of the United States thenceforward until he was impeached by the people's representatives, recognized the obligation of the law, in the plain, simple words of the Constitution, that if a bill be passed by a two-thirds vote over his veto it shall become law to himself and to everybody else in the Republic.

The counsel, however, doubt the validity of the law. They raise the question in the answer; they raise it in the argument; they intimate to the Senate that it is unconstitional, and they take a very plain and simple proposition, and it is really, to me, a very grateful thing to be able to agree with the counsel for the President in any single proposition whatever. They did state one proposition to which I entirely assent, and that is that an unconstitutional law is no law; but it is only no law to the President; it is only no law to the Congress; it is only no law to the courts; it is only no law to the people after its unconstitutlonality shall have been decided in the mode and manner prescribed by the Constitution, and the gentleman who so adroitly handled that text as obtained from the mighty name of Marshall, knew that that rule governed the case. just as well as anybody else knows. It is a law until it shall have been reversed. It has not been reversed, and to assume any other position would be to subject the country at once to anarchy, because, as I have had occasion to say in the progress of this argument, the humblest citizen in the land is as much entitled to the immunity which that propositions brings as the President of the United States. It does not result, however, that the humblest citizen of the land, in his cabin on your Western frontier, through whose torn thatch the rains beat down and the winds play at pleasure, is at liberty to defy the laws, on the ground that they are unconstitutional. The same rules applies to the President. The Constitution is no respecter of persons. Is this law constitutional? Is it valid, and did the President really intend to violate its provisions? Senators, I said before that the rule of the common law and the common sense of mankind is, that whenever a man does an unlawful act, he being a man of sound mind and understanding, he intends precisely what he does, and there is an end to all further controversy. It sometimes happens, however, because, in the providence of God, truth is stronger than falsehood, that a guilty conscience sometimes makes revelations, and thereby contributes to the vindication of violated law and the administration of justice between man and man in support of the right. So it has happened, Senators, that the accused at your bar -the President of the United Stateswas no exception to that rule that "murder will out." could not keep his secret. It possessed him and it compelled him, in spite of himself, to stammer out his guilty purpose and his guilty intent. and thereby silence the tongue of every advocate in this Chamber, and of every advocate outside of this Chamber.

He

Who undertakes to excuse the poor man that he did not know the necessary consequences of his own act? He did intend it. Why he confessed it? Now, I ask the Senate to note what is recorded on page 234 of the record, in his letter to General Grant, to see what becomes of this pretense that the intent is not proved; that he did not intend to violate the law; that he did not intend, in defiance of the express words of the law, which are, "That the Secretary shall forthwith resume the functions of the office in the event that the Senate shall non-concur in the suspension, and inform the Secretary of the fact of non-concur rence," all of which appears on the record.

Mr. Bingham here read the letter of the President to General Grant, dated February 10, in which he claims that General Grant was aware of his intention to force Mr. Stanton to resort to the courts, or to prevent his resuming the office of Secretary of War. He continued:How could he know it, if that was not his purpose? It would be, it seems to me-and I say it with all reverencebeyond the favor of Omnipotence to know a thing that was not and could not possibly be. You know it was the President's purpose to prevent Mr. Stanton from resuming the office.

What says the law? That it shall be the duty of the suspended Secretary, if the Senate shall non-concur in the suppension, forthwith to resume the functions of the office. And yet the Senate is to be told that we must prove the intent. Well, we have, and in God's name what more are we to prove before this man is convicted and the people justified in the judgment of their own Senators. "It was my purpose, and you knew it, to prevent Mr. Stanton from resuming the duties of the office." I have given him the benefit of his whole confesslon.

There is nothing in this stammering confession of this violator of oaths, and violator of constitutions, and violator of laws, that can help him, either before this tribunal or any other tribunal constituted as this is, of just and upright men. He says:-"You know the President was unwilling to trust the office with any one who would not, by holding it, compel Mr. Stanton to resort to the courts;" and he knew as well as he knew anything--if he does, indeed, know anything at all- (laughter)-and if he does not, then order an inquest on lunacy, and dispose of him in that manner. He knew, if he knew anything at all, if he prevented Mr. Stanton from resuming the office. Mr. Stanton could not any more test that question in your courts of justice than can the unborn child, and the man that does not know it ought to be turned out of the office which he disgraces and dis honors for natural stupidity. (Laughter.) He has abused the powers that have been given him. A man that had sense enough to find his way to the Capitol ought to have sense enough to know that. (Laughter.) Yet the gentleman's office goes on here, and the people are mocked and

insulted day by day by this pretense, that we are prosecuting an innocent man, a defender of the Constitution, a lover of justice, a respecter of oaths.

I have had occasion to say before, Senators, in the progress of this discussion, that this pretence of the President is an after-thought. The letter which I have just read, dated February 10, 1868, says that his object was to prevent Mr. Stanton from resuming the office, and then the afterthought is to drive him to the courts to test the validity of the law. Had he prevented the resumption of the office there would have been an end of it. Stanton never could have got in, and that question has been discussed long enough, and is no longer an open question, and the Presi dent knew it when he babbled this stuff in order to deceive the grandlings. Let him babble it to the winds. He need not babble it to the Senate. The question has been settled long ago,

Mr. BINGHAM quoted from the opinion of Chief Justice Marshall, 5 Wheaton, 291, to the effect that the writ of quo warranto can be maintained only at the instance of the government. This High Court of Impeachment, Senators. is the only tribunal to which this question could by any possibility be referred. Mr. Stanton could not bring that question here. The people could and the people have. And the people await your judgment.

Now Senators, I ask you another question, and that is this: How does the President's statement, that it was to compel Mr. Stanton to resort to the courts that he sus pended him, compare with the pretence of his answer that his only purpose was to have the Supreme Court pass upon the constitutionality of the law? Tender regard this for the Constitution. That his only purpose in breaking the laws. the validity and the obligation of which in the most formal and solemn manner he had recognized; availing himself of its express grant to suspend the head of a department from the functions of his office, and to appoint temporarily a successor, and reporting the fact to the Senate, he now comes with his answer, and says that his only purpose was that he might test the validity of the law in the Supreme Court.

Surely, the President felt a very tender regard for the Constitution. If that was the sole purpose, how comes it that the President did not institute the proceedings? The Senate will answer that question when they come to pass upon the defense which the President has incorporated'in his plea, I think if the honorable Senator from Maryland (Mr. Johnson) were to respond here now to that inquiry, full of learning as he is full of years, he would answer that it was because it was impossible that the President instituted proceedings. Mr. Chief Justice, it is well known to every jurist of the country, as the question stands, and as the President left it, that there is no colorable excuse under the Constitution and laws of this country to say that he would institute proceedings.

If he had not instituted proceedings, then I ask again' why insult the people by mocking them with this cold hypocritical assertion that his only purpose in doing the act was to institute a proceeding in his own mode, in the Supreme Court of the United States, to test the validity of the people's laws? Senators, it is only another illustration, surrounded as the President is by those learned in the law, and I cast no reproach on them in saying it. It was their duty to defend him; it was their duty to bring to his defense all their experience, and all their learning, and all those great powers of intellect with which it has pleased Providence to endow them; but it is only another evidence of what I said before, that notwithstanding the learning and ingenuity of his accomplished defenders, truth is at last stronger than falsehood.

When he comes before this Senate and says that his purpose in violating your laws was that he might test, the validtity of the statute in the Supreme Court of the United States when he knew he had no power under the Constitution or laws to raise the question at all, the written order for the removal of the Secretary of War, and the written letter of authority for the appointment of Lorenzo Thomas to the office of Secretary for the Department of War, are simply written conclusions of his guilt. in the light of that which I have already read from the record, and no man can gainsay it,

Mr. Bingham here quoted from Russell's Criminal Law, on the question of intent:-"To the extent that were an act, and in itself unlawful, the proof of justification or excuse lics on the defendant, and that the law in such cases implies a criminal intent." Was the act unlawful? If your statute was valid, it certainly was. Mr. Bingham read the sixth section of the statute, declaring its violation to be a high misdemeanor, &c. Then, is it an unlawful act within the text of Greenleaf? That surely is an unlawful act, the doing of which is, by the express law of the people, declared to be a penal offense, punishable by fine or imprisonment in the penitentiary. answer do gentlemen make, and how do they attempt to escape from this provi-ion of the law? Why, they say the President attempted to remove the Secretary of War, but he did not succeed. Are we to be told. Senators, that if a man makes an attempt upon your life here in the District of Columbia, although if you were to search never so closely the Constitution of the United States, you would not find the offense definitely defined and its punishment prescribed by statute..

What

Are we to be told, because he did not succeed in mnrdering you outright, that he must be acquitted, to try what success he may have on another day and in another place, in accomplishing his purpose. Senators, I have reminded you already of that which you knew. that your act of 1801, as well as of 1831, declares that all offenses, indietable at the common law, committed within the Dis

trict of Columbia, shall be crimes or misdemeanors, according to their grades, and shall be indictable and pun ishable in the District of Columbia in your own courts. I listened to the learned gentleman from New York the other day, upon this point, and for the life of me-and I beg his pardon for saying so-I could not understand what induced the gentleman to venture upon the intimation that there was any such thing possible as a defense of the President for the unlawful attempt to violate this law.

By admitting the order to be an unlawful attempt, I say with all respect to the gentleman, that it has been settled through the current century and longer, by the highest courts of this country and of England, that the attempt to commit a misdemeanor, whether the misdemeanor be one at common law or a misdemeanor by statute law, the attempt is itself a misdemeanor.

Mr. BINGHAM quoted Russell, 84, to the above effect. 1 would like to see a book brought into this Chamber to contradict that rule. It is common law as well as common sense. But, further, what use is there for raising a ques tion when the further provision of the statute is "That the making, signing, sealing, countersigning or issuing any conmission, letter of authority, or ownership of any such appointment or employment shall be assumed, and are hereby declared to be a high misdemeanor." Who is to challenge this, here or elsewhere?

What answer has been made? What answer can be made to this? None, Senators, none, When the words of a statute are plain there is an end to all controversy, and in this, as in every other part of this discussion touching the laws of the land, I stand upon that accepted canon of construction stated by the learned Attorney-General in his defense of the President last week, when he said effeet must be given to every part of the written law.

I have discharged my duty-my whole duty. The question which now remains is whether the Tennre of Office act is valid? If it is, whatever gentlemen may say about the first article, there is no man in America but knows that under the second and third and eighth articles, by issuing a letter of authority, the President was guilty of a high misdemeanor in the words of the statute. He did issue the letter of authority, and he has written it down on the 10th of February that his object and purpose was to violate that very law and to prevent the Secretary of War from resuming the functions of his office, although the law says he shall forthwith resume the functions of his office, in case the Senate non-concurred in the suspension. And yet gentlemen wriggle here about this question as if it was an open question. It is not an open question. It is a settled, closed question this day, this hour, in the judgment of every enlightened, intelligent man who has access to your record, and it is useless, and worse than useless, to waste time on it. The question now is, is the act valid? Is it constitutional? Senators, I ought to consider that question closely. I ought to assume that the Congress of the United States which passed the act will abide by it. Congress acted on the responsibility of its oath. It acted under the limitations of the Constitution. The Thirty-ninth Congress, not unmindful, I trust. of its obligation, and not incapable of judging and considering the grants and limitations of the Constitution, passed this law because, first, it deemed itself authorized to do so by the Constitution, and because, secondly, it deemed that its enactment was necessary, and that is the language of the Constitution itself.

To the public welfare, and the public interest Congress sent it, in obedience to the requirements of the Constitution, to the President for his approval. The President, in the exercise of his power, and of his right under the Constitution, considered it, and returned it to the House in which it originated, with his objections. When he had done this we claim that all his power over the question of the validity of that law terminated. He returned it to the House, and with it his objections. He suggested that it was unconstitutional. Congress reconsidered it in obedience to the Constitution, and it was again passed by a two-thirds vote of both Houses, and, in the words of the Constitution, it thereby became a law-a law to the President of the United States-and it will forever remain a law until it is repealed by the law making power or reversed by the courts. And now what took place?

These gentlemen come before the Senate with their answer, and tell the Senate the law was unconstitutional. They ask the Senate, in other words, to change their record. They ask to have this journal read hereafter at the opening of the court:-"The People of the United States against the Senate and House of Representatives. charged with high crimes and misdemeanors, in this, that, in disregard of the Constitution, in disregard of their oath of office, they did enact a certain law, entitled, 'An act to regulate the tenure of certain civil offices,' to the hurt and injury of the American people, and that they are thereby guilty of high crimes and misdemeanors in office."

Well, gentlemen, we have had our lessons here on charity in the progress of this trial, and really it does seem to me that this would be a stretch of that charity which requires you to give your coat, &c. I never knew before that it went beyond your outer garments, your bread, and the money in your purse; but it seems that you are to make a voluntary surrender of your good name, of your character, and of your conscience, in order to accommodate this accursed culprit, and to say, after all that, it is not the President of the United States who is impeached, but that it is the Senate, which is sitting in judgment upon him that is impeached, and that you will accommodate this unfortunate man by making a confession before the gods and before men, that we violated our own oath; that we violated the Constitution of our country, in that we did enact into a law,

despite the President's veto to the contrary, a certain act passed March 2, 1867. Well, when it comes to that it is not for me to say what becomes of the Senate. This is an attempt to gibbet us all in eternal infamy for making up the record of this case deliberately and of malice aforethought, to the injury of the rights of a whole people, and to the disconcern and shame and disgrace of human nature itself.

And yet the question is made here that the law is unconstitutional. If the law be valid the President is guilty, and there is no escape for him. It is needless to make the issue, but having it, it is enough that the Senate decided. If the Senate decide that the law is constitutional there is an end of it. It has decided it three times. It decided it when it first passed the law. It decided it when it reenacted the law over the President's veto, and it decided it again, as it was its duty to do, when he sent his message to the Senate on the 21st of February, 1868, telling the Senate that he had violated it and defied the provisions of the law. It was the duty of the Senate te decide it.

The Senate needs no apology, and I am sure will never offer an apology to any man in this life, or to any set of men, for what it did on that occasion. What! is the President of the United States deliberately to violate the law, to disregard the solemn action of the Senate, to treat with contempt the notice served upon him by the Senate in accordance with that law, and is he then to come into their own chamber and insult them, and defiantly chal lenge them in regard to this law? To this challenge the Senate made answer, as was its duty, Sir, the thing that you have done is not warranted by the Constitution and the laws of the country. This, Senators, is my answer to that challenge in the prosecution of this impeachment.

The representatives of the people, and others who have thought it worth while to notice my own official conduct touching this matter of impeachment, knew well that I kept myself back, and endeavored to keep others back from rushing madly into this confiict between the people and their President. The Senate, also. acting in the same spirit, gave him this notice that he might retrace his steps and thereby save the institutions of the country from this great shock. But no, it was needful that he should illustrate that Pagan rule:-"Whom the gods mean to destroy they first make mad," and so he went on, and here we are to-day to try this issue.

I return to the question of the validity of this law with the simple statement that by the act of the Constitution, as I have already read it, it is provided that all appointments not otherwise provided for in the Constitution, shall be made by and with the advice and consent of the Senate. It necessarily results, as Mr. Webster said, that the removing power is incident to the appointing power until otherwise provided by law. I have shown to the Senate that the removing power has never been otherwise exercised from the first Congress to this hour, except in obedience to the express provisions of law. I have shown the Senate that the act of 1789 authorized removals, and the act of 1795 authorized temporary appointments.

I add further that I have cited the fact of this provision of the Constitution that the President shall have power to fill up all vacancies that happen during the recess of the Senate, by issuing commissions which shall expire with the end of the next session, which very necessarily implication means, and means nothing else, that he shall create vacancies without authority of law during the session of the Senáte, and shall not fill them at his pleasure without the consent of the Senate.

I have but one word further to add in support of the constitutionality of this law, and that is the express grant in the Constitution itself that the Congress shall have power to pass all laws necessary and proper. Interpreting that word "proper," in the words of Judge Marshall himself, in the great case of McCulloch vs. Maryland, as meaning "adapted to the execution of all the powers granted by this Constitution to the United States, or to any department thereof," I think that grant of power is plain enough and clear enough to sanction the Tenure of Office act.

Even admitting that the power of removal and appointment, "subject to law of course," was conferred upon the President, I do not stop, Senators, to argue the proposition further, but I refer to the authority of Mr. Webster, in volume 4, page 199, in which he recognizes the same principles most distinctly and clearly-that it is proper for the Congress of the United States to regulate this very question by law. I add, that the Congress of the United States, from the First Congress to this hour, has approved the same thing by its legislation. That is all there is of this question. The law, I take it, is valid, and will remain valid forever, if its validity is to depend upon the judgment of the Senate, which twice passed it under the solemn obligations of its oath.

Something has been said here, Senators, about the continued practice of eighty years. I have said enough on that subject to fully answer all that has been said, and so well said, by the learned counsel for the President. I have shown that the act of 1789, by the interpretation and construction of one of the first men in America, Mr. Webster, did really, by direct operation,separate the removing from the appointing power, and was itself a grant of power. I have shown that the Constitution confers that power on the Senate. Then there is no practice of eighty years adverse to this Tenure of Office act, so that I need say no word further on that subject, but leave it there.

all the acts from 1780 to 1867 bear witness to one thing, and that is that Congress has full power under the Constitu tion, by law, to confer upon the President the power of temporary or permanent removal, or to withhold that power. That is precisely what Congress has done, and I stand upon it here, as a representative of the people, prose

cuting for the people these articles of impeachment, and declare here, this day, upon my conscience and on what little reputation I may have in this world, that the whole legislation of the country, from 1789 to 1867, altogether bears one common testimony to the power of Congress to regulate, by law, the removal and appointment of all officers within the general limitation of the Constitution and the supervisory power of the Senate that the act of 1789, as Mr. Webster stated, conferred upon the President of the United States the power of removal, and thereby separated that power from the power of appointment, of which it was a necessary inei. dent. The act of 1795, on the other hand, gave him power to make certain temporary appointments limited here to over six months for any vacancies, thereby showing that it was no power under the Constitution and beyond the limitation and restrictions of law. The act of 1863 limited and restricted him as did also the act of 1789.

If, therefore, the President of the United States has this power by force of the Constitution, independent of law, I say, tell me, Senators, how it comes that the act of 1789 limited and restricted him to the chief clerk of the department? How comes it that the act of 1795 limited and restricted him to the period of six months only for one vacancy, if, as if claimed in his answer, he has power of indefinite removal, and therefore the power of indefinite appointment? How comes it that the act of 1863 limited him to certain officials of the government, and did not leave him at liberty to choose from the body of the people?

I waste no further words on the subject. I consider the question fully closed and settled; and all the legislation shows the power of the President to be subject to the limitations of such enactments as the Congress may make, which enactments must bind him as they bind everybody else, whether he approves them or not, and until they be duly reserved by the courts of the United States or they shall be repealed by the peoples' representatives, in Congress assembled.

I may be pardoned, Senators, in having gone very heavily in this way over the general facts of the case, for saying that the President's declarations are here interposed to shield him from the conseqence of his guilt under the first three, the eighth, and eleventh articles of impeachment. These declarations of the President are declarations of the fact. Most of them were excluded by the Senate, and were properly, in my judgment, excluded. Some of them were admitted. I do not regret that; it showed that the Senate was willing, even if it were a doubtful question, or if it were not a doubtful question to modify the rules of evidence in the exercise of a discretion to see what explanation the Chief Executive could possibly give of his conduct.

The Senate allowed him, contrary to the rules of evidence, to be a witness in his own case, and that not under the obligation of an oath. The counsel produced his declarations. They amounted to no more than I have referred to already that his purpose in violating the law was merely to test its validity in the courts. That is all there is of it. There was nothing more in the declarations of the President, as witnessed by himself on this trial. They cannot by any means excuse him in the light of the facts to which they have referred before, namely, that it was simply imposible for him to test questions in the courts in the manner proposed. There is an end of it. There is no use of pressing the question, and the farther The President has no right to challenge the laws, and to suspend their execution until it is his pleasure to test their validity in a court of justice. But, Senators, what more is there? He is charged with conspiracy here. A conspriracy is proved upon him by his letter of authority to General Thomas, and by Thomas' acceptance under his own hands. Both of these papers are before the Senate, and in evidence. What is a conspiracy? A simple agree. ment between two or more persons to do an unlawful act, either with or without force, and the offense is completed the moment the agreement is entered into.

It is a misdemeanor at common law, and it is a misdemeanor under the act of 1801. It is a misdemeanor under the act of 1831. It is a misdemeanor for which Andrew Johnson and Lorenzo Thomas are both indictable after these proceedings shall have closed. And it is a misdemeanor, an indictment for which would be worth no more than the paper on which it would be written, until after this impeachment trial shall have closed, and the Senate shail have pronounced the righteous judgment of guilty on this offender against your laws, and for this simple reason, Senators, that it is written in your Constitution that the President shall have power to grant reprieves and pardons for all offenses against the United States save in cases of impeachment. Indeed, if Lorenzo Thomas were to-morrow indicted for a conspiracy with Andrew Johnson to prevent Edwin M. Stanton from resuming the functions of his office, all that would be wanted would be for Andrew Johnson with a mere wave of his hand to issue a general pardon and to dismiss the proceedings.

I say again, this is the tribunal of the people, in which to try this great offender, this violator of oaths, of the Constitution and the laws. Well, say gentlemen, it is a very little offense, and you may forgive him that. It is a very little offense when the pardoning power does not happen to be conferred upon him, and these tender and tearful ap. peals to the Senate on the ground of its being a little thing, do not amount to very much; but, say the gentlemen, you have also charged him, under the act of 1861, with having conspired with Lorenzo Thomas in the one article with force, and in the other with threats and intimidations, to work out the same result in preventing the execution of the law.

So we have, and we say that he is clearly proved

tor.

gnilty. How? By the confession made by his co-conspiraI have said that the conspiracy is established by the written letter of authority and by the written acceptance of that letter of authority by Thomas, and the conspiracy being established, I say that the declaration of the co-conspirator made in the prosecution of the common design is evidence against both.

Mr. Bingham, in this connection, read some extracts from the testimony of General Thomas in reference to the mode in which he proposed-to gain possession of the paperg of the War Department, and particularly in reference to the draft of a letter which he submitted for the President's consideration on the 10th of March. Mr. Bingham, referring to the date of this draft letter, remarked that this was after the President was impeached, and that it showed that the President was still defying the power of the people to check him.

The Senate will notice, he said, that these two confederates and co-conspirators have not only been deliberately conferring together about violating the Tenure of Office act, and the act making appropriations for the army, but that one of the conspirators has written out an order for the very purpose of violating the law, and that the other conspirator, seeing the handwriting on the wall, and apprehensive after all that the Senate of the United States, in the name of all the people, may pronounce him guilty, concludes to whisper in the ear of his co-conspirator, "Let it rest until after the impeachment."

Give him, Senators, a letter of authority, and he is ready to renew this contest, and again to sit in judicial judg ment on all your statutes, and to say in the language of his accomplished and learned advocate (Mr. Curtis), that he has deliberately settled down in the Constitution that your law regulating the army, fixing the headquarters of its general in the Capitol, not removable without the consent of the Senate, does impair certain rights conferred upon him by the Constitntion, and that by his profound judicial judgment he had come to the conclusion to set aside that law and to order General Grant to California, or to the Oregon, or Maine, and defy you again to try him. Senators, I trust you will spare the people any such exhibition.

Now, Senators, it has been my endeavor to finish today all that I desire to say on this matter. I know that if I were in possession of my strength I could finish all I have to say in the course of an hour or an hour and a half. It is now, however, past four o'clock, and if the Senate will be good enough to indulge me, I promise that I shall conclude my argument before recess to-morrow. The court then adjourned.

PROCEEDINGS OF WEDNESDAY, MAY 6.

The court was opened in due form, and Mr. Bingham resumed his argument as follows:

Senators: On yesterday I had said nearly all that I had to say touching the question of the power of the President to assume legislative power for the executive office of this government. For the better understanding of my argument, however, Senators, I will read the provisions of the acts of 1789 and 1795 in the presence of the Senate, and will show by the law, as read by the counsel for the President on this trial, that the act of 1789, and the act of 1735 have ceased to be laws, and that the President can no more exercise authority under them to-day than can the humblest private citizen.

I desire also, Senators, in reading these statutes to reaffirm the position which I assumed on yesterday, with perfect confidence, that it would command the judgment and conscience of the Senate, to wit, that the whole legislation of this country, from the first Congress, in 1789, to this hour bears uniform witness to the fact that the Presldent of the United States has no control over the executive offices of this government, except such control as is given by the text of the Constitution which I read yesterday, to fill up such vacancies as may occur during the recess of the Senate with limited commission to expire with the next session, or such power as is given him by express authority of law. I care nothing for the conflicting speeches of the representatives in the first Congress upon this question; the statute of the country conclude them, and conclude us, and conclude as well every officer of this government from the Executive down.

What, then, Senators, is the provision of this act of 1789? I may be allowed, in passing, to remark that the act establishing the Department of Foreign Affairs contains precisely the same provision, word for word, as the act to establish the Department of War.

Mr. Bingham read the act of 1789, and continued:Standing upon that statute, Senators, and upon the continued and unbroken practice of eighty years, I want to know, as I inquired yesterday, where it appears that this vacancy thus created by authority of the act of 1789, could be filled during the session of the Senate by the ap pointment of a new head to that department, without the consent of the Senate as prescribed in the Constitution? I remarked yesterday, what I repeat now, in passing, that the vacancy was filled without the consent of the

Senate, and that was the end of this unbroken current of decisions, upon which the gentleman relied to sustain this assumption of power on the part of the accused President, I repeat, Senators, the act of 1789 excludes the conclusions which they attempted to impress upon the minds of the Senate in defense of the President. Why, the law restricted the appointment to the Chief Clerk. Could he over-ride that law? Could he give the papers of that department to any human being but the chief clerk, not appointed by him-by the head of the department? There stands the law, and in the light of that law the defense made by the President turns to dust and ashes in the presence of the Senate. I say no more upon that point, reminding the Senate that the act of 1789, establishing the War Department, contains the same provision, giving him no power to fill the vacancy by appointment during the session of the Senate.

I pass now to the act of 1795. The act of 1792 is obsolete; has been superseded, and was substantially the same as the act ef 1795, and what I have to say, therefore, on the act of 1795 applies as well to the act of 1792.

Mr. Bingham read the law from the Statutes at Large, and continued:-There stood the law of 1798 unrepealed up to this time, I admit, expressly authorizing the President to fill the vacancy, but restricting him, under the control of the department after it was created, to the Chief Clerk of the department. This act expressly repeals the act of 1789, in so far as it expressly provided that "It shall be lawful for the President of the United States, in case he shall deem it necessary, to authorize any person or persons, at his discretion, to perform the duty of the said respective office until a successor be appoinfed."

It was a grant of power-and no grant of power could be more plainly given. What is the necessity of this grant if the reason, made by the President, as charged in his answer, and read by me yesterday, that the power is his by virtue of the Constitution, is correct? and if it be, I ask to-day, as I asked yesterday, how comes it that this con stitutional power was restricted to appointments not to exceed six months for any one vacancy? That is the language of the statute. Am I to argue, Senators, that this ferm-"any one vacancy"-excludes the conclusion that the President could, upon his own motion, multiply vacancies infinitum, creating another at the end of six months, and making a new appointment? Senators, there is no unbroken current of decision to support any such assumption, and here I leave it.

I ask the attention of Senators now to the act of 1863, which affirms "the absolute control of the Legislative department over the whole question of removal and appointments, except the express provisions of the Constitution, which Congress cannot take away, that the President shall fill vacancies which may happen during the recess of the Senate by limited commission, to expire at the end of such commission.

Mr. BINGHAM read the act of 1863, and said:-Senators, what man can read the statute without being forced to the conclusion that the Legislature thereby reaffirmed the power that they had affirmed in 1867-the power that they had affirmed in 1795, to control and regulate by the law this asserted unlimited power of the Executive over appointments or removals either. Why look at the statute if it be permitted to choose at large from the body of the community to fill temporarily these vacancies? Not at all. It is restricted by the very terms of the statute to the heads of departments, or to such inferior officers of the several departments as are by law subject to his own appointment, and by that act he can appoint no other human being; and yet gentlemen stand here and say, the acts of 1789 and 1795 are not repealed, when they read authority themselves to show that when two statutes are altogether irreconcilable, the last must control. For the purpose of my argument it is not needful that I should rest upon the repeal of the act of 1795 any further, more than it relates to the vacancies which arise from the causes enumerated in the act of 1783.

It is a reassertion of the power of the Legislature to control this whole question, and that is the unbroken current of decision from the first Congress to this day, that the President can exercise no control over this question, except by authority of law. and subject to the express requirement of law. This brings me then, Senators, to the act of 1867, for the purpose of completing this argument upon this question, as to the limitation imposed by law upon the President of the United States, touching this matter of the appointment and removal of heads of departments, and of all other officers whose appointment is under the Constitution and laws, by and with the advice and consent of the Senate,

My chief object in referring again this morning to show to the Senate what I am sure must have occurred to them already, and rather to perfect my own argument than to suggest any new points to them at this very rule of interpretation by every letter and word read in the progress of these arguments on behalf of the President by his counsel. The act of 1867, by necessary implication, beyond the shadow of a doubt, repeals the acts of 1789 and 1795, and leaves the President of the United States subject to the requirement of the law as to all that class of officials.

Mr. Bingham read the act of 1789, and the Tenure of Office bill, and said, what becomes of this grant of power in the act of 1789 to the President to remove? What becomes of this grant of power, in the act of 1795, to make temporary appointments for six months?

Mr. BINGHAM went on to argue at great length, supporting his argument on the Constitution and on the statute of 1867, that the meaning of the clause in the Tenure of Office act, by which the Secretaries were to hold

their offices during the term of the President by whom they were appointed, was, that they should hold their offices during the term for which Mr. Lincoln was elected, and that if a President should happen to be elected for two, or three, or four successive terms, the law would operate in giving the offices to the Secretaries until the exp ration of the term of the President.

On this latter point, he said. I read the law literally as it is. The Secretaries are to hold their offices during the en tire term, if it should be eight years, or twelve years or sixteen years, of the President by whom they were appointed. That is my position in regard to the appointment. There is no person who has a term but the President, elected by the people, and there is no person, therefore, whose appointment can by any possibility be within the provision of the proviso in the Tenure of Office act but such a President. If Mr. Lincoln had lived he could not have availed himself of the act of 1789 or of 1795, to remove a single head of a department appointed by himself at any time during the term.

I do not care how often his term was renewed, it was still the term, and answered to the statute, and he was still the President by whom those officers were appointed. When his term expired, whether it was his first, second, third or fourth term, the proviso then took effect according to its express language, and the offices became vacant one month after the expiration of that term; but that term never does expire until the end of the time for which the President was elected,

What else is there about this matter? Counsel for the defense argued here, and have put in the answer of the President, that the Tenure of Office act is unconstitutional and void. They talked for hours, in order to convince the Senate that no man can be guilty of crime-for the violation of an unconstitutional act-because it was no law which was violated. But why all this effort to prove the Tenure of Office act to be unconstitutional, if, after all, it did not embrace Mr. Stanton; if, after all, there was no violation of this provision; if, after all, it was no crime for the President to make an ad interim appointment; if, after all, the acts of 1789 and of 1795 remained in full force? Senators, I have no patience to pursue an argument of this sort.

The position assumed is utterly inexcusable, and utterly indefensible. I ask you Senators, to consider also, whether the counsel for the President were not too fast in saying, that even admitting that the Secretary of War had ceased to be entitled to the office, and was not to be protected in it, under the operation of the Tenure of Office act, the President, nevertheless, must go acquit of the conspiracy into which he had entered, and must go acquit of issuing the letter of authority to Thomas, in direct violation of the sixth section of the act.

The Senate will recollect the language of the counsel of the President (Mr. Stanbery) to the effect that this act was odious, offensive and unconstitutional, and that it attempted to impose penalties on the Executive for discharging. Executive functions, and made it a crime and misdemeanor for him to exercise his undoubted discretionary power under the Constitution as claimed in his answer. He affirmed here, with emphasis, that the fifth section of the act makes it a crime to every man who participates with the President voluntarily in the breach of the law, and makes it a high misdemeanor for any person to accept any appointment under such circumstances.

I do not understand, Senators, why this line of argument was entered upon, if my friend from Ohio was right in coming to the conclusion that there was nothing in the conspiracy, and that there was nothing in issuing the letter of authority in violation of the express provisions of the law.

Mr. Bingham alluded to a remark made by Mr. Nelson, to the effect that it was his opinion, and was also the opinion of the President, that the IIouse of Representatives, as now organized, had no power under the Constitution to impeach him, and that the Senate of the United States, as now organized, had no power under the Constitution to to try him on impeachment.

We are very thankful, continued Mr. Bingham, that the President of his grace permits the Senate to sit quietly to deliberate on this question presented by the articles of impeachment by the people's representatives.

But I ask Senators to consider whether the President, at least, is not notifying us through his counsel-for I observed that counsel did not intimate that the President was willing to abide the judgment of the Senate, but only that he was willing to wait the trial-of what we may expect, and whether he is not playing the same role which he did play, when he availed himself of the provisions of the Tenure of Office act to suspend E. M. Stanton from office, and to appoint a Secretary ad interim, and afterwards, when the Senate did not concur in the suspension of Mr. Stanton, refused to recognize the binding force of the Tenure of Office act.

I think it would have been well for the President of the United States when he was informing us of his opinion, through his learned counsel, to have gone a step further and informed us whether he will abide the judgment of the Senate.

Mr. Bingham also referred to a remark made by Mr. Curtis in sustaining his argument, to the effect that the letter of authority to General Thomas could not be strictly called a military order; but that the habitual custom of the officers of the army to obey all the orders of their superior officers gave it, in some sense, the force of a military order. In that connection, Mr. Bingham said:-It would not surprise me, Senators, at all, if the President were to issue an order to-morrow, to his AdjutantGeneral to disperse the Senate, after his sending here

such an utterance, by the lips of his counsel, that the Senate has no constitutional right to try him, by reason of the absence of twenty Senators, excluded by the action of this body, elected by ten States and entitled to representation on this floor. That is a question which the President of the United States has no more right to decide or to meddle with than has the Czar of Russia, and it is a piece of arrogance and impudence for the President of the United States to send to the Senate a message that it is not constitutional according to the Constitution, and that it has no right to decide for itself the qualifications and elections of its own members, when it is the express Language of the Constitution that the Houses of Congress shall have that power, and no man on earth should challenge it.

I trust, Senators, that to that utterance of the President, which is, substantially, that you shall suspend judgment in the matter, and defer to his will until it shall suit his convenience to inquire in the courts as to the rights of the people to have their laws executed, the Senate will return, by its judgment in this matter, an answer of the grand heroic spirit of that which the Deputies of the French nation returned in 1789 to King Lous XVI, when he sent his order that they should disperse, and when, on that occa sion, the illustrious President, rising in his place, was hailed by the king's usher with the question:-"Did you not hear the king's order?" "Yes, sir," replied the President, and he immediately turned to the Deputies and said I adjourn the Assembly until it has deliberated upon the matter. "Is that your answer?" said the usher. "Yes sir," and he immediately followed it with the further words, "It appears to me that the assembled nation cannot receive an order," and this was followed by the words of the great tribune of the people, Mirabeau, addressing the king's usher and saying, "Go back to those who sent you, and tell them that bayonets have no power over the will of the nation." That sir, continued Mr. Bingham addressing himself to the President's counsel, is our answer to the arrogant words of your client. I have said, Senators, all that I have occasion to say touching the first eight articles preferred against the President, as to his having issued this arder of removal unlawfully, and having issued this letter of authority unlawfully.

It was necessary that the President should take another step in his guilty march, and he proceeded very cautiously, as conspirators always do, in the experiment of corrupting the conscience and staining the honor of a gallant soldier, who was in command of the military forces in the district. He had an interview with him the day after he issued this letter of authority. In that interview he says to him:"Sir, this act of 1867 making appropriations for the army, which requires all military orders to pass through the General of the Army, and which requires also that any violation of its provisions shall be a high misdemeanor in affice, is an unconstitutional law, and is not within the purview of your commission."

It was simply a suggestion to the General that his commander-in chief would stand by him in violating the law of the land. It was a suggestion to him that it would be a very great accommodation to the President if the commandant of the forces of the District would receive his orders directly from the President, and not from the General of the army. It was a confession, Senators, indirectly to be sure, that confession, however, which always syllables itself in the confession of the guilty, when guilty speaks at all' that General Grant, the hero of the century, who led your battalions to victory on a hundred stricken fields, having vindicated the supremacy of the law by wager of battle, would surely here in the capital be faithful to the obligations and requirements of law, and refuse to strike hands with him.

More than that, he has put it in writing to this effect:"You knew, General Grant, that my object and purpose was to violate and defy the law, and you accepted the office of Secretary of War ad interim in order to circumvent me." That is his language in his letter to General Grant of the 10th of February; and yet gentlemen say that this is a miserable accusation. Is it? It is so miserable an accusation, sirs, that in any other country than this, where the laws are enforced rigidly, it would have Cost an executive or a military officer his head to suggest to any subordinate that he should violate a law, and a penal law at that, touching the movements of troops and military orders, and so plain that no mortal man could mistake its meaning. I say no more on that point, but I leave it with the Senate.

I approach article ten, about which a good deal has been said, both by the opening counsel and the concluding counsel. The President is, in that firticle charged with an indictable offense, in this, that in the District of Columbia, he uttered seditious words-I am stating the substance and legal effect of the charge-intending to excite the people to revolt against the Thirty-ninth Congress, and to a diaregard of its legislation, asserting in terms that it was not a Congress, that it was a body assuming to be a Congress, hanging on the verge of the government.

He is charged also with committing acts of public indecency, which, as I showed to the Senate yesterday, is, at common law, an indictable misdeineanor, showing a purpose on his part to violate the law himself, and to encour age and incite others to violate it also. In other words, his language was the language of sedition. What did the Counsel for the President say about it? They referred to the sedition act of 1798, which had expired by its own limitation, and talked about its being a very odious law. I do not know but what they intimated that it was a very un' constitutional law. Pray what court of the United States ever so decided? There were prosecutions under it, and what Court, I ask, ever so decided, or what commanding

authority on the Constitution ever ruled that the law was unconstitutional?

I admit that no such law as that should be on your statute-books of general application and operation, except in the day of national peril, and that was a day of national peril. There was sedition in the land. The French Minis ter was abroad all through the republic, everywhere attempting to stir up the people to enter into combinations abroad, hurtful and dangerous to the security of the republic. But I pass from that. The gentleman (Mr.' Evarts) referred to Mr. Jefferson coming into power and exhibiting his hostility to the Sedition act of 1798. But he had no sooner got into power than he re-enacted that law as to every officer in your army, and it stands the law of the republic, unchallenged, from that day to this.

I read from the act of 1806, "any officer or soldier who shall use contemptuous or disrespectful words against the President of the United States, against the Vice President thereof, against the Congress of the United States, or against the Chief Magistrate or Legislature of any of the United States in which he may be quartered, if a commi sioned officer, shall be cashiered or otherwise punished as a court martial may direct; and if a non-commissioned officer or soldier, shall suffer such punishment as may be inflicted upon him by the sentence of a court-martial, even unto death." The gentleman read from the Constitution, in the hope, I suppose to show that it was utterly impos sible for the Congress of the United States to inflict pains and penalties by law for seditious utterances, either by the President or anybody else.

If it was competent for Congress, in 1806, to enact that law, it was equally competent for the Congress of 1798 to enact the Sedition law, and by the act of 1801 those seditious utterances made in the District of Columbia are indictable as misdemeanors, whether made by the President or anybody else, and especially when made by any officer charged with the execution of the laws, for, as I read yesterday, the refusal by an officer to do an act required by the law, is, at common law, indictable. An attempt on the part of such officer to procure others to violate a law, is also indictable; and, in general, seditious utterances by an executive officer are always, at the common law, indictable-such as inciting the people to resi tance, inciting an officer of the army to mutiny, in diere gard of the law; and that was the attempt, and that is the language of the President.

But, say counsel, this was his guaranteed right under the Constitution. The freedom of speech is not to be restricted by a law of Congress. How is that answered by the act of 1806, which subjects every soldier and every officer in your army to court-martial for using disrespectful language of the President, of Congress, or his superior officer? The freedom of speech guaranteed by the Constitution to all the people of the United States, and to be protected from any unjust restraint, is that freedom of speech which respects first the rights of the nation itself, which respects next the supremacy of the nation's laws, and which finally respects the rights of every citizen of the Republic.

I believe, too, in that freedom of speech; that is, the freedom of speech to which the learned gentleman from New York referred when he quoted the words of Milton, saying 'Give me the liberty to know, to argue and to utter freel according to conscience-above all liberties." That is the liberty which respects the rights of the nation and the rights of individuals. It is called that virtuous liberty, "a day, an hour of which is worth a whole eternity of bondage." That is your American constitutional liberty, the liberty in defense of which the noblest and the best of our race-men of whom the world was not worthysuffered hunger and thirst, cold and nakednness, the jeer of hate, the frown of power, the gloom of the dungeon, the torture of the wheel, the agony of the faggott, the ignominy of the scaffold and the cross, and by their living and their dying glorified human nature, and attested its claim to immortality; and I stand, Senators, for that li berty. But I stand against that sedition which would disturb the peace of nations, and disturb the repose of men even in their graves.

There is, Senators, but one other point in this accusation which I deem it my duty to discuss further; that is the eleventh article, which alleges specifically the attempt, not the accomplishment of the acts, and which rests on all the evidence which applies to all the other articles preferred against this accused and guilty man. It charges the attempt, by advice, to incite the people to resistance against their own Congress and its laws, by declaring that it was & Congress of only a part of the States; the attempt to prevent the ratification by the Legislatures of several States of the fourteenth article of amendment proposed by the Thirty-ninth Congress, on the same ground that it was not the Congress of the nation, and had no power to propose an article of amendment to the Constitution; the position asserted by the President in his message to Congress, and reasserted in his speech; the attempt to prevent the execution of the Tenure of Office act; the attempt to prevent the execution of the act inaking appropriations for the army, and the attempt to defeat the operation and execution of the act for the better and more efficient government of the Rebel States.

The gentleman from Ohio (Mr. Groesbeck) asserted that the evidence which was introduced to support this last averment in the eleventh article, was evidence of an act done by the President six months or more before the law was passed. The gentleman was entirely right in his dates, but he was altogether wrong in his conclusions. We introduced the telegram to Governor Parsons for no such purpose. We introduced it in order to sustain that averment of the eleventh article, which charges an at