of Mr. Ewing to the Senate on the 21st, in the usual way, in place of Mr. Stanton removed, and had not absolutely ejected Mr. Stanton from office, but had left him to await the action of the Senate upon the nomination, certainly in mere matter of form there would have been no violation of this Tenure of Office act. Now, what did he do? He made an order for the removal of Mr. Stanton on the 21st,. but did not eject him from office, and sent a nomination of Mr. Ewing to the Senate on the 22d. Is it possible that thereby he had committed an act that amounted to a high crime and misdemeanor, and deserved removal from office. And yet that is just what the President has done. He has more closely followed the mere matter of form prescribed by the Tenure of Office act than, according to the learned manager who opened this prosecution, was necessary. For, if he had made an order of removal, and at once had sent to the Senate his reasons for making such removal, and had stated to them that his purpose was to make this removal in order to test the constitutionality of the Tenure of Office act, then, says the honorable manager, "Had the Senate received such a message, the Representatives of the people might never have deemed it necessary to impeach the President for such an act, to insure the safety of the country, even if they had denied the accuracy of his legal positions." How, then, can it be deemed necessary to impeach the President for making an order of removal on one day, advising the Senate of it the same day, and sending the nomination of a successor the next day? Was ever a matter more purely formal than this? And yet this is the only act. Is this. in the words of Mr. Burke. not in merely technical language, "but in reality, in substance, and effort" a high crime and misdemeanor within the meaning of the Constitution? The first clause of the first section declares that every person then or thereafter holding any civil office under an appointment with the advice and consent of the Senate and due qualificatian, shall hold his office until a successor shall have been in like manner appointed and qualified. If the act contained no other provisions qualifying this general clause, then it would be clear 1. That it would apply to all civil officers who held by appointment made by the President with the advice of the Senate, including judicial officers as well as executive officers. It gives all of them the same right to hold, and subjects all of them to the same liability to be removed. From the excercise of the power of suspension by the independent act of the President made applicable to any officer so holding, by the second section, judges of the United States are expressly excepted. We find no such exception, express or implied, as to the exercise of the power of removal declared in the first section. Judicial officers, as well as executive officers, are made to hold by the same tenure. They hold during the pleasure of the President and the Senate, and cease to hold when the President and the Senate appoint a successor. 2. It applies equally to officers whose tenure of office, as fixed prior to the act, was to hold during the pleasure of the President, as to those who were to hold for a fixed term of years, or during good behavior. 3. It purports to take from the President the power to remove any officer, at any time, for any cause, by the exercise of his own power alone. But it leaves him a power of removal with the concurrence of the Senate. In this process of removal, the separate action of the President and the Senate is required. The initiatory act must come from the President, and from him alone. It is upon his action as taken that the Senate proceeds, and they give or withhold their consent to what he has done. The manner in which the President may exercise his part of the process is merely formal. It may be simply by the nomination of a successor to the incumbent, or the officer intended to be removed. Then, upon the confirmation by the Senate of such nomination, and the issuance of a commission to him, the removal becomes complete. Or the President may exercise his part of the process by issuing an order of removal, followed by a nomination. Neither the order for removal or the nomination works a change in itself. Both are necessarily conditional upon the subsequent action of the Senate. So, too, the order of removal, the nomination, and the confirmation of the Senate, are not final. A further act remains to be done before the appointment of the successor is complete, and that is an executive act exclusively the signing of the commission by the President. Up to this point, the President has a locus penitentiæ: for, although the Senate have advised him to appoint his nominee, the President is not bound by their advice, but may defeat all the prior action by allowing the incumbent to remain in office. Thus far we have considered the first clause of the first section of the act, without reference to the context. Standing alone, it seems to have a universal application to all civil officers, and to secure all of them who hold by the concurrent action of the President and the Senate, against removal, otherwise than by the same concurrent action, and to make all of them liable to removal by that concurrent action. Are there exceptions to the universality of the tenure of office so declared? We say there are 1. Exceptions by necessary implication. Judicial officers of the United States come within this exception; for their tenure of office is fixed by the Constitution itself. They cannot be removed either by the President alone, or by the President and Senate conjointly. They alone hold for life or during good behavior, subject to only one mode of removal, and that is by impeachment. 2. Exceptions made expressly by the provisions of the act; which make it manifest that it was not intended for all civil officers of the United States. First of all, this pur pose is indicated by the title of the act. It is entitled "An act regulating the Tenure of certain Civil offices"-not of all civil offices. Next we find, that immediately encceed ing the first clause, which, as has been shown, is in terms of universal application, comprehending "every person holding any civil office," the purpose of restraining or limit ing its generality, is expressed in these words, "except as herein otherwise provided for." This puts us at once upon inquiry. It advises us that all persons and all officers are not intended to be embraced in the comprehensive terms used in the first clause-that some persons and some officers are intended to be excepted and to be "otherwise provided for"-that some who do hold by the concurrent action of the President and the Senate, are not to be secured against removal by any other process than the same concurrent action. What class of officers embraced by the general provisions of the first clause are made to come within the clause of exception? The proviso which immediately follows an swers the question. It is in these words:-"Provided That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate." We see that these seven heads of departments are the only civil officers of the United States which are especially designated. We see a clear purpose to make some special provision as to them. Being civil officers holding by the concurrent appointment of the Prešident and the Senate, they would have been embraced by the first general clause of the section, if there had been no exception and no proviso.. The argument on the other side is, that notwithstanding the declared purpose to make exceptions, these officers are not made exceptions; that notwithstanding there is a proviso as to them, in which express provision is specially for their tenure of office, we must still look to the general clause to find their tenure of office. It is a settled rule of construction that every word of a statute' is to be taken into account, and that a proviso must have effect as much as any other clause of the statute. Upon looking into this proviso, we find its purpose to be the fixing a tenure of office for these seven officers. And how is that tenure fixed? We find it thus declared, some of them are given a tenure of office, others are not. But as to the favored class, as to that class intended to be made safe and most secure, even their tenure is not so ample and permanent as the tenure given to all civil offi cers who, prior to the act, held by the same tenure as themselves. By the general clause, all civil officers are em braced and protected from executive removal, including as well those who hold by no other tenure than "the pleasure of the President." This tenure, "during the plea sure of the President," was the tenure by which all these Cabinet officers held prior to the passage of this law. Now, for the first time, this proviso fixed another and safer tenure for certain Cabinet officers, not for all. It gave to some of them the right to hold during the term of one President and for one month of the term of the succeeding President, but it did not give that right to all of them. It was given only to a favored class, and the new tenure so given to the favored class was not so favorable as that given to other civil officers who had theretofore held by precisely the same uncertain tenure, that is to say, "the pleasure of the President," for these other civil officers were not limited to the term of one President and one month afterwards, but their tenure was just as secure from "the pleasure of the President" after the expiration of one Presidential term and after the expiration of the first month of the succeeding Presidential term, as it was before. We see, then, that in fixing a new tenure of of office for Cabinet officers, the tenure given to one class of them, and that the most favored, was not as favorable as that given to other civil officers theretofore holding by the same ten ure with themselves. This favored class were not to hold one moment after the expiration of the month of the se cond Presidential term. At that punctual time, the right of the President to select his Cabinet would, even as to them, return to him. If they were to remain after that, it would be that it would be his pleasure to keep them and to give them a new. tenure by his choice, in the regular mode of appointment. But, as we have seen, the proviso makes a distinction between Cabinet officers, and divides them into two classes, those holding by appointment of the President for the time being, and those not appointed by him, but by his predecessor, and holding only by his sufferance or plea sure. If ever an intent was manifest in a statute,, it is clear in this instance. There is a division into two classes, a tenure of office given to one class, and withheld from the other. Before the passage of this act, all Cabinet officers holding under any President, whether appointed by him or his predecessor, held by the same tenure, "the plea sure of the President." This proviso makes a distinction between them never made before. It gives one class a new and more secure tenure, and it leaves the other class with out such new tenure. One class was intended to be protected, the other not. Now comes the question, Upon what ground was this distinction made? Why was it that a better title, a stronger tenure was given to one class than to the other? The answer is given by the proviso itself. The officers in the Cabinet of a P esident, who were nominated by him who were appointed by him with the concurrence of th Senate, are those to whom this new and better tenure is given. They are officers of his own selection; they are his chosen agents. He has once recommended them to the Senate as fit persons for the public trust, and they have obtained their office through his selection and choice. The theory here is, that having had one free opportunity of choice, having once exercised his right of selection, he shall be bound by it. He shall not dismiss his own selected agent upon his own pleasure or caprice. He is, in legal language, "estopped" by the selection he has made, and is made incapable by his own act of dissolving the official relation which he has imposed on himself. Having selected his Cabinet officer, he must take him as a man takes his chosen wife, for better or worse. But as to such Cabinet officers as are not of a President's selection--as to those who have been selected by a former President as to those whose title was given by another as to those he never appointed, and, perhaps, never would have appointed-as to those who came to him by succession and not by his own act-as to those who hold merely by his acquiescence as sufferance-they are entitled to no favor, and receive none. They stand as step-children in his political family, and are not placed on the same level with the rightful heirs entitled to the inheritance. The construction claimed by the managers leads to this inevitable absurdity: that the class entitled to favor are cut off at the end of the month, while those having a less meritorious title, remain indefinitely. What was intended for a benefit, becomes a mischief, and the favored class are worse off than if no favor had been shown them. Their condition was intended to be made better than that of their fellows, and has been made worse. From those entitled to protection, it is taken away to be given to those not entitled. Now, when President Johnson was invested with his office, he found Mr. Stanton holding the office of Secretary of War. He had been appointed by Mr. Lincoln during his first term, and was holding in the second month of Mr. Lincoln's second term under the old appointment. Mr. Stanton was neither appointed by Mr. Lincoln or Mr. Johnson for that second term; so that we are relieved from all question whether the fractional term, counting from the accession of Mr. Johnson, is to be called the unexpired term of Mr. Lincoln, or the proper term of Mr. Johnson, and whether, if he had been appointed or re-appointed by Mr. Lincoln during his second term, he might not have claimed that he was entitled, as against Mr. Johnson, to hold on to its end. Mr. Stanton never had any tenure of office under the Tenure of Office act for the current Presidential term, never having been apppointed for that term by either Mr. Lincoln or Mr. Johnson. He, therefore, does not come within the category of those members of Mr. Johnson's Cabinet who have been appointed by Mr. Johnson. At the date of the passage of the Tenure of Office act, the Cabinet of Mr. Johnson was composed as follows:-The Secretaries of State, of the Treasury, of War, and of the Navy, held by appointment of Mr. Lincoln made in his first term; the Secretary of the Interior, the Postmaster-Genernl, and the Attorney-General, held by the appointment of Mr. Johnson made during his current term. There was, then, as to the entire seven, a difference as to the manner and time of their appointment. Four had been appointed by Mr. Lincoln, and the other three by Mr. Johnson. All of them held by the same tenure, "the pleasure of the President." All of them, without reference to constitutional provisions, were, by existing laws, removable by the independent action of the President. The acts of Congress creating the offices of Secretaries of State, of War, and of the Navy, expressly recognize the Executive authority to remove them at pleasure. The acts of Congress creating the four other heads of departments place them on the same footing as to tenure of office. All these acts remained, in this particular, in full force. This Tenure of Office act introduces a distinction made applicable to Ca binet officers alone, never made before. For the first time, it gives to those appointed by the President for the time being, a new tenure. It secures them from removal at his pleasure alone. It repeals, as to them, the existing laws, and declares that they shall thereafter be entitled to hold during the remainder of the term of the President by whom they were appointed, and for one month of the succeeding Presidential term, exempt from removal by the sole act of the President, and only subject to removal by the concurrent act of the President and Senate. But it gives them no right to hold against the pleasure of the succeeding President, one ment after the expiration of that punctual time of one month. When that time has arrived, their right to hold ceases, and their offices become vacant. The policy here declared is unmistakable, that notwithstanding anything to the contrary in the act, every President shall have the privilege of his own choice, of his own selection of the members of his Cabinet. The right of selection for himself is, however, qualified. He may not, as theretofore, enjoy this right throughout his term. For the first month he must take the Cabinet of his predecessor, however opposed to him in opinion or obnoxious to him personally. Then, too, while the right is given to him, it can be exercised but once. It is a power that does not survive, but expires with a single execution. mo Now, as to the three members of Mr. Johnson's Cabinet, appointed by his own exercise of this independent power, he having, as to them; once exercised the power, it is, as to them, exhausted. The consequence is, that these three officers no longer remain subject to his pleasure alone. They are entitled to hold in defiance of his wishes, throughout the remainder of his term, because they are his own selected officers; but they are not entitled to hold during the whole term of his successor, but only for a modicum of that term, just because they were not selected by that successor. So much for these three. Now, as to the other four, as to whom Mr. Johnson has not exercised his right of choice even by one appointment. May they hold during the residue of his term in defiance of his wishes? Do they come within that clear policy of giving to every President one opportunity at least to exercise his independent right of choice? Surely not. Then if, as to them, he has the right, how can he exercise it, if adirlahe case of Mr. Stanton, the Cabinet officer holds on apred e has been requested to resign? What mode is left to President to avail himself of his own independent right, when such an officer refuses to resign? None other than the process of removal; for he cannot put the man of his choice in until he has put the other out. So that the independent right of choice cannot, under such conditions be exercised at all without the corresponding right of re moval; and the one necessarily implies the other. We have seen that the tenure of office fixed by the proviso for Cabinet officers applies only to those members of Mr. Johnson's Cabinet appointed by himself. It, therefore, does not apply to Mr. Stanton. If there is any other clause of the act which applies to Mr. Stanton, it must be the first general clause, and if that does not apply to him, then his case does not come within the purview of the act at all, but must be ruled by the pre-existing laws, which made him subject at all times to the pleasure of the President and to the exercise of his independent power of removal. And this is precisely what is claimed by the managers. They maintain, that, although the proviso does not give Mr. Stanton a new tenure, yet the first general clause does, and that he is put by that clause on the same footing of all other civil officers who, at the date of the act, held by the concurrent appointment of the President and Senate by no other tenure than "during the pleasure of the President." But all the officers intended to be embraced by that first clause, who held by that tenure before, are declared to hold by a new tenure. Not one of them can be removed by the President alone. Whether appointed by the President for the time being or by his predecessor, they must remain in defiance of the President until removed by the concurrent action of the President and the Senate. In effect, so far as the power of the President is concerned, they may hold for life. If Mr. Stanton comes within the protection of that clause, if his tenure of office is fixed by that clause, it follows inevitably that Mr. Johnson cannot remove him. It follows as ine itably that no succeeding President can remove him. He may defy Mr. Johnson's successor as he has said to Mr. Johnson, "I am compelled to deny your right under the Constitution and laws of the United States, without the advice and consent of the Senate." If the successor of Mr. Johnson should point him to the proviso, and at the end of the month require him to leave, his answer, according to the managers, would run thus: "That proviso did not fix my tenure of office. It did not apply to me, but only to those appointed by Mr. Johnson. They must go out with the month; I do no not. My tenure is fixed by the first clause, and you cannot get clear of me without the advice and consent of the Senate." Without concluding, Mr. Stanbery gave way to a motion to adjourn. He had read only nineteen pages out of fiftyfive. PROCEEDINGS OF SATURDAY, MAY 2. The Senate met at noon, and the court was immediately opened in due form. Mr. STANBERY resumed the floor, introducing the continuance of his remarks by thanking the Senate for the courtesy shown him in an early adjournment last evening, and saying he had been greatly henetited by the consequent rest, and then expressing in advance his confidence in a speedy acquittal, proceeded with his argument. At 1.15 P. M., Mr. Stanbery showing evident signs of fatigue, Senator Johnson approached him and apparently made a suggestion, in reply to which Mr. Stanbery said it would relieve him very much if his young friend would be permitted to read his remarks. Senator ANTHONY said, in order to relieve the counsel, he would move that the Senate adjourn until Monday. Several Senators-No, no! In reply to an inquiry from the Chief Justice, Mr. STANBERY said he did not ask it, and Mr. W. F. Pedrick, formerly of the Attorney-General's Office, and who has assisted the counsel during the trial, then proceeded to read from the printed speech in a clear voice. Mr. Stanbery's Address. It is only in the first article that any charge is made in reference to Mr, Stanton's removal. That article nowhere alleges that Mr. Stanton has been removed either in law or in fact. It does allege that on the 21st of February Straten was "lawfully entitled to hold said office of Secretsast r the Department of War," and that on that day the fol-sident "did unlawfully and in violation of the Constation and laws of the United States, issue an order in writing for the removal of Edwin M. Stanton from the office of Secretary for the Department of War." It is the issuance of this order for a removal that is made the gravamen of the charge. It is not followed by any all gation that it had the effect to work a removal either in law or in fact. On the contrary, in the very next article which is founded on the order to Thomas, which purports to be made after the order for the removal of Stanton, it is alleged that Stanton still held the office lawfully, and that notwithstanding the order of removal to Stanton, and the order to Thomas to act as Secretary, Stanton still held the office, and no vacancy was created or existed. This is the tenor of every article, that Stanton never has been removed, in law or in fact; that there never has been an ouster, either in law or in fact, and that there has been at no time a vacancy. The proof shows that Stanton remains in possession, and that his official acts continue to be recognized. Now if the order per se operated a removal in law, it must follow that the order was valid and in conformity with the Constitution and laws of the United States, for no order made contrary thereto could take effect in law. If there was a removal in law the executive order which accomplished it was a valid, not an invalid act. But if the order did not operate a removal per se, and if a removal in fact, though not in law, might be held suflicient to constitute an offense, and if it were alleged and were proved that under the illegal order an ouster or removal was effected by force or threats, the answer to be given in this case is conclugive. No ouster-in fact, no actual or physical removal-is proved or so much as charged. Mr. Stanton has never to this day been put out of actual possession. He remains in possession as fully since the order was as before, and still holds on. Now, we look in vain through this Tenure of Office act for any provision forbidding an attempt to cause a removal, or making it penal to issue an order for such purpose. The sixth section is the only one on the subject of removal, and that provides "that every removal made * **contrary to the provisions of this act** shall be deemed, and is hereby declared, to be a high misdemeanor, and is made punishable by fine not exceeding ten thousand dollars, or imprisonment not exceeding five years, or both, at the discretion of the court. No latitude of construction can torture an attempt to make a removal into an actual removal, or can turn an abortive effort to do a given thing into an accomplished fact. Such a latitude of construction could not be allowed when the rule of construction is least restricted, and least of all in a penal statate where the rule of construction is the most restwictive. It seems a waste of words to argue this point further. There is a total failure of the case upon the first article on this point, if we had none other. And yet this article is the head and front of the entire case. Strike it out and all that remains is "leather and prunella." But, Senators, if you should be of opinion that the Tenure of Office act protected Mr. Stanton, and that the attempt to remove him was equivalent to a removal, we next maintain-First, that the President had a right to construe the law for himself, and if, in the exercise of that right, he committed an error of construction, and acted under that error, he is not to be held responsible. Second, if he had so construed the law as to be of opinion that Mr. Stanton was intended to be protected by it against his power of removal, and was also of opinion that the law in that respect was contrary to the Constitution, he is not to be held responsible if he therein committed an error. I proceed to argue these points in the order in which they have been stated. First, then, is the President responsible for an official act done by him under an erroneous construction of an act of Congress? I agree that ignorance or misconception of the law does not, in general, excuse a party from civil or criminal liability for an act contrary to law. But this well-established rule has exceptions equally well established, and the case here falls within one of the exceptions, and not within the rule where a law is passed which concerns the President and touches his official duties, it is not only his right, but his duty to determine for himself what is the true construction of the Jaw. and to act, or refuse to act, according to that determination, whatever it may be. He is an executive officer, not a mere ministerial officer. He is invested with a discretion, with the right to form a judgment and to act under his judgment so formed, however erroneous. No such distinction is allowed to a ministerial officer. His business is not to construe the law, but merely to perform it, and he acts at his peril if he does not do that which is commanded by reason of an erroneous construction, however honestly entertained, Mr. Stanbery then claimed that the Constitution clearly gives the President the power to construe laws, and argued at length that Mr. Johnson had no right to go to the Supreme Court to ascertain whether the law was constitutional, nor was he obliged to take advice from his Cabinet as to what course he should pursue. Proceeding, he said:-Besides this late authoritative exposition, as to the discretionary power of the President, there is abundance of other authority entitled to the grayest consideration, which might be adduced to the same effect, and which I propose to introduce upon the as It has been construed by the judicial department, and in that extreme case leaves the President at last to act for himself in opposition to the express will of both the other departments. I will first cite some opinions upon this extreme position. Mr. Stanbery then quoted from Presidents Jefferson, Jackson, Van Buren, from the Federalists, and from a large number of loyal authorities and decisions of the Supreme Court of the United States to sustain his position. Continuing, he said: Quotations from opinions of the Supreme Court maintaining that the executive power is in no sense ministerial, but strictly discretionary, might be multiplied indefinitely. And indeed, it is easy to show, from repeated decisions of the same Court, that the heads of departments, except where the performance of a specific act or duty is required of them by law, are in no sense ministerial officers, but that they too are clothed with a discretion, and protected from responsibility for error in the exercise of the discretion. Thus:-Decatur vs Paulding, 14 Peters: Kendall vs. Stokes, 3 Howard: Bra shear vs. Mason, 6 Howard; in which latter case the Cour say: "The duty required of the Secretary by the resolu tion, was to be performed by him as the head of one of the executive departments of the Government, in the ordinary discharge of his official duties; that in general, such duties, whether imposed by act of Congress or by resolution, are not merely ministerial duties; that the head of an executive department of the Government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion; and that the Court could not, by mandamus, act directly upon the officer, to guide and control his judgment and discretion in matters committed to his care in the ordinary discharge of his official duties." I will now ask your attention, Senators, to the remaining articles, and first, the four conspiracy articles. These allege that the President unlawfully conspired with Lorenzo Thomas, and others to the House of Representatives unknown, on the 21st of February, 1863, first, to hinder and prevent Edwin M. Stanton, Secretary of War, from holding the office of Secretary for the Department of War, contrary to the Conspiracy act of July 31, 1861. and in violation of the Constitution of the United States; second, to prevent and hinder the execution of the "act regulating the tenure of certain civil offices," and in pursuance of this conspiracy did unlawfully attempt to prevent Edwin M. Stanton from holding the said office; third, by force to seize, take and possess the property of the United States in the Department of War in the custody and charge of Edwin M. Stanton, Secretary thereof, contrary to the Conspiracy act of July 31, 1861, and of the Tenure of Office act: fourth, with intent unlawfully to seize, take and possess the property of the United States in the Department of War in the custody of Edwin M. Stanton, the Secretary thereof, with intent to violate the "act regulating the tenure of certain civil offices." It will be seen that these four conspiracy counts all relate to the same subject matter the War Office, the Secretary of the War Office and the public property therein situated-and this is all that is necessary to be said about these articles, for not a scintilia of proof has been adduced in their support. The case attempted to be made out under these conspiraey articles by the managers was, in the first place. by the production of orders issued on the 21st of February. But as these of themselves did not amount to evidence of a conspiracy, as they carried the idea of no unlawful agreement, but simply stood upon the footing of an order given by the President to a subordinate, the managers, in order to make some show of a case, offered to introduce the declarations of General Thomas, made on the night of the 21st and on the 22d of February and other days, intending to show a purpose on his part to obtain possession of the department and the property of the department by intimidation and force. Objection was made at the time to the introduction of these declarations without laying a foundation upon which the President could be made liable by such declaration. Impressed with this objection, the manager who opened the prosecution after some consideration, at length answered an inquiry of a Senator that he expected to follow up the proof of the declarations by proof connecting the President with them. Upon that assurance he was allowed to give the declarations of General Thomas in evidence. But that is the last we have heard of any supporting proof so promised. Not a scintilla of proof has been obtained from General Thomas or from any other quarter, under the conspiracy charge, of any authority given or intended to be given by the President to General Thomas to resort to force, intimidation or threats, in the execution of the order which the President had given. This is quite enough to say with regard to these articles. Next, as to the ninth article, usually known as the Emory article. It had no substance in itself from the beginning, and since the testimony of Mr. Welles remains without the slightest foundation. Next, as to the tenth article, relative to the speeches made at the Executive Mansion, at Cleveland and at St. Louis, in the months of August and September, 1866. It is in the name of the people of the United States that you, Senators, are in this article called upon to hold the President of the United States criminally responsible, even to the loss of his office, for speaking, as the article has it, with a loud voice to an assemblage of American citizens what is called scandalous matter touching the Thirty-ninth Congress of the United States. Mr. Stanbery held that the Thirty, ninth Congress having taken no notice of the alleged scandal, this Congress could not, and quoted from an English case to sustain his position. The tenth article, he said, carried us back five hundred years to the days when men were punished for expressing their religious opinions. He then continued as follows:Upon the formation of the Constitution of the United States, our fathers were not unmindful of what had happened in the past. They had brought with them the traditions of suffering and persecution for opinion's sake, and they determined to lay here for themselves the foundations of civil liberty, so strong that they never could be changed. When our Constitution was formed and was presented to the various States for adoption, the universal objection made to it was not so much for what it contained as for what it omitted. It was said we find here no bill of rights; we find here no guarantee of conscience, of speech, of the press. The answer was that the Constitution itself was, from beginning to end, a bill of rights; that it conferred upon the government only certain specified and delegatad powers, and among these was not to be found any grant of any power over the conscience or over free speech or a free press. The answer was plausible, but not satisfactory. The consequence was that at the first Congress held under the Constitution, according to instructions sent from the various State Conventions, ten ameudments were introduced and adopted, and first in order among them is this amendment: Article 1. Congress shall make no law respecting an establishmentofreligion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances. * There, in that article, associated with religious freedom, with the fredom of the press, with the great right of popular assemblage and petition-there we find safely anchored forever this inestimable right of free speech. Mark, now, Senators, the prescient wisdom of the people! Within ten years after the adoption of the Constitution the government was entirely in the hands of one party. All of its departments, executive, legislative and judi ciary, were concentrated in what was then called the Federal party. But a formidable party had begun to show itself, headed by a formidable leader, a party then called the Republican, since known as the Democratic party. Nothing was left to them but free speech and a free press. All the patronage was upon the other side. But they made the most of these great engines. So much, however, had the dominant party lost discretion, confident in its party strength, that, irritated to folly and madness by the fierce attacks made upon its executive, its judiciary and its Houses of Congress, in an evil hour it passed an act, July 14, 1798, entitled "An act for the punishment of certain crimes against the United States." The second section of this act provides:-"That if any person shall write, print, utter, publish ** any false, scandalous and malicious writing or writings against the Government of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them or either of them into contempt or disrepute, or to excite against them or either or any of them the hatred of the good people of the United States *** such persons ** *shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years." No act has ever been passed by the Congress of the United States so odious to the people as this. Mr. Hamilton, and other great Federalists of the day, attempted in vain to defend it before the people. But the authors of the law and the law itself went down together before the popular indignation, and this act, which was gotten up by a great and powerful party in order to preserve itself in power, became the fatal means of driving that party out of power, followed by the maledictions of the people. History continues to teach us now as heretofore, that "eternal vigilance is the price of liberty." There is now, as there has been in the past, a constant tendency to transfer power from the many to the few. There the danger lies to the permanence of our political institutions, and its source is in the Legislative Department alone. Guard that well and we are safe. And to guard it well, you must guard the other departments from its encroach ments. Without the help of the people they cannot defend themselves. This last attempt manifested in this tenth article to again bring into play the fearful privilege of the legislative department, is only a repetition of what has happened from the dawn of history. Wherever that has been the governing element, it has always been jealous of free speech and a free press. It has not been so with the absolute monarch. He feels secure surrounded by physical power, sustained by armies and navies. Accordingly, we find that such a monster as Tiberius pardoned a poor wretch who had lampooned his authority and ridicaled his conduct; while the Decemvirs remorselessly put to death a Roman satirist who was bold enough to attack and bring into contempt their authority. The eleventh article is the only one that remains to be considered. I confess my inability to make anything out of that article. And now, Senators, after this review, of the articles of impeachment, we are prepared to form some idea of the nature of this impeachment itself. Where now is the mischief? Where now is the injury to any individual or to any officer of the government brought about by the action of the President? Whether actuated by good motives or bad, no injury has followed; no public interest has suffered; no officer has been changed, either rightfully or wrongfully; not an item of public property or public money has passed out of the custody of law or has been appropriated to improper uses. To all this it is sald that it is enough that the law has been violated, that powers have been assumed by the President not conferred upon him by the Constitution of the United States. It is in the order of the 21st of February, 1868, that it is claimed on the part of the managers that the President usurped a power not granted by the Constitution. If that proposition could be established the managers would still be a great way off from a conviction for an impeachable offense. Much more must be made out besides the actual violation by the President of the constitutional provisions; first of all, the criminal intent to violote; and secondly, the existence of an act of Congress providing that such violations with criminal intent should amount to a high crime and misde meanor. But I hasten to meet the managers upon the main proposition, and I maintain with confidence that the order issued on the 21st of February, 1868, for the removal of Mr. Stanton was issued by the President in the exercise of an undoubted power vested in him by the Constitution of the United States. No executive order issued by any Presi dent, from the time of Washington down to the present, comes to us with a greater sanction, or higher authority, or stronger indorsements than this order. If this order is indeed, as it is claimed, a usurpation of power not granted by the Constitution, then Washington was a usurper in every month of his administratien, and after him every President that ever occupied that high office from his day to that of the present incumbent, for every one of them has exercised, without doubt and without question, this executive power of removal from office. So far as this question stands upon authority, it may be said to have been more thoroughly and satisfactorily settled than any one that has at any time agitated the country; settled first in 1789 by the very men who framed the Constitution itself; then after the lapse and acquiescence of some forty years brought again and again into question in 1826, in 1850 and in 1835. But in the worst party times it was never changed by the Legislature, but left as it was until the 2d of March, 1867, when, after the lapse of almost eighty years,, a new rule was attempted to be established which proposes to reverse the whole past. Mr. Stanbery argued that although the Constitution was silent about the power of removals, it plainly implied that power. The purpose of making appointments subject to the advice and consent of the Senate was to prevent corruption and favoritsm, but not to give the Senate power to control the Executive. Continuing, he said: I stand, then, Senators, on the constitutional power of the President to remove Mr. Stanton from office. If he did in fact possess that power, what becomes of the Tenure of Office act or anything else in the way of legislation? If it is a constitutional power which he possesses, how can it be taken away by any mode short of a constitutional amendment? Then, too, if he deems it his constitutional power. how can you punish him for following in good faith that oath which he has been compelled to take, that he "will preserve, protect and defend the Constitution of the United States." Look, Senators, at what has happened since the beginning of this trial. During the progress of the case, on March 31, 1868, a question arose in which the Senate as an Impeachment Court were equally divided. Thereupon the Chief Justice decided the question in the affirmative by his casting vote. I make now the following extract from the minutes of the next day, April 1. Mr. Stanbery ther quoted from the proceedings relative to Mr. Sumner's resolution declaring that the Chief Justice had no authority to vote, and continued:How near. Mr. Chief Justice, did you come to the commission of an impeachable offense, according to this modern doctrine announced here by the managers? But it is said on behalf of the managers, that although each department may have a right to construe the Constitution for itself in the matter of its own action, that being so the legislative department may carry out its own opinions of the Constitution to their final results, even if thereby they totally absorb every power of the Executive department. They are the sole judges of their own powers when called upon to act, and must decide for themselves. But if they have this ultimate power of decision, so also has the Executive; and if they have a right to enforce their construction against the Executive, so also has the Executive a right to enforce its construction against theirs. It was to meet that very contingency, it was to save us from such fatal consequences, that the wisdom of our forefathers introduced the Judicial Department as the final arbiter of all such questions. That failing, there is but one alternative -an actual collision or a resort to the people themselves, This last is the great conservative element in our government. When this fails us all is gone. When the voice of the people ceases to be appealed to, or, being appealed to, ceases to be listened to, then faction and party will have accomplished their perfect work, and this frame of government will, like a worthless thing, be cast away. Mr. Stanbery declared that nothing was plainer than that it was the duty of the President to resist all encroachments on the Constitution. Continuing, he said: -And now, Senators, I ask your close attention to what seems to me a most singular characteristic of this case. How does it happen that for the first time in the history of our country the President of the United States has been Buddenly subjected to such punitive legislation as that which was passed on the 2d of March, 1867? Laws were passed on that day purporting to change the order of Executive action, Such laws have not been uncommon, either in our national or State Legislatures. It has often happened that the legislative department has made changes in the manner of administration of the executive department, oftentimes imposing duties never imposed before; oftentimes prescribing action in the most direct and explicit terms; but where before has legislation of this sort been found attended with such pains and penalties as we find here? Now observe, Senators, that neither in the primitive clauses of the second section of that Military Appropriation act, nor in the sixth section of that Tenure of Office act, is the President of the United States so much as mentioned. Whoever drew these acts shrunk from referring to the office by name. It is under the general description of "person" or "civil officer" that he is made liable to fine and imprisonment for failing to carry out the new provisions of the law. But there is no question that it is the President, and the President alone, that is meant. The law was made for him. He is left no choice, no chance of appeal to the courts, no mode of testing the validity of the new law. In these pregnant words the whole matter is settled. There is, first of all, an enumeration of what crimes are in the contemplation of the Constitution-treason and bribery: and they are the highest of official crimes that can be committed. If the Constitution had stopped there, no doubt could exist. Would anything short of treason have sufficed for an article of impeachment-anything even amounting to misprison of treason or even that modern crime in English law, treason felony? Could any case have been made against the President under an article alleging treason, short of actuallevying of war or giving aid and comfort to the enemies of the United States! Then as to bribery, would anything short of actual bribery have sufficed Would an attempt to bribe-an act almost equal to bri bery, yet just short of it? Certainly not. They are crimes and misdemeanors, says Mr. Burke, not of form, but of essence. You cannot call that a high crime and misde meaner which, in the nature of things, is not. There is no room for cunning manufacture here. If a legislative act should undertake to declare that the commonest assault and battery should be a high crime and misdemeanor under the Constitution, that would not change its essence or make it the high offense which the Constitution requires. Look through all the correlative provisions of the Constitution on the subject, as to trial, conviction, judg. ment and punishment, as to pardons, and last of all, to that provision that, "the trial of all crimes, except in cases of impeachment, shall be by jury," and that other provision, that after conviction on impeachment, "the party convicted shall nevertheless be liable and subject to indict ment, trial, judgment and punishment according to law." If you are not yet satisfied, examine the proceedings of the convention that framed this article, and see how studi ously they rejected all impeachment for misbehavior in office, and how steadily they adhered to the requisition that nothing but a high crime and misdemeanor should suffice. Mr. Stanbery then referred to the promise of the managers that they would show that the President had made no attempt to carry the Tenure of Office law before the courts, and said:-Senators, where has this been shown on the part of the managers? Where is there even a feeble attempt to show it? But look now to the proof on the part of the President. Cabined, cribbed and confined as we have been by the rulings of the Senate upon this question, yet what appears? From first to last the great fact forces itself upon our attention that this was no subterfuge of the President, no afterthought to escape the consequences of an act, but, on the contrary, that this wholesome and lawful purpose of a resort to the proper tribunal to settle the difficulty between Congress and himself was in the mind of the President from the very beginning. They proved it by his own declarations, introduced by themselves in his letter to General Grant, dated Febru ary 10, 1868, which may be found on page 234 of the printed record. One extract from that letter will suffice. The President says:-"You knew the President was unwilling to trust the office with any one who would not, by holding it, compel Mr. Stanton to resort to the courts. You perfectly understood that in this interview, some time after you accepted the office, the President, not content with your silence, desired an expression of your views, and you answered him that Mr. Stanton would have to appeal to the courts." If this is not enough, Senators, remember the testimony of General Thomas, of General Sherman, of Mr. Cox, of Mr. Merrick, and see throughout the purpose of the Presi dent, declared at all times, from first to last, to bring this question to judicial arbitrament. After all this, what a shocking perversion of testimony it is to pronounce it an afterthought or a subterfuge. And after the proof of what took place on the trial of Thomas, how can the managers be bold enough to say that they will "show you that he has taken no step to submit the matter to any court, although more than a year has elapsed since the passage of the act." Senators, it was not at all necessary for the defense of the President that, in the exercise of that discretion which the law allows to him, he should be put to prove that his intentions were all right. He has gone far beyond the necessities of his case. Never were good intentions and honest motives more thoroughly proved than they have been proved in this case. I repeat it, that if everything else were made out against him, this great exculpatory fact must absolve him from all criminal liability. And now, Senators, I have done with the law and the facts of the case. There remains for me, however, a duty yet to be performed-one of solemn and important obligationa duty to my client, to my former chief, to my friend. There may be those among you, Senators, who cannot find a case of guilt against the President. There may be those among you who, not satisfied that a case for impeachment has yet arisen, are fearful of the consequences of an acquittal. You may entertain vague apprehensions that, flushed with the success of acquittal, the President will proceed to acts of violence and revolution. Senators, you do not know or understand the man. I cannot say that you wilfully misunderstand him; for I, too, though never an extreme party man, have felt more than once, in the heat of party conflicts, the same bitter and uncompromising spirit that may now animate you. The time has been when I looked upon General Jackson as the most dangerous of tyrants. The time has been when, day after day, I expected to see him inaugurate a revolution; and yet. after his administration was crowned with success and sustained by the people, I have lived to see him gracefully surrender his great powers to the hands that conferred them, and under the softening influences of time, came to regard him, not as a tyrant, but as one of the most honest and patriotic of men. Now listen for a moment to one who, perhaps, under stands Andrew Johnson better than most of you, for his opportunities have been greater. When nearly two years ago he called me from the pursuits of a professional life to take a seat in his Cabinet, I answered the call under a sense of public duty, I came here almost a stranger to him and to every member of his Cabinet, except Mr. Stanton. We had been friends for many years. Senators, need I tell you that all my tendencies are conservative? You, Mr. Chief Justice, who have known me for the third of a century, can bear me witness. Law, not arms. is my profes |