power, however, I may be allowed to say in passing, to the President, and never was so held by anybody in this country. The provisions of the Constitution which I have read grant to the President of the United States no legislative nor judicial power. Both of these powers, legislative and judicial, are necessarily involved in the defense this day attempted to be set up by the Executive; first, in the words of his own counsel, that he may judicially interpret the Constitution for himself and judicially determine upon the validity of every enactment of Congress; and second, in the position assumed by himself, and for which he stands charged here at your bar as a criminal, to repeal-I use the word advisedly and considerately-to repeal by his own will and pleasure the laws enacted by the Representatives of the people. This power of suspending the laws, of dispensing with their execution until such time as it may suit his pleasure to test their validity in the courts, is a repeal for the time being, and, if it be sustained by the Senate, may last during his natural life, if so be the American people should so long tolerate him in the office of Chief Magistrate of the nation. Why should I stop to argue the question whether such a power as this, legislative and judicial, may be rightfully assumed by the President of the United States, under the Constitution, when that Constitution expressly declares that all legislative power granted by this Constitution shall be vested in Congress, and that all judicial power shall be vested in a Supreme Court and in such inferior courts as the Congress may by law establish, subject, nevertheless, to the limitations and definitions of power embraced in the Constitution itself? The assumption upon which the defense of the President rests, that he shall only execute such laws as he approves or deems constitutional, is an assumption which invests him with legislative and judicial power in direct contravention of the express words of the Constitution.

If the President may dispense with one act of Congress upon his own discretion, may he not in like manner dispense with every act of Congress? I ask you, Senators, whether this conclusion does not necessarily result, as nenessarily as effect follows efficient cause? If not, pray why not? Is the Senate of the United States, in order to shelter this great criminal, to adopt the bold assumption of unrestricted executive prerogative, the wild and guilty fantasy that the king can do no wrong, and thereby clothe the Executive of the American people with power to suspend and dispense with the execution of their laws at his pleasure, to interpret their Constitution for himself, and thereby annihilate their Government?

Senators, I have endeavored to open this question before you in its magnitude. I trust that I have succeeded. Be assured of one thing, that according to the best of my ability, in the presence of the Representatives of the nation, I have not been unmindful of my oath; and I beg leave to say to you, Senators, this day, in all candor, that, in my judgment, no question of mightier import was ever before presented to the American Senate, and to say further, that no question of greater magnitude ever can come by possibility before the American Senate, or any question upon the decision of which greater interests necessarily depend.

In considering this great question of the power of the President by virtue of his execu. tive office to suspend the laws and dispense with their execution, I pray you, Senators, consider that the Constitution of your country, essential to our national life, cannot exist without legislation duly enacted by the Representatives of the people in Congress assembled and duly executed by their chosen Chief Magistrate. Courts, neither supreme nor inferior, for the administration of justice within the limitations of your Constitution, can exist without legislation. Is the Senate to be told that this Department of the Government, essential to the peace of the Republic, essential to the administration of justice between man SUPPLEMENT-25.

and man, those ministers of justice who, in the simple oath of the purer days of the Republic, were sworn to do equal justice between the poor and the rich, shall not administer justice at all if perchance the President of the United States may choose, when the Congress comes to enact a law for the organization of the judiciary, and enact it even despite his objections to the contrary in accordance with the Constitution by a two-thirds vote, to declare that according to his judgment and his convictions it violates the Constitution of the country, and therefore it shall not be put into execution?

Senators, if he has the power to sit in judg ment judicially-and I use the word of his advocate-upon the tenure-of-office act of 1867, he has like power to sit in judgment judicially upon every other act of Congress; and in the event of the President of the United States interfering with the execution of a judiciary act establishing for the first time, if you please, in your history, or for the second time, if you please, if by some strange intervention of Providence the existing judges should perish from the earth, I would like to know what becomes of this naked and bald pretense (unfit to be played with by children, much less by full-grown men) of the President, that he only violates the laws innocently and harmlessly, to have the question decided in the courts, when he arrogates to himself the power to prevent any court sitting in judgment upon the question?

Representatives to the Congress of the United States cannot be chosen without legisla tion; first, the legislation of the Congress apportioning representation among the several States according to the whole number of representative population in each; and second, an enactment either of the Congress or of the Legislatures of the several States fixing the time, place, and manner of holding the elections. Is it possible that the President of the United States, in the event of such legislation by the Congress, clearly authorized by the very terms of the Constitution, and essential to the very existence of the Government, is permitted, in the exercise of his judicial executive authority, to sit in judgment upon your statute and say that it shall not be executed? This power given by your Constitution to the Congress to prescribe the time and place and manner of holding elections for Representatives in Congress in the several States, and to alter as well the provisions of the State Legislatures, in the words of one of the framers of the Constitution, was put into the instrument to enable the people through the national Legislature to perpetuate the legislative department of their own Government in the event of the defection of the State Legislatures; and we are to be told here, and we are to deliberate upon it from day to day and from week to week, that the President of the United States is, by virtue of his executive office and his executive prerogative, clothed with the authority to determine the validity of your law and to suspend it and dispense with its execution at pleasure.

to establish it, as I shall show before I have done with this controversy.

The Constitution itself, according to this assumption, is at his mercy, as well as the laws, and the people of the United States are to stand by and be mocked and derided in their own Capitol when, in accordance with the express provision of their Constitution, they bring him to the bar of the Senate to answer for such a crime than which none greater ever was committed since the day when the first crime was committed upon this planet as it sprung from the hand of the Creator; that crime which covered one manly brow with the ashy paleness and terrible beauty of death, and another with the damning blotch of fratricide. The people are not to be answered at this bar that it is in vain that they have put into the hands of their Representatives the power to impeach such a malefactor, and by the express words of their Constitution they have put the power into the hands of the Senate, the exclusive power, the sole power to try him for his high crimes and misdemeanors.

The question touches the nation's life. Be it known, Senators, that your matchless constitution of government, the hope of the strugling friends of liberty in all lands, and for the perpetuity and the triumph of which millions of hands are lifted this day in silent prayer to the God of nations, can no more exist without laws duly enacted by the law-making power of the people than can the people themselves exist without air or without that bright heaven which bends above us filled with the life-giving breath of the Almighty. A Constitution and laws which are not and cannot be enforced are dead. The vital principle of your Constitution and laws is that they shall be the supreme law of the land-supreme in every State, supreme in every Territory, supreme in every rood of the Republic, supreme upon every deck covered by your flag, in every zone of the globe. yet we are debating here to-day whether a man whose breath is in his nostrils, the mere servant of the people, may not suspend the execution both of the Constitution and of the laws at his pleasure, and defy the power of the people. The determination, Senators, of all these questions is involved in this issue, and it is for the Senate, and the Senate alone, to decide them and to decide them aright.

And

I have dwelt thus long upon this point because it underlies the whole question in issue here between the President and the people, and upon its determination the decision of the whole issue depends. If I am right in the position that the acts of Congress are law, binding upon the President and to be executed by him until repealed by Congress or actually reversed by the courts, it results that the willful violation of such acts of Congress by the President and the persistent refusal to execute them is a high crime or misdemeanor, within the terms of the Constitution, for which he is impeachable, and of which, if he be guilty, he ought to be convicted and removed from the office that he has dishonored. It is not needAgain, a President of the United States to ful to inquire whether only crimes or misdeexecute the laws of the people enacted by their meanors specifically made such by the statutes Representatives in Congress assembled, can- of the United States are impeachable, because not be chosen without legislation. Are we by the laws of the United States all crimes again to be told that the President at every step and misdemeanors at the common law, comis vested with authority to dispense with the mitted within the District of Columbia, are execution of the law and to suspend its opera- made indictable. I believe it is conceded on tion till he can have a decision, if you please, every hand that a crime or misdemeanor made in the courts of justice? Revenue cannot be indictable by the laws of the United States, raised, in the words of the Constitution, to when committed by an officer of the United provide for the common defense and general States in his office, in violation of his sworn welfare without legislation. Is the President duty, is a high crime and misdemeanor within to intervene with his executive prerogative to the meaning of the Constitution. At all events, declare that your revenue laws do not meet his if that be not accepted as a true and self-evident approval, and in the exercise of his independent proposition by Senators, it would be in vain coordinate power as one of the departments of that I should argue further with them. Aud I this Government chooses to suspend the law might as well expect to kindle life under the and dispense with its execution? If the Pres- ribs of death as to persuade a Senate, so lost ident may set aside all laws and suspend their to every sense of duty and to the voice of reaexecution at pleasure, it results that he may son itself, which comes to the conclusion that annul the Constitution and annihilate the Gov-after all it is not a high crime and misdeernment, and that is the issue before the Amer

meanor under the Constitution for a President ican Senate. I do not go outside of his answer of the United States deliberately and purposely, ·

in violation of his oath, in violation of the plain letter of the Constitution that he shall take care that the laws be faithfully executed, to set the laws aside and defiantly declare that he will not execute them.

Senators, I refer in passing, without stopping to read the statute, for I believe it was read by my associate, [Mr. Manager BourWELL,] to the act of February 27, 1801, (2 Statutes-at-Large, 103, 104,) which declares that the common law as it existed in Maryland at the date of the cession shall be in force in the District. I refer also to 4 Statutes-at-Large, page 450, section fifteen, which declares that all crimes and offenses not therein specifically provided for shall be punished as theretofore provided, referring to the act of 1801. I refer also to 12 Statutes-at-Large, page 763, section three, which confers jurisdiction to try all these offenses upon the courts of the District.

That common-law offenses are indictable in the District has been settled by the courts of the District and by the Supreme Court. In the United States vs. Watkins, 3 Cranch, the cir cuit court of the District ruled—

"In regard to offenses committed within this part of the District the United States have a criminal common law and the court has criminal common-law jurisdiction."

And in the case of the United States vs. Kendall, before referred to in 12 Peters, 614, the court ruled:

"That the common law as it was in force in Maryland when the cession was made remained in force in the District."

It is clear that the offenses charged in the articles, if committed in the District of Columbia, would be indictable, for at the common law an indictment lies for all misdemeanors of a public evil example, for neglecting duties imposed by law, and for offenses against common decency, 4 Bacon's Abridgement, page 302, letter E.

This is all, Senators, that I deem it important at present to say upon the impeachable character of the offenses specified in the articles against the President further than to remark that although the question does not arise upon this trial for the reasons already stated, a crime or misdemeanor committed by a civil officer of the United States not indictable by our own laws or by any laws, has never yet been decided not to be impeachable under the Constitution of the United States; nor can that question ever be decided save by the Senate of the United States. I do not propose to waste words, if the Senate please, in noticing what but for the respect I bear him I would call the mere lawyer's quirk of the learned counsel from Massachusetts upon the defense [Mr. Curtis] that even if the President be guilty of the crimes laid to his charge in the articles presented by the House of Representatives, they are not high crimes and misdemeanors within the meaning of the Constitution, because they are not kindred to the great crimes of treason and bribery. It is enough, Senators, for me to remind you of what I have already said that they are crimes which touch the nation's life, which touch the stability of your institutions; they are crimes which, if tolerated by this highest judicial tribunal in the land, vest the President by solemn judg ment with the power under the Constitution to suspend at pleasure all the laws upon your statute-book, and thereby overturn your Government. They have heretofore been held crimes, and crimes of such magnitude that they have cost the perpetrators their lives--not simply their offices, but their lives. Of this I may have more to say hereafter.

But I return to my proposition. The defense of the President is not whether indictable crimes or offenses are laid to his charge, but it rests upon the broad proposition, as already said, that impeachment will not lie against him for any violation of the Constitution and laws because of his asserted constitutional right to judicially interpret every provision of the Constitution for himself, and also to interpret for ·himself the validity of every law and execute

or disregard upon his election any provision of either the Constitution or the laws, espe cially if he declare at or after the fact that his only purpose in violating the one or the other was to have a true construction of the Constitution in the one case and a judicial determination of the validity of the law in the other, in the courts of the United States.

That I do not state this as the position of the President too strongly, I pray Senators to notice what I now say, for I would count myself a dishonored man if purposely here or elsewhere I should misrepresent the position assumed by the President. The counsel for the President [Mr. Curtis] in his opening at tempts to gainsay the statement as I have just made it, that the defense of the President rests upon the assumption as stated in his answer. The counsel, in the opening, states, that-I quote his words from page 382, and they were qualified by none of his associates who followed him; the statement was considerately made; he meant precisely what he said, as follows:

But when, Senators, the question arises whether a particular law has cut off a power confided to him (the President) by the people through the Constitution, and he alone can raise that question, and he alone can cause a judicial decision to come between the two branches of the Government to say which of them is right, and after due deliberation, with the advice of those who are his proper advisers, he settles down firmly upon the opinion that such is the character of the law"

That is to say, that it is unconstitutional, that it cuts off a power confided to him by the people

"it remains to be decided by you whether there is any violation of his duty when he takes the needful steps to raise that question and have it peacefully. decided in the courts."

I ask, Senators, in all candor, if the President of the United States, by force of the Constitution, as the learned counsel argue, is vested with judicial authority thus to interpret the Constitution and decide upon the validity of any law of Congress upon this statement of counsel as I have just read it from the report now before you and upon your tables, what is there to hinder the President from saying this of every law of the land; that it cuts off some power confided to him by the people?

Senators, the learned gentleman from Massachusetts was too self-poised; he is, manifestly, too profound a man to launch out upon this wild, stormy sea of anarchy, careless of all consequences, in the manner in which some of his associates did. You may remember and I quote it only from memory, but it is burned into my brain, and will only perish with my life-you remember the utterance of the gentleman from New York, not so careful of his words, who before you said, in the progress of his argument, that the Constitution had invested the President with the power to guard the people's rights against congressional encroachments. You remember that as he progressed in his argument he ventured upon the further assertion in the presence of the Senate of the United States, and so you will find it written doubtless in the report, that if you dared to decide against the President upon this issue, the question would be raised before the people under the banner of the supremacy of the Constitution in defense of the President, and the omnipotence of Congress upon the other; the supremacy of the Constitution would be the sign under which the President was to conquer against the omnipotence of Congress to bind him by laws enacted by themselves in the mode prescribed by the Constitution.

Senators, I may be pardoned for summoning the learned counsel from Massachusetts as a witness against the assumption of his client, and against the assumption of his associate counsel, touching this power of the President to dispense with the execution of the laws. In 1862 there was a pamphlet issued bearing the name of the learned gentleman from Massachusetts touching the limitations upon executive power imposed by the Constitution. I read from that pamphlet, and pledge myself to produce the original, so that it may be inspected

by the Senate. I regret that my reporter has not brought it into the court. It shows the difference between the current of a learned man's thoughts when he speaks for the people and according to his own convictions, and the thoughts of the same learned man when he speaks for a retainer:

"Executive Power," by B. R.Curtis: Cambridge, 1862. Dedicated-" To all persons who have sworn to supoort the Constitution of the United States, and to all citizens who value the principles of civil liberty which that Constitution embodies, and for the preservation of which it is our only security, these pages are respectfully dedicated"-by the Author.

"The President is the Commander-in-Chief of the Army and Navy, not only by force of the Constitution. but under and subject to the Constitution, and to every restriction therein contained, and to every law enacted by its authority, as completely and clearly as the private in the ranks. He is General-in-Chief, but can a General-in-Chief disobey any law of his own country? When he can he superadds to his rights as commander the powers of a usurper; and that is miltary despotism;" the mere authority to command an army is not an authority to disobey the laws of the country."

*

The President has only executive power, not legislative, not judicial. The learned counsel has learned that word "judicial" after he entered upon the defense of the President. I may be pardoned in saying that I lay nothing to his charge in this. He bore himself bravely and well in the presence of this tribunal. He discharged his duty and his whole duty to his client. If he has even changed his mind he had a right to change it in the interests of his client; but I have a right to have him bear witness in the interests of the people and in support of the Constitution of my country. I therefore read further from him:

"Besides all the powers of the President are executive merely. He cannot make a law. He cannot repeal one. He can only execute the laws. He can neither make nor suspend nor alter them. He cannot even make an article of war."

That is good law. It was not good law in the midst of the rebellion, but it is good law, nevertheless, under the Constitution, in the light of the interpretation given to it by that great man, Mr. John Quincy Adams, whom I before cited. When the limitations of the Constitution are operative, when the whole land is covered with the serene light of peace, when every human being, citizen and stranger, within your gates is under the shelter of the limitations of the Constitution, it is the very law and nothing but the law.

Now, Senators, that this alleged judicial executive power of the President to suspend at his discretion all the laws upon your statutebook and to dispense with their execution is the defense and the whole defense of this President seems to me clear-clear as that light of heaven in which we live, and so clear, whatever may be the decision of this tribunal, that it will be apparent to the judgment of the American people. It cannot be otherwise. It is written in his answer. It is written in the arguments of bis counsel printed and laid upon your tables. No mortal man can evade it. It is all there is of it; and to establish this assertion that it is all there is of it I ask Senators to consider what article the President has denied? Not one. I ask the Senate to consider what offense charged against him in the articles of the House of Representatives he has not openly by his answer confessed or is not clearly established by the proof? Not one. Who can doubt that while the Senate was in session the President, in direct violation of the express requirement of the law, which, in the language of his honor, the Chief Justice, in the Mississippi case, left no discretion in him, enjoined a special duty on him, did purposely, deliberately, violate the law and defy its authority, in that he issued an order for the re-. moval of the Secretary for the Department of War and issued a letter of authority for the appointment of a successor, the Senate being in session and not consulted in the premises? The order and the letter of authority are written witnesses of the guilt of the accused. They are confessions of record. There is no escape from them.

If this order is a clear violation of the tenureof-office act, if the letter of authority is also a

clear violation of the tenure-of office act, the President is manifestly guilty, in manner and form, as he stands charged in the first, the second, the third, the eighth, and the eleventh articles of impeachment; and no man can gain. say it except a man who accepts as law the assumption of his answer that it is his executive prerogative judicially to interpret the Constitution for himself; to set aside, to violate, and to defy the law when it vests no discretion in him whatever, and challenge the people to bring him to trial and judgment.

Senators, on this question of the magnitude and character of these offenses charged against the President I shall be permitted, inasmuch as the counsel from New York thought it important to refer to it, to ask your attention to what was ruled and settled, and I think well settled, on the trial of Judge Peck. The counsel took occasion to quote, as you may remember, a certain statement from the record of that trial, but took special pains to avoid any statement of what was actually settled by it. I choose to have the whole of the authority. If the gentleman insists upon the law in this case, I insist upon all the forms and upon all its provisions. In the trial of Peck, from which I read on page 427, Mr. Buchanan, chairman of the Managers on the part of the House of Representatives, made the statement that

"An impeachable violation of law may consist in the abuse as well as in the usurpation of authority."

Subject, if you please, to the limitations of your own law that the abuse and the usurpation, as is clearly the fact here in the capital, are indictable. I venture to say, Senators, it you look carefully through that record you will find none of the learned gentlemen who appeared in behalf of Judge Peck questioning for a moment the correctness of the proposition. The learned and accomplished and lamented ex-Attorney General of the United States, Mr. Wirt, who appeared on that trial, admitted it. There seemed to have been no question in the Senate upon the subject against it. I think Mr. Buchanan was most happy in his statement of the law in declaring that it may consist in an abuse of power and may consist in a usurpation of authority. For the purposes of this case I think it capable of the clearest demonstration that this is the rule which ought to govern its decision, inasmuch as all the offenses charged, when committed within the District, as already shown, are indictable.

It is conceded that there is a partial exception to this rule, and that exception furnishes all the law which has appeared in this case, so far as I have been able to discover, in the defense of the Executive. It is an exception, however, made exclusively in the interests of judicial officers. The rule is well stated in 5 Johnson, 291, by Chancellor Kent, in the case of Yates vs. Lansing. I read from that authority:

"Judicial exercise of power is imposed upon the courts, and they must decide and act according to their judgment, and therefore the law will protect them.'

He adds:

"The doctrine which holds a judge exempt from a civil suit or indictment for any act done or omitted to be done by him sitting as judge has a deep root in the common law. It is to be found in the earliest judicial records, and it has been steadily maintained by an undisturbed current of decisions in the English courts amid every change of policy and through every revolution of their Government.'

A judge manifestly, upon this authority, acting within his general authority, cannot be held to answer for an error of judgment. He would only be impeachable, however erroneous his judgment might be, for an abuse, for a usurp ation of authority great in itself, and it must be specially averred, and must be proved as averred. No such rule ever was held to apply, since the courts first sat at Westminster, to an executive officer. It is an exception running through all the law in favor of judicial officers. A mere executive officer clothed with no judicial authority would be guilty of usurpation without the averment of corruption. I beg to say that it has never been averred, or held

necessary if averred, in any authoritative case against any executive officer whatever. An error of judgment would not excuse him. I refer to the general rule of law on this subject as stated by Sedgwick in his work on statutory and constitutional law, in which he says:

"Good faith is no excuse for the violation of statutes. Ignorance of the law cannot be set up in defense, and this rule holds good in civil as well as in criminal cases."-1 Sedgwick, 100.

Mr. CONNESS. Mr. President, I should like to ask the Manager whether he feels able to go on further to-day or not? I make the suggestion to him.

Mr. Manager BINGHAM. I am at the pleasure of the Senate. I will be able to proceed, if it be the pleasure of the Senate, for half an hour or so more with this argument; but I abide the pleasure of the Senate, and will defer to whatever may be their wishes about it.

Several SENATORS. Go on! Go on!

Mr. Manager BINGHAM. Senators, at this point of the argument the gentleman from New York, speaking for the President, knowing that the rule as I have read it from Sedgwick is the rule of universal application to executive officers and to all officers save judicial officers, that ignorance of the law can never be interposed as an excuse either in civil or criminal proceedings for the deliberate violation of the law, entered upon a wonderful adventure when he undertook to tell the Senate of the United States-I really thought it was a slip of the tongue, for I have great respect for his learning, and I could not but think he knew better-but he intimated that this rule, which holds the violator of law answerable and necessarily implies the guilty purpose and the guilty intent from the fact of its violation, was a rule that was restricted to offenses mala in se. The gentleman ought to have known when he made that utterance that the highest writer upon the law in America, and second to no writer upon the law who writes in the English language in any country, has truly recorded in his great commentaries upon the laws that the distinction between mala prohibita and mala in se is long ago exploded, and the same rule applies to the one as to the other. I refer to 1 Kent's Commentaries, page 529, and really I cannot see why it should not be so. I doubt very much whether it is within the compass of the mind of any Senator within the hearing of my voice to say it should not be so. Chancellor Kent says upon that subject, page 529:

"The distinction between statutory offenses which are mala prohibita only, or mala in se, is now exploded, and a breach of the statute law in either case is equally unlawful and equally a breach of duty."

The Senate will remember the very curious and ingenious use that the gentleman attempted to make of this statement of his, and that was that it cannot be possible that you are to hold these acts of the President criminal by force of the act of 1801 which, by relation simply, makes common-law offenses indictable crimes within the District of Columbia; that was not the only use, but that was a part of it, and he went on to say to the Senate further that he could not see the force of the remark made by my colleague, [Mr. BOUTWELL,] that the President of the United States in this letter of authority by the appointment ad interim of Lorenzo Thomas in the presence of the Senate, during its session, without its advice and consent, twelve days after the expiration of the six months limited by the provisions of the act of 1795, could be held a criminal act. The defense of the President in some sort rested on the provisions of that law which authorized him to supply a vacancy in the several Departments for a period not exceeding six months. Well, I will try to explain it here if I may be pardoned in case I should happen to refer to it again in the progress of my argument.

It is explained by this simple word, that the act of 1795, under which he attempts in his distress to shelter himself, says that no one vacancy shall be so supplied for a longer period than six months; he did supply it, according

to the very words of his answer, for he tells you he made a vacancy indefinitely when he suspended Edwin M. Stanton, Secretary of War; he says in his answer it was an indefinite suspension, not simply for six months, but during the time he might occupy the executive power in this country. He indefinitely sus pended him, he says, under the Constitution and laws; and he tells you further, in the same answer, that under the act of 1795 he supplied the vacancy. That act told him he should not supply it for a longer period than six months, unless it results that at the end of every six months he may supply it again and the statute thereby be repealed, supply it to the end of the time allotted him under the Constitution to execute the office of President of the United States. I would like some Senator, in your deliberations, to make answer to that suggestion and see how it can be got rid of. He makes a vacancy indefinitely; he appoints General Grant Secretary of War ad interim; at the end of six months, and twelve days after the expiration of six months, in utter defiance of the law of 1795, he makes another appointment; and at the end of that six months and twelve days after, if you please, in further defiance of it, he makes another, and so on until the end of the time during which he may exercise the office of President, while the law itself expressly declares that no vacancy shall be so supplied for a longer period than six months. I think the but for the interest he felt in the fate of his gentleman from New York could have seen it client. That is my impression, and everybody else can see it in this country.

But it has been further said, by way of illustration and answer to all this, said by the counsel for the President, "Suppose the Congress

of the United States should enact a law in clear violation of the express power conferred upon the President, as, for example, a law declaring that he shall not be Commander-in-Chief of the Army, a law declaring that he shall not exercise the pardoning power in any case whatever, is not the President to intervene and protect the Constitution?" I answer, no; not by repealing the laws. The President is not to intervene and protect the Constitution against the laws. The people of the United States are the guardians of their own honor, the protectors of their own Constitution, and if there be anything in that Constitution more clearly written and defined and established than another, it is the express and clear provision that the legislative department of this Government is responsible to no power on earth for the exercise of their legislative authority and the discharge of their duties during the sessions of the Congress save to the people that appointed them. It is a new doctrine altogether that the Constitution is exclusively in the keeping of the President. When that day comes, Senators, that the Constitution of your country, so essential to your national existence and so essential to the peace, the happiness, and the prosperity of the people, rests exclusively upon the fidelity and patriotism and integrity of Andrew Johnson, may God save the Consulation and save the republic from its defender! No, sirs; there is no such power vested in the President of the United States. It is only coming back to the old proposition.

Why, say the gentlemen, surely it would be unconstitutional for Congress so to legislate. Agreed, agreed; I admit that it would be not only unconstitutional, but it would be criminal. But the question is, before what tribunal is the Congress to answer? Only before the tribunal of the people. Admit that they did it corruptly, admit that they did it upon bribe; and yet every man at all conversant with the Constitution of the country knows well that it is written in that instrument that members of Congress shall not be held to answer in any other place or before any body whatever for their official conduct in Congress assembled save to their respective Houses. That is the end of it. They answer to the people, and the people alone can apply the remedy, and of course ought to apply it. You cannot make

removal and appointment during the session of the Senate in their presence and without their consent together.

Every line and word of the voluminous arguments uttered by the very learned and ingenious counsel of the President bears witness to the truth of that which I now assert. Why was this? Simply, Senators, as I shall presently show you, that the appointing power is by the express terms of the Constitution, during the session of the Senate, put beyond the power of the President, save and except where it is expressly authorized by law. I thank the gentlemen for making this concession, for it is a confession of guilt on the part of their client. When no answer could be made they acted upon the ancient, time-honored, and accepted maxim that silence is gold, and so upon that point they were silent one and all without exception. There was an appointment made here in direct violation of express law; in direct violation of the express letter of the Constitution; in direct violation of every interpretation that has ever been put upon it by any commanding intellect in this country, and the gentlemen knew it.

It is in vain, Senators, that they undertake to meet that point in this case by any reference to the speech of my learned and accomplished friend who represents the State of Ohio upon the floor of the Senate, [Mr. SHERMAN.] Not a word escaped his lips in the speech which they have quoted here touching this power of appointment during the session of the Senate and in direct violation of the express letter of the tenure-of-office act, nor did any such word escape from the lips of any Senator. I am not surprised; it does credit to the intellectual ability of the learned gentlemen who appear for the President that they kept that question out of sight in their elaborate and exhaustive arguments. I read for the Senators the provision of the Constitution upon this subject which I read yesterday:

"shall nom

"The President" inate, and by and with the advice and consent of the Senate shall appoint, embassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law, but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of Departments."

Can any one doubt that this provision clearly restricts the power of the President over the appointment of heads of Departments in this, that it expressly requires that all appointments not otherwise provided for in this Constitution, enumerating embassadors and others, shall be by and with the advice and consent of the Senate? It is useless to waste words upon the proposition. It is plain and clear. It must be so unless the appointments of the heads of Departments, in the words of the Constitution, are otherwise provided for; and I respectfully ask Senators wherein are they otherwise provided for in the Constitution? The heads of Departments are named by that title, and by the very terms of the Constitution it is provided that the Congress may by law vest in the heads of Departments the power to appoint without the consent of the President, without the consent of anybody but the authority of a law of Congress, all inferior officers. Is any man, in the light of this provision, to stand before the Senate and argue that heads of Departments are inferior officers? If, then, their appointment is not otherwise provided for in the Constitution, which I take for granted, I ask the Senate whether their appointment is otherwise provided for by law, whether it was ever otherwise provided for by law?

I am not unmindful of the fact, in passing, that some of the learned counsel for the President said "here was no appointment; this was only an authority to fill a vacancy." "The counsel are not strong enough for their client. They cannot get rid of his answer. He declares that he did make an appointment indefinitely, made a removal and filled it, and followed it with another. The words " ap

pointment ad interim" more than once unwittingly escaped the lips of the counsel. But I do not propose to rest this case upon any quibbles, upon any technicalities, upon any controversy about words. I rest it upon the broad spirit of the Constitution, and stand here this day to deny that there ever was an hour since the Constitution went into operation that the President of the United States had authority to authorize anybody, temporarily even, to exercise the functions of a head of a Department of this Government save by the authority of express law. It is surely a self-evident proposition that must be understood by Senators that the power which created the law may repeal it.

I make this remark here and now because the President's defense, as stated in his answer more clearly and distinctly than in any of the arguments of the learned counsel, is that he asserts and exercises this power by virtue of the implied, unwritten executive prerogative judicially to interpret the Constitution for himself and judicially to determine the validity of all the laws of the land for himself, and therefore to appoint just such ministers as he pleases, at such times as he pleases, and for such periods as he pleases, in defiance alike of the Constitution and of the laws. The language is that the removal was indefinite. The language of his answer is that he indefinitely vacated the office, and filled it, of course, indefinitely, and that is his defense. There is no getting away from it. In the answer, on pages 25 and 26 of the record, this will be found recorded in it:

"And this respondent, further answering, says, that it is provided in and by the second section of an act to regulate the tenure of certain civil offices, that the President may suspend an officer from the performance of the duties of the office held by him, for certain causes therein designated, until the next meeting of the Senate, and until the case shall be acted on by the Senate; that this respondent, as President of the United States, was advised, and he verily believed and still believes, that the executive power of removal from office confided to him by the Constitution, as aforesaid, includes the power of suspension from office at the pleasure of the President, and this respondent, by the order aforesaid, did suspend the said Stanton from office, not until the next meeting of the Senate, or until the Senate should have acted upon the case, but by force of the power and authority vested in him by the Constitution and laws of the United States, indefinitely and at the pleasure of the President."

he claims this power. On that subject, Senators, I beg leave to say, in addition to what I have already uttered, that it was perfectly well understood when the Constitution was on trial

for its deliverance before the American people that no such power as this was lodged in the

President of the United States; on the contrary, that for every abuse of power, for every usurpation of authority, for every violation of the Constitution and the laws, he was liable at all times to that unrestricted power of the people to impeach him through its Representlet or hindrance from any tribunal in the land. atives and to try him before its Senate without I refer upon this point to the clear utterance enth number of the Federalist: of Hamilton as recorded in the seventy-sev

"It has been mentioned as one of the advantages to be expected from the coöperation of the Senate, in the business of appointments, that it would contribute to the stability of the Administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the Government as might be expected if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body, which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the Government.

To this union of the Senate with the President, in the article of appointments, it has in some cases been objected that it would serve to give the President an undue influence over the Senate; and in others that it would have an opposite tendency; a strong proof that neither suggestion is true.

To state the first, in its proper form, is to refute

it. It amounts to this: the President would have an improper influence over the Senate, because the Senate would have the power of restraining him. This is an absurdity in terms."

And I agree with Hamilton that it is an absurdity in terms after what has been written in the Constitution of your country, for any man, whatever may be his attainments, and whatever may be his pretensions, to say that the President has the power, in the language of his answer, of indefinitely vacating all the executive offices of this country, and indefinitely, therefore, filling them without the advice

and consent of the Senate in the absence of an express law authorizing him so to do. And here I leave that point for the consideration of the Senate and for the consideration, of that great people whom the Senate represent upon this trial.

I ask, also, the judgment of the Senate upon the weighty words of Webster, whom the gentleman [Mr. Evarts] concedes is entitled to some consideration in this body, who illustrated for long years American institutions by his wisdom, his genius, and his learning; a man who, when living, stood alone among living men by reason of his intellectual stature; a man who, when dead, sleeps alone in his tomb by the sounding sea, meet emblem of the majesty and sweep of his matchless intellect. I ask, Senators, attention to the words of Mr. Webster on this.appointing power conferred upon the President under the Constitution, subject to these limitations, by and with the advice and consent of the Senate:

"The appointing power is vested in the President and Senate; this is the general rule of the Constitution. The removing power is part of the appointing power; it cannot be separated from the rest but by supposing that an exception was intended; but all exceptions to general rules are to be taken strictly. even when expressed; and, for a much stronger reason, they are not to be implied, when not expressed, unless inevitable necessity of construction requires it."-4 Webster's Works. p. 194.

What answer, I pray you, Senators, has been given, what answer can be given to these interpretations of your Constitution by Hamilton and Webster? None, except to refer to the acts of 1789 and 1795, and the opinions expressed in the debates of the First Congress. Neither those acts nor the debates justify the conclusion that the President during the session of the Senate may vacate and fill the Executive Departments of this Government at his pleasure, and without the advice and consent of the Senate, in the absence of any express authority of law and in direct violation of the prohibitions of the law. The acts themselves will bear no such interpretation. I dismiss, with a single word, all reference to the debate on the occasion, for the Senate are not unadvised that there were differences of opinion expressed in that debate, nor is the Senate unadvised that it has already been ruled from the Supreme Bench of the United States that the opinions expressed by Representatives or Senators in Congress pending the discussion of any bill are not to be received as any authoritative construction or interpretation whatever to be given to the act. It would be a sad day for the American people if the time should ever come when the utterances of excited debate are to be received ever afterward as the true construction and interpretation of law. Senators, look to the acts, and see whether the gentlemen are justified in attempting to infer either from the legislation of 1789 or from the legislation of 1795 or from any other legislation which at any time existed on the statute-books of this country, this executive prerogative, in direct violation of the express letter of the Constitution, to vacate all the executive offices of this Government at his pleasure, and fill them during the session of the Senate, and thereby control the patronage of the Government, amounting to millions upon millions, at his pleasure, and put it into the hands of irresponsible agents to become only the supple tools of his mad ambition.

Of this act of 1789 Mr. Webster well saidand I am not here even to dispute the proposition; indeed, I would hesitate long before I ventured to dispute any proposition which he