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

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

In the last named year, however, a committee was raised by the Senate, headed by Mr. Benton, and composed of some of the most eminent statesmen of that day, to consider the subject of restraining the power by leg. islation. That committee agreed in the opinion that the practice of dismissing from office was a dangerous violation of the Constitution, which had, in their view, been changed in this regard," very constructive legislation, which was only another name for legislative construction, and reported sundry bills for its correction, not unlike, in some respects, to the present law.

These bills failed, of course, but with the public recogni tion of the new and alarming doctrine which followed the accession of the next Administration, that the public offices, like the plunder of a camp, were the legitimate spoils of the victorious party. The subject was revived in 1835 by the appointment of another committee, embracing the great names of Calhoun, Webster and Seaton, for the same subject. The result of their labor was the introduction of a bill requiring the President, in all cases of removal, to state the reason thereof, which passed the Senate by a vote of 31 to 16, or nearly two-thirds of that body. In the course of the debate on that bill Mr. Webster, whose unsurpassed, and, as I think, unequaled ability as a constitutional lawyer, will be contested by nobody held this eraphatic language:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

even intended to give, and did give a construction to our great charter of freedom, what is to be said of 133 votes to 3. constituting more than three-fourths of the House, and of 35 to 11, or nearly a like proportion of the other, in the maturity of our strength, with a population of nearly forty millions, and under the light of an experience that has proved that even the short period of eighty years was capable of producing what our progenitors supposed to be impossible, even in the long track of time.

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

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

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

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

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

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

The act of 1801, already referred to in connection with the case of Marbury vs. Madison, assigning a tenure of five years absolutely to the officer, involves a manifest departure from it. The several acts of August 14. 1848; March 3. 1849; September, 1850, and May 3, 1853, providing for the appointment of judges in the Territories of Oregon, MinneBota, New Mexico, Kansas and Nebraska, and fixing the term of office at four years absolutely, are all within the same category. The act of 25th February, 1863, followed by that of June 3, 1864, establishing the office of Controller of the Currency, defining his term and making him irremovable, except by and with the advice and consent of the

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

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

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

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

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

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

PROCEEDINGS OF TUESDAY, APRIL 28.

ments.

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

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

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

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

To the managers-The honorable managers will proceed.

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

There is but one refuge left, and that is in the opinion of what is sometimes called his Cabinet, the trusted coun sellors whom he is pleased to quote as the advisers whom the Constitution and the practice of the government have assigned to him. If all the world has forsaken him, they, at least. were still faithful to the chief whom they so long accompanied, and so largely comforted and encouraged through all his manifold usurpations. It is true that these gentlemen have not been allowed to prove, as they would have desired to do, that maugre, all the reasoning of judges, lawyers and publicists, they are implicitly of the opinion, and so advised the President, that the Tenure-ofOffice law, not being in accordance with his will, was of course, unconstitutional. It inay be guessed, I suppose ithout danger to our cause, that if allowed. they would have proved it.

With large opportunities for information, I have not heard of any occasion where they have ever given any opinion to the President except the one that was wanted by him, or known to be agreeable to his will. If so, I should have been glad to have heard from some of these functionaries on that question. It would have been pleaant to have the witnesses on the stand, at least to disCouse on constitutional law. If the public interest has not suffered, the public curiosity has. at least, been balked by the denial of the high privilege of testimony to the luminous exposition which some of them learned. The band whose training has been so high as to warrant them in denouncing us all the legislators of the nation-as no better than "Constitution tinkers," should have been able to help us with a large defense of the President, as set forth in his voluminous special plea, and elaborated by the argument of his opening counsel, not only that his Cabinet agreed with him in his views as to the law, but that if he has erred, it was under the advice received from those whom the law had placed around him.

It is not shown, however, and was not attempted to be shown, that in regard to the particular offense for which he is now arraigned before you, they are never consulted by him. But to clear this part of the case of all possible Cavil or exception, I feel that it will not be amiss to ask your attention to a few remarks upon the relations of the President with this illegitimate body--this excrescence; this mere fungus, born of decay, which has been compounded in process of time out of the heads of departments, and has shot up within the past four years into the formidable proportions of a directory for the general government of the State.

The first observation that suggests itself is, that this deference to the advice of others proceeds on the hypothesis that the President himself is not responsible, and it is, therefore, at war with the principal theory of the defense, which is that he is the sole responsible head of the Execu tive Department, and must, therefore, ex necessitate, in order to the performance of his appropriate duties, have the undisputed right to control and govern and remove them at his own mere will, as he has just done in the case of Mr. Stanton, a theory which precludes the idea of advice, u the fact that it makes the adviser a slave. But what, then, does the President intend? Does he propose to abandon this line of defense? He cannot do it without surrendering his case.

Is it his purpose, then, to divert us from the track by doubling on his pursuers, and leading them off on a false scent, or does he intend the offer of a vicarious sacritice? Does he think to make mere scapegoats of his counsellors by laying all his multitudinous sins upon their backs? Does he propose to enact the art of another Charles, by surrendering another Strafford to the vengeance of the commons? We must decline to accept the offer. We want no ministerial heads. We do not choose, in the pursuit of fine game, to stop to any ignobler quarry, either on the laud or on the sea. It would be anything but magnanimous in us to take, but would be ignoble in him to offer, the heads of those whom our past Legislature has degra ded into slaves. When Cæsar falls his counsellors will disappear with him; perhaps he thinks, how ever, that nobody is responsible.

But shall we allow him to justify in one breath, the removal of Mr. Stanton, on the grounds that under the law he was Stanton's master, and then, in another, when arraigned for this, to say that he is not responsible for it because he took advice from those who are but mere automatons only in his hands and voice, in the language of his Counsel, and no more than the mere creature of his imperial will. This would be a sad condition indeed for the people of a republic claiming to be free. We can all understand the theory of the British Constitution, "The King can do no wrong." The person of majesty is sacred, but the irresponsibility of the sovereign is beautifully reconsidered with the liberty of the subject, of holding the Ministry responsible, thus laking care he shall get no bad advice from them.

the

But what is to be our condition, with no recourse between the two. Either king or ministry will be not unlike what is said in the touching plaint of the Britons, barbarians drove us to the sea, and the sea drove us back again to the barbarians." But who made these men the advisers of the President. Not the Constitution, certainly not the laws, or they would have made them free. Still the Constitution has given him no advisers but the Senate, whose opinions he spurned, because he cannot get from it the advice he wants, and would obtain, no doubt, if it were reduced to the condition of that of Imperial Rome. All it proves in regard to the heads of department is that he may require the opinion in writing of each of them upon any subject relating to the duties of his own special office, and no more.

He cannot

re

quire it as to the other matters, and by the Strongest implication, it was not intended that he should not take it on any matter outside of their own respective ices and duties. He has undoubtedly the privilege which belongs to other men, of seoking for advice whereever he may want it; but if he is wise, and would be honestly as he does not wish to be advised, he will go to those who are in a condition to tell him the truth, without the risk of being turned out of office, as Mr. Stanton has been, for doing so. No tyrant who has held the lives of those around him in his hands has ever enjoyed the coungels of any but minions and sycophants. If it had been the purpose of the framers of the Constitution to provide a counsel for the President, they would have looked to it that he was not to be surrounded with creatures such as these.

But then it is said that the practice of holding Cabinet

meetings was inaugurated by President Washington, and has since continued without interruption. It is unques tionable that he did not take the opinions in writing of the heads of departments on bills that were submitted to him in the constitutional way; and it is not unlikely that he may have consulted them as to appointments and other matters of Executive duty that involved anything like discretion. They may have met occa-ionally in after times upon the special invitation of the Presdent. It was not, however, I think, until the period of the war, when the labors and responsibilities of the President as Commander-in-Chief of the Armies were so largely mag nified as to make it necessary that he should take counsel from day to day, that they chrystalized into their fairest form as a sort of institution of State, and not till the ae cession of Andrew Johnson that they began to do the work of Congress, in a condition of peril, by legislating for the restoration of the Rebel States.

From that time forward, through all that long and unhappy interregnum, of the law-making power, when the telegraph was waiting upon the "fiat" of those mysterions councils, that dark tribunal which was erecting States b proclamation, taxing the people, and surrendering up the public property to keep them on their feet, and exercising a supervisory power over the laws, had apparently taken ti.. place of the Congress of the nation, with power. True, Congress has ever claimed to say that the acts of this cabal, which looked like some dark conclave, and conspirators plotting against the liberties of the people were the results of free consultation, and comparison of views is to speak without knowledge. I, for one, mis trusted them from the beginning, and if I may be excused the egotism, it was under the inspiration of the conviction that they could not have held together so long under an imperious self-willed man like the present Executive, without a thorough submission to all his views, that I was moved to introduce and urge, as I did, through great di couragements, but, thank God, successfully, the amend ment to the Tenure of Office bill that brings about this conflict. It has come sooner than I expected, but not too. soon to vindicate, by its timely rescue of the most im portant of the departments of the government from the grasp of the President-the wisdom of a measure which, if it had been the law at the time of Mr. Johnson's a0 cession, would, in my humble judgment, have set ils policy aside, and made his resistance to the will of the people, and its project of governing the nation without a Congress impossible. The veil has been lifted since the passage of the law, and those who wish now read in let ters of living light the great fact that, during the progress of all this usurpation that has convulsed the nation and kept the South in anarchy for four long years, there was scarce a ripple of dissent to move the stagnant surface of those law-making and law-breaking cabals-those mere beds of justice, who, in accordance with the theory of the President himself, had but one will, that reigned un disputed and supreme.

To insist, then, that any apology is to be found for the delinquincies of the President in the advice of a Cabinet where a difference of opinion was considered treason to the head and loyalty to law, instead of to the will of the President, punished by dismissal, is, it seems to me, on his part, the very climax of effrontery. What adequate cause does the President assign for the removal of Mr. Stanton? His counsel promised us in the opening that they would exhibit reasons to show that it was impossible to allow him to continue to hold the office. They have failed to do it. They have not even attempted it. Was it because he had failed to perform his duties, or in any way offended against the law? The President alleges nothing. of the kind. Was it even, a personal quarrel?

Nothing of this sort is pretended. Either all that we can hear of is that there was "a want of mutual confidence," that "his relations to Mr. Stanton were such as to preclude him for advice," (heaven save the mark!) or that he did not think he could be any longer safely responsible for him. His counsel say that Mr. Stanton is a thorn in his side. Well, so are Grant, Sherman and Sheridan, and so is Congress, and so is every loyal man in the country who ques tions and resists his will. The trouble is, as everybody knows, that Mr. Stanton does not indorse his policy and cannot be relied on to assist him in obstructing the laws of Congress; and that is just the reason why you want this thorn to stick, and, if need be, prick and tester a little, and it must remain there if you should be faithful to the nation and to yourselves. You cannot let Mr. Stanton go, by an acquittal of the President, without surrendering into his hand the very last fortress that you still hold, and now are holding only at the point of the bayonet.

But there is a point just here that seems to have been entirely overlooked by the counsel for the President, to which I desire especially to invite your attention. It seems to have been assumed by them throughout, if it is not, indeed, distinctly asserted in the defendant's pleas, that if they shall be able to succeed in establishing a power of removal in the President, either under the Constitution or the act of 1789 erecting the department now in question, he may exercise that power at his mere will and pleasure without responsibility, and having failed to show any ade quate cause, or, indeed, any cause whatever for the act done, then he stands, of course, on this hypothesis. But is this the law?

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Is there no such thing as an abuse of power, and a just responsibility as its attendants? Was it intended in either case, whether the power flowed from one source or from the other, that it should be exercisable without restraint? That doctrine would be proper in a monarchy, perhaps, but ill suited to the genius of institutions like our own Nor was it the opinion of Mr. Madison, or those who voted

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

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

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

Allow me to say, in answer, that if ignorance of the law, which excuses nobody else, cannot be held to excuse the very last man in the nation, who ought to be allowed to plead it? The testimony shows, I think, that he did not misunderstand its meaning. This suspension of Mr. Stanton, which was an entirely new proceedure, followed, as it was, by his report of the cause to the Senate within twenty days after its next meeting, is evidence that he did understand the law as comprehending that case, and did not intend to violate it if he could, but get rid of the obnoxious officer without resorting to so extreme and hazardous 8 remedy; but the question here is not 80 much whether he ignorantly and innocently mistook the law, as whether in the case referred to of an interference with the powers claimed by him under the Constitution, he may suspend the operation of a law by assuming it to be unconstitutional, and setting it aside until the courts shall have decided that it is a constitutional and valid one. In the case at issue it was not necessary to violate the law, either by contriving to prevent the incumbent from resuming his place under it, or turning him out by violence after he had been duly reinstated by the Senate. If he honestly desired to test its validity in the judicial forum, all that it was necessary for him to do was to issue his order of removal, and to give the officer a notice of that order and its object. If he refused to obey, the next obvious step wouid direct the Attorney-General to Bue out a writ of quo warranto at his own relation This was not his course. This remedy was not summary enough for his uses, as his special counsel, employed after the arrest of his pseudo Secretary Thomas testifies, because i would have allowed the law to reign in the meantime, instead of creating an interregnum of mere will, by which he hoped to supersede it. His project was to seize the place by craft if possible, and by force if necessary, and for this purpose he claims to have made an arrangement with General Grant for its surrender to himself in case the judgment of the Senate should restore the officer, and now taxes him with bad faith to him individually for his obedience to the law. It stands, therefore, upon his own confession that he intended to prevent Mr. Stanton from resuming his position, in which case, as he well knew, and as his Attorney-General knew, and must have informed him, there was no remedy at law for the ejected officer.

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

reets him to support the Constitution and the laws he understande them.

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

"Bright the lamps shone o'er fair women and brave men,
Music ascends with its voluptuous swell,

And eyes looked love to eyes that spake again,
And all went merry as a marriage bell.'

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

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

But lo, a hand is laid, however, on his, which startles
him in the midst of the festivities, like the summons to
"Brunswick's fated chieftan" at the ball in Brussels, the
night before the battle in which he fell. It is the messen
ger of the Senate, who comes to warn him that his enter
prise is an unlawful one. On the following morning he
waited upon by another officer, with a warrant for his ar
rest, for threats which looked to a disturbance of the peace
This double warning chills his martial ardor; visions of
impending trouble pass before his eyes; he sees, or think
he sees, the return of civil strife, the floors of the depart
ment daubbed, perhaps, like those of the royal palace of
Holyrood, with red spots of blood. But above all he feels
that the hand of the law-maker and of the law itself, which
is stronger than the sword, is on him, and he puts up h
weapon and repairs in peaceful guise to take possession of
his conquest. I do not propose, however, to describe the
interview which followed. That will be the task of the
dramatist; it will be sufficient to accompany him back to
the White House, where he receives the order to "go on
and take possession," which he was so unhappily called
back to contradict, and which it was then well under
stood, of course, that he could not obtain, except, by force
and he continues to be recognized 83 Secretary of
War without a portfolio or a care, while he waits, under
the direction of the President, not upon the laws, but
only to see, like Micawber, what may turn up here, and
be inducted and installed, in proper form, as soon as your
previous decision shall have been reversed, and his tit
affirmed by your votes in favor of an acquittal. The idea
of a suit, in which direction no step was ever taken,
now abandoned, if it was ever seriously entertained.

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

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

Nor is it clear by any means, that such a process won have achieved the desired results, with a warrant good upon its face and charging a threatened disturbance of the peace, or an offense against a statute of the United States 1 doubt whether any court would venture to declare the warrant void, or to discharge upon such a hearing on the footing of the unconstitutionality of a law whic had received nearly three-fourths of the votes of bath houses, or indeed of any law whatever, while I do not how even a decision against it could have had either effect of ousting Stanton or putting Thomas in his place, It is enough, however, for the present purpose, that the prisoner was discharged on the motion of his own at torney. The counsel for the President admits that he cal not, in ordinary cases, erect himself into a judicial tribe nal, and decide that a law is unconstitutional, becaus the effect would be that there could never be any judicial

decision upon it, but they insist, as already stated, that where a particular law has cut off a power confided to him by the Constitution, and he alone has the power to raise the questions for the courts; there is no objection to his doing so; and they instance the case of a law to prevent the making of a treaty, or to declare that he shall not exercise the functions of Commander-in-Chief.

It has been already very fully answered that there is no evidence here to show that there was any honest purpose whatever to bring this case into the courts, but that, on the contrary, there is very conclusive testimony to show that he intended to keep it out of them. But had he a right to hold this law a nullity until it was affirmed by another tribunal, whether it was constitutional or not? The Constitution gives to him the power of passing upon the acts of the two houses by returning a bill, with his objections thereto, but if it is afterwards enacted by twothirds of both Houses, it is provided that "it shall become law."

What is a law? It is a rule of civil conduct prescribed by the supreme power of a State? Is there any higher power than the Legislature? Is it essential to the operation of a law that it should have the approval of the judiclary as well as of the President? It is as obligatory on the President as upon the humblest citizen. Nay, it is, if possible, more so. He is its minister. The Constitution requires that he shall take care that it be faithfully executed. It is for others to controvert it if aggrieved in a legal way, but not for him. If they do, however, it is at their peril, as it would be at his, even in the cases put, where it is asked with great emphasis, whether he would be bound to obey?

These cases are extreme ones, but if hard cases are said to make bad precedents it may be equally remarked that extreme cases make bad illustrations. They are, moreover, of express persons. As this is not, it will be time enough to answer them when they arise.

It is not a supposable contingency that two-thirds of both Houses of Congress will flatly violate their oaths in a clear case. Thus far in their history they have passed no law, I believe, that has been adjudged invalid, whenever they shall be prepared to do what is now supposed, Constitutions will be useless; faith will have perished among men; limited and representative governments become impossible.

When it comes to this we shall have revolution, with bloody conflicts in our streets; with a Congress legislating behind bayonets, and that anarchy prevailing everywhere which is already foreshadowed by the aspect of a department of this great government beleagured by the minions af despotism, with its head a prisoner, and armed sentinels pacing before its doors. Who shall say that the President shall be permitted to disobey even a doubtful law, in the assertion of a power that is only implied? If he may, why not also set aside the obnoxious section of the Appropriation bill, upon which he has endeavored unsuccessfully to debauch the officers of the army by teaching them insubordination to the law?

Why not openly disregard your Reconstruction acts, as he will assuredly do if you shall teach him,by your verdict here, that he can do it with impunity. The legal rule is that the presumption is, in every case, in favor of the law, and that is a violent one where none has ever been reVersed The President claims that this presumption shall not stand as against him. If it may not here, it cannot elsewhere. To allow this revolutionary pretension is to dethrone the law and substitute his will. To say that he may hold his office and disregard the law is to proclaim either anarchy or despotism. It is but a short step from one extreme to the other.

To be without law, and to leave the law dependent on a single will, are, in effect, but one and the same thing. The man who can declare what is law and what is not, is already the absolute master of the State. But who is to try this case? The President insists that it belongs to the jurisdiction of the Supreme Court, where, as he untruly says, he endeavored to bring it. So it would, if the question involved were one of merely private right; but in his executive efforts to get into one court, by turning his back apon it, he has stumbled unexpectedly in another.

It is not the one he sought, but it is the one the Constition has provided just for such delinquencies as his, and he cannot decline its cognizance. I beg pardon, he does end you word through the special counsel, whom he sends here with his personol protest, that he might have declined t. on the opinion still entertained by both of them, that his is no Congress, and you are no court of competent urisdiction to bring before you and try a President of the nited States, by the logic of which argument he proves qually. of course, that he is no President. To avoid a bloody coutlict, however, although he has. cen tendered the necessary aid in men, and inasmuch, I ppose, as you have been so indulgent as not to put him o the humiliation of appearing in person at your bar, he aives his sufficient plea to the jurisdiction, and condeends, only out of the abundance of his grace and spirit fforbearance, for which he claims due credit at your ands, to make answer before a tribunal which he might zhtfilly have deferred; but he is here now by attorney what his other counsel have taken great pains to prove you to be a court indeed, although they insist, not very sistently, in almost the same breath, that it has only e functions of a jury. I shall not dispute that question ith them. I am willing to agree that the Senate pro hoc nice is a urt, and that too of extensive jurisdiction over the subt-matter in dispute, from which it follows by a necesy logic, as I think, that it is fully competent to try and eide the whole case for itself, taking such advice as it

thinks proper as to the law, and then rejecting it if it is o satiefactory. If it cannot do this, it is but the shadow and mocking of what the defendant's counsel claim it to be in fact, but by what name soever it may be called, it will solve for the President the problem which he has desired to carry into another tribunal without waiting for any ex traneous opinion.

It has already determined upon the constitutionality of the Tenure of Office law, by enacting it over his obje tions, as it has already passed upon its meaning by its con demnation of act for which he is now to answer at its bar. It will say, too, if I mistake not, that whether con stitutional or not, it will allow no executive officer, and much less the Chief Magistrate of the nation, to assume that it is not so, and set up his own opinion in his place until its previous and well-considered judgment upon the same opinions has been judicially affirmed. But does it make any difference whether Mr. Stanton's case is within the Tenure of Office act or not? Had the Executive the power at any time, either during a session or a recess, to create a vacancy to be filled up by an appointment ad in terim, to continue during his own pleasure; or, if he had could he prolong a vacancy so created beyond the period of six months?

The Constitution provides, and it requires such a prov sion, in view of the general clause which associates tire Senate with the President, and makes their advice and consent necessary in all cases of appointment to authorize it; that he shall have power to fill all vacancies happen ing during the recess by temporary commissions, to expite at the end of the next session, and by a necessary implica tion. Of course he cannot do it in the same way or with out their advice or consent while the Senate is at hand to afford it. The word "happen," as used here, imports acci dent or casualty only, according to the best authorities.

If this is a correct interpretation he cannot, of course, create a vacancy for that purpose during a recess under the Constitution, although he may claim to do so under the law establishing the department, which places the power of removal in his hands. If he does, however, the case then falls within the constitutional provision, and the vacancy thus created must be filled by a commission to expire at the end of the next session. He did create a vacancy in this case, by the suspension, during the recess, which he proceeded to supply by the appointment of General Grant as Secre tary of War, ad interim, at his pleasure, and this he now defends, not under the provisions of the Tenure of Office law, which would have authorized it, and which he expressly repudiates, but upon the footing in the first place, of his constitutional powers. Nothing is clearer, however, than the proposition that there was no authority to do this thing, except what is to be found in the act which he repudiated. There are no laws, and no precedents, so far as I am advised, to justify or excuse it If he may suspend indefinitely, and appoint at pleasure a Secretary ad interim, he may not only change terms of commission, but strip the Senate of all participation in the appointing power.

But then, he says again, that he did this under the an thority also of the act of February 13, 1795, for filling temporary vacancies. The tenor of that act is that in case of a vacancy it shall be lawful for the President, if he deems it necessary, to authorize any person or persons to perform the duties until successor is appointed, or such vacancy is filled, within the proviso, however, that no one vacaney shall be supplied in that manner for a longer term than six months, which proves, of course, that the exigency provided for was only to be a temporary one. We main tain that this act has been repealed by the more recent one of February 13, 1863, which confines the choice of the President to the heads of the other departments.

It is insisted, however, that while the former covers all cases of vacancy, the latter is confined to some particular instances, not including those of removal, or such as may be brought about by aillux of time, and it does not, there fore, operate as a repeal to that extent. Granting this for the sake of the argument to be tried, how is it to apply to a vacancy occurring during the recess without a repeal of the constitutional provision which is intended expressly for just such cases. Was it intended to supersede, and is it to be so interpreted? This will hardly be pretended, if it were even clear that the Legislature had such a power The intent and meaning of the act are so transparent from the context, from the words of tenure, and from the six months limitation, that it is impossible to mistake them or even to doubt that it was designed for merely ac cidental and transient cases that were left unprovided fir in the Constitution. The President's claim would perpe tuate the vacancy by enabling him to refuse to fill or nominate a successor. If it is even true, however, that Ine might have appointed General Grant during the recess under the law of 1795, it is equally clear that he could not continue him in office or protract the vacancy beyond six months, and yet he insisted his Special pleas, in answer to the averment of the absence of the condition of vacancy on the 21st of February, when he appointed General Thomas, which was more than six months after the appointment of General Grant, that there was a continuing vacancy at that time, intending, of course, that the act of the Senate in re fusing to approve his suspension, and his resumption of the duties of the office, were to be treated as of no ao count whatever. From the premises of the President that the Civil Tenure act was invalid on constitutional ground and did not at all embrace that case; his inference of continuing case is undeniable, and his appointment of General Thomas, therefore, entirely unauthorized by the act on which he relics.

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