this coconspirator. He was conversing with friends; and it is for the Senate to determine whether he was not invoking the aid of friends in the prosecution of this common design. He told one friend that in two or three days he would kick the Secretary of War out; he told that other friend, Dr. BURLEIGH, who visited his house, to come up on to-morrow morning, "and if the doors are closed I will break them down." It was inviting a friend of his own to be there, in case of need, to render him assistance and cooperation. There is something further, however, in this evidence of the purpose to employ force. In the examination (page 440 Impeachment Record) of this coconspirator he is asked in regard to the papers of the Department:

"Did you afterward hit upon a scheme by which you might get possession of the papers without getting possession of the building?

Answer. Yes, sir.

Question. And that was by getting an order of General Grant?

Question. And before you issued that order, took that away to get hold of the mails or papers, you thought it necessary to consult the President?

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the

Answer. I gave that to him for his consideration.
You did think it necessary to consult

President did you not?

Answer. I had consulted him before." Further on he says:

Question. They were published and notorious, were they not? Have you acted as Secretary of War ad interim since?

Answer. I have given no order whatever. Question. That may not be all the action of a Secretary of War ad interim. Have you acted as Secretary of War ad interim?

Answer. I have, in other respects.

Answer. I have attended the councils.

Question. What other respects?

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Question. Cabinet meetings, you mean.

Answer, Cabinet meetings.

Question. Have you been recognized as Secretary

of War ad interim?

"Answer. I have been.

Question. Continually?

Answer. Continually.

Question. By the President and the other members of the Cabinet?

"Answer. Yes, sir.

Question. Down to the present hour?
Answer. Down to the present hour.

Question. All your action as Secretary of War ad interim has been confined, has it not, to attending Cabinet meetings?

"Answer. It has. I have given no order whatever. Question. Have you given any advice to the President? You being one of his constitutional advisers, have you given him advice as to the duties of his office or the duties of yours?

Answer. The ordinary conversation that takes place at meetings of that kind. I do not know that gave him any particular advice.

Question. Did he ever call you in?

Answer. He has asked me if I had any business to lay before him several times.

Question. You never had any?

Answer. I never had any except the case of the note I proposed sending to General Grant.

Question. I want to inquire a little further about that. He did not agree to send that notice, did he?

Answer. When I first spoke to him about it I told him what the mode of getting possession of the papers was, to write a note to General Grant to issue an order calling upon the heads of bureaus, as they were military men, to send to me communications designed either for the President or the Secretary of War. That was one mode.

Answer. I may have mentioned it one day at the council, and he said we had better let the matter rest until after the impeachment."

A notice to the Senate that these two confederates and conspirators have been deliberately conferring together about violating, not simply your tenure-of-office act, but your act making appropriations for the Army of 2d of March, 1867; that one of the conspirators has written out an order for the very purpose of violating the law, and the other conspirator, seeing the handwriting upon the wall, and apprehensive, after all, that the people may pronounce him guilty, concludes to whisper in the ear of his coconspirator, "Let it rest until after the impeachment." Give him, Senators, a letter of authority, and he is ready, then, to renew this contest and again sit in judicial judgment upon all your statutes, and say that he has deliberately settled down in the conviction that your law regulating the Army, fixing the headquarters of its General in the capital, not removable without the consent of the Seuate, does nevertheless impair, in the language of that argument made by Judge Curtis, cer tain rights conferred upon him by the Constitution, and by his profound judicial judgment he will come to the conclusion to set that aside, too, and order General Grant to California or to Oregon or to Maine, and defy you again to try him. Senators, I trust you will spare the people any such exhibition.

And now, Senators, it has been my endeavor to finish all that I desire to say in this matter. I hope, I know really, that I could finish all that I have to say, if I were in possession of my strength, in the course of an hour or an hour and a half. It is now, however, past four o'clock, and if the Senate should be good enough to indulge me I shall promise not to ask a recess to-morrow if it pleases Providence to bring me here to answer further in the case of the people against Andrew Johnson.

Mr, HOWARD. I move that the Senate, sitting for the trial of the impeachment, adjourn until to-morrow at twelve o'clock.

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

WEDNESDAY, May 6, 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 Messrs. Evarts, Groesbeck, and Nelson, of counsel for the respondent, appeared and took the seats assigned to them respectively.

The members of the House of Representa tives, 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

tion of the United States to control the executive offices of this Government. To the better understanding, however, of my argument, Senators, I desire to read the provisions of the several statutes and to insist in the presence of the Senate that upon the law, as read by the counsel for the President on this trial, the acts of 1789 and of 1795 have ceased to be law, and that the President can no more exercise authority under them to-day than can the humblest citizen of the land. I desire also, Senators, in reading these statutes, to reaffirm the position which I assumed yesterday with perfect confidence that it would command the judgment and assent of every Senator, to wit: that the whole legislation of this country from the first Congress in 1789 to this hour bears a uniform witness to the fact that the President of the United States has no control over the executive officers of this Government, except such control as is given by the text of the Constitution which I read yesterday, to fill up such va cancies as may occur during the recess of the Senate with limited commissions to expire with their next session, or such power as is given to him by express authority of law. I care nothing for the conflicting speeches of Representatives in the First Congress on this question. The statutes of the country conclude them and conclude us, and conclude as well every officer of this Government from the Executive down.

What, then, Senators, is the provision of this act of 17897 I may be allowed, in passing, to remark-for I shall only read one of them that the act establishing the Depart ment for Foreign Affairs contains precisely the same provision, word for word, as the act of the same session establishing the Department of War. The provision of the act of 1789 is this:

"SEC. 2. That there shall be in the said Department an inferior officer, to be appointed by the said principal officer, and to be employed therein as he shall deem proper, and to be called the chief clerk of the Department of Foreign Affairs, and who, when ever the said principal officer shall be removed from office by the President of the United States"

Which I showed you yesterday, upon the authority of Webster, was a grant of power without which the President could not have removed him

"or in any other case of vacancy, shall, during such books, and papers appertaining to the said Departvacancy, have the charge and custody of all records,

ment.'

Standing upon that statute, Senators, and standing upon the continued and unbroken practice of eighty years, I want to know, as I inquired yesterday, what practice shows that this vacancy thus created by authority of the act of 1789 could be filled during the session of the Senate by the appointment of a new head to that Department without the consent of the Senate as prescribed in the Constitution. No precedent whatever has been furnished.

I said yesterday all that I have occasion to say touching the case of Pickering. I remarked yesterday, what I but repeat in passing, without delaying the Senate, that the va cancy was not filled without the consent of the Senate, and that is the end of this unbroken current of decisions upon which the gentlemen rely to sustain this assumption of power on the part of the accused President. It cannot avail which they have attempted to impress upon the them. The act of 1789 excludes the conclusion minds of the Senate in defense of the Presi dent. The law restricts him to the chief clerk. If he had the power to fill the vacancy, why this restriction? Could he override that law? Could he commit the custody of the papers 1789, to any human being on earth during that and records of that Department, on the act of pointed by him, but by the head of the Departvacancy but the chief clerk, who was not ap ment? There stands the law, and in the fight of that law the defense made by the President turns to dust and ashes in the presence of the Senate. Isay no more upon that point, reminding the Senate that the act of 1789 establishing the War Department contains precisely the same provision and imposes precisely the

same limitation, giving him no power to fill the vacancy by appointment during the session of the Senate.

I pass now to the act of 1795. The act of 1792 is obsolete, has been superseded, and was substantially the same as the act of 1795; and what I have to say, therefore, of the act of 1795, applies as well to the act of 1792. I read from 1 Statutes-at-Large, page 415:

"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 not 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 appointed or such vacancy be filled: Provided, That no one vacancy shall be supplied in manner aforesaid for a longer term than six months."

There stood the act of 1789, unrepealed up to this time, I admit, expressly authorizing the President to create the vacancy, but restricting him as to the control of the Department after it was created to the chief clerk of the Department. That is superseded by the act of 1795, in so far as the appointment is concerned, by expressly providing and giving him the additional power:

"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."

It was a grant of power to him. No grant of power could be more plainly written. What is the necessity of this grant if the defense made here by the President as stated in his answer and read by me to the Senate yesterday be true-that the power is in him by virtue of the Constitution? If it be, I ask to-day, as I asked yesterday, how comes it that Congress restricted this constitutional power to appointments not to exceed six months for any one vacancy? That is the language of the statute. Am I to argue with Senators that this term "any one vacancy" excludes the conclusion that the President could, upon his own motion, multiply vacancies ad infinitum by creating

another at the end of the six months and making a new appointment? Senators, there is no unbroken current of decisions to support any such assumption.

There is no action of the executive department at any time to support it or give color to it, and there I leave it.

I ask the attention of Senators now to the provisions of the act of 1863, which also affirms the absolute control of the legislative depart ments over this whole question of removal and appointments, save and except always the express provision of the Constitution-which, of course, the Legislature cannot take away-that the President may fill up vacancies which may happen during the recess of the Senate by limited commissions to expire at the end of their next session. The act of 1863 is in these words:

"That 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 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 inability by sickness shall cease: Provided. That no vacancy shall be supplied in manner aforesaid for a longer term than six months."

Senators, what man can read that statute without being forced to the conclusion that the Legislature thereby reaffirmed the power that they affirmed in 1789, the power that they aflirmed in 1795, to control and regulate by law this asserted unlimited power of the Executive over either appointments or removals. Look at the statute. Is he permitted to choose at large from the body of the community to fill temporarily these vacancies? Not at all.

"It shall be lawful for the President of the United States, in case he shall think it necessary, to author

ize the head of any other executive Department, or other officer of either of said Departments whose appointment

is vested in the President"that is, the inferior officers

"at his discretion, to perform the duties of the said respective offices until a successor be appointed."

He is restricted by the very terms of the statute to the heads of Departments or to such inferior officers of the several Departments as are by law subject to his own appointment, and by that act he can appoint no other human being. There is the law; and yet gentlemen stand here and say that the act of 1789 and the act of 1795 were not repealed, when they read the authority themselves to show that when two statutes are repugnant and irreconcilable the last must control and works the repeal of the

first. Here is the President by this act restricted expressly to the heads of Departments and to the inferior officers of Departments subject to his appointment under law, and he shall appoint no one else. Was that the provision of 1795? Do these statutes stand together? Are they by any possibility reconcilable. For the purpose of my argument it is not needful that I should insist upon the repeal of the act of 1795 any further than it relates to the vacancies which arise from the cases enumerated in the act of 1863. The act of 1863 is a reassertion of the power of the Legislature to control this whole question; and that is the unbroken current of decisions from the First Congress down to this day, that the President can exercise no control over this question except by authority of law and subject to the express requirements of law.

This brings me then, Senators, to the act of 1867, to which I referred yesterday, and which I refer to now to-day in this connection for the purpose of completing this argument and leaving every man without excuse upon this question as to the limitations imposed by law upon the President of the United States, touching this matter of appointment and removal of the heads of Departments, and of all other officers whose appointment is, under the Constitution, by and with the advice and consent of the Senthis morning to the act of 1867 is to show to ate; and my chief object in referring again the Senate, what I am sure must have occurred to them already, rather to perfect my own argument than to suggest any new thought to them, that by every rule of interpretation, that by every letter and word of law read in the conduct of this argument on behalf of the President by his counsel, the act of 1867, by necessary implication, beyond the shadow of a doubt repeals the acts of 1789 and of 1795 and leaves the President of the United States subject to the requirements of this law as to all that class of officials. The language of this law is:

"That every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate"

That is, all past appointments at the time of the passage of this law

"and every person who shall hereafter be appointed to any such office, and shall become duly qualified to act therein, is, and shall be, entitled to hold such office until a successor shall have been in like manner appointed and duly qualified, except as herein otherwise provided."

How appointed? "In like manner appointed" by and with the advice and consent of the Senate, and duly qualified and commissioned under such appointment. All present officials shall hold these offices. What becomes of this grant of power in the act of 1789 to the President to remove? What becomes of this grant of power in the act of 1795 to make temporary appointments for six months? What becomes of the provision of the act of 1863 which authorized him to fill these vacancies with the heads of Departments or by inferior officers for a period not exceeding six months? They all go by the board. There stands the provision of the statute which no man can get away from, concluding this whole question: That every person holding any civil office," by and with the advice and consent of the Senate," "shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified." Nothing could be plainer. There is no room

for any controversy about it. There is not an intelligent man in America that will challenge it for a moment. "Every person holding" the office must include all persons holding the office. He shall continue to hold it-so the statute says--until a successor shall, in like manner, that is to say, by and with the advice and consent of the Senate, be not only appointed, but duly qualified. What room is there here, Senators, for any further controversy in this matter? None whatever.

I referred yesterday to the proviso. I asked the attention of Senators yesterday to the fact that the elaborate argument of Mr. Curtis on behalf of the accused declares in words, as you that the present heads of Departments ap will find it recorded in the report of the case, pointed by Mr. Lincoln are not by any express only made the statement in manner and form words whatever within the proviso. He not

as

s I now reiterate it in the hearing of the Senate, but he proceeded to argue to the Senate to show that they were not even by implication within the proviso. And so his argument stands reported to this hour; and, so far as I observed, really uncontradicted by anything said afterward by any of his associates; but if they did contradict it, if they did depart from it, if they did differ with him in judgment about it, they are entitled to the benefit of the difference. I do not desire to deny them the benefit of it. I only wish to say that it cannot avail them. I only wish to say in the hearing of Senators that the interpretation put upon that proviso by the opening counsel for the President, declaring that it did not extend to nor embrace the existing appointments of the heads of Departments under Mr. Lincoln, is

an admission that Mr. Stanton was entitled to hold his office until removed by and with the advice and consent of the Senate. The reason

given by Mr. Curtis was that there are no express words embracing the heads of Departments appointed by Mr. Lincoln. The further reason given by Mr. Curtis was that there is nothing which by necessary implication brings them within the operation of the proviso. If they be not within the operation of the proviso, they are, by the very words of the statute, within the body of the act. The counsel who followed him for the President admitted that the offices were within the body of the act. The persons holding the offices, by the very words of the act "every person," are within the body of the act, and they are to retain the office, unless suspended for the special reasons named in the second section, by the express terms of the act, until a successor shall be, in like manner, appointed by and with the advice and consent of the Senate and shall have been duly qualified.

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

This proviso manifestly, in the last clause of it, stands with the general provisions of the first clause of the section which I have read, that they are at any time subject to removal by and with the advice and consent of the Senate. The residue of the proviso is to limit the tenure of office of the heads of these several Departments appointed by and with the advice and consent of the Senate, by this limitation, that one month after the expiration of the term of the President by whom they were appointed, their office shall expire by mere operation of law, without the intervention of the Senate, without the intervention of the President, without the intervention of anybody. It was said here, very properly, by the Attorney General, that effect must be given to every word in a written statute. It is the law. Effect must be given to it, and such an effect as will carry out the intent of the law itself. Give effect, Senators, if you please, to the words "during the term of the President and for one month thereafter."

Give effect to the words "the term of the President," if you please. The Constitution employs this phrase" term of the President." It declares that the President shall hold his office during the term of four years. It is the only presidential term known to the Constitution. The act of March 1, 1792, reaffirms the same principle by law. I read from 1 Statutesat-Large, page 241:

"That the term of four years, for which a President and Vice President shall be elected, shall in all cases commence on the 4th day of March next succeeding the day on which the votes of the electors shall have been given."

After making provision for an election in certain contingencies when a vacancy shall have arisen in the office both of President and Vice President of the United States, the statute follows it up with the same words that the term shall commence on the 4th of March next after the election or the counting of the votes. The provision of the Constitution throws some light upon the subject:

"In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President; and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed or a President shall be elected."

In the light of these provisions of the Constitution, and of this provision of the act of 1792, is it not apparent to the mind of every man within the hearing of my voice that the presidential term named and referred to in the act of 1867 is the constitutional term of four years? It must be so. It must be the term authorized by the Constitution and the laws, for there is no other term." The position assumed here is that Andrew Johnson has a term answering to the provisions of the Constitution, of the act of 1792 and of the act of 1867, both of which employ the same wordthe term of four years under the Constitution. Apply this provision of the Constitution which I have just read, that in the event of the inability of the President of the United States to execute the duties of the office the Vice Pres ident shall execute the duties of the office until such disability be removed. That is the language of the Constitution. If the President of the United States elected by the people, and therefore possessed of a constitutional term, and the only person who ever can have a constitutional term while the Constitution remains as it is, shall be overtaken with sickness, and by delirium, if you please, rendered utterly incapable, in the language of the Constitution, of discharging the duties of the office, and his inability continues for the period of four consecutive months, is the Senate to be told that the Vice President, upon whom the duties of the office by this provision devolve, by reason of the construction imposed here upon this statute or attempted to be put upon it by the counsel, is to be said to have a term within the meaning of this law, and therefore by operation of the statute, within one month after the disability arose against the President by reason of his delirium, every executive office by operation of law became vacant; and are you to follow it to the absurd and ridiculous conclusion when, in the language of the Constitution, the disability shall be removed and the President restored to office, the offices filled with the advice and consent of the Senate by the Vice President, upon whom the office in the meantime devolved-for by the terms of the Constitution your President disabled was civilly dead; you had but the one President, and that was the Vice President, during the four months-on account of vacancies arising by operation of law one month after the office was devolved upon him by the Constitution by reason of the inability of the President, are to become vacant one month after the expiration of this four months' term and the return of the disabled President to his office by reason, in the language of the Constitution, of the removal of his disability.

It will not do. He had no term. No effect

is given to the words of your statutes in that way; and more than that, Senators, these learned and astute counsel knew right well that they changed in their own minds, and changed by the words of their own argument, the very language of the statute, so that it should have read to accomplish their purposes: "that the office shall expire within one month after the end of the term in which they may have been appointed," not "in one month after the end of the term of the President by whom appointed," as the statute does read; but their logic rests upon the assumption that the statute contains words which it does not contain, "that their office shall expire within one month after the term in which they may have been appointed."

Concede that, change the law in that way in order to accommodate this guilty man, and I will admit that you arrive at this conclusion, and that is as about absurd as the other, giving their construction to the law, changing its language from what it is, "that the office shall expire in one month after the term of the President by whom appointed," so that it shall read "after the end of one month from the end of the term in which they were appointed," and it results that ever since the 4th day of April, 1865, the people of the United States have been without a constitutional or lawful Secretary of State, without a constitutional Secretary of the Treasury, without a constitutional Secretary of the Navy, and without a constitutional Secretary of War, because accepting the assumptions of these gentlemen, that by this word "term" in the statute is meant the term in which they were appointed and not the term of the President by whom they were appointed, admit their premises, and no mortal man can escape the conclusion that the offices all became vacant on the 4th day of April, 1865. That is the position assumed by these gentlemen for the simple reason that these four Secretaries were every one of them appointed by Mr. Lincoln in his first term, which first term expired on the 4th day of March, 1865.

Senators, that is not the meaning of your law. The reason of the law is the life of the law." The reason of the law was simply this: that the Presidents elected by the people for a term-and no other Presidents have a term

should, by operation of law, upon their coming to the office, be relieved, without any intervention of theirs, of all the several heads of Departments who had been appointed by their predecessors. That is the meaning of the law. That is all there is of it. So far as this question of the right of an incoming President to a new Cabinet is concerned, that is the extent of it. The word "term" determines it. Did that mean that a President reëlected for a term and thereby continuing in the office should be relieved from his own appointees by operation of law, and that, too, without his consent, and, if you please, against his wish? It never entered into the mind of a single member of the Thirty-Ninth Congress. I venture to say that no utterance of that sort is found recorded upon the debates touching this reform in the legislation of the country and controlling executive appointments. What right had Mr. Lincoln to complain that the law did not vacate the heads of Departments by its own operation for his benefit when he had filled them himself? The law was passed for no such purpose. I read the law literally as it is. They were to hold their offices, in the light of the reason of the law, during the entire term, if it should be eight years or twelve years or sixteen years, of the President by whom they were appointed, and their office was to expire within one month after the expiration of the term of the Presi dent by whom they were appointed, not within one month after the expiration of the term in which they were appointed.

That is my position in regard to this question. I have no doubt about its being the true construction of the law, neither had the accused; and I stated to the Senate yesterday my reasons for the assertion; I do not propose to repeat them to-day. The Senate did me the honor to listen and attend to my remarks on

that subject, wherein the President, by every step he took until this impeachment was insti tuted, confessed that that was the operation of this law, and these heads of Departments might avail themselves of it.

In the act of 1792 my attention is called to another provision of it, which I did not read, which shows the operation of this word “ term" still more strongly than does the provision of the twelfth section, which I did read. It is found in the tenth section of the act, which provides―

That whenever the offices of President and Vice President shall both become vacant the Secretary of State shall forthwith cause a notification thereof to be made to the Executive of every State, and shall also cause the same to be published in at least one of the newspapers printed in each State, specifying that electors of the President of the United States shall be appointed or chosen in the several States within thirty-four days preceding the first Wednesday in December then next ensuing: Provided, There shall be the space of two months between the date of such notification and the said first Wednesday in December; but if there shall not be the space of two months between the date of such notification and the first Wednesday in December, and if the teria for which the President and Vice President last in office were elected shall not expire on the 3d day of March next ensuing, then the Secretary of State shall specify in the notification that the electors shall be appointed or chosen within thirty-four days preceding the first Wednesday in December in the year next ensuing, within which time the electers shall accordingly be appointed or chosen."

Showing that this term by the express provisions of the law is limited everywhere and intended to be limited everywhere within the meaning and sense of the Constitution. That being so there is no person who has a term but the President elected by the people. There is no person, therefore, whose appointments can, by any possibility, be within the provisions of this proviso but such a President, and in that case the Secretary of War and the other Secre taries of the various Departments are under the operation of the statute within the proviso, so as to limit and determine their offices at the expiration of one month after the inauguration of a successor elected also to a term. It is the only construction which gives effect to all the words of the statute. It must be a successor,

not a reëlection of the same President.

There is one other point in this matter, and I have done with it. The gentlemen give this proviso a retroactive operation in order to get along with their case, and, as I showed to the Senate, vacate the offices really by making the statute read as it does not read, that these officers are to go out of office one month after the expiration of the term in which they were appointed. In order to get up this construction they give a retrospective operation to the act, and make it take effect two years before its passage, and make it vacate the four Executive Departments I have named on the 4th day of April, 1865, when in point of fact the act was not passed until the 2d day of March, 1867. I have just this to remark on that subject, that it is a settled rule of the law that a retrospect ive operation can be given to no statute whatever without express words. The counsel for the President admits there are no express words in the proviso. That is the language of his own argument. I hold him to it, and I ask the Senate to pass upon it. I refer to the authority of Sedgwick on Statutory and Constitutional Law, page 190:

"The effort of the English courts appears indeed always to be to give the statutes of that kingdom a prospective effect only, unless the language is so clear and imperative as not to admit of doubt."

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"In this country the same opposition to giving statutes a retroactive effect has been manifested, and such is the general tenor of our decisions."

I have no doubt of it. The express language of the first clause of the law gives it a retrospective operation in one sense of the word, that is, it embraces every officer heretofore ap pointed by and with the advice and consent of the Senate, and by express language every officer hereafter to be so appointed. But this proviso, in the words of Mr. Curtis, contains no express language of that kind, and on the contrary, contains words which exclude the conclusion. I leave the question there. If Mr. Lincoln had lived I think every Senator must

agree that under this statute and within the reason of the law he could not have availed himself of the acts of 1789 and 1795 to remove a single head of Department appointed by himself at any time during his term; and I do not care how often his term was renewed it was still the term and answered to the statute, and he was still the President by whom these officers were appointed. And when his term expired, whether it was renewed twice or three or four times, when his term had expired the proviso in futuro took effect according to its own express language, and the offices by operation of law became vacated one month after the expiration of that term, and that term never does expire until the end of the time limited.

I have nothing further to say, Senators, upon this point. I think I have made it plain enough.

Having said this, allow me to remark in this connection that I think my honorable and learned friend from Ohio, [Mr. Groesbeck,] in his argument, spoke a little hastily and a little inconsiderately when he ventured to tell the Senate that unless Mr. Stanton was protected by the tenure-of-office act the first eight articles of impeachment must fail. Passing the question of removal, about which I have said enough, and more than enough, how can anybody agree with the honorable gentleman in his conclusion touching this matter of appointment? What man can say one word, one intelligible word in justification of the position that the act of 1867 did not sweep away every 1 line and letter of the power of appointment conferred on the President by the acts of 1789 and 1795, as to every officer, appointable by and with the advice and consent of the Senate? I have asked the attention of the Senate before, and beg pardon for asking their attention again to the express words of the act which settle beyond controversy that point. Those words

are:

"That every person holding any civil office to which he has been appointed, by and with the advice and consent of the Senate"

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shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified."

The proviso, even allowing it to have the effect and operation which the gentlemen claim, only vacates the office; but it does not allow a successor to be appointed. There is not a word or syllable of that sort in it. The statute then stands declaring in substance that all vacancies in all these Departments shall hereafter be filled only by and with the advice and consent of the Senate, save as it may be qualified by the third section; and what is that?

"That the President shall have power to fill up all vacancies which may happen during the recess of the Senate, by reason of death or resignation, by granting commissions which shall expire at the end of their next session thereafter.'

Showing additional reasons in support of my position that this statute necessarily repeals the acts of 1789 and 1795, that he may merely fill up during the recess, reiterating in other words the provision of the Constitution itself, but by law absolutely limiting and restricting his power of appointment to vacancies during the recess.

"And if no appointment, by and with the advice and consent of the Senate, shall be made to such office so vacant or temporarily filled as aforesaid during such next session of the Senate, such office shall remain in abeyance, without any salary, fees or emoluments attached thereto, until the same shall be filled by appointment thereto, by and with the advice and consent of the Senate."

Showing, as plainly as language can show, that the President's power over the premises is by law absolutely excluded.

And during such time all the powers and duties belonging to such office shall be exercised by such other officer as may by law exercise such powers and duties in case of a vacancy in such office."

This throws you back upon the provisions of the act of 1863, but there is the express provision that the office shall remain in abeyance. Here is an appointment ad interim during the session of the Senate; here is an appointment ad interim to fill a vacancy which did not arise during the recess; here is an appointment ad interim to fill a vacancy created by an act of SUPPLEMENT-26.

removal by himself; and what do the gentlemen say to it? Why it did not succeed, I answered that yesterday, that the very words of the statute declare that the issuance of the letter of authority shall be itself a high misdemeanor. That is answer enough.

But what else is said here about this thing? The gentlemen come here to argue and put it in the answer of the President that the act of 1867 is unconstitutional and void. They have argued for hours here to the Senate to assure them that no man can be guilty of a crime for the violation of an unconstitutional act, because it was no law that he violated. Why all this effort, Senators, made by these learned counsel? Why this solemn averment in this answer of the President that the act of 1867 is unconstitutional and void, if, after all, there was no violation of its provisions; if, after all, it was no crime for him to make this ad interim appointment; if, after all, the acts of 1789 and 1795 remain in full force? Senators, I have no patience to pursue an argument of this sort. The position assumed is utterly inexcusable, utterly indefensible. Admitting Mr. Stanton, if you please, to be within the proviso, adınitting that the proviso operated retrospectively, admitting that it vacated his office on the 4th day of April, 1865, as also the offices of Mr. Seward and Mr. Welles and Mr. McCulloch, leaving the Republic without any lawful heads to those Departments, accepting the absurd propositions of these gentlemen, and I ask you what answer is that to the second and third and eighth articles of accusation against this President that he committed a high crime and misdemeanor in office in that he issued a letter of authority contrary to the provisions of the sixth section? It is just no answer at all. I think the counsel must so understand it themselves.

What answer is that, I ask you, Senators, to the charges in the fourth, fifth, sixth, and seventh articles, that he entered into conspiracy with Thomas to prevent the execution of the law, and the averment in the eleventh article, which averments are divisible, as every lawyer knows, that he attempted by device and contrivance to prevent the execution of the law and to prevent the Secretary of War, Edwin M. Stanton, from resuming the functions of the office in obedience to the requirements of the act of 1867, which is also made a crime by your act of 1861 touching conspiracies, which is a crime at common law, as I read in the hearing of the Senate from 4 Bacon, and which crime at common law is made indietable by your act of 1801, and so affirmed by the decisions of the circuit court of your District and by the decision of the Supreme Court of the United States, which I also read in the hearing of the Senate. I ask Senators to consider whether, admitting that the Secretary of War had ceased to be entitled to the office, and was not to be protected in the office by operation of the law, the President must go acquit of these conspiracies into which he has entered and for the very purpose alleged, as confessed by himself in his letter which I read yesterday in the hearing of the Senate, and must go acquit of issuing this letter of authority in direct violation of the sixth section of the act.

There were other words uttered by the counsel here to show that there was a great deal more in this accusation thau these gentlemen were willing to concede. The Senate will remember the language of Mr. Attorney General Stanbery, that this act was an odious, offensive, unconstitutional law, in that it attempted to impose penalties upon the Executive for discharging his executive functions, making it a crime or misdemeanor for him to exercise his undoubted discretionary power as claimed in his answer under the Constitution. He affirmed here with emphasis before the Senate that the law was made exclusively for the Executive. He forgot, Senators, that the fifth section of the act makes it apply to every man who participates with the Executive voluntarily in the breach of the law, and makes it a high

misdemeanor for any person to accept any such appointment, &c., punishable by fine and imprisonment in the same measure precisely as the President himself is punishable.

I do not understand, Senators, why this line of argument was entered upon, if my friend from Ohio was right in coming to the conclusion that there was nothing in the conspiracy, that there was nothing in issuing the letter of authority in violation of the express penal provisions of the law, if Mr. Stanton was not protected by the law and could be rightfully removed. There is a great deal in it beyond that. The President had no right to make the appointment. That is the express language of your law. And for doing it he is liable to indictment whenever the Senate shall have executed its power over him by his removal from office. I explained yesterday how it is that he is not liable to prosecution before. Your Constitution provides that, after the judg ment shall be pronounced upon him of removal from office he may be held to answer by indictment for the crimes and misdemeanors whereof he has been impeached.

I referred yesterday, Senators, to the fact disclosed in the evidence that the President has been pursuing these acts of usurpation in utter defiance and contempt of the people's power to control him since the impeachment was preferred against him. I read in the hearing of the Senate yesterday what was sworn to by Thomas as to the proposition to have an order made upon General Grant to compel the surrender of the papers of the Department of War to his Secretary ad interim. I read in the hearing of the Senate yesterday what Thomas swore to, that the President concluded to defer action upon the order which Thomas had written out and left lying upon the table awaiting the result of impeachment. And, Senators, something has transpired here upon the floor in the progress of this case which gives significance to this conversation between the President and Thomas, and that was the language of his veteran and intrepid friend from Tennessee, [Mr. NELSON,] who stood here unmoved while he uttered the strong words in the hearing of the Senate, that it was his own conviction, and it was also the conviction or opinion of the President himself, that the House of Representatives had no power under the Constitution to impeach him, no matter what he was guilty of, and that the Senate of the United States had no power under the Constitution as now organized to try him upon impeachment. We are very thankful that the President, of his grace, permits the Senate to sit quietly and deliberate on this question presented by articles of impeachment through the people's Repre

sentatives.

But I ask Senators to consider whether the President-for I observe the counsel did not intimate that the President was willing to abide the judgment-whether the President in this matter, after all, is not playing now the same rôle which he did play when he availed himself of the provisions of the tenure-of-office act to suspend Edwin M. Stanton from office and appoint a Secretary ad interim to await the action of the Senate; whether he is not playing the same role that he did play further when he availed himself of that act and notified the Senate of the suspension, together with the reasons and the evidence, agreeing to allow the Senate to deliberate, agreeing, if the Senate would concur in the suspension and make it absolute, to abide the judgment; but, nevertheless, reserving to himself that unlimited prerogative of executive power to defy the final judgment of the Senate if it was not in accord with his own. Is that the posture of this case? I think it had been well for the President of the United States, when he was informing us of his opinions on the subject through his learned counsel, to have gone a step further and to have informed us whether he would abide the judg ment. He has let us know that we may sit and try him, as he let the Senate know before that they might sit and consider his reasons of sus pension; but he let them know, when they came