with the theory and pretensions of the President. The first was the familiar one of Marbury vs, Madison (1st Cranch, 256), made doubly memorable from the fact that it arose out of one of the so-called midnight appointments made by the elder Adams-the same, by the way, whose casting vote as an executive officer turned the scale in favor of the power to which he was destined to succeed-in the First Congress of 1789, on the eve of his retirement, under a law which had been approved only the day before, authorizing the appointment of five justices of the peace for the District of Columbia, to serve respectively for the term of five years. The commission in question had been duly signed and registered, but was withheld by his successor, Jefferson, on the ground that the act was incomplete without a delivery. It was not claimed by him that the aqpointment was revocable if once consummated. If it had been revocable, resistance would have been unnecessary, and the assertion of the right of the office an idle one.

Chief Justice Marshall, in delivering the opinion of the court, holds this language:-"When an officer is removable at the will of the Executive, the circumstances which compelled his appointment is of no consequence, because the act is at any time revokable; but when the officer is not removable at the will of the Executive, the appointment is not revokable and cannot be annulled. Having once made the appointment, his poer over the office is terminated in all cases when by the law the office is not removable by him.

Then, as the law creating the office gave the right to hold for five years, independent of the Executive, the appointment was not revocable, but rested in the officer. The point ruled here is precisely the same as that involved in the Tenure of Office act, to-wit:-That Congress may define the tenure of any office it creates, and that once fixed by law, it is no longer determinable at the will of anybody, the act being a mere substitution of the will of the ration for that of the Executive, by giving to that will the form of law which is indeed the only form that is consistently admissible in a government of law.

The present Executive insists, as Jefferson did not, that he has power finder the Constitution to remove or suspend, at any and all times, any executive officer whatever, for causes to be judged of by himself alone, and that, in the opinion of his advisers, this power cannot be lawfully restrained, which is, in effect, to claim the power to appoint without the advice and consent of the Senate, as, he has just now done, as well as to remove.

The next case in order is that ex parte Henan, reported in 13 Peters, which involved a question as to the right of the Judge of the District Court of Louisiana to remove, at his discretion, a clerk appointed by him indefinitely. Under the law the court said (then Thompson, Justice, delivering the opinion) that all offices, the tenure of which is not fixed by the Constitution or limited by law, must be held either during good behavior or at the will and discretion of some department of the government, and subject to removal at pleasure. And again, that, in the absence of all constitutional provisions or statutory regulations, it would seem to be a sound and necessary rule to consider the power of removal as an incident to the power to appoint. They add, however:-But it was very early adopted as the practical construction that the power was vested in the President alone, and that such would appear to have been the legislative construction, because, in establishing the three principal Departments of State, War, and TreaBury, they recognized the power of removal in the President, although by the act of 1798 establishing the Navy Department, the reference was not by name to him.

The result was that upon the principles thus enunciated, involving the exception as to cases where the tenure was limited by law, as laid down in Marbury vs. Madison, they declared the power of removal to have been well exercised by the judge who made the appointment under the law, for the reason only that it was an incident thereto. It is well worthy of remark, however, in this connection. that, although what is thus gratuitously said as to the rule there recognized, it does not conflict in any way with the doctrine of Marbury vs. Madison. It is entirely at variance, as seems to be confessed with the decision itself, which, on the doctrine of Mr. Madison, in the debate of 1789, that the power of removal was a strictly executive one, and passed by the general grant of the Constitution, unless expressly denied, or elsewhere lodged, must have been inevitably the other way, because in that case it must have resulted not to the judge, but to the President, whether a mere permissive sub silentio exercise of a power like this, or even a temporary surrender on grounds of personal confidence or party favor, where it perhaps violated constitutional interest, and was in point of fact authorized as to all. But that superior officers can raise a proscription against a constitutional right, or how many laws it will require to abrogate the fundamental law, I will not stop now to inquire. It is sufficient for my purpose that the case decides that the power of removal is but an incident to the power of appointment, and that, of course, it can only be exercised by the same agencies as the Tenure of Office act exactly provides.

The next and last case is that of the United States vs. Guthrie, reported in 17 Howard, 284, which was an application for a mandamus to the Secretary of the Treasury to compel him to pay the salary of a territorial judge in Minnesota who had been removed by the President before the éxpiration of his term, which was fixed by law at four years. The case was dismissed upon the doctrine that the proceeding was not a proper one to try the title to an office, and thereupon the question of the power to remove was

not disposed of or discussed, except by Justice McLean who dissented on the main point and felt called upon, of course, to pass upon the other.

Here Mr. Williams read extracts from Judge McLean's opinion, and continued:-It will be said, perhaps, that all this is qualified by the remark that this power of remo val has been, perhaps, too long established and exercised to be now questioned." It is enough, however, to refer to the observation which follows that:-"The voluntary ac tion of the Senate and the President would be necessary to change the practice." To show what was meant by him, such events as our eyes have witnessed, and such a conjuncture of affairs following fast upon their heels as would leave the Executive with all his formidable patronage and all the prestige of his place, without even the meagre support of a third in either House, were scarcely within the range of human probability when he remarks therefore that it was, perhaps, too late to question it.

He means, of course, to question it successfully, as the contest shows; if he had meant otherwise he would not have referred voluntarily to a change of practice as ope rating a corresponding change of the Constitution. He was too good a lawyer and too sage a statesman to affirm that the fundamental law of a great State could be wrested from its true construction either by the errors of the Legislature or the toleration of a mischievous practice and monster vice for less than eighty years. It is apparent, then, from all the cases, that the judicial opinion, so far from sustaining the views of the President, settles at least two points which are fatal to his pretensions:First, that Congress may so limit the tenure of an office as to render the incumbent irremvoable, except by the process of impeachment; and second, that the power to remove, so far as it exists, is but an incident to power to appoint; nor is it any answer to say, as has been claimed in debate on this floor, that there were cases of inferior offices where, under the Constitution it was within the power of Congress to regulate them at its discretion. There is nothing in the provision as to inferior officers to distinguish them from others bevond the mere article of appointment. This is a question of tenure, and that is equally undefined as to both, except in the few cases specially enumerated therein. It was equally within the power of Congress to regulate in one case as in the other. The right to regulate is a necessary result of the right to create. When it establishes an office as it has established the department bureaus. by law, it has cf necessity the right to prescribe its duties, and say how long it shall be held and when it sh 1l determine. When it does say so, it can hardly be maintained, with any show of reason, that a power which is only implied from the fact that the tenure of office has been left indefinite in the Constitution, which has vested the establishment of offices in Congress, shall be held to operate to defeat its will and shorten the life of its own creature in cases were its legislation is express And so, too, as to the doctrine that the power of removal is but an incident to the power to appoint. That is settled upon grounds of reason as a general principle, which has no more application to inferior officers than to superior ones. The idea is that the power of removal, whenever it exists, is, in the very nature of things, but part and parcel of the power to appoint, and that, as a consequence, the power that makes, and none other must unmake; and on this idea was ruled, in the particular case, that the power to remove was in the judge, because the authority to appoint was there. It equally rules, how ever, that where the appointinent is in the head of a de partiment the power of removal belongs to him; that where it is lodged by Congress in the President alone, it is him only; and where it is in the President and Senate conjointly, then it is in both which is precisely the doctrine maintained by the majority in Congress of 1:89. It ought to be a sufficient answer, however, that no such distinction was taken by Justice Thompson in the Heenan case, although he referred to the departure from this rule in the practical construction which had assigned the power to the President at once.

The judicial opinions having thus signally failed to sup port the dangerous heresies of the President, the next re sort is to that of the statements of lawyers and publicists who have from time to time illustrated our history; and here, too, it will be found that the great criminal who is at your bar, has not better support than he has found in higher quarters, I am not here to question the doctrine which has been so strongly urged upon the authority of Lord Coke. That cotemporaneous exposition is entitled to great weight in law. Taking it to be sound, however, it will hardly be suppose, pretended, I that there is anything of this description which will compare in value with the authoritative, I might also say, oracular utterance of the Federalist, which was the main agent, under Providence, in securing for the constitution the support of the people of the several States, and has since occupied the rank of a classic in the political literature of America. And yet, in the seventy. seventh number of that series, which is ascribed to the pen of Alexander Hamilton himself, perhaps the first among his peers in the convention which framed that instrument, it is assumed as an unquestionable proposition, and that, too, in the way of answer to the objection of in stability arising from frequent changes of administration, that, inasmuch as the Senate was to participate in the business of appointment, its consent should therefore be necessary to displace as well as to appoint.

Nor was it considered even necessary to reason out a conclusion that is so obvious and inevitable. It does not seem to have been supposed by anybody that a power 80 eminently social could ever be raised in the execution of a limited government out of the mere fact of the silence of

the Constitution on that subject, and the failure to provode any other mode of removal than by the process of Impeachment. If the conclusion, however, was not a sound one, then it was no better than a false pretense which these at least concur at present were morally estopped estopped from controverting - and yet it is to one of the distinguished authors of these papers in his quality of a legislator that the nation is mainly indebted for the vote which inaugurated and fashioned so long upon it a mischievous and anti-republican principle.

It does not seem, however, to have affected any change In the opinion of the distinguished author, and we find him insisting in a letter writteu ten years afterwards, to James McHenry, then secretary of War, that then the power to fill vacancies, happening during recess of the Senate, is to be confined to such offices as having been once filled, have become vacant by accidental circumstances. From the time of the settlement of the policy of the government on this subject by its first Congress down to the accession of the younger Adams, in 1826, a period of nearly forty years, the question does not seem to have been much agitated, for the very satisfactory reason, that the patronage was so circumscribed, and the cases of abuse so rare, as to attract no attention on the part of public men,

In the last named year, however, a committee was raised by the Senate, headed by Mr. Benton, and composed of some of the most eminent statesmen of that day, to consider the subject of restraining the power by legislation. That committee agreed in the opinion that the practice of dismissing from office was a dangerous violation of the Constitution, which had, in their view, been "changed in this regard," very constructive legislation, which was only another name for legislative construction, and reported sundry bills for its correction, not unlike, in some respects, to the present law. These bills failed, of course, but with the public recognition of the new and alarming doctrine which followed the accession of the next Administration, that the public offices, like the plunder of a camp, were the legitimate spoils of the victorious party. The subject was revived in 1835 by the appointment of another committee, embracing the great names of Calhoun, Webster and Seaton, for the same subject. The result of their labor was the introduction of a bill requiring the President, in all cases of removal, to state the reason thereof, which passed the Senate by a vote of 31 to 16, or nearly two-thirds of that body. In the course of the debate on that bill Mr. Webster, whose unsurpassed, and, as I think, unequaled ability as a constitutional lawyer, will be contested by nobody held this eraphatic language:

"After considering the question again and again, within the last six years, I am willing to say that, in my delibe rate judgment the original decision was wrong. I cannot but think that those who denied the power in 1789 had the best of the argument. It appears to me, after thorough, and repeated, and conscientians examination, that an erroneous interpretation was given to the Constitution, in this respect, by the decision of the first Congress. And again, I have the clearest conviction that they, the Convention, looked to no other mode of displacing an officer than by impeachment, or the regular appointment of another person. And further, I believe it to be within the just power of Congress to revise the decision of 1789, and I mean to hold myself at liberty to act hereafter upon that question, as the safety of the government and of the Constitution may require.

Mr. Calhoun was equally emphatic in his condemnation of the power, and speaks of previous cases of removal as rather exceptionable than as constituting a practice. A like opinion was obviously entertained by Kent and Story, the two most distinguished of the commentators on the Constitution, and certainly among the highest authorities in the country. The former, after referring to the construction of 1789 as but "a loose, incidental and declaratory opinion of Congress, was constrained to speak of it as a striking fact in the constitutional history of our government, that a power so transcendant as that which places at the disposal of the President alone the tenure of every executive officer appointed, and that the Senate should depend on inference merely, and should have been gratuitously declared by the 1st Congress in opposition to the high authority of the Federalist, and supposed or acquiesced in by some of those distinguished men who questioned or denied the power of Congress to incorporate a national bank. (Kent Com., Sec. 14, pp. 308, 309.) The latter speaks of it with equal emphasis, as "constituting the most extraordinary case in the history of the government of a power conferred by implication in the Executive, by the assent of a bare majority of Congress, which has not been questioned on many other occasions." (2 Com., Sec. 15, 43.) The same opinion, too, is already shown upon the testimony of Judge McLean, as cited above, to have been shared by the old Supreme Court, with Marshall at its head.

It seems, indeed, as though there had been an unbroken current of sentiment from sources such as these through all our history against the exercise of this power. If there be any apparently exceptional cases of any, with but the equivocal one of Mr. Madison, they will be found to rest only, as I think, upon the legislation of 1789, and the long practice that is supposed to have followed it. I make no account, however, of the opinions of Attorneys-General, although I might have quoted that of Mr. Wirt, in 1818, to the effect that it was only where a Congress had not undertaken to fix the tenure of office that the commission could run during the pleasure of the President. They belong to the same class as that of Cabinet officers.

It may not be amiss, however, to add just here, that, al

though this question was elaborately argued by myself upon the introduction of the bill to regulate removals from office in the House of Representatives, which was sub stantially the same as the present law which was pending at that time, no voice but one was lifted up, in the course of a protracted debate, against the constitutionality of the measure itself. What, then, is there in the legislation of 1789, which is claimed to be not only a cotemporary but an authoritative exposition of the Constitution, and has no value whatever, except as an expression of an opinion as to the policy of making the heads of the departments de pendent on the Presiden, unless the acts of that small and inexperienced Congress are to be taken as of binding force upon their successors, and upon the courts as a sort of oracular outgiving upon the meaning of the Constitution.

Whatever may have been the material provisions of the several acts passed at that session for the establishment of these departments, it is not to be supposed that it was intended to accomplish a result so clearly not within the province of the law-maker as the binding settlement of the sense of that instrument on so grave a question. The effect of these acts has, I think, been greatly misunderstood by those who rely on them for such a purpose. All that they amount to is the concession to the President, in such a form as was agreeable to his friends of a power of removal, which the majority was disposed to accord to him in cases where the tenure of the officer was left indefinite, and the office was, therefore, determinable at will, but which these friends declined to accept as a grant, because they claimed it as a right.

The result was but a compromise, which evaded the is sue by substituting an implied grant for an express one and left the question in dispute just where it found it The record shows, however, that even in this shape the bill finally passed the House by a vote of only 29 to 22. In the Senate, however, where the debate does not appear, it was carried only by the casting vote of the Vice President not properly himself a legislative but an executive officer, who had a very direct interest in the decision.

The case shows moreover, as already suggested, that there was no question involved as to the duration of the office. Whether it could be so limited as has been done in the Tenure of Office law, was not a point in controversy, and is not, of course, decided. That it might be so, is not disputed as to the inferior officer. The thing itself was done, and the right to do it acquiesced in and affirmed, as shown already in the case of Marbury against Madison, as early as 1801.

It cannot be shown, however.that there is any difference between the case of inferior and superior officers in this respect? There is no word in the Constitution to require that the latter shall hold only at pleasure. Both are cre ated by law, and Mr. Madison himself admits, in the debate of 1789, that the legislative power creates the office, defines the power, limits its duration, and annexes the compensation. All that the Constitution contains is the exception from the general power of appointment in the authority to Congress to vest that power, in inferior cases in the President alone, in the courts of law or in the heads of departments.

But there is nothing as to the power of removal. Nothing but as to the privilege of dispensing with the Senate in the matter of appointments, and no limitation whatever upon the power over the office itself, in the one case more than in the other. And now, let me ask, what did the decision amount to, supposing it had even ruled the question at issue, but the act of a mere legislature, with no greater power than ourselves? Is there anything in the proceedings of the Congress of 1789 to indicate that it ever assumed to itsel. the prerogative of setting itself up as an interpreter of the fundamental law.

The men that composed it understood their functions better than to suppose that it had any jurisdiction over questions of this sort. If it had, so have we; and judg ments may be reversed on a rehearing, as Constitutions cannot be; but it it did exist, whence was it derived How was Congress to satisfy the people by altering the law to which it owed its own existence and all its power? It could not bind its successor by making even its own enactment unrepealable. If it had a right to give an opinion upon the meaning of the Constitution, why may not we do the same thing? The President obviously as sumed that they were both wiser and better than our selves.

If the respect which he professes for their opinions had animated him in regard to the Congresses which have sat under his administration, the nation would have been spared much tribulation, and we relieved of the painful necessity of arranging the Chief Magistrate of the Republi at your bar for his crimes against order and liberty, and his open defiance of law. However it may be with others I am not one of those who think that all wisdom and vi tue have perished with our fathers, or that they wer better able to comprehend the import of our instrument, with whose practical working they were unfamiliar, than we who are sitting under the light of an experience of eighty years. and suffering from the mistakes which they made in regard to the future.

They made none greater than the illusion of supposing that it was impossible for our institutions to throw up to the surface a man like Andrew Johnson, and yet it was this mistake, and, perhaps, no other, that settled the first precedent which was so likely to be followed, in regard to the mischievous power of removal from office.

But if twenty-nine votes in the House at that day, making a meagre majority of only seven, and nine only in a Senate that was equally divided in the first of constitu tional life, and with such a President as Washington, to fling a colored light over the future of the republic, had

even intended to give, and did give a construction to our great charter of freedom, what is to be said of 133 votes to 37, constituting more than three-fourths of the House, and of 35 to 11, or nearly a like proportion of the other, in the maturity of our strength, with a population of nearly forty millions, and under the light of an experience that has proved that even the short period of eighty years was capable of producing what our progenitors supposed to be impossible, even in the long track of time.

But there is one other consideration that presented itself just here, and it is this:-It does not strike me by any means as clear that there was anything in the act of 1789, aside from any suppressed attempt to give it the force of an authoritative opposition to the Constitution, that was necessarily inconsistent with the view of that instrument which I have been endeavoring to maintain. Taking the authority lodged by it with the President as a mere general grant of power, there was nothing certainly in its terms to prevent it, so far, at least, as regarded the inferior officers. It resulted from the express authority of Congress to vest the power of appointment in the Presi dent alone, that they might have even left the power of removal in the same hands, also as an incident, and so too as to the superior ones.

The power to remove in any case was but an implied one. If it was necessary, as claimed, to enable the Execu tive to perform his proper functions under the Constitution, instead of raising the power in himself by the illogical conference that it must belong to him qua executive, it presented one of the very cases for which it is provided expressly that Congress shall "make all laws that shall be necessary and prover for carrying into execution all powers vested by the Constitution in the Government of the United States, or in any department or officer thereof." To infer, in the face of such a provision as this, that any or all powers necessary to either department of the government belong to them of course, because they are necessary, is a reflection on the understandings of the framers of the Constitution, and is, in effect, to nullify the provision itself by enabling the other departments of the government to dispense entirely with the action of the lawmaker.

But admitting the act of 1789 to impart in its extent all that it is claimed to have decided, it is further insisted that this untoward precedent has been ripened into unalterable law, by a long and uninterrupted practice in conformity with it. If it were even true as stated, there would be nothing marvelous in the fact that it has been followed by other legislation of a kindred character, It is not to be doubted that a general opinion did prevail for many years, that all the officers of the government not otherwise provided for in the Constitution, ought to be held at will, for the obvious reason among others, that it rendered the procees of removal easy, by making an impeachment unneCesary. The only question in dispute was, in whose hands this power could be most appropriately lodged.

It so happened, however, that the first of our Presidents brought with him into the office an elevation of character that placed hini above all suspicion, and assured to liim a confidence so unbounded that it would have been considered entirely safe to vest him with unlimited command, and it was but natural, as it was certainly highly convenient, that the exercise of that will which was to deter'mine the life of the officer, should be lodged with him. It is so lodged; but is there anything remarkable in the fact that the precedent, having been set, should have been followed up in the practice of the government? It would have been still more remarkable if it had been otherwise. It was a question of patronage and power, of rewarding friends and punishing enemies.

A successful candidate for the Presidency was always sure to bring in with him a majority in the popular branch at least, along with a host of hungry followers, flushed with their victory and hungering after spoils. Was it expected that they should abridge his power to reward his friends, ar air their own virtue by self-denying ordinances? That would have been too much for men and politicians too. No! Though the wisest statesmen of the country had realized and deplored for forty years at least the great vice which had been gnawing into the very entrails of the State. and threatened to corrupt it in all its members, there was no remedy left but the intervention of that Providence which has purified the heart of the nation through the blood of its children, and cast down the man, who but yesterday might have stood against the world so low that with all his royal patronage there are none left-no, I think not one-so poor as to do him reverence.

It is true, however, that the precedent of the Congress of 1789 has been followed invariably and without interruption since that time. The history of our Legislature shows not only repeated instances where the Tenure of Office act has been so precisely defined, as to take the case entirely out of the control of the Executive, but some in which even the power of removal itself has been substantially exercised by Congress, as one would suppose it might rea sonably be, where it creates and may destroy, makes and may make, even the subject of controversy itself.

The act of 1801, already referred to in connection with the case of Marbury vs. Madison, assigning a tenure of five years absolutely to the officer, involves a manifest departure from it. The several acts of August 14, 1848; March 3. 1819; September, 1850, and May 3, 1853, providing for the appointment of judges in the Territories of Oregon, Minnesota, New Mexico, Kansas and Nebraska, and fixing the terni of office at four years absolutely, are all within the same category. The act of 25th February, 1863, followed by that of June 3, 1864, establishing the office of Controller of the Currency, defining his term and making him irremovable, except by and with the advice and consent of the

Senate, and upon reasons to be shown, is another of the same description

The act of March 3, 1865, which authorizes any military or naval officer who has been dismissed by the authority of the President, to demand a trial by court-martial, and which, in default of its allowance, within six months, of a sentence of dismissal or death, voids the order of the Exe cutive, and the act of July 13, 1866, which provides that no officer, in time of peace, shall be dismissed, except in pursuance of a court-martial, or both..

Examples of the like deviation of the strongest kind, for the double reason that the President is, under the Constitution, the Commander-in-Chief of the Army and Navy of the United States, and none but civil officers are amenable to the process of impeachment, and that the officer dismissed is absolutely restored, awakened into new life, and raised to his feet by the omnipotent act of the legislative power. And lastly, the act of 15th of May 1820, which dismissed by wholesale a very large and im portant class of officers, at periods specially indicated therein, not only fixed the tenure prospectively but in volves a clear exercise of the power of removal itself on the part of the legislative,

Further development in the same direction would no doubt reward the diligence of the more pains taking in quirer. That, however, would only be a work of supereroga tion. Enough has been shown to demonstrate beyond de nial that the practice relied on has been anything but unt form. To establish even a local custom or prescription, the element of continuity is as important as that of time. Any break in that continuity by an adverse entry, or even a continual chain, would arrest the flow of a statute of limitation against the rightful owner of a tenement.

An interruption of the enjoyment would be equally fatal to a prescription; but are we to be told that a case which, in this view, would not even be sufficient to establish com position for tithes, or a trifling easement between indi viduals, is sufficient to raise a prescription against a constitutional right, or to abrogate the fundamental law of a nation, and the inappreciable inheritance of its people. The very statement of the proposition would seem to furnish its own refutation.

Shortly after four o'clock Senator MORRILL (Vt.) moved to adjourn the court, prefacing the motion by saying that he was informed that Mr. Manager Williams was, from illness, unable to conclude his remarks this evening. The motion was agreed to, and the court adjourned,

PROCEEDINGS OF TUESDAY, APRIL 28,

ments.

When the court had been opened in due form, Mr. SUMNER said:-1 send to the Chair an amendment to the rules of the Senate upon the trial of impeachWhen that has been read, if there be any objection, I will ask that it go over until the close of the argument, and take its place with the other matters which will come up for consideration at the time. It was read, as follows:

Whereas, It is provided in the Constitution of the United States that, on trials of impeachments by the Senate, no person shall be convicted without the concurrence of twothirds of the members present; but this requirement of two-thirds is not extended to the judgment in such trials, which remains subject to the general law that a majority prevails; therefore, in order to remove any doubt there

upon,

Ordered, That any question which may arise with re gard to the judgment shall be determined by a majority of the members present.

Senator DAVIS objected, and the Chief Justice said:-It will lie over.

To the managers-The honorable managers proceed.

will

Mr. Williams Resumes his Argument. Mr. Manager WILLIAMS, then, at 12:15, resumed his argument, and said:-

There is but one refuge left, and that is in the opinion of what is sometimes called his Cabinet, the trusted coun sellors whom he is pleased to quote as the advisers whom the Constitution and the practice of the government have assigned to him. If all the world has forsaken him, they, at least, were still faithful to the chief whom they so long accompanied, and so largely comforted and encouraged through all his manifold usurpations. It is true that these gentlemen have not been allowed to prove, as they would have desired to do, that maugre, all the reasoning of judges, lawyers and publicists, they are implicitly of the opinion, and so advised the President, that the Tenure-ofOffice law, not being in accordance with his will, was of course, unconstitutional. It may be guessed, I suppose without danger to our cause, that if allowed. they would have proved it.

and acted with him in the Congress of 1789. No man there, who asserted the power of removal to be in the President, or concurred in bestowing on him for the occasion, ever supposed that its exercise was to be a question of mere caprice or whim or will, to the objection that this would be the effect of the doctrine of removal.

It was answered by Mr. Madison himself, in these words: "The danger consists merely in this, that the President can displace from office a man whose merits require that he should be continued in it; that will be the motive which the President can feel for such abuse of his power and the restraints that operate to prevent it." In the first place he is impeached by the House before the Senate for such an act of maladministion; for I contend that the wanton removal of a meritorious officer would subject him to impeachment and removal from his own high trust." And it was no doubt mainly on the argument that the power of removal was embodied in the law.

What then, have the President and his counsel to say in answer to this? Is the President impeachable in his own case, or does he expoct to realize the points of the argument, and then repudiate the very grounds on which the alleged construction rests? Was Mr. Stanton a meritorious officer? Did his remits require that he should be continued in the place? No loyal man, I think, disputes that they did, and this Senate has already solemnly ad judged by their decision that, upon the reasons stated by the President, that there was no sufficient cause for his removal, while none others have since been shown by the accused himself? What, then, was the motive for the act of mal-administration, as Mr. Madison denominates it? Nothing that we are aware of,except the fact that the President cannot control the War Office in the interests of his policy so long as he is there. Was this, then, a wanton removal? It was something more; it was a wicked one, and are we to be told now that he is bound to show no reasons, and cannot be compelled to answer to the nation by those who claim the power of removal for him on the footing that it alone would be impeachable? But it is further strenuously argued that, although the law may be constitutional and the case of Mr. Stanton within it, as it has already been held to be by this Senate, the case was not so clear a one as to authorize a charge of crime against the President unless it can be shown that he has willfully misconstrued it, and that, although whenever a law is passed through the forms of legislation It is his duty to see that it is faithfully executed, so long as it requires no more than ministerial action on his part: yet, where it is a question of cutting off a power confided to him by the Constitution -and he alone can bring about a judicial decision for the settlement-if, on deliberation and advice, he should be of the opinion that the law was unconstitutional, it would be no violation of duty to take the needful steps and raise that question so as to have it peacefully decided.

Allow me to say, in answer, that if ignorance of the law, which excuses nobody else, cannot be held to excuse the very last man in the nation, who ought to be allowed to plead it? The testimony shows, I think, that he did not misunderstand its meaning. This suspension of Mr. Stanton, which was an entirely new proceedure, followed, as it was, by his report of the cause to the Senate within twenty days after its next meeting, is evidence that he did understand the law as comprehending that case, and did not intend to violate it if he could, but get rid of the obnoxious officer without resorting to so extreme and hazardous & remedy; but the question here is not 80 much whether he ignorantly and innocently mistook the law, as whether in the case referred to of an interference with the powers claimed by him under the Constitution, he may suspend the operation of a law by assuming it to be unconstitutional, and setting it aside until the courts shall have decided that it is a constitutional and valid one. In the case at issue it was not necesBary to violate the law, either by contriving to prevent the incumbent from resuming his place under it, or turning him out by violence after he had been duly reinstated by the Senate. If he honestly desired to test its validity in the judicial forum, all that it was necessary for him to do was to issue his order of removal, and to give the officer a notice of that order and its object. If he refused to obey, the next obvious step would direct the Attorney-General to Bule out a writ of quo warranto at his own relation. This was not his course. This remedyas not summary enough for his uses, as his special counsel, employed after the arrest of his pseudo Secretary Thomas testifies, because i would have allowed the law to reign in the meantime, instead of creating an interregnum of mere will, by which he hoped to supersede it. His project was to seize the place by craft if possible, and by torce if necessary, and for this purpose he claims to have made an arrangement with General Grant for its surrender to himself in case the judgment of the Senate should restore the officer, and now taxes him with bad faith to him individually for hisobedience to the law. It stands, therefore, upon his own confession that he intended to prevent Mr. Stanton from resuming his position, in which case, as he well knew, and as his Attorney-General knew, and inust have informed him, there was no remedy at law for the ejected

officer.

Foiled and baffled by the integrity of Grant, after fuli deliberation he issued his order of removal on the 21st of February, and sends it by his lieutenant, Thomas, with a commission to himself to act as Secretary ad interim, and enter upon the duties of his office. He does not fail to suggest to him at the same time that Stanton is a coward and may be easily frightened out of the place with a proper show of energy on his part. He tells him also that he ex

rects him to upport the Constitution and the laws as he understands them.

Of course, Thomas is a martinet; he knows no law, as he confessed, but the order of his Commander-in-Chief He has been taught no argument but arms, no logic, but the dialectics of hard knocks. Instructed by the President, he hoped to frighten Stanton by his looks, and he proceeds upon his warlike errand, in all the panoply of a brigadier, and loftily demands the keys of the fortress from the stern warder, who only stipulates for twenty-four hours to remove his camp equipage and baggage. The conquest is apparently an easy one, he reports forthwith to his chief, with the bre vity of a Cazar, "veni, vidi, vici" and they rejoice no doubt together over the pusillanimity of the Secretary, The puissant Adjutant then unbends and pleads for re laxation, after his heroic and successful feat, to the delight and mysteries of the masquerade; not, however, until he had fought his battles o'er again, and invited his friends to be present at the surrender. On the following morning which he advised them he intended to compel by force, if necessary. The masquerade opens:

"Bright the lamps shone o'er fair women and brave men,
Music ascends with its voluptuous swell,
And eyes looked love to eyes that spake again,
And all went merry as a marriage bell."

The adjutant himself is there; the epaulette has modestly retired behind the domino; the gentleman from Tennes sec, at least, will excuse me if, after his own example, 1 borrow from the celestial armory on which he draws so copiously, a little of light artillery, with which he blazes along his track, like a November midnight sky, with all its flaming asteroids.

"Grim-visaged war hath smoothed his wrinkled front.
And now, instead of mounting barbed steeds
To fight the souls of fearful adversaries,
He capers nimbly in a lady's chamber
To the lascivious pleasing of a lute."

But lo, a hand is laid, however, on his, which startles him in the midst of the festivities, like the summons to "Brunswick's fated chieftan" at the ball in Brussels, the night before the battle in which he fell. It is the messenger of the Senate, who comes to warn him that his enter prise is an unlawful one. On the following morning he is waited upon by another officer, with a warrant for his ar rest, for threats which looked to a disturbance of the peace, This double warning chills his martial ardor; visions of impending trouble pass before his eyes; he sees, or thinks he sees, the return of civil strife, the floors of the depart ment daubbed, perhaps, like those of the royal palace of Holyrood, with red spots of blood. But above all he feels that the hand of the law-maker and of the law itself, which is stronger than the sword, is on him, and he puts up his weapon and repairs in peaceful guise to take possession of his conquest. I do not propose, however, to describe the interview which followed. That will be the task of the dramatist; it will be sufficient to accompany him back to the White House, where he receives the order to "go ou and take possession," which he was so unhappily called back to contradict, and which it was then well under stood, of course, that he could not obtain, except by force; and he continues to be recognized as Secretary of War without a portfolio or a care, while he waits, under the direction of the President, not upon the laws, but only to see, like Micawber, what may turn up here, and to be inducted and installed, in proper form, as soon as your previous decision shall have been reversed, and his title affirmed by your votes in favor of an acquittal. The idea of a suit, in which direction no step was ever taken, is now abandoned, if it was ever seriously entertained.

The conversation, however, with General Sherman, who was called as a witness by the President himself, settles the fact conclusively, if not already demonstrated by all the attendant circumstances, that it was not his purpose at any time to bring the case into the courts for adjudication He preferred the dextrous finesse or the strong hand, to a reference, which every sensible lawyer would have told him could be attended with only one result, and that & judgment in favor of the law.

But in this great strait, instead of a resort to the Attorney. General himself, his special counsel, Cox, employed only after the arrest of Thomas, is called to prove that he ad vised against the writ of quo warranto because of "the law's delays," and endeavors to seek a remedy more summary through a habeas corpus, in the event of the commitment of the Secretary ad interim. Supposing it all true, however, the movement came too late to help the employer's case, by showing a desire to put the issue in the way of a judicial decision upon the law.

Nor is it clear by any means, that such a process would have achieved the desired results, with a warrant good upon its face and charging a threatened disturbance of the peace, or an offense against a statute of the United States I doubt whether any court would venture to declare the warrant void, or to discharge upon such a hearing on the footing of the unconstitutionality of a law which had received nearly three-fourths of the votes of both houses, or indeed of any law whatever, while I do not sep how even a decision against it could have had either the effect of ousting Stanton or putting Thomas in his place. It is enough, however, for the present purpose, that the prisoner was discharged on the motion of his own at torney. The counsel for the President admits that he can not, in ordinary cases, erect himself into a judicial tribu nal, and decide that a law is unconstitutional, because the effect would be that there could never be any judicial