Question. Did he examine them?
Answer. Part of them.

Question. What then took place between you? Mr. STANBERY. What do you propose to prove, Mr. Manager?

Mr. Manager BUTLER. What took place between the President and this witness.

Mr. STANBERY. Has it anything to do with this case?

Mr. Manager BUTLER. Yes, sir. Mr. STANBERY. Under what article? Mr. Manager BUTLER. As to the intent of the President in the several articles. Mr. STANBERY. To do what?

Mr. Manager BUTLER. To oppose Congress. [To the witness.] Will you go on, sir? What did he say?

Answer. He said my claims for Government employment were good, or worthy of attention; I will not fix the words.

Question. What next?

Answer. He inquired about my political sentiments somewhat, noticing that I was not a political man or not a politician. I told him I was a Union man, a loyal man, and in favor of the Administration; that I had confidence in Congress and in the Chief Executive. He then asked me if I knew of any differences between himself and Congress. I told him I did; that I knew some differences on minor points. He then said: "They are not minor points."

Question. Go on, sir?

Answer. And the "influence" or "patronage"-I am not sure which-"of these offices shall be in my favor." That was the meaning.

Question. Were those the words? Answer. I will not swear that they were the words.

Question. "Shall be in my favor." What did you say to that?

Answer. I remarked that under those conditions I could not accept an appointment of any kind, if my influence was to be used for him in contradistinction to Congress, and retired.

Cross examined by Mr. STANBERY: Question. Do you know a gentleman in this city by the name of Koppel?

Answer. I do, sir.

Question. Have you talked with him since you have been in the city?

Answer. I have called on him when I first came in the city; I have seen him frequently. Question. Did you tell Mr. Koppel yesterday morning that all you could say about the President was more in his favor than against him? Answer. I did not, sir.

Question. Did you tell Mr. Koppel that when you were brought up to be examined since you

that they supposed I could testify to, but that I could not.

Question. Have you been examined before this time since you came into this city? Answer. By whom?

Question. Have you been examined before, by any one?

Answer. I have.

Question. Under oath?
Answer. Yes, sir.

Question. Who first by?

Answer. By the Managers of the impeach

ment.

Question. Was your testimony taken down? Answer. It was.

Question. Were you examined or talked to by any one of them before your examination under oath?

Answer. I had an informal interview with two of them before I was examined. I could hardly call it an examination.

Question. Which two of them, and where? Answer. By Governor BoUTWELL and General BUTLER.

Question. When?

Answer. Monday of this week.

Question. Did you say to Mr. Koppel that since you have been in the city a proposition was made to you that, in case you would give certain testimony it would be for your benefit?

Answer. I did not, sir.

Reexamined by Mr. Manager BUTLER: Question. Who is Mr. Koppel? Answer. Mr. Koppel is an acquaintance of mine on the avenue-a merchant.

Question. What sort of merchandise, please? Answer. He is a manufacturer of garmentsa tailor. [Laughter.]

Question. Do you know any sympathy between him and the President?

Answer. I have always supposed that Mr. Koppel was a southern man in spirit. He came from Charleston, South Carolina, hereran the blockade.

Question. Do you mean that as an answer to my question of sympathy between the President and him?

Answer. Yes, sir.

Question. The counsel for the President has asked you if you told Mr. Koppel that you had been asked to say things which you could not say, or words to that effect. In explanation or answer of the question you said there was a misunderstanding which you explained to Mr. Koppel. Will you have the kindness to tell us what that misunderstanding was which you explained to Mr. Koppel?

Mr. STANBERY. We do not care about that.

Mr. Manager BUTLER, (to the counsel for the respondent.) You put in a part of the conversation. I have a right to the whole of it. Mr. STANBERY. We did not put it in at all-only a certain declaration.

Mr. Manager BUTLER. A certain declaration out of it, that is a part of the conversation.

Mr. STANBERY. Go on in your own way. Mr. Manager BUTLER, (to the witness.) I will ask, in the first place, did you explain the matter to him?

Answer. I did.

Question. Tell us what the misunderstanding was which you explained to him in that conversation?

Answer. I think, sir, a gentleman from Boston wrote you that the President asked me if I would give twenty-five per cent. of the proceeds of any office for political purposes. I told you that I did not say so; the gentleman in Boston misunderstood me. The President said nothing of the kind to me. I explained that to Mr. Koppel, he probably having misunderstood it.

Question. Did you explain where the misunderstanding arose?

Answer. I told him that I supposed it must have occurred in a conversation between the gentleman in Boston and myself.

Question. In regard to what?

Answer. In regard to the twenty-five per

cent.

Question. Where did that arise?

Mr. STANBERY. What about all that? Mr. Manager BUTLER. I am getting this conversation between Mr. Koppel and this man. Mr. STANBERY. Not at all. You are speaking about another transaction.

Mr. Manager BUTLER. No; I am asking you if you explained to Mr. Koppel where the idea came from that you were to give twentyfive per cent.

Mr. EVARTS. We object, Mr. Chief Jus tice. The witness has stated distinctly that nothing occurred between the President and himself, and it is certainly quite unimportant to this court what occurred between this witness and another gentleman in Boston.

Mr. Manager BUTLER. I pray judgment again upon this. The other side seek to put in the conversation between a tailor down in Pennsylvania avenue or somewhere else and this witness. I want the whole of that conver sation. I supposed, from the eminence of the gentleman who asked the question, that the conversation between Mr. Koppel, the tailor, and this witness, was put in for some good purpose; and, if it was, I want the whole of it.

Mr. EVARTS. The fact is not exactly as is stated by the learned Manager. In the priv ilege of cross-examination the counsel for the President asked this witness distinctly whether he had said so and so to a Mr. Koppel. The witness said that he had not, and then volunteered a statement that there might have been some misunderstanding between Mr. Koppel derstanding somewhere. Our inquiries did not and himself upon that subject, or some misunreach or ask for or bring out the misunderstanding. But, passing that point, we stand here distinctly to say that everything which relates to any conversation or interview between the President and this witness, whether as understood or misunderstood, has been gone through, and the present point of inquiry and further testimony is as to the ground of misunderstanding between this witness and some interlocutor in Boston, and we object to its being heard.

Mr. Manager BUTLER. Which he explained to Mr. Koppel, is the point.

Mr. EVARTS. That makes no difference. Mr. Manager BUTLER. Having put in a part of Mr. Koppel's conversation, whether voluntarily or not, I have the right to the whole of it. I will explain to the gentlemen that I wish to show that the misunderstanding was not that the President said the twenty-five per cent. was to be given, but one of his friends. There is where the misunderstanding arose. Do the gentlemen still object?

Mr. STANBERY and Mr. EVARTS. Of course we object. It has nothing to do with the case.

Mr. Manager BUTLER. I will not press it further. That is all, Mr. Wood.

FOSTER BLODGETT sworn and examined.

By Mr. Manager BUTLER:

Question. Were you an officer of the United States at any time?

Answer. Yes, sir.

Question. Where?

Answer. In Augusta, Georgia.

Question. Holding what office?

Answer. Postmaster.

Question. When did you go into the exercise of the duties of that office?

Answer. I was appointed on the 25th day of July, 1865.

Question. Have you your commission or appointment?

Answer. I have. [Producing it.] I took charge on the 16th day of September, 1865. Question. Did you receive another commission?

whether any particular Secretary comes within that rule depends on another question, whether his case comes within the description contained in the proviso. There is no language which expressly brings him within the proviso; there is no express declaration, as in the body of the section, that "he is, and hereafter shall be, entitled" merely because he holds the office of Secretary at the time of the passage of the law. There is nothing to bring him within the proviso, I repeat, unless the description which the proviso contains applies to and includes his case. Now, let us see if it does.

"That the Secretaries of State, &c., shall hold their offices respectively for and during the term of the President by whom they may have been appointed." The first inquiry which arises on this language is as to the meaning of the words "for and during the term of the President." Mr. Stanton, as appears by the commission which has been put into the case by the honorable Managers, was appointed in January, 1862, during the first term of President Lincoln. Are these words, "during the term of the President," applicable to Mr. Stanton's case? That depends upon whether an expounder of this law judicially, who finds set down in it as a part of the descriptive words "during the term of the President," has any right to add "and any other term for which he may afterward be elected." By what authority short of legislative power can those words be put into the statute so that "during the term of the President" shall be held to mean "and any other term or terms for which the President may be elected?" I respectfully submit no such judicial interpretation can be put on the words.

Then, if you please, take the next step. "During the term of the President by whom he was appointed." At the time when this order was issued for the removal of Mr. Stanton was he holding "during the term of the President by whom he was appointed?" The honorable Managers say yes, because, as they say, Mr. Johnson is merely serving out the residue of Mr. Lincoln's term. But is that so under the provisions of the Constitution of the United States? I pray you to allow me to read two clauses which are applicable to this question. The first is the first section of the second article:

"The executive power shall be vested in a President of the United States of America. 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."

There is a declaration that the President and the Vice President is each respectively to hold his office for the term of four years; but that does not stand alone; here is its qualification:

"In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President."

So that although the President, like the Vice President, is elected for a term of four years, and each is elected for the same term, the President is not to hold his office absolutely during four years. The limit of four years is not an absolute limit. Death is a limit. A "conditional limitation," as the lawyers call it, is imposed on his tenure of office. And when, according to this second passage which I have read, the President dies, his term of four years for which he was elected, and during which he was to hold, provided he should so long live, terminates, and the office devolves on the Vice President. For what period of time? For the remainder of the term for which the Vice President was elected. And there is no more propriety, under these provisions of the Constitution of the United States, in calling the time during which Mr. Johnson holds the office of President after it was devolved upon him a part of Mr. Lincoln's term than there would be propriety in saying that one sovereign who succeeded to another sovereign by death holds a part of his predecessor's term. The term assigned to Mr. Lincoln by the Constitution was conditionally assigned to him. It was to last four years if not sooner ended; but if sooner ended by his death, then the office was

devolved on the Vice President, and the term of the Vice President to hold the office then began.

I submit, then, that upon this language of the act it is apparent that Mr. Stanton's case cannot be considered as within it. This law, however, as Senators very well know, had a purpose; there was a practical object in the view of Congress; and, however clear it might seem that the language of the law when applied to Mr. Stanton's case would exclude that case, however clear that might seem on the mere words of the law, if the purpose of the law could be discerned, and that purpose plainly required a different interpretation, that different interpretation should be given. But, on the other hand, if the purpose in view was one requiring that interpretation to which I have been drawing your attention, then it greatly strengthens the argument; because, not only the language of the act itself, but the practical object which the legislature had in view in using that language demands that interpreta

tion.

Now, there can be no dispute concerning what that purpose was, as I suppose. Here is a peculiar class of officers singled out from all others and brought within this provision. Why is this? It is because the Constitution has provided that these principal officers in the several Executive Departments may be called upon by the President for advice "respecting for that is the language of the Constitution"their several duties"-not, as I read the Constitution, that he may call upon the Secretary of War for advice concerning questions arising in the Department of War. He may call upon him for advice concerning questions which are a part of the duty of the President, as well as questions which belong only to the Department of War. Allow me to read that clause of the Constitution, and see if this be not its true interpretation. The language of the Constitution is, that

He [the President] may require the opinion in writing of the principal officer in each of the Executive Departments upon any subject relating to the duties of their respective offices."

As I read it, relating to the duties of the offices of these principal officers, or relating to the duties of the President himself. At all events, such was the practical interpretation put upon the Constitution from the beginning of the Government; and every gentleman who listens to me who is familiar, as you all are, with the political history of the country, knows that from an early period of the administration of General Washington his Secretaries were called upon for advice concerning matters not within their respective Departments, and so the practice has continued from that time to this. This is one thing which distinguishes this class of officers from any other embraced within the body of the law.

were to be the advisers of the President; they were to be the immediate confidential assist ants of the President, for whom he was to be responsible, but in whom he was expected to repose a great amount of trust and contidence; and therefore it was that this act has connected the tenure of office of these Secretaries to which it applies with the President by whom they were appointed. It says, in the description which the act gives of the future tenure of office of Secretaries, that a controlling regard is to be had to the fact that the Secretary whose tenure is to be regulated was appointed by some particular President; and during the term of that President he shall continue to hold his office; but as for Secretaries who are in office, not appointed by the President, we have nothing to say; we leave them as they heretofore have been. I submit to Senators that this is the natural, and, having regard to the character of these officers, the necessary conclusion, that the tenure of the office of a Secretary here described is a tenure during the term of service of the President by whom he was appointed; that it was not the intention of Congress to compel a President of the United States to continue in office a Secretary not appointed by himself.

We have, however, fortunately, not only the means of interpreting this law which I have alluded to, namely, the language of the act, the evident character and purpose of the act, but we have decisive evidence of what was intended and understood to be the meaning and effect of this law in each branch of Congress at the time when it was passed. In order to make this more apparent and its just weight more evident allow me to state, what is very familiar, no doubt, to Senators, but which I wish to recall to their minds, the history of this proviso, this exception.

The bill, as Senators will recollect, originally excluded these officers altogether. It made no attempt, indeed it rejected all attempts, to prescribe a tenure of office for them, as inappro priate to the necessities of the Government. So the bill went to the House of Representatives. It was there amended by putting the Secretaries on the same footing as all other civil officers appointed with the advice and consent of the Senate, and, thus amended, came back to this body. This body disagreed to the amendment. Thereupon a committee of conference was appointed, and that_committee, on the part of the House, had for its chairman Hon. Mr. SCHENCK, of Ohio, and on the part of this body Hon. Mr. WILLIAMS, of Oregon, and Hon. Mr. SHERMAN, of Ohio. The committee of conference came to an agree ment to alter the bill by striking these Secre taries out of the body of the bill and inserting them in the proviso containing the matter now under consideration. Of course when this report was made to the House of Representatives and to this body it was incumbent on the committee charged with looking after its intentions and estimates of the public necessities in reference to that conference-it was expected that they would explain what had been agreed to, with a view that the body itself, thus understanding what had been agreed to be done, could proceed to act intelligently on the matter. Now, I wish to read to the Senate the ex

chairman of this conference on the part of the House, when he made his report to the House concerning this proviso. After the reading of the report, Mr. SCHENCK said:

"I propose to demand the previous question upon the question of agreeing to the report of the committee of conference. But before doing so, I will explain to the House the condition of the bill and the decis ion of the conference committee upon it. It will be remembered that by the bill as it passed the Senate it was provided that the concurrence of the Senate should be required in all removals from office, except in the case of the heads of Departments. The House amended the bill of the Senate so as to extend this to other officers.

"The committee of conference have agreed that the Senate shall accept the amendment of the House. But, inasmuch as this would compel the President to keep around him heads of Departments until the end of his term, who would hold over to another teria

a compromise was made by which a further amendment is added to this portion of the bill, so that the term of office of the heads of Departments shall expire with the term of the President who appointed them, allowing those heads of Departments one month longer, in which, in case of death or otherwise, other heads of Departments can be named. This is the whole effect of the proposition reported by the committee of conference; it is, in fact, an acceptance by the Senate of the position taken by the House." Congressional Globe, Thirty-Ninth Congress, second session, p. 1340.

Then a question was asked, whether it would be necessary that the Senate should concur in all other appointments, &c.; in reply to which Mr. SCHENCK said:

"That is the case. But their terms of office"That is, the Secretaries' terms of office"are limited, 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 substituted for them by the incoming President."Ibid.

Allow me to repeat that sentence:

"They expire with the term of service of the President who appoints them, and one month after, in case of death or other accident."

In this body, on the report being made, the chairman, Hon. Mr. WILLIAMS, made an explanation. That explanation was in substance the same as that made by Mr. SCHENCK in the House, and thereupon a considerable debate sprang up, which was not the case in the House, for this explanation of Mr. SCHENCK was accepted by the House as correct, and unquestionably was acted upon by the House as giving the true sense, meaning, and effect of this bill. In this body, as I have said, a considerable debate sprang up. It would take too much of your time and too much of my strength to undertake to read this debate, and there is not a great deal of it which I can select so as to present it fairly and intelligibly without reading the accompanying parts; but I think the whole of it may fairly be summed up in this statement: that it was charged by one of the honorable Senators from Wisconsin that it was the intention of those who favored this bill to keep in oflice Mr. Stanton and certain other Secretaries. That was directly met by the honorable Senator from Ohio, one of the members of the committee of conference, by this statement:

"I do not understand the logic of the Senator from Wisconsin. He first attributes a purpose to the committee of conference which I say is not true. I say that the Senate have not legislated with a view to any persons or any President, and therefore he commences by asserting what is not true. We do not legislate in order to keep in the Secretary of War, the Secretary of the Navy, or the Secretary of State."-Ibid., p. 1516.

Then a conversation arose between the honorable Senator from Ohio and another honorable Senator, and the honorable Senator from Ohio continued thus:

"That the Senate had no such purpose is shown by its vote twice to make this exception. That this provision does not apply to the present case is shown by the fact that its language is so framed as not to apply to the present President. The Senator shows that himself, and argues truly that it would not prevent the present President from removing the Secretary of War, the Secretary of the Navy, and the Secretary of State. And if I supposed that either of these gentlemen was so wanting in manhood, in honor, as to hold his place after the politest intimation by the President of the United States that his services were no longer needed, I certainly, as a Senator, would consent to his removal at any time, and so would we all."Ibid., p. 1516.

I read this, Senators, not as expressing the opinion of an individual Senator concerning the meaning of a law which was under discussion and was about to pass into legislation. I read it as the report; for it is that in effectthe explanation, rather, of the report of the commitee of conference appointed by this body to see whether this body could agree with the House of Representatives in the frame of this bill, which committee came back here with a report that a certain alteration had been made and agreed upon by the committee of conference, and that its effect was what is above stated. And now I ask the Senate, looking at the language of this law, looking at its purpose, looking at the circumstances under which it was passed, the meaning thus attached

to it by each of the bodies which consented to it, whether it is possible to hold that Mr. Stanton's case is within the scope of that tenure-ofoffice act? I submit it is not possible.

66

I now return to the allegations in this first article; and the first allegation, as Senators will remember, is that the issuing of the order which is set out in the article was a violation of the tenure-of-office act. It is perfectly clear that that is not true. The tenure-of-office act in its sixth section enacts "that every removal, appointment, or employment, made, had, or exercised, contrary to the provisions of this act," &c., shall be deemed a high misdemeanor. Every removal contrary to the provisions of this act." In the first place no removal has taken place. They set out an order. If Mr. Stanton had obeyed that order there would have been a removal; but, inasmuch as Mr. Stanton disobeyed that order, there was no removal. So it is quite clear that, looking to this sixth section of the act, they have made out no case of a removal within its terms; and, therefore, no case of violation of the act by a removal. But it must not only be a removal, it must be "contrary to the provisions of this act;" and, therefore, if you could hold the order to be in effect a removal, unless Mr. Stanton's case was within this act, unless this act gave Mr. Stanton a tenure of office and protected it, of course the removal, even if it had been actual instead of attempted merely, would not have been "contrary to the provisions of the act," for the act had nothing to do with it.

by an auditor or a comptroller, or whether it be done by a chancellor; and the work has the same character whether done by one or by the other. They must construe and apply the laws; they must investigate and ascertain facts; they must come to some results compounded of the law and of the facts.

Now, this class of duties the President of the United States has to perform. A case is brought before him, which, in his judgment, calls for action; his first inquiry must be, what is the law on the subject? He encounters, among other things, this tenure-of-office law in the course of his inquiry. His first duty is to construe that law; to see whether it applies to the case; to use, of course, in doing so, all those means and appliances which the Constitution and the laws of the country have put into his hands to enable him to come to a correct decision. But after all, he must decide in order either to act or to refrain from action.

How is it possible for this body to convict the President of the United States of a high misdemeanor for construing a law as those who made it construed it at the time when it was

That process the President in this case was obliged to go through, and did go through; and he came to the conclusion that the case of Mr. Stanton was not within this law. He came to that conclusion, not merely by an examination of this law himself, but by resorting to the advice which the Constitution and laws of the country enable him to call for to assist him in coming to a correct conclusion. Having done so, are the Senate prepared to say that the conclu sion he reached must have been a willful misconstruction-so willful, so wrong, that it can justly and properly, and for the purpose of But this article, as Senators will perceive on this prosecution, effectively be termed a high looking at it, does not allege simply that the misdemeanor? How does the law read? What order for the removal of Mr. Stanton was a are its purposes and objects? How was it unviolation of the tenure-of-office act. The hon-derstood here at the time when it was passed? orable House of Representatives have not, by this article, attempted to erect a mistake into a crime. I have been arguing to you at considerable length, no doubt trying your patience thereby, the construction of that tenure-of-made? office law. I have a clear idea of what its construction ought to be. Senators, more or less of them who have listened to me, may have a different view of its construction, but I think they will in all candor admit that there is a question of construction; there is a question what the meaning of this law was; a question whether it was applicable to Mr. Stanton's case; a very honest and solid question which any man could entertain, and therefore I repeat it is important to observe that the honorable House of Representatives have not, by this article, endeavored to charge the President with a high misdemeanor because he had been honestly mistaken in construing that law. They go further and take the necessary step. They charge him with intentionally miscon struing it; they say, "Which order was unlawfully issued with intention then and there to violate said act." So that, in order to maintain the substance of this article, without which it was not designed by the House of Representatives to stand and cannot stand, it is necessary for them to show that the President willfully misconstrued this law; that having reason to believe and actually believing, after the use of due inquiry, that Mr. Stanton's case was within the law, he acted as if it was not within the law. That is the substance of the charge.

What is the proof in support of that allegation offered by the honorable Managers? Senators must undoubtedly be familiar with the fact that the office of President of the United States, as well as many other executive offices, and to some extent legislative offices, call upon those who hold them for the exercise of judg ment and skill in the construction and application of laws. It is true that the strictly judicial power of the country, technically speaking, is vested in the Supreme Court and such inferior courts as Congress from time to time have established or may establish. But there is a great mass of work to be performed by execu tive officers in the discharge of their duties, which is of a judicial character. Take, for instance, all that is done in the auditing of accounts; that is judicial whether it be done

I submit to the Senate that thus far no great advance has been made toward the conclusion either that the allegation in this article that this order was a violation of the tenure-ofoffice act is true, or that there was an intent on the part of the President thus to violate it. And although we have not yet gone over all the allegations in this article, we have met its "head and front," and what remains will be found to be nothing but incidental and circumstantial, and not the principal subject. If Mr. Stanton was not within this act, if he held the office of Secretary for the Department of War at the pleasure of President Johnson as he held it at the pleasure of President Lincoln, if he was bound by law to obey that order which was given to him, and quit the place instead of being sustained by law in resisting that order, I think the honorable Managers will find it extremely difficult to construct out of the broken fragments of this article anything which will amount to a high misdemeanor. What are they? They are, in the first place, that the President did violate, and intended to violate, the Constitution of the United States by giving this order. Why? They say, as I understand it, because the order of removal was made during the session of the Senate; that for that reason the order was a violation of the Constitution of the United States.

I desire to be understood on this subject. If I can make my own ideas of it plain, I think nothing is left of this allegation. In the first place, the case, as Senators will observe, which is now under consideration, is the case of a Secretary of War holding during the pleasure of the President by the terms of his commission; holding under the act of 1789, which created that Department, which, although it does not affect to confer on the President the power to remove the Secretary, does clearly imply that he has that power by making a provision for what shall happen in case he exercises it. That is the case which is under consideration, and the question is this: whether under the law of 1789 and the tenure of office created by that law, designedly created by that law, after the great debate of 1789, and

whether under a commission which conforms to it, holding during the pleasure of the President, the President could remove such a Secretary during the session of the Senate. Why not? Certainly there is nothing in the Constitution of the United States to prohibit it. The Constitution has made two distinct provisions for filling offices. One is by nomination to the Senate and confirmation by them and a commission by the President upon that confirmation. The other is by commissioning an officer when a vacancy happens during a recess of the Senate. But the question now before you is not a question how vacancies shall be filled; that the Constitution has thus provided for; it is a question how they may be created and when they may be created-a totally distinct question.

Whatever may be thought of the soundness of the conclusion arrived at upon the great debate in 1789 concerning the tenure of office, or concerning the power of removal from office, no one, I suppose, will question that a conclusion was arrived at; and that conclusion was that the Constitution had lodged with the President the power of removal from office independently of the Senate. This may be a decision proper to be reversed; it may have been now reversed; of that I say nothing at present; but that it was made, and that the legislation of Congress in 1789 and so on down during the whole period of legislation to 1867 proceeded upon the assumption, express or implied, that that decision had been made, nobody who understands the history of the legislation of the country will deny.

Consider, if you please, what this decision was. It was that the Constitution had lodged this power in the President; that he alone was to exercise it; that the Senate had not and could not have any control whatever over it. If that be so, of what materiality is it whether the Senate is in session or not? If the Senate is not in session, and the President has this power, a vacancy is created, and the Constitution has made provision for filling that vacancy by commission until the end of the next session of the Senate. If the Senate is in session, then the Constitution has made provision for filling a vacancy which is created by a nomination to the Senate; and the laws of the country, as I am presently going to show you somewhat in detail, have made provisions for filling it ad interim without any nomination, if the President is not prepared to make a nomination at the moment when he finds the public service requires the removal of an officer. So that if this be a case within the scope of the decision made by Congress in 1789, and within the scope of the legislation which followed upon that decision, it is a case where, either by force of the Constitution the President had the power of removal without consulting the Senate, or else the legislation of Congress had given it to him; and either way neither the Constitution nor the legislation of Congress had made it incumbent on him to consult the Senate on the subject.

I submit, then, that if you look at this matter of Mr. Stanton's removal just as it stands on the decision in 1789 or on the legislation of Congress following upon that decision, and in accordance with which are the terms of the commission under which Mr. Stanton held office, you must come to the conclusion, without any further evidence on the subject, that the Senate had nothing whatever to do with the removal of Mr. Stanton, either to advise for it or to advise against it; that it came either under the constitutional power of the President as it had been interpreted in 1789 or it came under the grant made by the Legislature to the President in regard to all those Secrétaries not included within the tenure-of-office bill. This, however, does not rest simply upon this application of the Constitution and of the legislation of Congress. There has been, and we shall bring it before you, a practice by the Government, going back to a very early day, and coming down to a recent period, for the President to make removals from office when

the case called for them, without regard to the fact whether the Senate was in session or not. The instances, of course, would not be numerous. If the Senate was in session the President would send a nomination to the Senate saying, "A B in place of C D, removed;" but then there were occasions, not frequent, I agree, but there were occasions, as you will see might naturally happen, when the President, perhaps, had not had time to select a person whom he would nominate, and when he could not trust the officer then in possession of the office to continue in it, when it was necessary for him by a special order to remove him from the office wholly independent of any nomination sent in to the Senate. Let me bring before your consideration for a moment a very striking case which happened recently enough to be within the knowledge of many of you. We were on the eve of a civil war; the War Department was in the hands of a man who was disloyal and unfaithful to his trust; his chief clerk who, on his removal or resig. nation, would come into the place, was believed to be in the same category with his master. Under those circumstances the President of the United States said to Mr. Floyd, "I must have possession of this office;" and Mr. Floyd had too much good sense or good manners or something else to do anything but resign; and instantly the President put into the place General Holt, the Postmaster General of the United States at the time, without the delay of an hour. It was a time when a delay of twenty-four hours might have been of vast practical consequence to the country. There are classes of cases arising in all the Departments of that character followed by that action; and we shall bring before you evidence showing what those cases have been, so that it will appear that so long as officers held at the pleasure of the President and wholly independent of the advice which he might receive in regard to their removal from the Senate, so long, whenever there was an occasion, the President used the power, whether the Senate was in session or not.

I have now gone over, Senators, the considerations which seem to me to be applicable to the tenure-of-office bill, and to this allegation which is made that the President knowingly violated the Constitution of the United States in the order for the removal of Mr. Stanton from office while the Senate was in session; and the counsel for the President feel that it is not essential to his vindication from this charge to go further upon this subject. Nevertheless, there is a broader view of this matter, which is an actual part of the case, and it is due to the President it should be brought before you, that I now propose to open to your consideration.

The Constitution requires the President of the United States to take care that the laws be faithfully executed. It also requires of him, as a qualification for his office, to swear that he will faithfully execute the laws, and that, to the best of his ability, he will preserve, protect, and defend the Constitution of the United States. I suppose every one will agree that so long as the President of the Uni ted States, in good faith, is endeavoring to take care that the laws be faithfully executed, and in good faith and to the best of his ability is preserving, protecting, and defending the Constitution of the United States, although he may be making mistakes, he is not committing high crimes or misdemeanors.

In the execution of these duties the President found, for reasons which it is not my province at this time to enter upon, but which will be exhibited to you hereafter, that it was impossible to allow Mr. Stanton to continue to hold the office of one of his advisers, and to be responsible for his conduct in the manner he was required by the Constitution and laws to be responsible, any longer. This was intimated to Mr. Stanton, and did not produce the effect which, according to the general judgment of well-informed men, such intimations usually produce. Thereupon the President first suspended Mr. Stanton and reported that to the

Senate. Certain proceedings took place which will be adverted to more particularly presently. They resulted in the return of Mr. Stanton to the occupation by him of this office. Then it became necessary for the President to consider, first, whether this tenure-of-office law applied to the case of Mr. Stanton; secondly, if it did apply to the case of Mr. Stanton, whether the law itself was the law of the land, or was merely inoperative because it exceeded the constitutional power of the Legislature.

I am aware that it is asserted to be the civil and moral duty of all men to obey those laws which have been passed through ail the forms of legislation until they shall have been de creed by judicial authority not to be binding; but this is too broad a statement of the civil and moral duty incumbent either upon private citizens or public officers. If this is the measure of duty there never could be a judicial decision that a law is unconstitutional, inas much as it is only by disregarding a law that any question can be raised judicially under it I submit to Senators that not only is there no such rule of civil or moral duty, but that it may be and has been a high and patriotic duty of a citizen to raise a question whether a law is within the Constitution of the country. Will any man question the patriotism or the propriety of John Hampden's act when he brought the question whether "ship money" was within the Constitution of England before the courts of England? Not only is there no such rule incumbent upon private citizens which forbids them to raise such questions, but, let me repeat, there may be, as there not unfre quently have been, instances in which the highest patriotism and the purest civil and moral duty require it to be done. Let me ask any one of you, if you were a trustee for the rights of third persons, and those rights of third persons, which they could not defend themselves by reason, perhaps, of sex or age, should be attacked by an unconstitutional law, should you not deem it to be your sacred duty to resist it and have the question tried? Ari if a private trustee may be subject to such a duty, and impelled by it to such action, how is it possible to maintain that he who is a trustee for the people of powers confided to him for their protection, for their security, for their benefit, may not in that character of trustee defend what has thus been confided to him?

Do not let me be misunderstood on this subject. I am not intending to advance upon or occupy any extreme ground, because no such extreme ground has been advanced upon or occupied by the President of the United States. He is to take care that the laws are faithfully executed. When a law has been passed through the forms of legislation, either with his assent or without his assent, it is his duty to see that that law is faithfully executed so long as nothing is required of him but miaisterial action. He is not to erect himself into a judicial court and decide that the law is unconstitutional, and that therefore he will not execute it; for, if that were done, manifestly there never could be a judicial decision. He would not only veto a law, but he would refuse all action under the law after it had been passed, and thus prevent any judicial decision from being made. He asserts no such power. He has no such idea of his duty. His idea of his duty is that if a law is passed over his veto which he believes to be unconstitutional, and that law affects the interests of third persons, those whose interests are affected must take care of them, vindicate them, raise questions concerning them, if they should be so advised. If such a law affects the general and public interests of the people the people must take care at the polls that it is remedied in a constitutional way.

But when, Senators, a question arises whether a particular law has cut off a power confided to him by the people through the Con, and he alone can cause a judicial decision Constitution, and he alone can raise that ques

to come between the two branches of the Government to say which of them is right, and after