strife. I will agree your duty keeps you here. You have no right to resign or avoid it; but it is a duty consistent with judicial fairness, and only to be assumed as such; and the subject itself, thus illustrated, snatches from you at once, as wholly political, the topics that you have been asked to examine.

It will suit my convenience and sense of the better consideration of the separate articles of impeachment to treat them at first somewhat generally, and then, by such distribution as seems most to bring us finally to what, if it shall not before that time have disappeared, appears to be the gravest matter of consideration.

Let me ask you at the outset to see how little as matter of evidence this case is. Certainly this President of the United States has been placed under as trying and as hot a gaze of political opposition as ever a man was or could be. Certainly for two years there has been no partial construction of his conduct. Certainly for two years he has been sifted as wheat by one of the most powerful winnowing machines that I have ever heard of-the House || of Representatives of the United States of America. Certainly the wealth of the nation, certainly the urgency of party, certainly the zeal of political ambition, have pressed into the service of imputation, of inculpation, and of proof all that this country affords, all that the power to send for persons and papers” includes.

They have none of the risks that attend ordinary litigants of bringing their witnesses in court to stand the test of open examination and cross-examination; but they can put them under the constriction of an oath and an exploration in advance and see what they can prove, and so determine whom they will bring and whom they will reject. They can take our witness from the stand already under oath, and even of so great and high a character as the Lieutenant General of your armies, and out of court ply him with a new oath and a new examination to see whether he will help or hurt them by being cross-examined in court. Every arm and every heart is at their service, stayed by no sense except of public duty to unnerve their power or control its exercise.

splendid crop of wheat you have had." And now answer, answer if there is anything wrong in this? Mr. Manager WILSON, from the Judiciary Committee that had examined for more than a year this subject, made a report to the House. It is the wisest, the clearest, and also one of the most entertaining views of the whole subject of impeachment in the past and in the present that I have ever seen or can ever expect to see, and what is the result? That it is all political. All these thunder-clouds are political, and it is only this little petty pattering of rain and these infractions of statutes that are personal or criminal. And "the grand inquest of the nation" summoned to the final determination upon the whole array, on the 9th of December, 1867, votes, 107 to 57, "no impeachment." If these honorable Managers had limited their addresses to this court to matters that in purpose, in character, in intent, and in guilt occurred after that bill of impeachment was thrown out by their House, how much you would have been entertained in this cause! I have not heard anything that had not occurred before that. The speeches were made eighteen months before. The telegram occurred a year before. Wood, the office-seeker, came into play long before. What is there, then, not covered by this view?

The honorable Managers, too, do not draw together always about these articles. There seem to have been an original production, and then a sort of afterbirth that is added to the compilation, and as I understand the opening Manager, [Mr. BUTLER,] if there is not anything in the first article you need not trouble yourself to think there is anything in the eleventh; and Mr. Manager STEVENS thinks that if there is not anything in the eleventh you had better not bother yourself in looking for anything in the first ten, for he says a county-court lawyer, I think, could get rid of them. Let me give you his exact words:

"I wish this to be particularly noticed, for I intend to offer it as an amendment. I wish gentlemen to examine and see that this charge is nowhere con

tained in any of the articles reported, and unless it be inserted there can be no trial upon it; and if there be the shrewd lawyers, as I know there will be, and caviling judges"

He did not state that he felt sure of that"and without this article they do not acquit him, they are greener than I was in any case I ever undertook before the court of quarter sessions."

criminal or personal.

And yet here is the evidence. The people of this country have been made to believe that all sorts of personal vice and wickedness, that It will not be too vain in us to think that we all sorts of official misconduct and folly, that come up perhaps to this estimate on our side all sorts of usurpation and oppression, prac and at this table of these quarter-session lawyers ticed, meditated, plotted, and executed on the that would be adequate to dispose of these part of this Executive, were to be explored and articles of impeachment; and they are right exposed by the prosecution and certainly set about it, quite right about it. If you cannot down in the record of this court for the public get in what is political and nothing but politjudgment. Here you have for violence, op-ical, you cannot get hold of anything that is pression, and usurpation a telegram between the President and Governor Parsons, long public, two years ago. You have for his desire to suppress the power of Congress the testimony of Wood, the office-seeker, that when the President said he thought the points were important he said that he thought they were minor, and that he was willing to take an office from the President and yet uphold Congress; that the President said they were important and he thought the patronage of the Government should be in support of those principles which he maintained, and Wood, the office. seeker, went home and was supposed to have said that the President had used some very violent and offensive words on the subject, and he was brought here to prove them, and he disproved them.

Now, weigh the testimony upon the scale that a nation looks at it, upon the scale that foreign nations look at it, upon the scale that history will apply to it, upon the scale that posterity will in retrospect regard it. It depends || a good deal upon how large a selection a few specimens of testimony could offer. If I bring a handful of wheat marked by rust and weevil, and show it to my neighbor, he will say, Why, what a wretched crop of wheat you have had; but if I tell him these few kernels are what I have taken from the bins of my whole harvest," he will answer,

"What a

Now, with that general estimate of the limit and feebleness of the proofs and of the charges, I begin with the consideration of an article in regard to which, and the subject-matter of which, I am disposed to concede more than I imagine can be claimed fairly in regard to the other articles, that some proof to the point of demonstration has been presented, and that is the speeches. I think that it has been fairly proved here that the speeches charged upon the President, in substance and in general, were made. My first difficulty about them is that they were made in 1866, and related to a Congress that has passed out of existence, and were a subject in the report of the Judiciary Committee to the House, upon which the House voted that they would not impeach. My next is that they are crimes against rhetoric, against oratory, against taste, and perhaps against logic, but that the Constitution of the United States, neither in itself or by any subsequent amendments, has provided for the government of the people of this country in these regards. It is a novelty in this country to try anybody for making a speech.

There are a great many speeches made in this country, and therefore the case undoubtedly would have arisen in the course of eighty years of our Government. Indeed, I believe, if there is anything that marks us, and to the approval,

at least in ability, of other nations, it is that any man in this country not only has a right to make a speech, but can make a speech and a good one, and that he does some time or other in his life actually accomplish it. Why, the very lowest epithet for speech making in the American public adopted by the newspapers is "able and eloquent." [Laughter.] I have seen applied to the efforts of the honorable Managers here the epithet, in advance in the newspapers, of "tremendous" [laughter] before they have been delivered here, of "tremendous force;" and I saw once an accurate arithmetical statement of the force of one of them in advance that it contained thirty-three thousand words. [Laughter.]

We are speech-makers; therefore the case must have arisen for a question of propriety; and now for the first time we begin with the President, and accuse him; we take him before no ordinary court, but organize a court for the purpose which adjourns the moment it is over with him, furnishes no precedent, and must remove him from office and order a new election. That is a great deal to turn on a speech. Only think of it! To be able to make a speech that should require a new election of a President to be held! Well, if the trial is to take place, let the proclamation issue to this speech-making people, "let him that is without sin among you cast the first stone;" and see how the nation on tiptoe waits; but who will answer that dainty challenge and who assume that fastidious duty? We see in advance the necessary requirements. It must be one who by long discipline has learned always to speak within bounds, one whose lips would stammer at an imputation, whose cheek would blush at a reproach, whose ears would tingle at an invective, and whose eyes would close at an indecorum. It must be one who by strict continence of speech and by control over the tongue, that unruly member, has gained with all his countrymen the praise of ruling his own spirit, which is greater than one who taketh a city.

And now the challenge is answered; and it seems that the honorable Manager to whom this duty is assigned is one who would be recognized at once in the judgment of all as first in war, first in peace in boldness of words, first in the hearts of all his countrymen that love this wordy intrepidity. [Laughter.] Now, the champion being gained, we ask for the rule, and in answer to an interlocutory inquiry which I had the honor to address to him he said the rule was the opinion of the court that was to try the case.

Now, let us see whether we can get any guid ance as to what your opinions are on this subject of freedom of speech; for we are brought down to that, having no law or precedent besides. I find that the matter of charge against the President is that he has been "unmindful of the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches of the Government." If it prevails from the executive toward the legislative, it should prevail from the legislative toward the executive, upon the same standard, unless I am to be met with what I must regard as a most novel view presented by Mr. Manager WILLIAMS in his argument the other day, that as the Constitution of the United States prevents your being drawn in question anywhere for what you say, therefore it is rule that does not work both ways. [Laughter.] Well, that is a remarkable view of personal duty, that if I wore an impenetrable shirt of mail, it is just the thing for me to be drawing daggers against everybody else that is met in the street. “Noblesse oblige" seems to be a law which the honorable Manager does not think applicable to the Houses of Congress. If there be anything in that suggestion how should it guard, reduce, and regulate your use of freedom of speech? I have not gone outside of the debates that relate to this civil-tenure act; my time has been sufficiently occupied in reading all that was said in both Houses on that subject; but I find now a well-recorded precedent, not merely in the observations of a

single Senator, but in a direct determination of the Senate itself passing upon the question what certain bounds at least of freedom of speech as between the two departments of the Government permitted. The honorable Senator from Massachusetts, in the course of the debate, using this form of expression in regard to the President, said, and on the subject of this very law:

"You may ask protection, against whom? I answer plainly, protection against the President of the United States. There, sir, is the duty of the hour. Ponder it well, and do not forget it. There was no such duty on our fathers; there was no such duty on our recent predecessors in this Chamber, because there was no President of the United States who had become the enemy of his country."-Congressional Globe, second session Thirty-Ninth Congress, p. 525.

The President had said that Congress was "hanging on the verge of the Government but here is a direct charge that the President of the United States is an enemy of the country. Mr. SUMNER being called to order for this expression, the honorable Senator from Rhode Island, [Mr. ANTHONY,] who not infrequently presides with so much urbanity and so much control over your deliberations, gave this aid to us as to what the common law of this tribunal was on the subject of the harmonies and courtesies that should prevail between the legislative and the executive departments. He said:

"It is the impression of the Chair that those words do not exceed the usual latitude of debate which has been permitted here."

Is not that a good authority, the custom of the tribunal established by the presiding officer? Mr. SHERMAN, the honorable Senator from Ohio, said:

"I think the words objected to are clearly in order. I have heard similar remarks fifty times without any question of order being raised."

Communis error facit jus. That is the principle of this view; and the Senate came to a vote, the opposing numbers of which remind me of some of the votes on evidence that we have had in this trial; the appeal was laid on the table by twenty-nine yeas to ten nays. [Laughter.]

We shall get off pretty easy from a tribunal whose "usual latitude of debate" permits the legislative branch to call the Executive an enemy of his country. But that is not all. Proceeding in the same debate, after being allowed to be in order, Mr. SUMNER goes on with a speech the eloquence of which I cannot be permitted to compliment, as it is out of place, but certainly it is of the highest order, and of course I make no criticism upon it; but he begins with an announcement of a very good principle:

"Meanwhile I shall insist always upon complete freedom of debate, and I shall exercise it. John Milton, in his glorious aspirations, said, "Give me the liberty to know, to utter, and to argue freely above all liberties.' Thank God, now that slavemasters have been driven from this Chamber, such is the liberty of an American Senator! Of course there can be no citizen of a Republic too high for exposure, as there can be none too low for protection. The exposure of the powerful and the protection of the weak; these are not only invaluable liberties but commanding duties."

Is there anything in the President's answer that is nobler or more thoroughgoing than that? And if the President is not too high, but that it should be not only an invaluable liberty but a commanding duty to call him an enemy of the country, may not the House of Representatives be exposed to an imputation of a most unintelligible aspersion upon them that they "hang on the verge of the Government?" Then the honorable Senator proceeds with a style of observation upon which I shall make no observation whatever, and I feel none, but Cicero in Catalinam, in Verrem, et pro Milonem, does not contain more eloquence against the objects of his invective than this speech of the honorable Senator. Here are his words:

"At last the country is opening its eyes to the actual condition of things. Already it sees that Andrew Johnson, who came to supreme power by a bloody accident, has become the successor of Jefferson Davis in the spirit by which he is governed and in the mischief he is inflicting on his country. It sees the president of the rebellion revived in the President of the United States. It sees that the violence which took the life of his illustrious predecessor is now by his perverse complicity extending throughout the rebel States, making all who love the Union

its victims and filling the land with tragedy. It sees that the war upon the faithful Unionists is still continued under his powerful auspices, without any distinction of color, so that all, both white and black, are sacrificed. It sees that he is the minister of discord, and not the minister of peace. It sees that, so long as his influence prevails, there is small chance of tranquillity, security, or reconciliation; that the restoration of prosperity in the rebel States, so much longed for, must be arrested; that the business of the whole country must be embarrassed, and that those conditions on which a sound currency depends must be postponed. All these things the country now sees. But indignation assumes the form of judgment when it is seen also that this incredible, unparalleled, and far-reaching mischief, second only to the rebellion itself, of which it is a continuation, is invigorated and extended through a plain usurpation."

*

*

*

"The President has usurped the powers of Congress on a colossal scale, and he has employed these usurped powers in fomenting the rebel spirit and awakening anew the dying fires of the rebellion. Though the head of the executive, he has rapaciously seized the powers of the legislative, and made himself a whole Congress in defiance of a cardinal principle of republican government that each branch inust act for itself without assuming the powers of the other; and, in the exercise of these illegitimate powers, he has become a terror to the good and a support to the wicked. This is his great and unpardonable offense, for which history must condemn him if you do not. He is a usurper, through whom infinite wrong has been done to his country. He is a usurper, who, promising to be a Moses, has become a Pharaoh."-Congressional Globe, Thirty-Ninth Congress, second session, p. 511.

And then it all ends in a wonderfully sensi

ble-if the honorable Senator will allow me to say so-and pithy observation of the honorable Senator from Wisconsin, [Mr. HowE:]

"The Senator from Massachusetts has advanced the idea that the President has become an enemy to his country." But I suppose

事

that not only to be the condition of the sentiment in this Senate touching the present President of the United States, but I suppose we never had a President who was not in communication with a Senate divided upon just that question, some thinking that he was an enemy of the country and others thinking that he was not; and I respectfully submit, therefore, that the Senator from Massachusetts will be competent to try an impeachment if it should be sent here against the President, as I conceive the Senator from Maryland would be competent to try that question in spite of the opinions which he has pronounced here."-Ibid., p. 545.

That is good sense. Senatorial license must, if it goes so wide as this, sometimes with good-natured Senators be properly described as a little Pickwickian.

We have also a rule provided for us in the Honse of Representatives, and I have selected a very brief one, because it is one that the honorable Managers will not question at all, as it gives their standard on the subject. I find that there this rule of license in speech, in a very brief, pithy form, is thus conducted between two of the most distinguished members of that body, who can, as well as any others, for the purpose of this trial, furnish a standard of what is called by the honorable Manager propriety of speech." I read from page 263 of the Congressional Globe for the Fortieth Congress, first session :

66

"Mr. BINGHAM. I desire to say, Mr. Chairman, that it does not become a gentleman who recorded his vote fifty times for Jefferson Davis, the arch traitor in this rebellion, as his candidate for President of the United States, to undertake to damage this cause by attempting to cast an imputation either upon my integrity or my honor. I repel with scorn and contempt any utterance of that sort from any man, whether he be the hero of Fort Fisher not taken or of Fort Fisher taken." [Laughter.] Now, for the reply;

"Mr. BUTLER. But if during the war the gentleman from Ohio did as much as I did in that direction I shall be glad to recognize that much done. But the only victim of the gentleman's prowess that I know of was an innocent woman hung upon the scaffold, one Mrs. Surratt. And I can sustain the memory of Fort Fisher if he and his present associates can sustain him in shedding the blood of a woman tried by a military commission and convicted without sufficient evidence in my judgment."

To which, on page 364, Mr. BINGHAM responds with spirit:

"I challenge the gentleman, I dare him here or anywhere in this tribunal, or in any tribunal, to assert that I spoliated or mutilated any book. Why, sir, such a charge, without one tittle of evidence, is only fit to come from a man who lives in a bottle and is fed with a spoon." [Laughter.]

Now, what under Heaven that means I am sure I do not know, [laughter,] but it is within the common law of courtesy in the judgment of the House of Representatives. We have attempted to show that in the President's addresses to the populace there was something

of irritation, something in the subjects, something in the manner of the crowd that excused and explained, if it did not justify, the style of his speech. You might suppose that this interchange in debate grew out of some subject that was irritating, that was itself savage and ferocious; but what do you think was the subject these honorable gentlemen were debating upon? Why, it was charity. [Laughter.] The ques tion of charity to the South was the whole staple of the debate; "charity," which suffereth long and is kind." "Charity envieth not." Charity vaunteth not itself, is not puffed up." [Laughter.] Charity "doth not behave itself unseemly, seeketh not her own, is not easily provoked, thinketh no evil; rejoiceth not in iniquity, but rejoiceth in the truth, beareth all things, believeth all things, hopeth all things, endureth all things; charity never faileth." But, then, the Apostle adds, which I fear might not be proved here, "Tongues may fail." [Laughter.]

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Now, to be serious, in a free Republic who will tolerate this fanfaronade about speechmaking? "Quis tulerit Gracchos de seditione querentes."

Who will tolerate public orators prating about propriety of speech. Why cannot we learn that our estimate of others must proceed upon general views, and not vary according to particular passions or antipathies? When Cromwell in his career through Ireland, in the name of the Parliament, had set himself down before the town of Ross and summoned it to sarrender, exhausted in its resistance this Papist community asked to surrender only upon the conditions of freedom of conscience. Cromwell replied: "As to freedom of conscience, I meddle with no man's conscience, but if you mean by that liberty to celebrate the mass, I would have you understand that in no place where the power of the Parliament of England prevails shall that be permitted." So, freedom of speech the honorable Managers in their imputation do not complain of; but if anybody says that the House of Representatives hangs upon the verge of the Government we are to understand that in no place where the power of the two Houses of Congress prevails shall that degree of liberty be enjoyed, though they meddle with no man's propriety or freedom of speech.

Mr. Jefferson had occasion to give his views about the infractions upon freedom of writing that the sedition law introduced in the Legis lature of this country, and at the same time some opinion about the right of an Executive to have an opinion about the constitutionality of a law and to act accordingly; and I will ask your attention to brief extracts from his views. Mr. Jefferson, in a letter to Mr. President Adams, written in 1804, (Jefferson's Works, vol. 3, p. 555,) says:

"I discharged every person under the punishment or prosecution under the sedition law, because I considered and now consider that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image, and that it was as much my duty to arrest its exe cution in every stage as it would have been to har rescued from the fiery furnace those who should have been cast into it for refusing to worship the image. It was accordingly done in every instance, without asking what the offenders had done or against whe they had offended, but whether the pains they wire suffering were inflicted under the pretended sedition law.'

And in another letter he replies to some ob servations against this freedom of the Exec utive about the constitutionality of laws:

"You seem to think it devolved on the judges to decide on the validity of the sedition law; but neting in the Constitution has given them a right to de cide for the Executive more than for the Executive to decide for them. Both magistrates are equal independent in the sphere of action assigned to them. The judges believing the law constitutional had a right to pass a sentence of fine and imprison ment, because the power was placed in their hand by the Constitution; but the Executives believing the the law to be unconstitutional, were bound to reas the execution of it, because that power had bec confided to them by the Constitution. That instrament meant that its coördinate branches shoulde checks on each other; but the opinion which give the judges the right to decide what laws are consi tutional and what not, not only for themselves in their own sphere of action, but for the Legislature

punishment a common law punishment, for attempting it, when the statute itself has not included an attempt within it, I apprehend is not supported by any authority or any view of the law; and I must think that it cannot be supposed in the high forum of a court of impeachment as making a high crime and misdemeanor, that the President of the United States, in determining what his powers and duties were in regard to filling offices, should have looked into the common law of the District of Columbia because the offices are inside of the District.

Then, upon the views presented of the conspiracy articles, let us see what the evidence is. There was no preparation or meditation of force; there was no application of force; there was no threat of force authorized on the part of the President; and there was no expectation of force, for he expected and desired nothing more and nothing less than that, by the peaceful and regular exercise of authority on his part, through the ordinary means of its exercise, he should secure obedience, and if, disappointed in that, obedience should not be rendered, all that the President desired or expected was that, upon that legal basis thus furnished by his official action, there should be an opportunity of taking the judgment of the courts of law.

Now, there seems to be left nothing but those articles that relate to the ad interim appointment of General Thomas and to the removal of Mr. Stanton. I will consider the ad interim appointment first, meaning to assume, for the purpose of examining it as a possible crime, that the office had been vacated and was open to the action of the President. If the office was full, then there could be no appointment by the authority of the President or otherwise.. The whole action of the President manifestly was based upon the idea that the office was to be vacated before an ad interim appointment could possibly be made, or was intended to take effect..

The letter of authority accompanied the order of removal and was of course secondary and ancillary to the order of removal, and was only to take up the duties of the office and discharge them if the Secretary of War should leave the office in need of such temporary charge.

I think that the only circumstance we have to attend to before we look precisely at the law governing ad interim appointments is some suggestion as to any difference between ad interim appointments during the session of the Senate and during the recess. The honorable Managers, perhaps all of them, but certainly the honorable Manager, Mr. BOUTWELL, has contended that the practice of the Government in regard to removals from office covered only the case of removals during the recess of the Senate. It will be part of my duty and labor when I come to consider definitely the question of the removal of Mr. Stanton to consider that point, but for the purpose of Mr. Thomas's appointment no such discrimination needs to be made. The question about the right of the Executive to vacate an office, as to be discriminated between recess and session, arises out of the constitutional distinction that is taken, to wit: that he can only fill an office during session by and with the advice and consent of the Senate, and that he can during the recess commission-it is not called filling the office, or appointing, but commission by authority, to expire with the next session.

But ad interim appointments do not rest upon the Constitution at all. They are not regarded, they never have been regarded as an exercise of the appointing power in the sense of filling an office. They are regarded as falling within either the executive or legislative duty of providing for a management of the duties of the office before an appointment is or can properly be made. In the absence of legislation it might be said that this power belonged to the Executive; that a part of his duty was, when he saw that accident had vacated an office or that necessity had required a removal, under his general authority and duty to see

that the laws are executed, he should provide that the public service should be temporarily taken up and carried on. I do not think that that is an inadmissible constitutional conclusion.

But it might equally well be determined that it was a casus omissus, for which the Constitution had provided no rules and which the legislation of Congress might properly occupy. From the beginning, therefore, as early as 1792 and 1789, indeed, provision is made for temporary occupation of the duties of an office, and the course of legislation was this: the eighth section of the act of 1792, regulating three of the Departments, provided that temporary absence and disabilities of the heads of Departments, leaving the office still full, might be met by appointments of temporary persons to take charge. The act of 1795 provided that in case of a vacancy in the office there might be power in the Executive which would not require him to fill the office by the constitutional method but temporarily to provide for a discharge of its duties. Then came the act of 1863, which in terms covers to a certain extent but not fully both of these predicaments; and I wish to ask your attention to some circumstances in regard to the passage of that act of 1863. I have said that the eighth section of the act of 1792 provides for filling temporarily, not vacancies but disabilities. In January, 1863, the President sent to Congress this brief message, and Senators will perceive that it relates to this particular subject:

To the Senate and House of Representatives:

I submit to Congress the expediency of extending to other Departments of the Government the authority conferred on the President by the eighth section of the act of the 8th of May, 1792, to appoint a person to temporarily discharge the duties of Secretary of State, Secretary of the Treasury, and Secretary of War, in case of the death, absence from the seat of Government, or sickness of either of those officers. ABRAHAM LINCOLN.

WASHINGTON, January 2, 1863.

That is to say, the temporary disability provision of the act of 1792, which covered all the Departments then in existence, had never been extended by law to cover the other Departments, and the President desired to have that act extended. The act of 1795 did not need to be extended, for it covered" vacancies" in its terms and was applicable to other Departments, and vacancies were not in the mind of the President, nor was there any need of a provision of law for them. This message having been referred to the Judiciary Committee, the honorable Senator from Illinois, [Mr. TRUMBULL,] the chairman of that committee, made a very brief report; I believe this is the whole of it, or rather a brief statement in his place concerning it, in which he said:

"There have been several statutes on the subject, and as the laws now exist the President of the United States has authority temporarily to fill the office of Secretary of State and Secretary of War with one of the other Secretaries by calling some person to discharge the duties."

The other Department was the Treasury. "We received communications from the President of the United States asking that the law be extended to the other Executive Departments of the Government, which seems to be proper; and we have framed a bill to cover all of those cases, so that whenever there is a vacancy the President may temporarily devolve the duty of one of the Cabinet ministers on another Cabinet minister, or upon the chief officer in the Department for the time being."

Here there does not seem to have been brought to the notice in terms of the Senate or of the honorable Senator the act of 1795; nothing is said of it; and it would appear, therefore, as if the whole legislation of 1863 proceeded upon the proposition of extending the act of 1792 as to disabilities in office, not vacancies, except that the honorable Senator uses the phrase "vacancies" and that he speaks of having provided for the occasions that might arise. The act of 1863 does not cover the case of vacancies except by resignation, and it is not, therefore, a vacancy act in full. It does add to the disabilities which the President had asked to have covered, a case of resignation which he did not ask to have covered, and which did not need to be covered by new legislation,

because the act of 1794 embraced it. But this act of 1863 does not cover all the cases of vacancy. It does not cover vacancies by removal, if removal could be made, and we supposed it could in 1863; it does not cover the case of expiration of office, which is a case of vacancy provided there are terms to office.

Under that additional light it seems as if the only question presented of guilt on the part of the President in respect to the appointment to office ad interim was a question of whether he violated a law. But Senators will remark the very limited form in which that question arises. It is not pretended that the appointment of Thomas, if the office was vacant, was a violation of the civil-tenure act; that is, it is not pretended in argument, although perhaps it may be so charged in the articles; because an examination of the act shows that the only appointments prohibited there and the infringement of which is made penal is appointing contrary to the provisions of that act, as was pointed out by my colleague, Judge Curtis, and seems to have been assented to in the argument on the other side; that an ap pointment prohibited or an attempt at an appointment prohibited relates to the infrac tion of the policy and provisions of that act as applied to the attempt to fill the offices that are declared to be in abeyance under certain predicaments. I believe that to be a sound construction of the law, whether assented to or not, not to be questioned anywhere.

act.

Very well, then, supposing that the appointment of General Thomas was not according to law, it is not against any law that prohibits it in terms, nor against any law that has a penal clause or a criminal qualification upon the What would it be if attempted without authority of the act of 1795, because that was repealed, and without authority of the act of 1863, because General Thomas was not an officer that was eligible for this temporary employment? It would simply be that the President, in the confusion among these statutes, had appointed or attempted to appoint an ad interim discharge of the office without authority of law. You could not indict him very well for it, and I do not think you can impeach him for it. There are an abundance of mandatory laws upon the President of the United States, and it never has been customary to put a penal clause in them till the civil-tenure act of 1857.

But on this subject, the ad interim appointments, there is no penal clause and no positive prohibition in any statute. There would be, then, simply a defect of authority in the Pres ident to make the appointment. What, then. would be the consequence? General Thomas might not be entitled to discharge the duties of the office; and if he had undertaken to give a certificate as Secretary ad interim to a paper that was to be read in evidence in a court, and a lawyer had got up and objected that General Thomas was not Secretary ad interim, and bad brought the statutes, the certificate might have failed. That is all that can be claimed or pretended in that regard.

But we have insisted, and we do now insist, that the act of 1795 was in force; and that whether the act of 1795 was or was not in force, is one of those questions of dubious interpretation of implied repeal upon which no officer, humble or high, could be brought into blame for having an opinion one way or the other. And if you proceed upon these articles to exe cute a sentence of removal from office of a President of the United States, you will proceed upon an infliction of the highest possible measure of civil condemnation upon him personally, and of the highest possible degree of interference with the constitutionally elected Executive dependent on suffrage that it is possible for a court to inflict, and you will rest it on the basis either that the act of 1795 was repealed or upon the basis that there was not a doubt or difficulty or an ignorance upon which a President of the United States might make an ad interim appointment of General Thomas for a day, followed by a nomination of a per manent successor on the succeeding day. Truly,

FRIDAY, May 1, 1868.

The Chief Justice of the United States took the chair.

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

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

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

The Journal of yesterday's proceedings of the Senate, sitting for the trial of the impeach

ment, was read.

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

Mr. EVARTS. Mr. Chief Justice and Senators, I cannot but feel that notwithstanding the unfailing courtesy and the long-suffering patience which for myself and my colleagues I have every reason cheerfully to acknowledge on the part of the court in the progress of this trial and in the long argument, you had at the adjournment yesterday reached somewhat of the condition of feeling of a very celebrated judge, Lord Ellenborough, who, when a very celebrated lawyer, Mr. Fearne, had conducted an argument upon the interesting subject of contingent remainders to the ordinary hour of adjournment, and suggested that he would proceed whenever it should be his lordship's pleasure to hear him, responded, "The court will hear you, sir, to-morrow; but as to pleas ure, that has been long out of the question.' [Laughter.]

We

Be that as it may, duties must be done, however arduous, and certainly your kindness and encouragement relieve from all unnecessary fatigue in the progress of the cause. will look for a moment, under the light which I have sought to throw upon the subject, a little more particularly at the two acts, the

one of 1795 and the other of 1863, that have relation to this subject of ad interim appointments. The act of 1795 provides:

"That in case of vacancy in the office of Secretary of State, Secretary of the Treasury, or of the Secretary of the Department of War, or of any officer of either of the said Departments, whose appointment is in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices until a successor be ap

pointed or such vacancy be filled: Provided, That no one vacancy shall be supplied in manner aforesaid for a longer term than six months."

The act of 1863, which was passed under a suggestion of the President of the United States, not for the extension of the vacancy act which I have read to the other Departments, but for the extension of the temporary-disability provision of the act of 1792, does provide as follows:

"In case of the death, resignation, absence from the seat of Government, or sickness of the head of any executive Department of the Government, or of any officer of either of the said Departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize

Not "

any person or persons," as is the act of 1795, but

"to authorize the head of any other executive Department or other officer in either of said Departments whose appointment is vested in the President, at his discretion, to perform the duties of the said respective offices until a successor be appointed, or until such absence or disability by sickness shali cease: Provided, That no one vacancy shall be supplied in manner aforesaid for a longer term than six months."

It will be observed that the eighth section of the act of 1792, to which I will now call attention, being in 1 Statutes-at-Large, page 281, provides thus:

"That in case of the death, absence from the scat of Government, or sickness of the Secretary of State, Secretary of the Treasury, or of the Secretary of the War Department, or of any officer of either of the said Departments, whose appointment is not in the head thereof, whereby they cannot perform the duties of their respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed, or until such absence or inability by sickness shall

cease.

Let me call your attention now to an exercise of this power of ad interim appointment as held in the administration of President Lincoln, at page 582 of the record, before the enactment of the statute of 1863. You will observe that before the passing of the act of 1863 there was in force no statutory authority for the appointment of ad interim discharge of the offices except the acts of 1792 and 1795, which were limited in their terms to the Departments of War, of State, and of the Treas ury. You have, therefore, directly in this action of President Lincoln the question of ultra vires, not of an infraction of a prohibitory statute with a penalty, but of an assumption to make an appointment without the adequate support of an enabling act of Congress to cover it, for he proceeded, as will be found at the very top of that page:

I hereby appoint St. John B. L. Skinner, now acting First Assistant Postmaster General, to be acting Postmaster General ød interim, in place of Hon. Montgomery Blair, now temporarily absent. ABRAHAM LINCOLN.

WASHINGTON, September 22, 1862.

The Department of the Post Office was not covered by the acts of 1792 or 1795, and the absence of authority in respect to it and the other later organized Departments formed the occasion of the President's message which led to the enactment of 1863. I would like to know whether, when President Lincoln appointed Mr. Skinner to be Postmaster General, without an enabling and supporting act of Congress to justify him, he deserved to be impeached, whether that was a crime against the Constitution and his oath of office, whether it was a duty due to the Constitution that he should be impeached, removed, and a new election ordered?

I cannot but insist upon always separating from these crimes alleged in articles the guilt that is outside of articles and that has not been proved, and that I have not answered for the respondent nor have been permitted to rebut by testimony. I take the thing as it is, and I regard each article as including the whole compass of a crime, the whole range of imputation, the whole scope of testimony and consideration; and unless there be some measure of guilt, some purpose or some act of force, of violence, of fraud, of corruption, of injury, of evil, I cannot find in mistaken, erroneous, careless, or even indifferent excesses of authority, making no impression upon the fabric of the Government and giving neither menace nor injury to the public service, any foundation for this extraordinary proceeding of impeachment.

Am I right in saying that an article is to contain guilt enough in itself for a verdict to be pronounced by the honorable members of the court 66 guilty" or "not guilty" on that

I am told, or I understand from the argument, that if there was a vacancy in the office of Secretary of War by the competent and effective removal of Mr. Stanton by the exercise of the President's authority in his paper order, there has come to be some infraction of law by reason of the President's designating General Thomas to the ad interim charge of the office, because it is said that though under the act of 1795, or under the act of 1792, General Thomas, under the comprehension of "any person or persons," might be open to the presidential choice and appointment, yet that he does not come within the limited and restricted right of selection for ad interim duties which is imposed by the act of 1863; and it seems to have been assumed in the argument that the whole range of selection permitted under that act was of the heads of Departments. But your attention is drawn to the fact that it permits the President to designate any person who is either the head of a Department, or who holds any office in any Depart-article; guilty not of an act as named, but ment the appointment of which is from the President; and I would like to know why General Thomas, Adjutant General of the armies of the United States, holding his position in that Department of War, is not an officer appointed by the President, and open to his selection for this temporary duty; and I would like to know upon what principle of ordinary succession or recourse for the devolution of the principal duty any officer could stand better suited to assume for a day or for a week the discharge of the ad interim trust than the Adjutant General of the armies of the United States, being the staff officer of the President, and the person who stands there as the principal directory and immediate agent of the War Department in the exercise of its ordinary functions?

I cannot but think it is too absurd for me to argue to a Senate that the removal of a President of the United States should not depend upon the question whether an Adjutant General was a proper locum tenens or not, or whether entangled between the horns of the repealed and unrepealed statutes the President may have erred in that on which he hung his rightful authority.

"guilty of a high crime and misdemeanor as charged," and as the form of question adopted in the Peck and Chase trials is distinctly set down and not the question used in the Pickering trial for a particular purpose, which has led the honorable Manager [Mr. WILSON] to denounce it as a mockery of justice, a finding of immaterial facts, leaving no conclusions of law or judgment to be found by anybody.

There is another point of limitation on the authority of the President, as contained both in the act of 1795 and of 1863, which has been made the subject of some comment by the learned and honorable Manager, [Mr. BourWELL:] it is that anyhow and anyway the Presi dent has been guilty of a high crime and misdemeanor, however innocent otherwise, because the six months' ability accorded to him by the act of 1795 or 1863 had already expired before he appointed General Thomas.

The reasoning I do not exactly understand; it is definitely written down and the words have their ordinary meaning, I suppose; but how it is that the President is chargeable with having filled a vacancy thus occurring on the 21st of February, 1868, if it occurred at all, by an appointment that he made ad interim