall preside. this precedent, they never intended to impart No question has occurred with regard to the to the Chief Justice, President pro tempore of vote of the Vice President, for this is expressly the Senates,any other powers than those of a regulated by the Constitution. But the other Presiding Officer not a member of the body; powers of the Vice President, when'presiding and that these powers, as exemplified in an. in the Senate, are left to Parliamentary Law unbroken series of instances extending over and the express rules of the body. Some of centuries, under different kings and through the latter were settled at. an early day. On various administrations, were simply to put the looking at the rules of the Senate adopted at question and to direct generally the conduct the beginning it will be found that, independof business, without undertaking in any way, ent of his casting vote, nothing was originally by voice or vote, to determine any question, recognized as belonging to a presiding Vice preliminary, interlocutory, or final. President beyond his power to occupy the In stating this conclusion I present simply chair. All else was determined by the rules. the result of the authorities. It is not I who For instance, Senators, when speaking, are to speak; it is the authorities. My own judg- address the Chair. This rule, which seems to ment may be imperfect; but here is a mass of us so superfluous. was adopted 16th April, testimony, concurring and cumulative, without 1789, early in the session of the First Cona single exception, which cannot err. gress, in order to change the existing ParliaPlainly and unmistakably the provision in mentary Law, under which a member of the our Constitution authorizing the Chief Justice Upper House of Parliament habitually adto preside in the Senate, of which he is not a dresses his associates, and never the Chair. member, was modeled on the English original. Down to this day, in England, a peer, rising This English original was, according to the to speak, says, "My Lords," and never " My language of Mr. Wirt, the "archetype" which Lord Chancellor," although the latterpresides. our fathers followed. As such it was embodied Another rule, adopted at the same date, has in our Constitution, as much as if the Consti- a similar origin. By Parliamentary Law, in tution in its text expressly provided.that the the UpperHouse of Parliament,when two memChief Justice, when presiding in the Senate, bers rise at the same time, the House, by their had all the powers accorded by parliamentary cry, indicate who shall speak. This was set usage to such a functionary when presiding in aside by a positive rule of the Senate that, in the Upper House of Parliament, without being such a case, " the President shall name the pera member thereof. In saying that he shall son to speak." The Parliamentary Law.that "preside" the Constitution confers on the the Presiding Officer, whether a member or Chief Justice no powers of membership in the not a member, shall put the question, was Senate, and by the well-defined term employed, reinforced by an express rule that " all queslimits him to those precise functions sane- tions shall be put by the President of the tioned at the time by immemorial usage. Senate." Thus far I have considered this provision in Although the rules originally provided that the light of authorities already known and rec- when a member is called to order " the Presiognized at the adoption of the National Con- dent shall determine whether he is in order or stitution. This is enough; for it is by these not," they failed to declare by whom the call fAuthorities that its meaning must be determ- to order should be made. There was nothing ined. You cannot reject these without set- conferring this power upon the Presiding Offiting at defiance a fixed rule of interpretation, cer, while, by Parliamentary Law in the Upper and resorting instead to vague inference or House of Parliament, no Presiding Officer, as mere imagination, quickened, perhaps, by your such, could call to order, whatever he might desires. Mere imagination and vague infer- do as a member. The powers of the Presiding ence-quickened, perhaps, by your desires- Officer in the Senate were left in this uncerare out of place when Parliamentary Law is tainty; but the small numbers of Senators and beyond all question. the prevailing courtesy prevented trouble. At last, in the lapse of time, the numbers increased Pardon me if I protract this argument by an and the'debates assumed a more animated additional illustration derived from our own character. Meanwhile, in 1825, Mr. Calhoun congressional history. This will be found un- became Vice President. This ingenious per 44 son; severely logical, and at the time enjoying feeble powers of our Presiding Officer, and a the confidence of the country to a rare degree, remedy was forthwith applied by an amendinsisted that, as Presiding Officer, he had no ment of the rules, making it his duty to call power but to carry into effect the rules adopted to order. Thus to his general power as Preby the body, and that, therefore, in the absence siding Officer was superadded, by express rule, of any rule on the subject, he was not em- a further power, not existing by Parliamentary powered to call a Senator to order for words Law; and such is the rule of the Senate at this spoken in debate. His conclusion was given day. as follows: I turn away from this Vice Presidential epi"The Chair had no power beyond the rules of the sode, contenting myself with reminding you Senate. It would stand in the light of a usurper were how clearly it shows that, independent of the it to attempt to exercise such a power. It was too high a power for the Chair." * * "The rules of the Senate, the Presiding Officer as Chair would never assume any power not vested in such had small powers; that he could do very it; but would ever show firmness in exercising those little more than put the question and direct powers that were vested in the Chair."-Congressionalte retan t th u atrs Debates, 1825-26, p. 759. the Secretary; and, in short, that our fathers, The question with regard to the powers of in the interpretation of his powers, had tacitly the Chair was transferred from the Senate recognized the time-honored aud prevailing Chamber to the public press, where it was dis- usage of Parliament, which in itself is a comcussed with memorable ability. An article in manding law. But a ChiefJustice, when prethe National Intelligencer, under the signature siding in the Senate, is not less under this of Patrick Henry, attributed to John Quincy commanding law than the Vice President. Adams, at the time President, assumed that the powers of the Vice President, in calling to Thus far I have confined myself to the Parorder, were not derived from the Senate, but liamentary law governing the Upper House that they came strictly from the Constitution of Parliamentand of Congress. Furtherillusitself, which authorizes him to preside, and tration may be found in the position of the that in their exercise the Vice President was peaer, whether in the House of Commons wholly independent of the Senate. To this orthe House of Representatives. Here there assumption Mr. Calhoun replied in two articles, is one cardinal distinction to be noted at the under the signature of Onslow, where he shows outset. The Speaker is always a member of an ability not unworthy of the eminent parlia- the House, in which respect he differs from the mentarian whose name he for the time adopted. Presiding Officer of the Upper House in either The point in issue was not unlike that now country. As a member he has a constituency, before us. It was insisted, on the one side, which is represented through him; and here is that certain powers were inherent in the Vice another difference. The Presiding Officer of President, as Presiding Officer of the Senate, the Upper House has no constituency. Thereprecisely as it is now insisted that certain fore his only duty is to preside, unless some powers are inherent in the Chief Justice when other function be superadded by the Constituhe becomes Presiding Officer of the Senate. tion or the rules of the body. Mr. Calhoun thus replied, in words applicable All authorities male the Speaker merely the to the present occasion: organ of the Honse, except so far as his repre"I affirm that, as a Presiding Officer, the Vice sentative capacityis recognized. In the ComPresident has no inherent power whatever, unless mons he can vote only when the House is that of doing wehat theSenate msay prescribe by its rules equally divided. In our House of Representbe such a power. There are, indeed, inherent powers, atives his name is sometimes called, although but they are in the body, and notin the officer. He is a mere agent to exercise the will of the former. He there is no tie; but in each case he votes in his can exercise no power which he does not hold by representative capacity, and not as Speaker. delegation, express or implied."-Calhousn's Life and In the time of Queen Elizabeth it was insisted Speechens, p.agan17. he saysin rply o anill that " because he was one out of our own numThen again he says, in reply to an illustra- ber and not a stranger, therefore he hath a tion that had been employed: voice." But Sir Walter Raleigh replied that "There is not the least analogy between the rights and e Speaker was foreclosed of his voice by duties of a judge and those of a Presiding Officer in a the Speaker was foreclosed of his voice by deliberative assembly. The analogy is altogether the taking that place." (D'Ewes's Journals, 683f other way. It is between the court and the House." 684.) The latter opinion, which has been since (Ibid., P. 20.). overruled, attests the disposition at that early It would be difficult to answer the reasoning day to limit his powers. of Mr. Calhoun. Unless all the precedents, Cushing, in his elaborate work, brings toin unbroken series, are set aside, a Presiding gether numerous illustrations under this head. Officer not a member of the Senate has no Here is his own language, containing the esinherent powers except to occupy the chair and sence of all: to put the question. All else must be derived to put the question. All else must be derived "The Presiding Officer, though entitled on all ocfrom grant in the Constitution or in the rules casions to be treated with the greatest attentl0n and of the body. In the absence of any such respectbytheindividualmembers,becausethepower grant, we must be contented to observe the and dignity and honor of the assembly are officially mandates of the Lex Parliamentaria. The bodied in his person, is yet but the servant of the mandates of the Lex Parliamentaria. The House, to declare its will and to obey implicitly all its objections of Mr. Calhoun brought to light the commands."-Cu.shing's Lex Parliamnstaria, ~ 294. 45 " The duties of a Presiding Officer are of such a " Clerk presides." The author then proceeds nature, and require him to possess so entirely and to say: exclusively the confidence of the Assembly, that, with certain exceptions, which will presently be "To relieve future Houses of some of the difficulties mentioned, be is not allowed to exercise any other which grew out of the very limited power of the Clerk fuictions than those which properly belong to his as a Presiding Oficer, the House of the Thirty-Sixth office; that is to say, he is excluded front submitting Congress adopted the present one hundred and fortymPopositions to the Assemblyg, freona particitpting i sixth and one hundred and forty-seventh rules, which deliberetions, and: f om voting."-Ibid., a 300. provide that, pending the election of a Speaker, the Clerk shall preserve order and decorum, and shall At an early day an English Speaker vividly decide all questions of order that may arise, subject characterized his relations to the House when to appeal to the House." (p. 114.) he describes himself as " one of themselves to From this impartial statement we have a be the mouth, and, indeed, the servant of all practical definition of the word preside. It is the rest." (Hansard's Parliamentary His- difficult to see how it can have a different sigt. s aratnification when it is said in the Constitution tory, vol. 2, p. 535.) This character appears the Chief Justice shallpreside." Theword in the memorable incident when King Charles theChiefJusticeshallpreside." Theword in theis memo rable incident whe n King Charlesnd is the same in the two cases, and it must have going directly to the Speaker asked for the five substantially the same meaning, whether it congoingmembers he wishedtly to th arrest. Speaker Len- cern a Clerk or a Chief Justice. Nobody ever thall replied in ready words which reveal the supposed that a presiding Clerk could rule or function of the Presiding Officer: " May it vote. Can apresiding ChiefJustice? please your Majesty, I have neither eyes to see, nor tongue to speak, in this place, but as the The clall of a prestd,ng Chief Justice beHouse is pleased to direct me, whose servant I sidered h ow positively the Constitution it is am here." (Hatsell, vol. 2, p. 242.) This reply that the Senate "shall have the sole power to was as good in law as in patriotism. Different words good inwere employed by Sir William Scott, try all impeachments," and, still further, that afterward Lord Stowell, when, in 1802, on conviction can be only by " the concurrence of afterward Lord Stowell, when, in 1802 onhesetwo moving the election of Mr. Speaker Abbott, he twothirdsof thepr esent." Thesetwo declared that a Speaker must add' to a jeal- Provisions accord powers to the enate solely. If a presiding Chief Justice can rule or vote, ous affection for the privileges of the House the Senate has not Ithe sole power to try;' an awful sense of its duties." (Hansard's for ruling and voting, even on interlocutory Parliamentary History, vol. 36, p. 915.) But the early Speaker and the great judge did not questions, may determine the trial. A vote differ in substance. Thev both attest that the to postpone, to withdraw, even to adjourn, Speaker, when in the chair, is only the organ might under peculiar circumstances exercise ofSpeaker, when in the House and nothing more. the orgn a decisive influence. A vote for a protracted adjournment might defeat the trial. NotoriPassing from the Speaker to the Clerk we ously such votes are among the devices of parshall find still another illustration showing that liamentary opposition. In doing anything like the word preside, under which the Chief Jus- this a presiding Chief Justice makes himself tice derives all his powers, has received an a trier, and, if he votes on the final judgment, authoritative interpretation in the Rules of the he makes himself a member of the Senate; but House of Representatives, and the comment- he cannot be either. aries thereupon. I cite from Barclay's Digest It i only a casting vote that thus far the the following summary: presiding Chief Justice has assumed to give. But he has the same power to vote always as "Under the authority contained in the manner to vote when the Senate are equally divided. and the usage of the House, the Clerk presided over No such its deliberations while there was no Speaker, but power in either case can be found in simnply put questionis and where specially authorized the Constitution or in Parliamentary Law. -Preserved order, not, however, undertaking to decide By the Constitution he presides and nothing more, while by Parliamentary Law there is no In another place, after stating that in sev- casting vote where the Presiding Officer is not eral Congresses there was a failure to elect a a member of the body. Nor does there seem Speaker for several days; that in the Twenty- to be any difference between a casting vote on Sixth Congress there was a failure for eleven an interlocutory question and a casting vote days; that in the Thirty-First Congress there on the final question. The first is determined was a failure for nearly a month; that in the by a majority, and the latter by two thirds; but Thirty-Fourth and Thirty-Sixth Congresses, it has been decided in our country that " if the respectively, there was a failure for not less assembly on a division stands exactly one than two months, the author says: third to two thirds there is the occasion for "During the three last-named periods, while the the giving of a casting vote, because the PreHouse was without a Speaker, the Clerk presided siding Officer can then, by giving his vote, deover its deliberations; not. however, exercising the functions of Speaker to the extent of deciding questions either way." (Cushing, Lea of order, but, as in the case of other questions, put- Parliamentaria, ~ 306.) This statement reveals ting them to the House for its decision." (p. 114.) still further how inconsistent is the claim of This limited power of the Clerk is thus de- the presiding Chief Justice with the positive scribed in a marginal note of the author — requirement of the Constitution. 46 I would not keep out -of sight any consider- jurisdiction; Boni judicis est ampliare jurisation which seems in any quarter to throw dictionera. This maxim, borrowed from the light on this claim; and therefore I take time horn-books, was originally established for the to mention an analogy which has been in- sake of justice and humanity, that they might voked. The exceptional provision in the Con- not fail; but it has never been extended to stitution, under which the Vice President has other exercises of authority. On the contrariy, a casting vote, on ordinary occasions, is taken all accepted maxims are against such assumpfrom its place in another clause and applied tion in other cases. Never has it been said to the Chief Justice. It is gravely argued that that it is the part of a good Presiding Officer the Chief Justice is a substitute for the Vice to amplify his power; and there is at least one President, and, as the latter, by express grant, obvious reason —a Presiding Officer is only all has a casting vote on ordinary occasions, there- agent,' acting always in the presence of hisprinfore the Chief Justice has'such when presid- cipal. Whatever maybe the promptings of the ing on an impeachment. To this argument present moment, such an amplification can find there are two obvious objections: first, there no sanction in the Constitution or in that Paris no language giving any casting vote to the liamentary Law frovm which there is no appeal. Chief Justice, and, in the absence of express Thus, which way soever we turn, whether to grant, it is impossible to imply it in opposition the Constitution or to Parliamentary Law, as to the prevailing rule of Parliamentary Law; illustrated in England or the United States, and, secondly, it is by no means clear that the we are brought to conclude that the Chief Jus-'Vice President has a casting vote when called tice in the Senate Chamber is not in any respect to preside on an impeachment. On ordinary Chief Justice, but only Presiding Officer; that occasions, in the business of the Senate, the - he has no judicial powers, or in other words, grant is explicit; but it does not follow that powers to try, but only the powers of a Presidthis grant can be extended to embrace an im- ing Officer, not a member of the body. Ac-' peachment, in face of the positive provisions cording to the injunction of the Constitution, of the Constitution, by which the power to try he can -preside:-"- the Chief Justice shall and to vote are confined to Senators. Accord- preside;" but this is all, unless other powers ing to the undoubted rule of interpretation, ut are superadded by the concession of the Senres magis valeat quam pereat, the casting vote ate, subject always to the constitutional limitaof the Vice President must:be subject to this tion that the Senate alone can try, and, therecurtailment. Therefore, if the Chief Justice fore, alone can rule or vote on questions which is regarded as a substitute for the Vice Presi- enter into the trial. The function of a Predent, it will be only to find himself again within siding Officer may be limited, but it must not be the limitations of the Constitution. disparaged. For a succession of generations great men in the law, Chancellors and Chief I cannot bring this survey to an end without Justices, have not disdained to discharge it. an expression of deep regret that I find myself Out of the long and famous list I mention one constrained to differ from the Chief Justice. name of surpassing authority. Somers, the In faithful fellowship for long years we have illustrious defender of constitutional liberty, striven together for the establishment of liberty unequalled in debate as in judgment, exercised and equality as the fundamental law of this this limited function without claiming other Republic. I: know his fidelity and revere his power. He was satisfied to preside. Such an services, but' not on this account can I hesitate example is not unworthy of us. If the present the less when I find him claiming for himself question could be determined by sentiments of 1in this Chamber an important power which, in personal regard I should gladly say that our my judgment, is three times denied in the Con- Chief Justice is needed to the Senate more stitution: first, when it is declared that the Sen- than the Senate is needed to him. But the ate alone shall'try impeachments; secondly, Constitution, which has regulated the duties of when it is declared that members only shall all, leaves to us no alternative.. We are the convict; and, thirdly, when it is declared that Senate; he is the Presiding Officer; although, the Chief Justice shall preside, and nothing whether in the court-room or the Senate Chainmore, thus conferring upon him those powers ber, he is always the most exalted servant of only which by Parliamentary Law belong to a the law. This character he cannot lose by any Presiding Officer not a member of the body. change of seat. As such he lends to this hisIn the face of such a claim, so entirely without toric occasion the dignity of his presence and example,'and of such possible consequences, the authority of his example. Sitting in that;I: cannot be silent. Reluctantly and painfully chair, he can do much to smooth the course of I offer this respectful protest. business, and to fill the Chamber with the spirit There is a familiar saying of jurisprudence, of justice. Under the rules of the Senate he that it is the part of a good judge to amplify his can become its organ, but nothing more. ADDITIONAL NOTES TO THE BRIEF OF'THE AUTHORITIES ON THE LAW OF'IMPEACHABLE CRIMES AND MISDEMEANORS. Judge LAWRENCE, who prepared the "Brief that created said court and designated its of the Authorities upon the Law of Impeach- members. He said: able- Crimes and Misdemeanors," found in the "I am most confident this day's proceeding cannot body of this work, (page 82,) has furnished the be warranted by God's law; for, on the contrary. the following additional notes to the-brief: authority and obedience unto k7ings is clearly warranted and strictly commanded, both in the Old and New Testament; which, if denied, I am ready inAddition to third note on page 83, ante. stantly to prove. And for the question now in hand, there it is said: that where the word of a kIcing is, there Cicero, prosecuting the Prsetor Verres before is powes and who may say unto hin, What doest thou? the Roman Senate for acts done during his. (Eccles. viii. 4.) Then for the law of this land, I am'praetorship in Sicily, said: no less confident that no learned lawyer will affirm prtorship in Sicily said: that an impeachment can lie against the king, they "The mischiefs done by him in that unhappy lall going in his name. Besides, the law upon which country during the three years of his iniquitous you ground your proceedings must either be old or administration are such that many years under the nerw; if old, showit; if new, tellwhat authority war-:wisest and best of prmetors-will not be sufficient to ranted by the fundamental laws of the land hath restore things to the condition in which he found made it, and when." them; for it is notorious'that during the time of his Dring the tal, when the solicitor for the tyranny the Sicilians enjoyed neither the protection of their own original laws, of the regulations made Commons arraigned him "in the name of the for their benefit by the Roman Sen.ate upon their people of England," Lady Fairfax, who was coming under the protection of the Commonwealth, among the spectators, cried out, " Not one nor of the natural or inalienable rights of men." half of them" and some said she exclaimed, half of them!, and some said she exclaimed, The following is the substance of the charges "Not one tenth of them!" upon which Charles I of England was arraigned: Charles's trial lasted but eight days-having " That he, the said Charles Stuart, being admitted been commenced January 20, 1648 (old reckking of England, and therein trusted with a limited oning-properly 1649), and finished January Power to govern bu and according to the laws ofte 28 and the 29th being Sunday, his head was land, and NOT OTHERWISE; and by his trust, oath, andd the 29th g unay, office being obliged (that is, under obligation) to use cut off on Monday, the 30th. the power committed to him for the good and benefit of the people, and for the preservation of their rights and liberties; yet, nevertheless, out of a wicked de- Addition to first note on page 88, ante. sign to erect and uphold in himself an unlimited and In the Convention the plan of the Committee tyrannical power, to rule according to his WiLL, and of the hole referre the trial of impeachmets to overthrow the rights and liberties of the people; of the Whole referred the trial of impeachments yea, to take away and make void the foundations to the Supreme Court. This was changed so thereof, and of all redress and remedy of misgovern- as to give the jurisdiction to the Senate. Curment, which, by the fundamental constitutions of this kingdom, were reserved on the people's behalf, tis, in. referring to this, says: in the right and power of frequent and successive "The cognizance of impeachments of national offiParliaments, or national meetings in council; he, the cers was taken from their [the Supreme Court] jurissaid Charles Stuart, for the accomplishment of such, diction, and the principle was adopted which exhis designs, and for the protecting of himself and his tended that jurisdiction to' all cases arising under adherents, in his and their wicked practices, to thehe national laws, and to such other questions as may same end, hath traitorously and maliciously levied involve the national peace and harmony.' "-2 Cu'war against the Parliament and the people therein tis's Hist. Conet., 176. represented." Hon. John C. Hamilton, in an able article, In his reply, Charles persistently asserted says"iti redo ealf ofthePresiden says "it is urged on behalf of the President the rightfulness and constitutionality of all that that-!he:had done, and denied the authority and It was with mu jurisdiction of the court or commission that' It was with much doubt and hesitation that the jurisdiction to try impeachmee.t at all was intrusted,tried him, as well as of the House of Commons to the Senate of the United States. The grant of 47 48 jurisdiction to the Senate was deferred to the last Addition to second note on page 93, ante. moment. In moment. In England and the United States there are "The intrustment of this power to the Senate was England and the Unted States there are not delayed because of any doubt or hesitation; nor different systems of law, each with its approwasit deferred. The proposed intrusting this power priate tribunals, jurisdiction, and mode of to the Supreme Court was before it was determined procedure established. The jtdicial covrts that the appointment of the judges should be made by the President with the consent of the Senate. have a jurisdiction and procedure well underThis mode of appointment was agreed to unani- stood. They are governed by the Constitumously in the Convention on the 7th of September, tionstatutory and common law. Military law 1787; and the next day, the 8th of September, Roger tion Sherman raised the objection that the Supreme Court is a branch of the law of nations recognized was'improper to try the President, because the in and adopted by the Constitution; has its judges would be appointed by him.' This objection tribunals, with their appropriate jurisdiction prevailed, and the trial was intrusted to the Senate by the vote of all the States with one exception; and and procedure. They try and punish offenses thus, on the same day, immediately after, the sub- relating to the Army and Navy and the milijects of impeachment were extended from treason tary and naval service defned mainly by comand bribery to'other high crimes and misdeszeanors,' and thus intrusted and thus enlarged it was on the mon, unwritten military law, and only to a same day made to embrace'the Vice President and limited extent by statute. (Attorney General other civil officers of the United States. Speed's opinion of July, 1865, on the trial of "Thus it is seen that while the Supreme Court —a eed judicial body-was contemplated as the court for the the assassins.) Parliamentary law has its tritrial of impeachments, its jurisdiction was proposed bunals, with legislative and, for some purto be limited to two crimes-statutory offenses-and therefore to be governed by'strictrules' of law; but poses, a judicial power, including the right to when confided to the Senate-a political body,-the summon witnesses before committees of injurisdiction was extended to political offenses, in the vestigation, punish and even imprison for contrial of which, from'the nature of the proceeding a t of its pe national inquest,' a commensurate discretion neces- tem pt of its or privileges, expel or sarily followed. Thus it is astrange venturefor any otherwise punish its members, and with the man to declare in the presence of this whole country power of impeachment. These different tri-'that it is impossible to observe the progress of the butals do not administer the same law nor for deliberations of that Convention up'on this single question, beginning with the briefest and most open the same purposes. Each has its own indejurisdiction and ending in a jurisdiction confined in pendent law, governed by its own principles its terms, without coming to the conclusion that it and reasons. was their determination that the jurisdiction should and r be circumscribed and limited.' The same reasons which enable military tri"It is here averred, and the evidence is positive, bunals to try offenses undefined by statute that from the progress of the deliberations of the authorize impeachments for misdemeanors deConvention the opposite conclusion is the only one autnoreze impeachm ents or misdemea nors - to come to." fined by no written law. The Senate administers the common parliamentary law of imAddition to first note on page 89, ante. peachable misdemeanors, and establishes its The question of the power to suspend the procedure on principles peculiar to its organPresident is discussed in speeches of Decem- ization and objects, uncontrolled by the powers ber 13, 1867, February 24 and 29, 1868, in the of either judicial or military tribunals. House of Representatives. (See Congressional Globe.) Additional note to page 98, ante. The following charges, among others, were Addition to second note onpage 89, ante. drawn up by Hon. John Minor Botts against On these citations from the Federalist Hon. John Tyler, in 1842: John C. Hamilton remarks: "I charge John Tyler with a gross usurpation of power and violation of law. "This quotation exhibits three most important "I charge him with the high crime and misdefacts, first, that the subjects of the jurisdiction'of meanor of endeavoring to excite a disorganizing and the court for the trial of impeachments' are those revolutionary spirit in the country, by inviting a offenses which proceed from the misconduct of public disregard of and disobediency to a law of Congress, men, or, in other words, from the abuse or violation which law he has himself sworn to see faithfully of some public trust. Second, thatin the delineation executed. and construction of those offenses the nature of the "I charge him with the high crime and misdeproceeding" — meanor in office of withholding his assent to laws "v~r Cnature o ~ ~ indispensable to the operations of Government. Mark the word natcharge him with gross official misconduct in "can never be tied down by the strict rules which, been guilty of a shameless duplicity, equivocation, and falsehood, with Congress, such as has in common cases, limit the discretion of courts - that and falsehood, with Congress, such as has in common cases, limit the discretion of the court for the trial of brought him into disgrace and contempt with the the discretion of the courtfor the trial of impeach- whole American people, and has disqualified him ments, thus unlimited in its proceedings, is'an awful from administering this Government with advntage, discretion,' and that its exercise was contemplated from administering this Government with advantage, discretion,' and that its exercise was Contemplated honor, or virtue. to be applied toward the most confidential and the "I chargeor v irtue most distinguished characters of the community." I charge him with an arbitrary and despotic abuse of the veto power, to gratify his personal and And how high the discretion of this national political resentment, with such evident marks of ininquest it was expected might reach is seen in consistency and duplicity as to leave no room to inlquest it was expectedmight reach is seen in doubt his total disregard of the interests of the peothese words, vindicating the constitution of the ple, and of his duty to the country. executive department from popular distrust: * "'I charge him with the high misdemeanor of arraying himself in open hostility to the legislative de"The President of the United States would beliable partment of the Government, b~ the publication of to be impeached, tried, and, upon conviction of slanderous and libelous letters over his own signatreason, bribery, or other high crimes or misdemean- ture, with a view of creating false and unmerited ors,,removed from office." sympathy for himself, and bringing Congress into dis 49 repute and odium with the people, by which means ber and stripped of the robes of office, and he no that harmony between the executive and legislative longer stands as the representative of the Governdepartments, so essential to good government and ment, then for any wrong he has done to any indithe welfare of the people, has been utterly destroyed. vidual, for any murder or any crime of any sort "I charge him with pursuing such a course of which he has committed as President, then, and not vacillation, weakness, and folly as must, if he isper- till then, can he be subjectedto the jurisdiction of the mitted to remain longer at the head of the Govern- courts."- The Reporter, Washington, 1867, vol. 3, ment, bring the country into dishonor and disgrace page 13. abroad-, and force the people into a state of abject mi*sery hanrd dihstrmess at home. utterly unworthy and Additional note to page 101, ante. "1 charge him with being utterly unworthy and unfit to have the destinies of this nation in his hands It has been said thatas Chief Magistrate, and with having brought upon "If a law passed by Congress be equivocal or amthe. Representatives of the people the imperious ne- higuous in its terms, the Executive, being called upon cessity of exercising the constitutional prerogative to administer it, may apply his own best judgment to of impeachment."'-Congressional Globe, vol. 12, p. the difficulties before him, or he may seek counsel of 144, third session Twenty-Seventh Congress. his advisers or other persons; and acting thereupon without evil intent or purpose, he would be fully jusAdditional note to page 98, ante. tified, and upon no principle of right could he be held to answer as for a misdemeanor in office." Only two of the acts charged against West W. Humphreys could be deemedtreason. The Bt tis standing ale and unqualified i W..Hu.plireys could be deemed treason. The not sound law, if construed to mean that the authorities which define that crime are con- sound law, cnstrued to mean that the aelusive on that subject. crime are con- President is not guilty of an impeachable mis-' A mere conspiring and a mere assemblage demeanor in case he honestly misinterprets a is not. reason.s (4 Cranch, 75; 1 Dallas, 35; law and executes it according to his construcis not treason." (4 Cranch, 75; 1 Dallas, 35; iv 2 Wallace, Jr., 139; 2 Bishop., Crim. Law, 1186 2.Wallace, Jr., 139 * 2 Bishop.., Crim. Law, 1186 ttio in a mode subversive of some fundamental and 1204.) The overtactmustbeone whic or essential principle of government or highly and 1204.) "The overt act must be one which in itself pertains to warlike operations. It preJudicial to the public interest. in some sense beIt is a very plausible view that punishment mustinsome sense bean act ofwar.' (23 Boston Law Reporter, 597-705.) should inot be inflicted on any person who in good faith does what he believes the law authorIf a convention, legislature, junto, or other good faith does what he believes the law authorassemblage entertain the purpose of subvert- izes. But such a rule has never been applied ing the G~overnment, and to that end pass acts, in any court or tribunal-civil, criminal, miliresolves, ordinances, or decrees, even with a tary, or parliamentary-except in certain cases view of raising a military force to carry their for the protection of judges of courts. At purposeinto effect, this alone does notconstitute common law he who violates any civil right of a levying war." (Sprague, J., charge to grand another is liable to an action, no matter how jury; 23 Law Reporter, 705; ibid., 597-601.) much the violation may have resulted from the If war be actually levied, that is, if a body mistaken belief that it was justified by law. f mewar be actually assemblevied for that s, if a body In the criminal jurisprudence of every country of ecting by forceatally a trssem bled for the purpose, all it is no excuse for a party indicted that his act of effecting by force a treasonable purpose, all those who perform any part, however minute is only criminal by the construction given by or however remote from the scene of action, the court to a statute " equivocal or ambiguous andor ho are a ctually leagued in he enealin its terms." To hold otherwise would be to and who are actually leagued in the general conspiracy, aretobeconsideredtraitors." (Per ke the law depend on the opinion of the Marshall; 4 Cranch, 75-126; Burr's Trial, accused, and not on the determination of the Coombs's ed., 322; 1 Bishop, 54.) court. The court is the sole judge of what the law is, and the rule applies"Good faith is no excuse for the violation of statAdditional note to page 100, ante. utes. Ignorance of the law cannot be set up in deIn the case of the State of Mississippi vs. fense, and this rule holds good in civil as well as in Andrew Johnson, President of the United criminal cases."-1 Sedgwick, 100. States, before the Supreme Court of the Uni- (See Kent's Comn., 529; 3 Greenleaf's Evited States, April 11, 1867, a motion was made dence, 15.) for leave to file abill'praying for an injunction And this is so in'parliamentary impeachto restrain the President and his military offi- ents, as has already been shown. cers from executing the " reconstruction acts' The power of impeachment may frequently of Congress. Henry Stanbery, then Attorney be exerted not for any purpose of punishment, General, (but now of counsel for the President but as protection to the public. If the Presion the impeachment trial,) appeared on behalf dent should err in the assertion of a constituof the President to resist the motion for leave tional power, or in the interpretation of a statto file the bill, and in argument said: ute, so as to establish a principle dangerous to " The President of the United States is above the the public interests, impeachment is a mode, process of any court or the jurisdiction of any court and often the only one, of correcting his error to bring him to account as President." and of protecting the rights of the people. "There is only one court or qua8i court that he can If the Supreme Court should, however, honbe called upon to answer to for any dereliction 61 duty, for doing anything that is contrary to law or estly interpret the Constitution or laws even failing to do anything which is according to law, and upon words " equivocal or ambiguous," so as that is not this tribunal, but one that sits in another to settle a prnciple dangerous to public liberty, Chamber of this Capitol. There hecan be calledand tried and punished, but not here while he is Presi- there is a remedy by impeachment, employed dent; and after he has been dealt with in that Cham- not forpunishment, butforprotection,exercised A.-4. 50 in the nature of a writ of error, to reverse a essential to finally settle great questions of decision subversive of civil liberty and repub- constitutional law, can be stricken down or its lican government. The Supreme Court is not jurisdiction destroyed by the state of mind, or a court of last resort. The high court of im- the mental idiosyncracies or mistaken opinions peachment is the only court of last resort, and of an officer who violates the Constitution or its decisions can only be reviewed and reversed laws as construed by the sole and final judges by the people in the selection of a Congress thereof in the high court of impeachment. holding different views; so that at last the Sen- The words of Pym, on the trial of Strafford, ate, as the Constitution declares in effect, is may be well applied-'"the sole judge of the law and the facts" in "To subvcrtlaws and Government-they can never every case of impeachment, subject to reversal be justified by any intentions, how good soever they by successors chosen in the constitutional mode. be pretended. If a public officer should misinterpret a law This view of the law of impeachment popuin a case where adequate remedy could be had larizes our institutions, and makes the people without resort to impeachment, or on a ques- at last the great depositaries of power clothed tion not vital to any fundamental principle of with the ultimate right of interpreting their government or of thWe public interests, the own Constitution in their own interests, and House of Representatives would never prefer herein rests the greatest security for popular articles to invoke the judicial powers of the liberty. Senate. While any citizen upon whom a statute is to The House of Representatives in some sense be executed may rightfully take measures to test and in proper cases may exercise a pardoning its constitutionality, the executive officer of the power by withholding articles, or by a failure law can never be permitted to do so, because as or refusal to demand judgment after conviction to him the presumption of the constitutionality when its purposes may be practically accom- of a law is incontrovertible and conclusive, at plished, but it never can be tolerated that the least until reversed by a court of competent high conservative power of impeachment, so authority, if such there be. INDEX. WITNESSES. FOR THE PROSECUTION. Name. Subject. Page Blodgett, Foster............... Suspension from office................................................... 250 Burleigh, Walter A................Conversations with Thomas.......................... 143 Chandler, William E..............Drawing money from Treasury............................. 173 Chew, Robert S............Form of commissions......................................35, 239 Clephane, James O...............President's speech, Aug. 18, 1866..............................191, 198 Creecy, Charles E.............. Form of commission........................... 109, 243 Dear, Joseph A............... President's St. Louis speech......................................... 231 Emory, William H................Conversations with President; troops............................. 159 Ferry, Thomas W.................. Demand of War Office................................ 158 Hudson, William N............... President's Cleveland speech........ 204 Jones, J. W.........................Service of Senate resolution................... 109 Karsner, George W............... Conversations with Thomas............................. 152 McDonald, William J............Service of Senate resolutions.......................................... 108 McEwen, Daniel C.................President's Cleveland speech......................................... 212 Moore, William G.................Corrections President's speech, Aug. 18, 1866.................. 198 Moorhead, James K..............Demand of War Office............................................... 116 Sheridan, James B.............President's speech, Aug. 18, 1866............................. 189, 195 Smith, Francis H...............President's speech, Aug. 18, 1866................................... 196 Stark, Everett D.................... President's Cleveland speech...................................... 214 Tinker, Charles A................ Telegrams.............................181, 189, 195 Van Horn, Burt................... Demand of War Office..................................... 112 Walbridge, L. L....................President's St. Louis speech................................ 226 Wallace, George W............. Conversations with President; troops.......................... 171 Wilkeson, Samuel............... Conversations with Thomas..................................... 151 Wood, H.............................. Interview with President.............................................. 248 FOR THE DEFENSE. Able, Barton............. President's St. Louis speech.......................................... 436 Armstrong, William W...........President's Cleveland speech..................... 434 Clarke, D. W. C....................Nomination of Mr. Ewing...................................... 360, 373 Cox, Walter S......................Test case..................................................................... 406 napp, George................ President's St. Louis speech.......................................... 438 Meigs, R. J......................... Arrest of Thomas................................................... 340, 356 Merrick, Richard T............... Case of Thomas; habeas corpus......................... 420 Moore, William G............N.....omination of Mr. Ewing...............................373 Perrin, Edwin 0.................. Conversations with President...................................... 424 Randall, Alexander W........... Foster Blodgett's case................................................... 487 Seward, Frederick W............ Practice in appointments........................................ 456 Sherman, William T............. Tender of War Office..................... 307, 347 Thomas, Lorenzo............ Appointment; acts; conversations........................ 278, 302 Welles, Edgar T....................Form of commission; troops............486, 487 Welles, Gideon..................... Troops; Cabinet counsels.............................................. 458 Zider, Henry F.............. President's St. Louis speech.......................................... 440 For analysis of testimony, see Index: title, Witnesses. iii INDEX. A. Able, Barton —see Witnesses. Acquittal on Article XI................................................................................... 853 II........................................................................................... 860 judgment of, entered........................................................................................... 861 Adjournment sine die.............................................................................. 861 Admissibility of testimony-see Evidence. Alta Vela letterremarks on, byMan'r Butler..................................699, 709, 710, 711 Mr. Nelson............................................... 698, 699, 700, 708, 709, 710, 711, 727 Man'r Logan.....................................................7.........0.......0......... 700 Answer, application of Counsel for forty days to prepare.............................................. 10 discussed byMan'r Bingham........................................................................................ 11 12 Mr. Curtis.................................................................................................... 11 Mr. Stanbery......................................................................... 11 denied......................................................................................................... 14 orders offered fixing day for respondent to file, byMr. Edmunds.............................................................................................. 21 Mr. Drake................................................................................................... 21 Mr. Trumbull............................................................................................... 21 order that respondent file, on or before 23d of March-[By 2r. ITrumbull.] offered and agreed to.21 offered and agreed to.............................................................. read and filed.................................................................................................... 22 exhibits accompanyingA. message of President, March 2, 1867, returning with objections the tenure-ofoffice bill............................................................................................... 83 B. message of President, Dec. 12, 1867, announcing suspension of Secretary Stanton, 37 C. address to President, by Hon. Reverdy Johnson, Aug. 18, 1866, communicating proceedings of National Union Convention.................................................. 42 Anthony, Henry B., a Senator from Rhode Islandremarks by............................................. 167, 168, 202, 247, 324, 328, 333, 434, 483, 500, 502, 511, 513, 521, 727, 785, 842, 843, 844, 847, 853 Application of Counsel for forty days to prepare answer............................................. 10 denied........................................................................................................... 14 for thirty days to prepare for trial.................................................................. 44 denied................................................................ 53 for three days to prepare proofs............................................................................. 245 granted.......................................................................................................... 248 for adjournment in consequence of illness of Mr. Stanbery......................................... 357 Argument, right of counsel making motion to open and close, thereon....................... 50 final, orders offered to fix the number and order of speakers on, byMan'r Binghamr.......................................................................................... 301 Mr. Frelinghuysen.................................... 201 Mr. Sumner....................................... 328, 332, 356 MAr. Sherman............................................................................... 331, 514, 516 Mr. Conness....................................................................................358, 515 517 Mr. Doolittle........39.............................. 359 VI INDEX. Argument —Continued. final, orders offered to fix the number and order of speakers on, byMr. Stewart.................................................................................................. 513 Mr. Vickers..................5..... 14, 515 Mr. Johnson................................................................................................ 516 Mr. Corbett................................................................................................. 516 Mr. Henderson...... 517 M~Jr. Henderson,,,,,,,,,,,,............................................................................. Mr. Trumbull............................................................................. 520 Mr. Buckalew....................................................... 520 Mr. Cameron................................................................................................ 520 Mr. Yates................................................................................................ 521 order that as many of Managers as desire be permitted to file, or address Senate orally, the conclusion of oral argument to be by one Manager-[By Mr. Trumbull.] offered, 520; amended, 520; adopted, 522; (yeas 28, nays 22.) on the case byMan'r Butler......................................................................................... 57 Mr. Curtis............................................................ 251, 261, 266 Man'r Logan..................................................................................... 522 Man'r Boutwell.....................................................................................570, 581 Mr. Nelson........................................................................... 594, 611 Mr. Groesbeck..............644 YMan'r Stevens,,,,.......................................................................................... 665 Man'r Williams............................................673, 687 Mr. Evarts................................................................................700, 711, 728, 748 Mr. Stanbery...........................................................................................765, 769 Man'r Bingham.................................................................................. 786 Armstrong, William W.-see Witnesses. Articles of impeachment exhibited by House of Representatives..................................... 8 vote on the-see Question. B. Bayard, James A., a Senator from Delawareorder bythat no Senator shall speak more than once, nor to exceed thirty minutes, during deliberations on final question: offered and rejected, 665; (yeas 16, nays 34.) remarks by...........................5.............?.... 57, 665 remarks on the competency of the President pro tempore to take the-oath................Appx. 14 Bingham, John A., of Ohio, a Manager, Chairmanorder bythat upon filing replication the trial proceed forthwith: offered and rejected, 14; (yeas 25, nays 26.) motion byto amend Rule XXI, so as to allow such of Managers and Counsel as desire to be heard to speak on final argument..1.................................................................... 301 argument byon application of Counsel for forty days to prepare answer............11, 12 for thirty days to prepare for trial...........................................44, 50, 51 op motion to fix a day for trial to proceed............................................................ 19 on right of Managers to close debate on interlocutory questions..................... 50 on authority of Chief Justice to decide questions of evidence....................123, 124, 125 on order in regard to rule limiting argument........................................301, 358 on right of Counsel to renew examination of a witness recalled by court.........351, 352, 353 on admissibilityof President's conversations with Adjt. Gen. Thomas, Feb. 21, 1868..............138, 141 of Adjt. Gen. Thomas's declarations to clerks of War Department................. 146 of President's letter to Gen. Grant, unaccompanied with inclosures.................... 166 of appointment of Edmund Cooper to be Assistant Secretary of the Treasury.....177, 178 of President's declarations to Adjt. Gen. Thomas, Feb. 21............. 284, 285 of President's declarations to Adjt. Gen. Thomas, prior to March 9....................... 288 of question, Whether Gen. Sherman gave President an opinion, &c...........334, 338, 339; of President's message to Senate, Feb. 24...............1...............................31, 363, 364'final, on the case.............................................................. 786, 805, 827 Blodgett, Foster-see Witnesses. Boutwell, George S., of Massachusetts, a Managerargument byon application of Counsel for thirty days to prepare for trial............................... 60 INDEX. vii Boutwell, George S., of Massachusetts, a Manager-Continued. argument byon authority of Chief Justice to decide questions of evidence..................1.........124, 126 on admissibilityof telegrams relating to the reconstruction of Alabama...................................... 185 of extracts from records of Navy Department............................................... 380 final, on the case................................................................ 570, 581 remarks on the case of the removal of Timothy Pickering................... 245 on motion relating to the number of speakers on final argument............................... 331 Bonds, seven-thirty, table showing purchases of, from Jan. 3 to April 4, 1868.............. 430 Brief of authorities upon the law of impeachable crimes and misdemeanors-[By Hon. William Lawrence, M. C., of Ohio]...................................57, 82, 712; Appx. 47 Buckalew, Charles R., a Senator from Pennsylvaniaorder bythat the conclusion of the oral argument be by one Manager, as provided in Rule XXI: offered and agreed to, 520. prescribing form of final question: offered, 848. that the views of Chief Justice on the form Qf putting final question be entered on the Journal: offered and agreed to, 849. remarks by....................... 301, 502, 513, 514, 515, 520, 848, 849, 851, 855, 856, 861 remarks on the competency of the President pro tempore to take the oath............ Appx. 22, 23 opinion on the case..............................1055 Burleigh, Walter A.-see Witnesses. Butler, Benjamin F., of Massachusetts, a Manager — argument byon motion to fix a day for trial to proceed............................................... 14 on application of Counsel for thirty days to prepare for trial............................... 53 for time to prepare proofs....................................................... 251 opening, on the case............................ 57 on authority of Chief Justice to decide questions of evidence............ 120, 123, 125 on right of Counsel to renew examination of a witness recalled by court.................. on admissibilityof President's conversations with Adjt. Gen. Thomas, Feb. 21, 1868..................... 128, 131, 133, 141, 142 of Adjt. Gen. Thomas's declarations to clerks of War Department.................... 145, 146 of appointment of Edmund Cooper to be Assistant Secretary of the Treasury.......... 174, 175, 176, 178, 179 of telegrams relating to the reconstruction of Alabama....................182, 183, 184, 186 of Chronicle's report of President's speech in reply to Hon. Reverdy Johnson....... 193, 195, 200, 203 of Leader's report of President's speech at Cleveland............................ 216, 217, 218 of President's declarations to Adjt. Gen. Thomas, Feb. 21.....................281, 282, 283 of President's declarations to Adjt. Gen. Thomas, prior to March 9, as to use of force, 288 of conversations between President and Gen. Sherman, Jan. 14, 311, 313, 315, 316, 317,320 of question respecting Department of the Atlantic.............................................. 322 of tender of War Office to Gen. Sherman...................................322, 323, 324 of President's purpose to get the question before the courts................................. 326 of question, Whether Gen. Sherman formed and gave President an opinion, &c...335; 337 of affidavit and warrant of arrest of Lorenzo Thomas........................341, 342, 343, 344 of President's message to Senate, Feb. 24 0..............................360 361, 363, 364 of extracts from records of Navy Department..................... 76, 377, 378, 379, 380, 381 of employment of counsel by President to get up a test case.................4...07, 409, 411 of President's declarations to Mr. Perrin, Feb. 21......................................425, 426 to Secretary W elles....................................................................................... 460 of advice to President by his Cabinet touching the constitutionality of the tenure-ofoffice act.....................................................................................466, 467, 468 of advice to President by his Cabinet touching construction of tenure-of-office act... 480 of Cabinet consultations in regard to obtaining a judicial decision, &c...........482, 483 of record of United States District Court of Georgia in Mr. Blodgett's case, 498, 499, 500 remarks on application of Counsel for adjournment............................................ 427 on the Alta Vela letter...................................696, 699, 700, 709. 710, 711 C. Cameron, Simon, a Senator from Pennsylvaniaorder bythat all the Managers and Counsel be permitted to file arguments by eleven o'clock to-morrow: offered and rejected, 520. viii INDEX. Cameron, Simon, a Senator from Pennsylvania-Continued. order bythat the Senate hereafter hold night sessions from eight until eleven p. m.: offered, 711; tabled, 728. remarks by.......126, 163, 180, 181, 247, 248, 432, 500, 520, 700, 711, 842, 843, 844, 850, 854 questions by....................................... 181 Cattell, Alexander G., a Senator from New Jerseyopinion on the case.............................................................................1082 Chandler, William E.-see Witnesses. Chandler, Zachariah, a Senator from Michiganremarks by................................................................................................. 465, 851 Chew, Robert S.-see Witnesses. Chief Justice, oath administered to........................................................ 8; Appx. 5 casting vote given by............................................................................. 126 resolution denying authority of, to vote on any question duringthe trial-[By Mr. Sumner. ] offered, 126, 127; rejected, 127; (yeas 22, nays 26.) order denying privilege of, to rule questions of law-[By Mr. Drake.] offered and rejected, 127; (yeas 20, nays 30.) order denying authority of, to give casting vote-[By Mr. Sumner.] offered and rejected, 128; (yeas 21, nays 27.) order that the ruling of the, upon all questions of evidence shall stand as the judgment of the Senate unless a formal vote be asked, &c.-[By Mr. Henderson.] offered, 126; agreed to, 127; (yeas 31, nays 19.) argument on authority of, to vote-[By Mr. Sumner].......................................Appx. 87 views of, on form of putting final question............................................................ 849 Clarke, D. W. C.-see W~itnesses. Clephane, James O.-see Witnesses. Cole, Cornelius, a Senator from California — remarks by................................................................................................... 340, 848 Competency-see Evidence. Conkling, Roscoe, a Senator from New Yorkorders bythat Rule XXIII be amended by inserting "' subject to thpe operation of Rule VII:" offered, 9; agreed to, 10. that, unless otherwise ordered, trial proceed immediately after replication filed: offered, 19; agreed to, 20; (yeas 40, nays 10.) that Senate commence the trial 30th of Marchinstant: agreed to, 56; (yeas 28, nays 24.) prescribing form of final question: offered. 848. thatSenatewill now proceed to vote on remainingarticles: rejected, 857; (yeas 26, nays 28. ) remarks by...................9, 14, 19, 20, 55, 122, 142, 144, 160, 167, 180, 187, 202, 240, 247, 301, 302, 328, 332, 337, 349, 359, 379, 380, 465, 466, 493, 516, 580, 643, 654, 708, 719, 727, 738, 842, 843, 844, 845, 846, 847, 848, 854, 855, 857, 858 questions by....................................................................................................... 337 Conness, John, a Senator from Californiaorders bythat hereafter Senate meet at eleven a. m.: offered, 432; adopted, 443; (yeas 29, nays 14.) that Rule XXI be amended to allow as many of Managers and Counsel to speak on final argument as choose, four days to each side to be allowed, and Managers to open and close: offered 358; rejected 359; (yeas 19, nays 27.) that two of Managers be permitted to file printed or written arguments before tomorrow noon: amendment offered, 517. that such of Managers and Counsel as choose have leave to file arguments before April 24: offeied, 515; disagreed to, 515; (yeas 24, nays 25.) prescribing form of final question: offered, 848. remarks by........22, 110, 126, 142, 167, 181, 187, 200, 218, 245, 247, 340, 345, 347, 348, 856, 358, 400, 417, 427, 432, 433, 460, 464, 483, 487, 493, 501, 514, 515, 516, 517, 519. 570, 803, 804, 842, 843, 844, 845, 847, 848, 850, 851, 852, 854, 857, 858, 859, 861 questions by................................................................................ 501 remarks on the competency of the President pro tempore to take the oath..........Appx. 10, 30 Conversations-see Evidence; Witnesses. Corbett, Henry W., a Senator from Oregonorder bythat two of Counsel have the privilege of filing a written, or making an oral address, &c.: amendment offered, 516; withdrawn, 517. remarks by.............. i.............................................................. 516, 51 7, 520 INDEX. ix Counsel for respondent........................................................................................10, 21 Cox, Walter S.-see Witnesses. Cragin, Aaron H., a Senator from New Hampshireremarks by................................................................................................. 464 Creecy, Charles E. —see Witnesses. Curtis, Benjamin R., of Massachusetts, Counselmotion byfor an allowance of three days to prepare proofs.................................................... 245 granted........................................................................................... 248 argument byon application for forty days to prepare answer..................................................... 11 for time to prepare proofs........................................................................245, 246 opening, for the defense.........................................................................251, 261, 266 on admissibilityof President's conversations with Adjt. Gen. Thomas, Feb. 21, 1868...............135, 136 of President's letter to Gen. Grant, unaccompanied with inclosures..................... 166 of telegrams relating to the reconstruction of Alabama...................... 183, 184, 186 of President's message to Senate, Feb. 24.............................................. 360 of extracts from records of Navy Department............................ 377, 378, 379, 380, 381 of employment of counsel by President to get up a test case.................. 410, 411 of President's declarations to Secretary Welles.............................................461, 462 of advice to the President by his Cabinet touching the constitutionality of the tenureof-office act.................................................................. 467, 468, 470, 476, 478 D. Davis, Garrett, a Senator from Kentuckyorder bythat a court of impeachment cannot be legally formed while Senators from certain States are excluded: offered, 22; lost, 22; (yeas 2, nays 49.) remarks by....................................... 21, 325;, 340, 347, 353, 354, 687, 710, 842. 851, 853 remarks on the competency of the President pro tempore to take the oath........... Appx. 7, 9 opinion on the case........................................................................908 Dear, Joseph A. —see Witnesses. Declarations-see Evidence; Witnesses. Dixon James, a Senator from Connecticutremarks on the competency of the President pro tempore to take the oath......... Appx. 25, 26, 27, 28, 29, 30, 31 Documents-see Evidence. Doolittle, James R., a Senator from Wisconsinorder bythat on final argument Managers and Counsel shall alternate, two and two, the Managers to open and close: offered and indefinitely postponed, 359; (yeas- 34, nays 15.) remarks by...................................................................................157, 186, 325, 327, 359, 416, 432, 513, 514, 518, 854, 857, 858 opinion on the case.................................................................................1075 Drake, Charles D., a Senator from Missouriorders bythat respondent file answer on or before 20th March: agreed to, 21; (yeas 28, nays 20;) reconsidered, 21; (yeas 27, nays 23.) that Chief Justice presiding has no privilege of ruling questions of law on the trial, but all such questions should be. submitted to the Senate alone: offered and rejected, 127; (yeas 20, nays 30.) that votes upon incidental questions shall be without a division, unless requested by one fifth of members present or presiding officer: (amendment to Rule VII,) offered, 151; agreed to, 187. that any Senator shall have permission to file.his written opinion at the time of giving his vote: offered and rejected, 847; (yeas 12, nays 38.) that the fifteen minutes allowed by Rule XXIII, shall be for the whole deliberation on the final question, and not to the final question on each article: offered, 846; adopted, 848. remarks by...............................20, 21, 53, 119, 120, 122, 127, 142, 143, 157, 167, 173, 187, 189, 200, 218, 225, 327, 286, 321, 324, 328, 333, 340, 347, 348, 354, 357, 358, 359, 365, 434, 469, 479, 481, 570, 643, 844, 846, 847, 851, 852, 854, 857, 861 INDEX. Drake, Charles D., a Senator from Missouri-Continued. remarks on the competency of the Presidentpro tempore to take the oath...............ppx. 20, 26,. 27, 29 E. Edmunds, George F., a Senator from Vermontorders bythat answer be filed April 1, replication three days thereafter, and the matter stand for trial April 6, 1868: offered, 14. that when doors shall be closed for deliberation upon final question, the official reporters shall take down the debates to be reported in the proceedings: offered, 611; not indefinitely postponed, 644; (yeas 20, nays 27;) read, 664; tabled, 845; (yeas 28, nays 20.) that the standing order of the Senate that it will proceed at twelve o'clock noon to-morrow to vote on the articles be rescinded-[May 11, 1868:] offered, 850; agreed to, 851. remarks by............. 14, 55, 56, 143, 144, remarks by...............................................................14, 552 56, 1437 1441 157, 225, 226, 301, 348, 357, 360, 380, 406, 407, 469, 514, 519, 520, 521, 610, 643, 664, 700, 815, 843, 845, 846, 849, 850, 851, 852, 853, 856, 858 questions by................. 380, 407 opinion on the case........:....................................................877 Emory, William H.-see Witnesses. Evarts, William M., of New York, Counselorder bythat after replication filed, Counsel be allowed such reasonable time as shall now be fixed to prepare for trial: offered, 54. motion byfor an adjournment in consequence of illness of Mr. Stanbery..................... 357 argument byon application for thirty days to prepare for trial........................44, 46 on authority of Chief Justice to decide questions of evidence............................. 126 on motion to remove limit as to number of speakers on final argument. 332 on right of counsel to renew examination of a witness recalled by court.......350, 351, 353 on admissibilityof President's conversations with Adjt. Gen. Thomas, Feb. 21, 1868.......... 141 of Adjt. Gen. Thomas's declarations to clerks of War Department... 145 of President's letter to Gen. Grant, unaccompanied with inclosures................ 66, 167 of appointment of Edmund Cooper to be Assistant Secretary of the Treasury...174, 178 of telegrams relating to the reconstruction of Alabama.............:....................... 182, 183, 184, 186 of Chronicle's report of President's speech in reply to Hon. Reverdy Johnson..... 193, 194, 195, 200 of Leader's report of President's speech at Cleveland.......................2i6, 217, 218 of. President's declarations to Adjt. Gen. Thomas, Feb. 21............................... 234 prior to March 9..............88 of President's conversations with Gen. Sherman, Jan. 14'................ 31.......3.4, 317 of tender of War Office to Gen. Sherman..3................................ 822 of question, Whether Gen. Sherman gave President an opinion, &c....................... 335, 337, 393 of affidavit and warrant of arrest of Lorenzo Thomas................................... 42, 344 of President's message to Senate, Feb. 24............... 360, 361, 363, 364 of extracts from records of Navy Department.............................................380, 381 of employment of counsel by President to get up a test case............ 407, 411 of President's declarations to Mr. Perrin....................................425, 426, 427 to Secretary Welles.......................................................................461, 463, 465 of advice to President by his Cabinet touching the constitutionality of the tenureof-office act.......................................................................................466 468 touching the construction of the tenure-of-office act.......479, 480 of Cabinet consultations in regard to obtaining a judicial decision, &c.................. 482 of record of United States district court of Georgia in Mr. Blodgett's case............. 497, 498, 499 final, on the case........................................................................... 700, 711, 728, 748 remarks announcing illness of Mr. Stanbery............................................. 357 on order in regard to rule limiting arguments....................................................... 358 on application for adjournment..................................................427, 432 INDEX. xil Evidence, question, Whether objections to, should be decided by Chief Justice, or in first instance be submitted to the Senate-[By Mr. Drake]................................. 119 discussed byMan'r Butler.................................................2..........................120, 123, 125 Man'r Bingham...................................................................... 123, 124, 125 Man'r Boutwell............. 124, 126 Mr. Evarts......................................12...............6 presiding officer may rule all questions of, which ruling shall stand as the judgment of the Senate, unless a vote be asked, &c.; or he may, in first instance, submit such questions to the Senate, 127; (yeas 31, nays 19.) admissibility ofdeclarations of Adjt. Gen. Thomas, Feb. 21, as to the means by which he intended to obtain possession of the War Department: (objected to by Mr. Stanbery)..119, 128 discussed byMan'r Butler.........................................................1282 131, 133, 141, 142 Mr. Stanbery........................................................129, 131, 133, 141 Mr. Curtis............................................................... 15, 136 Man'r Bingham.................................1................ I.................... 138, 141 Mr. Evarts.141 Mr. Evarts,.......................................................................................... 141 admitted, 143; (yeas 39, nays 11.) declarations of Adjt. Gen. Thomas to clerks of War Department, antecedent to his appointment as Secretary of War ad interim, as to his intention when he came in command: (objected to by Mr. -Evarts)............................................... 144 discussed byMr. Evar ts............................................. 145 Man'r Butler....................................................................................... 145, 146 Man'r Bingham....................146................................................146 admitted 146; (yeas 28, nays 22.) letter of President to Gen. Grant, Feb. 10, 1868, unaccompanied by other letters referred to therein: (objected to by Mr. Stanbery)................... 165 discussed byMr. Stanbery.............................................................165, 160 Man' r Wilson.........1 65.................................................................165, 167 Mr. Evarts..........................................................................................166, 167 Man'r Bingham.................................................................................... 166 Mr. Curtis................................................................................................ 166 objection not sustained; 168, (yeas 20, nays 29.) appointment of Edmund Cooper, Private Secretary of President, as Assistant Secretary of the Treasury: (objected to by Mr. Stcanbery and Mr. Evarts)....................... 174 discussed byMr. Evarts..................................................,....1 178 Man'r Butler........................................1 5..........154,175, 176, 178, 179 Mr. Stanbery.........................................................................................176, 178 Man'r Bingham..............177, 178 not received, 181; (yeas 22, nays 27.) telegrams between President and Lewis E. Parsons, Jan. 17, 1867, in relation to constitutional amendment and reconstruction of Alabama: (objected to by Mr. Stanbery), 183 discussed byMan'r, Butler........................................................183, 184, 186 Mr. Evarts.........................................................182, 183, 184, 186 Mr. Stanbery......................................................................... 183, 186 Mr. Curtis................................................................ 183, 184, 186 Man'r Boutwell......................................................................................... 185 admitted, 186; (yeas 27, nays 17.) Chronicle report of President's speech, Aug. 18, 1866, in reply to Hon. Reverdy Johnson: (objected to by Mr. Evarts)............................................................ 19 discussed byMr. Evarts...........................................................................193, 194, 195, 200 Man'r Butler...........................................................................193 195, 200, 203 withdrawn................................................................................................... 203 Leader's report of President's speech at Cleveland, Sept. 3, 1866. (objected to by Mr. -Evarts)................................................................... 216 discussed byMr. Evarts....................................................................................216, 2177 218 Man'r Butler.................................................................... 216 217, 218 Man'r Butler.216, 218, 17, 218 admitted, 218; (yeas 35, nays 11.) xii INDEX. Evidence-Continued. admissibility ofdeclarations of President to Adjt. Gen. Thomas, Feb. 21, 1868, after order for removal of Mr. Stanton, to show an absence of purpose to use force: (objected to by.Man'r Butler).................................................................................. 281 discussed by — Man'r Butler............................................................281, 282, 283 Mr. Stanbery................................................................................. 282 Mr. Evarts..................28.....................................4................... Man'r Bingham................................................................. 284, 285 admitted, 286; (yeas 42, nays 10.) declarations of President to Adjt. Gen. Thomas prior to 9th of March, in respect to use of force to get possession of the War Office: (objected to by Man'r Butler)... 288 discussed byMan'r Butler...................288..................................... Mr. Evarts........................................................................... 288 Man'r Bingham.8.........................................................8.............. 288 admitted.8......................................288 conversations between the President and Lieut. Gen-. Sherman, Jan. 14, 1868, in regard to removal of Mr. Stanton: (objected to by Man'r Butler)................. 308 discussed byMr. Stanbery.......................................................... 309, 311, 313, 315, 316 Man'r Butler.......................................................... 311, 313, 315, 316, 317, 320 Mr. Evarts.......................................................................... 314, 317 Man'r Wilson.......................................................................................319, 320 not admitted, 321; (yeas 23, nays 28.) question in regard to the creation of the departmenit of the Atlantic: (objected to by MaLan'r Butler)........................................................................................ 322 discussed byMan'r Butler............................................................................. 322 Mr. Sfanbery............................................................................................. 322 not admitted...................................................................... 322 tender to Gen. Sherman of appointment as Secretary of War ad interim: (objected to by iJanm'r Butler)...................................................... 322 discussed byMan'r Butler................................................................................ 322, 323 Mr. Evarts.............................................................................................. 322 Mr. Stanbery......................................................................................322, 323 admitted...................................................................................................... 323 question, Whether at the first offer of the War Office to Gen. Sherman anything further passed in reference to the tender or acceptance of it: (objected to by ]Man'r Butler).............................................................. 324 discussed byMan'r Butler................................................................................. 324 Mr. Stanbery......................................................................... 324 not admitted, 324; (yeas 23, nays 29.) President's declaration of purpose of getting Mr. Stanton's right to office before the courts: (objected to by I, an'r Butler)..............................................25, 326 discussed byMan'r Butler........................................................................................... 326 Mr. Stanbery............................................................. 326 not admitted, 325; (yeas 7, nays 44.) President's declaration of purpose in tendering Gen. Sherman the appointment of Secretary of War ad interim: (objected to by Maan'r Bingham)....................... 327 not admitted, 327; (yeas 25, nays 27.) President's declarations to Gen. Sherman in reference to the use of threats or force to get possession of the War Office: (objected to by Man'r Butler)................... 327 not admitted.......: 327 question, Whether Gen. Sherman gave President an opinion as to advisability of a change in the War Department: (objected to by Man'r Butler)........................ 333 discussed byMan'r Bingham.................................................. 334, 338, 339 Mr. Stanbery..................................................................................334, 334, 337 Ian'r Butler................................................................ 335, 337 Mr. Evarts................................................................................ 335, 337, 339 not admitted, 340; (yeas 15, nays 35.) INDEX. xiii Evidence- Continued. admissibility ofadvice'to President to appoint some person in place of Mr. Stanton: (objected to by Man'r Butler.)........................................................................................) 340 not admitted, 340, 355; (yeas 18, nays 32.) affidavit of Edwin M. Stanton and warrant of arrest of Lorenzo Thomas: (objected to by Man'r Butler)................................................................................ 341 discussed byMan'r Butler......................................................341, 342, 343, 344 Mr. Evarts.........................................................................342, 344 Mr. Stanbery..................................................................... 343, 344 admitted, 345; (yeas 44, nays 17.) question, Whether President stated to Gen. Sherman his purpose in tendering him the office of Secretary of War ad interim: (objected to by Man'r Bingham)........ 347 admitted, 347; (yeas 26, nays 22.) President's declaration of purpose in tendering Gen. Sherman the office of Secretary of War dd interim: (objected to by Mian'r Bingham)....................... 347 admitted, 349; (yeas 26, nays 25.) message of President to Senate, Feb. 24, 1868, in response to Senate resolution of Feb. 21, 1868: (objected to by Man'r Butler)................................................ 360 discussed byMan'r Butler.......................................................................... 360, 361, 363, 364 M r. Curtis................................................................................................... 360 Mr. Evarts...............3...................................................360, 361, 363, 364 Man'r Binigham..............................................................361, 363, 364 not admitted......................................................................................... 65 extracts from records of Navy Department, exhibiting practice in respect to removals: (objected to by Man'r Butler)...................................................... 376 discussed by. Man'r Butler.................................................. 376, 377, 378, 379, 280, 381 Mr. Curtis...................................................................377, 378,.379, 380, 381 Mr. Evarts......................3..............................................380, 381 Man'r Boutwell............................................................................... 380 admitted, 382; (yeas 36,_ nays 15..) employment of counsel by President to raise the question of Mr. Stanton's right to hold the office of Secretary of War against the authority of President: (objected to by Man'r Butler)........................................................ 406 discussed byMan'r Butler............................................................... 407, 409, 411 Mr. Evarts...........................................................................................407, 411 Mr. Curtis...........................................................................................410, 411 Man'r Wilson..................................................................... 410 admitted, 412; (yeas 29, nays 21.) acts toward getting out a habeas corpus in the case of Lorenzo Thomas: (objected to by Man'r Butler.)................................................................................ 414 admitted, 415; (yeas 27, nays 23.) acts, after failure to obtain a habeas corpus in pursuance of President's instructions, to test the right of Mr. Stanton to continue in office: (objected to by Man'r Butler)..................................................................................................... 415 admitted, 417; (yeas 27, nays 23.) declarations of the President to Mr. Perrin, Feb. 21, 1868, in reference to the removal of Mr'. Stanton, and the nomination of a successor: (objected to by Man'r Butler)........................................................................................... 425 discussed byMan'r Butler..........................................................425, 426 Mr. Evarts.4....2...................................................425, 426, 427 MIan'r Wilson.......................................... 426 not admitted, 427; (yeas 9, nays 37.) President's declarations to Secretary Welles, Feb. 21, in relation to the removal of Mr. Stanton: (objected to by Man'r Butler)................................................... 460 discussed byMan'r Butler................................................................................. 460 Mr. Evarts....................................................................................461, 463, 465 Mr. Curtis....................................... 461, 462 Mr. Curtisitted, 465; (yeas 26, nays 23...............).............................................461 462 admitted, 465; (yeas 26, nays 23.) xiv INDEX. Evidence-Continued. admissibility ofadvice to President by his Cabinet touching the constitutionality of the tenure-of-office act: (objected to by' Man'r Butler)........................................................... 466 discussed byMan'r Butler..................................................................................466, 467, 468 Mr. Evarts........................................................i..................................466, 468 Mr. Curtis......................................................................467, 468, 470, 476, 478 Man'r Wilson........................................................................ 470 not admitted, 479; (yeas 20, nays 29.) advice to President by his Cabinet in regard to the construction of the tenure-of-office act, and in regard to its application to the Secretaries appointed by President Lincoln: (objected to by Man'r Butler)......................................................... 479 discussed byMr. Evarts...................................................................................,... 479, 480 Man'r Butler........................................................................... 480 not admitted, 481; (yeas 22, nays 26.) Cabinet consultations in regard to obtaining a judicial decision on the constitutionality of the tenure-of-office act: (objected to by MIan'r Buatler)................................. 482 discussed byMan'r Butler.....................................................................................482, 483 Mr. Evarts................................................................ 482 not admitted; (yeas 19, nays 30,)................................,..... 483 question, Whether any suggestions were made in Cabinet looking to the vacation of any office by force: (objected to by Man'r Butler)........................................... 484 not admitted; (yeas 18, nays 26,).................................................................. 484 opinions given to President by Cabinet on question, Whether the Secretaries appointed by President Lincoln were within the provisions of the tenure-of-office act: (objected to by Man'r Bingham)................................................................ 493 not admitted; (yeas 20, nays 26,)............................................................ 493 record of the district court of the Unite.d States for the southern district of Georgia in the case of Foster Blodgett: (objectedto by Mr. Evarts)............................. 497 discussed by Mr. Evarts..................4..............................................................497, 498, 499 Man'r Butler................................................................................498, 499, 500 not admitted................................................................................................ 500 nominations of Lieut. Gen. Sherman, Feb. 13, 1868, -and of Maj. Gen. Geo. H. Thomas, Feb. 21, 1861, to be Generals by brevet: (objected to by Mr. Evarts)... 511 not admitted; (yeas 14, nays 35)........................................4............................ 511 Evidence, documentary, for the prosecutioncopy of oath of Andrew Johnson, President of the United States, April 15, 1865, with accompanying certificates.................................................... 102 copy of President Lincoln's message to Senate, Jan. 13, 1862, nominating Edwin M.. Stanton to be Secretary of War..................................................................... 102 copy of Senate resolution in executive session, Jan. 15, 1862, consenting to appointment of Edwin M. Stanton to be Secretary of War........................................................ 102 copy of President's message to Senate, Dec. 12, 1867, announcing suspension of Edwin M. Stanton from the office of Secretary of War, and designation of Gen. Grant as Secretary of War ad interim.........................................i................................... 102 copy of Senate resolution, Jan. 13, 1868, in response to message of President announcing suspension of Edwin M. Stanton, and non-concurring in such suspension............ 107 copy of Senate order, Jan. 13. 1868, directing Secretary to communicate copy of nonconcurring resolution to President, to Edwin M. Stanton, and to U. S. Grant, Secre tary of War ad interim..........0............................................................. 107 copy of President's message to Senate, Feb. 21, 1868, announcing removal of Edwin M. Stanton from office, and designation of the Adjutant General of the Army as Secretary of War ad interim....................................................................................... 107 copy of President's order, Feb. 21, 1868, removing Edwin M. Stanton from the office of Secretary of War 107 copy of President's letter of authority to Lorenzo Thomas, Feb. 21, 1868, to act as Secretary of War ad interim, and directing him immediately to enter upon the duties of that office..................,.......................................................................... 107' )py of Senate resolution, Feb. 21, 1868, that President has no power to remove the Secretary of War and to designate any ot1her officer to perform duties of that office ad interim................................................................................................. 108 INDEX. xv Evidence, documentary, for the prosecution-Continued. copy of Senate order, Feb. 21, 1868, directing.Secretary to communicate copies of foregoing resolution to President, to Secretary of War, and to Adjutant General of the Army...... 108 copy of President Lincoln's commission to Edwin M. Stanton as Secretary of War, Jan. 15, 1862.......................................................................................... 108 commission of Edmund Cooper as Assistant Secretary of Treasury, Nov. 20, 1867...... 112 letter of authority to Edmund Cooper, Dec. 2, 1867, to act as Assistant Secretary of the Treasury............................................................................ 112 copy of General Orders No. 15, Mar. 12, 1868, requiring all orders relating to military operations issued by President or Secretary of War to be issued through the General of the Army................................................................................................... 161 copy of Bvt. Maj. Gen. W. H. Emory's commission, July 17, 1866........................... 162 Special Orders No. 426, Aug. 27, 1867, assigning Gen. Emory to command of Department of Washington............................................................................................. 163 order of President, Feb. 13, 1868, that Bvt. Maj. Gen. Thomas resume his duties as Adjutant General.................................................................................................. 163 letter of Gen. Grant, Jan. 24, 1868, requesting to have in writing order given him verbally by President to disregard orders of E. M. Stanton as Secretary of War, &c... 163 President's instructions to Gen. Grant, Jan. 29, 1868, not to obey orders from War Department) unless, &c................................................................................ 163 letter of President to Gen. Grant, Feb. 10, 1868, in regard to his having vacated the office of Secretary of War ad interim.............................................................. 164 copy of President's letter of authority to Lorenzo Thomas to act as Secretary of War ad interim............................................................................................~......... 168 copies of order removing Edwin M. Stanton, and letter of authority to Gen. Thomas with indorsements thereon, forwarded by President to Secretary of the Treasury for his information.......................................................168, 169 copy of General Orders No. 17, March 14, 1867, requiring all orders relating to military operations to be issued through the General of the Army........................... 169 copy of order of General of the Army, to Gen. Thomas, to resume duties as Adjutant General......................................................................................................... 173 message of President communicating report of Secretary of State, showing proceedings under concurrent resolution of the two Houses requesting President to submit to Legislatures-of States an additional article to the Constitution.............................. 188 report of President's speech Aug. 18, 1866, in reply to Hon. Reverdy Johnson, as sworn to by Francis H. Smith............................................... 201 report of President's speech Aug. 18, 1866, revised by William G. Moore, his Secretary.. 203 at Cleveland, Sept. 3, 1866, in Cleveland Leader................................................ 218 at Cleveland, Sept. 3, 1866, by D. C. McEwen.............................. 220 at Cleveland, Sept. 3, 1866, in Cleveland Herald.'................... 223 at St. Louis, Sept. 8, 1866, in Missouri Democrat.............................. 228 at St. Louis, Sept. 8, 1866, in St. Louis Times..................................... 233 forms of various'commissions as -issued by President before and after the passage of civil-tenure act....................236 list of removals of heads of Departments at any time by President during the session of Senate................................................................................................. 239 list of appointments of heads of Departments at an y President without advice and consent of Senate and while Senate was in session...................................... 239 correspondence between President John Adams and Timothy Pickering, May 1800, relating to removal of Mr. Pickering from the office of Secretary of State. 242 copy of President John Adams's message, May 12, 1800, nominating John Marshall to be Secretary of State in place of Timothy Pickering, removed, and action of the Senate thereon................2..........4........................................ 244 letter from President, Aug. 14, 1867, notifying Secretary of the Treasury, " in compliance with requirements" of tenure-of-office act, of suspension of Edwin M. Stanton....... 243 letter of Secretary of the Treasury notifying heads of bureaus, in compliance with requirements of tenure-of-office act, of the suspension of Edwin M. Stanton............ 244 executive messages of President communicating information of suspension of several officers........................................................................................................... 246 communication from Secretary of State, Dec. 19, 1867, reporting to President, in compliance with provisions of tenure-of-office act, the suspension of the consul at Brunai, Borneo..................................................................................................... 246 copy of letter from Adjt. Gen. Thomas to President, Feb. 21, 1868, reporting delivery of President's communication to Edwin M. Stanton removing him from office, and accepting the appointment of Secretary of War ad interim................................. 251 xvi INDEX. Evidence, documentary, for the defenseaffidavit of Edwin M. Stanton, and warrant of arrest of Lorenzo Thomas, Feb. 22, 1868.. 341 docket of entries as to disposition of case of United States vs. Lorenzo Thomas........ 356 President's nomination of Thomas Ewing, sen., to be Secretary of War, Feb. 22, 1868...' 360 copy of Senate proceedings, May 13, 1800, on the nomination of John Marshall to be Secretary of State, in place of Timothy Pickering, removed..37.................. 3... 373 copy of President Tyler's order, Feb. 29, 1844, appointing John Nelson, Attorney General, to discharge the duties of Secretary of State ad interim................................... 374 copy of Senate resolution, March 6, 1844, confirming nomination of John C. Calhoun as Secretary of State, vice A. P. Upshur.............................................................. 374 copy of President Fillmore's order, July 23, 1850, designating Winfield Scott to act as Secretary of War ad interim............................................................................... 375 copy of Senate resolution, Aug. 15, 1850, confirming nomination of Charles M. Conrad as Secretary of W ar............................................................................ 375 copy of President Buchanan's order, Jan. 10, 1861, appointing Moses Kelley to be Acting Secretary of the Interior........................................................................ 375 copy of President Lincoln's commission, March 5, 1861, to Caleb B. Smith as Secretary of the Interior........................................................... 375 copy of letters of Acting Secretary of the Treasury, Aug. 17, 1842, relating to removal of the collector and appraiser in Philadelphia....................................................... 376 extracts from records of Navy Department exhibiting practice in respect to removals, 376, 382 list of civil officers of Navy Department, appointed for four years under act of May 15, 1829, and removable at pleasure, who were removed, their terms of office not having expired...................................................................................... 384 copies of documents from State Department, showing practice of Government in removal of officers during the session of Senate, during recess, and covering all cases of vacancy........................................................... 385, 401 copies of documents from Post Office Department, showing removals of postmasters during session of the Senate and ad interim appointments...................................... 391 message of President Buchanan, Jan. 15, 1861, in answer to Senate resolution respecting vacancy in the office of Secretary of War..............3........................................ 392 list of persons who discharged duties of Cabinet officers, whether by appointment made in recess and those confirmed by Senate, as well as those acting ad interim or simply acting...3 "I................................................. 394 statement of beginning and ending of each legislative session of Congress from 1789 to 1868............................................................................................................ 405 copy of President Adams's commission to George Washington, July 4, 1798, constituting him Lieutenant General of the Army.................. 446 tables from Department of the Interior, showing removals of officers, date, name, office, and whether removal was during recess or during session of the Senate................... 446 list of consular officers appointed during session of the Senate where vacancies existed when appointments were made.......................................................................... 457 form of Navy agents' commission......................................................................... 486 official action of the Post Office Department in removal of Foster Blodgett................ 489 Evidence, documentary, for the prosecution, in rebuttalJournal of First Congress, 1774-75, exhibiting report of committee to draft a commission to Gen. George Washington..................... 495 letter of James Guthrie, Secretary of the Treasury, Aug. 23, 1855, as to practice of Government in appointing officers during recess to fill vacancies existing before adjournment, 495 copy of indictment in case of Foster Blodgett in district court of the United States for southern district of Georgia....................................................... 496 list of the various officers in United States affected by the President's claim of right to remove at pleasure and appoint ad interim, their salaries, &c.................... 50t Ewing, Thomas, sen., nomination of, to be Secretary of War...............360, 373, 374 F. Ferry, Orris S., a Senator from Connecticutorders bythat the hour of meeting be at eleven a. m., and that there be a recess of thirty minutes each day at two p. m.: offered and rejected, 359; (yeas 24, nays 26.) that tabular statements presented by Man'r Butler be omitted from published proceedings: offered, 433; adopted, 434. remarks by...................................................... 127, 226, 359, 433, 484, 493, 515, 859 questions by................................................................................................. 410 opiquestion on the case.................................................. 933410 opinion on the case.933 INDEX. xvii Ferry, Thomas W.-see Witnesses. Fessenden, William P., a Senator from Maineremarks by.........120, 180, 181, 225, 320, 516, 517, 648, 8421 845, 851, 852, 853 remarks on the competency of the Presidentpro tempore to take the oath.........Appx. 10, 29, 34 questions by....................18................... 181 opinion on the case.......................................9..................................................... 936 Fowler, Joseph S., a Senator from Tennesseeremarks by............................................................................120, 186, 517, 859 Frelinghuysen, Frederick T., a Senator from New Jerseyorder bythat as many of Managers and Counsel as shall choose be permitted to speak on final argument: offered and laid over, 301; discussed, 328. remarks by...............................128, 301, 328, 331, 521, 845 remarks on the competency of the President pro tempore to take the oath............Appx 20, 23 opinion on the case............................................................................................1077 G. Gold, table showing sales of, from Jan. 1 to April 4, 1868......................................... 429 Grimes, James W., a Senator from Iowaorder bythat hereafter the hour of meeting shall be twelve o'clock m. each day, except Sunday: offered, 581; adopted, 610; (yeas 21, nays 13.) remarks by......................... 9, 51, 122, 200, 414, 484, 489, 516, 517, 521, 581, 738, 769, 842 remarks on the cempetency of the President pro tempore to take the oath......Appx. 25, 29, 34 opinion on the case...0....:......................................................................... 870 Groesbeck, William S., of Ohio, Counselargument, final, on the case.................................................................................. 644 H. Harlan, James, a Senator from Iowaopinion on the case................................................................................... 899 Henderson, John B., a Senator from Missouriorders bythat application for thirty days to prepare for trial be postponed until after replication filed: offered, 53; not agreed to, 53; (yeas 25, nays 28.) that presiding officer may rule all questions of evidence, which ruling shall stand as the judgment of the Senate, unless some member shall ask a formal vote, in which case it shall be submitted to the Senate; or he may submit any such question to a vote in the first instance, (amendment to Rule VII:) offered, 126; agreed to, 127; (yeas 31, nays 19.) that, subject to Rule XXI, all the Managers not delivering oral arguments may file written arguments before April 24, and Counsel not making oral arguments may file written arguments before April 27: offered, 517. remarks by......................53, 126, 168, 180, 301, 327, 355, 483, 517, 518, 519, 748, 855, 857 questions by.......................................................................................... 180 355, 483 opinion on the case............................................................................................1065 Hendricks, Thomas A., a Senator from Indianaorder bythat trial proceed with all convenient dispatch: amendment offered and agreed to, 56. prescribing form of final question: offered, 848. remarks by............. 56, 127, 157, 379, 434, 521, 710, 845, 848, 851, 852, 854, 855 remarks on the competency of the President pro tempore to take the oath, Appx. 5, 8, 28, 33, 34 opinion on the case............................................................................................. 014 Hour of meeting, order fixing, at eleven a. m.-[By 2Ir. Conness.] offered, 432; adopted, 433; (yeas 29, nays 14.) order fixing, at twelve o'clock m. each day, except Sunday-[By Mr. Grimes.] offered, 581; adopted, 610; (yeas 21, nays 13.) Howard, Jacob M., a Senator from Michiganorder by-. that no Senator shall speak more than once, nor to exceed fifteen minutes on one question, during final deliberations: offered, 664; rejected, 665; (yeas 19, nays 30.) remarks by.....................................................................8, 9, 20, 22, 44, 50, 51, 53, 110, 123, 128, 160, 180, 186, 217, 218, 232, 245, 247, 302, 325, 333, 345, 380, 413, 417, 465, 469, 478, 493, 511, 516, 664, 665, 519, 521, 710, 766, 826, 844, 852, 861 remarks on the competency of the President pro tempore to take the oath...........Appx. 6, 11, 21, 25, 26, 28, 29, 34 C. I.- 2. '.xviii INDEX. Howard, Jacob M., a Senator from Michigan- Continued. questions by............................................................................... 186, 355, 380 469 opinion on the case....................................................................................1035 Howe, Timothy O., a Senator from Wisconsinremarks by............................ 22, 328, 340, 348, 349, 357, 414, 416, 513, 520, 710, 846 remarks on the competency of the President pro tempore to take the oath.........Appx. 19, 20 opinion on the case................................................................................1019 Hudson, William N.-see Witnesses. I. Impeachable crimes, definition of...................................58, 101, 742; Appx. 47 Impeachment-see Articles. J. Johnson, Andrew, President -of the United Statesarticles of impeachment............................................................................. 3 return of summons................................................................................ called by proclamation............................................................................................. 9 appearance entered and counsel named........................................................10, 21 forty days asked to prepare answer................................................................... 10 answer to articles......................................................................................... 22 oath of office, April 15, 1865............................................................................. 102:suspension of Edwin M. Stanton, Secretary of War, and designation of Gen. Grant Secretary ad interim communicated to Senate Dec. 12, 1867-................................. 102 Senate's non-concurrence in, communicated..................................... 108 removal of Edwin M. Stanton, Secretary of War, and designation of Lorenzo Thomas Secretary ad interim communicated to Senate Feb. 21, 1868.................107, 168, 169 Senate's denial of power to remove and appoint communicated. 108 appointment of Edmund Cooper Assistant Secretary of the Treasury........................... 112 order that Adjt. Gen. Thomas resume his duties..................................................... 163 instructions to Gen. Grant not to obey orders from War Department, unless, &c........... 163 letter to Gen. Grant in regard to his having vacated the office of Secretary ad interim... 164 telegram to Gov. Parsons......................................................................, 181 message communicating report relating to amendment of the Constitution a........... 188 reports of speech Aug. 18, 1866, in reply to H-on. -Reverdy Johnson............ 201, 203 at Cleveland, Sept. 3, 1866........................218, 220, 223 at St. Louis, Sept. 8, 1866................................................................. 228, 233 notification to Secretary of the Treasury, Aug. 14, 1867, of the suspension of Mr. Stanton, 243 conversations with Gen. Emory............................................... 159 with Gen. Wallace.................................................................... 171 with Mr. Wood................................................................................................. 248 with Mr. Blodgett................................................................................. 250 with Adjt. Gen. Thomas...................................................................... 279, 280, 286, 287, 291, 292, 293, 296, 297, 298, 299, 302, 302, 305, 306, 307 with Lieut. Gen. Sherman...................................................308, 347, 348, 349, 354 with Mr. Cox....................................................................................... 406, 412, 415 with Mr. Merrick................................................................. 421, 422 with Mr. Perrin...................................................................................... 424, 425 with Secretary Welles.....................................................458 459, 465, 466, 484 tender of War Office to Lieut. Gen. Sherman................................322, 323, 324, 354 nomination of Mr. Ewing Secretary of War, Feb. 22, 1868.......360, 373, 374, 458, 466, 484 instructions to test Lorenzo Thomas's right to office....... 412, 415, 422 acquittal on Article XI........................................................................ 853 II......................................................................... 860 III.......................................................................................... 861 Johnson, Reverdy, a Senator from Marylandorders bythat trial proceed at the expiration of ten days, unless for causes shown to the contrary: offered, 54, 55. that Senate commence the trial 2d of April: offered, 55. that two of Managers be permitted to file printed arguments, &c.: amendment offered and adopted, 516. remarks by............... 9, 20, 51, 53, 547 55, 102, 106, 110, 111, 120, 141, 143, 160, 161, 168, 179, 183, 200, 210, 218, 242, 244,-245, 247, 248, 302, 325, 331, 340, 346, 347, 348, 349, 350, 351, 354, 355, 356, 358, 360, 377, 378, 379, 380, 381, 384, 392, 400, 401, 417, 422, 423, 426, 440, 446, 456, 462, 466, 469,478, 489, 490, 492, 493, 494, 495, 497, 512, 513, 514, 516, 521, 594, 628, 644, 664, 696, 709, 710, 711, 727, 786, 843, 846, 848, 851, 852, 853, 854, 856, 861 INDEX. xix Johnson, Reverdy, a Senator from Maryland-Continued. remarks on the competency of the President pro tempore to take the oath......... Appx. 6, 10, 12, 27, 28, 34 questions by..............................................................................141, 179, 346, 347, 469 opinion on the case............................. 887 Jones, J. W.-see Witnesses. Judgment of' acquittal entered.................................................................................. 861 K. Karsner, George W.-see Witnesses. Knapp, George-see Witnesses. L. Lawrence, William, a Representative from Ohiobrief of authorities upon the law of impeachable crimes, by............... 57, 82, 712; Appx. 47 Legislative business-see Practice. Logan, John A., of Illinois, a Managerargument byon application of counsel for thirty days to prepare for trial............................. 44 final, on the case...................................................... 522 remarks on the Alta Vela letter............................................................................ 00 M. Managers on part of House................................................................. 9 McCreery, Thomas C., a Senator from Kentuckymotion by................................................................................................. 855 McEwen, Daniel C.-see Witnesses. McDonald, William J.-see Witnesses. Meigs, tR. J.-see Witnesses. Merrick, Richard T. —see Wlitnesses. Moore, William G.-see Witnesses. Moorhead, James K.-see Witnesses. Morrill, Justin S., a Senator from Vermontorder bythat the Senate meet on Monday next for the purpose of deliberation; and that on Tuesday the Senate proceed to vote without debate on the several articles-each Senator to be permitted to file his written opinion within two days after the vote: offered, 847; agreed to, 848. remarks by....................................................................................................847, 848 opinion on the case................ 982 MIorrill, Lot IM., a Senator from Maineorder bythat the Senate proceed on Monday next to take the yeas and nays on the articles without debate; any Senator to have permission to file a written opinion: offered, 847. remarks by...................................................126, 296, 842, 847, 858, 859 remarks on the competency of the President pro tempore to take the oath.........Appx. 8, 29 opinion on the case...................................... 995 Morton, Oliver P., a Senator from Indianaremarks by...................................................................................14, 56, 465, 665, 852 remarks on the competency of the President pro tempore to take the oath......... Appx. 11, 24 N. Nelson, Thomas A. R., of Tennessee, Counselargument byon motion to fix a day for trial to proceed............................................ 16 on motion to fix the number and order of the speakers on final argument............. 358, 518 final, on the case......................................................................................... 594, 611 remarks on the Alta Vela letter............................... 698, 699, 700, 708, 709, 710, 711, 727 0. Oath administered to Chief Justice.........................................8; Appx. 5 to Senators..............................................................................................Appx. 5 34 question, Whether it is competent for the President pro tempore bf the Senate to take the, and become thereby a part of the court-[By H?'. Hendricks].....................Appx. 5 Officers, territorial and executive, list of, with their tenures.......................................... 366 xx INDEX. Opinion: order, that each Senator shall be permitted to file, within two days after the vote shall have been taken, his written, to go on the record-[By Mr. Morrill, of Vermont. I] offered, 847; agreed to, 848. filed byMr. Buckalew................................................................................................. 1055 Mr. Cattell.... 1082 Mr. Cattevis...................................................................................................... 908 Mr. Davis.9.... )08 Mr. Doolittle................................................................................................ 1075 Mr. Edmunds....................................................................................... 877 Mr. Ferry................................................ 933 Mr. Fessenden.......................... 936 Mr. Frelinghuysen.........1077............................... 1077 Mr. Grimes.................................................................................................... 870 Mr. Harlan..................................................................................................... 899 Mr. Henderson............................................................ 1065 Mr. Hendricks........................... 1014 Mr. Howard................................................................................................... 1035 Mr. Howe......................................................................................................1019 Mr. Johnson.887.......................... 887 Mr. Morrill, of Maine.......................... 995 Mr. Morrill, of Vermont................................................................................. 982 Mr. Patterson, of Nev I-ampshire............................. 1049 Mr. Pomeroy................................................................................... 990 Mr. Sherman................................................................................................... 923 Mr. Stewart.................................................................................................... 897 Mr. Sumner.................................................................................................... 958 Mr. Tipton...................10.................................... 1011 Mr. Trumbull................................................................................................ 863 Mr. Van Winkle.............................................................................................. 893 Mr. Vickers.................................................................................................... 954 Mr. Williams................................................................................................... 947 Mr. Wilson............................................. 951 Mr. Yates.....................................................................................1001 P. Patterson, James W., a Senator from New Hampshireopinion on the case.............................................................................................1049 Patterson, David T., a Senator from Tennesseeremarks by............................................................................................... 110 Perrin, Edwin O.-see Witnesses. Pomeroy, Samuel C., a Senator from Kansasremarks by......................8...................................... 301, 515, 764, 856 remarks on the competency of the President pro tempore to take the oath, Appx. 19, 27, 29, 34 opinion on the case........................................................ 990 Practice-see Rules. right of counsel making motion to open and close argument thereon........... 50 it is not in order to call up business transacted in legislative session........................... 202 objections to putting a question to a witness by a member of the court must come from the court itself.........3..................................... 40, 347, 348 but after question is asked, it is competent for Managers to state objections to its being answered..........................................................................................347, 348 it is competent for Senate to recall any witness.................4..........7................ 347, 350 if Managers desire to cross-examine they must cross-examine before dismrissing witness, 355 an application for an order of Senate to furnish a statement from its records can only be addressed to Senate in legislative session.................................. 400 the general rules of the Senate in its legislative session govern the proceedings of the court, so far as applicable................................................................................. 357 rule XXIII is not applicable to proceedings of the Senate when in process of organization for the trial, (yeas 24, nays 20,)................................................. Appx. 29, 30 President pro tempore of the Senatequestion, Whether it is competent for the, to take the oath and become thereby a part of the court-[By ilA i. Hendricks]....................5...............Appx. 5 discussed byMr. Anthony....... Appx. 265 ~Ir. Anth ony................................................................................... Appx. 25'Mr. Bayard.......................................................................................... Appx. 14'3Mr. Buckalew.................................................................................Appx. 22, 23 INDEX. xxi President pro tempore of the Senate-Continued. question, Whether it is competent for the, to take the oath and become thereby a part of the court, discussed byMr. Conness................................................................................. Appx. 10, 30 Mr. Davis...7.................................................... Appx. 7, 9 Mr. Dixon..............................................................Appx. 25, 26, 27, 28, 29, 30, 31 Mr. Drake.....................................................Appx. 20, 26, 27, 29 Mr. Ferry................................................................... Appx. 29 Mr. Fessenden........................................................................... Appx. 10, 29, 34 Mr. Frelinghuysen............................................................ Appx. 20, 23 Mr. Grimes................................................... Appx. 25, 29, 34 Mr. Hendricks...............................................Appx. 5, 8, 28, 33,, 34 Mr. Howard.................................................Appx. 6, 11, 21, 25, 26, 28, 29, 34 Mr. Howe.................................................................................... Appx. 19, 20 Mr. Johnson................................................. Appx. 6, 10, 12, 27, 28, 34 Mr. Morrill, of Maine...................................................................... Appx. 8f 29 Mr. Morton........................................................................... Appx. 11, 24 Mr. Pomeroy...............................................................Appx. 19, 27, 29, 34 Mr. Sherman................................................................. Appx. 5, 13, 27, 28, 34 Mr. Stewart.......................................................................................... Appx. 30 Mr. Sumner......................................................A....................................Appx. 16 Mr. Thayer......................................................................:....................Appx. 20 Mr. Williams......................................................................................Appx. 9, 10 Q. Question, final, order that when doors shall be closed for deliberation upon, the official reporters shall take down debates, to be reported in proceedings-[By Mr. Edmunds.] offered, 611; read, 644, 664; tabled, 845; (yeas 28, nays 20.) order, that Senate proceed to vote on the several articles at twelve o'clock on day after the close of arguments-[By Mr. Sumner.] offered, 644; called up, 846. orders offered prescribing form of, byMr. Buckalew................................................... 848...................... Mr. Conkling.........................................8..................48................. 848 Mr. Conness............................848 Mr. Hendricks.....................................8......................... 848 Mr. Sumner..........................................................................................644, 848 views of Chief Justice on form of putting............................................. 849 order that the views of the Chief Justice be entered on the Journal-[By Mr. Buckalew.] offered and agreed to, 849. order that the, be put as proposed by Presiding Officer, and each Senator shall rise in his place and answer " Guilty " or " Not guilty" only-[By Mr. Sumner.] offered and agreed to, 850. order that the, shall be taken on the eleventh article first. and thereafter on the other ten successively as they stand-[By Mr. Williams.] agreed to, 852; (yeas 34, nays 19.) taken on Article XI, 853; (yeas 35, nays 19. ) order that the, be now taken on the remaining articles-[By Mr. Conkling.] offered and rejected, 857; (yeas 26, nays 28.) that the several orders heretofore adopted as to the order of voting on, be rescinded[By lMr. Williams.] offered, 856, 857,; agreed to, 859. taken on Article II, 860; (yeas 35, nays 19.) taken on Article III, 860; (yeas 35, nays 19.) Questions-see Practice. R. Ramsey, Alexander, a Senator from Minnesotaremarks by......................................................................................................... 186 Randall, Alexander W. —see Witnesses. Replication, read and filed............................................. 55 Ross, Edmund G., a Senator from Kansasmotion by........................................................................................................ 859 xXii INDEX. Rule VII, order amending, in respect to submitting questions of evidence, &c., to Senates[By KMr. Henderson.] offered, 126; agreed to, 127; (yeas 31, nays 19.) VII, order amending and requiring votes upon incidental questions to be without a division, unless demanded, &c.-[By Mr. Drake.] offered, 157; agreed to, 187. XX, construction of........................................................................... 142 XXt, motion to amend, so as to allow such of Managers or Counsel as desire to speak on final argument- [By Kan'r Bingham]............ 301 XXI, motion to remove limit fixed by, as to the number who may participate in final argument-[By Mr. Frelinghuysen. ] offered, 301. discussed byMan'r Williams..............................................................329......... 329 Man'r Boutwell............................................................. 331 Mr. Stanbery........ 331 Mr. Evarts..................................................................................................... 332 tabled, 333; (yeas 38,. nays 10.) XXIII, order amending, to, subject it to the operation of RuleVII — [By, Mr. Conkling.] offered, 9; agreed to, 10. not applicable to proceedings of the Senate when in process of organization for the trial of an impeachment, (yeas 24, nays 20,)...............Appx. 29, 30 amendment, that the fifteen minutes allowed by, shall be for the whole deliberation on the final question, and not to the final question on each article-[By Mr. Drake.] offered, 846; adopted, 848. Rules-see Practice. of procedure and practice......................................................................... 61 adopted.................................................................................................Appx-. 35 of Senate sitting in legislative session, adopted for guidance of court, as far as applicable, 302 Rulings-see Evidence; Practice. S. Senators, oath administered to........................................................................ 8, 9, 21 Seward, Frederick W.-see Witnesses. Sheridan, James B. -see Witnesses. Sherman, John, a Senator from Ohioorders bythat- trial proceed on 6th of April: offered and discussed, 14. that under the rules all questions other than of order should be submitted to Senate:: offered, 126. that additional time allowed by amendment to Rule XXI shall not exceed three hours: offered, 331. that Managers and Counsel have leave to file written or printed arguments before oral argument commences: offered, 514; amended, 514; disagreed to, 515.; (yeas 20, nays 26.) that Managers be permitted to file printed or written arguments: amendment offered, 516. remarks by.................. 14, 53, 54, 106, 107, 124, 126, 179, 242, 300, 301, 331, 360, 379, 381, 400, 414, 416, 465, 466, 489, 493, 514, 515, 516, 570, 643, 709, 764, 796, 815, 842, 843, 844, 846, 849, 854 remarks on the competency of the President pro tempore to take the oath......... Appx. 5, 13, 27, 28, 34 questions by...........................................................................................179, 381, 493 opinion on the case....................9........................................................................ 923 Sherman, William T.-see Witnesses. Smith, Francis H. —see Witnesses. Sprague, William, a Senator from Rhode Islandremarks by.......................................................... 319, 517, 570, 858 Stanbery, Henry, of Kentucky, Counselmotions byfor an allowance of forty days to prepare answer, 10; denied, 14. for an allowance of thirty days to prepare for trial, 44; denied, 53; (yeas 12, nays 41.) argument byon application for forty days to prepare answer.................................................10, 11 for thirty days to prepare for trial........................................... 49 INDEX. xxiii Stanbery, Henry, of Kentucky, Counsel- Continued. argument byon admissibilityof President's conversations with Adjt. Gen. Thomas, Feb. 21, 1868....129, 131, 133, 141 of President's letter to Gen. Grant, unaccompanied with inclosures...............165, 166 of appointment of Edmund Cooper to be Assistant Secretary of the Treasury...176, 178 of telegrams relating to the reconstruction of Alabama..................................183, 186 of President's declarations to Adjt. Gen. Thomas Feb. 21.............................. 282 of conversations between President and Gen. Sherman, Jan. 14...309, 311, 313, 315, 316 of question respecting department of the Atlantic.............................................. 322 of tender of War Office to Gen. Sherman............................................. 323 324 of President's purpose to get the question before the courts................... 326 of question, Whether Gen. Sherman formed and gave President an opinion, &c...... 334, 335, 337 of affidavit and warrant of arrest of Lorenzo Thomas..................................343, 344 on motion to remove limit to number of speakers on final argument......................... 331 on right of counsel to renew examination of a witness recalled by court.................... 351 final, on the case.......................................765, 769 Stanton, Edwin M., Secretary of Warnomination of.................................................. 102 confirmation of............................................................................. 102 commission of..................................................................................... 108 suspension of, communicated to Senate.................................................................... 102 Senate's non-concurrence in............. 107 removal of, order for....................................... 107 communicated to Senate..................................................................... 107 Senate resolution on............10........................................................8... interviews of, with Adjt. Gen. Thomas, demanding possession.................... 112, 116, 143, 151, 152, 158, 280, 281, 286, 287, 288, 293, 305 letter of, denying Gen. Thomas's authority..................................... 281, 302, 305 affidavit of, for arrest of Gen. Thomas................................... 345 Stark, Everett D.-see Witnesses. Stewart, William M., a Senator. from Nevadaorder bythat Man'r Logan have leave to file written argument: offered, 513. remarks by............................ 327, 328, 356, 376, 433, 469, 494, 513,-514, 520 remarks on the competency of the President pro tempore to take the oath............ Appx. 30 opinion on the case......................................................8................................ 897 Stevens, Thaddeus, of Pennsylvania, a Managerremarks on order relating to final argument............................................ 515 argument, final, on the case................................................................ 665 Summons, return of Sergeant-at-Arms to writ of, read and verified....................... 9 Sumner, Charles, a Senator from Massachusettsorders bythat Senate proceed with trial from day to day unless otherwise ordered:. offered, 55; withdrawn, 56. that Chief Justice presiding has no authority to vote on any question during the trial, &c.: offered, 126, 127; rejected, 127; (yeas 22, nays 26.), that where the Senate were equally divided, and Chief Justice gave a casting vote, such vote was without authority under the Constitution: offered and rejected, 128; (yeas 21, nays 27.) that trial proceed without delay on account of removal of limit provided by Rule XXI: amendment offered and accepted, 328. that on final argument the several Managers who speak shall close: offered,: 332. that under rule limiting argument to two on a side, such others as choose may file arguments at any time before the argument of the closing Manager: laid over), 356:; amended, 357; indefinately postponed, 359;. (yeas.34, nays 15.). that all evidence offered not trivial or obviously irrelevant be received without, objection, to be open to question at the bar to determine its value, and to be sifted and weighed in the final judgment: tabled, 400; (yeas 33, nays 11.), that Senate sit from ten a. m. to sixp. m.: offered, 432; rejected, 433; (yeas 13,:nays 30.) that Senate proceed to vote on the several articles of impeachment at twelve o'clock on the day after the close of arguments: offered, 644;'called up, 846. that after removal, which follows conviction, any further judgment shall be determined by a majority of members present: offered and laid over, 687. xxiv INDEX. Sumner, Charles, a Senator from Massachusetts-Continued. orders bythat Mr. Nelson, one of counsel, having used disorderly words, has deserved the disapprobation of the Senate: offered, 708; tabled, 728; (yeas 35, nays 10.) that Senate will sit from ten a. m. to six p. m.: offered, 728; tabled, 728; (yeas 32, nays 17. ) that the question be put as proposed by Presiding Officer, and each Senator shall rise in his place and answer " Guilty " or " Not guilty " only: offered and agreed to, 850. rules byXXIII, in taking the votes of Senate on the articles presiding officer shall call each Senator by name, and upon each article propose the question of " Guilty or not guilty?" whereupon each Senator shall rise in his place and answer: proposed April 25, 644; called up, 848. XXIV, on a conviction by Senate it shall be the duty of presiding officer forthwith to pronounce the removal from office of the convicted person; any further judgment shall be on the order of Senate: proposed April 25, 644; called up, 850. remarks by.........14, 55, 56, 106, 107, 126, 127, 128, 180, 187, 200, 201, 258, 245, 247, 248, 327, 328, 332, 356, 357, 358, 359, 376, 400, 432, 433, 465, 570, 581, 611, 643, 644, 654, 665, 686, 708, 709, 727, 728, 843, 846, 847, 848, 849, 850, 856, 861 argument on the competency of the President pro tempore to take the oath........... Appx. 16 on the authority of the Chief Justice to vote.................................A........Appx. 37 opinion on the case.............................................................................................. 958 T. Testimony-see Witnesses; Evidence. Thayer, John M., a Senator from Nebraskaremarks by...................................... 126, 142, 327, 328, 359, 413, 517, 844, 858. remarks on the competency of the President pro tempore to take the oath..............Appx. 20 Thomas, Lorenzo — rank and service of......................27........................................278, 279, 290 restoration of, to duty as Adjutant General....................... 163, 173, 279. 290 appointment of, Secretary of War ad interim.................... 107, 280, 290, 291, 292, 299, 303 Senate resolution on, communicated to............................................... 108 letter of, accepting................................................................. 251 demand of, for possession......112, 116, 143, 151, 1524 158, 280, 281, 286, 287, 288, 293, 305 conversations ofwith President, 279, 280, 286, 287, 291, 292, 293, 296, 297, 298, 299, 302, 303, 305, 306, 307 with Secretary Stanton.........................;.... 143, 280, 281, 286, 287, 288, 293, 305 with Mr. Burleigh............................143, 289, 294, 295, 296, 302 with Mr. Karsner......................................................152, 289, 298, 300, 303 with Mr. Wilkeson.......1................................. 151, 294 with Mr. B. B. Johnson.............................................................................. 04 declarations of, to clerks of the War Office................................... 144, 145, 147, 150, 301 intentions of, as to obtaining possession................................................................ 143, 144, 148, 149, 153, 288, 289, 294, 295, 296, 297, 298, 299, 304 arrest of, and proceedings thereon.................................... 340, 345, 406, 412, 413, 414, 415 Tinker, Charles A. —see Witnesses. Tipton, Thomas W., a Senator from Nebraskaremarks by.....................................................................................200, 643, 710, 851 opinion on the case.................................... 1011 Trial, motion to fix a day for, to proceeddiscussed byMan'r Butler.......1............................. 14 Mr. Nelson............................................................................................ 16 Man'r Bingham............................................................................................... 19 order that, unless otherwise ordered, the, proceed immediately after replication filed[By Mr. Conkling.] offered, 19; agreed to, 20; (yeas 40, nays 10.) application of Counsel for thirty days to prepare for. 4.............................. 44 discussed byMr. Evarts..44......... 4............................... 44, 4'! Man'r Bingham........................................44, 50, 51 Man'r Logan.................................................................................. 44 Man'r Wilson.4.................................7............... 47 Mr. Stanbery.......................................4........................................ 4 Man'r Boutwell.......................................................................... 50 Man'r Butler..........................................,..................... denied 53; (yeas 12, nays 41.) INDEX. xxv Trial-Continued. orders offered to fix time for, to proceed, byMr. Edmunds............................................................................... 14 Man' r Bingham............................................................................................. 14 Mr. Sherman....................................................... 14 Mr. Conkling....................................................................... 19, 56 Mr. Johnson.............................................................................................54, 55 Mr. Hendricks..............................5...........................................6 Mr. Sumner.55 Mr. Sumner............................................................................................... application of Counsel for reasonable time, after replication filed, to prepare for.......... 54 order fixing the 30th of March for commencement of-[By Mr. Conkling.] offered and agreed to, 56; (yeas 28, nays 24.) Trumbull, Lyman, a Senator from Illinoisorders bythat respondent file answer on or before 23d of March: agreed to, 21. that as many of Managers as desire be permitted to file arguments or address Senate orally; but the conclusion of oral argument shall be by one Manager, as provided by Rule XXI: offered, 520; amended, 520; adopted, 521; (yeas 28, nays 22.) remarks by................................................... 110, 127, 128, 142, 143, 200, 302, 327, 354, 366, 432, 433, 465, 517, 519, 520, 709, 728, 842, 844, 845, 846, 847, 855, 856, 857, 858, 859 opinion on the case............................................................................................ 863 V. Van Horn, Burt-see Witnesses. Van Winkle, P. G., a Senator from West Virginiaopinion on the case......................................................................... 893 Vickers, George, a Senator from Marylandorders bythat one of Managers may file printed argument before adjournment, and that after oral opening by a Manager and reply by one of Counsel another Counsel may file written or make oral address, to be followed by closing speech of one of Counsel and final reply of a Manager: offered, 515. that any two of Managers, except those who open and close, and who have not addressed Senate, may file written arguments before adjournment or make oral addresses after the opening by one of Managers and first reply of Counsel, and that other two of Counsel who have not spoken may reply, but alternating with said two Managers, leaving closing argument for President and Managers' final reply under original rule: amendment offered, 514; disagreed to, 515; (yeas 20, nays 26.) remarks by..................................................................514, 515 opinion on the case............................................................................................. 954 Votes-see Articles; Chief Justice; Question; Rules, W. Wade, Benjamin F.-see President pro tempore. Walbridge, L. L.-se'e Witnesses. Wallace, George W.-see Witnesses. Welles, Edgar T.-see Witnesses. Welles, Gideon-see Witnesses. Wilkeson, Samuel-see Witnesses. Williams, George H'., a Senator from Oregonorders bythat consideration of respondent's application for time be postponed until Managers have submitted their evidence: offered, 55; not agreed to, 56; (yeas 9, nays 42.) that no Senator shall speak more than once, nor to exceed fifteen minutes during deliberations on final questions: offered, 664; postponed, 665. that the question shall be taken on the eleventh article first, and thereafter on the other ten successively as they stand: agreed to, 852; (yeas 34, nays 19.) that the several orders heretofore adopted as to the order of voting upon the articles be rescinded: offered, 856; agreed to, 859. remarks by................................................. 55, 56, 127, 1819 333, 350, 351, 354, 434, 478, 487, 664, 844, 845, 849, 852, 853, 854, 855, 857, 859, 860, 861 remarks on the competency of the Presidentpro tempore to take the oath...........Appx. 9, 10 opinion on the case...................................................................................... 947 Williams, Thomas, of Pennsylvania, a Managerargument, final, on the case......................................................... 673, 687 remarks on motion relating to the number of speakers on final argument..................... 29 xxvi INDEX. Wilson, James F., of Iowa, a Managerargument byon application of counsel for thirty days to prepare for trial.................................. 47 on admissibilityof President's letter to Gen. Grant, unaccompanied with inclosures.................. 165, 167 of President's conversations with Gen. Sherman.....................319, 320 of employment of counsel by President to get up a test case....................... 410 of President's declarations to Mr. Perrin.......................................... 426 of advice to President by his Cabinet touching the constitutionality of the tenureof-office act............. 470...................................................... Wilson, Henry, a Senator from Massachusettsremarks by................................................. 14, 19, 56, 124, 126, 513, 516, 610, 817, 845 opinion on the case................951........................................................................ 951 Witness-see Practice. right of Counsel to renew examination of a, recalled by court-[By Mr. Williams. ] question, 350. discussed by — Mr. Evarts...................................................................................350, 351, 353 Man'r Butler................................................................... 350 Man'r Bingham........................................................................ 351, 352, 353 Mr. Stanbery............................................................. 851 withdrawn........................................................854 Witnesses for the prosecutionWilliam J. McDonald: service of Senate resolutions at office of President................... 108 J. W. Jones: service of Senate resolution on Adjt. Gen. Thomas............................. 109 C. E. Creecy: form of commission before and after tenure-of-office act, 109; commission of Edmund Cooper as Assistant Secretary of Treasury, 111; date of change in form of commission, 112; President's notification to Secretary of Treasury of Secretary Stanton's suspension, 243; notification of Secretary of the Treasury to heads of bureaus, 244. Burt Van Horn: Adjt. Gen. Thomas's demand for possession of War Departmen't........ 112 James K. Moorhead: Adjt. Gen. Thofias's demand for possession of War Department, 116 Walter A. Burleigh: Adjt. Gen. Thomas's account of interview with Secretary Stanton, 143; his intentions, 144; his declarations to clerks, 144, 145, 147, 150; means by which he intended to obtain possession, 143, 144, 148, 149. Samuel Wilkeson: Adjt. Gen. Thomas's account of interview with Secretary Stanton... 151 George W. Karsner: conversations with Adjt. Gen. Thomas, 125; his intentions, 153; interview with Secretary Stanton, 157. Thomas W. Ferry: occurrences at War Department, Feb. 22..................... 158 William HI. Emory: conversations with President in reference to troops, 159; Orders No. 15 and 17, 161. George W. Wallace: conversation with President in regard'to garrison at Washington and movement of troops. 171 William E. Chandler: process of drawing money from Treasury Department, 173; course of issuing commission to an officer confirmed by Senate, 174; authority of Assistant Secretary of the Treasury to sign warrants, 180; the practice, 181. Charles A. Tinker: telegrams between Lewis E. Parsons and President relating to reconstruction in Alabama, 181; President's speech, Aug. 18, 1866, as telegraphed, 189, 195. James B. Sheridan: President's speech, Aug. 18, 1866, in reply to Hon. Reverdy Johnson, 189; manner of reporting it, 190, 195; corrections by President's Private Secretary........................................................................................... 196 James O. Clephane: President's speech, Aug. 18, 1866, in reply to Hon. Reverdy Johnson, 191; revision by President's Private Secretary, 191, 198; verbatim report rewritten for Chronicle, 192. Francis H. Smith: President's speech, Aug. 18, 1866, 196; revision by President's Private Secretary, 197. William G. Moore:. corrections of report of President's speech, Aug. 1866.................. 198 William N. Hudson: President's speech at Cleveland, Sept. 3, 1866, reported for Cleveland Leader, 204; cries of the crowd, 208, 211. Daniel C. McEwen: President's speech at Cleveland, Sept. 3, 1866.................... 212 Everett D. Stark: President's speech at Cleveland, Sept. 3, 1866, reported for Cleveland Herald.21..............4....................................... 214 L. L. Walbridge: President's speechat St. Louis, Sept. 8, 1866................................ 226 Joseph A. Dear: President's speech at St. Louis.................................................... 231 INDEX. xxvii Witnesses for the prosecution-Continued. Robert S. Chew: change in form of commissions after passage of civil-tenure act, 235; change in plate for printing forms, 236; list of appointments of heads of Departments, 239; appointments of acting Secretaries of State, 240; from whom, 241. H. Wood: interview with President, Sept., 1866, 248; President and Congress, 249; patronage, 249; statement to Mr. Koppel, 249. Foster Blodgett: suspension from office of, postmaster at Augusta, Georgia.............. 250 Witnesses for the defenseLorenzo Thomas: service, 278, 279, 290; restoration to duty as Adjutant General, 279, 290; appointment as Secretary of War ad interim, 280, 290, 291, 292, 299, 303; letter of Mr. Stanton, 281, 302, 305; arrest, 286, 295,:296; interviews with Secretary Stanton, 280, 281, 286, 287, 288, 293, 305; with President, 279, 280, 286, 287, 291, 292, 293, 296, 297, 298, 299, 302, 303, 305, 306, 307; with Mr. Burleigh, 289, 294, 295, 296, 302; with Mr. Karsner, 289, 298, 300, 303; with Mr. Wilkeso-n 294; with B. B. Johnson, 304; use of force, 288, 289, 294, 295, 2962 297, 298, 299, 304; testimony before House committee, 290, 291, 305, 306, 307; would obey President's orders, 291, 292, 296, 307; address to clerks, 301. William T. Sherman: duties in Washington, Dec., 1867, 307, 308; interviews with Pr'esident, 308, 347, 348, 349,'354; tender of appointment as Secretary of War ad interim, 322, 323, 324, 354; President's declarations of purpose in making tender, 346, 347, 348, 349, 354; use of force, 354, 355. R. J. Meigs: warrant ofarrestofLorenzo Thomas, 340, 345,346; docket ofentries, 346, 356. D. W. C. Clarke: nomination of Thomas Ewing, sen., to be Secretary of War, Feb. 22, 1868, 3:60; when received, 360, 373. William G. Moore: nomination of Mr. Ewing to be Secretary of War, 373; when received, 374; and delivered, 374. Walter S. Cox: counsel for Adjt. Gen. Thomas, 406; employed by President, 406, 417, 418; President's instructions, 412, 415; proceedings and their purpose, 412, 413, 414; application for habeas corpus, 414, 415; preparation of quo warranto, 417, 418, 419, 420; making a test case, 418; J. H. Bradley, 418; discharge of Thomas, 415, 420. Richard T. Merrick: profession, 420; employment in case of Gen. Thomas, 420; report to President, 421; President's instructions, Feb. 22, in respect to obtaining habeas corpus, 422; acts in reference thereto, 422, 423 i discharge of Thomas,. 424. Edwin O. Perrin: interview with President, Feb. 21-.........-................................424, 425 Wim. W. Armstrong: President's speech at Cleveland.43...............................4, 435, 436 Barton Able: President's speech at St. Louis..................................... 436, 437, 438 George Knapp: President's speech at St. Louis................................... 438, 439, 440 Henry F. Zider: President's speech at St. Louis, 440:; corrections, 440; differences in reports, 440, 441, 442, 443, 444. Frederick WV. Seward: practice in appointments of vice consuls................................ 456 Gideon Welles: date of commission, 458, 484; movements of troops, Feb. 21, 1868, 458, 484, 485, 486; conversation with President, 458, 459, 484; removal of Mr. Stanton, 459, 465, 466; appointment of Mr. Ewing, Feb. 22, 458, 466, 484; consideration of civil-tenure act in Cabinet, 466, 479, 481, 483. Edgar T. Welles: form of Navy agents' commission, 486; movement of troops, 486, 487. Alexander W. Randall: date of commission, 487; suspension of Foster Blodgett, 488, 490, 491, 492, 493, 500, 501; law by which he was suspended, 490; indictment, 491, 492, 493, 495, 496, 497; explanation, 500, 501. Wood, H.-see Witnesses. Y. Yates, Richard, a Senator from Illinois — remarks by.........4...........................................415, 494, 512, 514, 520, 521, 610, 699, 848 order bythat four of Managers and Counsel be permitted to make printed, written, or oral arguments, the Manager to have opening and closing, subject to Rule XXI: offered and disagreed to, 521; (yeas 18, nays 31.) opinion on the case........................................................................................ 1001 Yeas and nays onadjournment...........................................................................187, 201, 260, 327, 328 adjournment over...............................................................226, 248, 843, 847, 855, 859 admissibility of Adjt. Gen. Thomas's declarations to Walter A. Burleigh, (yeas 39, nays 11,) 143 to clerks of War Department, (yeas 28, nays 22,)............................................. 146 of President's letter to Gen. Grant, without inclosures, (yeas 29, nays 20,)................. 168 of testimony relating to the appointment of Edmund Cooper, (yeas 22, nays 2'7,)....... 181 of telegrams between President and Lewis E. Parsons, (yeas 27, nays 17,)............... 186 of Leader's report of President's speech at Cleveland, (yeas 35, nays 11,)................ 218 xxviii INDEX. Yeas and nays on-Continued. admissibility ofof President's declarations to Adjt. Gen. Thomas, Feb. 21, (yeas 42, nays 10,)......... 286 of President's conversation with Gen. Sherman, (yeas 23, nays 28,)......................... 321 yeas 23, nays 29.................................................................. 324 of President's declarations to Gen. Shermanof purpose to get case before the courts, (yeas 7, nays 44,)................................. 325 of purpose in tendering him the War Office, (yeas 25, nays 27,)........................... 327 of whether Gen. Sherman gave President an opinion as to advigibility of a change in the War Office, (yeas 15, nays 35,).................................................................. 340 of advice by Gen. Sherman to President, (yeas 18, nays 32,)........340 of affidavit and warrant of arrest of Lorenzo Thomas, (yeas 34, nays 17,)................. 345 whether President stated to Gen. Sherman his purpose in tendering him the office of Secretary of War ad interim, (yeas 26, nays 22,).............................................. 347 of President's declaration of purpose to Gen. Sherman in tendering him the office of Secretary of War ad interim, (yeas 26, nays 25,)............................................ 349 of extracts from records of Navy Department, (yeas 36, nays 15,)............................ 382 of employment of counsel by President to get up a test case, (yeas 29, nays 21,). 412 of acts by counsel toward getting out a habeas corpus in the case of Thomas, (yeas 27, nays 23,)................................................................... 415 of acts done subsequently to test Mr. Stanton's right, &c., (yeas 27, nays 23,)........... 417 of President's declarations to Mr. Perrin, Feb. 21, (yeas 9, nays 37,)............. 427 to Secretary Welles, Feb. 21, (yeas 26, nays 23,).................................465 of advice to President by Cabinet as to constitutionality of tenure-of-office act, (yeas 20, nays 29,)......................................................... 479 of advice as to construction of tenure-of-office act, (yeas 22, nays 26,)....................... 481 of Cabinet consultations in regard to obtaining ajudicial decision, &c., (yeas 19, nays 30,) 483 in regard to the use of force, (yeas 18, nays 26,)...........484 of opinions given to President by Cabinet as to the scope of tenure-of-office act, (yeas 20, nays 26,)........................................................ 493 of nominations of Lieut. Gen. Sherman and Maj. Gen. Thomas to be generals by brevet, (yeas 14, nays 35,)............................................................................. 511 appeal from decisions of the chair.............................................................................. 855 application of Counsel for thirty days to prepare for trial, (yeas 12, nays 41,)............. 53 for time to prepare proofs, (yeas 37, nays 10,)...................................................... 248 argument, rule prescribing order of............................................... 514, 515, 517, 520, 521 censure of Mr. Nelson, tabling order of, (yeas 32, nays 17,)....................................... 728 Chief Justice, authority of, to rule questions of evidence.................................. 127 authority of, to vote........................................................................................... 128 consultation, motion to retire for.................................................... 55, 126 court of impeachment, unconstitutionality of the, (yeas 2, nays 49,). 22 order for trial to proceed forthwith upon filing replication, (yeas 25, nays 26,)... 14 immediately after replication filed, (yeas 40, nays 10,)................................... 19 for respondent to file answer before 20th March, (yeas 28, nays 20, and yeas 23, nays 27,) 21 in respect to unconstitutionality of court of impeachment, (yeas 2, nays 49,)............. 22 postponing application for thirty days to prepare for trial, 53, (yeas 25, nays 28;) and 56, (yeas 9, nays 42.) directing trial to commence 30th March, (yeas 28, nays 24,).................................... 56 denying authority of Chief Justice to vote, (yeas 22, nays 26,)............................. 127 denying authority of Chief Justice to give casting vote, (yeas 22, nays 27,)............... 128 denying privilege of Chief Justice to rule questions of law, (yeas 20, nays 30,)... 127 directing questions to be submitted to Senate, on request, (yeas 31, nays 19,)....... 127 mode of procedure on final argument..;.......................359, 515, 521 fixing hour of meeting........................................................359, 433, 610 proposing to receive all evidence, not trivial,, without objection.................... 400 for reporting deliberations on final question...................................... 644, 845 for filing opinions.................................................847, 848 prescribing form of final question....................................................................... 848 directing vote to be taken on eleventh article first, (yeas 34, nays 19,)................. 852 question, final, of " Guilty" or " Not guilty''on Article XI, (yeas 35, nays 19.).................................................................... 853 II, (yeas 35, nays 19.)....................................................................... 860 III, (yeas 35, nays 19.)....................................................................... 860 rule limiting debate on final question....................................... 665 Z. Zider, Henry F.-see Witnesses.