the Cabinet was ever consulted about the matter; that being waived by the counsel, and this not being an official act, how could it be evidence? He (Mr. Butler) was willing to admit that at the time the President had no idea of using force, because he though. Stanton was already out quietly, but what had he meant to do in case Stanton should resist. General Sher. man had let out that something was said between him and the President about force, though he could not remember what it was. They might admit this as of little moment but if so, they must admit all declarations to other members of the Cabinet, or involve themseles in inconsistency. He was still unable to distinguish any difference between the declarations of Perrine and those to Secretary Welles, other than that one was a Cabinet officer and the other was not. While it was admitted that this was not made for the purpose of asking advice, they preferred to put what the President thought he would then do. Mr. EVARTS could not consent that the testimony of General Sherman should be misinterpreted or misconceived. It was that, when something was said about force, the President said there will be no force, Stanton will retire, and that all the allusion to force was originated by the witness himself, the President having conveyed to his mind that force was to be used. The Chief Justice expressed the opinion that the evidence was admi-sible as a part of a transaction that forms the basis of several of the articles, and that it was proper to aid in forming an enlightened judgment in regard to the intent of the President. Some Senators called for a vote. Mr. CONNESS called for the reading of the written offer of the counsel in relation to the testimony of Parrine yesterday. and it was read. Senator SUMNER-What was the vote of the Senate on that? The Secretary read the vote as yeas, 9; nays, 37. Senator TRUMBULL-I would like to know how the Senator from Massachusetts (Mr. Sumner) voted upon it. (Laughter). Senator HOWARD put the following question in writing to the counsel for the President : "In what way does the evidence which the counsel for the accused now offer meet any of the allegations contained in the articles of impeachment? How doth it affect the gravamen of any one of the charges?" Mr. EVARTSsaid-It is enough to say, probably, in answer to the question, that it bears upon the question of the intent with which the act charged was done. It bears upon the conspiracy articles, and it bears upon the eleventh article. Mr. WILSON, one of the managers-The question was asked by a member of the Senate as to the date of the eonversation between the President and Mr. Perrine. It was the twenty-first. The Chief Justice-The Chief Justice will state how the question presents itself to his mind. The question on which the Senate ruled yesterday was in reference to the removal of Mr. Stanton, as the Chief Justice understood it, but in reference to the immediate appointment of a successor, by the President sending the name of Mr. Ewing. The question to-day relates to the intention of the President in the removal of Mr. Stanton, and it relates to a communication made to his Cabinet after the departmental business had closed, and before the Cabinet had separated. The Chief Justice is clearly (speaking with emphasis) of opinion that that is a part of the transac tion, and that it is entirely proper to take this evidence into consideration, as showing the intent in the Presi dent's mind. The Senate proceeded to vote upon the question of admitting the testimony, and the vote resulted-yeas, 25; nays, 23, as follows: YEAS.-Messrs, Anthony. Bayard, Buckalew, Cole, Conkling, Corbett, Davis, Dixon, Doolittle, Fessenden, Fowler, Grimes, Hendricks, Johnson, McCreery, Morton, Patterson (Tenn.), Ross, Saulsbury, Sherman. Sprague, Sumner. Trumbull, Van Winkle, Vickers, Willey-26. NAYS.--Messrs. Cameron, Cattell, Conness, Cragin, Drake, Edmunds, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill (Me.), Morril (Vt.), Patterson (N. H.), Pomeroy, Ramsey, Stewart, Thayer, Tipton, Williams, Wilson, and Yates-23. So the evidence was admitted, and the examination of witness was continued. Mr. EVARTS to the witness-Please state what communication was made by the President to the Cabinet on the subject of the removal of Mr. Stanton and of the ap-. pointment of General Thomas, and what passed at that time? Witness-After the departmental duties had been disposed of, the President remarked that before the Cabinet separated it was proper for him to say that he had removed Mr. Stanton and appointed the Adjutant-General, Lorenzo Thomas. Secretary of War ad interim; I asked him whether General Thomas was in possession, and the President said he was; I inquired whether Senator HOWARD rose and complained that it was impossible to hear the witness. The Chief Justice remarked that there was too much conversation in the Chamber. Witness continued-I inquired whether General Thomas was in possession; the President said he was, but that Mr. Stanton required some little time to remove his writings and his papers; I said, or perhaps I asked, "Does Mr. Stanton, then, acquiesce in it?" he said he did as he understood it. Mr. EVARTS-Q. Was it a part of the President's an. swer that all Mr. Stanton required was time to remove his papers? A. The President made that remark when I inquired if General Thomas was in possession. Q. Was the time at which this announcement of the President was made in accordance with the ordinary routine of your meetings as to such subjects? A. It was; the President usually communicated after the Secretaries had got through with the several department duties. Q. Now, as to a matter which he spoke of incidentally, You were there the next meeting? A. I was. Q. While there did you see the appointment of Mr. Ewing? A. I did. Q. Was it made out before you came there or after you came there, or while you were there? A. While I was there. Q. And you then saw it? A. I then saw it; the Attorney-General was there, and said he must be at the Sn preme Court. Q. Does not the Supreme Court meet at eleven o'clock ? A. I think his business was at twelve o'clock. Q. Did you become aware of the passage of the Civil Tenure of Office act, as it is called, at the time it passed Congress? A. I was aware of it. Q. Were you present at any Cabinet meeting at which, after the passage of that act, the act became the subject of consideration? A. I was there on two occasions. Q. Who were present and what was done on the first occasion? A. The first occasion was, I think, on Friday, the 15th day of February, 1867, at the Cabinet meeting Q. Who were present? A. I think all the Cabinet were Q. Was Mr. Stanton there? A. Mr. Stanton was there, I think, on that occasion; the President said that he had two bills about which he wanted to be advised; one of these was Mr. BUTLER (interrupting)-We object to the evidence of what took place there. Mr. EVARTS (o the witness-This Civil Tenure of Office act was the subject of consideration the?n A. It was submitted then. Q. How was it brought to the attention of the Cabinet? A. By the President. Q. As a matter of consideratian for the Cabinet? A. For consultation and for the advice of members of the Cabinet. Q. How did he submit the matter to your consideration? Mr. BUTLER, interrupting-If that involves anything he said, we object. Mr. EVARTS-Yes, it does. Mr. BUTLER-We object to anything which took place in the Cabinet consultation; and in order to have this brought to a point we should like the offer of proof to be in writing. The Chief Justice directed the counsel for the President to put their offer in writing. Mr. EVARTS-We will present the whole matter in writing. Some fifteen minutes were occupied by the counsel in considering and preparing the offering of evidence, during which time the Senators and members on the floor and the spectators in the gallery kept up quite a noisy conversation. The offer being completed was handed to Mr. Butler for examination, and was then read as follows: "We offer to prove that the President, at a meeting of the Cabinet, while the bill was before the President for his approval, laid before the Cabinet the Tenure of Civil Office bill for their consideration and advice to the President, respecting his approval of the bill, and that thereupon the members of the Cabinet then present gave their advice to the President that the bill was unconstitutional, and should be returned to Congress with his objections, and that the duty of preparing a message, setting forth the ob jections to the constitutionality of the bill, was devolved upon Mr. Seward and Mr. Stanton. This to be followed by proof as to what was done by the President and Cabinet up to the time of sending the message by the President, Senator SHERMAN--Does that offer give the date? Mr. EVARTS-It gives the date as during the time when the bill was before the President. Senator CONKLING-During the ten (10) days? Mr. EVARTS We omitted the precise date, because there were two occasions. Mr. BUTLER-I assume, Mr. President and Senators, for the purpose of this objection, that the time to which this offer of proof refers is during the ten days between the first passage of the bill by the two Honses, and the time of its return with the objections of the President for reconsideration. I only propose to open the debate in order that my learned friends may be possessed, so far as I may be able to possess them, of the grounds of our objection. The question is whether, after a law has been passed, under the due forms of law, the President can show what his opinions were and what the opinions of his Cabinet were before it was passed, as a justification for refusing to obey it and execute it. I venture to say to you, Senators that heretofore the struggle has been on the trial of impeachment whether the king's order should sustain the minister; and I was gomewhat sharply reminded how familiar it was to everybody that the king can do no wrong in the eye of the British Constitution. and that, therefore, the minister was responsible. But the question which I brought to your attention in the struggle in impeachments in former times, was whether a king, not being considered able to do any wrong, when he gave an express order or advice to a minister, could shield the minister in the British Parliament. In Earl Danby's case it was decided that it could not. He produced for his justification the order of the king. That decision was thought to be a great point. Now, the proposition is, we have got a king, who is respon Bible if we can have the ministers to shield him? That is the proposition, whether the advice of the cabinet can shield the king. In other words, whether the Constitution has placed those heads of the departments around him. as aids or shields-that is the question? Because if that can be done, then the question of impeachment is ended in this country for any breach of law, for no President there will be who cannot find subservient Cabinet Ministers to advise him as he wants to be advised, especially so if the Senate settle the proposition here, that these Cabinet Ministers are dependant upon his will, and that he cannot be restrained by law from removing them. He told the Senate in his message, that if Mr. Stanton had told him that he thought the law. was constitutional, he would have removed him before it went into effect. If the President has that power, any President can find a Cabinet subservient enough to give him advice, and if that advice can shield him, there is the end of impeachment. Mr. CURTIS-We would like to understand to what message the honorable manager is referring. Mr. BUTLER-I was referring to the message of December 12, 1858, in which this language is used in substance, but I will take care that the exact quotation appears in my remarks:-That if Mr. Stanton informed him that he be lieved the law constitutional, he would have taken care to have removed him before its going into operation; or words to that effect, I say that if that unlimited power can be held by the President, then he will always defend himself by his Cabinet. Let us look at it in the light of another great tribunal, whom you, Mr. President, may be called upon to try some time or another (alluding to Jefferson Davis.), I have no doubt that he had a Cabinet around him by whose advice he could defend himself for most of the treason he has committed. Let us take another view. I have had gentlemen say to me on this question, "would you not allow a military commader who should either give battle or forbear a battle to show that he called a council of his officers, and to show what their advice was, so as to justify him in the case of his refusal to give battle or his giving battle imprudently?" To that, I mean to answer that I would do so, but I would make a wide distinction; I would not let any general call around him his start officers and those depending upon his breath for their offical existence, and allow him to show their opinions as the authority for his acts; I do not, as I have stated, propose by any means to argue this case; I proposed simply, when I arose to open the proposition, and I desire now to put in a single authority as a justification for what I have had the honor to say, that Jefferson thought it the better opinion that the constitutional right of the Cabinet was to give opinion in writing; I read on this subject from note 3, section 1438, of the second volume of "Story on the Constitution." The note is, in substance, that Mr. Jefferson has informed us that, in Washington's administration, on mea. Bures of difficulty a consultation was held with the heads of the departinents, either assembled or taking their opinions separately in conversation or in writing; that in his own Administration he follows the practice of assembling the heads of the departments in Cabinet council, but that he thinks the course of requiring separate opinions in writing from the respective heads of departments as more strictly within the spirit of the Constitution. I have here, in the third volume of Adams' Works, with an appendix, an opinion of Mr. Jefferson, furnished to General Washington. on the question of Washington's right to appoint ambassadore, or rather to fix the grade of ambassadors, the right to appoint being in the Constitu tion, or whether the Senate had a right to negative that grade so fixed by the President. There is an example of one of the opinions that President Washington required of his Secretary of State as early as April 24, 1790, on this very question to appoint to office. We have it now, to be seen and read, whereas, if it had not been for trial, we never should have known the opinion of the Secretary of the Navy was on this great constitutional question. In conclusion, Mr. Butler referred to the President's message of Deqember 12, 1867, containing the following clause:-"If any of the gentlemen (meaning his Cabinet ministers) had then stated to me that he would avail himself of the provisions of that bill, in case it became a law, I should not have hesitated a moment as to his removal," Mr. EVARTS-The point of the President's statement was that there was a concurrence of all the Secretaries who were appointed by Mr. Lincoln that they were not within the law, or otherwise he would have had Cabinet ministers of his own appointment. The question, as stated by the honorable manager, is whether the President can show his opinion and the advice of his Cabinet as to the constitutionality of a law as a justification of his refusal to obey the law. This is the manager's proposition. Now, Mr. Chiet Justice and Senatore, this involves, more or less, the general merits of the case, as they have been necessarily anticipated somewhat by incidental arguments but we did not propose to occupy your time with preliminary discussions of what must form a very large and important part of the final considerations to be disposed of in this case. It is enough, in reference to questions of evi dence when it is introduced in a trial, that it shall be apparent that the premises, both of fact and of law, are necessary to the introduction of evidence trustworthy, and to be used and applied according to the theory of law and facts. Now, the proposition in this matter on behalf of the managers may be stated briefly thus:-If what was done! by the President on the 21st of February in reference to the Civil Tenure of Office act, in the writing out and de livery of these two orders, one calling on Mr. Stantoa to surrender the office, and the other directing General Thomas to take charge of the surrendered office-if these two papers were a consummate crime, then the law im parts an intent to do the thing done, and so to commit the crime, and that all else is inapplicable within the law of an impeachment. That is one view put forward by the managers. It will be for you to determine hereafter whether the violation of a statute, however complete, is necessarily a high crime and mis-lemeanor, within the meaning of the Constitn tion, for which this remedy of impeachment may be sought and may carry its punishment. So, too, is not to be forgotten that in the matter of defense, all the circumstances of intent, and deliberation, and inquiry, and pur suit of duty on the part of a great official, to arrive at a determination as to what is his othicial duty in an apparent conflict between the Constitution and the law, form a part of the general issues of impeachment and defense. Now, the answer undoubtedly does set forth and claim that whatever we have done in the premises has been done on the President's judgment of duty under the Constitution of the United Stater, and after due deliberation, responsibility, upright and sincere effort to get all the aid and law on the subject of his duty which was accessible and within his power. One of the most inportant-one of his recognized as among the most im portant of the aids and guides, supports and d fenes which the Chief Magistrate of this country is to have in the opinions of the people at large, in the opinions of the two Houses of Congress, in the opinion even of judicial consideration when a case shall properly come before a court of whether he has followed his duty, or attempted to pursue his duty, is the view that those chief officers of the government under his constitutional right to call upon them for opinions, and under the practice of this govern ment, convened in council for the purpose of arriving at opinions, have given them in reference to the matter of conflict and difficulty. This offer of evidence here touches that part of the case, and is to supply that portion of the evidence as to what care, what deliberation, what advice attended the step of the President as he proceeded in the stress in which he was placed, and in the very matter in which he was called upon to proceed, not by a voluntary case assumed by himself, but in a matter pressing upon his duty as President, in reference to the conduct of one of the chief departments of the government. That is the range of the issue, and that is the application of this evidence. That it bears upon the issue, and is authentic testimony within the range of the President's right and duty to aid and sup port himself in the performance of his office, cannot be doubted. But it is said that this involves matters of grave constitutional difficulty, and that if this kind of evidence is to be adduced that will be the end of all impeachment trials, for it will be equivalent to the authority claimed under the British Constitution, which denies that the king's order can shield the minister. Whenever any such pretension as that is set forth here-that the order of the Cabinet in council, as to any act of the Pree dent, is to shield him from his amenability under the Constitution to trial and judgment for his acts before this constitutional tribunal-it will be time enough to insist on the argutnent or to attempt an answer. Is there any fear that any such privilege or any such right, as we call it, shall interfere with the due power of this tribunal and the proper responsibility of all other great officers of the government to it, on questions which make up the sum and catalogue of crimes against the State within the general proposition of impeachable offenses? It is impossible that matters of this kind should come into play. In cases of treason or bribery, or offenses in volving turpitude and sinning against the country's webfare, no such matter can properly come in plav. Of course, in some matters of the conduct of foreign affairs, which might by an implication come within the range of trea son, it may be supposed that the constitutional advisers of the President night, by their opinions, support him in the conduct which was made the subject of accusation. But here it will be perceived that the very matter in con troversy must be regarded by the court in determining whether this species of evidence is applicable, and in de termining its applicability, I need not plead before O learned a court, that the question of its weight and force is not to be anticipated, Senator CONNESS moved that the court do now adjourn. Several Senatora-"Oh, no! Let us vote on this proposition." Senator Conness was understood to say that he made the motion at the request of the managers. The motion was agreed to, and the court, at 4'45, að journed until eleven o'clock to-morrow. PROCEEDINGS OF SATURDAY, APRIL 18. The Tenure of Office Act. The first business in court was the offer of the President's counsel to prove that, while the Tenure of Office bill was before the President for approval, he submitted it to his Cabinet, and was advised by them that it was unconstitutional; that Secretaries Seward and Stanton were delegated to prepare a mesBage setting forth his objections to it. Speech of Manager Wilson. Mr. Manager WILSON rose and said:-As this obJection confronts one of the most important questions involved in this case, I wish to present the views of the managers respecting it with such care and exactness as I may be able to command. The respondent now offers to prove, doubtless as a foundation for other Cabinet advice of more recent date, that he was advised by the members of his Cabinet that the act of Congress, upon which rest several of the articles to which he has made answer, to wit: "An act regulating the tenure of certain civil officers," passed March 2. 1867, was and is unconstitutional, and therefore void. That he was so advised he has alleged in his answer. Whether he was so advised or not we hold to be immaterial to this case and irrelevant to the issue joined. The House of Representatives were not to be entrapped in the preparation of their replication by any such cunning device, nor by the kindred one whereby the respondent affirms that he was not bound to execute said act because he believed it to be unconstitutional. The replication says that the House of Representatives do deny each and every averment in said several answers, or either of them, which de-. nies or traverses the acts, intents, crimes or misdemeanors charged against the said Andrew Johnson in the said articles of impeachment, or either of them, and for replication to said auswer do say that said Andrew Johnson, President of the United States, is guilty of the high crimes and misdemeanors mentioned in the said articles, &c. There is no acceptance here of the issue tendered by the respondent, and in support of which he offers the immaterial, incompetent and irrelevant testimony, to which we object. The advice which he may have received, and the belief which he may have formed tonching the constitutionality of such act, cannot be allowed to shield him from the consequences of his criminal acts. Nor can his mistaken view of the Constitution relative to his right to require the opinions of the beads of the several executive departments upon certain questions aid his efforts to escape from the just demands of law. In his answer to the first article, he alleges this respondent had, in pursuance of the Constitution, required the opinion of each principal officer of the executive departments upon this question of constitutional power, and daily had been advised by each of them, including said Mr. Stanton, Secretary for the Department of War, and under the Constitution of the United States this power of removal was lodged by the Constitution in the President of the United States, and that consequently it could be lawfully exercised by him, and the Congress could not deprive him thereof. The respondent found no provision in the Constitution authorizing him to pursue any such course. The Constitution says the President may require the opinion in writing of the principal officer in each of the Executive departments upon any subject relating to the duties of their respective offices-Article 2. Section 2. Not of his office, nor of the legislative department, nor of the judicial department. But when did he require the opinions and receive the advice under cover of which he now seeks to escape? His answer informs us that this all transpired prior to his veto of the bill. Upon those unwritten opinions and that advice he based his message. He commanicated his objections to Congress; they were overruled by both Houses, and the bill was enacted into a law in manner and form as prescribed by the Constitution. He does not say that since the final passage of the act he has been further advised by the principal officer of each of the Executive departments; that he is not bound to enforce it, and if he had done so he would have achieved a result of no possible benefit to himself, but dangerous to his advisers, for it will be borne in mind that the articles charge that he "did unlawfully conspire with one Lorenzo Thomas and with other persons to the House of Representarives unknown." He might have disclosed that the un known persons were the members of his Cabinet. This disclosure must have placed them in jeopardy without diminishing the peril which attends upon his own predicament. It is not dimcult to see that the line of defense to which we have directed the present objection involves the great question of this case, it tends to matters more weighty than a mere resolu tion of the technical offenses which float on the surface of this presentation. Whoever attempts to measure the magnitude of the case by the comparatively insignificant acts which constitute the technical crimes and misdemeanors with which the respondent stands charged will attain a result far short of its true character and be rewarded with a beggardly apprecia tion of the immensity of its real proportions, for above and below and beyond these mere technical offenses, grave as they undoubtedly are, the great question which you are to settle is to be found. It envelopes the whole case and everything pertaining thereto. It is the great circle which bounds the sphere composed of the multitude of questions and is presented for your determination. The respondent is arraigned for a violation of and a refusal to execute the law. He offers to prove that his Cabinet advised him that a certain bill, presented for his approval, was in violation of the Constitution; that he accepted their advice and vetoed the bill. And upon that and such additional advice as they may have given him, claims the right to resist and defy the provisions of the bill, notwithstanding its enactment into a law by two-thirds of both Houses over his ob jections. In other words, he claims, substantially, that he may determine for himself what laws he will obey and execute, and what laws he will disregard and refuse to enforce. In support of this claim he offers the testimony which, for the time being, is excluded by the objection now under discussion. If I am correct in this, then I was not mistaken when I asserted that this objection confronts one of the most important questions involved in this case. It may be said that this testimony is offered merely to disprove the intent alleged and charged in the articles, but it goes beyond this, and reaches the main question, as will clearly appear to the mind of any one who will read with care the answer to the first article. The testimony is improper for any purpose and in every view of the case. The Execntive Power. The Constitution of the United States, Article II, section 1, provides that "The executive power should be vested in a President of the United States of America." The peroffice is the respondent, who stands at your bar to-day son at present exercising the functions of the executive charged with the commission of high crimes and misde meanors in office. Before he entered upen the discharge of the duties devolved on him as President, he took and subscribed the constitutionally prescribed oath of office in fully execute the office of President of the United States words, as follows:-"I do solemnly swear that I will faithand will, to the best of my ability, preserve, protect and defend the Constitution of the United States.' The oath covers every part of the Constitution, imposes the duty of observing every action and clause thereof, and includes the distribution of powers therein made. The powers embraced and distributed are legislative, executive and judicial. Of the first, the Constitution declares that all legislative power herein granted, shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives (Article one, section The will of the Legislative Departinent is made known by one). This includes the entire range of legislative action. sions of the legislative will, the Constitution says:-"Every the terms of the bills which it may pass. Of these expres bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States, and if he approve he shall sign it, but if not, he shall return it to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it." "If, after such reconsideration, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall be likewise reconsidered; and if approved by two-thirds of that House, it shall become a law."-Article 1, section Thus laws are made, but laws cannot execute themselves. However wise, just and necessary they may be, they are lifeless declarations of the legislative will until clothed with the power of action by other departments of the go vernment. The builders of our Constitution understood with great exactness the philosophy of government, and provided for every contingency. They knew that laws, to law could not perform its proper office in the absence of be effective, must be executed; that the best and purest executive power; therefore, they created that power, and vested it in a President of the United States. To insure due execution of the power, they imposed the duty of taking and subscribing the oath above quoted on every person elected to the Presidential office, and declared he should comply with the conditions before he enters on the execution of his office. Chief among the executive duties imposed by the Constitution and secured by the oath is the one contained in the injunction that the President shall take care that the laws be faithfully executedAct 2, section 3. What laws? Those which may have been passed by the Legislative Department in manner and form as declared by that section of the Constitution heretotore recited. The President is clothed with no discretion in this regard. Whatever is declared by the legislative power to be the law the President is bound to execute. By his power to veto a bill passed by both houses of Congress he may challenge the legislative will, but if he be qverruled by the two-thirds voice of the houses, he must respect the decision and execute the law which that conEtitutional voice has spoken into existence. If this be not true then the Executive power is superior to the legislative power. If the Executive will may declare what is and what is not law, why is a legislative department established at all? Only to impose on the President the constitutional obligation to take care that the laws be faithfully executed. If he may determine what acts are and what are not law; it is absurd to say that he has any discretion in this regard; he must execute the law. The great object of the Executive Department is to accomplish this purpose, and without it, be the form of government whatever it may, it will be utterly worthless for offense or defense; for the redress of grievances, or the protection of rights for the happiness or good order, or safety of the peopleStory on the Constitution, vol. 2, 6419; De Tocqueville, in his work on Democracy in America, in opening the chapter on Executive power, very truly remarks, that "the American Legislature undertook a difficult task in attempting to create an executive power dependent on a majority of the people, and nevertheless sufficiently strong to act without restraint in its own power. "It was indispensable to the maintenance of the republican form of government that the representation of the Executive power should be subject to the will of the nation." Vol. 1, p. 128. The task was a difficult one, but the great minds from which our Constitution sprung were equal to its seveest demands. They created an executive power strong enough to execute the will of the nation, and yet sufficiently weak to be controlled by that will. They knew that power will intoxicate the best of hearts as wine the strongest heads, and, therefore, they surrounded the Executive agent with such proper restraint and limitation as would confine him to the boundaries prescribed by the national will, or crush him by its power if he stepped beyond. The plan adopted was most perfect. It created the Executive power, provided for the selection of the person to be intrusted with its exercise, determined the restraints and limitations which should rest upon, guide and control him, and out of abundant caution decreed that the President **** of the United States shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors. It is preposterous for the respondent to attempt to defend himself against the corrective power of this grand remedy by interposing the opinions or advice of the principal officers of the Executive Department, either as to the body of his offense or the intent with which he committed it. His highest duty is to "take care that the laws be faithfully executed," and if he fail in this particular he must fail in all, and anarchy will usurp the throne of order. The laws are but expressions of the national will, which can be made known only through the enactments of the Legislative Department of the government. A criminal failure to execute that will, and every wilful failure, no matter what its inducement may be, is criminal; may justly call into action the remedial power of impeachment. This power is, by the express terms of the Constitution, confided to one branch of the Legislative Department, in these words: "The House of Representatives * * shall have the sole power of impeachment." Article 1, section 2. This lodgment of the most delicate power known to the Constitution is most wire and proper, because of the frequency with which those who may exercise, are called to account for their conduct at the bar of the people, and this is the check balanced against a possible abuse of the power, and it has been most effectual; but the visdom which fashioned our Constitution did not stop here. It next declared that the Senate shall have the power to try all impeachments.-Article I. section 3. In the theory of our Constitution, the Senate_represents the States, and, its members being removed froin accountability to the people, are supposed to be beyond the reach of those excitements of passion which so frequently change the complexion of the House of Representativos, and this is the more immediate check provided to balance the possible hasty action of the representatives. Wise, considerate and Bafe to the perfect work of demonstration is this admirable adjustment of the powers with which we are now dealing, The Executive power was created to enforce the will of the nation. The will of the nation appears in the law. Two houses of Congress are intrusted with the power to enact laws, the objections of the Executive to the contrary notwithstanding. Laws thus enacted, as well as those which receive the Executive sanction are the voice of the people. If the person clothed for the time being with the Executive power-the only power which can give effect to the people's will-refuses or neglects to enforce the legislative decrees of the nation or wilfully vio lates the same, what constituent elements of governmental form could be more properly charged with the right to present, and the means to try and remove the contumacious Secretary than those intrusted with the power to enact the laws of the people, guided by the checks and balances to which I have directed the attention of the Senate? What other constituent part of the government could so well understand and adjudge of a perverse and criminal refusal to obey, or wilfull declination to execute the national will, than those joining in its expression? There can be but one answer to these questions. Wisdom and Justice of the Constitution. The provisions of the Constitution are wise and just beyond the power of disputation, in leaving the entire subject of the responsibility of the Executive to faithfully execute his office and enforce the laws to the charge, trial and judgment of the two several branches of the Legisla tive Departinent, regardless of the opinions of Cabinet offi. cers, or of the decisions of the Judicial Department. The respondent has placed himself within this power of impeachment by trampling on the constitutional duty of the Executive, and violating the penal laws of the land. I readily admit that the Constitution of United States is in almost every respect different from the Constitution of Great Britain. The latter is, to a great extent, unwritten, and is, in all regards, subject to such changes as Parlia ment enact. An act of Parliament may change the onstitution of England. In this country the rule is different, The Congress may enact no law in conflict with the Constitution. The enactments of the Parliament become a part of the British Constitution. The will of Parliament is supreme. The will of Congress is subordinate to the written Constitution of the United States, but not to judged of by the Executive Department. But the theory upon which the two Constitutions rest at the present time are almost identical. In both the Executive is made subordinate to the legislative power. The Commons of Eugland tolerate no encroachment on their powers from any other estate of the realm. British Precedent. The Parliament is the supreme power of the kingdom. In spite of the doctrine that the King can do no wrong," and in support of the assertion that the exercise of the Sovereignty rest in the several States, the kindred charac ter of the theories permeating the Constitution may be illustrated by certain parliamentary and ministerial action connected with the American Revolution, and which will well serve the purposes of my argument. On the 27th day of February, 1782. General Conway moved, in the House of Commons. the following resolution:-That it is the opinion of this House that the further prosecution of offensive war on the continent of North America, for the purpose of reducing the revolted colonies to obedience, for the better means of weakening the efforts of this country against her European enemies, dangerously to increase the mutual enmity so fatal to the interests both of Great Britain and America, and by preventing our happy reconcili tion with that country, to frustrate the earnest desire graciously expressed by his Majesty, to restore the blessings of public tranquility."-Hanseard, vol. 22, page 1071. The Commons passed the resolutions; the Ministry did not seem to catch its true spirit, and, therefore, on March the next following, General Conway moved another reso lution in these more express and emphatic terms, to wit:"That after the solemn declaration of the opinion of the House in their humble address presented to his Majesty on Friday last, and his Majesty's assurance of his gracious intention in pursuance of their advice to take such measures as shall appear to his Majesty to be most conclusive to the restoration of harmony between Great Britain and the revolted colonies so essential to the prosperity of both, this House will consider as enemies to his Malesty and this country all those who shall endeavor to frustrate his Majesty's paternal care for the care and happiness of his people, by advising or by any means attempting the farther prosecution of offensive war on the continent of North America, for the purpose of reducing the revolted colonies to obedience by force."-Ibid, page 1089. Lord This resolution led to an animated debate, the temper of the Commons was equal to the directness of the revolution. The Ministry saw this, and understood exactly its meaning. They were disposed to avoid the implied censure, and attempted to show by expressions of a determi nation to observe and respect the opinion of the House as declared in the first resolution that necessity existed for the adoption of the second to effectuate this eud. North, the Premier, in the course of his remarks, said:"The majority of that House had resolved that peace should be made with America, and the answer given from the Throne was so satisfactory that the House had just concurred in a motion to return thanks to his Majesty for making it. Therefore where there could be no ground for coming to a resolution which seemed to doubt the propriety or sincerity of that answer? He was not of the dis position of those who condemned them, and by factious and seditious misrepresentations held them out to the public. In the most odious colors a majority of that House was in parliamentary language the House itself. "It could never make him change a single opinion, yet he bowed to that opinion which was sanctioned by the ma jority. Though he might not be a convert to such opinion, still he held it to be his indispensable duty to obey it, and never once to lose sight of it in the advice which, as a servant of the Crown, he should have occasion to give his Sovereign. It was the right of that House to command; it was the duty of a Minister to obey its resolutions. Parliament had already expressed its desires or its orders, and as it was scarcely possible that a Minister should be found daring and infamous enough to advise his Sovereign to differ in opinion from his Parliament, so he could not think the present motion, which must suppose the existence of such a Minister, could be at all necessary."-Ibid, p. 1090. And again he said:"To the policy of that resolution he could not subscribe, but as Parliament had thought proper to pass it, and as Ministers were bound to obey the orders of Parliament, so he should make that reBolution the standard of his future conduct."-P. 1107. These protestations of Lord North did not arrest the action of the Commons; the resolution passed, and peace followed. It will be observed that these proceedings on the part of the Commons trenched on ground covered by the prerogatives of the Crown, and affected, to some extent, the pow. ers of declaring war, making peace and entering into treaties. Still the minister bowed in obedience to the command of the House, and declared that it was scarcely pos Bible that a minister should be found hardy, daring and infamous enough to advise his sovereign to differ in opinion from his Parliament. This grand action of the Commons and its results disclosed the sublimest feature of the British Constitution. It was made to appear how tho roughly under that Constitution the executive power was dependant on the legislative will of the nation. The doc-trine that the king can do no wrong, while it protected his person, was resolved into an almost perfect subordination of the ministers, through whom the powers of the Crown are exerted to the acts and resolutions of the Parliament, until at last the roar of the lion of England is no more than the voice of the Commons of the realm. So completely had this principle asserted itself in the British Constitution that the veto power had passed into disuse for nearly a century, and it has not been exercised since. into an Executive Department. At the head of this de partment, charged imperatively with the due execution of its great power, appears the President of the United States duly enjoined to take care that the laws be faithfully exe cuted. If the law which he is to execute does not vest him with discretionary powers, he has no election. He must execute the will of the nation as expressed by Congress In no case can he indulge the uncertainties and take the responsibilities of official discretion unless it be conceded to him by express enactment. In all other cases he must follow and enforce the Legislative will. The oflice of executing a law excludes the right to judge of it, and as the Constitution charges the President with the execution of the laws. It thereby declares what is his duty, and gives him no power beyond.-Rowle on the Con stitution, p. 136. Undoubtedly he possesses the right to recommend the enactment and to advise the repeal of laws. He may also, as I have before remarked. obstruct the passage of laws by interposing his veto, but beyond these means of changing, directing or obstructing the na tional will he may not go. When the law-making power has resolved, his opposition must be at an end. That resp lution is a law, and resistance to it is punishable.-Fed ralist, No. 70. The judgment of the individual intrusted for the time being with the executive power of the republic may reject as utterly erroneous the conclusion arrived at by those in vested with the legislative power, but the officer must sub mit aud execute the law. He has no discretion in the premises, except such as the particular statute confers on on him, and even this, he must exercise in obedience to the rules which the act provides. A high officer of the govern ment quce gave to the President of the United States an opinion relative to this doctrine in these words, "To the Chief Executive Magistrate of the Union is confided the solemn duty of seeing the laws faithfully executed. that he may be able to meet this duty with a power equal to its The last instance of its use was in April, 1696, when Wil-performance, he nominates his own subordinates and re liam III refused the royal assent to a "bill to regulate elections of members to serve in Parliament."-Hansard, vol. 5, p. 993. The men who framed our Constitution in 1789 were not untaught of these facts in English history, and they fashioned our government on the plan of the subordination of the executive power to the written law of the land. They did not deny the veto power of the President, but they did declare that it should be subject to a legislative limitation, under the operation of which it might in any given case be overruled by the Congress; and when this happens, and the vetoed bill becomes law, the President must yield the convictions of his own judgment as an individual to the demands of the higher duty of the office and execute the law. His oath binds him to this, and he cannot pursue any other course of action without end vngering the public weal. The Constitution regards him in a double capacity as a citizen and public officer. In the first, it leaves him to the same accountability to the law in its ordinary process as would attach to and apply in case he were a mere civilian or the humblest citizen. while in the latter it subjects him to the power of the House of Representatives to impeach, and that of the Senate to remove him from office if he be guilty of "treason, bribery, or other high crimes and misdemeanors." If the citizen disobey the law, and be convicted thereof, he may be relieved by pardon; but the officer who brings upon himself a conviction or impeachment, cannot receive the Executive clemency, for while it is provided that the President "shall have power to grant reprieves and pardous for offenses against the United States," it is also expressly declared that this power shall not extend to "cases of impeachment."-Article 2, section 2. The same person, if he be a civil officer, may be indicted for a violation of law, and impeached for the same act. If convicted in both cases, he may be pardoned in the former, but in the latter he is beyond the reach of forgiveness. The relief provided for the disobedient citizen is denied to the offending officer. The Law-Making Power. I have already observed that the Constitution of the United States distributes the powers of the government among three departments. First in the order of constitutional arrangement is the Legislative Department, and this, doubtless, because the law-making power is the supreme power of the land, through which the will of the nation is expressed. The legislative power, in other words the law-making power, is vested in a Congress of the United States." The acts of Congress constitute the mu nicipal power of the Republic. Municipal law is a rule of action prescribed by the supreme power of a State, commanding what is right and prohibiting what is wrong.Blackstone, page 44. The supreme power of a State is that which is the highest in authority; and, therefore, it was proper that the Constitution should name first the legislative department in the distribution of powers, as through it alone the State can speak. Its voice is the law; the rule of action to be respected and obeyed by every person subject to its direction or amenable to its requirementts. Executive Department. Next in the order of its distribution of powers the Constitution names the Executive Department. This is proper and logical for the will, the law of the nation, cannot act except through agents or instrumentalities charged with its execution, The Congress can enact a law, but cannot execute it; it can express the will of the nation, but some other agencies are required to give it effect. The : Constitution resolves those agencies and instrumentalities moves them at his pleasure." This opinion was given prior to the passage of the act of March 2, 1867, which requires the concurrence of the Sen ate in removals from office, which, while denying to the Senate the power of absolute removal, concedes to him the power to suspend officers, and to supply their places tem porarily. For the same reason the land and naval forces are under his orders, as their commander-in-chief; but his is to be used only in the manner prescribed by the gislative Department, He cannot accomplish a legal purpose by illegal means, or break the law's himself to pre vent them from being violated by others. The acts of Congress sometimes give the President a broad discretion in the use of the meaus by which they are to be executed, and sometimes limit his power, so that he can exercise it only in a certain prescribed manner. Where the law di rects a thing to be done without saying how, that implies the power to use such means as may be necessary and proper to accomplish the end of the Legislature; but where the means of performing a duty is pointed out by statute, the exclusive mode and no other can be followed. No Common Law. The United States have no common law to fall back upon when the written law is defective. If, therefore, an act of Congress declares that a certain thing shall be done by a particular officer, it cannot be doneby a different officer The agency which the law furmi-hes for its own execntion must be used to the exclusion of all others.-Opinion of Attorney-General Black, November 20. 1860. Will This is a very clear statement of the doctrine which I have been endeavoring to enforce, and on which the pecu liar branch of this case now commanding our attention rests. If we drift away from it we unsettle the very foundation of the government and endanger their stability to a degree which may well alarm the most peaceful mind and appal the most courageous. A de parture from this view of the character of the Executive power, and from the nature of the duty and obligation resting upon the officer charged therewith, would aun round this nation with its most fearful proportions and of unparalleled magnitude. Such a departure would not only justify the respondent in his refusal to obey and execute the law, but also approve his usurpation of the ju dicial powers. When he resolved that he would not ob serve the Legislature's will, because, in his judgment it did not conform to the provisions of the Constitution of the United States touching the subjects embraced in the arti cles of impeachment on which he is now being tried a your bar. Concede this to him, and when and where may we look for the end? to what result shall we arrive? it naturally and inevitably lead to a consolidation of the several powers of the government in the Executive Depart ment, and would this be the end? Would it not rather be the beginning? If the President may defy and usurp the Legislative and Judicial De partments of the government, as his caprices OF the advices of his Cabinet may incline him, why may not his subordinate, each for himself, and touching his own sphere of action determined how far the directions of his superior accord with the Constitution of the United States, and reject and refuse to obey all that comes short of the standard erected by his judgment. It was remarked by the Supreme Court of the United States, in the case of Martin vs. Mott, 13 Wheaton, 19, that "if a superior officer has a right to contest the orders of the President upon his order, doubt as to the exigency referred to by the statute having arisen, it must be equally the right of every inferior soldier, and any act done by any person in furtherance of such orders would subject him to responsibility in a civil suit, in which his defense must finally rest upon his the powers of |