=

of them charge violations of the appropriation act of March 2, 1867, to wit, articles nine and eleven. One only charges a violation of the reconstruction act of March 2, 1867, and that is article eleven.

We see, then, that four statutes of the United States are alleged to have been violated. Three of these provide for penalties for their violation, that is to say, the tenure-of-office act, the conspiracy act of 1861, and the military appropriation act of March 2, 1867. The violation of the tenure-of-office act is declared by the act itself to be a "high misdemeanor." The violation of the conspiracy act is declared to be "a high crime." The violation of the second section of the military appropriation act is declared to be simply "a misdemeanor in office."

It will be observed that the first eight articles all relate to the War Department, and to that alone. Article one sets out an attempted removal of the head of that Department. Three others relate to the ad interim appointment of Thomas to be acting Secretary of that Department. The four others relate to conspiracies to prevent Stanton from holding his office as Secretary for the Department of War, or to seize the public property in that Department, or to control the disbursements of moneys appropriated for the services of that Department.

Now, first of all, it must not escape notice that these articles are founded upon the express averment that from the moment of his reinstatement on the non-concurrence of the Senate Mr. Stanton became the lawful Secretary for that Department; that, upon such order of the Senate, he at once entered into possession of the War Department and into the lawful exercise of its duties as Secretary, and that up to the date of the articles of im peachment that lawful right and actual possession had remained undisturbed; that all the acts charged in these eight articles were committed during that time; that, notwithstanding these acts, Stanton remains lawfully and actually in possession; and that the office has been at no time vacant.

We see, then, that, according to the case made in these eight articles, the President did not succeed in getting Mr. Stanton out of office or of putting General Thomas in, either in law or in fact. We see, according to these articles, that the President did not succeed, either by force or otherwise, in preventing Mr. Stanton from holding his office or in getting possession of the public property in that Department or in controlling the disbursements of public money appropriated for the use of that Department. There has been, according to the very case made in these articles, no public mischief. The lawful officer has not been disturbed; the lawful custody of the public property and public money of the Department has not been changed. No injury has been done either to the public service or the public officer. There has been no removal of Mr. Stanton-only an abortive attempt at removal. There has been no acting Secretary put in an office vacant by death, resignation, or disability-put there during the time of such actual vacancy or temporary absence. All the time the Secretary himself has been there in the actual performance of his duties. No ad interim officer has, in law or fact, been constituted, for in law or fact there has been no interim as to the Secretary himself. There has been no moment of time in which there could be an acting Secretary or an ad interim Secretary, either in law or fact, for it is impossible to conceive of an ad interim Secretary of War when there is no interim, that is, when the lawful Secretary is in his place and in the actual discharge of his duties.

Mark it, then, Senators, that the acts charged as high crimes and misdemeanors in these eight articles, in respect to putting Mr. Stanton out and General Thomas in, are things attempted and not things accomplished. It is the attempt, and the unlawful intent with which it was formed, that the President is to be held responsible for. So that it comes to be a question of vital consequence in reference to this

part of the case whether the high crimes and misdemeanors provided for in the tenure-ofoffice act and in the second section of the military appropriation act purport to punish not only the commission of the acts, but to punish as well the abortive attempt to commit them.

I limit myself in what has been said to the four articles touching the removal of Mr. Stanton and the appointment of General Thomas. As to the four conspiracy articles, there can be no question that the actual accomplishment of the thing intended is not made necessary to constitute the offense; for the statute against conspiracies expressly provides for the punishment of the unlawful intent, the unlawful conspiracy itself, without reference to any further act done in pursuance of it, or to the partial or complete accomplishment of the unlawful design. But, contrariwise, the other two acts do not punish the intent alone, but only the commission of the thing intended; and the offense provided for in these two acts, while it requires the unlawful intent to be a part of the crime, requires something else to supplement it, and that is the actual commission of the thing intended.

And here, Senators, before I proceed to consider these articles in detail, seems to me the proper time to bring your attention to another consideration, which I deem of very great moment. What is the subject-matter which constitutes these high crimes and misdemeanors? Under what legislation does it happen that the President of the United States is brought under all this penal liability? What are these high crimes and misdemeanors? Has he committed treason or bribery? Has he been guilty of peculation or oppression in office? Has he appropriated the public funds or the public property unlawfully to his own use? Has he committed any crime of violence against any person, public officer or private individual? Is he charged with any act which amounts to the crimen fulsi or was done causa lucri? Nothing of the sort. These alleged high crimes and misdemeanors are all founded upon mere forms of executive administration. For the violation, they say, of the rules laid down by the legislative department to regulate the conduct of the executive department in the manner of the administration of executive functions belonging to that department.

The regulations so made purport to change what theretofore had been the established rule and order of administration. Before the passage of the second section of the military ap propriation act the President of the United States, as Commander-in-Chief of the Army and head of the executive department, issued his orders for military operations either directly to the officer who is charged with the execution of the order or through any intermediate channel that he deemed necessary or convenient. No subordinate had a right to supervise his order before it was sent to its distination. He was not compelled to consult his Secretary of War, who was merely his agent,

nor the General next to himself in rank as to that important thing, the subject-matter of his order, or, that merely formal thing, the manner of its transmission. But, by this second section, the mere matter of form is attempted to be changed. The great power of the President as Commander-in-Chief to issue orders to all his military subordinates is respected. The act tacitly admits that over these great powers Congress has no authority. The substance is not touched, but only the form is provided for; and it is a departure from this mere form that is to make the President guilty of a high crime and misdemeanor.

Then, again, as to the tenure-of-office act, that also purports to introduce a new rule in the administration of the executive powers. It does not purport to take away the President's power of appointment or power of removal absolutely; but it purports to fix the mode in which he shall execute that power, not as theretofore by his own independent action, but thereafter, only by the concurrence of the Sen

manner in which an executive power is to be performed.

So, too, as to ad interim appointments, it does not purport to take away that power from the President; it only attempts to regulate the execution of the power in a special instance.

Mr. Burke, on the impeachment of Warren Hastings, speaking of the crimes for which he stood impeached, uses this significant language:

"They were crimes, not against forms, but against those eternal laws of justice which are our rule and our birthright. His offenses are not in formal, technical language, but in reality, in substance, and effect, high crimes and high misdemeanors."

ment?

Now, Senators, if the legislative department had a constitutional right thus to regulate the performance of executive duties, and to change the mode and form of exercising an execu tive power which had been followed from the beginning of the Government down to the present day, is a refusal of the Executive to follow a new rule, and, notwithstanding that, to adhere to the ancient ways, that sort of high crime and misdemeanor which the Constitution contemplates? Is it just ground for impeachDoes the fact that such an act is called by the Legislature a high crime and misdemeanor necessarily make it such a high crime and misdemeanor as is contemplated by the Constitution? If, for instance, the President should send a military order to the Secretary of War, is that an offense worthy of impeachment? If he should remove an officer on the 21st of February and nominate another on the 22d, would that be an impeachable misdemeanor? Now, it must be admitted that if the President had sent the name of Mr. Ewing to the Senate on the 21st, in the usual way, in place of Mr. Stanton removed, and had not absolutely ejected Mr. Stanton from office, but had left him to await the action of the Senate upon the nomination, çertainly in mere matter of form there would have been no violation of this tenure-of-office act.

Now, what did he do? He made an order for the removal of Mr. Stanton on the 21st, but did not eject him from office, and sent a nomination of Mr. Ewing to the Senate on the 22d. Is it possible that thereby he had committed an act that amounted to a high crime and misdemeanor, and deserved removal from office? And yet that is just what the Presi dent has done. He has more closely followed the mere matter of form prescribed by the tenure-of-office act than, according to the learned Manager who opened this prosecution, was necessary. For, if he had made an order of removal, and at once had sent to the Senate his reasons for making such removal, and had stated to them that his purpose was to make this removal in order to test the constitutionality of the tenure-of-office act, then, says the honorable Manager, "Had the Senate received such a message, the Representatives of the people might never have deemed it necessary to impeach the President for such an act, to insure the safety of the country, even if they had denied the accuracy of his legal positions." How, then, can it be deemed necessary to impeach the President for making an order of removal on one day, advising the Senate of it the same day, and sending the nomination of a successor the next day? Was ever a matter more purely formal than this? And yet this is the only act. Is this, in the words of Mr. Burke, not in merely technical language, "but in reality, in substance, and effect," a high crime and misdemeanor within the meaning of the Constitution?

I dislike very much to ask favors, but if it be the pleasure of the Senate to adjourn, I shall detain them but a short time to-morrow, and it will be a great favor to me, a very great favor.

Mr. GRIMES. Mr. Chief Justice, I move that the Senate, sitting as a court of impeachment, now adjourn.

The motion was agreed to; and the Senate, sitting for the trial of the impeachment, adjourned.

SATURDAY, May 2, 1868. The Chief Justice of the United States took the chair.

The usual proclamation having been made by the Sergeant-at-Arms,

The Managers of the impeachment on the part of the House of Representatives and the counsel for the respondent, except Mr. Curtis, appeared and took the seats assigned to them respectively.

The members of the House of Representatives, as in Committee of the Whole, preceded by Mr. E. B. WASHBURNE, chairman of that committee, and accompanied by the Speaker and Clerk, appeared and were conducted to the seats provided for them.

The Journal of yesterday's proceeding of the Senate, sitting for the trial of the impeachment, was read.

The CHIEF JUSTICE. The counsel will proceed with the argument. Senators will please give their attention.

Mr. STANBERY. Mr. Chief Justice, first of all, Senators, I must return my thanks for the very great kindness shown me yesterday. I was greatly in need of it. I am greatly benefited by the rest it has afforded me. I feel refreshed and better prepared, though at last how poorly, for the work that yet lies before me. Nevertheless your courtesy so kindly, so cheerfully extended, I shall not soon forget.

And now, Senators, before I enter upon this case I must be allowed to speak in advance my deliberate opinion of the case itself, not in the way of rhodomontade, not that I hope to carry anything before a body like this by the mere expression of confidence; not at all; but still having examined this case from beginning to end, having looked through it in all its parts, I feel ready to say that there is not only no case, but no shadow of a case. Oh! for an hour of my ancient vigor that I might make this declaration good; but poorly prepared I hope to make it good to the satisfaction of the Senate that now hear me.

STANTON NOT WITHIN THE TENURE-OF-OFFICE ACT.

The first clause of the first section declares that every person then or thereafter holding any civii oflice under an appointment with the advice and consent of the Senate and due qualification shall hold his office until a successor shall have been in like manner appointed and qualified.

If the act contained no other provisions qualifying this general clause, then it would be clear,

1. That it would apply to all civil officers who held by appointment made by the President with the advice of the Senate, including judicial officers as well as executive officers. It gives all of them the same right to hold, and subjects all of them to the same liability to be removed. From the exercise of the power of suspension by the independent act of the President, made applicable to any officer so holding, by the second section, judges of the United States are expressly excepted. We find no such exception, express or implied, as to the exercise of the power of removal declared in the first section. Judicial officers, as well as executive officers, are made to hold by the same tenure. They hold during the pleasure of the President and the Senate, and cease to hold when the President and Senate appoint a suc

cessor.

2. It applies equally to officers whose tenure of office, as fixed prior to the act, was to hold during the pleasure of the President, as to those who were to hold for a fixed term of years, or during good behavior.

3. It purports to take from the President the power to remove any officer, at any time, for any cause, by the exercise of his own power alone. But it leaves him a power of removal with the concurrence of the Senate. In this process of removal the separate action of the President and the Senate is required. The initiatory act must come from the President, and from him alone. It is upon his action as taken that the Senate proceeds, and they give

or withhold their consent to what he has done. The manner in which the President may exercise his part of the process is merely formal. It may be simply by the nomination of a successor to the incumbent or the officer intended to be

removed. Then, upon the confirmation by the Senate of such nomination, and the issuance of a commission to him, the removal becomes complete. Or the President may exercise his part of the process by issuing an order of removal, followed by a nomination. Neither the order for removal or the nomination works a

change in itself. Both are necessarily condi tional upon the subsequent action of the Sen

ate.

So, too, the order of removal, the nomination, and the confirmation of the Senate are not final. A further act remains to be done before the appointment of the successor is complete, and that is an executive act exclusively the signing of the commission by the President. Up to this point the President has a locus penitentiæ; for, although the Senate have advised him to appoint his nominee, the President is not bound by their advice, but may defeat all the prior action by allowing the incumbent to remain in office.

Thus far we have considered the first clause of the first section of the act without reference to the context. Standing alone it seems to have a universal application to all civil officers, and to secure all of them who hold by the concur rent action of the President and the Senate against removal otherwise than by the same concurrent action and to make all of them liable to removal by that concurrent action.

Are there exceptions to the universality of the tenure of office so declared? We say there

are:

1. Exceptions by necessary implication. Judicial officers of the United States come within this exception; for their tenure of office is fixed by the Constitution itself. They cannot be removed either by the President alone or by the President and Senate conjointly. They alone hold for life or during good behavior, subject to only one mode of removal, and that is by impeachment.

2. Exceptions made expressly by the provisions of the act; which make it manifest that it was not intended for all civil officers of the United States. First of all, this purpose is indicated by the title of the act. It is entitled "An act regulating the tenure of certain civil offices'-not of all civil offices. Next, we find, that immediately succeeding the first clause which, as has been shown, is in terms of universal application, comprehending "every person holding any civil office," the purpose of restraining or limiting its generality is expressed in these words, except as herein otherwise provided for." This puts us at once upon inquiry. It advises us that all persons and all officers are not intended to be embraced in the comprehensive terms used in the first clause; that some persons and some officers are intended to be excepted and to be "otherwise provided for;" that some who do hold by the concurrent action of the President and the Senate are not to be secured against removal by any other process than the same concurrent action.

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What class of officers embraced by the general provisions of the first clause are made to come within the clause of exception? The proviso which immediately follows answers the question. It is in these words:

"Provided, That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the Attorney General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate."

We see that these seven heads of Department are the only civil officers of the United States which are especially designated. We see a clear purpose to make some special provision as to them. Being civil officers holding by the concurrent appointment of the President and the Senate, they would have been embraced by the first general clause of the section, if there had been no exception and no proviso. The

argument on the other side is, that, notwithstanding the declared purpose to make excep tions, these officers are not made exceptions; that notwithstanding there is a proviso as to them, in which express provision is specially for their tenure of office, we must still look to the general clause to find their tenure of office. It is a settled rule of construction that every word of a statute is to be taken into account, and that a proviso must have effect as much as any other clause of the statute.

Upon looking into this proviso we find its purpose to be the fixing a tenure of office for these seven officers. And how is that tenure fixed? We find it thus declared: some of them are given a tenure-of-office, others are not. But as to the favored class, as to that class intended to be made safe and most secure, even their tenure is not so ample and permanent as the tenure given to all civil oflicers who, prior to the act, held by the same tenure as themselves. By the general clause all civil officers are embraced and protected from executive removal, including as well those who hold by no other tenure than "the pleasure of the President." This tenure," during the pleas ure of the President," was the tenure by which all these Cabinet officers held prior to the passage of this law. Now, for the first time, this proviso fixed another and safer tenure for certain Cabinet officers, not for all. It gave to some of them the right to hold during the term of one President aud for one month of the term of the succeeding President; but it did not give that right to all of them. It was given only to a favored class, and the new tenure so given to the favored class was not so favorable as that given to other civil officers who had theretofore held by precisely the same uncertain tenure, that is to say, "the pleasure of the President," for these other civil officers were not limited to the term of one President and one month afterwards, but their tenure was just as secure from the pleasure of the President," after the expiration of one presidential term, and after the expiration of the first month of the succeeding presidential term, as it was before.

We see, then, that in fixing a new tenure of office for Cabinet officers, the tenure given to one class of them, and that the most favored, was not as favorable as that given to other civil officers theretofore holding by the same tenure with themselves. This favored class were not to hold one moment after the expiration of the month of the second presidential term. At that punctual time the right of the President to select his Cabinet would, even as to them, return to him. If they were to remain after that, it would be that it was his pleasure to keep them and to give them a new tenure by his choice in the regular mode of appointment.

But, as we have seen, the proviso makes a distinction between Cabinet oflicers and divides them into two classes, those holding by appointment of the President for the time being, and those not appointed by him, but by his predecessor, and holding only by his sufferance or pleasure. If ever an intent was manifest in a statute it is clear in this instance. There is a division into two classes, a tenure of office given to one class and withheld from the other. Before the passage of this act all Cabinet officers holding under any President, whether appointed by him or his predecessor, held by the same tenure, "the pleasure of the President."

This proviso makes a distinction between them never made before. It gives one class a new and more seecure tenure, and it leaves the other class without such new tenOne class was intended to be protected, the other not.

ure.

Now comes the question. Upon what ground was this distinction made? Why was it that a better title, a stronger tenure was given to one class than to the other? The answer is given by the proviso itself. The officers in the Cubinet of a President, who were nominated by him, who were appointed by him with the concurrence of the Senate, are those to whom this new and better tenure is given. They are offi

cers of his own selection; they are his chosen agents. He has once recommended them to the Senate as fit persons for the public trust, and they have obtained their office through his selection and choice. The theory here is, that having had one free opportunity of choice, having once exercised his right of selection, he shall be bound by it. He shall not dismiss his own selected agent upon his own pleasure or caprice. He is, in legal language, topped" by the selection he has made, and is made incapable by his own act of dissolving the official relation which he has imposed on himself. Having selected his Cabinet officer, he must take him as a man takes his chosen wife, for better or worse.

46

es

But as to such Cabinet officers as are not of a President's selection; as to those who have been selected by a former President; as to those whose title was given by another; as to those he never appointed, and, perhaps, never would have appointed; as to those who came to him by succession and not by his own act;. as to those who hold merely by his acquiescence or sufferance-they are entitled to no favor, and receive none. They stand as stepchildren in his political family, and are not placed on the same level with the rightful heirs entitled to the inheritance.

The construction claimed by the Managers leads to this inevitable absurdity: that the class entitled to favor are cut off at the end of the month, while those having a less meritorious title remain indefinitely. What was intended for a benefit becomes a mischief, and the favored class are worse off than if no favor had been shown them. Their condition was intended to be made better than that of their fellows, and has been made worse. From those entitled to protection it is taken away to be given to those not entitled.

Now, when President Johnson was invested with his office, he found Mr. Stanton holding the office of Secretary of War. He had been appointed by Mr. Lincoln during his first term, and was holding in the second month of Mr. Lincoln's second term under the old appointment. Mr. Stanton was neither appointed by Mr. Lincoln or Mr. Johnson for that second term; so that we are relieved from all question whether the fractional term, counting from the accession of Mr. Johnson, is to be called the unexpired term of Mr. Lincoln, or the proper term of Mr. Johnson, and whether, if he had been appointed or reappointed by Mr. Lincoln during his second term, he might not have claimed that he was entitled, as against Mr. Johnson, to hold on to its end. Mr. Stanton never had any tenure of office under the tenure-of-office act for the current presidential term, never having been appointed for that term by either Mr. Lincoln or Mr. Johnson. He, therefore, does not come within the category of those members of Mr. Johnson's Cabinet who have been appointed by Mr. Johnson.

At the date of the passage of the tenure-ofoffice act, the Cabinet of Mr. Johnson was composed as follows: the Secretaries of State, of the Treasury, of War, and of the Navy, held by appointment of Mr. Lincoln made in his first term; the Secretary of the Interior, the Postmaster General, and the Attorney General, held by the appointment of Mr. Johnson made during his current term. There was, then, as to the entire seven, a difference as to the manner and time of their appointment. Four had been appointed by Mr. Lincoln, and the other three by Mr. Johnson. All of them held by the same tenure, the pleasure of the President.”

All

of them, without reference to constitutional provisions, were, by existing laws, removable by the independent action of the President. The acts of Congress creating the offices of Secretaries of State, of War, and of the Navy, expressly recognize the executive authority to remove them at pleasure. The acts of Congress creating the four other heads of Departments place them on the same footing as to tenure of oflice. All these acts remained, in this particular, in full force. This tenure-of-office act introduces a distinction made applicable to Cabinet officers

alone, never made before. For the first time it gives to those appointed by the President for the time being a new tenure. It secures them from removal at his pleasure alone. It repeals, as to them, the existing laws, and declares that they shall thereafter be entitled to hold during the remainder of the term of the President by whom they were appointed, and for one month of the succeeding presidential term, exempt from removal by the sole act of the President, and only subject to removal by the concurrent act of the President and Senate.

But it gives them no right to hold against the pleasure of the succeeding President one moment after the expiration of that punctual time of one month. When that time has arrived their right to hold ceases and their offices become vacant. The policy here declared is unmistakable, that notwithstanding anything to the contrary in the act, every President shall have the privilege of his own choice, of his own selection of the members of his Cabinet. The right of selection for himself is, however, qualified. He may not, as theretofore, enjoy this right throughout his term. For the first month he must take the Cabinet of his predecessor, however opposed to him in opinion or obnoxious to him personally. Then, too, while the right is given to him, it cannot be exercised but once. It is a power that does not survive, but expires with a single execution.

Now, as to the three members of Mr. Johnson's Cabinet, appointed by his own exercise of this independent power, he having, as to them, once exercised the power, it is, as to them, exhausted. The consequence is that these three officers no longer remain subject to his pleasure alone. They are entitled to hold in defiance of his wishes throughout the remainder of his term, because they are his own selected officers; but they are not entitled to hold during the whole term of his successor, but only for a modicum of that term, just because they were not selected by that successor. So much for these three.

Now, as to the other four, as to whom Mr. Johnson has not exercised his right of choice even by one appointment. May they hold during the residue of his term in defiance of his wishes? Do they come within that clear policy of giving to every President one opportunity at least to exercise his independent right of choice? Surely not. Then, if, as to them, he has the right, how can he exercise it, if, as in the case of Mr. Stanton, the Cabinet officer holds on after he has been requested to resign? What mode is left to the President to avail himself of his own independent right when such an officer refuses to resign? None other than the process of removal; for he cannot put the man of his choice in until he has put the other out. So that the independent right of choice cannot under such conditions be exercised at all without the corresponding right of removal; and the one necessarily implies the other.

We have seen that the tenure of office fixed by the proviso for Cabinet officers, applies only to those members of Mr. Johnson's Cabinet appointed by himself. It therefore does not apply to Mr. Stanton. If there is any other clause of the act which applies to Mr. Stanton, it must be the first general clause, and if that does not apply to him, then his case does not come within the purview of the act at all, but must be ruled by the preexisting laws, which made him subject at all times to the pleasure of the President and to the exercise of his independent power of removal. And this is precisely what is claimed by the Managers. They maintain that, although the proviso does not give Mr. Stanton a new tenure, yet the first general clause does, and that he is put by that clause on the same footing of all other civil officers who, at the date of the act, held by the concurrent appointment of the President and Senate by no other tenure than "during the pleasure of the President."

But all the officers intended to be embraced by that first clause, who held by that tenure before, are declared to hold by a new tenure. | Not one of them can be removed by the Presi

dent alone. Whether appointed by the Pres▷ dent for the time being or by his predecessor, they must remain in defiance of the President until removed by the concurrent action of the President and the Senate. In effect, so far as the power of the President is concerned, they may hold for life. If Mr. Stanton comes within the protection of that clause, if his tenure of office is fixed by that clause, it follows inevitably that Mr. Johnson cannot remove him. It follows as inevitably that no succeeding President can remove him. He may defy Mr. Johnson's successor as he now defies Mr. Johnson. He may say to that successor as he has said to Mr. Johnson, "I am compelled to deny your right under the Constitution and laws of the United States, without the advice and consent of the Senate." If the successor of Mr. Johnson should point him to the proviso, and at the end of the month require him to leave, his answer, according to the Managers, would run thus: "That proviso did not fix my tenure of office. It did not apply to me, but only to those appointed by Mr. Johnson. They must go out with the month; I do not. My tenure is fixed by the first clause, and you cannot get clear of me without the advice and consent of the Senate."

NO REMOVAL OF MR. STANTON.

But if it be held that Mr. Stanton did come within the purview of the tenure-of-office act; if it be held that his removal by the independent action of the President is forbidden by the act, then we maintain that no such removal is charged in the articles or made out in the proof.

It is only in the first article that any charge is made in reference to Mr. Stanton's removal. That article nowhere alleges that Mr. Stanton has been removed, either in law or in fact. It does allege that on the 21st of February Stanton was lawfully entitled to hold said office of Secretary for the Department of War," and that on that day the President "did, unlaw fully and in violation of the Constitution and laws of the United States, issue an order in writing for the removal of Edwin M. Stanton from the office of Secretary for the Department of War." It is the issuance of this order for a removal that is made the gravamen of the charge. It is not followed by any allegation that it had the effect to work a removal, either in law or in fact. On the contrary, in the very next article, which is founded on the order to Thomas, which purports to be made after the order for the removal of Stanton, it is alleged that Stanton still held the office lawfully, and that notwithstanding the order for removal to Stanton and the order to Thomas to act as Secretary, Stanton still held the office, and no vacancy was created or existed. This

is the tenor of every article, that Stanton never has been removed, in law or in fact; that there never has been an ouster, either in law or in fact; that there never has been at no time a vacancy. The proof shows that Stanton remains in possession, and that his official acts continue to be recognized.

Now, if the order per se operated a removal in law, it must follow that the order was valid and in conformity with the Constitution and laws of the United States, for no order made contrary thereto could take effect in law. If there was a removal in law the executive order which accomplished it was a valid, not an unlawful act. But if the order did not operate a removal per se, and if a removal in fact, though not in law, might be held sufficient to constitute an offense, and if it were alleged and were proved that under the illegal order an actual ouster or removal was effected by force or threats the answer to be given in this case is conclusive. No ouster in fact, no actual or physical removal, is proved or so much as charged. Mr. Stanton has never to this day been put out of actual possession. He remains in possession as fully since the order was made as before, and still holds on.

Now, we look in vain through this tenureof-office act for any provision forbidding an altempt to cause a removal, or making it penal

to issue an order for such a purpose. The sixth section is the only one on the subject of removal, and that provides:

"That every removal" "made" "contrary to the provisions of this act" "shall be deemed, and is hereby declared to be, a high misdemeanor;" and is made punishable by fine not exceeding $10,000, or by imprisonment not exceeding five years, or both, at the discretion of the court.

No latitude of construction can torture an attempt to make a removal into an actual removal, or can turn an abortive effort to do a given thing into the accomplished fact. Such a latitude of construction could not be allowed where the rule of construction is least restricted, and least of all in a penal statute where the rule of construction is the most restricted.

It seems a waste of words to argue this point further. There is a total failure of the case upon the first article on this point, if we had none other. And yet this article is the head and front of the entire case. Strike it out and all that remains is "leather and prunella."

But, Senators, if you should be of opinion that the tenure-of-office act protected Mr. Stanton, and that the attempt to remove him was equivalent to a removal, we next maintain

First, That the President had a right to construe the law for himself, and if, in the exercise of that right, he committed an error of construction, and acted under that error, he is not to be held responsible.

Second, If he had so construed the law as to be of opinion that Mr. Stanton was intended to be protected by it against his power of removal, and was also of opinion that the law in that respect was contrary to the Constitution, he is not to be held reponsible if he therein committed an error.

I proceed to argue these points in the order in which they have been stated. First, then, is the President responsible for an official act done by him under an erroneous construction of an act of Congress? I agree that ignorance or misconception of the law does not, in general, excuse a party from civil or criminal liability for an act contrary to law. But this wellestablished rule has exceptions equally well established, and the case here falls within one of the exceptions, and not within the rule. Where a law is passed which concerns the President and touches his official duties it is not only his right but his duty to determine for himself what is the true construction of the law, and to act, or refuse to act, according to that determination, whatever it may be. He is an executive officer, not a mere ministerial officer. He is invested with a discretion, with the right to form a judgment, and to act under his judgment so formed, however erroneous. No such discretion is allowed to a ministerial officer. His business is not to construe the law, but merely to perform it, and he acts at his peril if he does not do that which is commanded by reason of an erroneous construction, however honestly entertained.

But, as I have said, the President is not a ministerial officer. His function is not merely to execute laws, but to construe them as well. The Constitution makes this too clear for question. It does not, it is true, vest him with judicial power, which always implies the exercise of discretion. It vests him with the executive power, but, nevertheless, with a discretion as to the mode of its execution. The Constitution contemplates that, in the exercise of that executive power, he may be involved in doubt and perplexity as to the manner of its exercise, and, therefore, gives him the priv ilege of resorting to his Cabinet officers for advice. The Constitution binds him by an oath not only faithfully to execute his office, not merely to carry into execution laws of Congress, but also, to the best of his ability, to preserve, protect, and defend the Constitution itself. This great trust implies the exercise of a large discretion.

It is sufficient, upon this point, to cite a late

opinion of the Supreme Court of the United States, in what is called the Mississippi injunction case, decided in April, 1867. Mr. Chief Justice Chase, delivering the opinion of the court, says;

"It is assumed by the counsel for the State of Mississippi that the President, in the execution of the reconstruction acts, is required to perform a mere ministerial duty. In this assumption there is, we think, a confounding of the terms ministerial and executive, which are by no means equivalent in import. A ministerial duty, the performance of which may, in proper cases, be required of a head of a Department by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, or imposed by law."

After citing some cases of merely ministerial duty, the Chief Justice proceeds as follows:

"In each of these cases nothing was left to discretion. There was no room for the exercise of judgment. The law required the performance of a single, specific act, and that performance, it was held, might be required by mandamus. Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among those laws the acts named in the bill. The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political. An attempt on the part of the judicial department of the Government to enjoin the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshall, as an absurd and excessive extravagance.' It is true that, in the instance before us, the interposition of the court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be that this circumstance takes the case out of the general principle which forbids judicial interference with the exercise of executive discretion."

unconstitutional. But we are unable to perceive

When, therefore, this tenure-of-office act came to be considered by the President in reference to his purpose to remove Mr. Stanton from office, he had a right and it was his duty to decide for himself whether the proposed removal of Mr. Stanton was or was not forbidden by the act. As yet that act had received no construction by the judicial department, nor had the President any authority to send the act to the Supreme Court, and require the judgment of that court upon its true meaning. The Constitution gave him no right to resort to the judges for advice. He could not settle his doubts, if he entertained doubts, by asking any other opinions than those of the heads of Departments.

But the President was not even required to ask the advice of his Cabinet, nor even of his Attorney General, to which officer he may resort for advice as a head of Department under the provisions of the Constitution, and whose special duty it is made by an act of Congress to give the President advice when called for by him on any question of law. The President, although such aids are given to him by the Constitution in forming his judgment on a question of law, is not bound to resort to them. He may do so out of abundant caution, but such is his own latitude of discretion that he may act without invoking such aid, or he may reject the advice when asked for and given, and lawfully decide for himself, though perhaps not so wisely or cautiously.

Besides this late authoritative exposition, as to the discretionary power of the President, there is abundance of other authority entitled to the gravest consideration, which might be adduced to the same effect, and which I propose to introduce upon the next point, which I now proceed to consider, and that point is,

that if the President had so construed this tenure-of-office act as to be satisfied that Mr. Stanton came within its provisions, but was also of opinion that the law in that respect was contrary to the Constitution, he is not to be held responsible if therein he committed an error. The case in that aspect stood thus: here was an act of Congress which, in the construction given to it by the President, forbade the removal of Mr. Stanton from the War Department. The President, in the exercise of his executive functions and of his duty to see that the laws were faithfully executed, came to the conclusion that in the execution of so much of this executive duty as had relation to the administration of the War Department, it was l expedient to place it in the hands of another

person. His relations with Mr. Stanton were such that he felt unwilling any longer to be responsible for his acts in the administration of that Department, or to trust him as one of his confidential advisers. The question at once arose whether this right of reinoval denied to him by this law, was given to him by the Constitution; or, to state it in other words, whether this law was in this respect in pursuance of the Constitution.

Now, it appears that his opinion upon this question had been made up deliberately. When this same law was on its passage and had been presented to him for his approval, his opinion was formed that it was in violation of the Constitution. He refused to approve it, and returned it to Congress with a message in which this opinion was distinctly announced. It passed, notwithstanding, by a constitutional majority in both Houses. No one doubts that then, at least, he had a perfect right to exercise a discretion, and no one has ever yet asserted that an error in an opinion so formed involved him in any liability.

The exercise of that veto power exhausted all his means of resistance to what he deemed an unconstitutional act, in his legislative capacity; and so far as the law provided a rule of action for others than himself, no other means of resistance were left to him. But this law was directly aimed at him and the exercise of the executive power vested in him by the Constitution. When, therefore, he came a second time to consider it, it was in the discharge of an executive duty. Had he then no discretion of any sort? Was he bound to act in a merely ministerial capacity? Having once finally exercised a discretion in his legislative capacity to prevent the passage of the law, was he thereby deprived of his discretion in his executive capacity when he was called upon to act under it? It has been said, that a law passed over a President's veto by a majority of two thirds, has a greater sanction than a law passed in the ordinary way by a mere majority. I know that there are those who, while they admit that, as to a law passed in the ordinary mode by the concurrent acts of the two Houses and the President, it may be questioned on the score of unconstitutionality, yet maintain that a law not passed by such a concurrence, but by the separate action of the two Houses without the concurrence of the Executive, or against his will, is something superior to ordinary legislation, and takes the character of a fundamental or organic enactment. But this is a modern heresy unsustained by the slightest reason or authority. It is at last but a legislative act. It stands upon an equal footing with other legislative acts. It cannot be put upon higher ground or lower ground. No distinction is allowable between the one and the other. But, if it were, it certainly would seem more reasonable that such a law passed by one coördinate department, would stand on lower ground than a law passed with full concurrence of both departments.

The question then recurs, is the President invested with a discretion in his executive capacity? In the exercise of that discretion may he compare the law with the Constitution, and if, in his opinion, the law vests him with a power not granted by the Constitution, or deprives him of a power which the Constitution does grant, may he refuse to execute the power so given, or proceed to execute the power so taken away? We have already cited a late decision of the Supreme Court directly in point. That presented the direct question whether, as to the reconstruction acts, passed like this tenure-of-civil-office act, by a vote of two thirds in each House, the President had, notwithstanding, in reference to those laws, an executive discretion. The decision maintains that he had.

I now proceed to show that this is no modern doctrine. The authorities which I shall cite go beyond the necessities of this case. Some of them go to the length of asserting that this executive discretion survives even after the passage of the law by the legislative department,

"The second question, whether the judges are invested with exclusive authority to decide on the constitutionality of a law, has been heretofore a subjeet of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the executive or legislative branches. Questions of property, of character, and of crime, being ascribed to the judges, through a definite course of legal proceedings-laws involving such questions belong of course to them, and as they decide on them ultimately and without appeal they of course decide for themselves. The constitutional validity of the law or laws prescribing executive action, and to be administered by that branch ultimately and without appeal, the executive must decide for themselves also whether under the Constitution they are valid or not. So, also, as to laws governing the proceedings of the Legislature: that body must judge for itself the constitutionality of the law, and, equally, without appeal or control from its coordinate branches. And, in general, that branch which is to act ultimately and without appeal, on any law, is the rightful expositor of the validity of the law, uncontrolled by the opinions of the other coördinate authorities.'

President Jackson, in his veto message upon the bank bill, uses this language:

"If the opinion of the Supreme Court covered the whole ground of this act it ought not to control the coördinate authorities of this Government. The Congress, the Executive, and the court must each for itself be guided by its own opinion of the Constitution."

Mr. Van Buren makes use of this language: "Everybody knows that an act which is contrary to the Constitution is a nullity, although it may have passed according to the forms of the Constitution. That instrument creates several departments, whose duty it may become to act upon such a bill in the performance of their respective functions. The theory of the Constitution is that these departments are coordinate and independent of each other, and that, when they act in their appropriate spheres, they each have a right, and it is the duty of each to judge for themselves in respect to the authority and requirements of the Constitution without being controlled or interfered with by their co-departments, and are each responsible to the people alone for the manner in which they discharge their respective duties in that regard. It is not, therefore, to be presumed that that instrument, after making it the President's especial duty to take an oath to protect and uphold the Constitution and prevent its violation, intended to deny to him the right to withhold his assent from a measure which he might conscientiously believe would have that effect and to impose upon him the necessity of outraging his conscience by making himself a party to such a violation."

a written constitution designating the powers and duties of the legislative as well as of the other departments of the Government, an act of the Legislature may be void as being against the Constitution." Speaking of the legislative power the Chancellor adds:

"It is liable to be constantly swayed by popular prejudice and passion, and it is difficult to keep it from pressing with injurious weight upon the constitutional rights and privileges of the other departments."

In Hayburn's case (2 Dall., page 407) the opinions of the judges of the circuit courts of the United States for the districts of New York, Pennsylvania, and North Carolina, upon the constitutionality of the act of March 23, 1792, are reported. This act purported to confer upon the judges a power which was not judicial. They were of opinion that Congress had no authority to invest them with any power except such as was strictly judicial, and they were not bound to execute the law in their judicial capacity.

In Calder vs. Bull, (3 Dall., page 398,) speaking of the paramount authority of Federal and State constitutions, it is said:

"If any act of Congress or of the Legislature of a State violates those constitutional provisions, it is unquestionably void."

In Van Horn's Lessee vs. Dorrance (2. Dall., page 308) we find the following:

"What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution. They derive their powers from the Constitution. It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void." "Whatever may be the case in other countries. yet in this there can be no doubt that every act of the Legislature repugnant to the Constitution is absolutely void."

Chief Justice Marshall, delivering the opinion of the court in Marbury vs. Madison, says:

"It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it; or, that the Legislature may alter the Constitution by an ordinary act. Between these alternatives, there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the Legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts on the part of the people, to limit a power in its nature illimitable." "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the Legislature, repugnant to the Constitution, is void." "Thus the particular phraseology ot the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.'

In Dodge vs. Woolsey (18 Howard, pages 347-8) the court say:

"There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid." "If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered that this cannot be the natural presumption where it is not to be collected from any particular provisions in the Constitution."

I cite next from No. 31 of the Federalist, in reference to that clause of the Constitution declaring its supremacy and the supremacy of the laws. It is said:

"It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution, which I mention merely as an instance of caution in the Convention; since that limitation would have been to be understood, though it had not been expressed."

Chancellor Kent, in the first volume of his Commentaries, uses this language:

"But in this and all other countries where there is

"The departments of the Government are legislative, executive, and judicial. They are coördinate in degree to the extent of the powers delegated to cach of them. Each, in the exercise of its powers, is independent of the other, but all, rightfully done by either, is binding upon the others. The Constitution is supreme over all of them, because the peo

anything which may be done unauthorized by it is unlawful."

Again, in 22 Howard, page 242, the nullity of any act inconsistent with the Constitution is produced by the declaration that the Constitution is the supreme law.

I will now refer to some decisions of the Supreme Court of the United States, which relate more particularly to the point, that as an executive officer the President is vested with a discretion.

In Marbury vs. Madison (1 Cranch, page 380) is the following:

ident is invested with certain important political By the Constitution of the United States the Prespowers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers to act by his authority and in conformity with his orders. In such cases their acts are his acts, and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and exist, no power to control this discretion."

And in Martin vs. Mott (12 Wheaton, page 31) this:

"The law does not provide for any appeal from the

judgment of the President, or for any right in subordinate officers to review bis decision, and, in effect, defeat it. Whenever a statute gives a discretionary power to any person to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts."

Quotations from opinions of the Supreme Court maintaining that the executive power of the President is in no sense merely ministerial but strictly discretionary, might be multiplied indefinitely. And, indeed, it is easy to show, from repeated decisions of the same court, that the heads of Departments, except where the performance of a specific act or duty is required of them by law, are in no sense ministerial officers, but that they too are clothed with a discretion, and protected from responsibility for error in the exercise of that discretion. Thus, Decatur vs. Paulding, 14 Peters; Kendall vs. Stokes, 3 Howard; Brashear vs. Mason, 6 Howard; in which latter case the court says:

"The duty required of the Secretary by the resolution was to be performed by him as the head of one of the executive Departments of the Government, in the ordinary discharge of his official duties; that in general such duties, whether imposed by act of Congress or by resolution, are not merely ministerial duties; that the head of an executive Department of the Government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion; and that the court could not, by mandamus, act directly upon the officer, to guide and control his judgment and discretion in matters committed to his care in the ordinary discharge of his official duties."

I will now ask your attention, Senators, to the remaining articles.

And first the four conspiracy articles. These allege that the President unlawfully conspired with Lorenzo Thomas, and others to the House of Representatives unknown, on the 21st of February, 1868-first, to hinder and prevent Edwin M. Stanton, Secretary of War, from holding the office of Secretary for the Department of War, contrary to the conspiracy act of July 31, 1861, and in violation of the Constitution of the United States; second, to prevent and hinder the execution of the "act reg ulating the tenure of certain civil offices," and in pursuance of this conspiracy did unlawfully attempt to prevent Edwin M. Stanton from holding the said office; third, by force to seize, take, and possess the property of the United States in the Department of War in the custody and charge of Edwin M. Stanton, Secretary thereof, contrary to the conspiracy act of July 31, 1861, and of the tenure-of-office act; fourth, with intent unlawfully to seize, take, and possess the property of the United States in the Department of War in the custody of Edwin M. Stanton, the Secretary thereof, with intent to violate the "act regulating the tenure of certain civil offices."

It will be seen that these four conspiracy counts all relate to the same subject-matter, the War Office, the Secretary of the War Office, and the public property therein situated. And this is all that is necessary to be said about these articles; for not a scintilla of proof has been adduced in their support. The case attempted by the Managers was, in the first place, by the to be made out under these conspiracy articles production of the two sets of orders issued on the 21st of February. But as these of themselves did not amount to evidence of a conspiracy, as they carried the idea of no unlawful agreement, but simply stood upon the footing of an order given by a President to a subordinate, the Managers, in order to make some show of a case, offered to introduce the decla rations of General Thomas, made on the night of the 21st and on the 22d of February and other days, intending to show a purpose on his part to obtain possession of the Department and the property of the Department by intimi dation and force. Objection was made at the time to the introduction of these declarations without laying a foundation upon which the President could be made liable by such declaration. Impressed with this objection, the Manager who opened the prosecution, after some consideration, at length answered an inquiry of a Senator, that he expected to follow