made it. They assumed that the history of the world would be before the country. They assumed that the history of English jurisprudence would be known or could be known to Ameri. can citizens. In other words, they assumed that there was and would continue to be a certain amount of knowledge and information in the world, and therefore that it was not necessary for them to provide in the Constitution that the decisions made by the members of the Supreme Court of the United States should be binding upon their successors in office. They knew just as well as you know that the practice of English judges had been for centuries to regard a decision by a judicial tribunal in a case carefully considered, and especially in a case that had continued for any length of time, as an authority' from which it was not safe in the administration of the law to depart.

Now, the argument I make before you is, that as the Constitution of the United States does not specify that the decision of the judges shall have all the binding force of authority in the land and yet it has that force-this act of Congress, although it does not say so in reference to the opinions of the Attorneys General any more than the Constitution does in reference to the decisions of the judges of the Supreme Court of the United States, yet, upon any fair construction, upon any legal intendment, under this act of 1789, the opinion of the Attorney General may be regarded by the President, and by all others who have anything to do with that opinion, as a valid authority, and that it is sufficient to justify his action in any given case that may be covered by that opinion.

What is the provision of the act of September 24, 1789, section thirty-five? (1st volume Statutes-at-Large, page 93, and 1st volume of Brightly's Digest, page 92.) It is provided by

that section

"That there shall be appointed an Attorney General for the United States, who shall be sworn or affirmed to a faithful execution of his office, whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinions upon questions of law when required by the President of the United States, or when requested by the heads of any of the Departments touching any matters that may concern their Departments," &c.

When you take the two provisions together; first, the provision of the Constitution that the President may call upon the principal officer in each executive department for advice and opinion, and second, the provision of the act of 1789 that he may call upon this officer of the law, the Attorney General, for advice and opinion, I maintain that when that advice and opinion are given they are by virtue of the Constitution and the law binding upon the President of the United States; and that even if they were not given in reference to the particular removal of Mr. Stanton, yet if they were given in any case on all fours with his, if they were given in any similar case, these opinions are in the nature of judicial opinions, and they are a perfect shield and protection to the President, if I can bring his act in this particular case within the spirit and meaning of any of them. Now, without commenting on these opinions or detaining the Senate by reading them at length, I will present a few without comment; for if I were to undertake to comment upon each opinion as to the power of appointment and the power of removal it might take up more time than would be advisable. Trusting to and believing in the intelligence and discrimination of the Senate, I will give them the substance of the positions assumed, as I understand, by the different Attorneys General who have given their opinions upon the question. In the first volume of the Opinions of the Attorney General, page 631, it will be seen that General Swartwout's commission (under the act of May 15, 1820, to limit the tenure of certain offices) as navy agent at New York expired during the preceding session of the Senate, and Mr. Wirt, Attorney General, gave an opinion, on the 22d of October, 1823, addressed to the Secretary of the Navy, in which he held that the words in the Constitution, "happen

during the recess of the Senate”—and this, I think, will be a good answer to a portion of the argument offered by the honorable Manager who spoke yesterday-are equivalent to the words" happen to exist," and that "the President has power to fill during the recess of the Senate, by temporary commission, a vacancy that occurred by expiration of a commission during a previous session of that body."

In the same volume, page 213, will be found another opinion of Mr. Wirt. The register of wills held his office under a commission during the pleasure of the President. Mr. Wirt in his opinion, delivered on the 15th of June, 1818, held that where an act of Congress gives the President the power to appoint without designating the tenure by which the office is to be held it is during the pleasure of the President. That is the advice and opinion of one of the most eminent lawyers, and one of the most gifted orators, that ever lived in the United States. He says:

"If the President had no right to issue such a commission the commission is void, the office vacant, and the President has now a right to commission another person anew. If, on the contrary, the President had the right to issue such a commission, he has on the face of that commission the power of removal and the authority to reappoint."

In the second volume of Opinions of Attorneys General, page 333, will be found an opinion of Mr. Berrien, given on the 2d April, 1830, in which he held that

"The appointment of a navy agent during the recess of the Senate, made in the case of a vacancy occurring during the recess, is in the exercise of the constitutional power of the President, and not by force of the act of 3d March, 1809; and the constitutional limitation of such appointment is to the end of the succeeding session of Congress, unless it be sooner determined by the acceptance of a new commission made, under an appointment by and with the advice and consent of the Senate."

Mr. Legaré, in an opinion, on the 22d October, 1841, declared that

"The Constitution authorizes the President to fill vacancies that may happen during the recess of the Senate, even though a vacancy should occur after a session of the Senate has intervened. The executive power of removal from office, as indicated in the argument of Mr. Madison, delivered in the First Congress, drawn from the character of executive power and executive responsibility and the irresistible necessity of the case, has been acquiesced in by the whole country."

Again, in the fourth volume of Opinions of Attorneys General, page 218, will be found the opinion of Mr. Attorney General John Nelson, on the 9th of August, 1843, in Lieutenant Coxe's case, where the applicant was heard by counsel, a proceeding, as I suppose, somewhat rare in the Attorney General's office. In that opinion he declared, referring to the case of Marbury vs. Madison, that

"Even after confirmation by the Senate the President may, in his discretion, withhold a commission from the applicant; and until a commission to signify that the purpose of the President has not been changed the appointment is not fully consummated."

to give you the language of Mr. Crittenden, one of the ablest statesmen who ever sat in these Halls, a man without fear and without reproach, a man of a splendid, gigantic intellect, "faithful among the faithless" under all circumstances; one whose opinions, as I respectfully think, are entitled to the highest degree of credit. This opinion was delivered in the meridian of his life, when he was in the full possession of his mental powers, and when there could be no mistake as to the force and effect to which any production of his mind was entitled. He said:

"Being civil officers appointed by the President by and with the advice and consent of the Senate, and commissioned by the President, they are not excepted from that executive power which, by the Constitution, is vested in the President of the United States over all civil officers appointed by him, and whose tenures of office are not made by the Constitution itself more stable than during the pleasure of the President of the United States. That the President of the United States has, by the Constitution of the United States, the power of removing civil officers appointed and commissioned by him, by and with the advice and consent of the Senate, where the Constitution has not otherwise provided by fixing the tenures during good behavior, has been long since settled, and has ceased to be a subject of controversy or doubt. In the great debate which arose upon that question in the House of Representatives shortly after the adoption of the Constitution, Mr. Madison is reported to have said it is absolutely necessary that the President should have the power of removing from oflice; it will make him, in a pecaliar manner, responsible for their conduct and subject him to impeachment himself if he suffers them to perpetrate, with impunity, high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses. On the constitutionality of the declaration I have no manner of doubt.' And the determination of Congress was in accordance with his views and has since been invariably followed in practice by every President of the United States."

And in the same opinion (page 291 of the same volume) Mr. Crittenden said:

"The power of removal is vested by the Constitution in the President of the United States to promote the public welfare; to enable him to take care that the laws be faithfully executed; to make him responsible if he suffers those to remain in office who are manifestly unfit and unworthy of public confidence.”

Again, Mr. Cushing in the 8th volume of, Opinions, page 283, in an elaborate opinion in' regard to the Navy efficiency act of the 28th February, 1855, held

"That the President of the United States possesses constitutional power to dismiss officers of the Army or Navy coextensive with his power to dismiss executive or administrative officers in the civil service of the Government."

Upon the question submitted by the President whether he had authority to remove from office the chief justice of the Territory of Minnesota, erected by the act of March 3, 1849, who had been appointed for four years, Mr. Crittenden, in his opinion of the 23d of January, 1851, after referring to Chief Justice Marshall's opinion in the American Insurance Company vs. Canter, (1 Peters, 546,) where it was held that these were not constitutional but legislative courts, created in virtue of the general right of sovereignty which exists in the Govlernment, said what I will now read. I propose

I am about to read:

"It is his [the President's] duty to do all he has lawful power to do when the occasion requires an exercise of authority. To do less on such an occasion would be pro tanto to abdicate his high office. The Constitution is the supreme law a law superior and paramount to any other. If any law be repugnant to the Constitution it is void."

This bears not only on the civil-tenure bill, but it is square up to all the questions the gentlemen on the other side have argued in connection with it. Here is the opinion of the adviser of the President's predecessor, a man whose opinion was on file, a man in whose judgment he had the right to confide, for be it known and always kept in remembrance that the President of the United States is not himself a lawyer; he never studied the legal profession; he has no claims or pretensions to know anything about it; but in the discharge of his official duties he has the right to consult the legal adviser who is placed there to guide and direct him upon questions of law by the Constitution of the country and by the act of 1789. If he finds an opinion on file in his

office, or if he finds it recorded in any reported volume of the opinions of the Attorneys General, it is, and is properly, a guide, a precedent which he may safely follow; and it is such an opinion as will protect him against any imputations of unlawful or improper motives. Pardon me for reading this again, so that you may have the whole of it in unbroken connection:

"It is his duty to do all he has lawful power to do when the occasion requires an exercise of his authority. To do less on such an occasion would be, pro tanto, to abdicate his high office. The Constitution is the supreme law-a law superior and paramount to any other. If any law be repugnant to the Constitution, it is void; in other words, it is no law."

And, Mr. Chief Justice, if you see proper in the discharge of your duty to comply with the respectful request which has been presented to you to deliver an opinion upon any of the legal questions which are involved in this case, I most respectfully ask you to consider this opinion of the Attorney General, and to declare that it is sound doctrine "that if any law be repugnant to the Constitution it is void; in other words, it is no law." Now, allow me, Mr. Chief Justice, to call your attention to the closing sentence of this opinion of Mr. Speed, which I think is the very essence of the law:

"It is the peculiar province of the judicial department to say what the law is in particular cases. But before such case arises, and in the absence of authoritative exposition of the law by that department, it is equally the duty of the officer holding the executive power of the Government to determine for the purposes of his own conduct and action as well the operation of conflicting laws as the unconstitutionality of any one."

There is an opinion from an Attorney General who is not a member of the Cabinet, not a "serf" of the President, who gave his opinion before or about the time the present incumbent came into the presidential office. There is his opinion placed upon the records of one of the departments of this Government, to stand and to stand forever, so far as his opinion will go, as a guide to the highest executive officer in the Government, declaring that if a law is unconstitutional in the view of the Pres ident it is no law at all, and he is not bound to follow it. He declares that the President has the right, in the absence of any judicial exposition, to construe the law for himself. I need not tell this Senate that this is no new doctrine. Senators, within your day and mine there was an executive officer of the United States who was, as they say the present incumbent is, a man of strong will, a man not possessing any great advantages of education or of mental culture, but still a man of strong intellect and of determination just as strong as his intellect. You all remember Andrew Jackson, a name that was once potent in the United States. No name was ever more powerful in this Government of ours from the time of its foundation down to the present day than the name of Andrew Jackson. "There were giants in those days" when Andrew Jackson was at the head of the Government of the United States. Andrew Jackson exercised the power of removal, and his right to do so was called in question by some of the ablest men who ever sat within the Senate of the United States. It was discussed and learnedly discussed; and yet he persevered in his determination. He maintained the power and authority of the President of the United States to remove from office and to make appointments, and you all recollect the scene that occurred and which made the history of this body memorable.

A resolution was introduced into the Senate-I believe it was occasioned, in part at least, by the removal of Mr. Duane to the effect that the President of the United States, in his late proceedings, had violated the Constitution of the United States. That resolution passed the Senate; but a gentleman who is now no more, one whose name is well known in the political history of the United States, Mr. Benton, took up that subject. I have not recurred to the history of the debates with sufficient accuracy to tell how long it was that he continued to agitate the question, but my recollection is that it was for several years; and I remember, as all these Senators will remem

ber, the remarkable expression which Mr. Benton used: "Solitary and alone I set this ball in motion." He determined that that resolution censuring the President of the United States should be expunged from the records of the Senate; and he debated it time and again with tremendous energy and power, until at last the resolution was expunged from the Journal of the Senate of the United States. So far as there is any recorded judgment within my knowledge that is the last record. It is a record in favor of the power of removal. There was "the sober, second thought" of the Senate. There was a recision of a resolution that reflected upon the character and upon the action of General Jackson; and, so far as that record goes, it is in favor of the power and authority which I have argued for. There can be no controversy in regard to this.

Now let us see how far we have progressed in this argument. I have shown you the opinions of Mr. Madison and Mr. Sedgwick and others in the debate of 1789. I have shown you the opinions of Kent and Story, two of our ablest American commentators. I have

shown you opinions of Attorneys General, eminent in their profession and standing high in the confidence of the country. I have shown you the action of the American Senate in the expunging resolution. I thus present to you what I may call, in the language of Judge Story, an unbroken current of authority in favor of the proposition that not only the civiltenure bill is unconstitutional, but that the President has the right to remove from office. I mean to say that the principies maintained by them would lead to that result, that he has the power of removal which he claims in his answer. And I maintain, Senators-forgive the repetition-that whether he is right or wrong in this, this current of authority for near eighty years is sufficient to throw protection around him; and when I show you, as I have done from the opinion of Mr. Speed, that in the absence of any judicial determination it is the sworn and bounden duty of the President of the United States to judge of a constitutional question for himself, I do not present to the Senate any novel doctrine. It is not for me to say whether the doctrine is right or wrong. My opinions are of no sort of consequence in this Senate. If my arguments are well founded, and if they are well supported, they will have weight and influence with you; if not, they will be rejected. So it is not necessary for me to say what I think upon these questions; but I maintain that this is not a novel doctrine in the United States. I told you yesterday that the present President is a Democrat of the straightest sect. I told you that he was really nominated as a Democrat in the convention that nominated Mr. Lincoln and himself for President and Vice Presi dent. That was not a Democratic convention, I know. It was a convention composed of Union men without any reference to the old lines of demarkation between Whigs and Democrats. That was a convention which had assembled together for the purpose of sustaining Mr. Lincoln, and whose view and opinion was that by sustaining Mr. Lincoln and the measures of his administration they would sustain the strong arm of the Government in putting down the rebellion, which had not then been brought to a conclusion. In his letter accepting the nomination, as I told you yesterday, President Johnson remarked that he was a Democrat !

Senators, I will read to you the opinions of Mr. Jefferson and General Jackson presently; but Before I do that let me call your attention to the effect of this political training of the President of the United States. You must always bear that in mind. You must go to his stand-point and look at things as he looked at them and judge of them as he judged of them, for you are now in search of motive; that is what you are trying to determine in this case. You are in search of the question of intention; and when you judge of his conduct in that way, and when you remember that he is a Democrat of the Jeffersonian and Jacksonian school, if I can show you, as I will presently show you,

that Mr. Jefferson and General Jackson undertook to construe the Constitution of the United States for themselves, and claimed that as executive officers they had the right to do so, I show you that according to the political training and education of the President of the United States it is a doctrine in which he might well believe; and especially when you have Mr. Speed's opinion that I have read confirmatory of that doctrine, it furnishes a sufficient vindication and protection of the President as to the exercise of his judgment.

Let us see what Mr. Jefferson and General Jackson said on this subject. Mr. Jefferson, if I understand him correctly, carried his doctrine much further than the present President of the United States carries it. I will refer to the sixth volume of Mr. Jefferson's works, page 461, and I will read a part of a letter of his there to be found, from which you will see he goes a bar's length beyond the present President of the United States in the views that he entertains. The President has told you that he was anxious to have the question between him and Congress settled by the judicial department. But what were Mr. Jefferson's views? He, as you all very well know, and the world knows, was the author of the Declaration of Independence and one of the greatest of the revolutionary minds. In the letter to which I have referred, to Mr. Torrance, he said:

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

So that, if I correctly apprehend Mr. Jefferson's meaning in this letter, he goes a bar's length beyond the right asserted by Mr. John

son in his answer in this case:

"It may be said that contradictory decisions may arise in such case, and produce inconvenience. This is possible, and is a necessary failing in all human proceedings."

He goes on to show, in this letter to Mr. Torrance, that such contradictory decisions had arisen and no special harm had resulted; but I do not deem it material to occupy your time with reading at length. In the seventh volume of Mr. Jefferson's Works, page 135, he says, in a letter to Judge Roane:

"My construction of the Constitution is very different from that you quote."

I do not read the rest, because there is so much reading necessary to be done in the argument of the case that I am really fearful of wearying your patience, and I take it that it is not necessary for me to do so, because the mere mention of this letter will call it up to the recollection of Senators, and you will remember the connection. I only read so much of it as bears upon the point which I am endeavoring to illustrate:

"My construction of the Constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal. I will explain myself by examples which, having occurred while I was in office, are better known to me, and the principles which governed them."

I deem it unnecessary to read further from this letter. The point is, that in this letter he asserts that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the

Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal." If that doctrine be correct the President of the United States had the right to decide this question for himself, independent of any intention or design to have a case made and prepared for the adjudication of the judicial tribunals of the country. But, even if that be not correct, it certainly goes far to explain, if not to justify, the action of the President of the United States in the removal of Mr. Stanton.

Although it is not precisely in connection with this point, yet, as it may have a bearing upon the question, I will quote a sentence from General Jackson's Maysville road bill veto. Of course that can be found anywhere and everywhere in your records; but for the sake of convenience I quote it from the Statesman's Manual, volume two, page 726:

"When an honest observance of constitutional compacts cannot be obtained from communities like ours it need not be anticipated elsewhere; and the cause in which there has been so much martyrdom, and from which so much was expected by the friends of liberty, may be abandoned and the degrading truth, that man is unfit for self-government, admitted. And this will be the case if expediency be made a rule of construction in interpreting the Constitution. Power in no Government could desire a better shield for the insidious advances which it is ever ready to make upon the checks that are designed to restrain its action."

On page 772, in General Jackson's veto of the bank bill, he said:

"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government."

I want you, now, to notice these assertions, for you will see that such great men as Jefferson and Jackson went beyond the present President of the United States in their assertions, for they denied the right of the Supreme Court even to adjudge a question:

"The Congress, the Executive, and the court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will sup

port as he understands it, and not as it is understood

others."

I remember very well that there was a great deal of criticism at that day about this principle asserted by General Jackson in his veto of the bank bill; but it is enough for me to show that he asserted the power.

"It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges; and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."

That was prerogative! We have heard a great deal of talk here about prerogative. That was prerogative when General Jackson asserted that he had the right to construe the Constitution of the United States for himself, and independent of the judicial tribunals of the country. If General Jackson and Mr. Jefferson asserted this extraordinary power while they were filling the executive office, how much more may Andrew Johnson, the present President of the United States, say, "Here is a question about which there is a difference of opinion between the Congress of the United States and myself; here is a question that is distracting and dividing the country; I desire to have this question settled; I do not wish to settle it by my own strong hand; I desire to submit it to the judicial tribunals of the country; and in order to do that I will exercise a power which has been exercised from the foundation of the Government; I will remove Mr. Stanton; I will place this question in a condition in which it can be settled by the judicial tribunals of the United States; I will endeavor to do this; I will invoke the action of the highest judicial tribunal in the country." Of course this idea was involved: "If the Supreme Court of the United States decide this question in favor of the view which Congress

has presented I will acquiesce in and submit to the decision; if the Supreme Court decide the question the other way I will persevere in the determination to appoint some one else in the place of an officer in my Cabinet who is obnoxious to me." Now, I maintain, Senators, that there was nothing wrong in this; nothing illegal in it.

Oh, but it is argued on the other side that after the President of the United States has vetoed a bill, and after it has been again passed by two thirds of both Houses of Congress, it is then placed in such a situation that he has no right to put any construction upon it dif ferent from that which Congress has placed upon it. I cannot see the logic of the difference between the two cases. A law, when passed by Congress and approved by the President of the United States and placed upon the statute-book, is nothing more than a law. If the President of the United States exercises his veto power and attempts to prevent the passage of a law, or, in other words, refuses that assent which the Constitution empowers him to give or to withhold, and the Congress of the United States passes it over the veto and it goes upon the statute-book, is it anything more than a law? Has it any greater or more binding force in the one case than it has in the other? And if the President of the United States has any power of judgment, and especially of judgment in cases where duties are confided to him by the Constitution and where it is his business to act, may he not exert in the one case just as much as in the other? I cannot for the life of me see the force of the distinction which the learned and honorable Managers are attempting to take in this case.

Senators, there are questions peculiarly belonging to the executive department which the President of the United States of necessity must have the right of determining for himself. Specious and ingenious as the argument of the honorable Manager yesterday was, that there may be an implication in favor of Congress as to the exercise of its powers enumerated in the Constitution, and that there can be no implication in favor of the President as to the duties that are imposed upon him by the same instrument, it still has no foundation in sound reason or in any authority known to the law. The very term "executive power" is, like most of the other terms employed in the Constitution, a technical phrase. I have shown you how Mr. Madison understood it in the debate of 1789. I have shown you what a wide latitude of interpretation he took in giving a meaning to the words "executive power,” and that he held that in virtue of those very words the President was responsible for the action of the Cabinet that he had called around him.

If you can get from the Constitution an implication in any case; if you can derive from the words "executive power," or from the words he shall take care that the laws be faithfully executed," or from his oath, or from any other words in the Constitution relating to his functions, any power by implication in any case, the doctrine of implication arises as to all other powers that may be conferred upon him; and I can see no reason why you may not imply anything that is necessary to be done as much in favor of the President as you may imply it in favor of Congress. When you take the Constitution of the United States and look to the enumerated powers, there is not one of them that tells how any power is to be executed. Congress may create a Navy; Congress may declare war; Congress may levy taxes. It does not say how you are to create a Navy; it does not say whether you are to do that particular act by taxation or not; it does not prescribe whether your vessels are to be iron-clad vessels or sail vessels; it does not prescribe how much tonnage they shall have.

All these and a thousand other things are left to the discretion of Congress. You derive the power which you have exercised time and again, from the foundation of the Government, in regard to the Army and the Navy and every

other branch of the public service, as a necessary incident under the general provision of the Constitution to do anything that may be necessary and proper to carry any of the granted powers into effect. Now, if this doctrine of implication which is absolutely necessary and essential to the legitimate and proper exercise of the powers conferred on Congress by the Constitution has been acquiesced in and practiced on from the foundation of the Government by Congress, why may it not be acquiesced in as to the President of the United States ? There is no force, as I maintain, in the distinction which the honorable Manager insists upon.

Mr. JOHNSON. Mr. Chief Justice, I move that the court take a recess of fifteen minutes.

The motion was agreed to; and at the expiration of the recess the Chief Justice resumed the chair and called the Senate to order.

Mr. NELSON. Mr. Chief Justice and Senators, I have been reminded of one thing which I should have stated to you before; and before I proceed further I desire to call your attention to it. I have not had opportunity to consult the works upon the subject, but I presume the fact is well known to the Senate that Mr. Clay and Mr. Webster, in the progress of the debate upon General Jackson's conduct in reference to the removal of Mr. Duane and the removal of the deposits, conceded the power of the President to remove the Secretary, but their opposition to his course was founded mainly upon objections growing out of the law upon the subject of the Treasury Department. This, if I am correctly informed, and I believe I am, is an additional and very strong opinion in favor of the proposition for which I have contended before you.

Upon the question on which I was addressing you, I have not only the opinion of Mr. Jefferson and General Jackson, but I have the high authority of Mr. Madison himself. In the fourth volume of Madison's Works, page 349, is a letter which was written by him in 1834. Without reading the whole letter, I will only read so much of it as I think is pertinent to the question before you.

Mr. JOHNSON. Who is the letter to? To Mr. Coles?

Mr. NELSON. It is not stated, sir; it is blank. It is dated 1834, and will be found on page 349 of the fourth volume of his works. The letter is not very long, and is as follows:

"DEAR SIR: Having alluded to the Supreme Court of the United States as a constitutional resort in deciding questions of jurisdiction between the United States and the individual States, a few remarks may be proper, showing the sense and degree in which that character is more particularly ascribed to that department of the Government.

As the legislative, executive, and judicial departments of the United States are coordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it, and, consequently, that in the event of irreconcileable interpretations, the prevalence of the one or the other Department must depend on the nature of the case, as receiving its final decision from the one or the other, and passing from that decision into effect without involving the functions of any other."

The argument upon the other side is that the President of the United States, under the Constitution, is a mere man in buckram; that he has no power or authority to decide anything; that he can do nothing on the face of the earth unless it is nominated in the bond; that he must be the passive instrument of Congress; and that he must be subjected to the government and control of the legislative department of the Government. The argument which we make is, that under the Constitution there are living, moving, acting powers and duties vested in and imposed upon the President of the United States, and that he must, of necessity, have the right, in cases appropriately belonging to his department of the Government, to exercise something like judicial discretion; that he must act upon his own authority and upon his own construction of the Constitution; and when he thus acts in reference to the removal of an officer or anything else, I maintain that it is different from the action of a private individual. A private individual, if he violates the

faws of the land, is amenable for their violation under the principle that "ignorance of the law excuseth no man ;" but the President of the United States having the executive power vested in him by the Constitution has the right to exercise his best judgment in the situation in which he is placed, and if he exercises that judgment honestly and faithfully, not from corrupt motives, then his action cannot be reviewed by Congress or by any other tribunal than the tribunal of the people in the presidential election should he be a candidate before them again, and he is protected by the powers imposed by the Constitution. Mr. Madison proceeds:

"It is certainly due from the functionaries of the several departments to pay much respect to the opinions of each other; and, as far as official independence and obligation will permit, to consult the means of adjusting differences and avoiding practical embarrassments growing out of them, as must be done in like cases between the different coördinate branches of the legislative department.

"But notwithstanding this abstract view of the coördinate and independent right of the three departments to expound the Constitution "

Mark his phraseology there. One of the makers of the Constitution, hoary with age, venerable at the time when this letter was written, having no motive except to leave to posterity the mature judgment of a patriot in regard to the true and proper construction of that sacred instrument which he had an agency in making, Mr. Madison says:

"But notwithstanding this abstract view of the coördinate and independent right of the three dcpartments to expound the Constitution, the judicial department most familiarizes itself to the public attention as the expositor by the order of its functions in relation to the other departments, and attracts most the public confidence by the composition of the tribunal.

"It is the judicial department in which questions of constitutionality, as well as of legality, generally find their ultimate discussion and operative decision; and the public deference to and confidence in the judgment of the body are peculiarly inspired by the qualities implied in its members, by the gravity and deliberation of their proceedings, and by the advantage their plurality gives them over the unity of the executive department, and their fewness over the multitudinous composition of the legislative depart

ment.

Without losing sight, therefore, of the coördinate relations of the three departments to each other, it may always be expected that the judicial bench, when happily filled, will, for the reasons suggested, most engage the respect and reliance of the public as the surest expositor of the Constitution, as well in questions within its cognizance concerning the boundaries between the several departments of the Government as in those between the Union and its members."

And it was, as I said before, to that department that the President of the United States desired that an appeal should be made. But you will observe here that the idea is distinctly presented by this venerable and patriotic man that the coordinate and independent departments of the Government have the right, each for itself and each within its appropriate sphere and in relation to its own appropriate duties, to construe the Constitution. If this view be correct the President of the United States had the right to construe the Constitution for him. self, notwithstanding the passage of the civiltenure bill, and he had the right to act under it in the manner in which he did, and you can. not make a crime, you cannot make an offense out of such an action. You cannot justify it in the view of the American people; you cannot justify it to the civilized world; Senators, I maintain that you cannot justify it to your own consciences to place such a construction as that upon the act of the President, and to deny him the powers which he has attempted to exercise in this case.

Now, let me call your attention to the famous protest of General Jackson, and you will see that the same doctrine is carried out there:

"By the Constitution the executive power is vested in the President of the United States. Among the duties imposed upon him, and which he is sworn to perform, is that of taking care that the laws be faithfully executed.' Being thus made responsible for the entire action of the executive department, it was but reasonable that the power of appointing, overseeing, and controlling those who execute the laws-a power in its nature executive-should remain in his hands. Itis, therefore, not only his right, but the Constitution makes it his duty, to nominate, and by and with the advice and consent of the Senate, appoint' all officers of the United States

whose appointments are not in the Constitution otherwise provided for,' with the proviso that the appointment of inferior officers may be vested in the President alone, in the courts of justice, or in the heads of Departments.

The executive power vested in the Senate is neither that of nominating' nor 'appointing.'

You will see that General Jackson, with characteristic energy and courage, stood up faithfully in vindication of his executive power while he was President of the United States:

"The executive power vested in the Senate is neither that of nominating' nor appointing.' It is merely a check upon the executive power of appointment. If individuals are proposed for appointment by the President, by them deemed incompetent or unworthy, they may withhold their consent and the appointment cannot be made. They check the action of the Executive, but cannot in relation to these very subjects act themselves nor direct him. Selections are still made by the President; and the nega

the case-and it has already been indicated in various statements from time to time made by me in the progress of my remarks-is this suppose that the proposition I have endeavored to maintain before you is erroneous; suppose that Congress are right and that the President is wrong; suppose that Congress had the power to pass the civil-tenure bill; suppose that he had no right to act contrary to that; then the question comes up whether or not he is guilty upon any of these articles of impeachment. The first eight articles charge in different forms an intent to violate the Constitution of the United States, or to violate the civil-tenure bill, or to violate the conspiracy act of 1861. Every one of those articles contains a charge of an unlawful intention; they

responsibility, furnishes an additional guarantee to the country that the subordinate executive, as well as the judicial offices, shall be filled with worthy and competent men.

"The whole executive power being vested in the President, who is responsible for its exercise, it is a necessary consequence that he should have a right to employ agents of his own choice to aid him in the performance of his duties, and to discharge them when he is no longer willing to be responsible for their acts."

The very idea that one of the Senators I now address, Senator SHERMAN, must have had in his mind at the time when he made those remarks which were quoted by Judge Curtis in the opening upon our side:

"In strict accordance with this principle the power of removal, which, like that of appointment, is an original executive power, is left unchecked by the Constitution in relation to all executive officers for whose conduct the President is responsible, while it is taken from him in relation to judicial officers for whose acts he is not responsible. In the Government from which many of the fundamental principles of our system are derived the head of the executive department originally had power to appoint and remove at will all officers, executive and judicial. It was to take the judges out of this general power of removal, and thus make them independent of the Executive that the tenure of their offices was changed to good behavior. Nor is it conceivable why they are placed in our Constitution upon a tenure different from that of all other officers appointed by the Executive, unless it be for the same purpose.'

Now, Senators, at the hazard of some repetition, allow me at this point to sum up as far as I have gone. I have shown you that in the debate of 1789 some of the ablest men this country ever produced, and some of the very men who had an agency in framing the Constitution itself, conceded the power of removal, as claimed by the President. I have shown you that for nearly eighty years, with the single exception of the struggle which took place in General Jackson's time, that power has been acquiesced in. I have shown you that two of the most eminent writers on American jurisprudence, Kent and Story, have treated the question as settled. I have shown you, from the opinions of some of the ablest Attorneys General who have ever been in office in this country, that the power of removal existed in the manner in which it was exercised by the President. I have shown you that, from this opinion and practice during the long period of time to which I have adverted, it was conceded that the power of removal belonged to the President in virtue of the Constitution, and that the Senate had no constitutional right or power to interfere with him. Having shown you all this, I have now a few words to say in regard to the President's act in removing Mr. Stanton and in further answer to the first article against him.

As you have observed, the first proposition which I have endeavored to demonstrate is, that the civil-tenure bill is unconstitutional and void; for if the doctrines be correct which I have endeavored to maintain before you, and if this long chain of authority is entitled to the slightest degree of respect, it follows inevitably that Congress had no power to pass the law; and it follows, furthermore, that the President had the right to exercise a judgment in regard to retaining or removing one of the councilors whom the Constitution had placed around him for the purpose of aiding him in the adminis tration of public affairs.

But the other view in which I wish to argue

exception of the fifth article, which says nothing about the intent. Now, recurring to what I have already said on this subject, I desire to sustain what I have said by a reference to some of the decisions or some of the opinions in the law books, and I ask the question how can any unlawful intent be predicated of his act? According to Foster and Hale and other writers upon criminal law, and I quote this from 1 Bouvier's Dictionary, page 647, who cites Foster and Hale and others for the definition:

"Every crime must have, necessarily, two constituent parts, namely, an act forbidden by law and an intention."

And that is as applicable, I take it, to a high misdemeanor as it is to a high crime.

"The act is innocent or guilty just as there was or was not an intention to commit a crime; for example: a man embarks on board a ship at New York for the purpose of going to New Orleans; if he went with an intention to perform a lawful act he is perfectly innocent; but if his intention was to levy war against the United States he is guilty of an overt act of treason."

Mr. Bishop, in his work on criminal law, section 252, says:

"Intent is not always inferable from the act done."

I maintain that, there being no unlawful or improper intention there can be no crime or misdemeanor; and although I did not read this yesterday I substantially cited it; but having it here I ask your indulgence to repeat it again in the language of the book itself. I refer to Wharton's Criminal Law, page 733, and Roscoe's Criminal Evidence, page 804, to sustain this proposition:

"An indictment against an officer of justice for misbehavior in office must charge that the act was done with corrupt, partial, malicious, or improper motives, and, above all, with a knowledge that it was wrong."

In Wharton, page 269, and 2 Russell, 732, this principle is stated:

"As to acts of an official nature, everything is presumed to be rightfully done until the contrary appears.

Again, Mr. Bishop, in his Criminal Law, section 80, says:

"A case of overwhelming necessity (as to intent) or honest mistake of fact will be excepted out of a general statute.'

Now, Senators, if these are the rules that prevail in courts of law-and they are rules founded in wisdom, in common sense, in justice if these rules obtain in criminal trials every day in courts of law, what is there to prevent them from being enforced in this court, and what is there to prevent them from shielding this respondent from the imputation which is made upon him? How can it be said that he had any wrongful or unlawful intent when the Constitution gave him the power to judge for himself in reference to the particular act? How can it be said that he had any wrongful or unlawful intent when the practice of the Government for the long period of time to which I have adverted was sufficient to justify him in exercising the power which he attempted to exercise? How can it be said that there was any wrongful or unlawful intent when he had all these opinions of the Attorneys General to guide and lead and direct him? How can it be said that there was any unlawful intent when

he had the very opinions of the Senators and Representatives at the time when the law was passed as a guide to lead and direct him in the performance of his duty? It does seem to re that it beggars all belief to say that the President intended anything wrong. It outrages our ideas of common justice and of common sense to say that there was any purpose or intent upon his part either to violate the Constitution or to violate the civil-tenure bill. If Mr. Speed is correct, and if the other writers are correct, and the President believed that the law was unconstitutional, then, until the question at least was adjudicated by the highest court in the United States, the President had the right to exercise his judgment, and you cannot hold that he was guilty of any criminal intention.

Was ever such a case presented? How bald, how naked do these charges appear when you look at the proof! I will not take up time, Senators, to turn to the evidence of witnesses which you all have fresh in your recollection. Was there ever such a scene in the history of the world among men claiming to have intelligence, among persons in the exercise of ordinary reason and judgment as the scene that occurred in reference to Mr. Stanton's removal and the attempt to bring the question before the courts of justice. There is old General Thomas, whom they stigmatize a good deal on the other side; but I take him to be a plain, simple-hearted, honest old gentleman, who has been forty years in the military service of the country. If there were any suspicions about him, such as the gentleman [Mr. Manager BOUTWELL] alluded to yesterday, as to whether he was in favor of the rebellion or against it, it is a very extraordinary thing that Mr. Stanton should send him down to the southern States, and that he should organize some seventy or eighty thousand negroes there to fight the battles of the Union. He is a plain, simple-hearted, honest old man, whose very countenance is a recommendation to him before anybody under the heavens bears him speak. Perhaps his vanity was a little tickled by the idea of being appointed Secretary of War. No doubt the old man felt very comfortable at that elevation for a little while. But who that heard his testimony in this court can doubt for a moment his intention to speak the truth in regard to everything he said? He goes to the War Department, and you have that wonderful scene at the time when he attempts to take possession of the office of Secretary of War. This he was going to do with force and violence! Was there ever such a thing since the world began, such an act of force as you had there between Mr. Thomas and Mr. Stanton when this proceeding was going on? They met together like twin brothers. They almost embraced each other. I believe he said Mr. Stanton did hug him, or something like that. [Laughter.] He came very near it, if he did not actually do it; and in the fullness of his heart Mr. Stanton became exceedingly kind and liberal upon the occasion, and he called for liquor, and had it brought out, and there was that great dram, containing about one spoon. ful, fairly, honestly, equally divided between these two aspiring Secretaries, and done in a spirit of fraternity and of love such as I suppose never was witnessed in a forcible contest on the face of the earth before. [Laughter.]

An attempt was made to have this question settled. Stanton puts his arm around him and says, "This is neutral ground, Thomas, between you and me; there is no war here when we have this liquor on hand;" and not only divided that spoonful, but he felt so good after he took that that he sent out and got a bottle full more. [Laughter.] I suspect, Senators-I do not know how the fact is-but I suspect that old friend Thomas not only felt a little elevated by the idea of being Secretary of War ad interim, after having served his country in a somewhat inferior capacity for a good while, but I imagine the old man took so much of that good liquor on that occasion that he felt his spirits very much elevated, and was disposed to talk to Mr. Karsner and all

these other men in the manner in which he did talk.

And yet they tell you this was force! Oh, yes, force; attempting forcibly to eject Mr. Stanton from the office of Secretary of Warby drinking a spoonful of liquor and helping to divide a bottle with him! Was there ever such an idea of force before? This is the "lame and impotent conclusion" of the proceeding which we have upon the other side. Well, they conclude that they will depart from that neutral ground. After they got out of the building Mr. Stanton goes along and he wakes up Mr. Meigs in the dark hours of the night-he or some of his friends. It is idem sonans; it is the same thing, I reckon. Whatever he did by others he did by himself. His friends go and arouse Mr. Meigs in the dark hours of the night, as if some felony were about to be committed. They go there as if they were attempting to raise the hue and cry. They wake him from the slumbers of the night and require him to go to his office to make out a warrant against old man Thomas for trying to violate the civil-tenure bill. He rises and goes to his office with hot haste, something like the haste in which this impeachment proceeding was gotten up. He goes to his office. He issues his warrant with all proper gravity and decorum, and it is placed in the hands of an officer, and poor old Thomas, with about a pint or a quart of liquor in him, [laughter,] is arrested and taken before a judge to be tried for this great offense of violating the civil-tenure bill! He is placed in the custody of an officer as if he had committed some horrible outrage, some terrible offense. The officer follows him over to the President's. He sticks to him like a leech, closer a good deal than a brother. [Laughter.] He follows him over there, and will not allow poor old Thomas to get out of his sight at all. "Oh, you have committed a terrible offense; you have violated the civiltenure bill; you are liable to fine and liable to imprisonment, and I cannot permit you, sir, to escape out of my clutches."" But at last the old man gets a lawyer and comes along before the judge. The lawyers get to discussing the question before the judge, and strange to say this terrible offense which it took a midnight warrant to reach, this terrible offense which it required a marshal or some other officer with his tipstaff to take care should not be committed with impunity, and to hold on to the person of Thomas so that he could not escape-when these lawyers came to argue it before the judge, and they began to find out there was some idea of taking the thing up to the Supreme Court, the tune was changed. "A change came o'er the spirit of their dream," and this offense, which was so terrible a few hours before, sinks into insignificance, and old man Thomas is discharged, as the judge discharged the turkey at the table that had been there for a week, upon his own recognizance, [Laughter.] No case is to be permitted to be made out for the settlement and adjudication of the Supreme Court of the United States.

Mr. Secretary Stanton's great warrant reminds me of an anecdote, Senators. I am a very poor hand at telling one, but I believe I will try it. I do not know whether I shall succeed in telling it or not. It is one I used to hear a gentleman in our State of Tennessee tell about two Irishmen. They came over to this country and were very ignorant of our habits and manners and customs, and particularly in reference to the "varmints" that belonged to the United States. They were walking along one day, and they saw a little ground squirrel run up on a stump and then go down into the hollow of the stump. One of the Irishmen concluded he would catch him and see what kind of a "baste" it was. So he put his hand down in the hollow, and the other one said to him, "Have you got him, Pat?" "No," he replied, "by the powers, he has got me!" [Laughter.] And that was just exactly the way, Senators, with Mr. Stanton and this great warrant. Instead of getting Mr. Thomas, they found he was likely

to get them, and therefore he was discharged upon his own recognizance, and we hear nothing more of his great offense. Whoever heard of such a proceeding as this intended to be converted into a grave and terrible and awful charge against the President of the United States or any other man?" [Laughter.]

Before I pass, Senators, from this view of the case, allow me to read an authority here, without comment, in support of a proposition which I assumed before you awhile ago as to the force and effect of the long-continued usage and practice of the Government and the universal interpretation of the Constitution. I should have read it before. Chancellor Kent, in the first volume of his Commentaries, page 528, says:

"A solemn decision upon a point of law arising in any given case becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness, and the community have a right to regard it as a just declaration or exposition of the law and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public if precedents were not duly regarded and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture with confidence to buy and trust and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed unless by a court of appeal or review, and never by the same court except for very cogent reasons and upon a clear manifestation of error, and if the practice were otherwise it would be leaving us in a state of perplexing uncertainty as to the law,"

And the very same thing can be said about the construction of the Constitution and the acts of the Executive for a long time.

"The language of Sir William Jones is exceedingly forcible on this point. No man,' says he, who is not a lawyer would ever know how to act, and no man who is a lawyer would, in many instances, know what to advise unless courts were bound by authority as firmly as the pagan deities were supposed to be bound by the decrees of fate."'"

I shall not repeat, Senators, what I esteem to be the unanswerable argument of Judge Cartis, that the removal of Mr. Stanton is not a case embraced, or intended to be embraced, in the tenure-of-civil-office bill according to the terms of the bill itself. It is enough for me to refer you to that argument without repeating it.

And so, having on this branch of the case considered the three propositions with which I set out, having endeavored to demonstrate upon the first article, first, that the civil-tenure act is unconstitutional; second, that the action of the President was not a violation of the terms of the civil-tenure bill itself, because, from what occurred at the time that bill was passed it is manifest that it was not intended to embrace the Secretaries, as Judge Curtis showed in his extracts from the remarks, that were made at the time when the bill was passed; and having shown, third, that if both these propositions be incorrect, still there was no intent, so as to maintain the accusation that is made upon the first article. I pass to the second article, and will endeavor to make my argument as brief as possible upon it.

The second article charges, in substance, that the President was guilty of a high misdemeanor in office by delivering the letter of authority to General Thomas while the Senate was in session, without its advice and consent, when there was no vacancy, and contrary to the tenure-of-civil-office act. In our answer we show that a vacancy existed when the letter of authority was delivered; that the appointment ad interim was justified by long usage, though the Senate was in session; that the tenure-of-civil-office act was not violated, even if it is a constitutional law, because the notification to the Senate of the removal and the appointment of Mr. Ewing shows that there was no criminal intent, no design to prevent the Senate from the exercise of its concurrent