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[While the court and galleries were convulsed with laughter at the expense of the two managers referred to both these gentlemen sat at the table apparently unconcerned and uninterested spectators.]

Mr. EVARTS, continuing, said:

This all comes within the common law of courtesy, in the judgment of the House of Representatives. We have attempted to show that in the President's addresses to the people there was something of irritation, something in the subject, something in the manner of the crowd which excused and explained, if it did not justify, the style of his speeches; and you might suppose that this interchange of debate which I have just read grew out of some subject which was irritating, which was in itself savage and ferocious. But what do you think the subject was that these honorable gentlemen were debating upon? Why it was charity.

A Senator-What?

Mr. EVARTS-Charity-a question of charity to the South; that was the whole staple of debate. "Charity which suffereth all things and is kind." (Laughter.) Charity which envieth not; charity which vaunteth not itself, is not puffed up, and doth not behave itself unseemly seeketh not her own, is not easily provoked; thinketh no evil, rejoiceth not in iniquity, but rejoiceth in the truth; beareth all things, believeth all things, hopeth all things, endureth all things. "Charity never fails." But the apostle adds, what may not be exactly true in regard to the managers, "Tongues may fail." (Laughter.) But now, now to be serious. In a free Republic who will tolerate this fanfaronade about speech-making. Quis tole rit gracchos de seditione querentes? Who will tolerate public orators prating about propriety of speech? Why can we not learn that their estimates of others must proceed on general views, and not vary according to particular passions and prejudice?

When Cromwell, in his career through Ireland in the name of the Parliament, had set himself down before the town of Ross, and summoned it to surrender, the Papist community, exhausted in its resistance, asked to surrender only on condition of freedom of conscience.

Cromwell replied: "As to freedom of conscience, I meddle with no man's conscience, but if you mean by that liberty to celebrate the Mass, I would have you to underEtand that in no place where the power of the Parliament of England prevails, shall that be permitted." So the honorable managers do not complain of freedom of speech, but if any man says that the House of Rep. resentatives is hanging on the verge of the government," we are to understand that in no place where the power of the two Houses of Congress prevails, shall that be permitted, although they meddle with no man's property or freedom of speech? (Laughter.) Now, Mr. Jefferson, who had occasion to give his views about infractions of the freedom of writing when the Sedition law was introduced into the legislation of this country, and, at the same time, to give some notions about the right of the Executive to have an opinion, says, in a letter to Mrs. President Adams, written in 1804:-"I discharged every person under punishment and prosecution under the Sedition law, because I considered and now consider that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship the golden image, and that it was as much my duty to arrest its execution in every State as it would have been to have rescued from the fiery furnace those who should have been cast into it for refusing to worship the image." It was accordingly done in every instance, without asking what the offenders had done, or against whom they had offended, but whether the pains they were suffering were inflicted under the pretended sedition law, and in another letter he replies to some observation as to the freedom of the Executive about the constitutionality of laws:-"You seem to think it devolved on the judges to decide on the validity of the Sedition law, but nothing in the Constitution has given them a right to decide for the Executive more than for the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them; the judges believing the law constitutional had a right to pass sentence of fine or imprisonment, because the power is placedin their hands by the Constitution, but the Execu tive, believing the law to be unconstitutional, was bound to remit the execution of it, because that power had been confided to him by the Constitution, that its co-ordinate branches should be checks upon each other; but the opinion that gives the judges the right to administer what laws are constitutional and what are not, not only for themselves in their own sphere of action, but for the legislative and Executive also in their spheres, would render the judiciary despotic and tyrannical." Now, we have no occasion to assert, and we have not asserted, the right to resort to these extreme opinions, which, it is known Mr. Jefferson entertained. The opinions of Mr. Madison, more temperate but equaly thorough, were to the same effect, and the co-ordinate branches of the government must surrender their co-ordination whenever they allow the past history to be a final bar from renewing or presenting constitutional questions for reconsideration and redetermination, if necessary, even by the Supreme Court; but we have here some questions of the courtesies of the different branches of the government in the severe expression of opinon which Mr. Manager Boutwell indulged in relation to the heads of departments.

What he said is as much severer and as much more degrading to that branch of the government than anything which was said by the President in relation to Congress, as can be imagined. Exception is here taken to the fact,

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that the President called Congress, in a telegram, a set of individuals. Well, we have heard of an old lady, not very well instructed, who got very violent on being called an in dividual, but here we have an imputation in so many words on the heads of departments of this government, that they are serfs, the servants of a master, slaves of an owner and yet, in this very presence, sits the eminent Chief Justice of the United States, and the eminent Senator from Maine (Mr. Fessenden), and the distinguished Senator from Pennsylvania (Mr. Cameron), all of whom have held Cabinet offices which are deprecated and derided, and if I were to estimate the Senators who aspire in the future to hold these degrad ing positions, I am afraid I should not have judges enough here to determine this case. (Laughter). I know this is all extravagance, est modus in rebus, sunt certi denique fines. There is some measure in things; there is some limit to the bounds of debate and discussion. Now, I agree that nothing can be more unfortunate than the language used by the President in the speech made in St. Louis. The difficulty is undoubtedly that the President is not familiar with the graces; he has not been taught at school costly ornament and the studied contrivances of speech but that he speaks right on, and when an article is pre sented in his path he steps right over it. Here is a rheto rical difficulty presented for a man who is not a rhetori cian, as a sort of a metaphorical allusion was made to Judas. Well, now, if anybody attempts to become log cal with a metaphor it will get him into trouble at once (laughter), and that is what the President did. If you look around with the eye of a logician you see that Judas was the betrayer of all goodness, and a man would nath rally say, where is the goodness I have betrayed?

The moment, therefore, that you seek to be logical, by introducing the name of the divinity against whom Judas had thus sinned, there, of course, you produce that offense to our religious sentiment, which otherwise would not have been committed. I am not entirely sure that when you make allowance for the difference between the extempore speech of the President to a mob, and a wris ten, prepared and printed speech to this court by the honorable managers, but there will be some little trace of the same impropriety of that figure of argument which presented Mr. Carpenter to your observation as an inspired painter, whose pencil was guided by the hand of Provi dence, and the appointment of Mr. Edwin M. Stanton to perpetual bliss and Governor Seward to eternal pain. (Laughter.)

But all that is matter of taste, matter of feeling; matter of distinction, matter of judgment. The serious views im pressed upon you with so much force by the counsel for the President who opened this case (Mr. Curtis), and supported by the quotations from Mr. Madison, present this whole subject in its proper view to an American audience. I think that if our newspapers would find some more dis criminating scale of comment on speeches than to make the lowest in the scale able and eloquent, we should have a better state of things in our orations.

Now, our position in reference to the speeches is that the subjects produced in proof should be considered; that words put into the speaker's mouth by the crowd, or called for by their unfriendly or impolite suggestions, are to have their weight and that without apologizing, for no man is bound to apologize before the laws before the court for the exercise of freedom of speech. It may be fairly admitted that it would be well if all men were accomplished rheto ricians and finished logicians, and had a bridle on their tongues. And now, without verging, at all upon the eleventh article, which I leave to the observations of the honorable managers, and leave among themselves to dispose of, I will take up the Emory article.

The Emory article is an offense which began and ended on the 22d of February, and is comprised within a short conversation between the President and a general of our army. I dare say that in the rapid and heated course of events which took impeachment through the House of Representatives, it might have been understood by rumor, uncertain and implied, that there had occurred some kind of military purpose or communication on the part of the President which looked to the use of force. But under the proofs what can we say of it but that the President, under an intimation from Secretary Welles that all the officers were being called away from what, doubtless, is their proper occupation in time of peace, "attendance on levees," and were being summoned, as they were from the halls of revelry at Brussels to the battle of Waterloo, inquired, as it was natural to inquire, when and where this battle was to take place?

The President received it with great indifference; said he did not know about General Emory, and did not seem to care anything about it. But, finally, when Secretary Welles said that it would be better to look into it, the President did look into it, and it ended with a discussion of constitutional law between the President and General Emory, in which the General, reinforced by Mr. Reverdy Johnson, a lawyer, and Mr. Robert J. Walker, a lawyer, actually put down the President entirely. (Laughter.)

Now, if the President ought to be removed from office for that, and a new election ordered for that, you will so determine in judgment, and if any other President can go through four years without doing something worse than that we shall have to be more careful in our preliminary examinations, and in our nominating conventions. I un derstand this article to be hardly insisted on, then comes the conspiracy articles. Now, the consipracy consists in this: It was all commenced and accomplished in writing. "The documents were published; they were immediately promulgated, and that is the conspiracy," if it be one.

It is quite true that the honorable manager who con

ducted with so much force and skill the examination of the witnesses, did succeed in proving that besides the written order handed by the President to General Thomas, there were a few words of attendant conversation, and these were the words, "I wish to uphold the Constitution and the law," and there was an assent of General Thomas to the propriety of that course. But by the power of our profession the learned manager drew from General Thomas the fact that he had never heard these words before when a commission was delivered to him.

He argued that it was not ordinary, and that it carried infinite gravity of suspicion. But what expression is there so innocent that counsel cannot possibly fix suspicion upon? We recollect one very celebrated trial in which "chops and tomato sauce" were made the grounds of getting a verdict for breach of promise of marriage. Chops and mutton sauce do not import a promise of marriage.

There is not the least savor of courtship nor the least flavor of flirtation in chops and tomato sauce (laughter); and so we are told that these men, entering into the conspiracy at mid-day and in writing, meant bloodshed, civil commotion and war. Now, I cannot argue against that. Cardinal Woolsey once said that in political times you can get a jury that will bring in a verdict that Abel killed Cain. That may be, but an American Senate will hardly find in the allusion of the President to the Constitution and the law sufficient evidence to find him guilty of the purpose to produce commotion and civil war. But the conspiracy articles have but a trifling foundation to rest upon.

Here we have a statute passed at the eve of an insurrection, intended to guard the position of an officer of the United States from the intrusion, or intimidation, threats or force to disable the public service. It is, in fact, a reproduction of the first section of the Sedition act of 1798 amplified and extended. It is a law which is improper on its face, for it may include much more than might be called criminal, except in times of public danger; but the idea that a law intended to prevent the Rebels of the South, or the Rebel sympathizers, as they were called in the North, from intimidating officers in the discharge of their public duty, should be wrested to an indictment and trial of a President of the United States, and of an officer of the army on account of a written arrangement of orders to take possession of, and to administer one of the departments of the government against the law, is wresting the statute wholly from its application.

We are all familiar with the illustration which Blackstone gives us of the impropriety of following literally the words of a statute against the necessary implication, where he says that a statute against letting blood in the street, can properly support an indictment against a surgeon for tapping the vein of an apoplectic patient who happened to have fallen on the sidewalk; and there is no greater perversion and contrariety in the effort to make this statute applicable to ordinary and regular proceedings between recognized officers of the United States in the disposition of an office, than there would be in prosecuting the surgeon for relieving the apoplectic patient.

I cannot fully understand, though I carefully attended to it, the point of the argument of the learned manager. Mr. Boutwell, which brought into view the common law of Maryland, as adopted by Congress for the government of the domestic and ordinary affairs of life of the people of this district. It cannot be supposed that the President of the United States, in determining what his power and duties were in regard to giving office, should have looked into the common law of the District of Columbia, because the offices are exercised in the District, On these views presented in the conspiracy articles let us see what the evidence is. There was no preparation or application of force. There was no threat of force authorized on the part of the President, and there was no expectation of force, for he expected and desired nothing inore nor nothing less, than that by the peaceful and reg ular exercise of authority on his part the office would be surrendered. If dissappointed in that, all that the President expected was, that, on that legal basis thus furnished by his official action, there should be an opportunity for taking the judgment of a court of law.

Now there seems to be left nothing but these articles which relate to the ad interim appointment of General Thomas and to the removal of Mr. Stanton. I will consider the ad interim appointment first, leaving it to be assumed for the purpose of examining the possible crime that the office had been vacated and was open to the action of the President.

If the office was full then there would be no appointment by the authority of the President or otherwise, and the whole action of the President was manifestly based on the idea that the office was to be vacated before an ad interim appointment could possibly be made or was intended to take effect. The letter of appointment, or of authority, as it is called in the articles, accompanies the order of removal and was, of course, secondary to the order of removal.

General Thomas was only to take up the duties of the office and discharge them, if the Secretary of War should leave the office in need of such temporary charge. Now I think the only subject we have to consider before we look at the law governing ad interim appointments, is some suggestions as to any difference between ad interim appointments during the session of the Senate and during the recess. The honorable managers, perhaps all of them, (but certainly not the honorable manager, Mr. Boutwell), have contended that the practice of the government in regard to removals from office, covered only the case of removal during the reeess of the Senate.

It will be part of my duty and labor, when I come to consider definitely the question of the removal of Mr.

Stanton, to consider that point but for the purpose of Mr. Thomas' appointment. No such discrimination need to be made. The question of the right of the executive to vacate an office, to be discriminated between the recess of the Senate and its session, arises ont of the constitutional distinction that is taken, to-wit, that the Prosident can only fill offices during the session by the advice and consent of the Senate, and that he can, during the recess, commission by authority, to expire with the next session, but ad interim appointments do not rest upon the Constitution at all. They are not regarded, they never have been regarded, as an exercise of the appointing power in the sense of filling an office. They are regarded as falling within either the executive or the legislative duty of providing for the management of the duties of an office, before an appointment is or can properly be made.

Now in the absence of legislation it might be said that the power belonged to the executive; that part of his duty was when he saw that an accident had vacated an office, or that necessity required the removal of an incumbent so that the laws should be executed, and to provide that the laws should be executed, and to provide that the public service should be temporarily taken up and carried on, it might be fairly determined it was a casus omissus, for which the Constitution had provided a rule, and which the legislation of Congress might properly occupy

As early, therefore, as 1792, provision was made for the temporary occupation of an office. The act of 1792, regulating three of the departments, provided that temporary absences and disabilities of the heads of departments might be met by appointments of a temporary character, to take charge of the office. The act of 1795 provides that in case of the vacancy in an office there should be power in the Executive which would not require him to fill the office by by the constitutional method, but temporarily to provide for the discharge of its duties.

Before considering the act of 1863, which, in terms, covers to a certain extent, but not fully, both of those points, I wish to ask your attention to some circumstances in regard to the passage of that act of 1863. I have said that the eighth section of the act of 1792 provided for the filling temporarily of vacancies. In January, 1863, the President sent to Congress this message, and Senators will perceive that it relates to this particular subject:

"I submit to Congress the expediency of extending to other departments of the government the authority con ferred on the President by the eighth section of the act of May 8, 1792, to appoint a person temporarily to discharge the duties of Secretary of State, Secretary of the Treasury and Secretary of War, in case of death, absence from the seat of government, or sickness."

That is to say, the temporary disability provision of the act of 1863, which covered all the departments then in existence, had never been extended by law to cover the other departments, and the President desired to have that act extended. This message having been referred to the Judiciary Committee, the honorable Senator from Illinois (Mr. Trumbull), chairman of the committee, made, I believe, a very brief report, in which he said:

"There have been several statutes on the subject, and as the law now exists the President has authority temporarily to fill the offices of Secretary of State and Secretary of War from one of the other departments, by calling on somebody to discharge the duties. That other department was the Treasury. We have received a communication from the President of the United States, asking that the law may be extended to the other executive departments of the government, which seems to be proper, and we have framed a bill covering all of these cases, so that whenever there is a removal the President may temporarily devolve the office upon another cabinet officer, and appoint the chief officer of the department for the time being."

There does not seem to have been brought to the notice of the Senate or the honorable Senator the act of 1795. Nothing is said of it, and it would appear as if the whole of the legislation of 1863 proceeded upon the proposition of extending the act of 1792, of disabilities and not of vacancies, except that the honorable Senator uses the phrase "vacancy," and that he speaks of having provided for the occasions that might arise.

Now, the act of 1863 does not cover the case of vacancies, except by resignation. It does not add to the disability which the President had referred to in the case of the resignation which he did not ask to have covered, and which did not need to be covered by new legislation, because the act of 1795 covered it. But this act of 1863 does not cover all the cases of vacancy. It does not cover cases of va tancy by removal, and it does not cover the case of expiracion of office, which is a case of vacancy.

Now, under that additional light, it seems as if the only question presented of guilt on the part of the President in respect to the appointments to office, ad interim, was a question of the final law. The Senators will remark the very limited form in which that question arises. It is not pretended that the appointment of Thomas, if the office was vacant, was a violation of the Civil Tenure act, although, perhaps, it may be so charged in the articles, because an examination of the articles showe that the only appointments, the infringement of which is made penal, is the appointment under the provi sions of this act, as was pointed out by my colleague (Mr. Curtis), which seems to be a subject of argu ment on the other side. That appointment, prohi biting or attempting to prohibit, relates to the infraction of that act as an attempt to fill the offices. I believe that to be a sound construction of the law. Very well, then, supposing that the appointment of General Thomas was not according to law, it is not against

any law that prohibits it, nor against any law that has a penal clause or a criminal qualification upon the act. What would it be if attempted without the authority of the act of 1795? because that would be without the authority of the act of 1863. General Thomas was not an officer under that act.

It would s em that the President had appointed an offiCCT, or attempted to appoint him ad interim, without authority of law. There are abundance of mandatory laws upon the President of the United States. It has never been customary to put a penal clause in them, as in the Civil Tenure act, but on this subject of penal appointment there is no penal clause, and no positive prohibition in any sense, but there would be a definite authority in the President to make the appointment.

What, then, would be the effect? Why General Thomas would not be entitled to discharge the duties. That is all that can be claimed in that regard, but we have insisted and we do now insist that the act of 1795 was in force, and that whether the act of 1795 was or was not, is one of those questions of dubious interpretation of a law upon which no officer, humble or high, can be brought into question for having an opinion one way or the other, and if you proceed upon these articles, if you execute a sentence of removal from office of a President of the United States, you proceed upon an infliction of the highest possible measure of civil condemnation and of the highest possible degree of interference with the constitutionally erected Executive, that it is possible for a court to commit, and you will set it either that the act of 1795 was repealed, or upon the basis that there was not a doubt, or a difficulty, or an interest upon which the President of the United States might make an ad interim appointment for a day, fallor ed by the nomination of a permanent successor.

Truly, indeed, we are getting very nice in our measure and criticism of the absolute obligations and of the absolute duties of the President's functions when we seek to apply the process of impeachment and removal to a question whether an act of Congress requiring the head of a department to keep the place assigned to him or an act of Congress not repealed permitted him to be removed. You certainly do not, in the ordinary affairs of life, rig up a trip hammer to crack a walnut.

At this point, about half-past four, Mr. EVARTS said he would require about an hour to finish, but would yield to a motion to adjourn if desired; and on motion of Mr. HENDERSON, the court adjourned.

1

PROCEEDINGS OF FRIDAY, MAY 1

The court was opened this morning with the usual formalities, in the presence of an audience that indicated an interest well sustained in the proceedings.

Mr. Evarts Resumes.

Mr. EVARTS proceeded at once to finish his task as follows:

Mr. Chief Justice and Senators:-I cannot but feel that notwithstanding the unfailing courtesy, and the long-suf fering patience which for myself and my associates, I have reason cheerfully to acknowledge on the part of the court in the progress of this trial, and in the long argument, you had at the adjournment yesterday reached somewhat of the condition of the feeling of the very celebrated Judge, Lord Ellenborough, who, when a celebrated lawyer, Mr. Curran, had conducted an argument on the subject of contingent remainder, to the ordinary hour of adjournment, and suggested that he would proceed whenever it should be his Lordship's pleasure to hear him, responded:-"The court will hear you, sir, to-morrow, but as to pleasure, that has been long out of the question." (Laughter.)

Be that as it may, duties must be done, however arduous, and certainly your kindness and encouragement relieves me from all unnecessary fatigue in the progress of the cause. We will look for a moment, under the light that I have sought to throw on the subject, a little more particularly at the two acts-the one of 1795, the other of 1863that have relation to this subject of ad interim appointments. The act of 1795 provides that "in case of a vacancy in the offices of the Secretary of State, Secretary of the Treasury, or of the Secretary of the Department of War, or of any officer of either of the said departments whose appointment is not in the heads thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the President of the United States, in case he should think it necessary, to authorize any persons or persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed, or Buch vacancy be filled; provided, that no one vacancy shall be supplied in the manner aforesaid for a longer term than six months."

The act of 1863, which was passed under the suggestion of the President of the United States, not for the extension of the Vacancy act (which I have read) to the other departments, but for the extension of the temporary disability provision of 1792, provides as follows:-"In case of

death, resignation, absence from the seat of government, or sickness of the head of any executive department, or of any officer of said department whose appointment is not in the head thereof, whereby they cannot perform the di ties of their respective oflices, it shall be lawful for the President of the United States, in case he should think it necessary, to authorize"-not any person or persons, as in the act of 1795. but to authorize-"any other of said departments, whose vested appointment is in the President, at his discretion, to perform the duties of the said respective offices until a successor be such appointed, or until absence or disability by sickness shall cease; provided, that no one vacancy shall be supplied in manner aforesaid for a longer term than six months." Now, it will be observed that the eighth section of the act of 1792, to which I now call attention (being found on page (218), provides thus:-"That in case of the death, absence from the seat of government, or sick. ness of the Secretary of State, Secretary of the Treasury, or the Secretary of the War Department, or of any officer of either of the said departments, whose appointmen⚫ is not in the head thereof, whereof they cannot perform the duties of their respective offices, it shall be lawful for the Presi dent of the United States, in case he should think it neces sary, to authorize any person or persons, at his discretion, to perform the duties of the said respective office until a successor be appointed, or until the said disability, by ab sence or sickness, shall cease."

Now, I am told, or I understand from the argument, that if there was a vacancy in the office of Secretary of War by the competent and effective removal of Mr. Stanton, by the exercise of the President's authority in his paper order, which thus comes to be some infraction of law by reason of the President designating General Thomas fo the ad interim charge of the office, because, it is said, that though under the act of 1790, or under the act of 1997, General Thomas, under the comprehension of "any person or persons," might be open to the President's choice and appointment; yet, that he does not come within the limited and restricted right of selection for ad interim duties, which is proposed by the act of 1863.

It must be assumed in argument, that the whol range of selection permitted under that act was of the heads of departments; but your attention is drawn to the fact that it permits the President to desig nate any person who is either the head of a depart ment or holds any office in any department, the ap pointment of which is by the President; and I would like to know why General Thomas, the Adjutant-General of the Armies of the United States, holding his position in that Department of War, is not a person appointed by the President, and open to his selection for this temporary duty; and I would like to know upon what principle of ordinary succession or recourse any officer could be found better suited to assume for a day or a week the discharge of the ad interim duties than the Adjntant-General of the Armies of the United States, being the staff officer of the President. and the person who stands there as the principal directory and immediate agent of the War Department in the exercise of its ordinary fune tions. I cannot but think it is too absurd for me to argue to the Senate that the removal of the President of the United States would not depend upon the question whether an adjutant-general was a proper locum tenens or not; or whether entangled between the boughs of repealed and unrepealed statutes, the President may have erred in that which he thought his rightful authority. Let me call your attention now to an exercise of this power of ad interim appointment as found in the administration of President Lincoln, page 582 of the record, before the enact ment of the statute of 1863. Now, you will observe that before the passage of the act of 1863, there was in force no statutory authority for the ad interim discharge of the officers, except the acts of 1792 and 1795, which were limited in their terms to the Departments of War, of State and of the Treasury.

Now, you have directly in this action of President Lin coln, not an infraction of the prohibitory statute with s penalty, but of a technical appointment without the ade quate support of an enabling act of Congress to cover it for he proceeded on September 22, 1862, to appoint John B. Skinner, then acting First Assistant Postmaster-General to be acting Postmaster-General ad interim, in place of Moutgomery Blair, who was temporarily absent. That was in the Department of the Post Office, not covered by the acts of 1792 and 1795. Now, I would like to know whether, when Mr. Lincoln appointed Mr. Skinner to be Postmaster-General without an enabling and supporting aet of Congress to justify him, he deserved to be im peached? Whether that is a crime against the Constity tion and his oath of office, whether a duty due to the Constitution that he should be impeached and removed and a new election ordered? I cannot but insist upon always separating from these crimes alleged in the articles the guilt that is outside of the articles, and that has been per ceived, and which their answer not even permitted to rebut by testimony.

I will take the question as it is, and I will read each arti cle, including the whole compass of crime, the whole range of imputation, the whole scope of testimony and construc tion; and unless there be some measure of guilt, some pur pose, or some act of force, of violence, I cannot find in mis taken, erroneous acts of excess of authority, making no impression upon the fabric of the government, or giving either menace or injury to the public service, any founds tion for this extraordinary proceeding of impeachment Am I right in saying that you must give your judgment of guilty or not guilty, not of acts set forth in the articles but as guilty or not guilty of high crime and misdemeanor,

as charged; that you will have the question as distinctly set as in the Peck and Chase trials, and not the questions as used in the Pickering trial. for the honorable manager (Mr. Wilson) denounces the latter as a mockery of justice and finding of the material facts, leaving no conclusion of law or judgment to be found by anybody.

There is another point of limitation of the President's authority, as contained in both the act of 1795 and the act of 1863, which has been made the subject of some comment by the learned and honorable manager, Mr. Boutwell. It is, that any how and any, way, the President has been guilty of a high crime and misdemeanor, however innocent otherwise, because the six months' limit accorded to him by the act of 1795 or by the act of 1863 had already expired before he appointed General Thomas. Well, I do not exactly understand the reasoning of the honorable manager. But it is definitely written down, and words, I suppose, have their ordinary meaning. How it is that the President is chargeable with having filled a vacancy thus occurring on the 21st of February, 1868, if it occurred at all, by an appointment which he made ad interim on that day, because his six 'months' right had expired, I do not understand. It is an attempt to connect it in some way with the preceding suspension of Mr. Stanton, which certainly did not create a vacancy in the office; no matter, then, whe ther the suspension was unper the Civil Tenure act or under the act of 1796, the office was not vacant until the removal. Now there remains nothing to be considered, except about an ad interim appointment as occurring during a session of the Senate or during the recess. An effort has been made to connect a discrimination between a session of the Senate and a recess of the Senate in its operation on the right of ad interim appointment with the discrimination which the Constitution makes between filling the office during the session, and the limited commission which is permitted during the recess. But sufficient, I imagine, for all purposes of convincing your judg ment, has been shown to prove that a temporary appoinment does not rest on constitutional provisions at all; that it not a filling of the office, but that the office remains just as vacant, so far as the constitutional right and duty remains, as if the temporary appointment had not been made.

When the final appointment is made it dates so as to supply the place of the persons whose vacancy led to the ad interim appointment, and in the very nature of things there can be no difference in that capacity between the recess aud the session of the Senate. We have been able to present on the pages of this record cases enough applicable to the heads of departments to make it unnecessary for me to argue the matter any further upon general principles. Mr. Evarts, in this connection, referred to the ad interim appointments of Mr. Nelson, in the State Department, on the 29th of February, 1844; of General Scott, in the War Department, on the 23d of July, 185; of Mr. Moses Kelley, in the Interior Department, June 10, 1861; and of General Holt, in the War Department, on the 1st of June, 1861.

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Mr. EVARTS continued:-And now, having passed through all possible allegations of infractions of the statue, I come to the consideration of the removal of Mr. Stanton, which is charged high crime and misdemeanor in the first article, and which has to be passed upon by this court, Under that imputation, and under the President's defense, the crime, as charged, may be regarded as the only one on which judgment is to be passed. The necessary concession to this obvious suggestion will relieve me very much from the difficulty of any protracted discussion. Before taking up the form of the article and the consideration of the facts of the procedure, I ask attention now to some general lights to be thrown both on the construction of the act by the debates in Congress, and by the relations of the Cabínet, as proper witnesses in reference to the purpose or intent of the President.

Most extraordinary means have been presented in behalf of the House of Representatives in reference to Cabinet Ministers. The personal degradation fastened upon them by the honorable manager (Mr. Boutwell) I have sufficiently referred to; and I recollect that there are in your number two or three other honorable Senators--the honorable Senator from Maryland (Mr. Johnson), and the honor. able Senator from Iowa (Mr. Harlan)-who must take their share of the opprobrium which I yesterday divided among three members of the court alone.

The ability of the President to receive aid and direction from these heads of departments, has been presented as a dangerous innovation, as a sort of Star Chamber council, which was to devour our liberties. Perhaps some members of this honorable Senate may have already had their views changed on that subject since the time when a representation was made to President Lincoln in reference to his Cabinet, to which I beg to call the attention of the Senate.

Mr. EVARTS read on this point the remonstrance, signed by twenty-five Senators, and addressed to Mr. Lin coln, on the subject of retaining Mr. Blair in his Cabinet, stating that the theory of the government is, and should be, that a Cabinet must agree with the President in political principles, and that such selection and choice should be made as to secure in the Cabinet unity of purpose and action; that the Cabinet should be exclusively composed of statesmen who are cordial, resolute and unvarying supporters of the principles and purposes of the Administration.

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marks, I think, were made some time in the year 1862 or 1863. It was a translation and a juncture which is familiar to the recollection of Senatore who took part in it, and, doubtless, to all the public men whom I have now the honor to address. Now, the honorable managers on behalf of the House of Representatives do not hold to this idea at all; not at all; and I must think that the course of events accord in its administration of the laws of evidence as not enabling the President to produce the supporting aid of his Cabinet, which, as this paper says, he ought to have in all his measures and views has either proceeded on the ground that his action, in your judgment. did not need any explanation or support, or else on the ground that you have not sufficiently held to these useful views about the Cabinet, which were presented to the notice of Mr. Lincoln. Public rumor has said-and for the truth of which I do not vouch, as I have no knowledge of it-that Mr. Lincoln rather blunted the edge of that representation by suggesting that what the honorable Senators wanted was that his Cabinet should agree with them rather than with him."

However that may be, the doctrines in that paper are true, and are accordant to the precedents of the country and the law of the government; and I find it, therefore, quite unnecessary to refute, by any very serious or prolonged argument, the imputations or invectives against the Cabinet because it agreed with the President, that have been urged upon your attention; but now, as bearing both upon the question of the right to doubt and deliberate on the power of the President, both as to the con-titutionality of the Tenure of Oflice act, and as to the construction of its first section. I may be permitted to attract your attention to some points in the debates of Congress not yet alluded to.

I will not recall the history of the action of the House upon the general form and purpose of the bill, nor of the persistency with which the Senate, being still the advisers of the President in the matter of appointments, as members of the legislative branch of the government, insisted on the exclusion of Cabinet ministers from the purview of the bill altogether, but when it was found that the House was persistent in its view also, the Senate concurred with it, on a conference, in a measure of accommodation concerning this special matter of the Cabinet which is now to be found in the text of the first section of the act.

In the debate on the Tenure of Office bill, the honorable Senator from Oregon (Mr. Williams), who soems, with the Senator from Vermont (Mr. Edmunds), to have had some particular conduct of the debate, said; "I do not regard the exception as of any great practical consequence, because, I suppose, if the President and any head of a department should disagree so as to make their relations unpleasant, and if the President should signify that that head of department should retire from the Cabinet, would follow without any positive act of removal on the part of the President and Mr. Sherman, bearing on the same point, says, "Any gentleman fit to be a Cabinet minister, who receives an intimation from his Chief that his longer continuance in the office is unpleasant to him, would necessarily resign. If he did not resign, it would show that he was unfit to be there. I cannot imagine a case where a Cabinet officer would hold on to his place in defiance and against the wishes of his,chief." B..t, nevertheless, this practical lack of importance in the measure which induced the Senate to yield their opinions of regulating any governmental proceedings, and to permit the modification of the bill, led to the enatment as it now appears.

And the question is how this matter was understood not by one man, not by one speaker, but, so far as the record shows, by the whole Senate, on the question of the_construction of the act as inclusive of Mr. Stanton, or of any other incumbent of a Cabinet position. When the Conference Committee reported the section as it now reads-as the result of the compromise between the Senate, firm in its views, and the House, firm in its purpose-the houorable Senator from Michigan (Mr. Howard) asked that the proviso might be explained.

Now you are at the very point of finding out what it means, when the Senate got so far as to ask those who had charge of the matter and who were fully competent to advise about it. The honorable Senator, Mr. Williams, states that the tenure of office of the Cabinet ministers shall expire when the term of office of the President by whom they were appointed expires, and he went on to say, "I have, from the beginning of this controversy, regarded this as quite immaterial, for I have no doubt that any Cabinet officer who has a particle of self-respect, and I can hardly suppose that any man would occupy so responsible a position without it, would continue to remain in the Cabinet after the President had signified to him that his presence was no longer needed.

"As a matter of course the effect of the provision amounts to very little one way or the other, for I presume that whenever the President thinks proper to rid himself of an offensive. Cabinet minister, he has only to siguify that desire, and the minister will retire and the new appointment be made." Mr. Sherman said, "I agree to the report of the Committee of Conference with a great deal of reluctance. I think that no gentleman, no man of any sense, of honor, would hold a position as Cabinet officer after his chief desires his removal, and, therefore, the slightest intimation on the part of the President would always secure the resignation of the Cabinet officer, for that reason I do not wish to jeopard this bill about an unimportant and collateral question."

Mr. Sherman proceeds further, in answer to the demand of a Senator to know from the committee what it had

done and what the operation of the law was to be, and says: "The proposition now submitted by the Conference Committee is, that a Cabinet Minister shall hold his office during the life or term of the President who appointed him. If the President dies the Cabinet goes out. If the President is removed for cause by impeachment, the Cabinet goes out; at the expiration of the term of the President's office the Cabinet goes out."

Now, how in the face of this can we with patience listen to long arguments to show that in reference to a Cabinet Minister, situated as Mr. Stanton is, the whole object of lamentation in the proviso and in the bill becomes nugatory and unprotective of the President's right, and forces upon him Cabinet officers whom he never appointed at all, and how shall we tolerate this argument that the term of a President lasts after he is dead, and that the term in which Mr. Stanton was appointed by Mr. Lincoln lasts through the succeeding term to which Mr. Lincoln was subsequently elected.

But that is not the point.. You are asked to remove a President from office under the stigma of impeachment for crime, to strike down the only elective head of the government whom the actual circumstances permit the Constitution to have recourse to, and to assume to yourself the sequestration and administration of that office ad interim, because a President is guilty of thinking that Mr. Sherman, in behalf of the Conference Committee, was right in explaining to the Senate, what the Conference Committee had done. Nobody contradicted him; nobody wanted any further explanation. Nobody doubted that there was no vice or fault in that act. That in undertaking to recognize a limited right of that President, it was not intended to have Cabinet Ministers retained in office whom he had not had any voice in appointing.

I would like to know who it is in this honorable Senate who will bear the issue of the scrutiny of the revising people of the United States on the removal from office of the President for the removal of an officer whom the Senate has thus declared not to be within the protection of the Civil Tenure act. Agree that judicial decision may afterwards pronounce a different judgment, still, you must admit that the President might well act as he did in deference to the opinion of Mr. Sherman, even if judgment of an inferior court, to say nothing of the Supreme Court, or of the highest special judicature this court should determine otherwise.

But the matter was brought out a little more distinctly, Mr. Doolittle having said that the proviso would not keep in the Secretary of War, and that that had been asserted as the object of the bill. Mr. Sherman, still representing the Conference Committee, proceeds to say "That the Senate had no such purpose as was shown by its vote twice to make this general exception."

That this provisions does not apply to the present case is shown by the fact that its language is so framed as not to apply to the present President. Now, that was pretty definite on that subject. The Senator shows that himself, and argues truly that it would not prevent the present President from removing the Secretary of War, the Secretary of the Navy, and the Secretary of State, and he goes on to say: "If I could suppose that either of those gentlemen were so wanting in manhood and in honor, as to hold his place under the politest intimation by the President of the United States, that his services were no longer needed, I would, certainly, as a Senator, consent to his removal, and so would we all."

And yet later, in continuation of his explanation, the same honorable Senator says:-"We provide that a Cabinet Minister shall hold his office not for a fixed term, not until the Senate shall consent to his removal, but as long as the power of appointing him holds office; if the principal office is vacated his Cabinet Ministers go out."

Now, Senators, I press upon your consideration the inevitable, the inestimable weight of this Senatorial discussion and conclusion. I do not press it upon the particular Senators who took part in it specially. I press it upon the concurring, unresisting, assenting, agreeing, confirming, corroborative silence of the whole Senate.

And I would ask if the President of the United States and his Cabinet, having before them the question for their own solution, of the ambiguities and difficulties, if there be any, as I think there are not, of this section, might not he repose upon the sense of the Senate that that body would not have agreed to a bill if it had any such efficacy as is now contended for, and might he not repose on the explanation of the Conference Committee, and of the acceptance of it by the Senate, that the bill had no such possible construction or force,

Nevertheless, if the President must be convicted of a high crime and misdemeanor for this concurrence with your united judgment, and if that sentence also proceeds on your united judgment, we shall have very great difficulty in knowing which of your united judgments is entitled to most regard.

In the House this matter was considered, and the result of the explanation there by Mr. Schenck was about the same as in the Senate, and the House came to the same conclusion. The whole great matter here is an impeachment by the House for making a removal, and a condemnation by the Senate on the same ground, and we are brought, therefore, to the consideration of the meaning of the act, of its constitutionality, of the right of the President to put its constitutionality in issue by proper and peaceful proceedings, or of his right to doubt and differ on the construction of the section, and to proceed honestly and peacefully, as he might feel himself best advised to do. And now I inay here at once dispose of what I may have to say definitely in answer to some propositions insisted upon by the honorable manager (Mr. Boutwell). He has

undertaken to disclose to yon his views of the result of the debate of 1789, and 'of the doctrines of the government as they are developed, and he has not hesitated to claim that the limitation of those doctrines was confined to appointments during the session of the Senate. Nothing can be less supported by the debate or by the pructice of the government.

In the whole of that debate, from the beginning to the end, there is not anv suggestion of the distinction which the honorable managers have not hesitated to lay down in print for your guidance as to the result. The whole question was otherwise-whether the power of removal re sided in the President absolutely? If it did, why should he not remove at one time as well as another? The power of removal would arise when the emergencies dictated instant action.

We understand that when the removal is political, or proceeds from the principle of rotation in office, as we call it, the whole notice of removal is the new appointment. The new appointment is the first thought and issue. There is no desire to get rid of the old officer except for the purpose of getting in the new one. The form of the notice, as in the last case on your table-the appointment of General Schofield-is that A. B. is appointed in place of C. D., not to be removed, but removed, meaning, "I, as the President, have no power to appoint unless there is a vacancy. I tell you, the Senate, that I have made a vacancy; or, present to you the case of a vacancy created by my will, and I name to you A. B., to be appointed in the place of C. D., removed."

That is the meaning of that action of the government, Now, you will observe that there have been only two cases in the history of the government where there has been a separate act of removal, either during the seasion of the Senate or during the recess. of Cabinet officers. You can hardly suppose an instance in which a removal of a Cabinet officer could be possible, because, in the language of the honorable Senator, you can hardly conceive of the possibility of a Cabinet officer not resigning when it is intimated to him that his place is wanted.

Therefore all this pride of exultation that we have found no cases of removal of a Cabinet officer, save that of Timothy Pickering, rests upon Senator Sherman's proposition that you cannot conceive of the possibility of there being a Cabinet officer who would need to be removed.

The practice of our government has shown that those honorable Senators were right in their proposition, and that there never has been, from the beginning of the government to the present time, more than two cases where there were Cabinet ministers who, on the slightest intimation from their chief, did not resign. Therefore do not urge upon us the paucity of the case of removal of heads of. departments, as that paucity riscs on the fact of the retirement whenever the President desired it.

Mr. Pickering, having nothing but wild lands for his sup port, and having a family to provide for, frankly told Mr. Adams that he would not resign, because it would not be convenient for him to make any other arrangement for living till the end of his term; and the President, without that consideration of domestic reasons which perhaps Mr. Pickering hoped to obtain, immediately told him that he would remove him, and he did; and Mr. Pickering went back to his wild lands.

Now Mr. Stanton, under motives of public duty, as he says, took the position that the public interest would not allow him to retire; and these are the only two cases in our government in which the question has arisen. In the one case the Secretary was instantly removed, and in the other case an attempt was made to remove him; therefore the practice of the government could be expected to suggest only the peculiar cases where promptitude and necessity for the rough method of removal were demanded at the hands of the Executive.

I ask the attention of the honorable court to the cases we have presented in our previous arguments-instances of removals during the sessions of the Senate.

Mr. Evarts recapitulated these cases and continued:Now I am sure that the honorable Senators will give their assent to the propositions I have submitted, that in reference to Cabinet officers it is almost impossible to expect removals; that in respect to subordinate officers. charged with any criminality, their resignation is generally procured by their sureties, or by their own sense of shame, or by their disposition to give no trouble. I think you will be satisfled, also, with the proposition assented to by every statesman, I think assented to by every debater on the passage of the Civil Tenure act, that the doctrine, and the action, and the practice of the government had been for the President to remove in session or in recess, although some discrimination of that kind was attempted, But I have already argued to show that there is no discrimination of the power of removal between the time during a session and a recess.

Look at it in this point of view. The Senate is in session, and a public officer is carrying on frauds either at San Francisco, or New York, or Hong Kong, or Liverpool, or wherever else you please, and the fact comes to the knowledge of the President; the session of the Senate is going on, but the fact of the President's knowledge does not put him in possession of a good man to succeed the officer, either in his own approval or in the approval of the Senate; and if it is necessary that the Consul at Hong Kong, or at Liverpool, or the Sub-Treasurer at New York, or the Master of the Mint at San Francisco, should go on with his frauds until the President finds a man and sends him out, and gets his assent, and gets him qualified, very well. It is not the kind of law adapted to the circumstances of the case. That is all I can venture to suggest. No construction and no practice of the government

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