to remove the Secretary of War and to designate any other officer to perform the duties of that office ad interim; thus, for the third time affirming the constitutionality of the statute, and for the second time, its protecting application to Mr. Stanton. There is no instance in our history where there has been such a succession of votes, with such large majorities, declaring the conclusions of the Senate and fixing them beyond recall. Thrice is he armed who hath his quarrel just;" but the tenure-of-office act is armed thrice by the votes of the Senate. The apologists of the President seem to say of these solemn votes, "Thrice the brinded cat hath mewed;" but such a threefold record of the Senate cannot be treated with levity.

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The question of the constitutionality of this statute complicates itself with the power of removal under the Constitution; but I shall not consider the latter question at this stage. It will naturally present itself when we consider the power of removal under the Constitution which has been claimed by the President. For the present I assume the constitutionality of the statute.

ITS APPLICATION TO MR. STANTON.

I come at once to the question of the application of the statute to Mr. Stanton, so as to protect him against removal without the consent of the Senate. And here I doubt if any question would have arisen but for the hasty words of the Senator from Ohio, [Mr. SHERMAN,] so often quoted in this proceeding.

Unquestionably the Senator from Ohio, when the report of the conference committee of the two Houses was under discussion, stated that the statute did not protect Mr. Stanton in his office; but this was the individual opinion of this Senator, and nothing more. On hearing it I cried from my seat, "The Senator must speak for himself;" for I held the opposite opinion. It was clear to my mind that the statute was intended to protect Mr. Stanton, and that it did protect him. The Senator from Oregon, [Mr. WILLIAMS,] who was the chairman of the conference committee and conducted its deliberations, informs us that there was no suggestion in the committee that the statute did not protect all of the President's Cabinet, including, of course, Mr. Stanton. The debates in the House of Representatives are the same way. Without undertaking to hold the scales in which to weigh any such conflicting opinions, I rest on the received rule of law that they cannot be taken into account in determining the meaning of the statute. And here I quote the judgment of the Supreme Court of the United States, pronounced by Chief Justice Taney:

"In expounding this law, the judgment of the court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law that passed is the will of the majority of both Houses and the only mode in which that will is spoken is in the act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was passed.-Aldridge vs. Williams, 3 Howard's Reps., 24.

It is obvious to all acquainted with a legis lative body that the rule thus authoritatively declared is the only one that could be safely applied. The Senate in construing the present statute must follow this rule. Therefore, I repair to the statute, stopping for a moment to glance at the public history of the times, in order to understand its object.

Already we have seen how the President, in carrying forward his usurpation in the interest of the Rebellion, had triffed with the Senate in regard to appointments, and abused the traditional power of removal, openly threatening good citizens in office that he would "kick them out," and filling all vacancies, from high to low, with creatures whose first promise was to sustain his barbarous policy. I do not stop to portray the extent of this outrage, constituting an impeachable offense according to the declared opinion of Mr. Madison, one of the strongest advocates of the presidential power

of removal. Congress, instead of adopting the remedy suggested by this father of the Constitution and expelling the President by process of impeachment, attempted to wrest from him the power he was abusing. For this purpose the Tenure-of-Office Act was passed. It was deemed advisable to include the Cabinet officers within its protection; but, considering the intimate relations between them and the President, a proviso was appended securing to the latter the right of choosing them in the first instance. Its object was, where the President finds himself, on accession to office, confronted by a hostile Senate to secure to him this right of choice, without obliging him to keep the Cabinet of his predecessor; and accordingly it says to him, "Choose your own Cabinet, but expect to abide by your choice, unless you can obtain the consent of the Senate to a change."

Any other conclusion is flat absurdity. It begins by misconstruing the operative words of the proviso, that the Cabinet officers "shall hold their offices respectively for and during the term of the President by whom they are appointed." On its face there is no ambiguity here. It is only by going outside that any can be found, and this disappears on a brief inquiry. At the date of the statute Andrew Johnson had been in office two years.

Some

the concluding words of the proviso, which declares that they shall be subject to removal by and with the advice and consent of the Senate; thus expressly excluding the prerogative of the President.

Let us push this inquiry still further by looking more particularly at the statute, reduced to a skeleton, so that we may see its bones. It is as follows:

(1.) Every person holding any civil office, by and with the advice and consent of the Senate, shall be entitled to hold such office until a successor is appointed.

(2.) If members of the Cabinet, then during the term of the President by whom they may have been appointed and one month thereafter, unless sooner removed by consent of the Sen

ate.

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Mr. Stanton obviously falls within the general class, every person holding any civil office;" and he is entitled to the full benefit of the provision for their benefit.

As obviously he falls within the sub-class, "members of the Cabinet."

In this latter class his rights are equally clear. It is in the discussions under this head that the ingenuity of lawyers has found the amplest play, mainly turning upon what is meant by "term in the statute. I glance for a moment at some of these theories.

act.

Andrew Johnson did not originally ap point Mr. Stanton, Mr. Seward, or Mr. Welles, but he adopted their appointments, so that at the passage of the statute they stood on the same footing as if originally appointed by him. Practically and in the sense of the statute, they were appointed by him. They were a Cabinet of his own choice, just as much as the Cabinet of his successor, duly appointed, will be of his own choice. If the statute compels the latter, as it clearly does, to abide by his choice, it is unreasonable to suppose that it is not equally obligatory on Andrew Johnson. Otherwise we find a special immunity for that President whose misconduct rendered it necessary, and Congress is exhibited as legislating for some future unknown President, and not for Andrew Johnson, already too well known.

Even the presidential apologists do not question that the members of the Cabinet commissioned by Andrew Johnson are protected by the statute. How grossly unreasonable to suppose that Congress intended to make such a distinction among his Cabinet as to protect those whose support of his usurpation had gained them seats which they enjoyed, while it exposed to his caprice a great citizen, whose faithful services during the war had won the gratitude of his country, whose continuance in office was regarded as an assurance of Public Safety, and whose attempted removal has been felt as a national calamity. Clearly, then, it was the intention of the statute to protect the whole Cabinet, whether originally appointed by Andrew Johnson or originally appointed by his predecessor and continued by him.

I have no hesitation in saying that no other conclusion is possible without doing violence to the statute. I cannot forget that, while we are permitted to open the law on doubts," we are solemnly warned "not to open doubts on the law." It is Lord Bacon who gives us this rule, whose obvious meaning is, that where doubts do not exist they should not be invented. It is only by this forbidden course that any question can be raised. If we look at the statute in its simplicity, its twofold object is apparent; first, to prohibit removals; and, secondly, to limit certain terms of service. hibition to remove plainly applies to all. The limitation of service applies only to members of the Cabinet. I agree with the excellent Senator from Iowa [Mr. HARLAN] that this analysis removes all ambiguity. The pretension that any one of the Cabinet was left to the unchecked power of the President is irreconcilable with

The pro

(1.) One pretension is that the "term" exMr. Stanton is retroactively legislated out of office on the 15th May, 1865. As this is a penal statute this construction makes it ex post facto, and therefore unconstitutional. It also makes Congress enact this absurdity that Mr. Stanton had for two years been holding office illegally, whereas he had been holding under the clearest legal title, which could no more be altered by legislation than black could be made white. A construction which makes the statute at once unconstitutional and absurd must be rejected.

(2.) The quibble that would exclude Mr. Stanton from the protection of the statute, because he was appointed during the first "term" of President Lincoln, and the statute does not speak of "terms," is hardly worthy of notice. It leads to the same absurd results as follow from the first supposition, enhanced by increasing the retroactive effect.

(3.) Assuming that the statute does not terminate Mr. Stanton's right a month after President Lincoln's death, it is insisted that it must take effect at the earliest possible moment, and therefore on its passage. From this it follows that Mr. Stanton has been illegally in office since the 2d March, 1867, and that both he and the President have been guilty of a violation of law, the former in exercising the duties of an office to which he had no right, and the latter for appointing him, or continuing him, in office, without the consent of the Senate, in violation of the Constitution and the statute in question. Here is another absurdity to be rejected.

(4.) Assuming, as it is easy to do, that it is President Lincoln's "term" we have the better theory, that it did not expire with his life, but continues until the 4th March, 1869, in which event Mr. Stanton is clearly entitled to hold until a month thereafter. This construction is entirely reasonable and in harmony with the Constitution and legislation under it. I confess that it is one to which I have often inclined.

This brings me back to the construction with which I began, and I find Andrew Johnson is the President who appointed Mr. Stanton. To make this simple, it is only necessary to read "chosen" for "appointed" in the statute, or, if you please, consider the continuance of Mr. Stanton in office, with the concurrence of the President, as a practical appointment equivalent thereto. Clearly Mr. Stanton was in office when the statute passed from the "choice" of the President. Otherwise he would have been removed. His continuance was like another commission. This carries out the intention of the framers of the statute, violates no sound canon of construction, and is entirely reasonl able in every respect. Or, if preferred, we

may consider the "term" to be that of President Lincoln, and then Mr. Stanton would be protected in office until one month after the 4th March next. But whether the "term" be of Andrew Johnson or of President Lincoln, he is equally protected.

Great efforts have been made to show, that Mr. Stanton does not come within the special protection of the proviso, without considering the irresistible consequence that he is then within the general protection of the statute, being a person holding a civil office." Turn him out of the proviso and he falls into the statute, unless you are as imaginative as one of the apologists, who placed him in a sort of intermediate limbo. But the imagination of this conception cannot make us insensible to its ineffable absurdity. It is utterly unreasonable, and every construction must be rejected which cannot stand the touch-stone of common

sense.

THE SUSPENSION OF MR. STANTON RECOGNIZED HIM AS PROTECTED BY THE STATUTE.

Here I might close this part of the case; but there is still another illustration. In suspending Mr. Stanton from office as long ago as August the President himself recognized that he was protected by the statute. The facts are familiar. The President, in formal words, undertook to say that the suspension was by virtue of the Constitution; but this was a dishonest pretext in harmony with so much in his career. Whatever he may say, his acts speak louder than his words. In sending notice of the suspension to the Secretary of the Treasury, and then again in sending a message to the Senate assigning his reasons for the suspension, both being according to the requirements of the statute, he testified that, in his judgment at that time, Mr. Stanton came within its protection. If not, why thus elaborately comply with its requirements? Why the notice to the Secretary of the Treasury? Why the reasons to the Senate? All this was novel and without example. Why write to General Grant of "being sustained" by the Senate? The approval or disapproval of the Senate could make no difference in the exercise of the power which he now sets up. The approval could not confirm the suspension; the disapproval could not restore the suspended Secretary of War. In fine, why suspend at all? Why exercise the power of suspension when the President sets up the power of removal? If Mr. Stanton was unfit for office and a thorn in his side, why not remove him at once? Why resort to this long and untried experiment merely to remove at last? There is but one answer. Beyond all question the President thought Mr. Stanton protected by the statute, and sought to remove him according to its provisions, beginning, therefore, with his suspension. Failing in this, he undertook to remove him in contravention of the statute, relying in justification on his pretension to judge of its constitutionality or the pusillanimity of Congress or something else to turn up "which should render justification

unnecessary.

Clearly the suspension was made under the tenure-of-office act and can be justified in no other way. From this conclusion the following dilemma results: If Mr. Stanton was within the statute, by what right was he removed? If he was not, by what right was he suspended? The President may choose his horn. Either will be sufficient to convict.

I should not proceed further under this head but for the new device, which makes its appearance under the auspices of the Senator from Maine, [Mr. FESSENDEN,] who tells us that "whether Mr. Stanton came under the first section of the statute or not, the President had a clear right to suspend him under the second." Thus, a statute, intended as a bridle on the President, gives to the President the power to suspend Mr. Stanton, but fails to give to Mr. Stanton any protection against the President. This statement would seem to be enough. The invention of the Senator is not less fallacious than the pretext of the President. It is a device well calculated to help the President and to

hurt Mr. Stanton, with those who regard devices more than the reason of the statute and its spirit.

constitutional requirement. To such preten sions is he driven. The exception recognized by the Constitution is only where a vacancy occurs during the recess of the Senate, when

I turn for the present from the tenure-ofoffice act, insisting that Mr. Stanton is within its protection, and being so, that his removal was, under the circumstances, a high misdemeanor, aggravated by its defiant purpose and the long series of transgressions which preceded it, all showing a criminal intent. The apologies of the President will be considered hereafter.

THE SUBSTITUTION OF THOMAS AD INTERIM.

The case of Mr. Stanton has two branches: first, his removal, and, secondly, the substitution of General Thomas as Secretary of War ad interim. As the first was contrary to positive statute, so also was the latter without support in the acts of Congress. For the pres ent I content myself with this latter proposi tion, without opening the question of the pow ers of the President under the Constitution.

The offender rests his case on the act of Congress of February 13, 1795, (1 Statutes-atLarge, 415,) which authorizes the President, "in case of vacancy in the office of Secretary of War, whereby he cannot perform the duties of said office," to appoint "any person" until a successor be appointed or such vacancy be filled; and the supply of the vacancy is limited to six months. Under this early statute the President defends himself by insisting that there was a "vacancy," when, in fact, there was none. All this is in that unfailing spirit of prerogative which is his guide. Here is an assumption of power. In point of fact, Mr. Stanton was at his office quietly discharging its duties, when the President assumed that there was a 66 vacancy" and forthwith sent the valiant Adjutant General to enter upon possession. The assumption and the commission were on a par. There is nothing in any law of the land to sanction either. Each testifies against the offender.

The hardihood of this proceeding becomes more apparent, when it is understood, that this very statute of 1795, on which the offender relies, was repealed by the statute of February 20, 1863, passed in our own day and freshly remembered by many of us. The latter statute by necessary implication obliterated the former. Such is the obvious intention, and I do not hesitate to say, that any other construction leads into those absurdities which constitute the staple of the presidential apologists. The object of Congress was to provide a substitute for previous statutes, restricting at once the number of vacancies which might be filled and the persons who might fill them. And this was done.

As by the Constitution, all appointments must receive the consent of the Senate, therefore any legislation in derogation thereof must be construed strictly; but the President insists that it shall be extended even in face of the

can obtain the consent of the Senate and no longer. It is obvious, however, that cases may arise where a sudden accident vacates the office or where the incumbent is temporarily disabled. Here was the occasion for an ad interim appointment, and the repealing statute embodying the whole law of the subject, was intended to provide for such cases; securing to the President time to select a successor, and also power to provide for a temporary disability. Such is the underlying principle of this statute, which it is for us to apply on the present occasion. The expiration of a commission, which ordinary care can foresee, is not one of these sudden emergencies for which provision must be made; and, assuming that vacancies by removal were contemplated, which must be denied, it is plain that the delay required for the examination of the case would give time to select a successor, while a removal without cause would never be made until a successor was ready.

Look now at the actual facts and you will see how little they come within the reason of an ad interim appointment. Evidently the President had resolved to remove Mr. Stanton last summer. Months passed, and he did not consummate his purpose till February. All the intervening time was his to select a successor, being a period longer than the longest fixed for the duration of an ad interim appointment by the very statutes under which he professed to act. In conversation with General Sherman, a month before the removal, he showed that he was then looking for a successor ad interim. Why not a permanent successor? It took him only a day to find Mr. Ewing. If, as there is reason to suppose, Mr. Ewing was already selected, when General Thomas was pushed forward, why appoint General Thomas at all? Why not, in the usual way, send in Mr. Ewing's name as the successor? For the excellent reason, that the offender knew the Senate would not confirm him, and that, therefore, Mr. Stanton would remain in office; whereas through an ad interim appointment he might obtain possession of the War Department, which was his end and aim. The ad interim appointment of General Thomas was, therefore, an attempt to obtain possession of an office without the consent of the Senate, precisely because the offender knew that he could not obtain that consent. And all this was under the pretext of an act of Congress, which, alike in letter and spirit, was inapplicable to the case.

Thus does it appear, that, while Mr. Stanton was removed in violation of the tenure-ofoffice act, General Thomas was appointed Secretary of War ad interim in equal derogation of the acts of Congress regulating the subject.

REMOVAL AND SUBSTITUTION AD INTERIM A VIOLATION OF THE CONSTITUTION.

It remains to consider if the removal and substitution were not each in violation of the Constitution. The case is new, for never until now could it arise. Assuming that the tenureof-office act does not protect Mr. Stanton, who is thus left hung up in the limbo between the body of the act and the proviso, then the President is remitted to his prerogative under the Constitution, and he must be judged accordingly, independent of statute. Finding the power of removal there, he may be justified; but not finding it there, he must bear the consequences. And here the tenure-of-office act furnishes a living and practical construction of the Constitution from which there is no appeal.

From the Constitution it appears that the power of appointment is vested in the President and Senate conjointly, and that nothing is said of the power of removal, except in case of impeachment, when it is made by the Senate. Therefore the power of removal is not express, but implied only, and must exist if at all, as a necessary consequence of the power

to appoint. In whom must it exist? It is a familiar rule, that the power which makes can unmake. Unless this rule be rejected, the power of removal must exist in the President and Senate conjointly; nor is there anything unreasonable in this conclusion. Removal can always be effected during the session of the Senate by the nomination and confirmation of a successor, while provision can be made for the recess by an act of Congress. This conlusion would be irresistible, were the Senate always in session, but since it is not, and since cases may arise during the recess, requiring the immediate exercise of this power of removal, it has been argued that at least during the recess it must be in the President alone. From this position there has been a jump to the next, and it has been insisted that since, for the sake of public convenience, the power of removal exists in the President, he is at liberty to exercise it, either during the recess or the session itself. Here is an obvious ex' tension of the conclusion which the premises do not warrant. The reason failing, the conclusion must fail. Cessante ratione cessat etiam ipsa lex. Especially must this be the case under the Constitution. A power founded on implied necessity must fail when that necessity does not exist. The implication cannot be carried beyond the reason. Therefore, the power of removal during the recess, doubtful at best unless sanctioned by act of Congress, cannot be extended to justify the exercise of that power while the Senate is in session, ready to act conjointly with the President.

Against this natural conclusion we have the assumption that a contrary construction of the Constitution was established after debate in 1789. Without considering minutely what was really determined on that occasion, I content myself by asking, if at best it was anything but a congressional construction of the Constitution, and as such subject to be set aside by another voice from the same quarter. It was, moreover, a congressional construction adopted during the administration of Washington, whose personal character must have influenced opinion largely; and it prevailed in the House of Representatives only after earnest debate, by a bare majority, and in the Senate only by the casting vote of the Vice President, John Adams, who from position, as well as principle, was not inclined to shear the President of any prerogative. Once adopted, and no strong necessity for a change occurring, it was allowed to go unaltered, but not unquestioned. Jurists like Kent and Story, statesmen like Webster, Clay, Calhoun, and Benton, recorded themselves adversely, and it was once reversed by the vote of the Senate. Finally, this congressional construction, born of a casting vote, and questioned ever since, has been overruled by another congressional construction, which has been twice adopted in both Houses, first by large majori ties on the original passage of the tenure-ofoffice act, and, then, by a vote of two thirds on the final passage of the same act over the veto of the President; and then again adopted by a vote of more than two thirds of the Senate, when the latter condemned the removal of Mr. Stanton; and all this in the light of experience, after ample debate and with all the consequences before them. Such a congressional construction must have a controlling influence, and the fact that it reversed the practice of eighty years and overcame the disposition to stand on the ancient ways, would seem to increase rather than diminish its weight.

Now, mark the consequences. Originally, in 1789, there was a Congressional construction, which, in effect, made the Constitution read:

"The President shall have the power of removal." For the next eighty years all removals were made under this construction. The Tenureof office act was a new Congressional construction, overruling the first and entitled to equal if not superior weight. By virtue of this Congressional construction, the Constitution now reads:

"The President shall not have the power of removal."

It follows, then, that in removing Mr. Stanton the President violated the Constitution aз now construed.

The dilemma is this: If the President can remove Mr. Stanton during the session of the Senate, without any power by statute, it is only by virtue of a prerogative vested in him by the Constitution, which must necessarily override the Tenure-of-office act, as an unconstitutional effort to abridge it. If, on the other hand, this act is constitutional, the prerogative of removal is not in the President, and he violated the Constitution when he assumed to exercise it.

The Tenure-of-office act cannot be treated otherwise than constitutional. Certainly not in the Senate, where some among the apologists of the President voted for it. Therefore the prerogative of removal is not in the President. The long practice, which grew up under a mere reading of the Constitution, has been declared erroneous. To this extent the Constitution has been amended, and it is as absurd to plead the practice under the first reading in order to justify an offense under the second, as to plead the existence of slavery before the constitutional amendment in order to justify this monstrosity now.

Thus must we conclude that the offender has not only violated the Tenure-of-office act, but also the Constitution; that, even assuming that Mr. Stanton is not protected by the statute, the case is not ended; that this statute, if construed so as to exclude him, cannot be rejected as a Congressional construction of the Constitution; and that, under this Congressional construction, which in value is second only to a constitutional amendment, the prerog. ative of removal without the consent of the Senate does not belong to the President. course the power of suspension under the Constitution, which is only an incident of the larger pretension, must fall also. Therefore, in the defiant removal of Mr. Stanton, and also in the pretended suspension under the Constitution with which the transaction began, the President violated the Constitution, and was guilty of an impeachable offense.

Of

And so, also, we must conclude that, in the substitution of Lorenzo Thomas as Secretary of War ad interim, the offender violated not only the acts of Congress for the supply of vacancies, but also the Constitution. Knowing that he could not obtain possession of the office with the consent of the Senate, he sought to accomplish this purpose without that consent. Thus, under color of a statute, he practically set the Constitution at defiance. Mark here his inconsistency. He violates the Tenure-ofoffice act, alleging that it is against the Constitution, whose champion he professes to be, and then takes advantage of the acts of Congress for the supply of vacancies to set aside the Constitution in one of its most important requirements; for all which he is justly charged with an impeachable offense.

All this seems clear. Any other conclusion gives to the President the power under the Constitution to vacate all national offices and leaves the Republic the wretched victim of tyranny, with a ruler who is not even a constitutional monarch, but a king above all laws. It was solemnly alleged in the articles against Charles I of England, that "being admitted king of England, and therein trusted with a limited power to govern by and according to the laws of the land and NOT OTHERWISE," he nevertheless undertook "to rule according to his will and to overthrow the rights and liberties of the people.' These very words might be adopted now to declare the crime of Andrew Johnson.

THE APOLOGIES.

ogy, that the President may sit in judgment on the laws, and determine whether they shall be executed, which I call the Apology of Prerogative. Following these is a swarm of technicalities, devices, and quibbles, utterly unworthy of the Senate and to be reprobated by all who love justice.

THE APOLOGY OF GOOD INTENTIONS.

I begin with the Apology of Good Intentions. In the light of all that has occurred, with the volume of history open before us, with the records of the Senate in our hands, and with the evidence at the bar not utterly forgotten, it is inconceivable that such an Apology can be put forward. While making it the apologists should be veiled, so that the derisive smile on their faces may not be observed by the Senate to whose simplicity it is addressed. It is hard to treat this Apology; but it belongs to the case, and, therefore, I deal with it.

Of course a mere technical violation of law, with no evil consequences and without any claim of title, is followed by nominal damages only. If a person steps on a field of grass belonging to another, without permission, he is a trespasser, and the law furnishes a familiar proceeding against him; but if he has done this accidentally, and without any real damage, it would be hard to pursue him, unless the assertion of the title were thought important. But if this trespasser is an old offender, who from the beginning has broken fences, ruined trees, and trampled down the garden, and who now defiantly comes upon the field of grass, insisting upon absolute ownership, then it is vain to set up the Apology that very little damage is done. The antecedent transgressions, ending in a claim of title, enter into the present trespass and make it a question whether the rightful owner or the trespasser shall hold possession. Here the rightful owner is the people of the United States, and the trespasser is Andrew Johnson. Therefore in the name of the people is he impeached.

This simple illustration opens the whole case. The mere technical violation of a statute or of the Constitution, without antecedents and without consequents, would not justify an impeachment. All of us can recall such even in the administration of Abraham Lincoln, and I cannot doubt, that, since this proceeding began, the Chief Justice violated the Constitution when he undertook to give a casting vote, not being a member of the Senate. But these were accidents, besides being innocuous. From a violation of the Constitution or of a statute, the law ordinarily infers evil intent, and where such a case is submitted to judgment, it throws upon the violater the burden of exculpation. He must show that his conduct was innocent; in other words, that it was without evil intent or claim of title. In the present cause we have a denial of evil intent, with a claim of title.

The question of intent thus raised by this offender cannot be considered narrowly. This is a trial of impeachment, and not a criminal case in a county court. It is a proceeding for expulsion from office on account of political of fenses, and not a suit at law. When the offender sets up Good Intentions, he challenges inquisition, according to the latitude of such a proceeding. The whole past is unrolled by himself and he cannot prevent the Senate from seeing it. By a commanding rule of evidence it is all before us without any further proof. You cannot shut it out; you cannot refuse to look at it. And yet we have been seriously told that we must shut out from sight everything but the technical trespass. It only remains that, imitating the ostrich, we should thrust our heads in the sand and, not seeing danger, foolishly imagine it does not exist. This may do at Nisi Prius; it will not do in the Senate.

and breadth. I deny it. I scout it. On the contrary, I say, that we must judge all these acts as if committed by Andrew Johnson, and nobody else. In other words, we must see things as they are. As well insist that an act of guilt should be judged as the mistake of innocence. As well argue that the stab of the assassin should be judged as the cut of the surgeon.

To the Apology of Good Intentions, I oppose all that long unbroken series of transgressions, each with a voice to drown every pretext of innocence. I would not repeat what I have already said, but in the presence of this apology it is my duty to remind the Senate how the career of this offender is compounded of falsehood and usurpation; how, beginning with promises to make treason odious, he soon installed it in authority; how, from declared sympathy with Unionists, white and black, he changed to be their persecutor; how in him are continued the worst elements of slavery, an insensibility to right and a passion for power; how in this spirit he usurped great prerogatives which did not belong to him; how in the maintenance of this usurpation he stuck at nothing; how he violated law; how he abused the pardoning power; how he prostituted the appointing power; how he wielded the power of removal to maintain his tyranny; how he sacrificed the Freedmen's Bureau and lifted up the Whisky Ring; how he patronized massacre and bloodshed, and gave a license to the KuKlux-Klan; how, in madness, he entered into conflict with Congress, contesting its rightful power over the reconstruction of the rebel States, and, when Congress would not succumb to his usurpation, how he thwarted and vilified it, expectorating foul-mouthed utterances, which are a disgrace to human nature; how he so far triumphed in his wickedness that in nine States no Union man is safe and no murderer of a Union man can be punished; and, lastly, for time fails, though not the long list of transgressions, how he conspired against the patriot Secretary of War, because he found in that adamantine character an obstacle to his revolutionary career. And now, in the face of this terrible and indisputable record, entering into and filling this impeachment, I hear a voice saying that we must judge the acts in question "as if committed by George Washington." The statement of this pretension is enough. I hand it over to the contempt it deserves.

THE MOOT-COURT APOLOGY.

can touch an act of Congress except incidentally, and then its judgment is binding only on the parties. The incidental reason assigned, as, for instance, that a statute is unconstitutional, does not bind anybody, not even the parties or the court itself. Of course, it cannot bind Congress.

On the evidence it is clear enough that the President had no honest purpose to make a case for the Supreme Court. He may have talked about it, but he was never in earnest. When asked by General Sherman "Why the lawyers could not make a case?" he said in reply that "it was found impossible, or that a case could not be made up." And so at each stage we find him practically discarding the idea. He issues the order of removal. Mr. Stanton disobeys. Here was exactly his opportunity. Instead of making the case by commencing the proper process, he tells General Thomas to "go on and take possession of the office;" and then, putting an end to this whole pretension of a case for the court, he proceeds to treat the latter in every respect, whether of law or fact, as Secretary, welcomes him to his Cabinet, invites him to present the business of his Department, and, so far from taking advantage of the opportunity he had professed to desire, denies its existence. How could he inquire by what authority Mr. Stanton assumed to hold the office of Secretary of War, when he denied, in fact, that he was holding it?

Look a little further and you cannot fail to see the reason of this indifference. The old writ of quo warranto was the only process by which a case could be made; and this could be issued only at the suit of the Attorney General. Had the President made an order of removal, the Secretary would have been compelled to hold only by virtue of the law and the Constitution. In answer to the writ he would have pleaded this protection, and the court must have decided the validity of the plea. Meanwhile he would have remained in office. Had he left, the process would have failed, and there was no other process by which he could raise the question. The decision of the Supreme Court in Wallace vs. Anderson would prevent a resort to a quo warranto on his part, while the earlier case of Marbury vs. Madison would shut him out from a mandamus. The apologists have not suggested any other remedy. It is clear, therefore, that Mr. Stanton's possession of the office was a sine qua non to a case in the Supreme Court; and that this could

.

By this pretension the Supreme Court is converted into a moot-court to sit in judgment on acts of Congress, and the President becomes what, in the time of Charles II, Roger North said good lawyers must be, a "put case. "Even assuming against the evidence that such was his purpose, it is hard to treat it without reprobation. The Supreme Court is not the arbiter of acts of Congress. If this pretension ever found favor, it was from the partisans of Slavery and State Rights, who, assured of the sympathy of the court, sought in this way to assure an unjust triumph. The power claimed is tribunitial in character, being nothing less than a Veto. Its nearest parallel in history is in the ancient Justitia of Arragon, which could set aside laws as unconstitutional. Our Constitution leaves no doubt as to the proper functions of the Supreme Court. It may hear and determine "all cases in law and equity arising under the Constitution, the laws of the United States, and the treaties made under their authority;" but this is all. Its business is to decide "cases;" not to sit in judgment on acts of Congress and issue its tribunitial Veto. If a "case" arises where a statute is said to clash with the Constitution, it must be decided as any other case of conflict of laws. But nothing within the just powers of the court

ment in such a case could not be reached within a year. This was enough to make it impracticable; for, if commenced, it would leave the hated Secretary at his post for the remainder of the presidential term. During the pendency of the proceeding Mr. Stanton would continue the legitimate possessor of the office. Therefore the commencement of a case would defeat the presidential passion for his instant removal. True to his passion he removed the Secretary, well knowing that in this way he prevented a case for the court.

Against this couclusion, where all the testimony is harmonized, we have certain fruitless conversations with his Cabinet, and an attempt to raise the question on a habeas corpus after the arrest of General Thomas. The conversations, whose exclusion has given a handle to the apologists which they do not fail to use, only show that the President had made this question a subject of talk, and that, in the end, it was apparent that he could not make a case for the court so as to remove Mr. Stanton during his term, and as this was his darling object the whole idea was abandoned. The arrest of General Thomas seemed for a moment to furnish another chance; but it is enough to say of the futile attempt at that time, that it was not only after the removal of Mr. Stanton but after the impeachment had been voted by the House.

Had the President been in earnest, it was very easy for him to make a case by proceed

ing against a simple postmaster; but this did not suit him. He was in earnest only to remove Mr. Stanton.

Nothing is clearer than that this Moot-Court Apology is a wretched pretension and afterthought. It is the subterfuge of a criminal to cover up his crime-as if a surgeon had committed murder and then set up the apology that it was an experiment in science.

THE APOLOGY OF PREROGATIVE.

Then comes the Apology of Prerogative, being nothing less than the intolerable pretension, that the President can sit in judgment on acts of Congress, and, in his discretion, refuse to execute them. This Apology is in the nature of a claim of right. Let this be established, and, instead of a government of laws, which is the glory of a Republic, we have only the government of a single man. Here is the One-Man Power with a vengeance.

Of course, if the President can sit in judgment on the Tenure-of-office act, and set it aside as unconstitutional, there is no act of Congress which he may not treat in the same way. He may set aside the whole succession of statutes for the government of the Army; and his interview with General Emory attests his willingness to venture in that direction. In that spirit of oppression which seems to govern him, he may set aside the great statute for the establishment of Civil Rights without distinction of color. But why confine myself to instances? The whole statute-book will be

subject to his prerogative. Vain is the requirement of the Constitution that "the President shall take care that the laws be faithfully executed." Vain is that other requirement, that a bill, approved by two thirds of both Houses over his veto, shall become a law." His veto is perpetual; nor is it limited to any special enactment. It is as broad as the whole recorded legislation of the Republic. There is nothing which it cannot hurry into that maelstrom ingulfing all.

The President considers the statute unconstitutional, say the apologists. A mistake in judgment on such a question is not an impeachable offense, add the apologists. To which I reply, that it is not for a mistake in judgment but for usurpation in undertaking to exercise his judgment at all on such a question that he is impeached; in other words, he is impeached for undertaking to set aside a statute. Whether the statute is constitutional or not is immaterial in this view. The President, after the statute has become a law, is not the person to decide.

Ingenuity seeks to perplex the question by putting impossible cases. For instance, suppose Congress should have lost its wits, so far as to enact that the President should not be Commander-in-Chief of the Army and Navy, or that he should not have the power to grant pardons; and suppose still further, that Congress, in defiance of the positive text of the Constitution, should undertake to create "titles of nobility," must not the President treat such enactments as unconstitutional? Of course he must; but such instances do not help the prerogative now claimed. Every such enactment would be on its face unconstitutional. It would be an act of unreasoning madness, which the President, as well as the courts, must disre gard, as if it were plain nonsense. Its unconstitutionality would be like an axiom, not to be questioned. No argument or authority would be needed. It proves itself. Nor would the duty of disobedience be less obligatory, even if the enactment had been sanctioned by the Supreme Court; and it is not more violent for me to suppose it sanctioned by the Supreme Court than for the apologists to suppose it sanctioned by Congress. The enactment would be a selfevident monstrosity, and therefore must be disobeyed as much as if one of the ten commandments were reversed, so that it should read, "Thou shalt kill." Such extreme cases serve no good purpose. The Constitution is the supreme law of the land, and the people will not allow its axiomatic requirements to be set