against him by the House of Representatives, and this without considering the requirments or constitutionality of the act regulating the tenure of certain civil offices.

I pass now to the consideration of the Tenure of Office act. I preface what 1 have to say by calling your attention to that part of my argument already addressed to you in which I have set forth and maintained, as I was able, the opinion that the President had no right to make any inquiry whether an act of Congress is or is not constitutional. That, having no right to make such inquiry he could not plead that he had so inquired, and reached the conclusion that the act inquired about was unconstitu tional. You will also bear in mind the views presented, that this tribunal can take no notice of any argument or suggestion that a wilfull violation by the President is unconstitutional. The gist of his crime is, that he intentionally disregarded a law, and, in the nature of the case, it can be no excuse or defense that such law, in his opinion, or in the opinion of others, was not in conformity with the Constitution.

In this connection, I desire to call your attention to suggestions made by the President, and by the President's Counsel-by the President in his message of December, 1857, and by the President's counsel in his opening argument-that if Congress were by legislation to abolish a department of the government, or to declare that the President should not be Commander-in-Chief of the army or the navy, that it would be the duty of the President to disre gard such legislation. These are extreme cases, and notwithin the range of possibility. Members of Congress are individually bound by an oath to support the Constitution of the United States, and it is not to be presumed, even for the purpose of argument, that they would wantonly disregard the obligations of their oath, and enact in the form of law rules or proceedings in plain violation of the Constitution. Such is not the course of legislation, and such is not the character of the act we are now to consider. The bill regulating the tenure of certain civil offices was passed by a constitutional majority in each of the two Houses, and it is to be presumed that each Senator and Representative who gave it his support did so in the belief that its provisions were in harmony with the provisions of the Constitution. We are now dealing with practical affairs, and conducting the go vernment within the Constitution; and in reference to measures passed by Congress under such circumstances, it is wholly indefensible, for the President to suggest the course that, in his opinion, he would be justified in pursuing if Congress were openly and wantonly to disregard the Constitution and inaugurate revolution in the government.

It is asserted by the counsel for the President, that he took advice as to the constitutionality of the Tenure of Office act, and being of opinion that it was unconstitutional, or so much of it at least as attempted to deprive him of the power of removing the members of the Cabinet, he felt it to be his duty to disregard its provisions; and the question is now put with feeling, and emphasis, whether the President is to be impeached, convicted and removed from office for a mere difference of opinion. True, the President is not to be removed for a mere difference of opinion. If he had contented himself with the opinion that the law was unconstitutional, or even with the expression of such an opinion privately or officially to Congress, no exception could have been taken to his conduct. But he has attempted to act in accordance with that opinion, and in that action he has disregarded the requirements of the statute. It is for this action that he is to be arraigned, and is to be convicted. But it is not necessary for us to rest upon the doctrine that it was the duty of the President to accept the law as constitutional and govern himself accordingly in all his official doings. We are prepared to show that the law is in truth in hårmony with the Constitution, and that its provisions apply to Mr. Stanton as Secretary for the Department of War. The Tenure of Office act makes no change in the powers of the President and the Senate, during the session of the Senate, to remove a civil officer upon a nomination by the President, and confirmation by the Senate, of a successor. This was an admitted constitutional power from the very organization of the government, while the right now claimed by the President to remove a civil officer during a session of the Senate, without the advice and consent of the Senate, was never asserted by any of his predecessors, and certainly never recognized by any law or by any practice. This rule applied to heads of departments as well as to other civil officers. Indeed, it may be said, once for all, that the tenure by which members of the Cabinet have held their places corre ponds in every particular to the tenure by which other civil officers have held theirs. It is undoubtedly true that, in practice, members of the Cabinet have been accustomed to tender their resignations upon a suggestion from the President that such a course would be acceptable to him. But this practice has never changed their legal relations to the President or to the.

country.

There was never a moment of time, since the adoption of the Constitution, when the law or the opinion of the Senate recognized the right of the President to remove a Cabinet officer during a session of the Senate, without the consent of the Senate given through the confirmation of a successor. Hence, in this particular, the Tenure of Office act merely enacted and gave form to a practice existing from the foundation of the government a practice in en tire harmony with the provisions of the Constitution upon the subject. The chief change produced by the Tenure of Office act had reference to removals during the recess of the Senate. Previous to the 2d of March, 1867, as has been already shown, it was the practice of the President during

the recess of the Senate to remove civil officers and to grant commissions to other persons, under the third clause of the second section of the second article of the Constitution. This power, as has been seen, was a doubtful one in the beginning. The practice grew up under the act of 1789, but the right of Congress by legislation to regulate the exercise of that power was not questioned in the great debate of that year, nor can it reasonably be drawn into controversy now.

The act of March 2, 1867, declares that the President shall not exercise the power of removal, absolutely, during the recess of the Senate, but that if any officer shall be shown, by evidence satisfactory to the President, to be guilty of misconduct in office, or of crime, or for any reason shall become incapable or legally disqualified to perform his duties, the President may suspend him from office and designate some suitable person to perform temporarily the duties of such office until the next meeting of the Senate and the action of the Senate thereon.

By this legislation the removal is qualified, and is made subject to the final action of the Senate, instead of being absolute, as was the fact under the practice theretofore prevailing. It is to be observed, however, that this featare of the act regulating the tenure of certain civil offices is not drawn into controversy by these proceedings; and, therefore, it is entirely unimportant to the President whether that provision of the act is constitutional or not. I can, however, entertain no doubt of its constitutionality. The record of the case, however, shows that Mr. Stanton was suspended from office during the recess, but was removed from oflice, as far as an order of the President could effect his removal, during a session of the Senate. It is also wholly immaterial to the present inquiry whether the suspension of Mr. Stanton on the 12th of August, 1867, was made under the Tenure of Office act, or in disregard to it, as the President asserts.

It being thus clear, that so much of the act as relates to appointments and removals from office during the session of the Senate is in harmony with the practice of the government from the first, and in harmony with the provisions of the Constitution on which that practice was based, and it being admitted that the order of the President for the removal of Mr. Stanton was issued during a session of the Senate, it is unnecessary to inquire whether the other parts of the act are constitutional or not, and also unnecessary to inquire what the provisions of the act are in reference to the heads of the several executive departments. I presume authorities are not needed to show that a law may be unconstitutional and void in some of its parts, and the remaining portions continue in full force.

The body of the first sestion of the act regulating the tenure of certain civil offices is in these words:-

"Every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate, 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 fn like manner appointed and duly qualified. except as herein otherwise provided."

Omitting for the moment to notice the exception. t ere can be no doubt that this provision would have applied to the Secretary of War, and to every other civil officer under the government; nor can there be any doubt that the removal of Mr. Stanton during a session of the Senate is a misdemeanor by the law, and punishable as such under the sixth section of the act, unless the body of the section quoted is so controlled by the proviso as to take the Secretary of War out of its grasp. The proviso is in these words:

That the Secretaries of State, of War, of the Navy, and of the Interior, the Postmaster General and the AttorneyGeneral shall hold their offices respectively for and during the term of the President by whom they may have been appointed, and one month thereafter, subject to removal by and with the advice and consent of the senate."

We maintain that Mr. Stanton, as Secretary of War, was, on the second day of March, 1857, within and included under the language of the proviso, and was to hold his office for and during the term of the President by whom he had been appointed, and one month thereafter, subject to removal, however, by and with the advice and consent of the Senate. We maintain that Mr. Stanton was then holding the office of Secretary of War, for and in the term of President Lincoln, by whom he had been ap pointed; that the term commenced on the fourth of March, 1865, and would end on the fourth of March, 1869. The Constitution defines the meaning of the word term." When speaking of the President, it says: "He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected as follows. Now, then, although the President first elected may die during his term, the office and the term of the office still remain. Having been established by the Constitution, it is not in any degree dependent upon the circumstance whether the person elected to the term shall survive to the end or not.' still a Presidential term. It is still in law the term of the President who was elected to the office, The Vice President was chosen at the same time and elected for the same term. But it is the term of a different office from that of President-the term of the office of Vice President, Mr. Johnson was elected to the office of Vice President for the term of four years. Mr. Lincoln was elected to the office of President for the term of four years. Mr. Lincoln died in the second month of his term, and Mr. Johnson succeeded to the office.

It is

It was not a new office, it was not a new term. He succeeded to Mr. Lincoln's office, and for the remainder of Mr. Lincoln's term of office. He is serving out Mr. Lin.

coln's term as President. The law says that the Secretaries shall hold their offices respectively for and during the term of the President by whom they may have been appointed. Mr. Lincoln's term commenced on the 4th of March, 1865. Mr. Stanton was appointed by Mr. Lincoln; he was in office in Mr. Lincoln's term, when the act regulating the tenure of certain civil offices was passed; and by the proviso of that act he was entitled to hold that office until one month after the 4th of March, 1869, unless he should be sooner removed therefrom, by and with the advice and consent of the Senate.

The act of March 1, 1792, concerning the succession, in case the office of President and Vice President both became vacant, recognizes the presidential term of four years as the constitutional term. Any one can understand that in case of vacancy in the office of President and Vice President, and in case of a new election by the people, that it would be desirable to make the election for the remainder of the term. But the act of 1792 recognizes the impossibility of this course in the section which provides that the term of four years for which a President and Vice President shall be elected (that is, in case of a new elec⚫tion, as stated,) shall in all cases commence on the fourth day of March next succeeding the day on which the votes of the electors shall have been given.

It is thus seen that by an election to fill a vacancy the government would be so far changed in its practical working that the subsequent elections of President.except by an amendment to the Constitution, could never again occur in the years divisible by four, as at present, and might not answer to the election of members of the House of Representatives, for the Presidential elections might occur in the years not divisible by two. The Congress of 1792 acted upon the constitutional doctrine that the Presidential term is four years and cannot be changed by law.

On the 21st of February, 1868, while the Senate of the United States was in session, Mr. Johnson, in violation of the law-which, as we have already seen, is in strict harmony in this particular with the Constitution and with the practice of every governmentissued an order for the removal of Mr. Stanton from his office as Secretary for the Department of War. If, however, it be claimed that the proviso does not apply to the Secretary of War, then he does not come within the only excep. tion made in the statute to the general provision in the body of the first section already quoted; and Mr. Stanton having been appointed to office originally by and with the advice and consent of the Senate, could only be removed by the nomination and appointment of a successor, by and with the advice and consent of the Senate. Hence, upon either theory it is plain that the President violated the Tenure of Office act in the order which be issued on the 21st day of February, A. D. 1868, for the removal of Mr. Stanton from the office of Secretary for the Department of War, the Senate of the United States being then in session. In support of the view I have presented. I refer to the official record of the amendments made to the first section of the tenure of office act. On the 18th of January, 1867, the bill passed the Senate, and the first section thereof was in these words:

"That every person [excepting the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the Attorney General] holding any civil office to which he has been appointed by and with the advice and consent of the Senate, 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."

On the second day of February, the House passed the bill with an amendment striking out the words incl ded in brackets. This action shows that it was the purpose of the House to include heads of departments in the body of the bill, and subject them to its provisions as civil officers. who were to hold their places by and with the advice and consent of the Senate, and subject, during the session of the Senate, to removal by and with the advice and consent of the Senate only; but subject to suspension under the second section during a recess of the Senate as other civil officers, by virtue of the words at the close of the section, "except as herein otherwise provided." At the time the bill was pending between the two Houses, there was no proviso to the first section, and the phrase "except as otherwise herein provided," related necessarily to the second and to the subsequent sections of the bill. On the 6th of February the Senate refused to agree to the House amendment, and by the action of the two Houses the bill was referred to a committee of conference. The conference committee agreed to strike out the words in brackets, agreeably to a vote of the House, but as a recognition of the opinion of the Senate, the proviso was inserted which modified in substance the effect of the words stricken out, under the lead of the House only in this, that the Cabinet officers referred to in the body of the section as it passed the House were to hold their offices as they would have held them if the House amendment had been agreed to, without condition, with this exception, that they were to retire from their offices in one month after the end of the term of the President by whom they might have been appointed to office. The object and effect of this qualification of the provision for which the House contended was to avoid fastening. by operation of law, upon an incomiug President the Cabinet of his predecessor, with no means of relieving himself from them unless the Senate of the United States was disposed to concur in their removal.

In short, they were to retire by operation of law, at the end of one month after the expiration of the term of the

President by whom they had been appointed, and in this particular their tenure of office was distinguished by the proviso, from the tenure by which other civil officers mentioned in the body of the section were to hold their offices, and their tenure of office is distinguished in no other particular.

The counsel who opened the cause for the President was pleased to read from the Globe the remarks made by Mr. Schenck, in the House of Representatives when the report of the Conference Committee was under discussion. But he read only a portion of the remarks of Mr. Schenck, and connected with them observations of his own, by which he may have led the Senate into the error that Mr. Schenck entertained the opinion as to the effect of the proviso which is now urged by the respondent; but so far from this being the case, the statement made by Mr. Schenck to the House is exactly in accordance with the doctrine now maintained by the managers on the part of the House of Representatives, After Mr. Schenck had made the remarks quoted by the counsel for the respondent, Mr. Le Blond, of Ohio, rose and said:

"I would like to inquire of the gentleman who has charge of this report whether it. becomes necessary that the Senate shall concur in all appointments of executive officers, and that hone of them can be removed after appointment without the concurrence of the Senate ?" Mr. Schenck says, in reply:

"That is the case; but their terms of office are limited (as they are not now limited by law), so that they expire with the term of service of the President who appoints them, and one month after, in case of death or other accident, until others can be substituted for them by the incoming President."

Mr. Le Blond, continuing, said:

"I understand, then this is to be the effect of the report of the Committee of Conference; in the event of the PresiIdent finding himself with a Cabinet officer who does not agree with him, and whom he desires to remove, he cannot do so, and have a Cabinet in keeping with his own views, unless the Senate shall concur."

To this Mr. Schenck replies:

The gentleman certainly does not need that information from me, as this subject has been fully debated in this House.

Mr. Le Blond said, finally:-"Then I hope the House will not agree to the report of the Committee of Conference,

This debate in the House shows that there was there and then no difference of opinion between Mr. Schenck, who represented the friends of the bill, and Mr. Le Blond, who represented the opponents of the bill, that its effect was to confirm the Secretaries who were then in office, in their places, until one month after the expiration of Mr. Lincoln's term of office, to wit, the 4th day of March, 1869, unless, upon the nomination of successors, they should be removed by and with the advice and consent of the Senate. Nor does the language used by the honorable Senator from Ohio, who reported the result of the conference to the Senate, justify the inference which has been drawn from it by the counsel for the respondent. The charge made by the honorable Senator from Wisconsin, which the honorable Senator from Ohio was refuting, seems to me to have been in substance, that the first section of the bill and the proviso to the first section of the bill had been framed with special reference to Mr. Johnson as President, and to the existing condition of affairs. In response to this, the honorable Senator from Ohio said:

"I say that the Senate have not legislated with a view to any persons or any President, and therefore he commences by asserting what is not true. We do not legislate in order to keep in the Secretary of War, the Secretary of the Navy, or the Secretary of State."

It will be observed that this language does not indicate the opinion of the honorable Senator as to the effect of the bill; but it is only a declaration that the object of the, legislation was not that which had been intimated or alleged by the honorable Senator from Wisconsin. This view of the remarks of the honorable Senator from Ohio is confirmed by what he afterwards said in reply to the suggestion that the me abers of the Cabinet would hold their places against the wishes of the President, when he declares that under such circumstances, he, as a Senator, would consent to their removal at any time, showing most clearly that he did not entertain the idea that, under the Tenure of Office act, it would be in the power of the President to remove a Cabinet officer without the advice and consent of the Senate. And we all agree that, in ordinary times and under ordinary circumstances, it would be just and proper for a Cabinet officer to tender his resignation at once, upon the suggestion of the President that it would be acceptable, but that it would be the height of personal and official indecorum if he were to hesitate for a moment as to his duty in that particular. But the justification of Mr. Stanton, and his claim to the gratitude and the encomiums of his countrymen, is, that when the nation was imperilled by the usurpations of a criminally-minded Chief Magistrate, he asserted his constitutional and legal rights to the office of Secretary for the Department of War, and thus, by his devotion to principle, and at great personal sacrifices, he has done more than ony other man since the close of the Rebellion to protect the interests and maintain the rights of the people of the country.

But the strength of the view we entertain of the meaning and scope of the Tenure of Office act is nowhere more satisfactorily demonstrated than in the inconsistencies of the argument which has been presented by the learned counsel for the respondent in support of the President's positions. He says, speaking of the first section of the act

regulating the tenure of certain civil offices:-"Here is a section, then, the body of which applies to all civil officers, as well to those then in office as to those who should thereafter be appointed. The body of this section contains a a declaration that every such officer is,' that is, if he is now in office, and shall be,' that is, if he shall hereafter be appointed to office, entitled to hold until a successor is appointed and qualified in his place. This is the body of the section." This language of the eminent counsel is not only an admission, but it is a declaration that the Secretary for the Department of War, being a civil officer, as is elsewhere admitted in the argument of the counsel for the respondent, is included in and covered and controlled by the language of the body of this section. It is a further admission that in the absence of the proviso, the power of the President over the Secre tary for the Department of War would correspond exactly to his power over any other civil officer, which would be merely the power to nominate a successor, whose confirmation by the Senate, and appointment. would work the removal of the person in office, When the counsel for the respondent, procceeding in his argument. enters upon an examination of the proviso, he maintains that the language of that proviso does not include the Secretary for the Department of War. If he is not included in the language of the proviso, then, upon the admission of the counsel, he is included in the body of the bill, so that for the purposes or this investigation and trial it is wholly immaterial whether the proviso applies to him or not. If the proviso does not apply to the Secretary for the Department of War, then he holds his office, as in the body of the section expressed, until removed therefrom by and with the advice and consent of the Senate. If he is covered by the language of the proviso, then a limitation is fixed to his office, to wit:-That it is to expire one month after the close of the term of the President by whom he has been appointed, subject, however, to previous removal by and with the advice and consent of the Senate.

I have already considered the question of intent on the part of the President and maintained that in the willful violation of the law he discloses a criminal intent which cannot be controlled or qualified by any testimony on the part of the respondent.

The counsel for the respondent, however, has dwelt so much at length on the question of intent, and such efforts have been made during the trial to introduce testimony upon this point, that I am justified in recurring to it for a brief consideration of the arguments and views bearing upon and relating to that question. If a law passed by Congress be equivocal or ambiguous in its terms, the Executive, being called upon to administer it, may apply his own best judgment to the difficulties before him, or he may seek counsel from his official advisers or other proper persons; and acting thereupon, without evil intent or purpose, he would be fully justified, and upon no principle of right could he be held to answer as for a misdemeanor in office, But that is not this case. The question considered by Mr. Johnson did not relate to the meaning of the Tenure of Office, act. He understood perfectly well the intention of Congress, and he admitted in his veto message that the intention was expressed with sufficient clearness to enable him to comprehend and state it. In his veto message of the 2d of March, 1867, after quoting the first section of the bill to regulate the tenure of certain civil offices, he says:

"In effect the bill provides that the President shall not remove from their places any civil officers whose terms of service are not limited by law without the advice and consent of the Senate of the United states. The bill, in this respect, conflicts, in my judgment, with the Constitution of the United States."

His statement of the meaning of the bill relates to all civil officers, to the members of his Cabinet as well as to others, and is a declaration that, under that bill if it became a law, none of these officers could be removed without the advice and consent of the Senate. He was, therefore, in no doubt as to the intention of Congress as expressed in the bill submitted to him for his consideration, and which afterwards became the law of the land. He said to the Senate, "If you pass this bill I cannot remove the members of my Cabinet." The Senate and House in effect said, "We do so intend," and passed the bill by a two-thirds majority.

There was then no misunderstanding as to the meaning or intention of the act. His offense, then, is not that upon an examination of the statute he misunderstood its meaning and acted upon a misinterpretation of its true import, but that understanding its meaning precisely as it is understood by the Congress that passed the law; precisely as it is understood by the House of Representatives to-day; precisely as it is presented in the articles of impeachment, and by the managers before this Senate, he, upon his own opinion that the same was unconstitutional, deliberately, wilfully and intentionally disregarded it. The learned counsel say that he had a right to violate this law for the purpose of obtaining a judicial determination. This we deny. The constitutional duty of the President is to obey and execute the laws. He has no authority under the Constitution, or by any law, to enter into any schemes or plans for the purpose of testing the yalidity of the laws of the country, either judicially or otherwise. Every law of Congress may be decided in the courts, but it is not made the duty of any person to so test the law. It is not specially the right of any person to so test the laws, and the effort is especially offensive in the Chief Magistrate of the country to attempt by any process to annul, set aside, or defeat the laws which by his oath he is bound to execute.

Nor is it any answer to say, as is suggested by the coun sel for the respondent, that there never could be a judicial decision that a law is unconstitutional, inasmuch as it is only by disregarding a law that any question can be raised judicially under it." If this be true, it is no misfor tune. But the opposite theory, that it is the duty or the right of the President to disregard a law for the purpose of ascertaining judicially whether he has a right to violate a law is abhorrent to every just principle of government and dangerous to the highest degree to the existence of free institutions.

But his alleged purpose to test the law in the courts is shown to be a pretext merely, Upon this theory of his rights, he could have instituted proceedings by informa tion in the nature of a quo warranto against Mr. Stanton on the 13th of January, 1868. More than three months have passed, and he has done nothing whatever. When by Mr. Stanton's action Lorenzo Thomas was under arrest, and proceedings were instituted which might have tested the legality of the tenure of office act, Mr. Cox, the Presi dent's special counsel, moved to have the proceedings dis missed, although Thomas was at large upon his own re cognizance. Can anybody believe that it was Mr. Johnson's purpose to test the act in the courts? But the respondent's insincerity, his duplicity, is shown by the statement which he made to Gen. Sherman in January last. Sherman says: "I asked him why lawyers could not make a case, and not bring me, or any officer, into the controversy? His answer was that it was found impossible, or a case could not be made up; but,' said he, if we can bring the case to the courts, it would not stand half an hour.'" He now says his object was to test the case in the courts. To Sherman he declares that a case could not be made up, but if one could be made up the law would not stand half an hour, When a case was made up which might have tested the law, he makes haste to get it dismissed. Did ever auds city and duplicity more clearly appear in the excuses of a criminal?

This brief argument upon the question of intent seems to me conclusive, but I shall incidentally refer to the evidence on this point in the further progress of my remarks.

The House of Representatives does not demand the conviction of Andrew Johnson unless he is guilty in the manner charged in the articles of impeachment; nor does the House expect the managers to seek a conviction except upon the law and facts considered with judicial impar tiality. But I am obliged to declare that I have no capa city to understand those processes of the human mind by which this tribunal, or any member of this tribunal, can doubt, can entertain a reasonable doubt, that Andrew Johnson is guilty of high misdemeanor in ofüce, as charged in each of the first three articles exhibited against him by the House of Representatives.

We have charged and proved that Andrew Johnson, President of the United States, issued an order, in writing, for the removal of Edwin M. Stanton from the office of Secretary for the Department of War while the Senate of the United States was in session, and without the advice and consent of the Senate, in violation of the Constitution of the United States and of his oath of office, and of the provisions of an act passed March 2, 1867, entitled, "an act regulating the tenure of certain civil offices," and that he did this with intent so to do; and thereupon, we demand his conviction under the first of the articles of impeachment exhibited against him by the House of Representa tives.

We have charged and proved that Andrew Johnson President of the United States, violated the Constitution and his oath of office, in issuing an order for the removal of Edwin M. Stanton from the office of Secretary for the Department of War, during the session of the Senate, and without the advice and consent of the Senate, and this without reference to the Tenure of Office act; and there upon we demand his conviction under the first articles of impeachment exhibited against him by the House of Representatives.

We have charged and proved that Andrew Johnson, President of the United States, did issue and deliver to one Lorenzo Thomas, a letter of authority in writing, author izing and empowering said Thomas to act as Secretary of War ad interim, there being no vacancy in said office, and this while the Senate of the United States was in session, aud without the advice and consent of the Senate, in violation of the Constitution of the United States, of his Oath of office, and of the provisions of an act entitled "An act regulating the tenure of certain civil offices," and all this with the intent so to do; and, thereupon, we demand his conviction under the second of the articles of impeachment exhibited against him by the House of Representa tives.

We have charged and proved that Andrew Johnson, President of the United States, in the appointment of Lorenzo Thomas to the office of Secretary of War ad interim acted without authority of law, and in violation of the Constitu tion and of his oath of office; and this without reference to the Tenure of Office act; and thereupon we demand his conviction under the third of the articles of impeachment exhibited against him by the House of Representatives. At four o'clock Mr. Boutwell, at the suggestion of Mr. CONKLING, yielded to a motion to adjourn the court stating that he would occupy about an hour and a half to-mor row, and accordingly the court adjourned.

PROCEEDINGS OF THURSDAY, APRIL 23.

The Senate reassembled at 11 o'clock, and the court was opened in the usual form.

Mr. GRIMES submitted the following:Ordered, That hereafter the hour for the meeting of the Senate, sitting on the trial of the impeachment of Andrew Johnson, President of the United States, shall be 12 o'clock meridian each day, except Sunday.

Mr. SUMNER and several others objected, and the order was laid over.

At 11-20 o'clock Mr. BOUTWELL resumed his adaddress.

The learned counsel for the respondent seems to have mvolved himself in some difficulty concerning the articles which he terms the conspiracy articles, being articles four, five, six and seven. The allegations contained in articles four and six are laid under the act of July 31, 1861, known as the conspiracy act. The remarks of the learned counsel seem to imply that articles five and seven were not based upon any law whatever. In this he greatly errs. An examination of articles four and five shows that the substantive allegation is the same in each article, the dif. ferences being that article four charges the conspiracy with intent, by intimidation and threats, unlawfully to hinder and prevent Edwin M, Stanton from holding the office of Secretary for the Department of War. The persons charged are the respondent and Lorenzo Thomas. And it is alleged that this conspiracy, for the purpose set forth. was in violation of the Constitution of the United States, and of the provisions of an act entitled "An act to punish certain conspiracies," approved July 31, 1861.

The fifth article charges that the respondent did unlawfully conspire with one Lorenzo Thomas, and with other persons, to prevent the execution of the act entitled "An act regulating the tenure of certain civil offices," and that in pursuance of that conspiracy, they did unlawfully attempt to prevent Edwin M. Stanton from holding the office of Secretary for the Department of War. It is not alleged in the article that this conspiracy is against any particular law, but it is alleged that the parties charged did unlawfully conspire. It is very well known that conspiracies are of two kinds. Two or more persons may conspire to do a lawful act by unlawful means; or two or more persons may conspire to do an unlawful act by lawful means. By the common law of England such conspiracies have always been indictable and punishable as misdemeanors.

The State of Maryland was one of the original thirteen States of the Union, and the common law of England has always prevailed in that State, except so far as it has been modified by statute. The city of Washington was originally within the State of Maryland, but it was ceded to the United States under the provisions of the Constitution. By a statute of the United States, passed February 27, 1801 (Statutes at Large, vol. 2, p. 103), it is provided:

That the laws of the State of Maryland, as they now exist, shall be and continue in force in that part of the said District which was ceded by that State to the United States, and by them accepted as afroesaid."

By force of this statute, although probably the law would have been the same without legislation, the English common law of crimes prevails in the city of Washington. By another statute, entitled "An act for the punishment of crimes in the District of Columbia," "Statutes at Large, vol. 4. page 450), approved March 2, 1831, special punishments are affixed to various crimes enumerated, when committed in the District of Columbia. But conspiracy is not one of the crimes mentioned. The fifteenth section of that act provides:

"That every other felony, misdemeanor, or offense, not provided for by this act, may, and shall be punished as heretofore, except that in all cases where whipping is part or the whole of the punishment, except in the cases of slaves, the court shall substitute there for imprisonment in the county jail, for a period not exceeding six months." And the sixteenth section declares:

"That all definitions and descriptions of crimes, all fines, forfeitures, and incapacities, the restitution of property, or the payment of the value thereof, and every other matter not provided for in this act, be and the same shall remain as heretofore."

There can then be no doubt that, under the English common law of crimes, sanctioned and continued by the statutes of the United States in the District of Columbia, the fifth and seventh articles set forth offenses which are punishable as misdemeanors by the laws of the District.

Article sixth is laid under the statute of 1861, and charges that the respondent did unlawfully conspire with Lorenzo Thomas, by force to seize, take and possess the property of the United States in the Department of War, and this with intent to violate and disregard the act entitled "An act regulating the tenure of certain civil offices." The words used in the Conspiracy act of 1861 leave room for argument upon the point raised by the learned counsel for the respondent. I admit that the District of Columbia, is not included by specific designation, but the reasons for the law and the natural interpretation of the language justify the view that the act applies to the District. I shall refer to a single authority upon that point.

The internal duties act of August 2, 1813, (Stat., vol. 3 p. 82) subjects, in express terms, the "several Territories of the United States and the District of Columbia," to the payment of taxes imposed; upon which the question arose whether Congress has power to impose a direct tax on the District of Columbia, in view of the fact that by the Constitution "representation and direct taxes shall be appor tioned among the several States which may be included within the Union, according to their respective numbers.' In the case of Loughborough vs. Blake, the Supreme Court of the United States unanimously decided, in a brief but well written opinion by Chief Justice Marshall, that although the language of the Constitution appa rently excepts the District of Columbia from the imposi tion of direct taxes, yet the reason of the thing requires us to consider the District as being comprehended, in this respect within the intention of the Constitution. (Lough vs. Blake, 5 Wheaton, p. 317.

The reasoning of the Supreme Court and its conclusion in this case were satisfactory to the bar and the country, and no person has deemed it worth while to raise the question anew under the direct tax act of August 5, 1861 (Sts. xii., 296), which also comprehends the Territories and the District of Columbia.

But the logical rules of construction applicable to an act of Congress are the same as those applicable to the Constitution. An act of Congress and the Constitution are. both laws, nothing more, nothing less, except that the latter is of superior authority. And, if in the construction of the Constitution, it may be satisfactorily maintained that the District of Columbia is to be deemed, because of the reason of things, to be comprehended by a provision of the Constitution, which in words, and in their superficial construction, excludes it, must not the same rule of construc tion produce the same result in the determination of the legal intent and import of an act of Congress, when an ob scurity exists in the latter for the same cause?

The seventh article is laid upon the common law, and charges substantially the same offenses as those charged in the sixth article. The result, then, is that the fifth and seventh articles, which are based upon the commou law, set forth substantially the same offenses which are set forth in the fourth and sixth articles, which are laid upon the statute of July 31, 1861; and as there can be no doubt of the validity of the fifth and seventh articles, it is practically immaterial whether the suggestion made by the counsel for the respondent, that the conspiracy act of 1861 does not include the District of Columbia, as a valid ob jection or not. Not doubting that the Senate will find that the charge of conspiracy is sufficiently laid under existing laws, I proceed to an examination of the evidence by which the charge is supported.

It should always be borne in mind that the evidence in proof of conspiracy will generally, from the nature of the crime, be circumstantial; and this case in this particular is no exception to the usual experience in criminal trials. We find, in the first place, if the allegations in the first, second and third articles have been established, that the President was engaged in an unlawful act, If we find Lorenzo Thomas or any other person co-operating with him upon an agreement or an understanding, or an assent on the part of such other person to the prosecution of such unlawful undertaking, an actual conspiracy is proved. The existence of the conspiracy being established, it is then. competent to introduce the statements of the parties to the conspiracy, made and done while the conspiracy was pending, and in furtherance of the design; and it is upon this ground that testimony has been offered and received of the declarations made by Lorenzo Thomas, one of the parties, to the conspiracy, subsequent to the 18th day of January, 1868, or perhaps the 13th of January, 1863, the day on which he was restored to the office of Adjutant. General of the Army of the United States by the action of the President, and which appears to have been an initial proceeding on his part for the purpose of accomplishing his unlawful design the removal of Mr. Stanton from the office of the Secretary for the Department of War. The evidence of agreement between the respondent and Thomas is found in the order of the 21st of Febuary, 1868, appointing. Thomas, and in the conversation which took place at the time the order was placed in Thomas' hands. The counsel for the respondent at this point was involved in a very serious difficuity. If he had admitted (which he took care not to do) that the order was i a military one, he saw that his client would be involved in the crime of having issued a military order which did not pass through the General of the Army, and thus would be liable to impeachment and removal from office for the crime of violating the law of the 2d of March, 1867, entitled "an act making appropriations for the support of the army for the fiscal year ending June 30, 1868, and for other purposes." If he had declared that it was not a military order, then the transaction confessedly was in the nature of an agreement between the President. and Lorenzo Thomas; and if the act contemplated by that agreement. was an unlawful act, or if the act were lawful, and the means employed for accomplishing it were unlawful, then clearly the charge of conspiracy would be maintained. Hence he was careful to say, in denying that the order was a military order, that it nevertheless invoked that spirit of military obedience which constitutes the strength of the service."

And, further, he says of Thomas, that as a faithful Adjutant-General of the Army of the United States, interested personally, professionally, and patriotically to have the office of Secretary of the Dpartment of War performed in a temporary vacancy, was it not his duty to accept the appointment unless he knew that it was unlaw. ful to accept it? The admissions and statements of the