PROCEEDINGS OF FRIDAY, APRIL 10.

The President pro tem called the Senate to order, Prayer was offered by the Chaplain.

The chair was then vacated for the Chief Justice, and the Court was opened by proclamation in due form.

The managers and members of the House of Representatives were successively announced, and took their places.

The journal of yesterday was read, and in the meantime the galleries had become about half filled.

General Sherman again occupied a seat on the floor. Mr. CURTIS, of the President's counsel, resumed his argument at 12.15.

What with the buzzing conversation of uninterested newspaper correspondents and other sources, and the reporters' remote positions, occasional imperfections may be found in the report.

Mr. Curtis Resumes his Argument.

Mr. CURTIS said:-Mr. Chief Justice-Among the points which I omitted to notice yesterday is one which seems to me of specific importance, and which Induces me to return to it for a few moments. If you will indulge me, I will read a short passage from Satarday's proceedings. In the course of those proceedfugs, Mr. Manager Butler said:

"It will be seen, therefore, Mr. President and Senators, that the President of the United States says in this answer that he suspended Mr. Stanton under the Constitution indefinitely, and at his pleasure, and I propose now, unless it be objected to, to show that that is false under his own hand, and I have his letter to that effect, which if there is no objection, I will read, the signature of which was identified by C. E. Creecy:

Then followed the reading of the letter, which is as followe:-

"EXECUTIVE MANSION, WASHINGTON. D. C., Aug. 14, 1967. Sir:-In compliance with the eighth section of the act of Congress of March 2, 1867, entitled 'an act regulating the tenure of certain civil offices,' you are hereby Botined that on the 12th inst. Hon, Edwin M. Stanton was suspended from office as Secretary of War, and General Ulysses S. Grant authorized and empowered to act as Secretary of War ad interim.

"I am, sir, very respectfully, yours,

"ANDREW JOHNSON. "To Hon. Hugh McCulloch, Secretary of the Treasury." This letter was read to show, under the hand of the President, that when he says in his answer that he has removed Mr. Stanton by virtue of the Tenure of Office act, that statement was a falsehood. Allow me now to read the 8th section of that act:

"That whenever the President shall, without the advice and consent of the Senate, designate, authorize or employ any person to perform the duties of any office, he shall forthwith notify the Secretary of the Treasury thereof, and it shall be the duty of the Secretary of the Treasury thereupon to communicate such notice to all the proper accounting and disbursing officers in his department."

The Senate will perceive that this section has nothing to do with the suspension of an officer, but the purport of the section is that in case the President, without the advice and consent of the Senate, shall, under any circumstances, designate a third person to perform, temporarily, the duties of the office, he is to make a report of that designation to the Secretary of the Treasury, who is to give the necessary information to the accounting officers. The section applies in terms to, and includes all cases it applies to, and includes the designation on account of sickness, or absence, or resignation, or any cause of vacancy, whether temporary or permanent, whether occurring by reason of suspension or a removal; and, therefore, when the President says to the Secretary of the Treasury, "I give you notice that I have designated General Thomas to perform the duties ad interim of Secretary of War," he makes no llusion, by force of that letter, to the manner in which that vacancy occurred; and, therefore, instead of showing, nder the President's town hand, that he has repeated a lehood, it has no reference whatever to the matter. Mr. BUTLER-Will you read the second section, if you ploase. The first clause of the second section?

Mr. CURTIS (reading):-"That when any officer appointed as aforesaid, excepting judges of the United States courts, shall, during the recess of the Senate, be shown by evidence satisfactory to the President." &c.

The President is allowed to suspend such officers. Now, the President states in his answer that he did not act sader it.

Mr. BUTLER That is not reading the section. Mr. CURTIS--I am aware that it is not reading the secMon. It is a very long section. Mr. BUTLER-The first clause of the section is all I ant.

Mr. CURTIS-It allows the President, because of crime er other occasion designated in it, to suspend the officer. The section applies to all occasions. Whether suspensions

under this second section-whether temporary disqualification, sickness, death, resignation-no matter what that cause may be, if for any reason there is a vacancy. he is uthorized to designate a person to supply the office ad interim, of which notice is to be given to the Secretary of the Treasury. Therefore, I repeat, sir, that the subject matter of this eighth section, and the letter which the President wrote in consequence of it, has no reference to the subject of the authority upon which he removed or suspended Mr. Stanton.

I now ask the attention of the Senate to the second ar ticle, and I will begin as I began before by stating what is the substance of this article. I hope the Senate will be able to see now every one of these allegations is contro verted by what is already in the case, and that I shall be enabled to state what we propose to offer by way of proof in respect to each of them. The first substantial allegation in this article is the delivery of the letter of au thority to General Thomas without authority of law; that it was an intentional violation of the Tenure of Office act; that it was an intentional violation of the Constitu tion of the United States, and the delivery of the order fo General Thomas was made with intent to violate that act and the Constitution of the United States. That is the substance of the second article.

Now, the Senate will at once perceive that if the suspension of Mr. Stanton was not a violation of the act in point of fact-or, to state it in other terms, if the case of Mr. Stanton is not within the act, then his suspension or his removal, if he has been actually removed, or a removal which did actually take place, would not be a violation of the act; because if his case is not within the act at all, which does not apply to the case of Mr. Stanton, of course his removal is not in violation of this act.

If Mr. Stanton continued to hold under the commission which he received from President Lincoln, and has continued to hold under the act of 1789, it was no violation of the Tenure of Office act that Mr. Johnson removed or intended to remove Mr. Stanton; and, therefore, the Senate will perceive that it is necessary to come back again, to recur under this article, because it will be found necessary to recur under the whole of the first eight articles, to the inquiry whether Mr. Stanton's case was within the Tenure of Office act; secondly, whether it was so clearly and plainly within that act that it can be attributed to the President as a high misdemeanor, that he considered it as not including that case. But, suppose the case of Mr. Stan ton is within the Tenure of Office act, still the inquiry arises whether the delivering of this letter of authority to General Thomas was a violation of the act. I shall neces sarily ask your careful attention to the general subject matter of this act and the particular provisions contained in it. Senators will remember undoubtedly that this act, as it was finally passed, differed in many particulars from the bill as it was originally introduced.

The law related to two distinct subjects- the one to the subject of removal, the other to the subject of ap pointments to office. It seems that a practice had grown up under the government, that where a person was nominated to the Senate for an office, and when the Senate either did not act upon his nomination or rejected it, it was considered competent for the President, after the adjournment of the Senate, by a temporary com mission to appoint that same person to the same office. That was deemed by a large majority of Senators to be an abuse of power-not an intentional abuse of power. It was a practice, that had prevailed under the government to a very considerable extent. It was not limited to recent years. It had been supported by the opinions of the Attorney-Generals; but still it was esteemed t Senators to be a departure from the spirit of the Constitu tion, and in derogation of the just powers of the Senate in reference to nominations to office. That being so, it will be found on examination of this law that the first and second sections of the act related exclusively to removals from office and to temporary suspensions during a recess of the Senate; whereas, the other sections, to which I shall particularly ask your attention, related exclusively to that other subject of temporary appointments-appointments made to office after the Senate had refused to concur in the nomination of the person appointed.

This law provides that the President shall have power to fill all vacancies which may happen during a recess of the Senate, by reason of death or resignation. It will be remarked that this does not include all cases. It does not include the case of the expiration of a commission, but it includes simply death and resignation during the recess of the Senate. Why this was so I do not know. It is ma nifest that the law does not affect them. In point of fact it does not cover all cases that may arise, even belonging to this general class, to which the section was designed to refer. It provides that the President shall have power to fill all vacancies which may happen during the. recess of the Senate. by reason of death or resignation, by granting commissions which shall expire at the end of the next session thereafter; and if no appointment by and with the advice and consent of the Senate shall be made to such office, during such next session, then such office shall remain in abeyance without any salary, fees or emoluments attached thereto, until the same shall be filled by appointment, by and with the advice and consent of the Senate; and during such time all powers

and

d ties belonging to such office shall be exercised by such other officer as may by law exersise such powers and duties, In case of vacancy in such office, all the offices brought within the provision of a va cancy occurring during the recess of the Senate, and all the filling of that vacancy by the President, are treated as going into abeyance unless the Senate shall have assented

to some nomination before its ladjournment, and that apFlies, as I have said, to the two classes of cases, namely, vacancies happening by reason of death or resignation, but it does not apply to any other vacancy. The next section does not relate to that subject, but to the subject of removal: "Nothing in this act shall be construed to extend the term of any officer," &c.

The fifth section is "that if any person shall, contrary to the provisions of this act, accept any appointinent to or employment in any office, or shall otherwise attempt to hold or exercise any such office or employment, they shall be deemed and declared to be guilty of a high misdemeanor, and upon trial and conviction therefore, shall be punished by a fine not exceeding $10,000 and by imprisonment." What are the provisions of this act in relation to accepting any appointment? They are found in the third section of the act putting some offices into abeyance under similar circumstances, which are described in that section.

If any person does accept an office which is thus put into abeyance, or any emolument or authority in reference to such office, he comes within the penal provisions of the fifth section; but outside of that there is no such thing as accepting an office contrary to the provisions of the act, because the provisions of the act extend no further than to those cases. And so of the next section. Every removal, appointment or employment made, had or exercised contrary to the provisions of this act, &c., shall be deemed and is hereby declared to be a high misdemeanor. The stress of this article does not seem to me to depend at all upon this question of the construction of the law, but upon a totally different matter, which I agree should be fairly and carefully considered.

The allegation in the article is that this letter of authority was given to General Thomas, enabling him to perform the duties of Secretary of War ad interim, without authority of law. That I conceive to be the main inquiry which arises under this article, provided the case of Mr. Stanton and his removal comes under the Tenure of Office act at all. I wish first to bring to the attention of the Senate the act of 1795, which is found in 1 Statutes at Large, p. 450. It is a short act, and I will read the whole of it:

"Be it enacted, &c., That in case of a vacancy in the office of Secretary of State, Secretary of the Treasury, or Secretary of the Department of War, of anv officer in either of said departments who is not appointed by the head of a department, whereby they cannot perform their duties in the said office, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices, until a successor be appointed or each vacancy be filled. Provided, No one vacancy shall be supplied in the manner aforesaid for a longer term than six months."

This act, it has been suggested, may have been repealed by the act of February 20, 1863, which is found in 12 Statutes at Large, page 656. This, also, is a short act, and I will read it:

Be it enacted, &c., That in case of the death, resignation, absence from the seat of government or sickness of the head of any executive department of the government, or of any officer in either of said departments, whose appointment is not in the head of the office, whereby they cannot perform the duties of their respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any other officer of the department, whose appointment is vested in the President, at his discretion, to perform the duties of Baid respective offices until a successor is appointed, or until such absence or inability by sickness shall cease; Provided, that no one vacancy shall be supplied in the inanner aforesaid for a longer term than six months."

Now these acts, as the Senate will perceive, although they may be said in some sense to relate to the same general subject matter, are very different in their provisions, and the latter law contains no express repeal of the carlier law. If, therefore, the latter law operates as a repeal of the older law, it is only by implication. It says, in terms that all acts or parts of acts inconsistent with it are repealed; but the addition of these words adds nothing to its meaning at all. The same inquiry would arise if they were not contained in it, namely: how far is that latter law inconsistent with the provisions of the earlier law?

There are certain rules on the subject which I shall not fatigue the Senate by citing cases to prove, because every lawyer will recognize them. In the first place, there is a rule as to the repeal by implication. As I understand it, the courts go upon the assumption of the principle that if the legislature really intended to repeal the law it would have said so-not that it should necessarily say so, because there are repeals by implication, but the presumption is that if the legislature entertains a clear and fixed intention to repeal a law, it will be likely at least to say so; therefore, the rule is a settled one that repeals by implica tion are not favored by the court. Another rule is, that the repugnancy between the two subjects must be clear. It is not enough that under some circumstances one law may possibly be repugnant to the other; the repugnance must be clear, and if the two laws can stand together, the latter does not operate as a repeal of the former.

If Senators have any desire to refer to the authorities on this subject, they will find a suflicient number of them collected in Sedgwick on statute laws, page 156. Now, there is no repugnance whatsoever, that I can perceive, between these two laws. The act of 1795 applies to all vacancies, however created. The act of 1863 applies only to vacancies temporarily, or otherwise, occasioned by

death or resignation, removale from office, &c. ; expirations of commision are not included in it.

The act of 1795 applies only to vacancies; the act of 1863 applies to temporary absence or sickness. The subject matter, therefore, of the two laws is different There is no inconsistency beween them; they may stand together, each operating on the case to which it applies, and, therefore, I submit that, in the strictest view that can be taken of this subject, and which may be ultimately taken of it. it is not practicable to maintain that the law of 1863 repeals alto gether the act of 1795; but whether it did or not, I state here what I have so frequently had occasion to state be fore, that it is a fair question:-Is it a crime to be on one side of this question, and not on the other? Is it a high misdemeanor to believe that a certain view, taken as to repeal of the earlier view by the latter one, is a sound view? I submit that that would be altogether too strin gent a rule even for the honorable managers themselves and they do not, and the House of Representatives does not contend, for any such rule. The House puts it on the ground that there was a wilfull intention to give this letter with authority of law. Not that it was a mistaken one not that it was one which, after dué consideration, law yers might differ about, but that it was a willful intention to act without authority. That I submit from the nature of the case, cannot be made to appear.

The next allegation to which I desire to call attention a contained in this article, is that the giving of this letter to General Thomas during the session of the Senate was s violation of the Constitution of the United States, and to that I will desire your attentive consideration. The Constitution, as you are well aware, has provided for two modes of fill ing offices. The one is a temporary commission during the recess of the Senate, when a vacancy happens during the recess, and the other is by appointment, with aud by the advice and consent of the Senate, followed by a commi sion by the President; but it very early became apparent to those who administrated the government that cases might and would occur to which neither of the modes pro vided by the Constitution could be promptly and conveniently applied.

Cases, for instance, of the temporary absence of the especially heads of a department, which department, during the recess of Congress, must, for the public interest, continue to be administered; cases of sickness, or cases of resignation or removal, where the President was not in the condition immediately to make a nomination to fill the office, or even to issue a commission, and, therefore, it became necessary, by legislation, to supply those defects which existed, notwithstanding those two provisions of the Constitution.

Accordingly, beginning in 1792, there will be found to be a series of acts on that subject, the filling of vacancies by temporary appointment, or by ad interim appointment The counsel in this connection referred to several acts, from the act of 1792 to the act of February 20, 1863, and continued:-The Senate will, perceive what difficulties these laws were designed to meet. The difficulty was the occur ence of some sudden vacancies in office, or of some sudden inability, on the part of the officer to perform his duties, and the intention of each of these laws was to make provision so that, notwithstanding this vacancy, or this temporary disability, the duties of the office would still be discharged. That was the purpose of these laws. It is apparent that these temporary vacancies are not as liable to occur during the session of the Senate as they are daring the vacations, and that it is just as necessary to have a set of legislative provisions to enable the President to carry on the public service during the session of the Sen ate as it is to have the same set of provisions during the vacation.

Accordingly, it will be found, by looking into these laws, that they make no distinction whatsoever between the sessions of the Senate and the vacations of the Senate in reference to these temporary appointments whenever the vacancy shall occur. Is the language of the statute "whenever there shall be a death or a resignation or an absence or a sickness?" The law applies when the occurrence takes place which gives rise to the event which the law contemplates; and the particular time when it occurs is of no particular consequence in itself, and is admitted by the law as of no consequence.,

In accordance with that, it has been the uniform, certain and frequent practice of the government from its very earliest days, as I am instructed, we shall be able to prove not in one or two instances, but in a great number of in stances; the honorable managers themselves produced, the other day, a schedule of temporary appointments, during the sessions of the Senate, of inferior officers of depart ments, to perform temporarily the duties of heads of de partments, and those instances run on all fours with the cases of removals or suspensions of officers.

Take the case, for instance, of Mr. Floyd, whom I ab luded to yesterday. Mr. Floyd went out of office; his chief clerk was a person in sympathy with him, and under his control. If the third section of the act of 1789 was al lowed to operate, the control of the War Department went went into the hands of that chief clerk. The Senate was in session; it would not answer to have the War Depart ment in that condition one hour, and Mr. Buchanan sent to the post office and took the Postmaster-General into the War Department, and put it into his charge.

There were then in this body & suthicient number of persons to look after a matter of that sort if they felt An interest in it; and accordingly, they passed a resolve inquiring of President Buchanan by what authority he had made an appoiutment of a person to take charge of the War Department without the consent of the Senate.