question is res adjudicata, and I have simply to read the decision rendered upon the same day this high-handed attempt at usurpation was made:

IN EXECUTIVE SESSION, SENATE OF THE UNITED STATES,

February 21, 1868. Whereas the Senate have received and considered the communication of the President stating that he had removed Edwin M. Stanton, Secretary of War, and had designated the *Adjutant General of the army to act as Secretary of War ad interim: Therefore,

Resolved by the Senate of the United States, That, under the Constitution and laws of the United States, the President has no power to remove the Secretary of War and to designate any other officer to perform the duties of that office ad interim.

REMARKS UPON ARTICLE second.

Let us pass to notice briefly article second. The respondent is here charged with violating the tenure-of-office act in the appointment of Lorenzo Thomas as Secretary of War on the 21st day of February, 1868, there being no vacancy in said office. The letter of appointment is as follows:

SIR: Hon. Edwin M. Stanton having been this day removed from the office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to that office.

Mr. Stanton has been instructed to transfer to you all the records, books, papers, and other public property now in his custody and charge.

Respectfully yours,

Brevet Major General LORENZO THOMAS,

Ådjutant General U. S. Army, Washington, D. C.

ANDREW JOHNSON.

This appointment was made simultaneously with the removal of Mr. Stanton; it was made with the full knowledge that no vacancy existed, and that the Senate had so decided; it was made in defiance of all those repeated warnings to which I have alluded-that the Congress of the United States would regard the act as an open violation of law; it was made with every reasonable apprehension on his part that it would lead almost inevitably to his impeachment. Indeed, in this act, as well as others now laid to his charge, he seems not only to have defied, but to have courted impeachment.

The law told him here, as plainly as it told him in the matter of removal, that his act was denounced as a high misdemeanor in office. It told him more. It said to the person who would accept such appointment and attempt to discharge duties under it, would thereby himself commit a high misdemeanor in office. This respondent was therefore guilty of the double crime of himself violating the law and inducing others to join him in the criminal act. Section six of the tenure act says:

Every removal, appointment, or employment made, had, or received, contrary to the provisions of this act, and the making, signing, sealing, countersigning, or issuing of any commission or letter of authority for or in respect to any such appointment or employment, shall be deemed and are hereby declared to be high misdemeanors.

What defence is made for the palpable violation of the law now shown? The respondent goes back to the act of February 13, 1795, and rests his case upon that law, which provides as follows, (p. 415, 1 Statutes at Large :)

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in case of vacancy in the office of Secretary of State, Secretary of the Treasury, or of the Secretary of the Department of War, or of any officer of either of the said departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed or such vacancy be filled: Provided, That no one vacancy shall be supplied, in manner aforesaid, for a longer term than six months.

But by the very terms of the act of 1795, this respondent can there find no defence; that law says, "in case of vacancy in the office of Secretary of the Depariment of War, whereby he cannot perform the duties of said office, it shall be law ful for the President to authorize any person to perform its duties." We see, then, there must be a vacancy in the office, or a disability on the part of the Secretary to act, before the President can make such an appointment. There was neither a vacancy nor a disability existing at the time Lorenzo Thomas was appointed. This respondent, then, has not only violated the tenure act, but he has violated the very law under which he claims immunity. Nothing can be plainer, and nothing exhibits more strongly the utter hollowness of his defence.

ARTICLE third.

The next and third article charges the President with a violation of the Constitution of the United States in the appointment of Lorenzo Thomas as Secretary of War while the Senate was in session, no vacancy having occurred during the recess of the Senate, and no vacancy existing at the time. The facts alleged are not controverted; the question presented to the Senate under this article involves the proper construction of our fundamental law. I have previously addressed myself to the Senate upon this subject, and will not again enter upon it.

The line of inquiry is very simple. If this accused has violated a law constitutionally enacted, then has he violated the Constitution itself. He has sworn to support the Constitution, and by that oath he is enjoined to "take care that the laws are faithfully executed." He cannot support the Constitution and defy the laws enacted pursuant to it, any more than he can execute the laws faithfully and violate the Constitution. The duties are blended, and he cannot violate one without violating the other. If he be guilty under either the first or second article, he is guilty of the offence charged in the third.

ARTICLES FOURTH, FIFTH, SIXTH, AND SEVENTH.

The four succeeding charges allege conspiracy between the respondent and Lorenzo Thomas, and others unknown:

First. By force, intimidation and threats unlawfully to hinder Edwin M. Stanton, then Secretary of War, from holding said office, contrary to the provisions of an act to prevent and punish certain conspiracies, approved July 31, 1861.

Second. To prevent and hinder the execution of an act regulating the tenure of certain civil offices, passed March 2, 1867, by attempting unlawfully to prevent Edwin M. Stanton, then Secretary of War, from holding said office.

Third. By force to seize, take, aud possess the property of the United States in the Department of War, then and there in the custody of Edwin M. Stanton, Secretary of the Department of War, contrary to an act to define and punish certain conspiracies, approved July 31, 1861.

Fourth. To seize, take, and possess the property of the United States in the Department of War, and in custody of said Stanton, with intent to disregard and violate an act regulating the tenure of certain civil offices, passed March 2, 1867. That part of the conspiracy act which defines the offences here charged is as follows:

*

That if two or more persons, within any State or Territory of the United States, shall conspire together to oppose by force the authority of the government of the United States, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States against the will or contrary to the authority of the United States, or by force or intimidation or threat to prevent any person from accepting or holding any office, or trust, or place of confidence under the United States, each and every person so offending shall be guilty of a high crime.

The acts which he has himself admitted to have done, and those proved against him by the undisputed testimony of witnesses, bring his conduct within the letter

of the law. No other result could have followed his conduct-it tended directly to "hinder and delay the execution of " the tenure act. He had no other purpose than to " seize, take, and possess the property of the United States in the War Department," against the will and contrary to the authority of the United States, then in the lawful custody of the Secretary of War, and as placed there by the highest authority in the land. And it is equally evident that his design was to prevent Edwin M. Stanton from holding the office to which he had been legally appointed, and from which he had not been and could not be legally removed. We are not, then, to inquire at this time whether he is guilty of a high misdemeanor in doing these things, which have been made the gravamen of the first three articles; but we are to see whether he has unlawfully conspired, by force, or intimidation, or threat, to attempt the accomplishment of these objects.

What are the evidences of a conspiracy? It may be well first to inquire, what is a conspiracy? Under articles fourth and sixth we are confined in our definition to a conspiracy or agreement by force to do the things alleged. Under the fifth and seventh articles of impeachment the broader rule of the common law is applicable. Leaving the discussion of those articles for their proper place, let us inquire whether there is a conspiracy proved in violation of the act of 1861. To determine this, there must be grouped about the accused all the circumstances tending to explain his conduct.

From the very nature of the crime its perpetrators would carefully abstain from leaving any trace of their original purpose. We are, then, to scan the circumstances surrounding the transaction; we are to inquire into the character of the act to be performed, the means and the instrument employed, the declarations of the conspirators before and since, the mind and temper of the accused, as well as his co-conspirators, and everything that can throw light upon their motives and intentions. What are these circumstances, acts, and declarations? Here we find the unmistakable declaration of one of the conspirators that he intended to use force; that should the doors of the department be barred against him he would break them down. When he made this declaration he had been once refused possession, and if any one thing appear more clearly than another in the testimony, it is that he fully anticipated a forcible contest in order to succeed. He was clothed with ample authority by the President to do this. It will not do to say that General Thomas's order was in the usual form, and therefore the President only expected of him the usual compliance with the order, for Thomas knew that not only in the opinion of his General-in-chief and the rightful Secretary of War, but in the solemnly declared judgment of Congress, that order was but blank paper; when, therefore, we find him declaring a purpose to resort to force, he only stated what was necessary to make the order of the slightest use. No one knew better than Thomas the consequences of even accepting such an order, and the mere agreement between the President and himself, the one to issue the order and the other to accept it and to enter upon its execution, both knowing it to be unlawful, is of itself enough to hold both responsible for the manner in which either attempted to execute it. But his conversation with Mr. Burleigh was not merely the idle talk of a garrulous old man, drawn out of him by an inquisitive interlocutor, for we find that on the same day, and previous to his conversation with Burleigh, he had a conversation with Samuel Wilkeson, in which, after some hesitation, he told that witness substantially the same thing, on two different occasions.

I quote briefly from his testimony, pp. 212, 213:

The WITNESS. I asked him to tell me what had occurred that morning between him and the Secretary of War in his endeavor to take possession of the War Department. He hesitated to do so till I told him that the town was filled with rumors of the change that had been made, of the removal of Mr. Stanton and the appointment of himself. He then said that since the affair had become public he felt relieved to speak to me with freedom about it. He drew from his pocket a copy, or rather the original, of the order of the President of the

United States, directing him to take possession of the War Department immediately. He told me that he had taken as a witness of his action General Williams, and had gone up into the War Department and had shown to Edwin M. Stanton the order of the President, and had demanded, by virtue of that order, the possession of the War Department and its books and papers. He told me that Edwin M. Stanton, after reading the order, had asked him if he would allow to him sufficient time for him to gather together his books, papers, and other personal property and take them away with him; that he told him that he would allow to him all necessary time to do so, and had then withdrawn from Mr. Stanton's room. He further told me, that day being Friday, that the next day would be what he called a dies non, being the holiday of the anniversary of Washington's birthday, when he had directed that the War Department should be closed; that the day thereafter would be Sunday, and that on Monday morning he should demand possession of the War Department and of its property, and if that demand was refused or resisted he should apply to the General-in-chief of the army for a force sufficient to enable him to take possession of the War Department; and he added that he did not see how the General of the army could refuse to obey his demand for that force. He then added that under the order that the, President had given to him he had no election to pursue any other course than the one that he indicated; that he was a subordinate officer directed by an order from a superior officer, and that he must pursue that

course.

Here we find, not only the purpose to use force distinctly declared, but that, under the "order the President had given him, he had no election to pursue any other course." I ask, how he could have spoken truthfully and have made any other declaration, when it is patent that no other course could have been successful? It does not seem to me that this view of the case could be made to appear more clear by illustration; and yet let me put a parallel case.

Suppose Andrew Johnson had determined to possess himself of the Capitol with a view of ousting Congress, and had directed the Speaker of the House of Representatives and the President of the Senate to turn over all the records, and had directed Thomas to take immediate possession. Such an order would be no less unlawful, in one view of the tenure act, than the one he gave. Could anybody doubt that such an order would mean revolution, and that a clash of arms must follow if it were executed; and, if such thing followed, that Mr. Johnson would be directly chargeable with the consequences? Would not force appear all over the order, though the word were not written? If the officer charged with executing such order declared, after receiving it, that he intended to use force, would any sane man set up that the President must not be held accountable for the declarations of such officer, when they were declarations showing the only means of accomplishing the object? Let me ask wherein this hypothetical case is not covered by that at bar? Mr. Stanton was intrenched behind the law as securely as is Congress; he had frequently declared that he would not yield except to superior force. I say, then, that when the President ordered Thomas to take immediate possession of the War Department, he gave him a carte blanche to do whatever he thought necessary to accomplish his purpose, and Thomas only echoed his co-conspirator when he talked with Burleigh and Wilkeson. But General Thomas not only communicated his purpose to Burleigh, but he afterwards told this witness why he had not executed his plan. Witness says (page 210) that he (Thomas) told him that the only thing that prevented his taking possession of the War Department on the morning he had invited Burleigh to be present, was because of his arrest by the United States marshal at an unusually early hour. At this point, before noticing the attempt of Thomas to seize the War Department on the morning of the 22d of February, I desire to call attention to a fact in evidence showing a perfect concurrence of mind between the President and his co-conspirator, Thomas. On the morning of the 22d the President's private secretary addressed a note, by direction of the President, to General Emory, in command of the military forces of the department. General Emory responded in person, and met the President about the same hour that Thomas entered the War Department. That interview is made the subject-matter of a separate article, and I will not give it at length in this place. But I urge that no man can read General Emory's narrative of what then

:

transpired in the light of the circumstances surrounding this case, and not feel himself driven to the conclusion that the President meant to use the military force of this department through that officer to carry out his unlawful design; and nothing but the indirect rebuke administered by General Emory, and his avowed purpose made to the President to obey no orders except they should come through the General-in-chief, as by law provided, deterred the accused from then and there directing him to marshal his forces, if necessary, for the expulsion of Mr. Stanton.

While this remarkable scene was transpiring in the Executive Mansion, another not less remarkable was being enacted by the tool of the President at the War Department. There were many witnesses present, most of whom have testified. As they concur substantially in their testimony, I will give that of but one of them, Hon. Thomas W. Ferry. (See page 225.)

In the presence of Secretary Stanton, Judge Kelley, Moorhead, Dodge, Van Wyck, Van Horn, Delano, and Freeman Clarke, at twenty-five minutes past twelve m., General Thomas, Adjutant General, came into this Secretary of War office, saying, "Good morning," the Secretary replying, "Good morning, sir." Thomas looked around and said, "I do not wish to disturb these gentlemen, and will wait." Stanton said, "Nothing private here; what do you want, sir?"

Thomas demanded of Secretary Stanton the surrender of the Secretary of War office. Stanton denied it to him, and ordered him back to his own office as Adjutant General. Thomas refused to go. "I claim the office of Secretary of War, and demand it by order of the President."

STANTON. “I deny your authority to act, and order you back to your own office." THOMAS. "I will stand here. I want no unpleasantness in the presence of these gentle

men."

STANTON. "You can stand there if you please, but you cannot act as Secretary of War. I am Secretary of War. I order you out of this office and to your own." THOMAS. "I refuse to go, and will stand here."

STANTON. “How are you to get possession; do you mean to use force?"

THOMAS. "I do not care to use force, but my mind is made up as to what I shall do. I want no unpleasantness, though. I shall stay here and act as Secretary of War." STANTON. "You shall not, and I order you, as your superior, back to your own office." THOMAS. "I will not obey you, but will stand here and remain here."

STANTON. “You can stand there, as you please. I order you out of this office to your I am Secretary of War, and your superior.'

own.

Thomas then went into opposite room across hall (General Schriver's) and commenced ordering General Schriver and General E. D. Townsend. Stanton entered, followed by Moorhead and Ferry, and ordered those generals not to obey or pay attention to General Thomas's orders; that he denied his assumed authority as Secretary of War ad interim, and forbade their obedience of his directions. "I am Secretary of War, and I now order you, General Thomas, out of this office to your own quarters."

THOMAS. "I will not go. I shall discharge the functions of Secretary of War.”
STANTON. "You will not.”

THOMAS. "I shall require the mails of the War Department to be delivered to me, and shall transact the business of the office."

STANTON. "You shall not have them, and I order you to your own office."

Gentlemen of the Senate, was this the method of executing an ordinary command of an officer delivered to him for an ordinary purpose? Did Thomas assume this belligerent attitude and enter upon this despicable business in such violent manner without having been instructed to do so, if necessary, by the man whose orders he was executing? Is it not probable that at the very moment he was bullying the Secretary of War, and ordering General Schriver and General Townsend to recognize him as the rightful, secretary, he was expecting the force necessary to maintain his authority from General Emory, who, he thought, was receiving instructions from the President to that effect? Sirs, this coincidence and concurrence of action between the President and Thomas on that morning is susceptible of no reasonable solution, other than that they meditated the use of force, and were availing themselves of every possible means to obtain it. Now, sirs, I do not desire to pursue this inquiry further. If there was a conspiracy between these parties to take possession of the War Department by force, as I think has been fully shown by the evidence at this trial, then that