666 
 
 B6 
 
 MAIN 
 
ARGUMENT 
 
 GEORGE S. BOUTWELL, 
 
 ONE OF TIIE MANAGERS ON THE PART OF THE HOUSE OF REPRESENTATIVES, 
 
 BEFORE 
 
 THE SENATE OF THE UNITED STATES, 
 
 SITTING FOR 
 
 TIIE TRIAL OF ANDREW JOHNSON, 
 
 PRESIDENT OF THE UNITED STATES, 
 
 IMPEACHED OF HIGH CRIMES AND MISDEMEANORS. 
 
 APRIL 22 AXD 23, 1868. 
 
 WASHINGTON: 
 F. & J. RIVES & GEO. A. BAILEY, 
 
 REPORTERS A^D PRINTERS OF TUB DEBATES OF CONGRESS 
 
 1868. 
 
FRED LOCKLEY 
 
 RARE WESTERN BOOKS 
 
 4227 S. E. Stark St. 
 PORTLAND, ORE 
 
 JD V 
 
 
AUGUMENT. 
 
 WEDNESDAY, APRIL 22, 1868. 
 
 Hon. GEORGE S. BOUTWELL, on behalf 
 of the Managers, addressed the Senate, as 
 follows: 
 
 Mr. PRESIDENT, SENATORS: The importance 
 of this occasion is due to the unexampled cir 
 cumstance that the Chief Magistrate of the 
 principal Republic of the world is on trial upon 
 the charge that he is guilty of high crimes and 
 misdemeanors in office. The solemnity of this 
 occasion is due to the circumstance that this 
 trial is a new test to our public national virtue 
 and also of the strength and vigor of popular 
 government. The trial of a great criminal is 
 not an extraordinary event, even when fol 
 lowed by conviction and the severest penalty 
 known to the laws. This respondent is not to 
 be deprived of life, liberty, or property. The 
 object of this proceeding is not the punishment 
 of the offender, but the safety of the State. As 
 the daily life of the wise and just magistrate 
 is an example for good, cheering, encouraging, 
 and strengthening all others, so the trial and 
 conviction of a dishonest or an unfaithful 
 officer is a warning to all men, and especially 
 to such as occupy places of public trust. 
 ISSUES. 
 
 The issues of record between the House of 
 Representatives and Andrew Johnson, Presi 
 dent of the United States, are technical and 
 limited. We have met the issues, and, as we 
 believe, maintained the cause of the House of 
 Representatives by evidence direct, clear, and 
 conclusive. Those issues require you to ascer 
 tain and declare whether Andrew Johnson, 
 Prepldent of the United States, is guilty of 
 high crimes and misdemeanors as set forth in 
 the several articles of impeachment exhibited 
 against him, and especially whether he has 
 
 violated the laws or the Constitution of the 
 country in the attempt which he made on the 
 21st of February last to remove Edwin M. 
 Stanton from the office of Secretary for the 
 Department of War, and to appoint Lorenzo 
 Thomas Secretary of War ad interim. 
 
 These are the issues disclosed by the record. 
 They appear in the statement to be limited in 
 their nature and character ; but your final ac 
 tion thereon involves and settles questions of 
 public policy of greater magnitude than any 
 which have been considered in the political or 
 judicial proceedings of the country since the 
 adoption of the Constitution. 
 
 DEFENSE. 
 
 Mr. Johnson attempts to defend his conduct- 
 in the matter of the removal of Mr. Stanton by 
 an assertion of "the power at any and all times 
 of removing from office all executive officers for 
 cause to be judged of by the President alone." 
 
 This claim manifestly extends to the officers 
 of the Army and of the Navy, of the civil and 
 the diplomatic service. He thus assumes and 
 demands for himself and for all his successors 
 absolute control over the vast and yearly in 
 creasing patronage of this Government. This 
 claim has never been before asserted, and 
 surely it has never been sanctioned ; nor is 
 there a law or usage which furnishes any ground 
 for justification, even the least. 
 
 Heretofore the Senate has always been con 
 sulted in regard to appointments, and during 
 the sessions of the Senate it has always been 
 consulted in regard to removals from office. 
 The claim now made, if sanctioned, strips the 
 Senate of all practical power in the premises, 
 and leaves the patronage of office, the revenues 
 and expenditures of the country in the hands 
 
 M35387 
 
of the President alone. Who does not see that 
 the power of the Senate to act upon and con 
 firm a nomination is a barren power, as a means 
 of protecting the public interests, if the person 
 so confirmed may be removed from his office 
 at once without the advice and consent of the 
 Senate? If this dainr shall be conceded the 
 President is clothed with power to remove every 
 person who refuses to become his instrument. 
 
 An evil-minded President may remove all 
 loyal and patriotic officers from the Army, the 
 Navy, the civil and the diplomatic service, and 
 nominate only his adherents and friends. None 
 but his friends can remain in office ; none but 
 his friends can be appointed to office. What 
 security remains for the fidelity of the Army 
 and the Navy? What security for the collec 
 tion of the public revenues? What account 
 ability remains in any branch of the public 
 service? Every public officer is henceforth a 
 mere dependent upon the Executive. Here 
 tofore the Senate could say to the President, 
 "You shall not remove a faithful, honest public 
 officer. This power the Senate has possessed 
 and exercised for nearly eightjjyyears, under 
 and by virtue of express authority granted in 
 the Constitution. Is this authority to be sur 
 rendered? Is this power of the Senate, this 
 prerogative we may almost call it, to be aban 
 doned? Has the country, has the Senate, in 
 the exercise of its legislative, executive, or judi 
 cial functions, fully considered these broader 
 and graver issues touching and affecting vitally 
 our institutions and system of government? 
 
 The House of Representatives has brought 
 Andrew Johnson, President of the United 
 States, to the bar of this august tribunal, and 
 has here charged him with high crimes and 
 misdemeanors in office. He meets the charge 
 by denying and assailing the ancient, un 
 doubted, constitutional powers of the Senate. 
 This is the grave, national, historical, consti 
 tutional issue. When you decide the issues 
 of record, which appear narrow and technical, 
 you decide these greater issues also. 
 
 The Managers on the part of the House of 
 Representatives, as time and their abilities 
 may permit, intend to deal with the criminal 
 and with these his crimes, and also to examine 
 the constitutional powers of the President and 
 of the Senate. I shall first invite your atten 
 tion, Senators, to the last-mentioned topics. 
 
 It is necessary, in this discussion, to con 
 sider the character of the Government, and 
 especially the di-stribution of powers and the 
 limitations placed by the Constitution upon the 
 executive, judicial, and legislative depart 
 ments. 
 
 TENTH AMENDMENT. 
 
 The tenth amendment to the Constitution 
 provides that "the powers not delegated to the 
 United States by the Constitution, nor pro 
 hibited by it to the States, are reserved to the 
 States respectively, or to the people." 
 
 This provision is not to be so construed as 
 to defeat the objects for which, tue Constitution 
 
 itself was established; and it follows, neces 
 sarily, that the three departments of the Gov 
 ernment possess sufficient power collectively to 
 accomplish those objects. 
 
 It will be seen from an examination of the 
 grants of power made to the several depart 
 ments of the Government that there is a differ 
 ence in the phraseology employed, and that the 
 legislative branch alone is intrusted with dis 
 cretionary authority. The first section of the 
 first article provides that "all legislative powers 
 herein granted shall be vested in a Congress of 
 the United States, which shall consist of a 
 Senate and House of Representatives." 
 
 The first section of the second article pro 
 vides that " executive power shall be vested in 
 a President of the United States of America;" 
 and the first section of the third article pro 
 vides that "the judicial power of the United 
 States shall be vested in one Supreme Court, 
 and in such inferior courts as the Congress 
 may, from time to time, ordain and establish." 
 The words "herein granted," as used in the 
 first section of the first article of the Constitu 
 tion, are of themselves words of limitation upon 
 the legislative powers of Congress, confining 
 those powers within the authority expressed in 
 the Constitution. The absence of those words 
 in the provisions relating to the executive and 
 judicial departments does not, as might at first 
 be supposed, justify the inference that unlimited 
 authority is conferred upon those departments. 
 An examination of the Constitution shows that 
 the executive and judicial departments have 
 no inherent vigor by which, under the Con 
 stitution, they are enabled to perform the func 
 tions delegated to them, while the legislative 
 department, in noticeable contrast, is clothed 
 with authority "to make all laws which shall 
 be necessary and proper for carrying into exe 
 cution the foregoing powers, and all other 
 powers vested by this Constitution in the Gov 
 ernment of the United /States, or any depart 
 ment or officer thereof. 
 
 By virtue of this provision the Constitution 
 devolves upon Congress the duty of providing 
 by legislation for the full execution not only of 
 the powers vested in Congress, but also of pro 
 viding by legislation for the execution of those 
 powers which, by the Constitution, are vested 
 in the executive and judicial departments. 
 The legislative department has original power 
 derived from the Constitution by which it can 
 set and keep itself in motion as a branch of the 
 Government, while the executive and judicial 
 departments have no self- executing constitu 
 tional capacity, but are constrt} dependent 
 upon the legislative d^xtftrnent. Nor does 
 it follow, as mighjr tfpon slight attention be 
 assumed, that-the executive power given to the 
 President is an unlimited power, or that it an 
 swers or corresponds to the powers which have 
 been or may be exercised by the executive of 
 any other Government. The President of the 
 United States is not endowed by the Constitu 
 tion with the executive power which was pos- 
 
sesscd by Henry VIII or Queen Elizabeth, or 
 by any ruler in any other country or time, but 
 only with the power expressly granted to him 
 by the Constitution and with such other powers 
 as have been conferred upon him by Congress 
 for the purpose of carrying into effect the 
 powers which are granted to the President by 
 the Constitution. Hence it may be asserted 
 that whenever thePresident attempts to exer 
 cise any power he must, if his right be ques 
 tioned, find a specific authority in the Consti 
 tution or laws. By the Constitution he is 
 Commander-in-Chief of the Army and Navy; 
 but it is for Congress to decide, in the first 
 place, whether there shall be an Army or Navy, 
 and the President must command the Army or 
 Navy as it is created by Congress, and subject, 
 as is every other officer of the Army and Navy, 
 to such rules and regulations as Congress may 
 from time to time establish. 
 
 The President "may require the opinion in 
 writing of the principal officer in each of the 
 Executive Departments upon any subject re 
 lating to the duties of their respective offices," 
 but the executive offices themselves are created 
 by Congress, and the duties of each officer are 
 prescribed by law. In fine, the power to set 
 the Government in motion and to keep it in 
 motion is lodged exclusively in Congress un 
 der the provisions of the Constitution. 
 
 By our system of Government the sovereignty 
 is in the people of the United States, and that 
 sovereignty is fully expressed in the preamble 
 to the Constitution. By the Constitution the 
 people have vested discretionary power lim 
 ited, it is true in the Congress of the United 
 States, while they have denied to the execu 
 tive and judicial departments all discretionary 
 or implied power whatever. 
 
 The nature and extent of the powers con 
 ferred by the Constitution upon Congress have 
 been clearly and fully set forth by the Supreme 
 Court. (McCulioch vs. The State of Maryland, 
 4 Wheaton, pp. 409 and 420.) The court, 
 in speaking of the power of Congress, say : 
 
 "The Government, which has a right to do an act, 
 and has imposed on it the duty of performing that 
 act, must, according to the dictates of reason, be 
 allowed to select the means." 
 
 Again, they say : 
 
 "We admit, as all must admit, that the powers of 
 tVve Government are limited, and that these limits 
 are not to be transcended; but we think the sound 
 construction of the Constitution must allow to the 
 rational Legislature that discretion, with respect to 
 the means by which the powers it confers are to be 
 carried into execution, which will enable that body 
 to perform the high duties assigned to it in the man 
 ner most beneficial to the people. Let the thing be 
 legitimate, let it bo within the scope of the Constitu 
 tion, and all nicauswuioh are appropriate, which are 
 plainly adapted to the end. which are not prohibited, 
 and consistent with the letter ami spirit of the Con 
 stitution, are constitutional." 
 
 It is also worthy of remark, in this connec 
 tion, that the article which confers legislative 
 powers upon the Congress of the United States 
 declares that all legislative powers herein 
 granted that is, granted in the Constitution 
 
 shall be vested in the Congress of the United 
 States ; while in the section relating to the 
 powers of the President it is declared that the 
 executive power shall be vested in a, President 
 of the United States of America. .The in 
 ference from this distinction is in harmony 
 with what has been previously stated. " The 
 executive power" spoken of is that which is 
 conferred upon the President by the Constitu 
 tion, and it is limited by the terms of the Con 
 stitution, and must be exercised in the manner 
 prescribed by the Constitution. The words 
 used are to be interpreted according to their 
 ordinary meaning. 
 
 It is also worthy of remark that the Consti 
 tution, in terms, denies to Congress various 
 legislative powers specified. It denies also to 
 the United States various powers, and various 
 powers enumerated are likewise denied to the 
 States. There is but one denial of power to 
 the President, and that is a limitation of an 
 express power granted. The single instance 
 of a denial of power to the President is in that 
 provision of the Constitution wherein he is 
 authorized " to grant reprieves and pardons 
 for offenses against the United States, except 
 in cases of impeachment." As the powers 
 granted to the President are specified, and as 
 he takes nothing by implication or inference, 
 there was no occasion to recite or enumerate 
 powers not delegated to him. As the Consti 
 tution clothes Congress with powers of legis 
 lation which are ample for all the necessities 
 of national life, wherein there is opportunity 
 for the exercise of a wide discretion, it was 
 
 j necessary to specify such powers as are pro 
 hibited to Congress. The powers of Congress 
 
 | are ascertained by considering as well what is 
 prohibited as what is granted, while the powers 
 
 I of the Executive are to be ascertained clearly 
 
 I and fully by what is granted. Where there is 
 nothing left to inference, implication, or dis 
 cretion, there is no necessity for clauses or 
 provisions of inhibition. In the single case 
 of the grant of the full power of pardon to the 
 President, a power unlimited in its very nature, 
 the denial of the power to pardon in case of 
 impeachment became necessary. This exam 
 ple fully illustrates and establishes the position 
 to which I now ask your assent. If this view 
 be correct it follows necessarily, as has been 
 before stated, that the President, acting under 
 the Constitution, can exercise those powers 
 only which are specifically conferred upon him, 
 and can take nothing by construction, by im 
 plication, or by what is sometimes termed the 
 necessity of the case. 
 
 But in every Government there should be in 
 its constitution capacity to adapt the adminis 
 tration of affairs to the changing conditions of 
 national life. In the Government of the Uni 
 ted States this capacity is found in Congress, 
 in virtue of the provision already quoted, by 
 which Congress is authorized "to make all j 
 laws which shall be necessary and proper for . 
 carrying into execution the foregoing powers, . 
 
(i. 6., the powers given to Congress,) and all 
 other powers vested by this Constitution in the 
 Government of the United States, or in any 
 department or officer thereof." 
 
 It is made the duty of the President, " from 
 time to time, to give to the Congress informa 
 tion of the state of the Union, and recommend 
 to their consideration such measures as he shall 
 judge necessary and expedient." 
 
 Provision is also made in the Constitution 
 for his cooperation in the enactment of laws. 
 Thus it is in his power to lay before Congress 
 the reasons which, in his opinion, may at any 
 time exist for legislative action in aid of the 
 executive powers conferred by the Constitu 
 tion upon the President; and under the ample 
 legislative powers secured to Congress by the 
 provisions already quoted there is no reason 
 in the nature of the Government why the con 
 stitutional and lawful powers of the Executive 
 may not be made adequate to every emergency 
 of the country. In fine, the President maybe 
 said to be governed by the principles which 
 govern the judge in a court of law. He must 
 take the law and administer it as he finds it 
 without any inquiry on his part as to the wis 
 dom of the legislation. So the President, with 
 reference to the measure of his own powers, 
 must take the Constitution and the laws of the 
 country as they are, and be governed strictly 
 by them. If, in any particular, by implica 
 tion or construction, he assumes and exercises 
 authority not granted to him by the Constitu 
 tion or the laws he violates his oath of office, 
 by which, under the Constitution, it is made 
 his duty " to take care that the laws be faith 
 fully executed," which implies necessarily that 
 he can go into no inquiry as to whether the 
 laws are expedient or otherwise ; nor is it 
 within his province, in the execution of the 
 law, to consider whether it is constitutional. 
 In his communications to Congress he may 
 consider and discuss the constitutionality of 
 existing or proposed legislation, and when a 
 bill is passed by the two Houses and submitted 
 to him for approval he may, if in his opinion 
 the same is unconstitutional, return it to the 
 House in which it originated with his reasons. 
 In the performance of these duties he exhausts 
 his constitutional power in the work of legis 
 lation. If, notwithstanding his objections, Con 
 gress, by a two-thirds majority in each House, 
 shall pass the bill, it is then the duty of the 
 President to obey and execute it, as it is his 
 duty to obey and execute all laws which he or 
 liis predecessors may have approved. 
 
 If a law be in fact unconstitutional it may 
 be repealed by Congress, or it may, possibly, 
 when a case duly arises, be annulled in its un 
 constitutional features by the Supreme Court 
 of the United States. The repeal of the law is 
 a legislative act ; the declaration by the court 
 that it is unconstitutional is a judicial act; but 
 the power to repeal or to annul or to set aside 
 a law of the United States is in no aspect of 
 the case an executive power. It is made the 
 
 duty of the Executive to take care that the laws 
 oe faithfully executed an injunction wholly 
 inconsistent with the theory that it is in the 
 power of the Executive to repeal or annul or 
 dispense with the laws of the land. To the 
 President in the performance of his executive 
 duties all laws are alike. He can enter into no 
 inquiry as to their expediency or constitution 
 ality. All laws are presumed to be constitu 
 tional, and, whether in fact constitutional or not, 
 it is the duty of the Executive so to regard them 
 while they have the form of law. When a 
 statute is repealed for its unconstitutionality, or 
 for any other reason, it ceases to be law in form 
 and in fact. When a statute is annulled in 
 whole or in part by the opinion of a competent 
 judicial tribunal, from that moment it ceases 
 to be law. But the respondent and the counsel 
 for the respondent will seek in vain for any 
 authority or color of authority in the Constitu 
 tion or the laws of the country by which the 
 President is clothed with power to make any 
 distinction upon his own judgment, or upon the 
 judgment of any friends or advisers, whether 
 private or official persons, between the several 
 statutes of the country, each and every one of 
 which he is. by the Constitution and by his oath 
 of office, required faithfully to execute. Hence 
 it follows that the crime of the President is not, 
 either in fact or as set forth in the articles of 
 impeachment, that he has violated a constitu 
 tional law, but his crime is that he has violated 
 a law, and in his defense no inquiry can be 
 made whether the law is constitutional; for 
 inasmuch as he had no constitutional power to 
 inquire for himself whether the law was con 
 stitutional or not, so it is no excuse for him that 
 he did unlawfully so inquire and came to the 
 conclusion that the law was unconstitutional. 
 
 It follows, from the authorities already 
 quoted and the positions founded thereon, that 
 there can be no inquiry here and now by this 
 tribunal whether the act in question the act 
 entitled "An act regulating the tenure of cer 
 tain civil offices" is in fact constitutional or 
 not. It was and is the laAv of the land. 1 1 was 
 enacted by a strict adherence to constitutional 
 forms. It was and is binding upon all the 
 officers and departments of the Government. 
 The Senate, for the purpose of deciding whether 
 the respondent is innocent or guilty, can enter 
 into no inquiry as to the constitutionality of the 
 act, which it was the President s duty to exe 
 cute, and which, upon his own answer, and by 
 repeated official confessions and admissions, he 
 intentionally, willfully, deliberately set aside 
 and violated. 
 
 If the President, in the discharge of his duty 
 "to take care that the laws be faithfully exe 
 cuted," may inquire whether the laws are con 
 stitutional, and execute those only which he 
 believes to be so, then, for the purposes of gov 
 ernment, his will or opinion is substituted for 
 the action of the law-making power, and the 
 Government is no longer a Government of laws, 
 but the Government of one man. This is also 
 
true, if, when arraigned, he may justify by show 
 ing that he has acted upon advice that the law 
 was unconstitutional. Further, if the Senate 
 sitting for the trial of the President may inquire 
 and decide whether the law is in fact constitu 
 tional, and convict the President if he has vio 
 lated an act believed to be constitutional, and 
 acquit him if the Senate think the law uncon 
 stitutional, then the President is in fact tried 
 for his judgment, to be acquitted if in the opin 
 ion of the Senate it was a correct judgment, and 
 convicted if in the opinion of the Senate his 
 judgment was erroneous. This doctrine offends 
 every principle of justice. His offense is that 
 he intentionally violated a law. Knowing its 
 terms and requirements, he disregarded them. 
 With deference I maintain still further that 
 it is not the right of any Senator in this trial 
 to be governed by any opinion he may enter 
 tain of the constitutionality or expediency of 
 the law in question. For the purposes of this 
 trial the statute which the President, upon his 
 own confession, has repeatedly violated is the 
 law of the land. His crime is that he violated 
 the law. It has not been repealed by Congress ; 
 it has not been annulled by the Supreme Court ; 
 it stands upon the statute-book as the law ; and 
 for the purposes of this trial it is to be treated 
 by every Senator as a constitutional law. Other 
 wise it follows that the President of the United 
 States, supported by a minority exceeding by 
 one a third of this Senate, may set aside, dis 
 regard, and violate all the laws of the land. It 
 is nothing to this respondent, it is nothing to 
 this Senate, sitting here as a tribunal to try and 
 judge this respondent, that the Senators par 
 ticipated in the passage of the act, or that the 
 respondent, in the exercise of a constitutional 
 power, returned the bill to the Senate with his 
 objections thereto. The act itself is as bind 
 ing, is as constitutional, is as sacred in the eye 
 of the Constitution as the acts that wer.e passed 
 at the first session of the First Congress. If 
 the President may refuse to execute a law be 
 cause in his opinion it is unconstitutional, or 
 for the reason that, in the judgment of his 
 friends and advisers, it is unconstitutional, then 
 he and his successors in office may refuse to 
 execute any statute the constitutionality of 
 which has not been affirmatively settled by the 
 Supreme Court of the United States. If a 
 minority, exceeding one third of this Senate 
 by one, may relieve the President from all re 
 sponsibility for this violation of his oath of 
 office, because they concur with him in the 
 opinion that this legislation is either unconsti 
 tutional or of doubtful constitutionality, then 
 there isnosecurityfortheexecutionofthelaws. 
 The constitutional injunction upon the Presi 
 dent is to take care that the kws be faithfully 
 executed ; and upon him no power whatsoever 
 is conferred by the Constitution to inquire 
 whether the law that he is charged to execute 
 is or is not constitutional. The constitutional 
 injunction upon you, in your present capacity, 
 is to hold the respondent faithfully to> the exe 
 
 cution of the constitutional trusts and duties 
 imposed upon him. If he has willfully disre 
 garded the obligation resting upon him, to take 
 care that the laws be faithfully executed, then 
 the constitutional duty imposed upon you is to 
 convict him of the crime of having willfully 
 disregarded the laws of the land and violated 
 his oath of office. 
 
 I indulge, Senators, in great plainness of 
 speech, and pursue a line of remark which, 
 were the subject less important or the duty 
 resting upon us less solemn, I should studiously 
 avoid. But I speak with every feeling and sen 
 timent of respect for this body and this place 
 of which my nature is capable. In my boy 
 hood, from the gallery of the old Chamber of 
 the Senate, I looked, not with admiration 
 merely, but with something of awe upon the 
 men of that generation who were then in the 
 seats which you now fill. Time and experi 
 ence may have modified and chastened those 
 impressions, but they are not, they cannot be 
 obliterated. They will remain with me while 
 life remains. But, with my convictions of my 
 own duty, with my convictions of your duty, 
 with my convictions of the danger, the immi 
 nent peril, to our country if you should not 
 render a judgment of guilty against this re 
 spondent, I have no alternative but to speak 
 with all the plainness and directness which 
 the most earnest convictions of the truth of 
 what I utter can inspire. 
 MOTIVE. 
 
 Nor can the President prove or plead the 
 motive by which he professes to have been 
 governed in his violation of the laws of the 
 country. Where a positive specific duty is 
 imposed upon a public officer his motives can 
 not be good if he willfully neglects or refuse^ 
 to discharge his duty in the manner in which, 
 it is imposed upon him. In other words, it is 
 not possible for a public officer, and particu 
 larly for the President of the United States, 
 who is under a special constitutional injunc 
 tion to discharge his duty faithfully, to have 
 any motive except a bad motive if he willfully 
 violates his duty. A judge, to be sure, in the 
 exercise of a discretionary power, as in im 
 posing a sentence upon a criminal, where the 
 penalty is not specific, may err in the exercise 
 of that discretion and plead properly his good 
 motives in the discharge of his duty ; that is, 
 he may say that he intended, under the law, 
 to impose a proper penalty ; and inasmuch as 
 that was his intention, though all other men 
 may think that the penalty was either insuffi 
 cient or excessive, he is fully justified by his 
 motives. 
 
 So the President, having vested in him dis 
 cretionary power in regard to granting par 
 dons, might, if arraigned for the improper ex 
 ercise of that power in a particular case, plead 
 and prove his good motives, although his action 
 might be universally condemned as improper 
 or unwise in that particular case. But the 
 circumstances of this respondent are wholly 
 
 
8 
 
 different. The law which, as he admits, he has 
 intentionally and deliberately violated, was 
 mandatory upon him, and left in his hands no 
 discretion as to whether he would, in a given 
 case, execute it or not. 
 
 A public officer can neither plead nor prove 
 good motives to refute or control his own ad 
 mission that he has intentionally violated a 
 public law. 
 
 Take the case of the President; his oath is : 
 
 "I do solemnly swear that I will faithfully execute 
 the office of President of the United States, and will 
 to the best of my ability preserve, protect, and de 
 fend the Constitution of the United States." 
 
 One of the provisions of that Constitution is 
 that the President shall "take care that the 
 laws be faithfully executed." In this injunc 
 tion there are no qualifying words. It is made 
 his duty to take care that the laws, the laws, be 
 faithfully executed. A law is well defined to 
 be " a rule laid, set, or established by the law- 
 making power of the country." It is of such 
 rules that the Constitution speaks in this in 
 junction to the President ; and in obedience to 
 that injunction, and with reference to his duty 
 under his oath to take care that the laws be 
 faithfully executed, he can enter into no in 
 quiry as to whether those laws are expedient 
 or constitutional, or otherwise. And inasmuch 
 as it is not possible for him, under the Consti 
 tution, to enter lawfully into any such inquiry, 
 it is alike impossible for him to plead or to 
 prove that, having entered into such inquiry, 
 which was in itself unlawful, he was governed 
 by a good motive in the result which he reached 
 and in his action thereupon. Having no right 
 to inquire whether the laws were expedient or 
 constitutional, or otherwise, if he did so inquire, 
 and if upon such inquiry he came to the con 
 clusion that, for any reason, he would not exe 
 cute the law according to the terms of the law, 
 then he willfully violated his oath of office and 
 the Constitution of the United States. The 
 necessary, the inevitable presumption in law 
 is, that he acted under the influence of bad 
 motives in so doing, and no evidence can be 
 introduced controlling or coloring in any degree 
 this necessary presumption of the law. 
 
 Having, therefore, no right to entertain any 
 motive contrary to his constitutional obligation 
 to execute the laws, he cannot plead his mo 
 tive. Inasmuch as he can neither plead nor 
 prove his motive, the presumption of the law 
 must remain that in violating his oath of office 
 and the Constitution of the United States he 
 was influenced by a bad motive. The magis 
 trate who willfully breaks the laws, in violation 
 of his oath to execute them, insults and out 
 rages the common sense and the common na 
 ture of his countrymen when he asserts that 
 their laws are so bad that they deserve to be 
 broken. This is the language of a defiant 
 usurper, or of a man who has surrendered him 
 self to the counsel and control of the enemies 
 of his country. 
 
 If a President, believing the law to be un 
 
 constitutional, may refuse to execute it, then 
 your laws for the reconstruction of the southern 
 States, your laws for the collection of the in 
 ternal revenue, your laws for the collection of 
 custom-house duties, are dependent for their 
 execution upon the individual opinion of the 
 President as to whether they are constitutional 
 or not ; and if these laws are so dependent, all 
 other laws are equally dependent upon the opin 
 ion of the Executive. Hence it follows that, 
 whatever the legislation of Congress may be, the 
 laws of the country are to be executed only so 
 far as the President believes them to be consti 
 tutional. This respondent avers that his sole 
 object in violating the tenure-of-office act was 
 to obtain the opinion of the Supreme Court 
 upon the question of the constitutionality of 
 that law. In other words, he deliberately vio 
 lated the law, which was in him a crime, for 
 the purpose of ascertaining judicially whether 
 the law could be violated with impunity or not. 
 At that very time he had resting upon him the 
 obligations of a citizen to obey the laws, and the 
 higher and more solemn obligation, imposed 
 by the Constitution upon the first magistrate of 
 the country, to execute the laws. If a private 
 citizen violates a law, he does so at his peril. If 
 the President or Vice President, or any other 
 civil officer, violates a law, his peril is that he 
 may be impeached by the House of Represent 
 atives and convicted by the Senate. This is 
 precisely the responsibility which the respond 
 ent has incurred ; and it would be no relief to 
 him for his willful violation of the law, in the 
 circumstances in which he is now placed, if 
 the court itself had pronounced the same to be 
 unconstitutional. 
 
 But it is not easy to comprehend the auda 
 city, the criminal character of a proceeding 
 by which the President of the United States 
 attempts systematically to undermine the Gov 
 ernment itself by drawing purposely into con 
 troversy, in the courts and elsewhere, the 
 validity of the laws enacted by the constituted 
 authorities of the country, who, as much as 
 himself, are individually under an obligation 
 to obey the Constitution in all their public 
 acts. With the same reason and for the same 
 object he might violate the reconstruction laws, 
 tax laws, tariff acts, or the neutrality laws of 
 the country ; and thus, in a single day of his 
 official life, raise questions which could not be 
 disposed of for years in the courts of the coun 
 try. The evidence discloses the fact that he 
 has taken no step for the purpose of testing 
 the constitutionality of the law. He suspended 
 numerous officers under, or, if not under, at 
 least, as he himself admits,,Hi conformity with 
 the tenure-of-office law, "showing that it was 
 not his sole object to test its constitutionality. 
 He has had opportunity to make application, 
 through the Attorney General for a writ of quo 
 warranto, which might have tested the validity 
 of the law in the courts. This writ is the writ 
 of the Government, and it can never be granted 
 upon the application of a private person. The 
 
President has never taken one step to test the 
 law in the courts. Since his attempted re 
 moval of Mr. Stanton on the 21st of February 
 last he might have instituted proceedings by a 
 writ of quo ivarranto, and by this time have 
 obtained, probably, a judicial opinion covering 
 all the points of the case. But he shrinks from 
 the test he says he sought. Thus is the pretext 
 of the President fully exposed. The evidence 
 shows that he never designed to test the law in 
 the courts. His object was to seize the offices 
 of the Government for purposes of corruption, 
 and by their influence to enable him to recon 
 struct the Union in the interest of the rebel 
 lious States. In short, he resorted to this 
 usurpation as an efficient and necessary means 
 of usurping all power and of restoring the 
 Government to rebel hands. 
 
 No criminal was ever arraigned who offered 
 a more unsatisfactory excuse for his crimes. 
 The President had no right to do what he says 
 he designed to do, and the evidence shows that 
 he never has attempted to do what he now 
 assigns as his purpose when he trampled the 
 laws of his country under his feet. 
 
 These considerations have prepared the way 
 in some degree, I trust, for an examination of 
 the provisions of the Constitution relating to 
 the appointment of embassadors and otherpub- 
 lic ministersand consuls, judgesof the Supreme 
 Court, and other officers of the United States, 
 for whose appointment pro vision is made in the 
 second section of the second article of the Con 
 stitution. It is there declared that the Presi 
 dent "shall nominate," and, by and with the 
 consent of the Senate, shall "appoint embas 
 sadors and other public ministers and consuls, 
 judges of the Supreme Court, and all other 
 officers of the United States whose appoint 
 ments are not herein otherwise provided for 
 and which shall be established by law." The 
 phrase, "are not herein .otherwise provided 
 for," is understood to refer to Senators, who, 
 under the Constitution, in case of a vacancy, 
 may be appointed by the Governors of the sev 
 eral States, and to those appointments which 
 might be. confided by law to the courts or to the 
 heads of Departments. It is essential to notice 
 the fact that neicher in this provision of the 
 Constitution nor in any other is power given to 
 the President to remove any officer. The only 
 power of removal specified in the Constitution 
 is that of the Senate, by its verdict of guilty, to 
 remove the President, Vice President, or other 
 civil officer who may be impeached by the House 
 of Representatives and presented to the Senate 
 for trial. 
 
 Upon the premises already laid down it is 
 clear that the power of removal from office is 
 not vested in the President alone, but only in 
 the President by and with the advice and con 
 sent of the Senate. Applying the provision 
 of the Constitution already cited to the con 
 dition of affairs existing at the time the Gov 
 ernment was organized, we find that the course 
 pursued by the First Congress and by the first 
 
 President was the inevitable result of the 
 operation of this provision of the organic law. 
 In the first instance, several executive Depart 
 ments were established by acts of Congress, 
 and in those Departments offices of various 
 grades were created. The conduct of foreign 
 affairs required the appointment of embas 
 sadors, ministers, and consuls, and conse 
 quently those necessary offices were established 
 by law. The President, in conformity with 
 this provision of the Constitution, made nom 
 inations to the Seriate of persons to fill the 
 various offices so established. These nomina 
 tions were considered and acted upon by the 
 Senate, and when confirmed by the Senate the 
 persons so nominated were appointed and 
 authorized by commissions under the hand of 
 the President to enter upon the discharge of 
 their respective duties. In the nature of the 
 case it was not possible for the President, dur 
 ing a session of the Senate, to assign to duty 
 in any of the offices so created any person who 
 had not been by him nominated to the Senate 
 and by that body confirmed, and there is no 
 evidence that any such attempt was made. 
 The persons thus nominated and confirmed 
 were in their offices under the Constitution, 
 and by virtue of the concurrent action of the 
 President and the Senate. There is not to be 
 found in the Constitution any provision con 
 templating the removal of such persons from 
 office. But inasmuch as it is essential to the 
 proper administration of affairs that there 
 should be a power of removal, and inasmuch 
 as the power of nomination and confirmation 
 vested in the President and in the Senate is a 
 continuing power, not exhausted either by a 
 single exercise or by a repeated exercise in 
 reference to a particular office, it follows legiti 
 mately and properly that the President might 
 at anytime nominate to the Senate a person to 
 fill a particular office, and the Senate, in the 
 exercise of its constitutional power, could con 
 firm that nomination, that the person so nom 
 inated and confirmed would have a right to 
 take and enjoy the office to which he had been so 
 appointed, and thus to dispossess the previous 
 incumbent. It is apparent that no removal 
 can be made unless the President takes the 
 initiative, and hence the expression "removal 
 by the President." 
 
 As, by a common and universally recognized 
 principle of construction, the most recent 
 statute is obligatory and controlling wherever 
 it contravenes a previous statute, so a recent 
 commission, issued under an appointment 
 made by and with the advice and consent of 
 the Senate, supersedes a previous appointment 
 although made in the same manner. It is thus 
 apparent that there is, under and by virtue of 
 the clause of the Constitution quoted, no power 
 ofremoval vested either in the President or ia 
 the Senate, or in both of them together as an 
 independent power; but it is rather a con 
 sequence of the power of appointment. And 
 as the power of appointment is riot vested in 
 
10 
 
 the President, but only the right to make a 
 nomination, which becomes an appointment 
 only when the nomination has been confirmed 
 by the Senate, the power of removing a public 
 officer cannot be deemed an executive power 
 solely within the meaning of this provision of 
 the Constitution. 
 
 This view of the subject is in harmony with 
 the opinion expressed in the seventy-sixth 
 number of the Federalist. After stating with 
 great force the objections which exist to the 
 "exercise of the power of appointing to office 
 by an assembly of men," the writer proceeds 
 to say: 
 
 "The truth of the principles here advanced seems 
 to have been felt by the mostintelligentof those who 
 have found fault with the provision made in this re 
 spect by the convention. They contend that the 
 President ought solely to have been authorized to 
 make the appointments under the Federal Govern 
 ment. But it is easy to show that every advantage 
 to be expected from such an arrangement would in 
 substance be derived from the power of nomination, 
 which is proposed to be conferred upon him, while 
 several disadvantages which might attend the abso 
 lute power of appointment in the hands of that officer 
 would be avoided. In the act of nominating his 
 judgment alone would be exercised, and as it would 
 be his sole duty to point out the man who with the 
 approbation of the Senate should nil an office, his 
 responsibility would be as complete as if he were to 
 make the fa nal appointment. There can, in this view, 
 be no difference between nominating and appointing. 
 The same motives which would influence a proper 
 discharge of his duty in one case would exist in the 
 other; and as no man could be appointed but upon 
 his previous nomination, every man who might be 
 appointed would be in fact his choice. 
 
 "But his nomination may be overruled. This it 
 certainly may, yet it can only be to make place for 
 another nomination by himself. The person ulti 
 mately appointed must be the object of his prefer 
 ence, though, perhaps, not in the highest degree. It 
 is also not very probable that his nomination would 
 often be overruled. The Senate could not be tempted 
 by the preference they might feel to another to reject 
 the one proposed, because they could not assure 
 themselves that the person they might wish would 
 be brought forward by a second, or by any subse 
 quent nomination. They could not even be certain 
 that a future nomination would present a candidate 
 in any degree more acceptable to them. And as 
 their dissent might cast a kind of stigma upon the 
 individual rejected, and might have the appearance 
 of a reflection upon the judgment of the Chief Magis 
 trate, it is not likely that their sanction would often 
 be refused, where there were not special and strong 
 reasons for the refusal. 
 
 "To what purpose, then, require the cooperation 
 of the Senate? I answer that the necessity of their 
 concurrence would have a powerful, though in gen 
 eral, a silent operation. It would be an excellent 
 check upon the spirit of favoritism in the President, 
 and would tend greatly to preventing the appoint 
 ment of unfit characters, from State prejudice, from 
 family connection, from personal attachment, or 
 from a view to popularity. And, in addition to this, 
 it would be an efficacious source of stability in the 
 Administration. 
 
 " It will readily be comprehended that a man who 
 had himself the sole disposition of office would be 
 governed much more by his private inclinations and 
 interests than when he was bound to submit the pro 
 priety of his choice to the dictation and determina 
 tion of a different and independent body, and that 
 body an entire branch of the Legislature. _ The 
 1 possibility of rejection would be a strong motive to 
 care in proposing. The danger of his own reputa- 
 i tion, and, in the case of an elective magistrate, to 
 his political existence, from betraying a spirit of 
 favoritism, or an unbecoming pursuit of popularity, 
 to the observation of a body whose opinion would 
 
 have great weight in forming that of the public, 
 could not fail to operate as a barrier to one and to 
 the other. He would be both ashamed and afraid to 
 bring forward for the most distinguished or lucra 
 tive stations candidates who had no other merit than 
 that of coming from the same State to which he par 
 ticularly belonged, or of being in some way or other 
 personally allied to him, and possessing the neces 
 sary insignificance and pliancy to render them the 
 obsequious instruments of his pleasure." 
 
 When the President has made a nomination 
 for a particular office, and that nomination has 
 been confirmed by the Senate, the constitu 
 tional power of the President during the ses 
 sion of the Senate is exhausted with reference 
 to that officer. All that he can do under the 
 Constitution is in the same manner to nominate 
 a successor, who may be either confirmed or 
 rejected by the Senate. Considering the powers 
 of the President exclusively with reference to 
 the removal and appointment of civil officers 
 during the session of the Senate it is clear that 
 he can only act in concurrence with the Senate. 
 An office being filled, he can only nominate a 
 successor, who, when confirmed by the Senate, 
 is, by operation of the Constitution, appointed 
 to the office, and it is the duty of the President 
 to issue his commission accordingly. This 
 commission operates as a supersedeas, and the 
 previous occupant is thereby removed. 
 
 No legislation has attempted to enlarge or 
 diminish the constitutional powers of the Pres 
 ident, and no legislation can enlarge or diminish 
 his constitutional powers in this respect, as I 
 shall hereafter show. It is here and now, in 
 the presence of this provision of the Constitu 
 tion concerning the true meaning of which 
 there neither is nor has ever been any serious 
 doubt in the mind of any lawyer or statesman, 
 that we strip the defense of the President of 
 all the questions and technicalities which the 
 intellects of men, sharpened but not enlarged 
 by tHe practice of the.law, have wrung from the 
 legislation of the country covering three fourths 
 of a century. 
 
 On the 21st day of February last Mr. Stan- 
 ton was de facto and de jure Secretary for the 
 Department of War. The President ^ letter 
 to Mr. Stanton of that date is evidence of 
 this fact : 
 
 EXECUTIVE MANSION, 
 WASHINGTON, D. 0., February 21, 1868. 
 
 SIB: By virtue of the power and authority vested 
 in me as President by the Constitution and laws of 
 the United States, you are hereby removed from 
 office as Secretary for the Department of War, and 
 your functions as such will terminate upon receipt 
 of this communication. 
 
 You will transfer to Brevet Major General Lorenzo 
 Thomas, Adjutant General of the Array* who has 
 this day been authorized and empowo^ to act as 
 Secretary of War ad interim, all records, books, pa 
 pers, and other public property now in your custody 
 
 ai Eespecffully, yours, AXDTIEW JOHNSON. 
 Hon. EDWIN M. STANTON, Washington, D. C. 
 
 This letter is an admission, not only that Mr. 
 
 Stanton was Secretary of War on the 21st of 
 
 February, 1868, but also that the suspension 
 
 ( of that officer of the 12th of August, A. D. 
 
 1867, whether made under the tenure- of-office 
 
11 
 
 act or not, was abrogated by the action of the 
 Senate of the 13th of January, 18G8, and that 
 then Mr. Stanton thereby was restored law 
 fully to the office of Secretary for the Depart 
 ment of War. 
 
 On the 21st day of February the Senate was 
 in session. There was then but one constitu 
 tional way for the removal of Mr. Stauton ; a 
 nomination by the President to the Senate of 
 a successor, and his confirmation by that body. 
 The President attempted to remove Mr. Stan- 
 ton in a way not known to the Constitution, 
 and in violation thereof, by issuing the said 
 order for his removal. In the first of the arti 
 cles it is set forth that this order was issued 
 "in violation of the Constitution and of the 
 laws of the United States," and the President 
 is consequently guilty under this article ; we 
 have proved a violation either of the Constitu 
 tion or the laws. If we show that he has vio 
 lated the Constitution of the United States, 
 we show also that he" has violated his oath of 
 office, which pledged him to support the Con 
 stitution. Thus is the guilt of the President, 
 under the Constitution and upon admitted 
 facts, established beyond a reasonable doubt. 
 This view is sufficient to justify and require at 
 your hands a verdict of guilty under the first 
 article, and this without any reference to the 
 legislation of the country, and without refer 
 ence to the constitutionality of the tenure-of- 
 office act or to the question whether the Sec 
 retary of War is included within its provisions 
 or not. But 1 intend in the course of my ar 
 gument to deal with all these questions of law, 
 and to apply the law as it shall appear to the 
 facts proved or admitted. To be sure, in my 
 judgment, the case presented by the House of 
 Representatives in the name of all the people 
 of the United States might safely be rested 
 here; but the cause of justice, the cause of 
 the country, requires us to expose and demon 
 strate the guilt of the President in all the par 
 ticulars set forth in the articles of impeach 
 ment. We have no alternative but to proceed. 
 In this connection 1 refer to a view presented 
 by the counsel for the President in his open 
 ing argument. He insists or suggests that 
 inasmuch as the letter to Stanton of the 21st 
 of February did not, in fact, accomplish a 
 removal of the Secretary, that therefore no 
 offense was committed. The technicalities of 
 the law have fallen into disrepute among the 
 people, and sometimes even in the courts. 
 .The technicalities proper of the law are the 
 rules developed by human experience, and 
 justly denominated, as is the law itself, the 
 perfection of human reason. These rules, 
 wise though subtle, aid in the administration 
 of justice in all tribunals where the laws are 
 judicially administered. But it often happens 
 that attorneys seek to confuse the minds of 
 men and thwart the administration of justice 
 by the suggestion of nice distinctions which 
 have no foundation in reason and find no sup 
 port in general principles of right. 
 
 The President cannot assume to exercise a 
 
 Eower as a power belonging to the office he 
 olds, there being no warrant in law for such 
 exercise, and then plead that he is not guilty 
 because the act undertaken was not fully ac 
 complished. The President is as guilty in con 
 templation of law as he would have been if 
 Mr. Stanton had submitted to his demand and 
 retired from the office of Secretary for the De 
 partment of War. Nothing more possible re 
 mained for the President except a resort to force, 
 and what he did and what he contemplated 
 doing to obtain possession of the office by force 
 will be considered hereafter. 
 
 If these views are correct, the President is 
 wholly without power, under and by virtue of 
 the Constitution, to suspend a public officer. 
 And most assuredly nothing is found in the 
 Constitution to sustain the arrogant claim 
 which he now makes, that he may during a 
 session of the Senate suspend a public officer 
 indefinitely and make an appointment to the 
 vacancy thus created without asking the advice 
 and consent of the Senate either upon the sus 
 pension or the appointment. 
 
 I pass now to the consideration of the third 
 clause of the second section of the second arti 
 cle of the Constitution: 
 
 " The President shall have power to fill up all 
 vacancies that may happen during the recess oi the 
 Senate, by granting commissions which shall expire 
 at the end of their next session." 
 
 The phrase, "may happen," construed ac 
 cording to the proper and well-understood 
 meaning of the words when the Constitution 
 was framed, referred to those vacancies which 
 might occur independently of the will of the 
 Government vacancies arising from death, 
 from resignation, from circumstances not pro 
 duced by the act of the appointing power. 
 The words "happen" and "happened" are 
 of frequent use in the Bible, u that well of pure 
 English undefiled," and always in the sense of 
 accident, fortuity, chance, without previous 
 expectation, as to befall, to light, to fall, or to 
 come unexpectedly. This clause of the Con 
 stitution contains a grant of power to the Pres 
 ident, arid under and by virtue of it he may 
 take and exercise the power granted, but 
 nothing by construction or by implication. He 
 then, by virtue of his office, may, during the 
 recess of the Senate, grant commissions which 
 shall expire at the end of the next session, and 
 thus fill up any vacancies that may happen ; 
 that is, that may come by chance, by accident, 
 without any agency on his part. 
 
 If, then, ii be necessary and proper, as un 
 doubtedly it is necessary and proper, that pro 
 vision should be made for the suspension or 
 temporary removal of officers who, in the recess 
 of the Senate, have proved to be incapable or 
 dishonest, or who in the judgment of the Pres 
 ident are disqualified for the further discharge 
 of the duties of their offices, it is clearly a 
 legislative Bright and duty, under the clause of 
 the Constitution which authorizes Congresft 
 
12 
 
 11 to make all laws which shall be necessary and 
 proper to carry into execution the foregoing 
 powers, and all other powers vested in the 
 Government of the United States, or in any 
 department or officer thereof," to provide for 
 the contingency. It is no answer to this view 
 of the case to say that until the 2d of March, 
 1867, Congress neglected to legislate upon this 
 subject, and that during the long period of 
 such neglect, by the advice of Attorneys Gen 
 eral, the practice was introduced and con 
 tinued, by which the President, during the re 
 cess of the Senate, removed from office per 
 sons who had been nominated by the President 
 and confirmed by the Senate. This practice 
 having originated in the neglect of Congress to 
 legislate upon a subject clearly within its juris 
 diction, and only tolerated by Congress, has, 
 at most, the force of a practice or usage which 
 can at any time be annulled or controlled by 
 statute. 
 
 This view is also sustained by the reasoning 
 of Hamilton, in the sixty-seventh number of 
 the Federalist, in which he says : 
 
 "The last of these two clauses, it is equally clear, 
 cannot be understood to comprehend the power of 
 filling vacancies in the Senate, for the following 
 reasons : First, the relation in which that clause 
 stands to the other, which declares the general mode 
 of appointing officers of the United States, denotes 
 it to be nothing more than a supplement to the other, 
 for the purpose 9f establishing an auxiliary method 
 of appointment in cases to which the general method 
 was inadequate. The ordinary power of appointment 
 is confided to the President and Senate jointly, and 
 can therefore only be exercised during the session of 
 the Senate; but as it would have been improper to 
 oblige this body to be continually in session for the 
 appointment of officers, and as vacancies might hap 
 pen in their recess, which it might be necessary i or 
 the public service to fill without delay, the succeed 
 ing clause is evidently intended to authorize the 
 President, singly, to make temporary appointments 
 during the recess of the Senate, by granting com 
 missions which should expire at the end of their 
 next session. " 
 
 The arguments which I have thus offered, 
 and the authorities quoted, show that the Pres 
 ident had not the power during the session of 
 the Senate to remove either the Secretary of 
 War or any civil officer from office by virtue 
 of the Constitution. The power of removal 
 during the recess of the Senate was recognized 
 by the act of 1789, and tolerated by the coun 
 try upon the opinions of Attorneys General till 
 1867. The President claims, however, and as 
 an incident of the power of removal, the power 
 to suspend from office indefinitely any officer 
 of the Government ; but inasmuch as his claim 
 to the power of removal is not supported by 
 the Constitution, he cannot sustain any other 
 claim as an incident of that power. Butif the 
 power to remove were admitted, it would by 
 no means follow that the President has the 
 power to suspend indefinitely. The power to 
 suspend indefinitely is a different power from 
 that of removal, and it is in no proper sense 
 necessarily an incident. It might be very well 
 conceived that if the framers of the Constitu 
 tion had thought fit to confer upon the Presi 
 dent the power to remove a public officer ab 
 
 solutely^ his removal to be followed by the 
 nomination of a successor to the Senate, they 
 might yet have denied to the President the 
 power to suspend public officers indefinitely 
 and to supply their places by his appointees 
 without the advice and consent of the Senate. 
 But, inasmuch as the power to suspend inde 
 finitely is not a power claimed as a specific grant 
 under the Constitution, and as the claim by the 
 President of the power of removal during a 
 session of the Senate is not sustained by the 
 text of the Constitution or by any good author 
 ity under it, it is not important to consider 
 whether, if the power of removal were admitted 
 to exist, the power to suspend indefinitely could 
 be considered as an incident. It is sufficient 
 to say that neither power, in the sense claimed 
 by the President, exists under the Constitution 
 or by any provision of law. 
 
 I respectfully submit, Senators, that there 
 can be no reasonable doubt of the soundness 
 of the view I have presented, both of the lan 
 guage and meaning of the Constitution in re 
 gard to appointments to office. But. if there 
 were any doubt, it is competent and proper 
 to consider the effects of the claim, if recog 
 nized, as set up by the President. And in a 
 matter of doubt as to the construction of the 
 Constitution it would be conclusive of its true 
 interpretation that the claim asserted by the 
 President is fraught with evils of the gravest 
 character. He claims the right, as well when 
 the Senate is in session as when it is not in 
 session, to remove absolutely, or to suspend 
 for an indefinite period of time, according to 
 his own discretion, every officer of the Army, 
 of the Navy, and of the civil service, and to 
 supply their places with creatures and partisans 
 of his own. To be sure, he has not asserted, 
 in direct form, his right to remove and suspend 
 indefinitely officers of the Army and Navy ; but 
 when you consider that the Constitution makes 
 no distinction in the tenure of office between 
 military, naval, and civil officers ; that ail are 
 nominated originally by the President and re 
 ceive their appointments upon the confirmation 
 of the Senate, and hold their offices under the 
 Constitution by no other title than that which 
 secures to a Cabinet officer or to a revenue col 
 lector the office to which he has been appointed, 
 there can be no misunderstanding as to the 
 nature, extent, and dangerous character of the 
 claim which the President makes. The state 
 ment of this arrogant and dangerous assump 
 tion is a sufficient ans-wer to any doubt which 
 might exist in the mind of any patriots to 
 the true intent and meaning of tjie^Tonstitu- 
 tion. It cannot be conceived tb^the men who 
 framed that instrument, wkef were devoted to 
 liberty, who had themselves suffered by the 
 exercise of illegal and irresponsible power, 
 would have vested in the President of the 
 United States an authority, to be exercised 
 without the restraint or control of any other 
 branch or .department of the Government, 
 which would enable him to corrupt the civil, 
 
13 
 
 military, and naval officers of the country by 
 rendering them absolutely dependent for their 
 positions and emoluments upon his will. 
 
 At the present time there are forty-one 
 thousand officers, whose aggregate emoluments 
 exceed $21,000,000 per annum. To all these 
 the President s claim applies. These facts 
 express the practical magnitude of the subject. 
 Moreover, this claim was never asserted by 
 any President or by any public man from the 
 beginning of the Government until the present 
 time. It is in violation also of the act of July 
 13, 18G6, which denies to the Executive the 
 power to remove officers of the Army and the 
 Navy, except upon sentence of a court-martial. 
 The history of the career of Andrew Johnson 
 shows that he has been driven to the assertion 
 of this claim by circumstances and events con 
 nected with his criminal design to break down 
 the power of Congress, to subvert the institu 
 tions of the country, and thereby to restore 
 the Union in the interest of those who partici 
 pated in the rebellion. Having entered upon 
 this career of crime, he soon found it essential 
 to the accomplishment of his purposes to secure 
 the support of the immense retinue of public 
 officers of every grade and description in the 
 country. This he could not do without making 
 them entirely dependent upon his will; and in 
 order that they might realize their dependence, 
 and thus be made subservient to his purposes, 
 he determined to assert an authority over them 
 unauthorized by the Constitution, and there 
 fore not attempted by any Chief Magistrate. 
 His conversation with Mr. Wood in the autumn 
 of 1866 fully discloses this purpose. 
 
 Previous to the passage of the tenure- of- 
 office act he had removed hundreds of faithful 
 and patriotic public officers, to the great detri 
 ment of the public service, and followed by an 
 immense loss of the public revenues. At the 
 time of the passage of the act he was so far 
 involved in his mad schemes schemes of am 
 bition and revenge that it was, in his view, 
 impossible for him to retrace his steps. He 
 consequently determined, by various artifices 
 and plans, to undermine that law and secure to 
 himself, in defiance of the will of Congress and 
 of the country, entire control of the officers in 
 the civil service and in the Army and the Navy. 
 He thus becamegradually involved in an unlaw 
 ful undertaking from which he could not re 
 treat. In the presence of the proceedings 
 against him by the House of Representatives 
 he had no alternative but to assert that under 
 the Constitution power was vested in the Pres 
 ident exclusively, without the advice and con 
 sent of the Senate, to remove from office every 
 person in the service of the country. This 
 policy, as yet acted upon in part, and devel 
 oped chiefly in the civil service, has already pro 
 duced evils which threaten the overthrow of 
 the Government. When he removed faithful 
 public officers, and appointed others whose only 
 claim to consideration was their unreasoning 
 devotion to his interest and unhesitating obe 
 
 dience to his will, they compensated themselves 
 for this devotion and this obedience by frauds 
 upon the revenues and by crimes against the 
 laws of the land. Hence it has happened that 
 in the internal revenue service alone chiefly 
 through the corruption of men whom he has 
 thus appointed the losses have amounted to 
 not less than twenty-five, and probably to more 
 than fifty million dollars during the last two 
 years. 
 
 In the presence of these evils, which were 
 then only partially realized, the Congress .of 
 the United States passed the tenure-of-office 
 act as a barrier to their further progress. 
 This act thus far has proved ineffectual as a 
 complete remedy ; and now the President, by 
 his answer to the articles of impeachment, 
 asserts his right to violate it altogether, and 
 by an interpretation of the Constitution which 
 is alike hostile to its letter and to the peace 
 and welfare of the country he assumes to 
 himself absolute and unqualified power over 
 all the offices and officers of the country. The 
 removal of Mr. Stanton, contrary to the Con 
 stitution and the laws, is the particular crime 
 of the President for which we now demand 
 his conviction. The extent, the evil charac 
 ter, and the dangerous nature of the claims by 
 which he seeks to justify his conduct are con 
 trolling considerations. By his conviction you 
 purify the Government, and restore it to its ori 
 ginal character. By his acquittal you surren 
 der the Government into the hands of an usurp 
 ing. and unscrupulous man, who will use all the 
 vast power he now claims for the corruption 
 of every branch of the public service and the 
 final overthrow of the public liberties. 
 
 Nor is it any excuse for the President that 
 he has, as stated in his answer, taken the ad 
 vice of his Cabinet officers in support of his 
 claim. In the first place, he had no right 
 under the Constitution to the advice of the 
 head of a Department except upon subjects 
 relating to the duties of his Department. If 
 the President has chosen to seek the advice of 
 his Cabinet upon other matters, and they have 
 seen fit to give it upon subjects not relating 
 to their respective Departments, it is advice 
 which he had no constitutional authority to 
 ask, advice which they were not bound to 
 give, and that advice is to him, and for all 
 the purposes of this investigation and trial, as 
 the advice of private persons merely. But of 
 what value can be the advice of men who, in 
 the first instance, admit that they hold their 
 offices by the will of the person who seeks 
 their advice, and who understand most clearly 
 that if the advice they give should be contrary 
 to the wishes of their master they would be at 
 once, and in conformity with their own theory 
 of the rights of the President, deprived of the 
 offices which they hold? Having first made 
 these men entirely dependent upon his will, he 
 then solicits their advice as to the application 
 of the principle by which they admit that they 
 hold their places to all the other officers of the 
 
14 
 
 Government. Could it have been expected 
 that they, under such circumstances, would 
 have given advice in any particular disagree 
 able to the will of him who sought it? 
 
 It was the advice of serfs to their lord, of 
 servants to their master, of slaves to their 
 owner. 
 
 The Cabinet respond to Mr. Johnson as old 
 Polonius to Hamlet. Hamlet says : 
 
 "Do you see yonder cloud, that s almost in shape 
 of a, camel? 
 
 "Polonius. By the mass, and tis like a camel, 
 iiwleed. 
 
 "Hamlet. Methinks it is like a weasel. 
 
 "Polonius. It is backed like a weasel. 
 
 "Hamlet. Or, like a whale? 
 
 "Polonius. Very like a whale." 
 
 The gentlemen of the Cabinet understood the 
 position that they occupied. The President, 
 in his message to the Senate upon the suspen 
 sion of Mr. Stanton, in which he says that he 
 tookthe advice of his Cabinet in reference to his 
 action upon the bill regulating the tenure of 
 certain civil offices, speaks thus : 
 
 " The bill had then not become a law. The limita 
 tion upon the power of removal was notyet imposed, 
 and there was yet time to make any changes. If any 
 one of these gentlemen had then said to me that he 
 would avail himself of the provisions of that bill in 
 case it became a law, I should not have hesitated a 
 moment as to his removal." 
 
 Having indulged his Cabinet in such freedom 
 of opinion when he consulted them in reference 
 to the constitutionality of the bill, and having 
 covered himself and them with public odium by 
 its announcement, he now vaunts their opin 
 ions, extorted by power and given in subserv 
 iency, that the law itself may be violated with 
 impunity. This, says the President, is the exer 
 cise of my constitutional right to the opinion 
 of my Cabinet. I, says the President, am re 
 sponsible for my Cabinet. Yes, the President 
 is responsible for the opinions and conduct 
 of men who give such advice as is demanded, 
 and give it in fear and trembling lest they be 
 at once deprived of their places. This is the 
 President s idea of a Cabinet, but it is an 
 idea not in harmony with the theory of the Con 
 stitution. 
 
 The President is a man of strong will, of 
 violent passions, of unlimited ambition, with 
 capacity to employ and use timid men, adhe 
 sive men, subservient men, and corrupt men, 
 as the instruments of his designs. It is the 
 truth of history that he ha^ injured every per 
 son with whom he has had confidential rela 
 tions, and many have escaped ruin only by 
 withdrawing from his society altogether. He 
 has o; f I .fj: he attempts fco u^o every 
 man of power, capacity, or influence within 
 his reach. Succeeding in his attempts, they 
 are in time, and usually in a short time, utterly 
 ruined. If the considerate flee from him, if 
 the brave and patriotic resist his schemes or 
 expose his plans, he attacks them with all the 
 enginery and patronage of his office and pur 
 sues them with all the violence of his personal 
 hatred. He attacks to destroy all who will 
 
 not become his instruments, and all who be 
 come his instruments are destroyed in the use. 
 He spares no one. Already this purpose of 
 his life is illustrated in the treatment of a gen 
 tleman who was of counsel for the respondent, 
 but who has never appeared in his behalf. 
 
 The thanks of the country are due to those 
 distinguished soldiers who, tempted by the 
 President by offers of kingdoms which were 
 not his to give, refused to fall down and wor 
 ship the tempter. And the thanks of the 
 country are not less due to General Emory, 
 who, when brought into the presence of the 
 President by a request which he could not dis 
 obey, at once sought to protect himself against 
 his machinations by presenting to him the law 
 upon the subject of military orders. 
 
 The experience and the fate of Mr. John 
 son s eminent adherents are lessons of warn 
 ing to the country and to mankind ; and the 
 more eminent and distinguished of his adhe 
 rents have furnished the most melancholy les 
 sons for this and for succeeding generations. 
 
 It is not that men are ruined when they 
 abandon a party; but in periods of national 
 trial and peril the people will not tolerate those 
 who, in any degree or under any circumstances, 
 falter in their devotion to the rights and in 
 terests of the Republic. In the public judg 
 ment, which is seldom erroneous in regard to 
 public duty, devotion to the country and ad 
 herence to Mr. Johnson are and have been 
 wholly inconsistent. 
 
 Carpenter s historical painting of Emancipa 
 tion is a fit representation of an event the most 
 illustrious of any in the annals of America 
 since the adoption of the Constitution. Indeed, 
 it is second to the ratification of the Constitu 
 tion only in the fact that that instrument, .as a 
 means of organizing and preserving the nation, 
 rendered emancipation possible. The princi 
 pal figure of the scene is the immortal Lincoln, 
 whose great virtues endear his name and mem 
 ory to all mankind, and whose untimely and 
 violent death, then the saddest event in our 
 national experience, but now not deemed so 
 great .a calamity to the people who loved him 
 | and mourned for him as no public man was 
 ever before loved or lamented, as is the shame, 
 humiliation, disgrace, and suffering caused by 
 the misconduct and crimes of his successor. 
 It was natural and necessary that the artist 
 should arrange the personages of the group on 
 the right hand and on the left of the principal 
 figure. Whether the particular assignment was 
 by chance, by the taste of the artist, or .fey the 
 influence of a mysterious Provide^x^e which 
 works through human agency,^re know not. 
 But on the right of Lincoln are two statesmen 
 and patriots who, in all the trials and vicissi 
 tudes of these eventful years, have remained 
 steadfast to liberty, to justice, to the principles 
 of constitutional government. Senators and 
 Mr. Chief Justice, in this presence I venture 
 not to pronounce their names. 
 On the left of Lincoln are five figures respre- 
 
15 
 
 senting the other members of his Cabinet. 
 One of these is no longer among the living ; he 
 died before the evil days came, and we may 
 indulge the hope that he would have escaped 
 the fate of his associates. Of the other four 
 three have been active in counseling and sup 
 porting the President in his attempts to subvert 
 the Government. They are already ruined 
 men. Upon the canvas they are elevated to 
 the summit of virtuous ambition. Yielding to 
 the seductions of power they have fallen. Their 
 example and fate may warn us, but their ad 
 vice and counsel, whether given to this tribunal 
 or to him who is on trial before this tribunal, 
 cannot be accepted as the judgment of wise or 
 of patriotic men. 
 
 On motion of Mr. SPRAGUE, at two o clock 
 and fifteen minutes p. m., the Senate took a 
 recess for fifteen minutes. 
 
 At the expiration of the recess the Chief 
 Justice resumed the chair and called the Sen 
 ate to order. 
 
 Mr. SHERMAN. I move that the roll of 
 the Senators be called, so that we may get their 
 attendance. 
 
 Mr. CONNESS. That is never done. 
 
 Mr. SHERMAN. It can be done. A mo 
 tion to adjourn will have the same effect prac 
 tically. 
 
 Mr. CONNESS. The Senator may move an 
 adjournment and get a call in that way. 
 
 Mr. SHERMAN. I move a call of the 
 Senators. 
 
 The CHIEF JUSTICE. The Senator from 
 Ohio moves that the roll of the Senate be 
 called. 
 
 Mr. CONNESS. It never has been done. 
 
 Mr. SUMNER. The rule provides for a 
 call of the Senate. 
 
 Mr. CONNESS. I should like to hear the 
 rule. 
 
 Mr. SUMNER. It is Rule 16. 
 
 The CHIEF JUSTICE. The Secretary will 
 read the sixteenth rule of the Senate. 
 
 The Chief Clerk read as follows: 
 
 " 16. When the yeas and nays shall be called for by 
 one fifth of the Senators present, each Senatorcalled 
 upon shall, unless for special reasons he be excused 
 by the Senate, declare openly and without debate his 
 assent or dissent to the question. In taking the yeas 
 and nays, and upon a call of the Senate, the names 
 of the Senators shall be called alphabetically." 
 
 The CHIEF JUSTICE. If there be no ob 
 jection the Secretary will call the roll to ascer 
 tain who are present. 
 
 Mr. DRAKE. I object, sir. 
 
 Mr. SHERMAN. 1 move that there be a 
 call of the Senate. 
 
 The motion was agreed to ; and the roll 
 being called, forty-four Senators answered to 
 their names. 
 
 The CHIEF JUSTICE. There are forty- 
 four Senators answering to their names. The 
 honorable Manager will proceed. 
 
 Mr. Manager BOUTWELL. Mr. President, 
 Senators, leaving the discussion of the provis 
 ions of the Constitution, I am now prepared to 
 
 ask your attention to the character and history 
 of the act of 1789, on which stress has been laid 
 by the President in his answer, and by the learned 
 counsel who opened the case for the respond 
 ent. The discussion in the House of Repre 
 sentatives in 1789 related to the bill establish 
 ing a Department of Foreign Affairs. The first 
 section of that bill, as it originally passed the 
 House of Representatives, after recapitulating 
 the title of the officer who was to take charge 
 of the Department, and setting forth his duties, 
 contained these words in reference to the Sec 
 retary of the Department: "To be removable 
 from office by the President of the United 
 States." The House, in Committee of the 
 Whole, discussed this provision during several 
 days, and all the leading members of the body 
 appear to have taken part in the debate. As 
 is well known, there was a difference of opin 
 ion at the time as to the meaning of the Con 
 stitution. Some contended that the power of 
 removing civil officers was vested in the Presi 
 dent absolutely, to be exercised by him, with 
 out consultation with the Senate, and this as 
 well when the Senate was in session as during 
 vacations. Others maintained that the initia 
 tive in the removal of a public officer must be 
 taken by the President, but that there could be 
 no actual removal except by the advice and 
 consent of the Senate, and that this rule was 
 applicable to the powers of the President as 
 well during the vacation as during the session 
 of the Senate. Others maintained that during 
 the session of the Senate, while the initiative 
 was in the President, the actual removal of a 
 civil officer could be effected only upon the 
 advice and consent of the Senate, but that dur 
 ing the vacations the President might remove 
 such officers and fill their places temporarily, 
 under commissions, to expire at the end of the 
 next session of the Senate. Mr. Madison 
 maintained the first of these propositions, and 
 he may be said to be the only person of histor 
 ical reputation at the present day who expressed 
 corresponding opinions, although undoubted 
 ly his views were sustained by a consider 
 able number of members. It is evident from 
 an examination of the debate that Mr. Madi 
 son s views were gradually and finally success 
 fully undermined by the discussion on that 
 occasion. 
 
 As i^s well known, Roger Sherman was then 
 one of the most eminent members of that body. 
 He was a signer of the Declaration of Inde 
 pendence, a member of the Convention which 
 framed the Constitution of the United States, 
 and a member of tne House of Representa 
 tives of the First Congress. He was undoubt 
 edly one of the most illustrious men of the con 
 stitutional period of American history ; and in 
 each succeeding generation there have been 
 eminent persons of his blood and name ; but 
 at no period has his family been more distin 
 guished than at the present time. Mr. Sher 
 man took a leading part in the discussion, and 
 there is no doubt that the views which he enter- 
 
16 
 
 tained and expressed had a large influence in 
 producing the result which was finally reached. 
 The report of the debate is found in the first 
 volume of the Annals of Congress ; and I 
 quote from the remarks made by Mr. Sherman, 
 preserved on pages 510 and 511 of that volume : 
 
 "Mr. SHERMAN. I consider this a very important 
 subject in every point of view, and therefore worthy 
 of full discussion. In my mind it involves three 
 questions. First. Whether the President has, by the 
 Constitution, the right to remove an officer appointed 
 by and with the advice and consent of the Senate. 
 No gentleman contends but that the advice and con 
 sent of the Senate are necessary to make the appoint 
 ment in all cases, unless in inferior offices where the 
 contrary is established by law; but then they allege 
 that, although the consent of the Senate be neces 
 sary to the appointment, the President alone, by. the 
 nature of his office, has the P9\ver of removal. Now, 
 it appears to me that this opinion is ill-founded, be 
 cause this provision was intended for some useful 
 purpose, and by that construction would answer 
 none at all. I think the concurrence of the Senate 
 as necessary to appoint an officer as the nomination 
 of the President; they are constituted as mutual 
 checks, each having a negative upon the other. 
 
 "I consider it as an established principle that the 
 power which appoints can also remove, unless there 
 are express exceptions made. Now, the power which 
 appoints the judges cannot displace them, because 
 there is a constitutional restriction in their favor; 
 otherwise the President, by and with the advice and 
 consent of the Senate, being the power which ap 
 pointed them, would be sufficient to remove them. 
 This is the construction in England, where the king 
 has the power of appointing judges; it was declared 
 to be during pleasure, and they might be removed 
 when the monarch thought proper. It is a general 
 principle in law as well as reason that there shall 
 be the same authority to remove as to establish. It 
 is so in legislation, where the several branches whose 
 concurrence is necessary to pass a law must concur 
 in repealing it. Just so I take it to be in cases of 
 appointment, and the President alone may remove 
 when he alone appoints, as in the case of inferior 
 offices to be established by law." ***** 
 
 "As the office is the mere creature of the Legisla 
 ture we may form it under such regulations as we 
 please, with such powers and duration as we think 
 good policy requires. We may say he shall hold his 
 office during good behavior, or that he shall be an 
 nually elected. We may say he shall be displaced 
 for neglect of duty, and point out how he shall be 
 convicted of it without calling upon the President 
 or Senate. 
 
 "The third question is, if the Legislature has the 
 power to authorize the President alone to remove 
 this officer whether it is expedient to invest him with 
 it? I do not believe it absolutely necessary tbat he 
 should have such power, because the power of sus 
 pending would answerall the purposes which gentle 
 men have in view by giving the power of removal. 
 I do not think that the officer is only to be removed 
 by impeachment, as is argued by the gentleman from 
 South Carolina, (Mr. Smith,) because he is the mere 
 creature of the law, and we can direct him to be re 
 moved on conviction of mismanagement or inability 
 without calling upon the Senate for their concur 
 rence. But I believe, if we make no such provision, 
 he may constitutionally be removed by the Pres 
 ident, by and with the advice and consent of the Sen 
 ate ; and I believe it would be most expedient for us 
 to say nothing in the clause on this subject." 
 
 I may be pardoned if I turn aside for a mo 
 ment, and, addressing myself to the learned 
 gentleman of counsel for the respondent who 
 is to follow me in argument, I request him to 
 refute, to overthrow the constitutional argu 
 ment of his illustrious ancestor, Koger Sher 
 man. Doing this, he will have overcome the 
 first, but only the first, of a series of obstacles 
 in the path of the President. 
 
 In harmony with the views of Mr. Sherman 
 was the opinion expressed by Mr. Jackson, of 
 Georgia, found on page 508 of the same volume. 
 He says : 
 
 " I shall agree to give him [that is, the President] 
 the same power in cases of removal that he has in 
 appointing ; but nothing more. Upon this principle 
 I would agree to give him the power of suspension 
 during the recess of the Senate. This, in my opinion, 
 would effectually provide against those inconven 
 iences which have been apprehended and not ex 
 pose the Government to those abuses we have to 
 dread from the wanton and uncontrollable authority 
 of removing officers at pleasure." 
 
 It may be well to observe that Mr. Madison, 
 in maintaining the absolute power of the Pres 
 ident to remove civil officers, coupled with his 
 opinions upon that point doctrines concerning 
 the power of impeachment which would be 
 wholly unacceptable to this respondent. And, 
 indeed, it is perfectly apparent that without 
 the existence of the power to impeach and re 
 move the President of the United States from 
 office in the manner maintained by Mr. Madi 
 son in that debate, that the concession of 
 absolute power of removal would end in the 
 destruction of the Government. Mr. Madison, 
 in that debate, said : 
 
 " The danger to liberty, the danger of maladminis 
 tration, has not yet been found to lie so much in the 
 facility of introducing improper persons into office 
 as in the difficulty of displacing those who are un 
 worthy of the public trust." Annals of Congress, p. 
 515, vol. 1. 
 
 Again, he says : 
 
 "Perhaps the great danger, a,shas been observed, of 
 abuse in the executive power lies in the improper 
 continuance of bad men in office. But the power we 
 contend for will not enable him to do this ; for if an 
 unworthy man be continued in office by an unworthy 
 President the House of Representatives can at any 
 time impeach him, and the Senate can remove him, 
 whether the President chooses or not. The danger, 
 then, consists merely in this: the President can dis 
 place from office a man whose merits require that he 
 should be continued in it. Whatwill be the motives 
 which the President can feel for such abuse of his 
 power and the restraints that operate to prevent it ? 
 In the first place he will be impeachable by this 
 House before the Senate for such an act of malad 
 ministration ; for I contend that the wanton removal 
 of meritorious officers would subject him to impeach 
 ment and removal from his high trust." Annals of 
 Congress, p. 517, vol. 1. 
 
 It is thus seen that Mr. Madison took great 
 care to connect his opinions of the power of 
 removal in the President with a distinct decla 
 ration that if this power was improperly exer 
 cised by the President he would himself be 
 liable to impeachment and removal from office. 
 If Mr. Madison s opinions were to be accepted 
 by the President as a whole, he would be as 
 defenseless as he is at the present time if^ar- 
 raigned upon articles of impeachment Based 
 upon acts of maladministration in J&e removal 
 of public officers; The result of the debate 
 upon the bill for establishing the executive De 
 partment of Foreign Affairs was that the phrase 
 in question which made the head of the Depart 
 ment "removable from office by the President 
 of the United States" was stricken out by a 
 vote of 31 in the affirmative to 1*3 in the nega 
 tive, and another form of expression was intro- 
 
17 
 
 duced into the second section which is mani 
 festly in harmony with the views expressed by 
 Mr. Sherman and those who entertained cor 
 responding opinions. 
 
 The second section is in these words: 
 
 "SKC. 2. And be it further enacted, That there shall 
 be in the said Department an inferior officer, to be 
 appointed by the said principal officer, and to be em 
 ployed therein as he shall deem proper, and to be 
 called the chief clerk t>f the Department 9f Foreign 
 Affairs, and who, whenever the said principal officer 
 shall be removed from office by the President of the 
 United States, or in other case of vacancy, shall, 
 during such vacancy, have the charge and custody 
 of all records, books, and papers appertaining to said 
 Department. United States Statutes-at-Large, vol. 1, 
 
 It wiil be seen that the phrase here employed, 
 whenever the said principal officer shall be 
 removed from office by the President of the 
 United States," is not a grant of power to the 
 President; nor is it, as was asserted by the 
 counsel for the respondent, a legislative inter 
 pretation of a constitutional power. But it is 
 merely at most a quasi recognition of a power 
 in the Constitution to be exercised by the Pres 
 ident, at some time, under some circumstances, 
 and subject to certain limitations. But there is 
 no statement or declaration of the time when 
 such power could be exercised, the circum 
 stances under which it might be exercised, or 
 the limitations imposed upon its exercise. 
 
 All these matters are left subject to the op 
 eration of the Constitution and to future legis 
 lation. This is in entire harmony with the 
 declaration made by Mr. White, of North 
 Carolina, in the debate of 1789. He says: 
 
 "Let us then leave the Constitution to a free oper 
 ation, and let the President, with or without the 
 consent of the Senate, carry it into execution. Then, 
 if anyone supposes himself injured by their determ 
 ination, let him have recourse to the law, and its 
 decision will establish the true construction of the 
 Constitution." 
 
 Mr. Gerry, of Massachusetts, also said : 
 
 " Hence all construction of the meaning of the Con 
 stitution is dangerous or unnatural, and therefore 
 ought to be avoided. This is our doctrine, that no 
 power of this kind ought to be exercised by the Legis 
 lature. But we say, if we must give a construction 
 to the Constitution, it is more natural to give the con 
 struction in favorof the power of removal vestingin 
 the President, by and vfith the advice and consent of 
 the Seriate; because it is in the nature of things that 
 the power which appoints removes also." 
 
 Again, Mr. Sherman said, speaking of the 
 words which were introduced into the first 
 section and finally stricken out: 
 
 " I wish, Mr. Chairman, that the words may be left 
 out of the bill, without giving up the question either 
 way as to the propriety of the measure." 
 
 The debate upon the bill relating to the De 
 partment for Foreign Affairs occurred in the 
 month of June, 1789 ; in the following month 
 of August Congress was engaged in consider 
 ing the bill establishing the Treasury Depart 
 ment. This bill originated in the House, and 
 contained the phrase now found in it, being 
 the same as that contained in the bill establish 
 ing the State Department. 
 
 The Senate was so far satisfied of the impol 
 icy of making any declaration whatever upon 
 
 the subject of removal that the clause was 
 struck out by an amendment. The House re 
 fused to concur, however, and the Senate, by 
 the casting vote of the Vice President, receded 
 ! from the amendment. 
 
 All this shows that the doctrine of the right 
 of removal by the President survived the de 
 bate only as a limited and doubtful right at 
 most. 
 
 The results reached by the Congress of 1789 
 are conclusive upon the following points : ihat 
 that body was of opinion that the power of 
 removal was not in the President absolutely, 
 to be exercised at all times and under all cir 
 cumstances; and secondly, that during the ses 
 sions of the Senate the power of removal was 
 vested in the President and Senate, to be 
 exercised by their concurrent action ; while 
 the debate and the votes indicate that the power 
 of the President to remove from office during 
 the vacation of the Senate was, at best, a 
 doubtful power under the Constitution. 
 
 It becomes us next to consider the practice 
 of the Government, under the Constitution, 
 and in the presence of the action of the First 
 Congress, by virtue of which the President now 
 claims an absolute, unqualified, irresponsible 
 power over all public officers, and this without 
 the advice and consent of the Senate or the 
 concurrence of any other branch of the Gov 
 ernment. In the early years of the Govern 
 ment the removal of a public officer by the 
 President was a rare occurrence, and it was 
 usually resorted to during the session of the 
 Senate, for misconduct hi office only, and ac 
 complished by the appointment of a successor 
 through the advice and consent of the Senate. 
 Gradually a practice was introduced, largely 
 through the example of Mr. Jefferson, of re 
 moving officers during the recess of the Sen 
 ate and filling their places under commissions 
 to expire at the end of the next session. But 
 it cannot be said that this practice became com 
 mon until the election of General Jackson, in 
 1828. During his administration the practice 
 of removing officers during the recesses of the 
 Senate was largely increased, and in the year 
 1832, on the 18th of September, General Jack 
 son removed Mr. Duane from the office of Sec 
 retary of the Treasury. This occurred, how 
 ever, during a recess of the Senate. This act 
 on his part gave rise to a heated debate in 
 Congress and an ardent controversy through 
 out the country, many of the most eminent 
 men contending that there was no power in 
 the President to remove a civil officer, even 
 during the recess of the Senate. The triumph 
 of General Jackson in that controversy gave a 
 full interpretation to the words which had been 
 employed in the statute of 1789. 
 
 But. at the same time, the limitations of that 
 power in the President were clearly settled, 
 both upon the law and upon the Constitution, 
 that whatever might be his power of removal 
 during a recess of the Senate, he had no right 
 to make a removal during a session of th _ Sen- 
 
18 
 
 ate, except upon the advice and consent of that 
 body to the appointment of a successor. This ; 
 was the opinion of Mr. Johnson himself, as 
 stated by him in a speech made in the Senate 
 on the 10th of January, 1801: 
 
 " I meant that the true way to fight the battle was j 
 for us to remain here and occupy the places assigned 
 to us by the Constitution of the country. Why did L 
 make that statement? It wa.s because on the 4th day I 
 of March next we shall have six majority in this j 
 body; and if, as some apprehended, the incoming ! 
 Administration shall show any disposition to make 
 encroachments upon the institution of slavery, en- j 
 croachments upon the rights of the States or any i 
 other violation of the Constitution, we, by remaining 
 in the Union and standing at our places, will have 
 the power to resist all these encroachments. How? i 
 We have the power even to reject the appointment 
 of the Cabinet officers of the incoming President. 
 Then should we not be fighting the battle in the 
 Union by resisting even the organization of the Ad 
 ministration in a constitutional mode, and thus, at 
 the very start, disable an Administration which was 
 likely to encroach on our rights and to violate the 
 Constitution of the country? So far as appointing 
 even a minister abroad is concerned, the incoming 
 Administration will have no power without our con-, 
 sent if we remain here. It comes into office hand 
 cuffed, powerless to do harm. We, standing here, 
 hold the balance of power in our hands; we can resist 
 it at the very threshold effectually, and do it inside 
 of the Union and in our house. The incoming Ad 
 ministration has not even the power to appoint a 
 postmaster whose salary exceeds $1,000 a year with 
 out consultation with, and the acquiescence of, the 
 Senate of the United States. The President has ; not 
 even the power to draw his salary, his $25,000 per 
 annum, unless we appropriate it." Congressional 
 Globe, vol. , page . 
 
 It may be well observed that, for the pur 
 poses of this trial, and upon the question 
 whether the President is or is not guilty under 
 the first three articles exhibited against him by 
 the House of Representatives, it is of no con 
 sequence whether the President of the United 
 States has power to remove a civil officer dur 
 ing a recess of the Senate. The fact charged 
 and proved against the President, and oil which, 
 as one fact proved against him, we demand his 
 conviction, is, that he attempted to remove 
 Mr. Stanton from the office of Secretary of 
 War during a session of the Senate. It can 
 not be claimed with any propriety that the act 
 of 1789 can be construed as a grant of power 
 to the President to an extent beyond the prac 
 tice of the Government for three quarters of 
 a century under the Constitution and under 
 the provisions of the law of 1789. None of 
 the predecessors of Mr. Johnson, from General 
 Washington to Mr. Lincoln, although the act 
 of 1789 was in existence during all that period, 
 had ever ventured to claim that either under 
 that act or by virtue of the Constitution the 
 President of the United States had power to 
 remove a civil officer during a session of the 
 Senate without its consent and advice. The 
 utmost that can be said is, that for the last 
 forty years it had been the practice of the Ex 
 ecutive to remove civil officers at pleasure dur 
 ing the recess of the Senate. While it maybe 
 urged that this practice, in the absence of any 
 direct legislation upon the subject, had become 
 the common law of the country, protecting the 
 Executive in a policy corresponding to that 
 
 practice, it is also true, for stronger reasons, 
 that Mr. Johnson was bound by his oatn of 
 office to adhere to the practice of his prede 
 cessors in other particulars, none of whom had 
 i ever ventured to remove a civil officer from 
 : his office during the session of the Senate and 
 ! appoint a successor, either permanent or ad 
 j interim, and authorize that successor to enter 
 ; upon the discharge of the duties of such office. 
 j The case of Timothy Pickering has been ex- 
 | plained and it constitutes no exception. As 
 I far as is known to me the lists of removals and 
 appointments introduced by the respondent do 
 not sustain the claim of the answer in regard 
 to the power of removal. 
 
 Hence it is that the act of 1789 is no security 
 to this respondent, and hence it is that we hold 
 him guilty of a violation of the Constitution and 
 of his oath of office under the first and third 
 articles of impeachment exhibited against him 
 by the House of Representatives, and this with 
 out availing ourselves of the provisions of the 
 tenure-of-office act of March 2, 1867. 
 
 I respectfully ask that the views now sub 
 mitted in reference to the act of 1789, may be 
 considered in connection with the argument I 
 have already offered upon the true meaning 
 of the provisions of the Constitution relating 
 to the appointment of civil officers. 
 
 I pass now to the consideration of the act 
 of the 13th of February, 1795, on which the 
 President relies as a justification for his ap 
 pointment of Lorenzo Thomas as Secretary of 
 War ad interim. By this act it is provided : 
 
 "In case of vacancy in the office of Secretary of 
 State, the Secretary of the Treasury, or of thu Sec 
 retary of the Department of War, or of any other 
 officer of either of the said Departments whose ap 
 pointment is not in the head thereof, whereb} they 
 cannot perform the duties of their said respective 
 offices, it shall be lawful for the President of the United 
 States, in case he shall think it necessary, to author 
 ize any person or persons, at his discretion, to per 
 form the duties of the said respective offices until a 
 successor be appointed or such vacancy be tilled: 
 Provided, That no one vacancy shall be supplied 
 in manner aforesaid, for a longer term than six 
 months."! Statutes-ut-Large, p. 415. 
 
 The ingenuity of the .President and his coun 
 sel has led them to maintain that the phrase 
 "in case of vacancy," used in this statute, 
 relates to any and every vacancy, however pro 
 duced. But the reading of the entire section, 
 whether casually or carefully, shows that the 
 purpose of the law was to provide a substitute 
 temporarily in case of vacancy whereby the 
 person in office could not perform the duties 
 of his office, and necessarily applied only to 
 those contingencies of official life which put it 
 out of the power of the person in office to dis 
 charge the duties of the place; such as sick 
 ness, absence, or inability of any sort. And 
 yet the President and his counsel contend that 
 a removal by the President is a case of vacancy 
 contemplated by the law, notwithstanding the 
 limitation of the President in his power of 
 appointing an officer temporarily as to those 
 cases which render it impossible for the duly 
 commissioned officer to perform the duties of 
 
19 
 
 his office. When it is considered, as I have 
 shown, that the President had no power and 
 this without considering the tenure- of- office act 
 of March 2, 1867 to create a vacancy during 
 a session of the Senate, the act of 1795, even 
 upon his construction, furnishes no defense 
 whatever. But we submit that if he had pos 
 sessed the power which he claims by virtue of 
 the act of 1789, that the vacancy referred to in 
 the act of 1795 is not such a vacancy as is 
 caused by the removal of a public officer, but 
 that that act is limited to those vacancies which 
 arise unavoidably in the public service and 
 without the agency of the President. But there 
 is in the section of the act of 1795, on which 
 the President relies, a proviso which nullifies 
 absolutely the defense which he has set up. 
 This proviso is that no one vacancy shall be 
 supplied in manner aforesaid (that is, by a 
 temporary appointment) for a longer term than 
 six months. 
 
 Mr. Johnson maintains that he suspended 
 Mr. Stanton from the office of Secretary of War 
 on the 12th of August last, not by virtue of the 
 tenure-of-office act of March 2, 1867, but under 
 a power incident to the general and unlimited 
 power of removal, which, as he claims, is vested 
 in the President of the United States, and that, 
 from the 12th of August last, Mr. Stanton has 
 not been entitled to the office of Secretary for 
 the Department of War. if he suspended Mr. 
 Stanton as an incident of his general power of 
 removal, then his suspension, upon the Presi 
 dent s theory, created a vacancy such as is 
 claimed by the President under the statute of 
 1795. The suspension of Mr. Stanton put him 
 in such a condition that he " could not perform 
 the duties of the office. The President claims 
 also to have appointed General Grant Secretary 
 of War ad interim on the 12th of August last, 
 by virtue of the statute of 1795. The proviso 
 of that statute declares that no one vacancy 
 shall be supplied in manner aforesaid (that is, 
 by temporary appointment) for a longer term 
 than six months. If the act of 1795 were in 
 force, and if the President s theory of his rights 
 under the Constitution and under that act were 
 a valid theory, the six months during which 
 the vacancy might have been supplied tempo 
 rarily expired by limitation on the 12th day of 
 February, 1868, and yet on the 21st day of 
 February, 1868, the President appointed Lo 
 renzo Thomas Secretary of War ad interim to 
 the same vacancy, and this in violation of the 
 statute which he pleads in his own defense. It 
 w too clear for argument that if Mr. Stanton 
 was lawfully suspended, as the President now 
 claims, but not suspended under the tenure-of- 
 office act, then the so-called restoration of Mr. 
 Stanton on the 13th January was wholly illegal. 
 But if the statute of 1795 is applicable to a 
 vacancy created by suspension or removal, then 
 the President has violated it by the appoint 
 ment of General Thomas Secretary of War ad 
 interim. And if the statute of 1795 is not ap 
 plicable to a vacancy occasioned by a removal, i 
 
 then the appointment of General Thomas Sec 
 retary of War ad interim is without authority 
 or the color of authority of law. 
 
 The fact is, however, that the statute of 1795 
 is repealed by the operation of the statute of 
 the 20th of February, 1863. (Statutes-at-Large, 
 vol. 12, p. 656.) 
 
 If Senators will consider the provisions of 
 the statute of 1863 in connection with the power 
 of removal under the Constitution during a ses 
 sion of the Senate, by and with the advice and 
 consent of the Senate, and the then recognized 
 power of removal by the President during a 
 recess of the Senate to be filled by temporary 
 appointments, as was the practice previous to 
 March 2, 1867, they will find that provision 
 was made by the act of 1863 for every vacancy 
 which could possibly arise in the public service. 
 
 The act of February 20, 1863, provides 
 
 " That in case of the death, resignation, absence 
 from the seat of Government, or sickness of the head 
 of an executive Department of the Government, or 
 of any officer of either of thesaid Departments whose 
 appointment is not in the head thereof, whereby they 
 cannot perform the duties of their respective offices, it 
 shall be lawful forthe President of the United States, 
 in case he shall think it necessary, to authorize the 
 head of any other executive Department or other 
 officer in either of said Departments whose appoint 
 ment is vested in the President, at his discretion, to 
 perform the duties of the said respective offices until 
 a successor be appointed, or until such absence or in 
 ability shall cease: Provided, That no one vacancy 
 shall be supplied in manner aforesaid for a longer 
 term than six months." 
 
 Provision was thus made by the act of 1863 
 for filling all vacancies which could occur under 
 any circumstances. It is a necessary rule of 
 construction that all previous statutes making 
 other and different provisions for the filling oi 
 vacancies are repealed by the operation of more 
 recent statutes ; and for the plain reason that 
 it is inconsistent with any theory of govern 
 ment that there should be two legal modes in 
 existence at the same time for doing the same 
 thing. 
 
 If the view I have presented be a sound one 
 it is apparent that the President s conduct 
 finds no support either in the Constitution, in 
 the act of 1789, or in the legislation of 1795, 
 on which he chiefly relies as a justification for 
 the appointment of Thomas as Secretary of 
 War ad inttrim. It follows, also, that if the 
 tenure-of-office act had not been passed the 
 President would have been guilty of a high 
 misdemeanor, in that he issued an order for 
 the removal of Mr. Stanton from office during 
 tho session of the Senate, in violation of the 
 Constitution and of his own oath of office ; 
 that he was guilty of a high misdemeanor in 
 the appointment of Lorenzo Thomas as Sec 
 retary of War ad interim, and this whether 
 the act of the 13th of February, 1795, is in 
 force, or whether the same has been repealed 
 by the statute of 1863. His guilt is thus fully 
 proved and established as charged in the first, 
 second, and third articles of impeachment 
 exhibited against him by the House of Repre 
 sentatives, and this without considering the 
 
20 
 
 requirements or constitutionality of the act 
 regulating the tenure of certain civil offices. 
 
 i pass now to the consideration of the tenure- 
 of- office act. I preface \vhat I have to say by 
 calling to your attention that portion of my 
 argument already addressed to you, in which 
 I have set forth and maintained, as I was able, 
 the opinion that the President had no right to 
 make any inquiry whether an act of Congress 
 is or is not constitutional; that, having no right 
 to make such inquiry, he could not plead that 
 he had so inquired and reached the conclu 
 sion that the act inquired about was invalid. 
 You will also bear in mind the views presented, 
 that this tribunal can take no notice of any 
 argument or suggestion that a law deemed 
 unconstitutional may be willfully violated by 
 the President. The gist of his crime is that 
 he intentionally disregarded a law, and, in the 
 nature of the case, it can be no excuse or de 
 fense that such law, in his opinion, or in the 
 opinion of others, was not in conformity with 
 the Constitution. 
 
 In this connection I desire to call your at 
 tention to suggestions made by the President, 
 and by the President s counsel by the Presi 
 dent in his message of December, 1867, and 
 by the President s counsel in his opening argu 
 ment that if Congress were by legislation to 
 abolish a department of the Government, or 
 to declare that the President should not be 
 Commander-in-Chief of the Army or the Navy, 
 that it would be the duty of the President to 
 disregard such legislation. These are extreme 
 cases and not within the range of possibility. 
 Members of Congress are individually bound 
 by an oath to support the Constitution of the 
 United States, and it is not to be presumed, 
 even for the purpose of argument, that they 
 would wantonly disregard the obligations of 
 their oath, and enact in the form of law rules 
 or proceedings in plain violation of the Con 
 stitution. Such is not the course of legisla 
 tion, and such is not the character of the act 
 we are now to consider. The bill regulating 
 the tenure of certain civil offices was passed 
 by a constitutional majority in each of the two 
 Houses, and it is to be presumed that each 
 Senator and Representative who gave it his 
 support did so in the belief that its provisions 
 were in harmony with the provisions of the 
 Constitution. We are now dealing with prac 
 tical affairs, and conducting the Government 
 within the Constitution ; and in reference to 
 measures passed by Congress under such cir 
 cumstances, it is wholly indefensible for the 
 President to suggest the course that, in his 
 opinion, he would be justified in pursuing if 
 Congress were openly and wantonly to disre 
 gard the Constitution and inaugurate revolu 
 tion in the Government. 
 
 It is asserted by the cotmsel for the President 
 that he took advice as to the constitutionality 
 of the tenure-of-office act, and being of opin 
 ion that it was unconstitutional, or so much 
 of it at least as attempted to deprive him of 
 
 the power of removing the members of the 
 Cab net, he felt it to be his duty to disregard 
 its provisions ; and the question is now put 
 with feeling and emphasis whether the Pres 
 ident is to be impeached, convicted, and 
 removed from office for a mere difference of 
 opinion. True, the President is not to be 
 removed for a mere difference of opinion. If 
 he had contented himself with the opinion that 
 the law was unconstitutional, or even with the 
 expression of such an opinion privately or offi 
 cially to Congress, no exception could Lave 
 been taken to his conduct. But he has at 
 tempted to act in accordance with that opinion, 
 and in that action he has disregarded the re 
 quirements of the statute. It is for this action 
 that he is to be arraigned, and is to be con 
 victed. But it is not necessary for us to rest 
 upon the doctrine that it was the duty of the 
 President to accept the law as constitutional 
 and govern himself accordingly in all his official 
 doings. We are prepared to show that the law 
 is in truth in harmony with the Constitution, 
 and that its provisions apply to Mr. Stanton as 
 Secretary for the Department of War. 
 
 The tenure-of-office act makes no change in 
 the powers of the President and the Senate, 
 during the session of the Senate, to remove a 
 civil officer upon a nomination by the Presi 
 dent, and confirmation by the Senate, of a 
 successor. This was an admitted constitutional 
 power from the very organization of the Gov 
 ernment, while the right now claimed by the 
 President to remove a civil officer during a 
 session of the Senate, without the advice and 
 consent of the Senate, was never asserted by 
 any of his predecessors, and certainly never 
 recognized by any law or by any practice. This 
 rule applied to heads of Departments as well 
 as to other civil officers, indeed, it may be 
 said, once for all, that the tenure by which 
 members of the Cabinet have held their places 
 corresponds in every particular to the tenure 
 by which other civil officers have held theirs. 
 It is undoubtedly true that, in practice, mem 
 bers of the Cabinet have been accustomed to 
 tender their resignations upon a suggestion 
 from the President that such a course would 
 be acceptable to him. But this practice has 
 never changed their legal relations to the Pres 
 ident or to the country. There was never a 
 moment of time, since the adoption of the Con 
 stitution, when the law or the opinion of the 
 Senate recognized the right of the President 
 to remove a Cabinet officer during a sessioi; 
 of the Senate, without the consent of the Sen 
 ate given through the confirmation of a sue 
 cessor. Hence, in this particular, the tenure- 
 of-office act merely enacted and gave form to 
 a practice existing from the foundation of the 
 Government a practice in entire harmony 
 with the provisions of the Constitution upon 
 that subject. The chief change produced bj 
 the tenure-of-office act had reference to re 
 movals during the recess of the Senate. Pre 
 vious to the ^d of March, 1867, as has been 
 
21 
 
 already shown, it was the practice of the Pres 
 ident during the recesses of the Senate to re 
 move civil officers and to grant commissions 
 to other persons under the third clause of the 
 second section of the second article of the 
 Constitution. This power, as has been seen, 
 was a doubtful one in the beginning. The 
 practice grew up under the act of 1789, but 
 the right of Congress by legislation to regulate 
 the exercise of that power was not questioned 
 in the great debate of that year, nor can it 
 reasonably be drawn into controversy now. 
 
 The act of March 2, 1867, declares that the 
 President shall not exercise the power of re 
 moval, absolutely, during the recess of the 
 Senate, but that if any officer shall be shown, 
 by evidence satisfactory to the President, to be 
 guilty of misconduct in office, or of crime, or 
 for any reason shall become incapable or legally 
 disqualified to perform his duties, the President 
 may suspend him from office and designate 
 some suitable person to perform temporarily 
 the duties ol such office until the next meeting of 
 the Senate and the action of the Senate thereon. 
 
 By this legislation the removal is qualified 
 and is made subject to the final action of the 
 Senate instead of being absolute, as was the 
 fact under the practice theretofore prevailing. 
 It is to be observed, however, that this feature 
 of the act regulating the tenure of certain civil 
 offices is not drawn into controversy by these 
 proceedings, and therefore it is entirely unim 
 portant to the President whether that provision 
 of the act is constitutional or not. I can, how 
 ever, entertain no doubt of its constitutionality. 
 The record of the case shows that Mr. Stanton 
 was suspended from office during the recess, 
 but was removed from office, as far as anorder 
 of the President could effect his removal, dur 
 ing a session of the Senate. It is also wholly 
 immaterial to the present inquiry whether the 
 suspension of Mr. Stanton on the 12th of 
 August, 1867, was made under the tenure-of- 
 office act, or in disregard of it, as the President 
 now asserts. It being thus clear that so much 
 of the act as relates to appointments and re 
 movals from office during the session of the 
 Senate is in harmony with the practice of the 
 Government from the first, and in harmony 
 with the provisions of the Constitution on which 
 that practice was based, and it being admitted 
 that the order of the President for the removal 
 of Mr. Stanton was issued during a session of 
 the Senate, it is unnecessary to inquire whether 
 the other parts of the act are constitutional or 
 not, and also unnecessary to inquire what the 
 provisions of the act are in reference to the 
 heads of the several Executive Departments. I 
 presume authorities are not needed to show 
 that a law may be unconstitutional and void in 
 some of its parts, and the remaining portions 
 continue in full force. 
 
 The body of the first section of the act regu 
 lating the tenure of certain civil offices is in 
 tlu. se words : 
 
 " Every person holding any civil office to which he 
 
 has been appointed by and with the advice and con 
 sent of the Senate, and every person who shall here 
 after be appointed to any such office, and shall be 
 come duly qualified to act therein, is, and shall be 
 entitled, to hold such office until a successor shall 
 have been in like manner appointed and duly quali 
 fied, except as herein otherwise provided." 
 
 Omitting for the moment to notice the excep 
 tion, there can be no doubt that this provision 
 would have applied to the Secretary of War, 
 and to every other civil officer under the Gov 
 ernment ; nor can there be any doubt that the 
 removal of Mr. Stanton during a session of the 
 Senate is a misdemeanor by the law, and pun 
 ishable as such under the sixth section of the 
 act, unless the body of the section quoted is so 
 controlled by the proviso as to take the Secre 
 tary of War out of its grasp. The proviso is 
 in these words : 
 
 "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 one month thereafter, subject to removal by and 
 with the advice and consent of the Senate." 
 
 We maintain that Mr. Stanton, as Secre 
 tary of War, was, on the 2d day of March, 
 1867, within and included under the language 
 of the proviso, and was to hold his office for 
 and during the term of the President by whom 
 he had been appointed, and one month there 
 after, subject to removal, however, by and with 
 the advice and consent of the Senate. We 
 maintain that Mr. Stanton was then holding 
 the office of Secretary of War for and in the 
 term of President Lincoln, by whom he had 
 been appointed; that that term commenced 
 on the 4th of March, 1865, and will end on the 
 4th of March, 1869. The Constitution defines 
 the meaning of the word "term." When 
 speaking of the President, it says : 
 
 "He shall hold his office during the term of four 
 years, and, together with the Vice President, chosen 
 for the same term, be elected as follows." 
 
 Now, then, although the President first 
 elected may die during his term, the office and 
 the term of the office still remain. Having 
 been established by the Constitution, it is not 
 in any degree dependent upon the circumstance 
 whether the person elected to the term shall 
 survive to the end or not. It still is a presi 
 dential term. It still is in law the term of the 
 President who was elected to the office. The 
 Vice President was chosen at the same time 
 and elected for the same term. But it is the 
 term of a different office from that of Presi 
 dent the term of the office of Vice President. 
 Mr. Johnson was elected to the office of Vice 
 President for the term of four years. Mr. Lin 
 coln was elected to the office of President for 
 the term of four years. Mr. Lincoln died in 
 the second month of his term, and Mr. John 
 son succeeded to the office. 
 
 It was not a new office; it was not a new 
 term. He succeeded to Mr. Lincoln s office, 
 and for the remainder of Mr. Lincoln s term of 
 office. He is serving out Mr. Lincoln s term 
 
22 
 
 as President. The law says that the Secre 
 taries shall hold their offices respectively for 
 and during the term of the President by whom 
 they may have been appointed. Mr. Lincoln s 
 term commenced on the 4th of March, 1805. 
 Mr. Stanton was appointed by Mr. Lincoln; 
 he was in office in Mr. Lincoln s term, when 
 the act regulating the tenure of certain civil 
 offices was passed ; and by the proviso of that 
 act he was entitled to hold that office until one 
 month after the 4th of March, 1869, unless he 
 should be sooner removed therefrom, by and 
 with the advice and consent of the Senate. 
 
 The act of March 1, 1792, concerning the 
 succession, in case the office of President and 
 Vice President both become vacant, recognizes 
 the presidential term of four years as the con 
 stitutional term. Any one can understand that 
 in case of vacancy in the office of President 
 and Vice President, and in case of anew elec 
 tion by the people, that it would be desirable 
 to make the election for the remainder of the 
 term. But the act of 1792 recognizes the im 
 possibility of this course in the section which 
 provides that the term of four years for which a 
 President and Vice President shall be elected 
 (that is, in case of a new election, as stated,) 
 shall in all cases commence on the 4th clay of 
 March next succeeding the day on which the 
 votes of the electors shall have been given. 
 
 It is thus seen that by an election to fill a 
 vacancy the Government would be so far 
 changed in its practical working that the sub 
 sequent elections of President, except by an 
 amendment to the Constitution, could never 
 again occur in Xhe years divisible by four, as at 
 present, and might not answer to the election 
 of members to the House of Representatives, 
 for the presidential elections might occur in 
 the years not divisible by two. The Congress 
 of 1792 acted upon the constitutional doctrine 
 that the presidential term is four years and 
 cannot be changed by law. 
 
 On the 21st of February, 1868, while the 
 Senate of the United States was in session, Mr. 
 Johnson, in violation of the law which, as we 
 have already seen, is in strict harmony in this j 
 particular with the Constitution and with the 
 practice of every Administration under the Con 
 stitution from the beginning of the Govern 
 ment issued an order for the removal of Mr. 
 Stanton from his office as Secretary for the 
 Department of War. If, however, it be claimed 
 that the proviso does not apply to the Secretary 
 of War, then he does not come within the only 
 exception made in the statute to the general 
 provision in the body of the first section already } 
 quoted ; and Mr. Stanton, having been ap 
 pointed to office originally by and with the 
 advice and consent of the Senate, could only 
 be removed by the nomination and appoint 
 ment of a successor by and with the advice 
 and consent of the Senate. Hence, upon either 
 theory, it is plain that the President violated the 
 tenure-of-officeact in the order which he issued 
 on the 21st of February, A. D. 1868, for the 
 
 removal of Mr. Stanton from the office of Sec 
 retary for the Department of War, the Senate 
 of the United States being then in session. 
 
 In support of the view I have presented I 
 refer to the official record of the amendments 
 made to the first section of the tenure-of-office 
 act. On the 18th of January, 1867, the bill 
 passed the Senate, and the first section thereof 
 was in these words : 
 
 "That every person [excepting the Secretaries 
 of State, of the Treasury, of War, of the Navy, and 
 of the Interior, the Postmaster General, and the 
 Attorney General] holding any civil oiiice to which 
 he has been appointed by and with the advice and 
 consent of the Senate, and every person who shall 
 hereafter be appointed to any such office, arid shall 
 become duly qualified to act therein, is, and shall be, 
 entitled to hold such office until a successor shall 
 have been in like manner appointed and duly quali 
 fied, except as herein otherwise provided." 
 
 On the 2d of February the House passed 
 the b*ll with an amendment striking out the 
 words included in brackets. This action shows 
 that it was the purpose of the House to include 
 heads of Departments in the body of the bill, 
 and subject them to its provisions as civil 
 officers, who were to hold their places by and 
 with the advice and consent of the Senate, and 
 subject, during the session of the Senate, to 
 removal by and with the advice and consent 
 of the Senate only ; but subject to suspension 
 under the second section during a recess of 
 the Senate as other civil officers, by virtue of 
 the words at the close of the section, "except 
 as herein otherwise provided." At the time 
 the bill was pending between the two Houses 
 there was no proviso to the first section, and 
 the phrase " except as otherwise herein pro 
 vided" related necessarily to the second and 
 to the subsequent -sections of the bill. On the 
 Oth of February the Senate refused to agree 
 to the House amendment, and by the action 
 of the two Houses the bill was referred to a 
 committee of conference. The conference 
 committee agreed to strike out the words in 
 brackets agreeably to a vote of the House, but 
 as a recognition of the opinion of the Senate 
 the proviso was inserted which modified in 
 substance the effect of the words stricken out, 
 under the lead of the House, only in this, that 
 the Cabinet officers referred to in the body of 
 the section as it passed the House were to hold 
 their offices as they would have held .them if 
 the House amendment had been agreed to 
 without condition, with this exception: that 
 they were to retire from their offices in one 
 month after the end of the term of the Presi 
 dent by whom they might have been appointed 
 to office. The object and effect of this quali 
 fication of the provision for which the House 
 contended was to avoid fastening, by opera 
 tion of law, upon an incoming President the 
 Cabinet of his predecessor, with no means of 
 relieving himself from them unless the Senate 
 of the United States was disposed to concur in 
 their removal. 
 
 In short, they were to retire by operation of 
 law at the end of one month after the expira- 
 
23 
 
 tion of the term of the President by wh,ftm they 
 had been appointed ; and in this particular their 
 tenure of office was distinguished by the pro 
 viso from the tenure by which other civil offi 
 cers mentioned in the body of the section were 
 to hold their offices, and their tenure of office 
 is distinguished in no other particular. 
 
 The counsel who opened the cause for the 
 President was pleased to read from the Globe 
 the remarks made by Mr. SCHENCK in the 
 House of Representatives, when the report of 
 the conference committee was under discussion. 
 But he read only a portion of the remarks of 
 that gentleman, and connected with them obser 
 vations of his own, by which he may have led 
 the Senate into the error that Mr. SCHENCK 
 entertained the opinion as to the effect of the 
 proviso which is now urged by the respondent ; 
 but, so far from this being the case, the state 
 ment made by Mr. SCHENCK to the Hose is 
 exactly in accordance with the doctrine now 
 maintained by the Managers on the part of the 
 House of Representatives. After Mr. SCHENCK 
 had made the remarks quoted by the counsel 
 for the respondent, Mr. Le Blond, of Ohio, rose | 
 and said: 
 
 " I would like to inquire of the gentleman who has 
 charge of this report whether it becomes necessary 
 that the Senate shall concur in all appointments of 
 executive officers, and that none of them can be re 
 moved after appointment without the concurrence 
 of the Senate?" 
 
 Mr. SCHENCK says, in reply: 
 
 " That is the case; but their terms of office is lim 
 ited, (as they are not now limited by law.) so that 
 they expire with the term of service of the President 
 who appoints them, and one month after, in case of 
 death or other accident, until others can be substi 
 tuted for them by the incoming President." 
 
 Mr. Le Blond, continuing, said: 
 " I understand, then, this to be the effect of the 
 report of the committee of conference : in the event 
 of the President finding himself with a Cabinet offi 
 cer who does not agree with him, and whom he 
 desires to remove, he cannot do so, and have a Cabi 
 net in keeping with his own views, unless the Senate 
 shall concur." 
 
 To this Mr. SCHENCK replies : 
 
 " The gentleman certainly does not need that in 
 formation from me, as this subject has been fully 
 debated in this House." 
 
 Mr. Le Blond said, finally: 
 "Then I hope tho House will not agree to the 
 report of the committee of conference." 
 
 This debate in the House shows that there 
 was there and then no difference of opinion 
 between Mr. SCHENCK, who represented the 
 friends of the bill, aiid Mr. Le Blond, who 
 represented the opponents of the bill, that its J 
 effect was to confirm the Secretaries who were 
 then in office in their places until one month | 
 after the expiration of Mr. Lincoln s term of 
 office, to wit, the 4th day of March, 1809, un- ! 
 less, upon the nomination of successors, they j 
 should be removed by and with the advice and j 
 consent of the Senate. Nor does the language j 
 used by the honorable Senator from Ohio, who j 
 reported the result of the conference to the ! 
 Senate, justify the inference which has been I 
 drawn from it by the counsel for the respond- II 
 
 ent. The charge made by the honorable Sen 
 ator from Wisconsin, which the honorable 
 Senator from Ohio was refuting, seems to have 
 been, in substance, that the first section of the 
 bill and the proviso to the first section of the 
 bill had been framed with special reference to 
 Mr. Johnson, as President, and to the existing 
 condition of affairs. In response to this the 
 honorable Senator from Ohio said : 
 
 "I say that the Senate have not legislated wtth a 
 view to any persons or any President, and therefore 
 he commences by asserting what is not true. Wedo 
 not legislate in order to keep in the Secretary of War, 
 the Secretary of the Navy, or the Secretary of State." 
 
 It will be observed that this language does 
 not indicate the opinion of the honorable Sen 
 ator as to the effect of the bill ; but it is only 
 a declaration that the object of the legislation 
 was not that which had been intimated or al 
 leged by the honorable Senator from Wiscon 
 sin. This view of the remarks of the honor 
 able Senator from Ohio is confirmed by what 
 he afterward said in reply to the suggestion 
 that members of the Cabinet would hold their 
 places against the wishes of the President, 
 when he declares that undersuch circumstances 
 he, as a Senator, would consent to their re 
 moval at any time, showing most clearly that 
 he did not entertain the idea that under the 
 tenure- of- office act it would be in the power of 
 the President to remove a Cabinet officer with 
 out the advice and consent of the Senate. And 
 we all agree that in ordinary times, and under 
 ordinary circumstances, it would not only be 
 just and proper for a Cabinet officer to fender 
 his resignation at once, upon the suggestion 
 of the President that it would be acceptable, 
 but we also agree that it would be the height 
 of personal and official indecorum if he were 
 to hesitate for a moment as to his duty in that 
 particular. But the justification of Mr. Stan- 
 ton, and his claim to the gratitude and encoirf 
 iums of his countrymen, is, that when the 
 nation was imperiled by the usurpations of a 
 criminally- minded Chief Magistrate, he as 
 serted his constitutional and legal rights to the 
 office of Secretary for the Department of War, 
 and thus by his devotion to principle, and at 
 great personal sacrifices, he has done more 
 than any other man since the close of the re 
 bellion to protect the interests and maintain 
 the rights of the people of the country. 
 
 But the strength of the view we entertain 
 of the meaning and scope of the tenure-of 
 office act is nowhere more satisfactorily dem 
 onstrated than in the inconsistencies ofthe 
 argument which has been presented by the 
 learned counsel for the respondent in support 
 of the President s positions He Says, speak 
 ing of the first section of the act regulating the 
 tenure of certain civil offices : 
 
 " Here is a section, then, the body of which applies 
 to all civil officers, as well to those then in office as 
 to those who should thereafter bo appointed. The 
 body of ihis section containsadeclaratipn thatevery 
 such officer is, that is, if ho is now in office, and 
 shall be, that is, if he shall hereafter be appointed 
 to ofiice. entitled to hold untilasuccessor isappomted 
 
24 
 
 ami qujy.iiied in his place. That is the body of the 
 section. 
 
 This language of the eminent counsel is not 
 only an admission, but it is a declaration that 
 the Secretary for the Department of War, be 
 ing a civil officer, as is elsewhere admitted in 
 the argument of the counsel for the respondent, 
 is included in and covered and controlled by 
 the language of the body of this section. It 
 is a further admission that in the absence of the 
 proviso the power of the President over the 
 Secretary for the Department of War would 
 correspond exactly to his power over any other 
 civil officer, which would be merely the power 
 to nominate a successor whose confirmation 
 by the Senate, and appointment, would work 
 the removal of the person in office. When the 
 counsel for the respondent, proceeding in his 
 argument, enters upon an examination of the 
 proviso, he maintains that the language of that 
 proviso does not include the Secretary for the 
 Department of War. If he is not included in 
 the language of the proviso, then upon the ad 
 mission of the counsel he is included in the 
 body of the bill, so that for the purposes of 
 this investigation and trial it is wholly imma 
 terial whether the proviso applies to him or 
 not. If the proviso does not apply to the Sec 
 retary for the Department of War, then he 
 holds his office, as in the body of the section 
 expressed, until removed therefrom by and 
 with the advice and consent of the Senate. If 
 he is covered by the language of the proviso, 
 then a limitation is fixed to his office, to wit: 
 that it is to expire one month after the close 
 of the term of the President by whom he has 
 been appointed, subject, however, to previous 
 removal by and with the advice and consent 
 of the Senate. 
 
 I have already considered the question of 
 intent on the part of the President, and main 
 tained that in the willful violation of the law he 
 discloses a criminal intent which cannot be 
 controlled or qualified by any testimony on the 
 part of the respondent. 
 
 The counsel for the respondent, however, 
 has dwelt so much at length on the question of 
 intent, and such efforts have been made during 
 the trial to introduce testimony upon this point, 
 that 1 am justified in recurring to it for a brief 
 consideration of the arguments and views bear 
 ing upon and relating to that question. If a 
 law passed by Congress be equivocal or am 
 biguous in its terms, the Executive, being called 
 upon to administer it, may apply his own best 
 judgment to the difficulties before him, or he 
 may seek counsel from his official advisers or 
 other proper persons 5 and acting thereupon, 
 without evil intent or purpose, he would be 
 fully justified, and upon no principle of right 
 could he be held to answer as for a misde 
 meanor in office. But that is not this case. 
 The question considered by Mr. Johnson did 
 not relate to the meaning of the tenure- of- 
 office act. He understood perfectly well the 
 intention of Congress, and he admiiled in his 
 
 veto nAsage that that intention was expressed 
 with surocient clearness to enable him to com 
 prehend and state it. In his veto message of 
 the 2d of March. 1867, after quoting the first 
 section of the bill to regulate tho tenure of cer 
 tain civil offices, he says : 
 
 "In effect the bill provides that the President shall 
 not remove from their places any civil officers whose 
 terms of service are not limited by law without the 
 advice andconsentof the Senate of the United States. 
 The bill, in this respect, conflicts, in my judgment, 
 with the Constitution of the United States." 
 
 His statement of the meaning of the bill 
 relates to all civil officers, to the members of 
 his Cabinet as well as to others, and is a declara 
 tion that, under that bill, if it became a law, 
 none of those officers could be removed without 
 the advice and consent of the Senate. He 
 was, therefore, in no doubt as to the intention 
 of Congress as expressed in the bill submitted 
 to hi i* for his consideration, and which after 
 ward became the law of the land. He said to 
 the Senate, " If you pass this bill, I cannot 
 remove the members of my Cabinet." The 
 Senate and the House in effect said, " We so 
 intend," and passed the bill by a two-thirds 
 majority. There was then no misunderstand 
 ing as to the meaning or intention of the act. 
 His offense, then, is not, that upon an examina 
 tion of the statute he misunderstood its mean 
 ing and acted upon a misinterpretation of its 
 true import, but that understanding its mean 
 ing precisely as it was understood by the Con 
 gress that passed the law, precisely as it is 
 understood by the House of Representatives to 
 day, precisely as it is presented in the articles of 
 impeachment, and by the Managers before this 
 Senate, he, upon his own opinion that the same 
 was unconstitutional, deliberately, willfully, and 
 intentionally disregarded it. The learned coun 
 sel say that he had a right to violate this law for 
 the purpose of obtaining a judicial determina 
 tion. This we deny. The constitutional duty 
 of the President is to obey and execute the 
 laws. He has no authority under the Constitu 
 tion, or by any law, to enter into any schemes 
 or plans for the purpose of testing the validity 
 of the laws of the country, either judicially or 
 otherwise. Every law of Congress may be 
 tested in the courts, but it is not made the duty 
 of any person to so test the laws. It is not 
 specially the right of any person to so test the 
 laws, and the effort is particularly offensive in 
 the Chief Magistrate of the country to attempt 
 by any process to annul, set aside ; or defeat the 
 laws which by his oath he is bound to execute. 
 Nor is it any answer to say, as is suggested by 
 the counsel for the respondent, that "there 
 never could be a judicial decision that a law is 
 unconstitutional, inasmuch as it is only by dis 
 regarding a law that any question can be raised 
 judicially under it." If this be true, it is no 
 misfortune. But the opposite theory, that it is 
 jj the duty or the right of the President to disre- 
 I j gard a law for the purpose of ascertaining judi- 
 cially whether he has a right to violate a law, 
 ii is abhorrent to every just principle of govern- 
 
25 
 
 ment, and dangerous in the highest degree to 
 the existence of free institutions. 
 
 But his alleged purpose to test the law in 
 the courts is shown to be a pretext merely. 
 Upon his own theory of his rights he could 
 have instituted proceedings by information in 
 the nature of a quo warranto against Mr. Stan- 
 ton on the 13th of January, 1868. More than 
 three months have passed, and he has done 
 nothing whatever. When by Mr. Stanton s 
 action Lorenzo Thomas was under arrest, and 
 proceedings were instituted which might have 
 tested the legality of the tenure-of-office act, 
 Mr. Cox, the President s special counsel, 
 moved to have the proceedings dismissed, al 
 though Thomas was at large upon his own re 
 cognisance. Can anybody believe that it was 
 Mr. Johnson s purpose to test the act in the 
 courts? But the respondent s insincerity, his 
 duplicity, is shown by the statement which he 
 made to General Sherman in January last. 
 Sherman says, "I asked him why lawyers 
 could not make a case, and not bring me, or 
 an officer, into the controversy? His answer 
 was, that it was found impossible, or a case 
 could not be made up ; but, said he, if we 
 can bring the case to the courts it would not 
 stand half an hour. " He now says his object 
 was to test the case in the courts. To Sher 
 man he declares that a case could not be made 
 up, but if one could be made up the law would 
 not stand half an hour. When a case was 
 made up which might have tested the law he 
 makes haste to get it dismissed. Did ever 
 audacity and duplicity more clearly appear in 
 the excuses of a criminal? 
 
 This brief argument upon the question of 
 intent seems to me conclusive, but I shall 
 incidentally refer to this point in the further 
 progress of my remarks. 
 
 The House of Representatives does not de 
 mand the conviction of Andrew Johnson un 
 less he is guilty in the manner charged in the 
 articles of impeachment; nor does the House 
 expect the Managers to seek a conviction ex 
 cept upon the law and the facts considered with 
 judicial impartiality. But I am obliged to 
 declare that I have no capacity to understand 
 those processes of the human mind by which 
 this tribunal, or any member of this tribunal, 
 can doubt, can entertain a reasonable doubt, 
 that Andrew Johnson is guilty of high misde 
 meanors in office, as charged in each of the 
 first three articles exhibited against him by the 
 House of Representatives. 
 
 We have charged and proved that Andrew 
 
 Johnson, President of the United States, issued 
 an order in writing for the removal of Edwin 
 M. Stanton from the office of Secretary for the 
 Department of War while the Senate of the 
 United States was in session, and without the 
 advice and consent of the Senate, in violation 
 of the Constitution of the United States and 
 of his oath of office, and of the provisions of 
 an act passed March 2, 1867, entitled " An act 
 regulating the tenure of certain civil offices," 
 and that he did this with intent so to do ; and 
 thereupon we demand his conviction under the 
 first of the articles of impeachment exhibited 
 against him by the House of Representatives. 
 We have charged and proved that Andrew 
 Johnson, President of the United States, vio 
 lated the Constitution and his oath of office 
 in issuing an order for the removal of Edwin 
 M. Stanton from the office of Secretary for the 
 Department of War during the session of the 
 Senate, and without the advice and consent 
 of the Senate, and this without reference to 
 the tenure-of-office act; and thereupon we de 
 mand his conviction under the first of the 
 articles of impeachment exhibited against him 
 by the House of Representatives. 
 
 We have charged and proved that Andrew 
 Johnson, President of the United States, did 
 issue and deliver to one Lorenzo Thomas a 
 letter of authority in writing authorizing and 
 empowering said Thomas to act as Secretary 
 of War ad interim, there being no vacancy in 
 said office, and this while the Senate of the 
 United States was in session, and without the 
 advice and consent of the Senate, in violation 
 of the Constitution of the United States, of his 
 oath of office, and of the provisions of an act 
 entitled An act regulating the tenure of cer- 
 I tain civil offices," and all this with the intent 
 so to do ; and thereupon we demand his con- 
 1 viction under the second of the articles of im- 
 j peachment exhibited against him by the House 
 of Representatives. 
 
 We have charged and proved that Andrew 
 Johnson, President of the United States, in 
 the appointment of Lorenzo Thomas to the 
 office of Secretary of War ad interim, acted 
 without authority of law and in violation of the 
 Constitution and of his oath of office ; and this 
 without reference to the tenure-of-office act; 
 and thereupon we demand his conviction un 
 der the third of the articles of impeachment 
 exhibited against him by the House of Repre 
 sentatives. 
 
 At this point the honorable Manager yielded 
 for an adjournment. 
 
THURSDAY, APRIL 23, 1868. 
 
 Mr. Manager BOUTWELL resumed as fol 
 lows: 
 
 Mr. PRESIDENT, SENATORS: The learned 
 counsel for the respondent seems to have in 
 volved himself in some difficulty concerning the 
 articles which he terms the conspiracy articles, 
 being articles four, five, six, and seven. The 
 allegations contained in articles four and six are 
 laid under the act of July 31, 1861, known as the 
 conspiracy act. The remarks of the learned 
 counsel seem to imply that articles five and seven 
 are not based upcn any law whatever. In this 
 he greatly errs. An examination of articles 
 four and five shows that the substantive allega 
 tion is the same in each, the differences being 
 that article four charges the conspiracy with 
 intent, by intimidation and threats, unlawfully 
 to hinder and prevent Edwin M. Stanton from 
 holding the office of Secretary for the Depart 
 ment of War. The persons charged are the 
 respondent and Lorenzo Thomas. And it is 
 alleged that this conspiracy for the purpose 
 set forth was in violation of the Constitution 
 of the United States and of the provisions of 
 an act entitled " An act to punish certain con 
 spiracies," approved July 31, 1861. The fifth 
 article charges that the respondent did unlaw 
 fully conspire with one Lorenzo Thoraas r and 
 with other persons, to prevent the execution of 
 the act entitled "An act regulating the ten 
 ure of certain civil offices," and that in pur 
 suance of that conspiracy they did unlawfully 
 attempt to prevent Edwin M. Stanton from 
 holding the office of Secretary for the Depart 
 ment of War. It is not alleged in the article 
 that this conspiracy is against any particular 
 law, but it is alleged that the parties charged 
 did unlawfully conspire. It is very well known 
 that conspiracies are of two kinds. Two or 
 more persons may conspire to do a lawful act 
 by unlawful means ; or two or more persons 
 may conspire to do an unlawful act by lawful 
 means. By the common law of England such 
 conspiracies have always been indictable and 
 punishable as misdemeanors. The State of 
 Maryland was one of the original thirteen 
 States of the Union, and the common law of 
 England has always prevailed in -that State, 
 except so far as it has been modified by statute. 
 The city of Washington was originally within 
 the State of Maryland, but it was ceded to the 
 
 26 
 
 United States under the provisions of the Con 
 stitution. By a statute of the United States, 
 passed February 27, 1801, (Statutes-at-Large, 
 vol. 2, p. 103,) it is provided: 
 
 "That the laws of the State of Maryland, as they 
 now exist, shall be and continue in force in that part 
 of the said district which was ceded by that State to 
 the United States, and by them accepted as afore 
 said." 
 
 By force of this statute, although probably 
 the law would have been the same without 
 legislation, the English common law of crimes 
 prevails in the city of Washington. By an 
 other statute entitled "An act for the punish 
 ment of crimes in the District of Columbia," 
 (Statutes-at-Large, vol. 4, p. 450,) approved 
 March 2, 1831, special punishments are affixed 
 to various crimes enumerated wheu commit 
 ted in the District of Columbia. But con 
 spiracy is not one of the crimes mentioned. 
 The fifteenth section of that act provides : 
 
 "That every other felony, misdemeanor, or offense 
 not provided for by this act may and shall be pun 
 ished as heretofore, except that in all cases where 
 whipping is part or the whole of the punishment, 
 except in the cases of slaves, the court shall substi 
 tute therefor imprisonment in the county jail for a 
 period not exceeding six months." 
 
 And the sixteenth section declares 
 "That all definitions and descriptions of crimes, 
 all fines, forfeitures, and incapacities, the restitution 
 of property, or the payment of the value thereof, and 
 every other matter not provided for in this act, be 
 and the same shall remain as heretofore." 
 
 There can then be no doubt that, under the 
 English common law of crimes, sanctioned and 
 continued by the statutes of the United States 
 in the District of Columbia, the fifth and sev 
 enth articles set forth offenses which are pun 
 ishable as misdemeanors by the laws of the 
 District. 
 
 Article six is laid under the statute of 1861, 
 and charges that the respondent did unlaw 
 fully conspire with Lorenzo Thomas, by force, 
 to seize, take, and possess the property of the 
 United States in the Department of War, and 
 this with intent to violate and disregard the 
 act entitled "An act regulating the tenure of 
 certain civil offices." The words used in the 
 conspiracy act of 1861 leave room for argu 
 ment upon the point raised by the learned 
 counsel for the respondent. I admit that the 
 District of Columbia is not included by spe 
 cific designation ; but the reasons for the law 
 
27 
 
 and the natural interpretation of the language 
 justify the view that the act applies to the Dis 
 trict. I shall refer to a single authority only 
 upon the point. 
 
 The internal-duties act of August 2, 1813, 
 (Statutes, vol. 3, p. 82) subjects, in express 
 terms, the u several Territories of the United 
 States and the District of Columbia" to the 
 payment of the taxes imposed ; upon which 
 the question arose whether Congress has power 
 to impose a direct tax on the District of Co 
 lumbia, in view of the fact that by the Consti 
 tution it is provided that " representation and 
 direct taxes shall be apportioned among the 
 several States which may be included within 
 the Union according to their respective num 
 bers." 
 
 In the case of Loughborongh vs. Blake the 
 Supreme Court of the United States unani 
 mously decided, in a brief opinion by Chief 
 Justice Marshall, that although the language 
 of the Constitution apparently excepts the Dis 
 trict of Columbia from the imposition of direct 
 taxes, yet the reason of the thing requires us to 
 consider the District as being comprehended, 
 in this respect, within the intention of the Con 
 stitution. (Loughborough vs. Blake, 5 Whea- 
 ton, p. 317.) 
 
 The reasoning of the Supreme Court and its 
 conclusion in this case were satisfactory to the 
 bar and the country, and no person has deemed 
 it worth while to raise the question anew under 
 the direct tax act of August 5, 1861, (Statutes 
 12, 296,) which also comprehends the Territo 
 ries and the District of Columbia. 
 
 But the logical rules of construction applica 
 ble to an act of Congress are the same as those 
 applicable to the Constitution. An act of Con 
 gress and the Constitution are both laws noth 
 ing more, nothing less except that the latter is 
 of superior authority. And if, in the construc 
 tion of the Constitution, it may be satisfactorily 
 maintained that the District of Columbia is to 
 be deemed, because of the reason of things, to 
 be comprehended by a provision of the Con 
 stitution which in words, and in their super 
 ficial construction, excludes it, must not the 
 same rule of construction produce the same 
 result in the determination of the legal intent 
 and import of an act of Congress, when an 
 obscurity exists in the latter and for the same 
 cause? 
 
 The seventh article is laid upon the common 
 law, and charges substantially the same offenses 
 as those charged in the sixth article. The re 
 sult then is that the fifth and seventh articles, 
 which are based upon the common law, set 
 forth substantially the same offenses which are 
 set forth in the fourth and sixth articles, which 
 are laid upon the statute of July 31, 1861 ; and 
 as there can bo no doubt of the validity of the 
 fifth and seventh articles, it is practically im 
 material whether the suggestion made by the 
 counsel lor the respondent, that the conspiracy 
 act of 18G1 does not include the District of 
 Columbia, is a valid suggestion or not. Not 
 
 doubting that the Senate will find that the 
 charge of conspiracy is sufficiently laid under 
 existing laws in all the articles, I proceed to 
 an examination of the evidence by which the 
 charge is supported. 
 
 It should always be borne in mind that the 
 evidence in proof of conspiracy will generally, 
 from the nature of the crime, be circumstantial ; 
 and this case in this particular is no exception 
 to the usual experience in criminal trials. We 
 find, in the first place, if the allegations in the 
 first, second, and third articles have been 
 established, that the President was engaged in 
 an unlawful act. If we find Lorenzo Thomas 
 or any other person cooperating with him upon 
 an agreement or an understanding or an assent 
 on the part of such other person to the prose 
 cution of such unlawful undertaking an actual 
 conspiracy is proved. The existence of the 
 conspiracy being established, it is then compe 
 tent to introduce the statements and acts of the 
 parties to the conspiracy, made and done while 
 the conspiracy was pending, and in furtherance 
 of the design ; and it is upon this ground that 
 testimony has been offered and received of the 
 declarations made by Lorenzo Thomas, one of 
 the parties to the conspiracy, subsequent to the 
 18th of January, 1868, or perhaps to the 13th 
 of January, 1868 the day on which he was 
 restored to the office of Adjutant General of the 
 Army of the United States by the action of the 
 President, and which appears to have been an 
 initial proceeding on his part for the purpose 
 of accomplishing his unlawful design the re- 
 motal of Mr. Stanton from the office of Secre 
 tary for the Department of War. The evidence 
 of agreement between the respondent and 
 Thomas is found in the order of the 21st of 
 February, 1868, appointing Thomas, and in the 
 conversation which occurred at the time the 
 order was placed in Thomas s hands. The 
 counsel for the respondent at this point was 
 involved in a very serious difficulty. If he had 
 admitted (which he took care not to do) that 
 the order was purely a military one, he foresaw 
 that the respondent would be involved in the 
 crime of having issued a military order which 
 did not pass through the General of the Army, 
 and thus would bo liable to impeachment and 
 removal from office for violating the law of the 
 2d of March, 1867, entitled "An act making 
 appropriations for the support of the Army for 
 the fiscal year ending June 30, 1868, and for 
 other purposes." 
 
 If he had declared that it was not a military 
 order, then the transaction confessedly was in 
 the nature of an agreement between the Pres 
 ident and Lorenzo Thomas ; and if the act con 
 templated by that agreement was an unlawful 
 act, or if the act were unlawful, and the means 
 employed for accomplishing it were unlawful, 
 then clearly the charge of conspiracy would be 
 maintained. Hence he was careful to say, in 
 denying that the order was a military order, 
 that it nevertheless "invoked that spirit of mil 
 itary obedience which constitutes the strength 
 
28 
 
 of the service." And farther, he says of 
 Thomas, that, as a faithful Adjutant General 
 of the Army of the United States, interested 
 personally, professionally, and patriotically to 
 have the office of Secretary of the Department 
 of War performed in a temporary vacancy, was 
 it not his duty to accept the appointment un 
 less he knew that it was unlawful to accept it? 
 The admissions and statements of the learned 
 counsel are to the effect, on the whole, that 
 the order was not a military order, nor do we 
 claim that it was a military order, but it was a 
 letter addressed to General Thomas, which he 
 could have declined altogether without sub 
 jecting himself to any punishment by a mili 
 tary tribunal. This is the crucial test of the 
 character of the paper which he received, and 
 on which he proceeded to act. Ignorance of 
 the law, according to the old maxim, excuses 
 no man ; and whether General Thomas, at the 
 first interview he had with the President on the 
 18th of January, 1808, or at his interview with 
 him on the day when he received the letter of 
 appointment, knew that the President was then 
 engaged in an unlawful act, is not material to 
 thia inquiry. The President knew that his 
 purpose was an unlawful one, and he then and 
 there induced General Thomas to cooperate 
 with him in the prosecution of the unlawful 
 design. If General Thomas was ignorant of 
 the illegal nature of the transaction, that fact 
 furnishes no legal defense for him, even though 
 morally it might be an excuse for his conduct. 
 Bat certainly the President, who did know the 
 illegal nature of the proceeding, cannot excuse 
 himself by asserting that his coconspirator was 
 at the time ignorant of the illegal nature of the 
 business in which they were engaged. 
 
 It being proved that the respondent was en 
 gaged in an unlawful undertaking in his attempt 
 to remove Mr. Stanton from the office of Sec 
 retary for the Department of War, that by an 
 agreement or understanding between General 
 Thomas and himself they were to cooperate in 
 carrying this purpose into execution, and it 
 being proved, also, that the purpose itself was 
 unlawful, all the elements of a conspiracy are 
 fully established ; and it only remains to ex 
 amine the testimony in order that the nature 
 of the conspiracy may more clearly appear 
 and the means by which the purpose was 
 to be accomplished may be more fully under 
 stood. 
 
 The statement of the President in his mes 
 sage to the Senate under date of 12th of De 
 cember, 18G7, discloses the depth of his feel 
 ing and the intensity of his purpose in regard 
 to the removal of Mr. Stanton. In that mes 
 sage he speaks of the bill regulating the tenure 
 of certain civil offices at the time it was before 
 him for consideration. He says: 
 
 "The bill had not then become a law; the limit 
 ation upon the power of removal was not yet im 
 posed, and there was yet time to make any changes. 
 If any one of those gentlemen [meaning: .the mem 
 bers of his Cabinet] had then said to me that he 
 would avail himself of the provisions of that bill in 
 
 case it became a law I should not have hesitated a 
 moment as to his removal." 
 
 When, in the summer of 1867, the respond 
 ent became satisfied that Mr. Stanton not only 
 did not enter into the President s schemes but 
 was opposed to them, and he determined upon 
 his suspension and final removal from the office 
 of Secretary for the Department of War, he 
 knew well that the confidence of the people in 
 Mr. Stanton was very great, and that they 
 would not accept his removal and an appoint 
 ment to that important place of any person of 
 doubtful position, or whose qualifications were 
 not known to the country. Hence he sought, 
 through the suspension of Mr. Stanton and the 
 appointment of General Grant as Secretary of 
 War ad interim, to satisfy the country for the 
 moment, but with the design to prepare the 
 way thereby for the introduction into the War 
 Department of one of his own creatures. At 
 that time it was supposed that the suspension 
 of Mr. Stanton and the appointment of Gen 
 eral Grant were made under and by virtue of 
 the act regulating the tenure of certain civil 
 offices; and although the conduct of the Presi 
 dent during a period of nearly six months in 
 reference to that office was in conformity to 
 the provisions of that act, it was finally de 
 clared by him that what he had done had been 
 done in conformity to the general power which 
 he claims under the Constitution, and that he 
 did not in any way recognize the act as con 
 stitutional or binding upon him. His message 
 to the Senate of the 12th of December was 
 framed apparently in obedience to the tenure- 
 of-office act. He charged Mr. Stanton with 
 misconduct in office, which, by that act, had 
 been made a ground for the suspension of a 
 civil officer; he furnished reasons and evidence 
 of misconduct which, as he alleged, had been 
 satisfactory to him, and he furnished such rea 
 sons and evidence within twenty days after the 
 meeting of the Senate next following the day 
 of suspension. 
 
 All this was in conformity to the statute of 
 March 2, 1867. The Senate proceeded to con 
 sider the evidence and reasons furnished by the 
 President, and in conformity to that act passed 
 a resolution, adopted on the 13th of January, 
 1868, declaring that the reasons were unsatis 
 factory to the Senate, and that Mr. Stanton 
 was restored to the office of Secretary for the 
 Department of War. Up to that time there 
 had been no official statement or declaration 
 by the President that he had not acted under 
 the tenure-of-office act ; but he now assumed 
 that that act had no binding force, and that Mr. 
 Stanton was not lawfully restored to the office 
 of Secretary for the Department of War. 
 
 Upon the adoption of the resolution by the 
 Senate General Grant at once surrendered the 
 office to Mr. Stanton. This act upon his part 
 filled the President with indignation toward 
 both General Grant and Mr. Stanton, and from 
 that day he seems to have been under the influ 
 ence of a settled and criminal purpose to de- 
 
29 
 
 stroy General Grant and to secure the removal 
 of Mr. Stanton. During the month following 
 the restoration of Mr. Stanton the President 
 attempted to carry out his purpose by various 
 and tortuous methods. First he endeavored 
 to secure the support of General Sherman. On 
 two occasions, as is testified by General Sher 
 man, on the 27th and 31st of January, he ten 
 dered him the position of Secretary of War ad 
 interim. It occurred very naturally to General 
 Sherman to inquire of the President whether 
 Mr. Stanton would retire voluntarily from the 
 office ; and also to ask the President what he 
 was to do, and whether he would resort to force 
 if Mr. Stanton would not yield. The Presi 
 dent answered, "Oh, he will make no objec 
 tion ; you present the order and he will retire." 
 Upon a doubt being expressed by General 
 Sherman, the President remarked, u I know 
 him better than you do ; he is cowardly." The 
 President knew Mr. Stanton too well to enter 
 tain any such opinion of his courage as he gave 
 in his answer to General Sherman ; the secret 
 of the proceeding, undoubtedly, was this : he 
 desired in the first place to induce General 
 Sherman to accept the office of Secretary of 
 War ad interim upon the assurance on his part 
 that Mr. Stanton would retire willingly from 
 his position, trusting that when General Sher 
 man was appointed to and had accepted the 
 place of Secretary of War ad interim he could 
 be induced, either upon the suggestion of the 
 President or under the influence of a natural 
 disinclination on his part to fail in the accom 
 plishment of anything which he had undertaken, 
 to seize the War Department by force. The 
 President very well knew that if General Sher 
 man accepted the office of Secretary of VVar 
 ad interim he would be ready at the earliest 
 moment to relinquish it into the hands of the 
 President, and thus he hoped through the 
 agency of General Sherman to secure the 
 possession of the Department for one of his 
 favorites. 
 
 During the period from the 13th day of Jan 
 uary to the 21st of February he made an at 
 tempt to enlist General George H. Thomas in 
 the same unlawful undertaking. Here, also, 
 he was disappointed. Thus it is seen that from 
 August last, the time when he entered system 
 atically upon his purpose to remove Mr. 
 Stanton from the office of Secretary for the 
 Department of War, he has attempted to se 
 cure the purpose he had in view through the 
 personal influence and services of the three 
 principal officers of the Army ; and that he has 
 met with disappointment in each case. Under 
 these circumstances nothing remained for the 
 respondent but to seize the office by an open, 
 willful, defiant violation of law; and as it was 
 necessary for the accomplishment of his pur 
 pose that he should obtain the support of some 
 one, and as his experience had satisfied him 
 that no person of capacity or respectability or 
 patriotism would unite with him in his unlaw 
 ful enterprise, he sought the assistance and aid 
 
 of Lorenzo Thomas. This man, as you have 
 seen him, is an old man, a broken man, a vain 
 man, a weak man, utterly incapable of per 
 forming any important public service in a 
 manner creditable to the country ; but possess 
 ing, nevertheless, all the qualities and charac 
 teristics of a subservient instrument and tool 
 of an ambitious, unscrupulous man. He readily 
 accepted the place which the President offered 
 him, and there is no doubt that the declara 
 tions which he made to Wilkeson, BURLEIGH, 
 and Karsner were made when he entertained 
 the purpose of executing them, and made also 
 in the belief that they were entirely justified by 
 the orders which he had received from the 
 President, and that the execution of his pur 
 pose to seize the War Department by force 
 would be acceptable to the President. That 
 he threatened to use force there is no doubt 
 from the testimony, and he has himself con 
 fessed substantially the truth of the statements 
 made by all the witnesses for the prosecution 
 who have testified to that fact. 
 
 These statements were made by Thomas on 
 and after the 21st of February, when he re 
 ceived his letter of authority, in writing, to take 
 possession of the War Department. The agree 
 ment between the President and Thomas was 
 consummated on that day. With one mind 
 they were then and on subsequent days engaged 
 and up to the present time they are engaged in 
 the attempt to get possession of the War De 
 partment. Mr. Stanton, as the Senate by its 
 resolution has declared, being the lawful Sec 
 retary of War, this proceeding on their part 
 was an unlawful proceeding. It had in view 
 an unlawful purpose ; it was therefore in con 
 templation of the law a conspiracy, and the 
 President is consequently bound by the decla 
 rations made by Thomas in regard to taking 
 possession of the War Department by force. 
 Thomas admits that on the night of the 21st it 
 was his purpose to use force ; but on the morn 
 ing of the 22d his mind had undergone a change 
 and he then resolved not to use force. _ We do 
 not know precisely, the hour when his mind 
 underwent this change, but the evidence dis 
 closes that upon his return from the supreme 
 court of the District, where he had been ar 
 raigned upon a complaint made by Mr. Stan- 
 ton, which, according to the testimony, was 
 twelve o clock or thereabouts, he had an inter 
 view with the President; and it is also in evi 
 dence that at or about the same time the Pres 
 ident had an interview with General Emory, 
 from whom he learned that that officer would 
 not obey a command of the President unless 
 it passed through General Grant, as required 
 by law. 
 
 The President understood perfectly well that 
 he could neither obtain force from General 
 Grant nor transmit an order through General 
 Grant for the accomplishment of a purpose 
 manifestly unlawful; and inasmuch as General 
 Emory had indicated to him in the most dis 
 tinct and emphatic manner his opinion that 
 
 
30 
 
 the law requiring all orders to pass through 
 the headquarters of the General commanding 
 was constitutional, indicating also his purpose 
 to obey the law, it was apparent that at that 
 moment the President could have had no hope 
 of obtaining possession of the Department of 
 War by force. It is a singular coincidence in 
 the history of this case that at or about the 
 same time General Thomas had an interview 
 with the President and came to the conclusion 
 that it would not be wise to resort to force. 
 
 The President has sought to show his good 
 intention by the fact that, on the 22d or the 
 24th of February, he nominated Hon. Thomas 
 Ewing, senior, as Secretary for the Department 
 of War. Mr. Ewing is not an unknown man. 
 He has been a member of the Senate and the 
 head of the Treasury Department. His abil 
 ities are undoubted, but at the time of his nom 
 ination he was in the seventy-ninth year of his 
 age. and there was no probability that he would 
 hold the office a moment longer than his sense 
 of public duty required. It was the old game 
 of the President the office in the hands of his 
 own tool or in the hands of a man who would 
 gladly vacate it at any moment. This was the 
 necessity of his position, and throws light upon 
 that part of his crime which is set forth in the 
 eleventh article. 
 
 For, in fact, his crime is one the subversion 
 of the Government. From the nature of the 
 case we are compelled to deal with minor acts 
 of criminality by which he hoped to consum 
 mate this greatest of crimes. 
 
 In obedience to this necessity he appointed 
 Grant, hoping to use him and his influence with 
 the Army, and failing in this, to get possession 
 of the place and fill it with one of his own 
 satellites. Foiled and disappointed in this 
 scheme, he sought to use, first, General Sher 
 man, then General George H. Thomas, then 
 Hon. Thomas Ewing, senior, knowing that 
 neither of these gentlemen would retain the 
 office for any length of time. There were men 
 in the country who would have accepted the 
 office and continued in it and obeyed the Con 
 stitution and the laws. Has he named any such 
 person ; has he suggested any such person ? 
 His appointments and suggestions of appoint 
 ments have been of two sorts honorable men, 
 who would not continue in the office, or dis 
 honorable, worthless men, who were not fit to 
 hold the office. 
 
 The name of General Cox, of Ohio, was 
 mentioned in the public journals ; it was men 
 tioned, probably, to the President. Did it meet 
 with iavor? Did he send his name to the 
 Senate ? No. 
 
 General Cox, if he had accepted the office 
 at all, would have done so with the expecta 
 tion of holding it till March, 1869, and with 
 the purpose of executing the duties of the 
 trust according to the laws and the Constitu 
 tion. These were purposes wholly inconsist 
 ent with the President s schemes of usurpa 
 tion. But is it to be presumed or imagined 
 
 that when the President issued his order for 
 the removal of Mr. Stanton, and his letter of 
 authority to Lorenzo Thomas, on the 21st of 
 February, he had any purpose of appointing 
 Mr. Ewing Secretary of War? Certainly not. 
 On the afternoon of the 21st he informs his 
 Cabinet that Stantou was removed and that 
 Thomas had possession of the office. He then 
 so believed. Thomas had deceived or misled 
 him. On the 22d instant he had discovered 
 that Stanton held on to the place, and that 
 Emory could not be relied upon for force. 
 
 What was now his necessity? Simply a 
 resort to his old policy. He saw that it was 
 necessary to avoid impeachment if possible, 
 and also to obtain the sanction of the Senate 
 to a nomination which would work the re 
 moval of Mr. Stanton, and thus he would tri 
 umph over his enemies and obtain condona 
 tion for his crimes of the 21st of February. 
 A well-laid scheme, but destined to fail and to 
 furnish evidence of his own guilty purposes. 
 With the office in the possession of Mr. Ewing 
 he foresaw that for the prosecution of his own 
 plans the place would always be vacant. 
 
 Thus has this artful man pursued the great 
 purpose of his life. Consider the other cir 
 cumstances. On the 1st of September last 
 General Emory was appointed to the com 
 mand of the department of Washington. He 
 has exhibited such sterling honesty and vig 
 orous patriotism in these recent troubles and 
 during the war that he can bear a reference to 
 his previous history. He was born in Mary 
 land, and in the early part of the war the pub 
 lic mind of the North questioned his fidelity 
 to the Union. His great services and untarn 
 ished record during the war are a complete 
 defense against all suspicion, but is it too much 
 to believe that Mr. Johnson entertained the 
 hope that General Emory might be made an 
 instrument of his ambition ? Nobly has Gen 
 eral Emory undeceived the President and gained 
 additional renown in the country. In General 
 Lorenzo Thomas the President was not de 
 ceived. His complicity in recent unlawful pro 
 ceedings justifies the suspicions entertained by 
 the country in 1861 and 1862 touching his loy 
 alty. Thomas and the President are in accord. 
 In case of the acquittal of the President, they 
 are to issue an order to General Grant putting 
 Thomas in possession of the reports of the Army 
 to the War Department. 
 
 Is there not in all this evidence of the Presi 
 dent s criminal intention? Is not his whole 
 course marked by duplicity, deception, and 
 fraud? " All things are construed against the 
 wrong-doer" is the wise and just maxim of 
 the law. Has he not trifled with and deceived 
 the Senate? Has he not attempted to accom 
 plish an unlawful purpose by disingenuous, 
 tortuous, criminal means ? His criminal intent 
 is in his willful violation of the law, and his 
 criminalintentis, moreover, abundantly proved 
 by all the circumstances attending the violation 
 of the law. 
 
31 
 
 His final resort for safety was the Senate, 
 praying for the confirmation of Mr. Ewing. 
 Ou the 21st of February he hoped that Stan- 
 ton would yield willingly or that Emory could 
 be used to remove him. On the 22d he knew 
 that Stunton was determined to remain, that 
 Emory would not furnish assistance, that it 
 was useless to appeal to Grant. He returns to 
 his old plan of tilling the War Office by the 
 appointment of a man who would yield the 
 place at any moment; and now he asks, you to 
 accept as his justification an act which was the 
 last resort of a criminal attempting to escape 
 the judgment due to his crimes. Upon this 
 view of the law and the facts we demand a 
 conviction of the respondent upon articles 
 four, five, six, and seven exhibited against him 
 by the House of Representatives. 
 
 The evidence introduced tending to show a 
 conspiracy between Johnson and Thomas to 
 get possession of the War Department tends 
 also, connected with other facts, to show the 
 purpose of the President to obtain possession 
 of the Treasury Department. Bearing in mind 
 his claim that he can suspend or remove from 
 office, without the advice and consent of the 
 Senate, any civil officer, and bearing in inind, 
 also, that the present Secretary of the Treasury 
 supports this claim, and every obstacle to the 
 possession of the Treasury Department is re 
 moved. If the Secretary should decline to 
 cooperate it would only be necessary for the 
 President to remove him from office and place 
 the Treasury Department in the hands of one 
 of his own creatures. 
 
 Upon the appointment of Thomas as Secre 
 tary of War ad interim the President caused 
 notice to be given thereof to the Secretary of 
 the Treasury, accompanied with the direction, 
 under the President s own hand, to that offi 
 cer to govern himself accordingly. It is also 
 proved that on the 22d day of December Mr. 
 Johnson appointed Mr. Cooper, who had been 
 his Private Secretary and intimate friend, As 
 sistant Secretary of the Treasury. 
 
 The evidence fully sustains the statements 
 made in the opening argument of Manager 
 BUTLER in support of article nine. The facts 
 in regard to General Emory s interview with 
 the President were then well known to the 
 Managers, and the argument and view pre 
 sented in the opening contain all that is neces 
 sary to be said upon that article. 
 
 The learned counsel who opened the case 
 for the President seems not to have compre 
 hended the nature of the offense set forth in 
 the tenth article. His remarks upon that arti 
 cle proceeded upon the idea that the House of 
 Representatives arraign the President for slan 
 dering or libeling the Congress of the United 
 States; no such offense is charged, nor is it 
 claimed by the Managers that it would be pos 
 sible for Mr. Johnson or any other person to 
 libel or slander the Government. It is for no 
 purpose of protection or inc enmity or punish 
 ment that we arraign Mr. Johnson for words 
 
 spoken in Washington, Cleveland, and St. 
 L6uis. We do not arraign him for the words 
 spoken ; but the charge in substance is, thajt a 
 man who could utter the words which as is 
 proved were uttered by him is unfit for the 
 office he holds. We claim that the common 
 law of crimes, as understood and enforced by 
 Parliament in cases of impeachment, is in sub 
 stance this: That no person in office shall do 
 any act contrary to the good morals of the 
 office ; and that, when any officer is guilty of 
 an act contrary to the good morals of the office 
 which he holds, that act is a misdemeanor for 
 the purpose of impeachment and removal from 
 office. 
 
 Judge Chase was impeached and escaped 
 conviction by four votes only for words spoken 
 from the bench of the circuit court sitting in 
 Baltimore ; words which are decorous and rep 
 utable when compared with the utterances of 
 Mr. Johnson. Judge Humphreys was convicted 
 and removed from office for words spoken 
 treasonable in character, but not as much cal 
 culated to weaken and bring the Government 
 of the United States into contempt as were 
 the words uttered by Mr. Johnson in his speech 
 of the 18th of August, 1866. Judge Hum 
 phreys was convicted by the unanimous vote 
 of the Senators, nineteen of whom now sit on 
 this trial. If a magistrate can ever be guilty, 
 for words spoken, of an impeachable misde 
 meanor, there can be no doubt that Mr. John 
 son is so guilty. 
 
 I ask you to consider in comparison, or in 
 contrast, the nature of the language used by 
 Chase, Humphreys, and Johnson, as set forth, 
 in the articles of impeachment preferred in the 
 several cases. 
 
 The eighth article in the case of Chase is in 
 these words : 
 
 "And whereas mutual respect and confidence be 
 tween the Government of the United States and those 
 of the individual States, and between the people and 
 those governments, respectively, are highly condu 
 cive to that public harmony without which there can 
 be no public happiness, yet the said Samuel Chase, 
 disregarding the duties and dignity of his judicial 
 character, did, at the circuit court for the district of 
 Maryland, held at Baltimore in the month of M;:y, 
 1803, pervert his official right and duty to address the 
 grand jury then and-there assembled on the matters 
 coming within the province of the said jury, for the 
 purpose of delivering to the said grand jury an in 
 temperate and inflammatory political harangue, with 
 intent to excite the fears and resentment of the said 
 grand jury and of the good people of Maryland 
 against their State government and constitution, a 
 conduct highly censurable in any, but peculiarly in 
 decent and unbecoming in a judge of the Supreme 
 Court of the United States; and, moreover, that 
 the said Samuel Chase, then and there, under pre 
 tence of exercising his judicial right to address f ho 
 said grand jury as aforesaid, did, in a manner highly 
 unwarrantable, endeavor to excite the odium of the 
 said grand jury and of the good people of Maryland 
 against the Government of the United States, by de 
 livering opinions which, even if the judiciary were 
 competent to their expression on a suitable occasion 
 and in a proper manner, were at that time, and as 
 delivered by him, highly indecent, extra-judicial, and 
 tending to prostitute the high judicial character with 
 which he was invested to the low purpose of an elec 
 tioneering partisan." 
 
32 
 
 The first article against Humphreys was as 
 follows : 
 
 "That, regardless of his duties as a citizen of the 
 United States, and unmindful of the duties ot his said 
 oftice, and in violation of the sacred obligation of his 
 otlicial oath, to administer justice without respect 
 to persons,; and faithfully and impartially discharge 
 all the duties incumbent upon him as judge of the 
 district court of the United States for the several dis 
 tricts of the State of Tennessee, agreeable to the Con 
 stitution and laws of the United States, the said 
 West II. Humphreys, on the 29th day of December, 
 A. D. I860, in the city of Nashville, in said State, the 
 said West II. Humphreys then being a citizen of the 
 United States, and owing allegiance thereto, and 
 then and there being judge of the district court of 
 the United States for theseveral districts of said State, 
 at a public meeting on the day and year last afore 
 said, held in said city of Nashville, and in the hear 
 ing of divers persons then and there present, did en 
 deavor by public speech to incite reyoltand rebellion 
 within said State against the Constitution and Gov 
 ernment of the United States, and did then and there 
 publicly declare that it was the right of the people 
 of said State, by an ordinance of secession, to absolve 
 themselves from all allegiance to the Government of 
 the United States, the Constitution, and laws thereof." 
 
 The offense with which Humphreys is charged 
 in tliis article was committed on the 29th day 
 of December, 1860, before the fall of Sumter, 
 and when only one State had passed an ordi 
 nance of secession. The declaration was merely 
 a declaration in a public speech that the State 
 of Tennessee had the right to secede from the 
 Union. 
 
 The President, in his speech of the 18th of 
 August. 18G6, at Washington, says: 
 
 " We have witnessed in one department of the Gov 
 ernment every effort, as it were, to prevent the res 
 toration of peace, harmony, and union; we have 
 seen, as it were, hanging upon the verge of the Gov 
 ernment, as it were, a body calling or assuming to 
 be the Congress of the United States, when it was but 
 a Congress of a part of theStntcs; -we have seen Con 
 gress assuming to be lor tho Union when every step 
 they took was to perpetuate dissolution and make 
 dissolution permanent. Wo have seen every step 
 that has been taken, instead of bringing about rec 
 onciliation and harmony, has been legislation that 
 took the character of penalties, retaliation, and re 
 venge. This has been the course; this has been the 
 policy of one department of your Government." 
 
 These words have been repeated so frequently, 
 and the public ear is so much accustomed to 
 them, that they have apparently lost their in 
 fluence upon tiie public mind. But it should 
 be observed that these words, as has been 
 proved by the experience of two years, were 
 but the expression of a fixed purpose of the 
 President. His design was to impair, to under 
 mine, and, if possible, to destroy the influence 
 of Congress in the country. Having accom 
 plished this result, the way would then have been 
 open to him for the prosecution of his crim 
 inal design to reconstruct the Government in 
 the interest of the rebels, and, through his influ 
 ence with them, to secure his own election to 
 the Presidency in 1868. It must, however, be 
 apparent that the words in the speech of Mr. 
 Johnson are of graver import than the words 
 which were spoken by Judge Chase to the grand 
 jury at Baltimore, or those uttered by Judge 
 Humphreys to the people of Tennessee. And 
 yet the latter was convicted by a unanimous 
 
 vote of this Senate; and the former escaped 
 conviction by four votes only. These words 
 are of graver import, not merely in the circum 
 stance that they assail a department of the Gov 
 ernment, but in the circumstance that they were 
 uttered by the President of the United States 
 in the Executive Mansion, and in his capacity 
 as President of the United States, when receiv 
 ing the congratulations and support of a portion 
 of the people of the country, tendered to him 
 in his office as Chief Magistrate. Judge Chase, 
 although a high officer of the Government, was 
 without political influence and without patron 
 age; his personal and official relations were 
 limited, and his remarks were addressed to the 
 grand jury of a judicial district of the country 
 merely. 
 
 Judge Humphreys was comparatively un 
 known ; and although his words were calculated 
 to excite the citizens of Tennessee, and induce 
 them to engage in unconstitutional undertak 
 ings, his influence was limited measurably to 
 the people of that State. 
 
 Mr. Johnson addressed the whole country ; 
 and holding in his hands the immense patron 
 age and influence belonging to the office of 
 President, he was able to give practical effect 
 to the declarations he then made. The nature 
 of the respondent s offense is illustrated by the 
 law in reference to the duty of officers and 
 soldiers of the Army, although the law is not 
 applicable to the President: 
 
 "Any officer or soldier who shall use contemptuous 
 or disrespectful words against the President of the 
 United States, against the Vice President thereof, 
 against tho Congress of the United States, shall be 
 cashiered or otherwise punished, as a court-martini 
 shall direct." titalutea-at-Large, vol. 2, p. U60, April 
 10, 1806. 
 
 Moreover, in the case of Judge Chase, as is 
 stated by Mr. Dane in his "Abridgment/ 
 (vol. 7, chap. 222:) 
 
 "On the whole evidence it remained in doubt what 
 words ho did utter. The proof of seditious intent 
 rested solely on the words themselves; and as the 
 words were not clearly proved tho intent was in 
 doubt." 
 
 In the case of Mr. Johnson there is no doubt 
 about the words uttered; they have been fully 
 and explicitly proved. Indeed, they are not 
 denied by the respondent. The unlawful in 
 tent with which he uttered the words not only 
 appears from the character of the language 
 employed, but it is proved by the history of 
 his Administration. In his message of the 22d 
 of June, 1866, relating to the constitutional 
 amendment, in his annual message of Decem 
 ber, 1866, and in .numerous other declarations, 
 he has questioned and substantially denied the 
 legality of the Congress of the United States. 
 
 In the trial of Judge Chase it was admitted 
 by the respondent "that for a judge to utter 
 seditious sentiments with intent to excite sedi 
 tion would bean impeachable offense." (Dane s 
 Abridgment, vol. 7, chap. 222.) And this not 
 under the act known as the "sedition act;" 
 for that had been previously repealed ; but 
 upon the general principle thatau officer whose 
 
33 
 
 duty it is to administer the law has no right to 
 use language calculated to stir up resistance to 
 the law. If this be true of a jud^e, with 
 stronger reason it is true of the President of 
 the United States, that he should set an exam 
 ple of respect for all the departments of the 
 Government and of reverence for and obedience 
 to the laws of the land. 
 
 The speeches made by the President at Cleve 
 land and St. Louis, which have been proved 
 and are found in the record of the case, con 
 tain numerous passages similar in character to 
 that extracted from his speech of the 18th of 
 August, 1866. and all calculated and designed 
 to impair the just authority of Congress. While 
 these declarations have not been made the 
 basis of substantive charges in the articles of 
 impeachment, they furnish evidence of theun- 
 lawful intent of the President in his utterance 
 of the 18th of August, and also of the fact that 
 that utterance was not due to any temporary 
 excitement or transient purpose which passed 
 away with the occasion which had called it 
 forth. It was a declaration made in accord 
 ance with a fixed design, which had obtained 
 such entire control of his nature that whenever 
 he addressed public assemblies he gave expres 
 sion to it. The evidence which has been sub 
 mitted by the respondent bearing upon the 
 tenth article indicates a purpose, in argument, 
 to excuse the President upon the ground that 
 the remarks of the people stimulated, irritated, 
 and excited him to such an extent that he was 
 not wholly responsible for what he said. If 
 this were true, it would exhibit great weakness 
 of character ; but as a matter of fact it is not 
 true. The taunts and gibes of the people served 
 only to draw from him those declarations which 
 were in accord with the purposes of his life. 
 This is shown by the fact that all his political 
 declarations made at Cleveland and at St. Louis, 
 though made under excitement, are in entire 
 harmony with the declarations made by him in 
 the East Room of the Executive Mansion, on 
 the 18th of August, 1866, when he was free 
 from any disturbing influence, and expressed 
 himself with all the reserve of which his nature 
 is capable. 
 
 The blasphemous utterances at St. Louis 
 cannot be aggravated by me, nor can they be 
 extenuated by anything which counsel for the 
 respondent can offer. They exhibit the char 
 acter of the speaker. 
 
 Upon these facts thus proved and the views 
 presented we demand the conviction of the 
 respondent of the misdemeanors charged in 
 the tenth article. 
 
 Article eleven sets forth that the object of the 
 President in most of the offenses alleged in the 
 preceding articles was to prevent the execution 
 of the act passed March 2, 1867, entitled, "An 
 act for the more efficient government of the rebel 
 States." It is well known, officially and pub 
 licly, that on the 29th of May, 1865, Mr. Johnson 
 issued a proclamation for the reorganization 
 of the government of North Carolina, and that 
 
 that proclamation was followed by other proc 
 lamations, issued during the next four months, 
 for the government of the several States which 
 had been engaged in the rebellion. Upon the 
 death of Mr. Lincoln Mr. Johnson entered 
 upon the office of President in a manner which 
 indicated that, in his judgment, he had been 
 long destined to fill the place, and that the 
 powers of the office were to be exercised by 
 him without regard to the other departments 
 of the Government. In his proclamation of 
 the 29th of May, and in all the proclamations 
 relating to the same subject, he had assumed 
 that in his office as President he was the 
 " United States," for the purpose of deciding 
 whether, under the Constitution, the govern 
 ment of a State was republican in form or not ; 
 although by a decision of the Supreme Court 
 it is declared that this power is specially vested 
 in the two Houses of Congress. In these proc 
 lamations he assumed, without authority of 
 law, to appoint, and he did appoint, Governors 
 of the several States thus organized. In fine, 
 between the 29th of May, 1865, and the assem 
 bling of Congress in December of that year, 
 he exercised sovereign power over the terri 
 tory and people of the eleven States that had 
 been engaged in the rebellion. 
 
 On the assembling of Congress in the month 
 of Decemberhe informed the Senate and House 
 of Representatives that the Union was restored, 
 and that nothing remained for the two Houses 
 but severally to accept as Senators and Repre 
 sentatives such loyal men as had been elected 
 by the Legislatures and people of the several 
 States. Congress refused to ratify or to recog 
 nize those proceedings upon the part of the 
 President as legal or proper proceedings, and 
 from that time forward he has been engaged in 
 various projects for the purpose of preventing 
 the reconstruction of the Union on any other 
 plan than that which he had inaugurated. In 
 the execution of this design he attempted to 
 deprive Congress of the confidence of the peo 
 ple of the country ; hence it was that, among 
 other things, on the 18th day of August, 1866, 
 at the city of Washington, as set forth in the 
 tenth and eleventh articles, he did in a public 
 speech declare and affirm in substance that the 
 Thirty-Ninth Congress of the United States 
 was not a Congress authorized by the Consti 
 tution to exercise legislative power under the 
 same ; but, on the contrary, was a Congress 
 of only a part of the States. 
 
 In the further execution of his purpose to 
 prevent the reconstruction of the Union upon 
 any plan except that which he had inaugurated, 
 he attempted to prevent the ratification by the 
 several States of the amendment to the Con 
 stitution known as article fourteen. By the 
 Constitution the President has no power to 
 participate in amendments or in propositions 
 for amendments thereto ; yet, availing himself 
 of the circumstance of the passage of a resolu 
 tion by the House of Representatives on the 
 13th day of June, 1866, requesting the Presi- 
 
dent to submit to the Legislatures of the several 
 States the said additional article to the Con 
 stitution of the United States, he sent to the 
 Senate and House of Representatives a message 
 in writing, in which he says : 
 
 "Even in ordinary times any question of amend 
 ing the Constitution must be justly regarded as of 
 paramount importance. This importance is at the 
 present time enhanced by the fact that the joint 
 resolution was not submitted by the two Houses for 
 the approval of the President, and that of the thirty- 
 six States which constitute the Union eleven are 
 excluded from representation in either House of 
 Congress, although, with the single exception of 
 Texas, they have been entirely restored to all their 
 functions as States, in conformity with the organic 
 law of the land, and have appeared at the national 
 Capitol by Senators and Representatives who have 
 applied for and have been refused admission to the 
 vacant seats. Nor have the sovereign people of the 
 nation been afforded an opportunity of expressing 
 their views upon the important questions which the 
 amendment involves. Grave doubts, therefore, may 
 naturally and justly arise as to whether the action 
 of Congress is in harmony with the sentiments of 
 the people, and whether State Legislatures, elected 
 without reference to such an issue, should be called 
 upon by Congress to decide respecting the ratification 
 of the proposed amendment." 
 
 He also says : 
 
 "A proper appreciation of the letter and spirit of 
 the Constitution, as well as of the interests of na 
 tional order, harmony, and union, and a due defer 
 ence for an enlightened public judgment, may at 
 this time well suggest a doubt whether any amend 
 ment to the Constitution ought to be proposed by 
 Congress and pressed upon the Legislatures of the 
 several States for final decision until after the ad 
 mission of such loyal Senators and Representatives 
 of the now unrepresented States as have been, or as 
 may hereafter be, chosen in conformity with the Con 
 stitution and laws of the United States." 
 
 This message was an extra-official proceed 
 ing, inasmuch as his agency in the work of 
 amending the Constitution is not required; 
 and it was also a very clear indication of an 
 opinion on his part that, inasmuch as the eleven 
 States were not represented, the Congress of 
 the United States had no power to act in the 
 matter of amending the Constitution. 
 
 The proposed amendment to the Constitu 
 tion contained provisions which were to be 
 made the basis of reconstruction. The laws 
 subsequently passed by Congress recognize the 
 amendment as essential to the welfare and safety 
 of the Union. It is alleged in the eleventh arti 
 cle that one of the purposes of the President 
 in the various unlawful acts charged in the 
 several articles of impeachment, and proved 
 against him, was to prevent the execution of 
 the act entitled " An act for the more efficient 
 government of the rebel States," passed March 
 2, 1867. In the nature of the case it has not 
 been easy to obtain testimony upon this point, 
 nor upon any other point touching the miscon 
 duct and crimes of the President. His declara 
 tions and his usurpations of power have rendered 
 a large portion of the officeholders of the country 
 for the time being subservient to his purposes ; 
 they have been ready to conceal and reluctant 
 to communicate any evidence calculated to im 
 plicate the President. His communications 
 with the South have been generally, and it 
 may be said almost exclusively, with the men 
 
 who had participated in the rebellion, and who 
 are now hoping for final success through his 
 aid. They have looked to him as their leader, 
 by whose efforts and agency in the office of 
 President of the United States they were either 
 to accomplish the objects for which the war 
 was undertaken, or at least to secure a resto 
 ration to the Union under such circumstances 
 that, as a section of the country and an in 
 terest in the country, they should possess and 
 exercise that power which the slaveholders 
 of the South possessed and exercised previous 
 to the rebellion. These men have been bound 
 to him by the strong bonds of hope, fear, and 
 ambition. The corruptions of the public ser 
 vice have enriched multitudes of his adherents 
 and quickened and strengthened the passion 
 of avarice in multitudes more. These classes 
 of men, possessing wealth and influence in 
 many cases, have exerted their power to close 
 up every avenue of information. Hence the 
 efforts of the committees of the House of 
 Representatives and the efforts of the Man 
 agers to ascertain the truth and to procure tes 
 timony which they were satisfied was in exist 
 ence have been defeated often by the devices 
 and machinations of those who in the North 
 and in the South are supposed to be allied to 
 the President. There can, however, be no 
 doubt that the President in every way open to 
 him used his personal and official influence 
 to defeat the ratification of the constitutional 
 amendment. Evidence of such disposition and 
 of the fact also is found in the telegraphic 
 correspondence of January, 1867, between Mr. 
 Johnson and Lewis E. Parsons, who had been 
 previously appointed Governor of Alabama by 
 the President. It is as follows : 
 
 MONTGOMERY, ALABAMA, January 17, 1867. 
 Legislature in session. Efforts making to recon 
 sider vote on constitutional amendment. Report 
 from Washington says it is probable an enabling act 
 will pass. We do not know what to believe. I find 
 nothing here. LEWIS E. PARSONS, 
 
 Exchange Hotel. 
 His Excellency ANDREW JOHNSON, President. 
 
 UNITED STATES MILITARY TELEGRAPH, 
 EXECUTIVE OFFICE, 
 
 WASHINGTON, D. C., January 17, 1867. 
 What possible good can be obtained by reconsider 
 ing the constitutional amendment ? I know of none in 
 the present posture of affairs; and I do not believe 
 the people of the whole country will sustain any set 
 of individuals in attempts to change the whole char 
 acter of our Government by enabling acts or other 
 wise. I believe, on the contrary, that they will event 
 ually uphold all who have patriotism and courage to 
 stand by the Constitution and who place their confi 
 dence in the people. There should be no faltering on 
 the part of those who are honest in their determina 
 tion to sustain the several coordinate departments 
 of the Government in accordance with its original 
 design. ANDREW JOHNSON. 
 
 Hon. LEWIS E. PARSONS, Montgomery, Alabama. 
 
 This correspondence shows his fixed purpose 
 to defeat the congressional plan of reconstruc 
 tion. Pursuing the subject further it is easy 
 to discover and comprehend his entire scheme 
 of criminal ambition. It was no less than this : 
 to obtain command of the War Department 
 
35 
 
 and of the Army, and by their combined power 
 to control the elections of 1868 in the ten States 
 not yet restored to the Union. The congres 
 sional plan of reconstruction contained as an 
 essential condition the extension of the elective 
 franchise to all loyal male citizens, and the 
 exclusion from the franchise of a portion of 
 those who had been most active in originating 
 and carrying on the rebellion. The purpose 
 of Mr. Johnson was to limit the elective fran 
 chise to white male citizens, and to permit the 
 exercise of it by all such persons without re 
 gard to their disloyalty. If he could secure 
 the control of the War Department and of the 
 Army it would be entirely practicable, and not 
 only practicable but easy, for him in the coming 
 elections quietly to inaugurate a policy through 
 out the ten States by which the former rebels, 
 strengthened by the support of the Executive 
 here, and by the military forces distributed 
 over the South, would exclude from the polls 
 every colored man and permit the exercise of 
 the elective franchise by every white rebel. 
 By these means he would be able to control 
 the entire vote of the ten rebel States ; by the 
 same means, or indeed by the force of the facts, 
 he would be able to secure the election of dele 
 gates to the Democratic national convention 
 favorable to his own nomination to the Presi 
 dency. The vote of these ten States in the 
 convention, considered in connection with the 
 fact that he and his friends could assure dele 
 gates from other sections of the country that, 
 if he were nominated, he could control beyond 
 peradventure the electoral vote of these ten 
 States, would have secured his nomination. 
 This he confidently anticipated. Nor, indeed, 
 can there be much. doubt that this scheme 
 would have been successful ; but it was apparent 
 that there was no possibility of his obtaining 
 the control of the War Department and of the 
 Army unless he could disregard and break 
 down the act regulating the tenure of certain 
 civil offices, passed March 2, 1867. If, how 
 ever, he could annul or disregard or set aside 
 the provisions of that act, then the way was 
 open for the successful consummation of his 
 plan. With thousands and tens of thousands 
 of office holders, scattered all over the coun 
 try, depending upon him for their offices and 
 for the emoluments of their offices, he would 
 be able to exert a large influence, if not abso 
 lutely to control the nominations of the Demo 
 cratic party in every State of the Union. With 
 the War Department in his hands, and the ten- 
 ure-of office act broken down, he would be 
 able to remove General Grant, General Sher 
 man, General Sheridan, or any other officer, 
 high or low, who, in his opinion, or upon the 
 facts, might be an obstacle in his way. With 
 the Army thus corrupted and humiliated, its 
 trusted leaders either driven from the service 
 or sent into exile in distant parts of the coun 
 try, he would be able to wield the power of 
 that vast organization for his own personal 
 advantage. 
 
 Under these circumstances it was not prob 
 able merely, but it was as certain as anything 
 in the future could be, that he would secure, 
 first, the nomination of the Democratic party 
 in the national nominating convention ; and 
 secondly, that he would secure the electoral 
 votes of these ten States. This being done, he 
 had only to obtain enough votes from the States 
 now represented in Congress to make a ma 
 jority of electoral votes, and he would defy the 
 House and Senate should they attempt to reject 
 the votes of the ten States, and this whether 
 those States had been previously restored to the 
 Union or not. In a contest with the two Houses 
 he and his friends and supporters, including 
 the War Department, the Treasury Department, 
 and the Army and Navy, would insist that he 
 had been duly elected President, and by the 
 support of the War Department, the Treasury 
 Department, the Army, and the Navy, he would 
 have been inaugurated on the 4th of March 
 next President of the United States for four 
 years. 
 
 That the President was and is hostile to Mr. 
 Stariton, and that he desired his removal from 
 office, there is no doubt ; but he has not as 
 sumed the responsibility which now rests upon 
 him, he has not incurred the hazard of his 
 present position, for the mere purpose of grat 
 ifying his personal feelings toward Mr. Stan- 
 ton. He disregarded the tenure- of-office act ; 
 he first suspended and then removed Mr. Stan- 
 ton from the office of Secretary for the De 
 partment of War; he defied the judgment of 
 and the advice and authority of the Senate ; 
 he incurred the risk of impeachment by the 
 House of Representatives, and trial and con 
 viction by this tribunal, under the influence of 
 an ambition unlimited and unscrupulous, which 
 dares anything and everything necessary to its 
 gratification. For the purpose of defeating the 
 congressional plan of reconstruction he has 
 advised and encouraged the people of the 
 South in the idea that he would restore them 
 to their former privileges and power ; that he 
 would establish a white man s Government; 
 that he would exclude the negroes from all 
 participation in political affairs ; and, finally, 
 that he would accomplish in their behalf whut 
 they had sought by rebellion, but by rebellion 
 had failed to secure. Hence it is through his 
 agency and by his influence the South has 
 been given up to disorder, rapine, and blood 
 shed ; hence it is that since the surrender of 
 Lee and Johnston thousands of loyal men, 
 black and white, have been murdered in cold 
 blood or subjected to cruelties and tortures 
 such as in modern times have been perpetrated 
 only by savage nations and in remote parts of 
 the world ; hence it is that twelve million peo 
 ple are without law, without order, unprotected 
 in their industry or their rights ; hence it is 
 that ten States are without government and 
 unrepresented in Congress ; hence it is that 
 the people of the North are even now uncer 
 tain whether the rebellion, vanquished in the 
 
field, is not finally to be victorious in the coun 
 cils and in the Cabinet of the country ; hence 
 it is that the loyal people of the entire Union 
 look upon Andrew Johnson as their worst 
 enemy ; hence it is that those who participated 
 in the rebellion, and still hope that its power 
 may once more be established in the country, 
 look upon Andrew Johnson as their best friend, 
 and as the last and chief supporter of the views 
 which they entertain. 
 
 The House of Representatives has brought 
 this respondent to your bar for trial, for con 
 viction, and for judgment; but the House of 
 Representatives, as a branch of the legislative 
 department of the Government, has no special 
 interest in these proceedings. It entered upon 
 them with great reluctance, after laborious and 
 continued investigation, and only upon a con 
 viction that the interests of the country were 
 in peril, and that there was no way of relief 
 except through the exercise of the highest 
 constitutional power vested in that body. We 
 do not appeal to this tribunal because any spe 
 cial right of the House of Representatives has 
 been infringed, or because the just powers of 
 or the existence of the House are in danger, 
 except as that body must always participate 
 in the good or ill fortune of the country. They 
 have brought this respondent to your bar, and 
 here demand his conviction in the belief, as 
 the result of much investigation, of much de 
 liberation, that the interests of this country 
 are no longer safe in his hands. 
 
 But the House of Representatives, repre 
 senting the people of the country, may very 
 properly appeal to this tribunal, constituted, 
 as it is, exclusively of Senators representing 
 the different States of this Union, to maintain 
 the constitutional powers of the Senate. To 
 be sure, nothing can injuriously affect the 
 powers and the rights of the Senate which 
 does not affect injuriously the rights of the 
 House of Representatives, and of the people 
 of the whole country; but it may be said with 
 great truth that this contest is first for the 
 preservation of the constitutional powers of 
 this branch of the Government. By your 
 votes and action, in concurrence with the 
 House of Representatives, the bill "regulating 
 the tenure of certain civil offices" was passed 
 and became a law, and this notwithstanding 
 the objections of the President thereto and his 
 argument against its passage. On a subse 
 quent occasion, when you considered the sus 
 pension of Mr. Stanton and the message of the 
 President, in which, by argument and by state 
 ments, he assailed the law in question, you 
 asserted its validity and its constitutionality 
 by refusing to concur in the suspension of Mr. 
 Stanton. On a more recent occasion, when 
 he attempted to remove Mr. Stanton from 
 office, you, by solemn resolution, declared 
 that his action therein was contrary to the 
 laws and to the Constitution of the country. 
 
 From the beginning of the Government this 
 body has participated under the Constitution 
 
 and by virtue of the Constitution in all matters 
 pertaining to appointments to office ; and, by the 
 universal practice of the country, as well be 
 fore the passage of the tenure-of-office act as 
 since, no removal of any officer whose appoint 
 ment was by and with the advice and consent 
 of the Senate, has been made during a session 
 of the Senate, with your knowledge and sanc 
 tion, except by the nomination of a successor, 
 whose nomination was confirmed by and with 
 the advice and consent of the Senate. Mr. 
 Johnson, in presence of this uniform constitu 
 tional practice of three quarters of a century 
 and against the express provisions of the ten 
 ure-of-office act, made in this particular in 
 entire harmony with that practice, asserts now, 
 absolutely, the unqualified power to remove 
 every officer in the country without the advice 
 or consent of the Senate. 
 
 Never in the history of any free government 
 has there been so base, so gross, so unjustifi 
 able an attempt upon the part of an executive, 
 whether emperor, king, or President, to destroy 
 the just authority of another department of 
 the Government. 
 
 The House of Representatives has not been 
 indifferent to this assault ; it has not been 
 unmindful of the danger to which you have 
 been exposed ; it has seen, what you must ad 
 mit, that without its agency and support you 
 were powerless to resist these aggressions, or 
 to thwart, in any degree, the purposes of this 
 usurper. In the exercise of their constitutional 
 power of impeachment they have brought him 
 to your bar ; the} have laid before you the evi 
 dence showing conclusively the nature, the 
 extent, and the depth of his guilt. You hold 
 this great power in trust, not for yourselves 
 merely, but for all your successors in these 
 high places, and for all the people of this coun 
 try. You cannot fail to discharge your duty ; 
 that duty is clear. On the one hand it is your 
 
 , duty to protect, to preserve, and to defend your 
 own constitutional rights, but it is equally your 
 duty to preserve the laws and institutions of 
 the country. It is your duty to protect and 
 defend the Constitution of the United States, 
 and the rights of the people under it ; it is your 
 duty to preserve and to transmit unimpaired to 
 your successors in these places all the consti 
 tutional rights and privileges guarantied to 
 this body by the form of government under 
 which we live. On the other hand, it is your 
 duty to try and convict the accused, if guilty, 
 and to pronounce judgment upon the respond 
 ent, that all his successors, and all men who 
 aspire to the office of President in time to 
 come, may understand that the House of Rep 
 resentatives and the Senate will demand the 
 strictest observance of the Constitution ; that 
 they will hold every man in the presidential 
 office responsible for a rigid performance of his 
 public duties* 
 
 Nothing, literally nothing, can be said in 
 defense of this respondent. Upon his own 
 
 I admissions he is guilty, in substance, of the 
 
37 
 
 gravest charges contained in the articles of 
 impeachment exhibited against him by the 
 House of Representatives. In his personal 
 conduct and character he presents no quality 
 or attribute which enlists the sympathy or the 
 regard of men. The exhibition which he made 
 in this Chamber on the 4th of March, 1865, by 
 which the nation was humiliated and repub 
 lican institutions disgraced, in the presence of 
 the representatives of the civilized nations of 
 the earth, is a truthful exhibition of his char 
 acter. His violent, denunciatory, blasphemous 
 declarations made to the people on various 
 occasions, and proved by the testimony sub 
 mitted to the Senate, illustrate other qualities 
 of his nature. His cold indifference to the 
 desolation, disorder, and crimes in the ten 
 States of the South exhibit yet other and 
 darker features. 
 
 Can any one entertain the opinion that Mr. 
 Johnson is not guilty of such crimes as justify 
 his removal from office and his disqualifica 
 tion to hold any office of trust or profit under 
 the Government of the United States? Wil 
 liam Blount, Senator of the United States, 
 was impeached by the House of Representa 
 tives and declared guilty of a high misdemeanor, 
 and though not tried by the Senate the Senate 
 did, nevertheless, expel him from his seat by 
 a vote of 25 to 1, and, in the resolution of ex 
 pulsion, declared that he had been guilty of a 
 high misdemeanor. The crime of William 
 Blount was that he wrote a letter and partici 
 pated in conversations, from which it appeared 
 probable that he was engaged in an immature 
 scheme to alienate the Indians of the South 
 west frrtm the President and the Congress of 
 the United States; and also, incidentally, to 
 disturb the friendly relations between this 
 Government and the Governments of Spain 
 and Great Britain. This, at most, was but an 
 arrangement, never consummated into any 
 overt act, by which he contemplated, under 
 possible circumstances which never occurred, 
 that he would violate the -neutrality laws of 
 the United States. 
 
 Andrew Johnson is guilty, upon the proof in 
 part and upon his own admissions, of having 
 intentionally violated a public law, of usurping 
 and exercising powers not exercised nor even 
 asserted by any of his predecessors in office. 
 
 Judge Pickering, of the district court of 
 New Hampshire, was impeached by the House 
 of Representatives, convicted by the Senate, 
 and removed from office, for the crime of hav 
 ing appeared upon the bench in a state of in 
 toxication. I need notdraw any parallel between 
 Judge Pickering and this respondent. 
 
 Judge Prescolt, of Massachusetts, was im 
 peached and removed from office for receiving 
 illegal fees in his office to the amount of $10 70 
 only. Judge Prescptt belonged to one of the 
 oldest and most eminent families of the State, 
 and he was himself a distinguished lawyer. 
 But such was the respect of the Senate of that 
 sate for the law, and such the public opinion 
 
 that it was the duty of magistrates to obey the 
 law, that they did not hesitate to convict him 
 and remove him from office. 
 
 The Earl of Macclesfield was impeached and 
 convicted for the misuse of his official powers 
 in regard to trust funds, an offense in itself of 
 a grave character, but a trivial crime compared 
 with the open, wanton, and defiant violation 
 of law by a Chief Magistrate whose highest 
 duty is the execution of the laws. 
 
 If the charges preferred against Warren 
 Hastings had been fully sustained by the testi 
 mony, he would be regarded in history as an 
 unimportant criminal when compared with the 
 respondent. Warren Hastings, as governor 
 general of Bengal, extended the territory of the 
 British empire, and brought millions of the 
 natives of India under British rule. If he ex 
 ercised power in India for which there was no 
 authority in British laws or British customs 
 if in the exercise of that power he acquired 
 wealth for himself or permitted others to accu 
 mulate fortunes by outrages and wrongs per 
 petrated upon that distant people, he still acted 
 in his public policy in the interest of the Brit 
 ish empire and in harmony with the ideas aud 
 purposes of the British people. 
 
 Andrew Johnson has disregarded and vio 
 lated the laws and Constitution of his own 
 country. Under his administration the Gov 
 ernment has not been strengthened, but weak 
 ened. Its reputation and influence at home 
 and abroad have been injured and diminished. 
 He has not outraged a distant people bound 
 to us by no ties, but those which result from 
 conquest and the exercise of arbitrary power 
 on our part; but through his violation of the 
 laws and the influence of his evil example 
 upon the men of the South, in whose hearts 
 the purposes and the passions of the war yet 
 linger, he has brought disorder, confusion, 
 and bloodshed to the homes of twelve millions 
 of people, many of whom are of our own blood 
 and all of whom are our countrymen. Ten 
 States of this Union are without law, without 
 security, without safety; public order every 
 where violated, public justice nowhere re 
 spected; and all in consequence of the evil 
 purposes and machinations of the President. 
 Forty millions of people have been rendered 
 anxious and uncertain as to the preservation 
 of public peace and the perpetuity of the insti 
 tutions of freedom in this country. 
 
 There are no limits to the consequences of 
 this man s evil example. A member of his 
 Cabinet in your presence avows, proclaims, 
 indeed, that he suspended from office indefi 
 nitely a faithful public officer who was ap 
 pointed by your advice and consent; an act 
 which he does not attempt to justify by any 
 law or usage, except what he is pleased to 
 call the law of necessity. Is it strange that in 
 the presence of these examples the ignorant, 
 the vicious, and the criminal are everywhere 
 swift to violate the laws? Is it strange that 
 the loyal people of the South, most of them 
 
38 
 
 poor, dependent, not yet confident of their 
 newly-acquired rights, exercising their just 
 privileges in fear and trembling, should thus 
 be made the victims of the worst passions of 
 men who have freed themselves from all the 
 restraints of civil government? Under the 
 influence of these examples good men in the 
 South have everything to fear, and bad men 
 have everything to hope. 
 
 Caius Verres is the great political criminal 
 of history. For two years he was praetor and 
 the scourge of Sicily. The area of that country 
 does not much exceed ten thousand square 
 miles, and in modern times it has had a popu 
 lation of about two million souls. The re 
 spondent at your bar has been the scourge of a 
 country many times the area of Sicily and 
 containing a population six times as great. 
 Verres enriched himself and his friends; he 
 seized the public paintings and statues and 
 carried them to Rome. But at the end of his 
 brief rule of two years he left Sicily as he had 
 found it; in comparative peace, and in the 
 possession of its industries and its laws. This 
 respondent has not ravaged States nor enriched 
 himself by the plunder of their treasures ; but 
 he has inaugurated and adhered to a policy 
 which has deprived the people of the blessings 
 of peace, of the protection of law, of the just 
 rewards of honest industry. A vast and im 
 portant portion of the Republic, a portion 
 whose prosperity is essential to the prosperity 
 of the country at large, is prostrate and help 
 less under the evils which his Administration 
 has brought upon it. When Verres was ar 
 raigned before his judges at Rome, and the 
 exposure of his crimes began, his counsel aban 
 doned his cause and the criminal fled from the 
 city. Yet Verres had friends in Sicily, and 
 they erected a gilded statue to his name in the 
 streets of Syracuse. This respondent will look 
 in vain, even in the South, for any testimonials 
 to his virtues or to his public conduct. All 
 classes are oppressed by the private and public 
 calamities which he has brought upon ihera. 
 They appeal to you for relief. The nation waits 
 in anxiety for the conclusion of these proceed 
 ings. Forty millions of people, whose interest 
 in public affairs is in the wise and just admin 
 istration of the laws, look to this tribunal as a 
 sure defense against the encroachments of a 
 criminally- minded Chief Magistrate. _ 
 
 Will any one say that the heaviest judgment 
 which you can render is any adequate punish 
 ment for these crimes? Your office is not 
 punishment, but to secure the safety of the Re 
 public. But human tribunals are inadequate 
 to punish those criminals who, as rulers or 
 magistrates, by their example, conduct, policy, 
 and crimes, become the scourge of communi 
 ties and nations. No picture, no power of the 
 imagination can illustrate or conceive the suf 
 fering of the poor but loyal people of the South. 
 A patriotic, virtuous, law-abiding Chief Magis 
 trate would have healed the wounds of war, 
 soothed private and public sorrows, protected 
 
 the weak, encouraged the strong, and lifted 
 from the southern people the burdens which 
 now are greater than they can bear. 
 
 Travelers and astronomers inform us that in 
 the southern heavens, near the Southern Cross, 
 there is a vast space which the uneducated call 
 the hole in the sky. where the eye of man with 
 the aid of the powers of the telescope has been 
 unable to discover nebulae, or asteroid, or 
 comet, or planet, or star, or sun. In that 
 dreary, cold, dark region of space, which is 
 only known to be less than infinite by the evi 
 dences of creation elsewhere, the Great Author 
 of celestial mechanism has left the chaos which 
 was in the beginning. If this earth were 
 capable of the sentiments and emotions of jus 
 tice and virtue, which in human mortal beings 
 are the evidences and the pledge of our divine 
 origin and immortal destiny, it would heave 
 and throe, with the energy of the elemental 
 forces of nature, and project this enemy of two 
 races of men into that vast, region, there for 
 ever to exist in a solitude eternal as life, or as 
 the absence of life, emblematical of, if not 
 really, that a outer darkness" of which the 
 Saviour of man spoke in warning to those who 
 are the enemies of themselves, of their race, 
 and of their God. But it is yours to relieve, 
 not to punish. This done and our country is 
 again advanced in the intelligent opinion of 
 mankind. In other Governments an unfaithful 
 ruler can be removed only by revolution, vio 
 lence, or force. The proceeding here is judicial, 
 j and according to the forms of law. Your judg 
 ment will be enforced without the aid of a 
 I policeman or a soldier. What other evidence 
 I will be needed of the value of republican insti- 
 1 tutions? What other test of the strength and 
 vigor of our Government ? What other assur 
 ance that the virtue of the people is equal to 
 any emergency of national life ? 
 
 The contest which the House of Represent 
 atives carries on at your bar is a contest 
 in defense of the constitutional rights of the 
 Congress of the United States, representing 
 the people of the United States against the 
 arbitrary, unjust, illegal claims of the Execu 
 tive. 
 
 This is the old contest of Europe revived in 
 America. England, France, and Spain have 
 each been the theater of this strife. In France 
 and Spain the executive triumphed. In Eng 
 land the people were victorious. The people 
 of France gradually but slowly regain their 
 rights. But even yet there is no freedom of 
 the press in France ; there is no freedom of the 
 legislative will ; the emperor is supreme. 
 
 Spain is wholly unregenerated. England 
 j alone has a free Parliament and a government 
 | of laws emanating from the enfranchised peo 
 ple. These laws are everywhere executed, 
 and a sovereign who should willfully interpose 
 any obstacle would be dethroned without de 
 lay. In England the law is more mighty lhan 
 the king. In America a President claims to 
 be mightier than the law. 
 
39 
 
 This result in England was reached by slow 
 movements, and after a struggle which lasted 
 through man} centuries. John Hampden was 
 not the first nor the last of the patriots who j 
 resisted executive usurpation, but nothing could j 
 have been more inapplicable to the present cir- j 
 cumstances than the introduction of his name j 
 as an apology for the usurpations of Andrew 
 Johnson. 
 
 "No man will question John Hampden s 
 patriotism or the propriety of his acts when 
 he brought the question whether ship-money 
 was within the constitution of England before 
 the courts;" but no man will admit that there 
 is any parallel between Andrew Johnson and 
 John Hampden. Andrew Johnson takes the 
 place of Charles I, and seeks to substitute his 
 own will for the laws of the land. In 1G36 
 John Hampden resisted the demands of an 
 usurping and unprincipled king, as does Edwin 
 M. Stanton to-day resist the claims and de 
 mands of an unprincipled and usurping Pres 
 ident. 
 
 The people of England have successfully 
 resisted executive encroachments upon their 
 rights. Let not their example be lost upon us. 
 We suppressed the rebellion in arms, and we 
 are now to expel it from the executive coun 
 cils. This done, republican institutions need 
 no further illustration or defense. All things 
 then relating to the national welfare and life 
 are made as secure as can be any future 
 events. 
 
 The freedom, prosperity, and power of Amer 
 ica are established. The friends of constitu 
 
 tional liberty throughout Europe will hail with 
 joy the assured greatness and glory of the new 
 Republic. Our internal difficulties will rapidly 
 | disappear. Peace and prosperity will return 
 to every portion of the country. In a few 
 weeks or months we shall celebrate a restored 
 Union upon the basis of the equal rights of 
 the States, iji each of which equality of the 
 people will be recognized and established. This 
 respondent i^ not to be convicted that these 
 things may cj)me, but justice being done, these 
 things are tOjCome. 
 
 At your bj,r the House of Representatives 
 demand justice justice for the people, justice 
 to the accuseu. Justice is of God, and it can 
 not perish, py and through justice comes obe 
 dience to thelaw by all magistrates and peo 
 ple. By and^hrough justice comes the liberty 
 j of the law, wlich is freedom without license. 
 
 Senators, SB far as I am concerned, the case 
 
 I is now in you^hands, and it is soon to be closed 
 
 I by my associate. The House of Representa- 
 
 j tives have presented this criminal at your bar 
 
 with equal comdence in his guilt and in your 
 
 disposition to administer exact justice between 
 
 Sim and the people of the United States. 
 
 His conviction is the triumph of law, of 
 ; order, of jostle. I do not contemplate his 
 I acquittal it is mpossible. Therefore 1 do hot 
 j look beyond. But, Senators, the people of 
 j America will river permit an usurping Exec 
 utive to breakdown the securities for liberty 
 provided by th Constitution. The cause of 
 the Republic isnn your hands. Your verdict 
 of guilty is pea\ to our beloved country. 
 

 
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